59402 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9, 63, 260, 264, 265, 266, 

270 and 271 

[FRL–7971–8] 

RIN 2050–AE01 

National Emission Standards for 

Hazardous Air Pollutants: Final 

Standards for Hazardous Air Pollutants 

for Hazardous Waste Combustors 

(Phase I Final Replacement Standards 

and Phase II) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action finalizes national 

emission standards (NESHAP) for 

hazardous air pollutants for hazardous 

waste combustors (HWCs): hazardous 

waste burning incinerators, cement 

kilns, lightweight aggregate kilns, 

industrial/commercial/institutional 

boilers and process heaters, and 

hydrochloric acid production furnaces. 

EPA has identified HWCs as major 

sources of hazardous air pollutant 

(HAP) emissions. These standards 

implement section 112(d) of the Clean 

Air Act (CAA) by requiring hazardous 

waste combustors to meet HAP emission 

standards reflecting the performance of 

the maximum achievable control 

technology (MACT). 

The HAP emitted by HWCs include 

arsenic, beryllium, cadmium, 

chromium, dioxins and furans, 

hydrogen chloride and chlorine gas, 

lead, manganese, and mercury. 

Exposure to these substances has been 

demonstrated to cause adverse health 

effects such as irritation to the lung, 

skin, and mucus membranes, effects on 

the central nervous system, kidney 

damage, and cancer. The adverse health 

effects associated with exposure to these 

specific HAP are further described in 

the preamble. For many HAP, these 

findings have only been shown with 

concentrations higher than those 

typically in the ambient air. 

This action also presents our decision 

regarding the February 28, 2002 petition 

for rulemaking submitted by the Cement 

Kiln Recycling Coalition, relating to 

EPA’s implementation of the so-called 

omnibus permitting authority under 

section 3005(c) of the Resource 

Conservation and Recovery Act (RCRA). 

That section requires that each permit 

issued under RCRA contain such terms 

and conditions as permit writers 

determine to be necessary to protect 

human health and the environment. In 

that petition, the Cement Kiln Recycling 

Coalition requested that we repeal the 

existing site-specific risk assessment 

policy and technical guidance for 

hazardous waste combustors and that 

we promulgate the policy and guidance 

as rules in accordance with the 

Administrative Procedure Act if we 

continue to believe that site-specific risk 

assessments may be necessary. 

DATES: The final rule is effective 

December 12, 2005. The incorporation 

by reference of Method 0023A into 

§ 63.14 is approved by the Director of 

the Federal Register as of December 12, 

2005. 

ADDRESSES: The official public docket is 

the collection of materials that is 

available for public viewing at the 

Office of Air and Radiation Docket and 

Information Center (Air Docket) in the 

EPA Docket Center, Room B–102, 1301 

Constitution Ave., NW., Washington, 

DC. 

FOR FURTHER INFORMATION CONTACT: For 

more information concerning 

applicability and rule determinations, 

contact your State or local 

representative or appropriate EPA 

Regional Office representative. For 

information concerning rule 

development, contact Michael 

Galbraith, Waste Treatment Branch, 

Hazardous Waste Minimization and 

Management Division, (5302W), U.S. 

EPA, 1200 Pennsylvania Avenue, NW., 

Washington DC 20460, telephone 

number (703) 605–0567, fax number 

(703) 308–8433, electronic mail address 

galbraith.michael@epa.gov. 

SUPPLEMENTARY INFORMATION:

Regulated Entities 

The promulgation of the final rule 

would affect the following North 

American Industrial Classification 

System (NAICS) and Standard Industrial 

Classification (SIC) codes: 

Category NAICS code SIC 

code Examples of potentially regulated entities 

Any industry that combusts hazardous waste as defined in 

the final rule.

562211 4953 Incinerator, hazardous waste 

327310 3241 Cement manufacturing, clinker production 

327992 3295 Ground or treated mineral and earth manufacturing 

325 28 Chemical Manufacturers 

324 29 Petroleum Refiners 

331 33 Primary Aluminum 

333 38 Photographic equipment and supplies 

488, 561, 562 49 Sanitary Services, N.E.C. 

421 50 Scrap and waste materials 

422 51 Chemical and Allied Products, N.E.C 

512, 541, 561, 812 73 Business Services, N.E.C. 

512, 514, 541, 711 89 Services, N.E.C. 

924 95 Air, Water and Solid Waste Management 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

examples of the types of entities EPA is 

now aware could potentially be 

regulated by this action. Other types of 

entities not listed could also be affected. 

To determine whether your facility, 

company, business, organization, etc., is 

regulated by this action, you should 

examine the applicability criteria in Part 

II of this preamble. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

Abbreviations and Acronyms Used in 

This Document 

acfm actual cubic feet per minute 

Btu British thermal units 

CAA Clean Air Act 

CFR Code of Federal Regulations 

DRE destruction and removal efficiency 

dscf dry standard cubic foot 

dscm dry standard cubic meter 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59403 

EPA Environmental Protection Agency 

FR Federal Register 

gr/dscf grains per dry standard cubic foot 

HAP hazardous air pollutant(s) 

ICR Information Collection Request 

kg/hr kilograms per hour 

kW-hour kilo Watt hour 

MACT Maximum Achievable Control 

Technology 

mg/dscm milligrams per dry standard cubic 

meter 

MMBtu million British thermal unit 

ng/dscm nanograms per dry standard cubic 

meter 

NESHAP national emission standards for 

HAP 

ng nanograms 

POHC principal organic hazardous 

constituent 

ppmv parts per million by volume 

ppmw parts per million by weight 

Pub. L. Public Law 

RCRA Resource Conservation and Recovery 

Act 

SRE system removal efficiency 

TEQ toxicity equivalence 

μg/dscm micrograms per dry standard cubic 

meter 

U.S.C. United States Code 

Table of Contents 

Part One: Background and Summary 

I. What Is the Statutory Authority for this 

Standard? 

II. What Is the Regulatory Development 

Background of the Source Categories in 

the Final Rule? 

A. Phase I Source Categories 

B. Phase II Source Categories 

III. How Was the Final Rule Developed? 

IV. What Is the Relationship Between the 

Final Rule and Other MACT Combustion 

Rules? 

V. What Are the Health Effects Associated 

with Pollutants Emitted by Hazardous 

Waste Combustors? 

Part Two: Summary of the Final Rule 

I. What Source Categories and Subcategories 

Are Affected by the Final Rule? 

II. What Are the Affected Sources and 

Emission Points? 

III. What Pollutants Are Emitted and 

Controlled? 

IV. Does the Final Rule Apply to Me? 

V. What Are the Emission Limitations? 

VI. What Are the Testing and Initial 

Compliance Requirements? 

A. Compliance Dates 

B. Testing Requirements 

C. Initial Compliance Requirements 

VII. What Are the Continuous Compliance 

Requirements? 

VIII. What Are the Notification, 

Recordkeeping, and Reporting 

Requirements? 

IX. What Is the Health-Based Compliance 

Alternative for Total Chlorine, and How 

Do I Demonstrate Eligibility? 

A. Overview 

B. HCl-Equivalent Emission Rates 

C. Eligibility Demonstration 

D. Assurance that the 1-Hour HClEquivalent Emission Rate Will Not Be 

Exceeded 

E. Review and Approval of Eligibility 

Demonstrations 

F. Testing Requirements 

G. Monitoring Requirements 

H. Relationship Among Emission Rates, 

Emission Rate Limits, and Feedrate 

Limits 

I. Changes 

X. Overview on Floor Methodologies 

Part Three: What Are the Major Changes 

Since Proposal? 

I. Database 

A. Hazardous Burning Incinerators 

B. Hazardous Waste Cement Kilns 

C. Hazardous Waste Lightweight Aggregate 

Kilns 

D. Liquid Fuel Boilers 

E. HCl Production Furnaces 

F. Total Chlorine Emissions Data Below 20 

ppmv 

II. Emission Limits 

A. Incinerators 

B. Hazardous Waste Burning Cement Kilns 

C. Hazardous Waste Burning Lightweight 

Aggregate Kilns 

D. Solid Fuel Boilers 

E. Liquid Fuel Boilers 

F. Hydrochloric Acid Production Furnaces 

G. Dioxin/Furan Testing for Sources Not 

Subject to a Numerical Standard 

III. Statistics and Variability 

A. Using Statistical Imputation to Address 

Variability of Nondetect Values 

B. Degrees of Freedom when Imputing a 

Standard Deviation Using the Universal 

Variability Factor for Particulate Matter 

Controlled by a Fabric Filter 

IV. Compliance Assurance for Fabric Filters, 

Electrostatic Precipitators, and Ionizing 

Wet Scrubbers 

V. Health-Based Compliance Alternative for 

Total Chlorine 

Part Four: What Are the Responses to Major 

Comments? 

I. Database 

A. Revisions to the EPA’s Hazardous Waste 

Combustor Data Base 

B. Use of Data from Recently Upgraded 

Sources 

C. Correction of Total Chlorine Data to 

Address Potential Bias in Stack 

Measurement Method 

D. Mercury Data for Cement Kilns 

E. Mercury Data for Lightweight Aggregate 

Kilns 

F. Incinerator Database 

II. Affected Sources 

A. Area Source Boilers and Hydrochloric 

Acid Production Furnaces 

B. Boilers Eligible for the RCRA Low Risk 

Waste Exemption 

C. Mobile Incinerators 

III. Floor Approaches 

A. Variability 

B. SRE/Feed Methdology 

C. Air Pollution Control Technology 

Methodologies for the Particulate Matter 

Standard and for the Total Chlorine 

Standard for Hydrochloric Acid 

Production Furnaces 

D. Format of Standards 

E. Standards Can Be No Less Stringent 

Than the Interim Standards 

F. How Can EPA’s Approach to Assessing 

Variability and its Ranking 

Methodologies be Reasonable when they 

Result in Standards Higher than the 

Interim Standards? 

IV. Use of Surrogates 

A. Particulate Matter as Surrogate for Metal 

HAP 

B. Carbon Monoxide/Hydrocarbons and 

DRE as Surrogates for Dioxin/Furan 

C. Use of Carbon Monoxide and Total 

Hydrocarbons as Surrogate for NonDioxin Organic HAP 

V. Additional Issues Relating to Variability 

and Statistics 

A. Data Sets Containing Nondetects 

B. Using Statistical Imputation to Address 

Variability of Nondetect Values 

C. Analysis of Variance Procedures to 

Assess Subcategorization 

VI. Emission Standards 

A. Incinerators 

B. Cement Kilns 

C. Lightweight Aggregate Kilns 

D. Liquid Fuel Boilers 

E. General 

VII. Health-Based Compliance Alternative for 

Total Chlorine 

A. Authority for Health-Based Compliance 

Alternatives 

B. Implementation of the Health-Based 

Standards 

C. National Health-Based Standards for 

Cement Kilns. 

VIII. Implementation and Compliance 

A. Compliance Assurance Issues for both 

Fabric Filters and Electrostatic 

Precipitators (and Ionizing Wet 

Scrubbers) 

B. Compliance Assurance Issues for Fabric 

Filters 

C. Compliance Issues for Electrostatic 

Precipitators and Ionizing Wet Scrubbers 

D. Fugitive Emissions 

E. Notification of Intent to Comply and 

Compliance Progress Report 

F. Startup, Shutdown, and Malfunction 

Plan 

G. Public Notice of Test Plans 

H. Using Method 23 Instead of Method 

0023A 

I. Extrapolating Feedrate Limits for 

Compliance with the Liquid Fuel Boiler 

Mercury and Semivolatile Metal 

Standards 

J. Temporary Compliance with Alternative, 

Otherwise Applicable MACT Standards 

K. Periodic DRE Testing and Limits on 

Minimum Combustion Chamber 

Temperature for Cement Kilns 

L. One Time Dioxin and Furan Test for 

Sources Not Subject to a Numerical 

Limit for Dioxin and Furan 

M. Miscellaneous Compliance Issues 

IX. Site-Specific Risk Assessment under 

RCRA 

A. What Is the Site-Specific Risk 

Assessment Policy? 

B. Why Might SSRAs Continue To Be 

Necessary for Sources Complying With 

Phase 1 Replacement Standards and 

Phase 2 Standards? 

C. What Changes Are EPA Finalizing With 

Respect To the Site-Specific Risk 

Assessment Policy? 

D. How Will the New SSRA Regulatory 

Provisions Work? 

E. What Were Commenters’ Reactions to 

EPA’s Proposed Decision Not to Provide 

National Criteria for Determining When 

an SSRA Is or Is Not Necessary? 

59404 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

1A process heater meets the RCRA definition of 

a boiler. Therefore, process heaters that burn 

hazardous wastes are covered under subpart EEE as 

boilers, and are discussed as such in subsequent 

parts of the preamble. 

F. What Are EPA’s Responses to the 

Cement Kiln Recycling Coalition’s 

Comments on the Proposal and What is 

EPA’s Final Decision on CKRC’s 

Petition? 

X. Permitting 

A. What is the Statutory Authority for the 

RCRA Requirements Discussed in this 

Section? 

B. Did Commenters Express any Concerns 

Regarding the Current Permitting 

Requirements? 

C. Are There Any Changes to the Proposed 

Class 1 Permit Modification Procedure? 

D. What Permitting Approach Is EPA 

Finalizing for New Units? 

E. What Other Permitting Requirements 

Were Discussed In the Proposal? 

Part Five: What Are the CAA Delegation 

Clarifications and RCRA State 

Authorization Requirements? 

I. Authority for this Rule. 

II. CAA Delegation Authority. 

III. Clarifications to CAA Delegation 

Provisions for Subpart EEE. 

A. Alternatives to Requirements. 

B. Alternatives to Test Methods. 

C. Alternatives to Monitoring. 

D. Alternatives to Recordkeeping and 

Reporting. 

E. Other Delegation Provisions 

IV. RCRA State Authorization and 

Amendments To the RCRA Regulations. 

Part Six: Impacts of the Final Rule 

I. What Are the Air Impacts? 

II. What Are the Water and Solid Waste 

Impacts? 

III. What Are the Energy Impacts? 

IV. What Are the Control Costs? 

V. What Are the Economic Impacts? 

A. Market Exit Estimates 

B. Waste Reallocations 

VI. What Are the Social Costs and Benefits 

of the Final Rule? 

A. Combustion Market Overview 

B. Baseline Specification 

C. Analytical Methodology and Findings—

Social Cost Analysis 

D. Analytical Methodology and Findings—

Benefits Assessment 

Part Seven: How Does the Final Rule Meet 

the RCRA Protectiveness Mandate? 

I. Background 

II. Evaluation of Protectiveness 

Part Eight: Statutory and Executive Order 

Reviews 

I. Executive Order 12866: Regulatory 

Planning and Review 

II. Paperwork Reduction Act 

III. Regulatory Flexibility Act 

IV. Unfunded Mandates Reform Act of 1995 

V. Executive Order 13132: Federalism 

VI. Executive Order 13175: Consultation and 

Coordination with Indian Tribal 

Governments 

VII. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

VIII. Executive Order 13211: Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use 

IX. National Technology Transfer and 

Advancement Act 

X. Executive Order 12898: Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

XI. Congressional Review 

Part One: Background and Summary 

I. What Is the Statutory Authority for 

This Standard? 

Section 112 of the Clean Air Act 

requires that the EPA promulgate 

regulations requiring the control of HAP 

emissions from major and certain area 

sources. The control of HAP is achieved 

through promulgation of emission 

standards under sections 112(d) and (in 

a second round of standard setting) (f). 

EPA’s initial list of categories of major 

and area sources of HAP selected for 

regulation in accordance with section 

112(c) of the Act was published in the 

Federal Register on July 16, 1992 (57 FR 

31576). Hazardous waste incinerators, 

Portland cement plants, clay products 

manufacturing (including lightweight 

aggregate kilns), industrial/commercial/ 

institutional boilers and process heaters, 

and hydrochloric acid production 

furnaces are among the listed 174 

categories of sources. The listing was 

based on the Administrator’s 

determination that these sources may 

reasonably be anticipated to emit one or 

more of the 186 listed HAP in quantities 

sufficient to designate them as major 

sources. 

II. What Is the Regulatory Development 

Background of the Source Categories in 

the Final Rule? 

Today’s notice finalizes standards for 

controlling emissions of HAP from 

hazardous waste combustors: 

incinerators, cement kilns, lightweight 

aggregate kilns, boilers, process 

heaters 1, and hydrochloric acid 

production furnaces that burn 

hazardous waste. We call incinerators, 

cement kilns, and lightweight aggregate 

kilns Phase I sources because we have 

already promulgated standards for those 

source categories. We call boilers and 

hydrochloric acid production furnaces 

Phase II sources because we intended to 

promulgate MACT standards for those 

source categories after promulgating 

MACT standards for Phase I sources. 

The regulatory background of Phase I 

and Phase II source categories is 

discussed below. 

A. Phase I Source Categories 

Phase I combustor sources are 

regulated under the Resource 

Conservation and Recovery Act (RCRA), 

which establishes a ‘‘cradle-to-grave’’

regulatory structure overseeing the safe 

treatment, storage, and disposal of 

hazardous waste. We issued RCRA rules 

to control air emissions from hazardous 

waste burning incinerators in 1981, 40 

CFR Parts 264 and 265, Subpart O, and 

from cement kilns and lightweight 

aggregate kilns that burn hazardous 

waste in 1991, 40 CFR Part 266, Subpart 

H. These rules rely generally on riskbased standards to assure control 

necessary to protect human health and 

the environment, the applicable RCRA 

standard. See RCRA section 3004 (a) 

and (q). 

The Phase I source categories also are 

subject to standards under the Clean Air 

Act. We promulgated standards for 

Phase I sources on September 30, 1999 

(64 FR 52828). This final rule is referred 

to in this preamble as the Phase I rule 

or 1999 final rule. These emission 

standards created a technology-based 

national cap for hazardous air pollutant 

emissions from the combustion of 

hazardous waste in these devices. The 

rule regulates emissions of numerous 

hazardous air pollutants: dioxin/furans, 

other toxic organics (through 

surrogates), mercury, other toxic metals 

(both directly and through a surrogate), 

and hydrogen chloride and chlorine gas. 

Where necessary, Section 3005(c)(3) of 

RCRA provides the authority to impose 

additional conditions on a source-bysource basis in a RCRA permit if 

necessary to protect human health and 

the environment. 

A number of parties, representing 

interests of both industrial sources and 

of the environmental community, 

sought judicial review of the Phase I 

rule. On July 24, 2001, the United States 

Court of Appeals for the District of 

Columbia Circuit granted portions of the 

Sierra Club’s petition for review and 

vacated the challenged portions of the 

standards. Cement Kiln Recycling 

Coalition v. EPA, 255 F. 3d 855 (D.C. 

Cir. 2001). The court held that EPA had 

not demonstrated that its calculation of 

MACT floors met the statutory 

requirement of being no less stringent 

than (1) the average emission limitation 

achieved by the best performing 12 

percent of existing sources and, for new 

sources, (2) the emission control 

achieved in practice by the best 

controlled similar source for new 

sources. 255 F.3d at 861, 865–66. As a 

remedy, the court, after declining to rule 

on most of the issues presented in the 

industry petitions for review, vacated 

the ‘‘challenged regulations,’’ stating 

that: ‘‘[W]e have chosen not to reach the 

bulk of industry petitioners’ claims, and 

leaving the regulations in place during 

remand would ignore petitioners’

potentially meritorious challenges.’’ Id. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59405 

2Note, however, that fugitive emissions 

attributable to the combustion of hazardous waste 

from the combustion device are regulated pursuant 

to Subpart EEE. 

3Hydrochloric acid production furnaces that 

combust hazardous waste are also affected sources 

subject to Subpart NNNNN if they produce a liquid 

acid product that contains greater than 30% 

hydrochloric acid. 

at 872. Examples of the specific 

challenges the Court indicated might 

have merit were provisions relating to 

compliance during start up/shut down 

and malfunction events, including 

emergency safety vent openings, the 

dioxin/furan standard for lightweight 

aggregate kilns, and the semivolatile 

metal standard for cement kilns. Id. 

However, the Court stated, ‘‘[b]ecause 

this decision leaves EPA without 

standards regulating [hazardous waste 

combustor] emissions, EPA (or any of 

the parties to this proceeding) may file 

a motion to delay issuance of the 

mandate to request either that the 

current standards remain in place or 

that EPA be allowed reasonable time to 

develop interim standards.’’ Id. 

Acting on this invitation, all parties 

moved the Court jointly to stay the 

issuance of its mandate for four months 

to allow EPA time to develop interim 

standards, which would replace the 

vacated standards temporarily, until 

final standards consistent with the 

Court’s mandate are promulgated. The 

interim standards were published on 

February 13, 2002 (67 FR 6792). EPA 

did not justify or characterize these 

standards as conforming to MACT, but 

rather as an interim measure to prevent 

adverse consequences that would result 

from the regulatory gap resulting from 

no standards being in place. Id. at 6793, 

6795–96; see also 69 FR at 21217 (April 

20, 2004). EPA also entered into a 

settlement agreement, enforceable by 

the Court of Appeals, to issue final 

standard conforming to the Court’s 

mandate by June 14, 2005. That date has 

since been extended to September 14, 

2005. 

B. Phase II Source Categories 

Phase II combustors—boilers and 

hydrochloric acid production 

furnaces—are also regulated under the 

Resource Conservation and Recovery 

Act (RCRA) pursuant to 40 CFR Part 

266, Subpart H, and (for reasons 

discussed below) are also subject to the 

MACT standard setting process in 

section 112(d) of the CAA. We delayed 

promulgating MACT standards for these 

source categories pending reevaluation 

of the MACT standard-setting 

methodology following the Court’s 

decision to vacate the standards for the 

Phase I source categories. We also have 

entered into a judicially enforceable 

consent decree with Sierra Club that 

requires EPA to promulgate MACT 

standards for the Phase II sources by 

June 14, 2005, since extended to 

September 14, 2005—the same date that 

(for independent reasons) is required for 

the replacement standards for Phase I 

sources. 

III. How Was the Final Rule Developed? 

We proposed standards for HWCs on 

April 20, 2004 (69 FR 21197). The 

public comment period closed on July 6, 

2004. In addition, on February 4, 2005, 

we requested certain key commenters to 

comment by email on a limited number 

of issues arising from public comments 

on the proposed rule. The comment 

period for those issues closed on March 

7, 2005. 

We received approximately 100 

public comment letters on the proposed 

rule and the subsequent direct request 

for comments. Comments were 

submitted by owner/operators of HWCs, 

trade associations, state regulatory 

agencies and their representatives, and 

environmental groups. Today’s final 

rule reflects our consideration of all of 

the comments and additional 

information we received. Major public 

comments on the proposed rule along 

with our responses, are summarized in 

this preamble. 

IV. What Is the Relationship Between 

the Final Rule and Other MACT 

Combustion Rules? 

The amendments to the Subpart EEE, 

Part 63, standards for hazardous waste 

combustors apply to the source 

categories that are currently subject to 

that subpart—incinerators, cement 

kilns, and lightweight aggregate kilns 

that burn hazardous waste. Today’s final 

rule, however, also amends Subpart EEE 

to establish MACT standards for the 

Phase II source categories—those boilers 

and hydrochloric acid production 

furnaces that burn hazardous waste. 

Generally speaking, you are an 

affected source pursuant to Subpart EEE 

if you combust, or have previously 

combusted, hazardous waste in an 

incinerator, cement kiln, lightweight 

aggregate kiln, boiler, or hydrochloric 

acid production furnace. You continue 

to be an affected source until you cease 

burning hazardous waste and initiate 

closure requirements pursuant to RCRA. 

Affected sources do not include: (1) 

Sources exempt from regulation under 

40 CFR part 266, subpart H, because the 

only hazardous waste they burn is listed 

under 40 CFR 266.100(c); (2) research, 

development, and demonstration 

sources exempt under § 63.1200(b); and 

(3) boilers exempt from regulation under 

40 CFR part 266, subpart H, because 

they meet the definition of small 

quantity burner under 40 CFR 266.108. 

See § 63.1200(b). 

If you never previously combusted 

hazardous waste, or have ceased 

burning hazardous waste and initiated 

RCRA closure requirements, you are not 

subject to Subpart EEE. Rather, EPA has 

promulgated separate MACT standards 

for sources that do not burn hazardous 

waste within the following source 

categories: commercial and industrial 

solid waste incinerators (40 CFR Part 60, 

Subparts CCCC and DDDD); Portland 

cement manufacturing facilities (40 CFR 

Part 63, Subpart LLL); industrial/ 

commercial/institutional boilers and 

process heaters (40 CFR Part 63, Subpart 

DDDDD); and hydrochloric acid 

production facilities (40 CFR Part 63, 

Subpart NNNNN). In addition, EPA 

considered whether to establish MACT 

standards for lightweight aggregate 

manufacturing facilities that do not burn 

hazardous waste, and determined that 

they are not major sources of HAP 

emissions. Thus, EPA has not 

established MACT standards for 

lightweight aggregate manufacturing 

facilities that do not burn hazardous 

waste. 

Note that non-stack emissions points 

are not regulated under Subpart EEE.2

Emissions attributable to storage and 

handling of hazardous waste prior to 

combustion (i.e., emissions from tanks, 

containers, equipment, and process 

vents) would continue to be regulated 

pursuant to either RCRA Subpart AA, 

BB, and CC and/or an applicable MACT 

that applies to the before-mentioned 

material handling devices. Emissions 

unrelated to the hazardous waste 

operations may be regulated pursuant to 

other MACT rulemakings. For example, 

Portland cement manufacturing 

facilities that combust hazardous waste 

are subject to both Subpart EEE and 

Subpart LLL, and hydrochloric acid 

production facilities that combust 

hazardous waste may be subject to both 

Subpart EEE and Subpart NNNNN.3 In 

these instances Subpart EEE controls 

HAP emissions from the cement kiln 

and hydrochloric acid production 

furnace stack, while Subparts LLL and 

NNNNN would control HAP emissions 

from other operations that are not 

directly related to the combustion of 

hazardous waste (e.g., clinker cooler 

emissions for cement production 

facilities, and hydrochloric acid product 

transportation and storage for 

hydrochloric acid production facilities). 

Note that if you temporarily cease 

burning hazardous waste for any reason, 

you remain an affected source and are 

still subject to the applicable Subpart 

59406 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

4See ‘‘Evaluating THe Carcinogenicity of 

Antimony,’’ Rish Assessment Issue Paper (98–030/ 

07–26–99), Superfund Technical Support Center, 

National Center for Environmental Assessment, July 

26, 1999. 

EEE requirements. However, even as an 

affected source, the emission standards 

or operating limits do not apply if: (1) 

Hazardous waste is not in the 

combustion chamber and you elect to 

comply with other MACT (or CAA 

section 129) standards that otherwise 

would be applicable if you were not 

burning hazardous waste, e.g., the 

nonhazardous waste burning Portland 

Cement Kiln MACT (Subpart LLL); or 

(2) you are in a startup, shutdown, or 

malfunction mode of operation. 

V. What Are the Health Effects 

Associated With Pollutants Emitted by 

Hazardous Waste Combustors? 

Today’s final rule protects air quality 

and promotes the public health by 

reducing the emissions of some of the 

HAP listed in Section 112(b)(1) of the 

CAA. Emissions data collected in the 

development of this final rule show that 

metals, hydrogen chloride and chlorine 

gas, dioxins and furans, and other 

organic compounds are emitted from 

hazardous waste combustors. The HAP 

that would be controlled with this rule 

are associated with a variety of adverse 

health affects. These adverse health 

effects include chronic health disorders 

(e.g., irritation of the lung, skin, and 

mucus membranes and effects on the 

blood, digestive tract, kidneys, and 

central nervous system), and acute 

health disorders (e.g., lung irritation and 

congestion, alimentary effects such as 

nausea and vomiting, and effects on the 

central nervous system). Provided below 

are brief descriptions of risks associated 

with HAP that are emitted from 

hazardous waste combustors. 

Antimony 

Antimony occurs at very low levels in 

the environment, both in the soils and 

foods. Higher concentrations, however, 

are found at antimony processing sites, 

and in their hazardous wastes. The most 

common industrial use of antimony is 

as a fire retardant in the form of 

antimony trioxide. Chronic 

occupational exposure to antimony 

(generally antimony trioxide) is most 

commonly associated with ‘‘antimony 

pneumoconiosis,’’ a condition involving 

fibrosis and scarring of the lung tissues. 

Studies have shown that antimony 

accumulates in the lung and is retained 

for long periods of time. Effects are not 

limited to the lungs, however, and 

myocardial effects (effects on the heart 

muscle) and related effects (e.g., 

increased blood pressure, altered EKG 

readings) are among the bestcharacterized human health effects 

associated with antimony exposure. 

Reproductive effects (increased 

incidence of spontaneous abortions and 

higher rates of premature deliveries) 

have been observed in female workers 

exposed in an antimony processing 

facilities. Similar effects on the heart, 

lungs, and reproductive system have 

been observed in laboratory animals. 

EPA assessed the carcinogenicity of 

antimony and found the evidence for 

carcinogenicity to be weak, with 

conflicting evidence from inhalation 

studies with laboratory animals, 

equivocal data from the occupational 

studies, negative results from studies of 

oral exposures in laboratory animals, 

and little evidence of mutagenicity or 

genotoxicity.4 As a consequence, EPA 

concluded that insufficient data are 

available to adequately characterize the 

carcinogenicity of antimony and, 

accordingly, the carcinogenicity of 

antimony cannot be determined based 

on available information. However, the 

International Agency for Research on 

Cancer in an earlier evaluation, 

concluded that antimony trioxide is 

‘‘possibly carcinogenic to humans’’

(Group 2B). 

Arsenic 

Chronic (long-term) inhalation 

exposure to inorganic arsenic in humans 

is associated with irritation of the skin 

and mucous membranes. Human data 

suggest a relationship between 

inhalation exposure of women working 

at or living near metal smelters and an 

increased risk of reproductive effects, 

such as spontaneous abortions. 

Inorganic arsenic exposure in humans 

by the inhalation route has been shown 

to be strongly associated with lung 

cancer, while ingestion or inorganic 

arsenic in humans has been linked to a 

form of skin cancer and also to bladder, 

liver, and lung cancer. EPA has 

classified inorganic arsenic as a Group 

A, human carcinogen. 

Beryllium 

Chronic inhalation exposure of 

humans to high levels of beryllium has 

been reported to cause chronic 

beryllium disease (berylliosis), in which 

granulomatous (noncancerous) lesions 

develop in the lung. Inhalation exposure 

to high levels of beryllium has been 

demonstrated to cause lung cancer in 

rats and monkeys. Human studies are 

limited, but suggest a causal 

relationship between beryllium 

exposure and an increased risk of lung 

cancer. We have classified beryllium as 

a Group B1, probable human 

carcinogen, when inhaled; data are 

inadequate to determine whether 

beryllium is carcinogenic when 

ingested. 

Cadmium 

Chronic inhalation or oral exposure to 

cadmium leads to a build-up of 

cadmium in the kidneys that can cause 

kidney disease. Cadmium has been 

shown to be a developmental toxicant in 

animals, resulting in fetal malformations 

and other effects, but no conclusive 

evidence exists in humans. An 

association between cadmium exposure 

and an increased risk of lung cancer has 

been reported from human studies, but 

these studies are inconclusive due to 

confounding factors. Animal studies 

have demonstrated an increase in lung 

cancer from long-term inhalation 

exposure to cadmium. EPA has 

classified cadmium as a Group B1, 

probable carcinogen. 

Chlorine gas 

Chlorine is an irritant to the eyes, the 

upper respiratory tract, and lungs. 

Chronic exposure to chlorine gas in 

workers has resulted in respiratory 

effects including eye and throat 

irritation and airflow obstruction. No 

information is available on the 

carcinogenic effects of chlorine in 

humans from inhalation exposure. A 

National Toxicology Program (NTP) 

study showed no evidence of 

carcinogenic activity in male rats or 

male and female mice, and equivocal 

evidence in female rats, from ingestion 

of chlorinated water. The EPA has not 

classified chlorine for potential 

carcinogenicity. In the absence of 

specific scientific evidence to the 

contrary, it is the Agency’s policy to 

classify noncarcinogenic effects as 

threshold effects. RfC development is 

the default approach for threshold (or 

nonlinear) effects. 

Chromium 

Chromium may be emitted in two 

forms, trivalent chromium (chromium 

III) or hexavalent chromium (chromium 

VI). The respiratory tract is the major 

target organ for chromium VI toxicity for 

inhalation exposures. Bronchitis, 

decreases pulmonary function, 

pneumonia, and other respiratory effects 

have been noted from chronic high does 

exposure in occupational settings due to 

chromium VI. Limited human studies 

suggest that chromium VI inhalation 

exposure may be associated with 

complications during pregnancy and 

childbirth, while animal studies have 

not reported reproductive effects from 

inhalation exposure to chromium VI. 

Human and animal studies have clearly 

established that inhaled chromium VI is 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59407 

5See ‘‘Derivation of a Provisional Carcinogenicity 

Assessment for Cobalt and Compounds,’’ Risk 

Assessment Issue Paper (00–122/1–15–02), 

Superfund Technical Support Center, National 

Center for Environmental Assessment, January 15, 

2002. This is a provisional EPA assessment that has 

been externally peer reviewed but has not yet been 

incorporated in IRIS. 

6 IARC (International Agency for Research on 

Cancer). (1997) IARC monographs on the evaluation 

of carcinogenic risks to humans. Vol. 69. 

Polychlorinated dibenzo-para-dioxins and 

polychlorinated dibenzofurans. Lyon, France. 

7The U.S. Department of Health and Human 

Services, National Toxicology Program 9th Report 

on Carcinogens, Revised January 2001. 

8This does not necessarily apply in regard to 

laboratory testing, which tend to use 2,3,7,8 TCDD 

as the test compound. 

9Eisler, R. 1986. Dioxin hazards to fish, wildlife, 

and invertebrates: a synoptic review. U.S. Fish and 

Wildlife Service Biological Report. 85(1.8). 

a carcinogen, resulting in an increased 

risk of lung cancer. EPA has classified 

chromium VI as a Group A, human 

carcinogen. 

Chromium III is less toxic than 

chromium VI. The respiratory tract is 

also the major target organ for 

chromium III toxicity, similar to 

chromium VI. Chromium III is an 

essential element in humans, with a 

daily intake of 50 to 200 micrograms per 

day recommended for an adult. The 

body can detoxify some amount of 

chromium VI to chromium III. EPA has 

not classified chromium III with respect 

to carcinogenicity. 

Cobalt 

Cobalt is a relatively rare metal that is 

produced primarily as a by-product 

during refining of other metals, 

especially copper. Cobalt has been 

widely reported to cause respiratory 

effects in humans exposed by 

inhalation, including respiratory 

irritation, wheezing, asthma, and 

pneumonia. Cardiomyopathy (damage 

to the heart muscle) has also been 

reported, although this effect is better 

known from oral exposure. Other effects 

of oral exposure in humans are 

polycythemia (an abnormally high 

number of red blood cells) and the 

blocking of uptake of iodine by the 

thyroid. In addition, cobalt is a 

sensitizer in humans by any route of 

exposure. Sensitized individuals may 

react to inhalation of cobalt by 

developing asthma or to ingestion or 

dermal contact with cobalt by 

developing dermatitis. Cobalt is as a 

vital component of vitamin B12, though 

there is no evidence that intake of cobalt 

is ever limiting in the human diet. 

A number of epidemiological studies 

have found that exposures to cobalt are 

associated with an increased incidence 

of lung cancer in occupational settings. 

The International Agency for Research 

on Cancer (part of the World Health 

Organization) classifies cobalt and 

cobalt compounds as ‘‘possibly 

carcinogenic to humans’’ (Group 2B). 

The American Conference of 

Governmental Industrial Hygienists has 

classified cobalt as a confirmed animal 

carcinogen with unknown relevance to 

humans (category A3). An EPA 

assessment concludes that under EPA’s 

cancer guidelines, cobalt would be 

considered likely to be carcinogenic to 

humans.5

Dioxins and Furans 

Exposures to 2,3,7,8- 

tetrachlorodibenzo-p-dioxin (2,3,7,8–

TCDD) and related compounds at levels 

10 times or less above those modeled to 

approximate average background 

exposure have resulted in adverse noncancer health effects in animals. This 

statement is based on assumptions 

about the toxic equivalent for these 

compounds, for which there is 

acknowledged uncertainty. These effects 

include changes in hormone systems, 

alterations in fetal development, 

reduced reproductive capacity, and 

immunosuppression. Effects that may be 

linked to dioxin and furan exposures at 

low dose in humans include changes in 

markers of early development and 

hormone levels. Dioxin and furan 

exposures are associated with altered 

liver function and lipid metabolism 

changes in activity of various liver 

enzymes, depression of the immune 

system, and endocrine and nervous 

system effects. EPA in its 1985 dioxin 

assessment classified 2,3,7,8–TCDD as a 

probable human carcinogen. The 

International Agency for Research on 

Cancer (IARC) concluded in 1997 that 

the overall weight of the evidence was 

sufficient to characterize 2,3,7,8–TCDD 

as a known human carcinogen.6 In 2001 

the U.S. Department of Health and 

Human Services National Toxicology 

Program in their 9th Report on 

Carcinogens classified 2,3,7,8–TCDD as 

a known human carcinogen.7

The chemical and environmental 

stability of dioxins and their tendency 

to accumulate in fat have resulted in 

their detection within many ecosystems. 

In the United States and elsewhere, 

accidental contamination of the 

environment by 2,3,7,8–TCDD has 

resulted in deaths in many species of 

wildlife and domestic animals.8 High 

residues of this compound in fish have 

resulted in closing rivers to fishing. 

Laboratory studies with birds, 

mammals, aquatic organisms, and other 

species have demonstrated that 

exposure to 2,3,7,8–TCDD can result in 

acute and delayed mortality as well as 

carcinogenic, teratogenic, mutagenic, 

histopathologic, immunotoxic, and 

reproductive effects, depending on dose 

received, which varied widely in the 

experiments.9

Hydrogen chloride/hydrochloric acid 

Hydrogen chloride, also called 

hydrochloric acid, is corrosive to the 

eyes, skin, and mucous membranes. 

Chronic (long-term) occupational 

exposure to hydrochloric acid has been 

reported to cause gastritis, bronchitis, 

and dermatitis in workers. Prolonged 

exposure to low concentrations may 

also cause dental discoloration and 

erosion. No information is available on 

the reproductive or developmental 

effects of hydrochloric acid in humans. 

In rats exposed to hydrochloric acid by 

inhalation, altered estrus cycles have 

been reported in females and increased 

fetal mortality and decreased fetal 

weight have been reported in offspring. 

EPA has not classified hydrochloric acid 

for carcinogenicity. In the absence of 

specific scientific evidence to the 

contrary, it is the Agency’s policy to 

classify noncarcinogenic effects as 

threshold effects. RfC development is 

the default approach for threshold (or 

nonlinear) effects. 

Lead 

Lead can cause a variety of effects at 

low dose levels. Chronic exposure to 

high levels of lead in humans results in 

effects on the blood, central nervous 

system, blood pressure, and kidneys. 

Children are particularly sensitive to the 

chronic effects of lead, with slowed 

cognitive development, reduced growth 

and other effects reported. Reproductive 

effects, such as decreased sperm count 

in men and spontaneous abortions in 

women, have been associated with lead 

exposure. The developing fetus is at 

particular risk from maternal lead 

exposure, with low birth weight and 

slowed postnatal neurobehavioral 

development noted. Human studies are 

inconclusive regarding lead exposure 

and cancer, while animal studies have 

reported an increase in kidney cancer 

from lead exposure by the oral route. 

EPA has classified lead as a Group B2, 

probable human carcinogen. 

Manganese 

Health effects in humans have been 

associated with both deficiencies and 

excess intakes of manganese. Chronic 

exposure to low levels of manganese in 

the diet is considered to be nutritionally 

essential in humans, with a 

recommended daily allowance of 2 to 5 

milligrams per day (mg/d). Chronic 

59408 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

exposure to high levels of manganese by 

inhalation in humans results primarily 

in central nervous system effects. Visual 

reaction time, hand steadiness, and eyehand coordination were affected in 

chronically-exposed workers. Impotence 

and loss of libido have been noted in 

male workers afflicted with manganism 

attributed to inhalation exposures. EPA 

has classified manganese in Group D, 

not classifiable as to carcinogenicity in 

humans. 

Mercury 

Mercury exists in three forms: 

elemental mercury, inorganic mercury 

compounds (primarily mercuric 

chloride), and organic mercury 

compounds (primarily methyl mercury). 

Each form exhibits different health 

effects. Various sources may release 

elemental or inorganic mercury; 

environmental methyl mercury is 

typically formed by biological processes 

after mercury has precipitated from the 

air. 

Chronic exposure to elemental 

mercury in humans also affects the 

central nervous system, with effects 

such as increased excitability, 

irritability, excessive shyness, and 

tremors. The EPA has not classified 

elemental mercury with respect to 

cancer. 

The major effect from chronic 

exposure to inorganic mercury is kidney 

damage. Reproductive and 

developmental animal studies have 

reported effects such as alterations in 

testicular tissue, increased embryo 

resorption rates, and abnormalities of 

development. Mercuric chloride (an 

inorganic mercury compound) exposure 

has been shown to result in 

forestomach, thyroid, and renal tumors 

in experimental animals. EPA has 

classified mercuric chloride as a Group 

C, possible human carcinogen. 

Nickel 

Nickel is an essential element in some 

animal species, and it has been 

suggested it may be essential for human 

nutrition. Nickel dermatitis, consisting 

of itching of the fingers, hand and 

forearms, is the most common effect in 

humans from chronic exposure to 

nickel. Respiratory effects have also 

been reported in humans from 

inhalation exposure to nickel. No 

information is available regarding the 

reproductive of developmental effects of 

nickel in humans, but animal studies 

have reported such effects, although a 

consistent dose-response relationship 

has not been seen. Nickel forms released 

from industrial boilers include soluble 

nickel compounds, nickel subsulfide, 

and nickel carbonyl. Human and animal 

studies have reported an increased risk 

of lung and nasal cancers from exposure 

to nickel refinery dusts and nickel 

subsulfide. Animal studies of soluble 

nickel compounds i.e., nickel carbonyl) 

have reported lung tumors. The EPA has 

classified nickel refinery subsulfide as a 

Group A, human carcinogen and nickel 

carbonyl as a Group B2, probable 

human carcinogen. 

Organic HAP 

Organic HAPs include halogenated 

and nonhalogenated organic classes of 

compounds such as polycyclic aromatic 

hydrocarbons (PAHs) and 

polychlorinated biphenyls (PCBs). Both 

PAHs and PCBs are classified as 

potential human carcinogens, and are 

considered toxic, persistent and 

bioaccumulative. Organic HAP also 

include compounds such as benzene, 

methane, propane, chlorinated alkanes 

and alkenes, phenols and chlorinated 

aromatics. Adverse health effects of 

HAPs include damage to the immune 

system, as well as neurological, 

reproductive, developmental, 

respiratory and other health problems. 

Particulate Matter 

Atmospheric particulate matter (PM) 

is composed of sulfate, nitrate, 

ammonium, and other ions, elemental 

carbon, particle-bound water, a wide 

variety of organic compounds, and a 

large number of elements contained in 

various compounds, some of which 

originate from crustal materials and 

others from combustion sources. 

Combustion sources are the primary 

origin of trace metals found in fine 

particles in the atmosphere. Ambient 

PM can be of primary or secondary 

origin. 

Exposure to particles can lead to a 

variety of serious health effects. The 

largest particles do not get very far into 

the lungs, so they tend to cause fewer 

harmful health effects. Fine particles 

pose the greatest problems because they 

can get deep into the lungs. Scientific 

studies show links between these small 

particles and numerous adverse health 

effects. Epidemiological studies have 

shown a significant correlation between 

elevated PM levels and premature 

mortality. Other important effects 

associated with PM exposure include 

aggravation of respiratory and 

cardiovascular disease (as indicated by 

increased hospital admissions, 

emergency room visits, absences from 

school or work, and restricted activity 

days), lung disease, decreased lung 

function, asthma attacks, and certain 

cardiovascular problems. Individuals 

particularly sensitive to PM exposure 

include older adults and people with 

heart and lung disease. 

This is only a partial summary of 

adverse health and environmental 

effects associated with exposure to PM. 

Further information is found in the 2004 

Criteria Document for PM (‘‘Air Quality 

Criteria for Particulate Matter,’’ EPA/ 

600/P–99/002bF) and the 2005 Staff 

Paper for PM (EPA, ‘‘Review of the 

National Ambient Air Quality Standards 

for Particulate Matter, Policy 

Assessment of Scientific and Technical 

Information: OAQPS Staff Paper,’’ (June 

2005)). 

Selenium 

Selenium is a naturally occurring 

substance that is toxic at high 

concentrations but is also a nutritionally 

essential element. Studies of humans 

chronically exposed to high levels of 

selenium in food and water have 

reported discoloration of the skin, 

pathological deformation and loss of 

nails, loss of hair, excessive tooth decay 

and discoloration, lack of mental 

alertness, and listlessness. The 

consumption of high levels of selenium 

by pigs, sheep, and cattle has been 

shown to interfere with normal fetal 

development and to produce birth 

defects. Results of human and animal 

studies suggest that supplementation 

with some forms of selenium may result 

in a reduced incidence of several tumor 

types. One selenium compound, 

selenium sulfide, is carcinogenic in 

animals exposed orally. We have 

classified elemental selenium as a 

Group D, not classifiable as to human 

carcinogenicity, and selenium sulfide as 

a Group B2, probable human 

carcinogen. 

Part Two: Summary of the Final Rule 

I. What Source Categories and 

Subcategories Are Affected by the Final 

Rule? 

Today’s rule promulgates standards 

for controlling emissions of HAP from 

hazardous waste combustors: 

incinerators, cement kilns, lightweight 

aggregate kilns, boilers, and 

hydrochloric acid production furnaces 

that burn hazardous waste. A 

description of each source category can 

be found in the proposed rule (see 69 FR 

at 21207–08). 

Hazardous waste burning 

incinerators, cement kilns, and 

lightweight aggregate kilns are currently 

subject to 40 CFR part 63, subpart EEE, 

National Emission Standards for 

Hazardous Air Pollutants (NESHAP). 

Today’s rule revises the emissions limits 

and certain compliance and monitoring 

provisions of subpart EEE for these 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59409 

10A major source emits or has the potential to 

emit 10 tons per year of any single hazardous air 

pollutant or 25 tons per year or greater of hazardous 

air pollutants in the aggregate. An area source is a 

source that is not a major source. 

11See Part Four, Section II.A for a discussion of 

the standards that are applicable to area source 

boilers and hydrochloric acid production furnaces. 

12We note that there is a provision that allows 

cement kilns with dual stacks to average emissions 

on a flow-weighted basis to demonstrate 

compliance with the metal and chlorine emission 

standards. See §§ 63.1204(e) and 63.1220(3). 

13We are also republishing these standards, for 

reader’s convenience only, in the new replacement 

standard section for these source categories. See 

§ 63.1219, § 63.1220 and § 673.1219. 

14Liquid fuel boilers equipped with a wet air 

pollution control device followed by a dry air 

pollution control device do not meet the definition 

of a dry air pollution device. 

source categories. The definitions of 

hazardous waste incinerator, hazardous 

waste cement kiln, and hazardous waste 

lightweight aggregate kiln appear at 40 

CFR 63.1201(a). 

Boilers that burn hazardous waste are 

also affected sources under today’s rule. 

The rule uses the RCRA definition of a 

boiler under 40 CFR 260.10 and 

includes industrial, commercial, and 

institutional boilers as well as thermal 

units known as process heaters. 

Hazardous waste burning boilers will 

continue to comply with the emission 

standards found under 40 CFR part 266, 

subpart H (i.e., the existing RCRA rules) 

until they demonstrate compliance with 

the requirements of 40 CFR part 63, 

subpart EEE, and, for permitted sources, 

subsequently remove these 

requirements from their RCRA permit. 

Finally, hydrochloric acid production 

furnaces that burn hazardous waste are 

affected sources under today’s rule. 

These furnaces are a type of halogen 

acid furnace included in the definition 

of ‘‘industrial furnace’’ defined at 

§ 260.10. Hydrochloric acid production 

furnaces that burn hazardous waste will 

continue to comply with the emission 

standards found under 40 CFR part 266, 

subpart H, until they demonstrate 

compliance with 40 CFR part 63, 

subpart EEE, and, for permitted sources, 

subsequently remove these 

requirements from their RCRA permit. 

II. What Are the Affected Sources and 

Emission Points? 

Today’s rule apply to each major and 

area source incinerator, cement kiln, 

lightweight aggregate kiln, boiler, and 

hydrochloric acid production furnace 

that burns hazardous waste.10 We note 

that only major source boilers and 

hydrochloric acid production furnaces 

are subject to the full suite of subpart 

EEE emission standards.11 The 

emissions limits apply to each emission 

point (e.g., stack) where gases from the 

combustion of hazardous waste are 

discharged or otherwise emitted into the 

atmosphere. For facilities that have 

multiple combustion gas discharge 

points, the emission limits generally 

apply to each emission point. A cement 

kiln, for example, could be configured 

to have dual stacks where the majority 

of combustion gases are discharged 

though the main stack and other 

combustion gases emitted through a 

separate stack, such as an alkali bypass 

stack. In that case, the emission 

standards would apply separately to 

each of these stacks.12

III. What Pollutants Are Emitted and 

Controlled? 

Hazardous waste combustors emit 

dioxin/furans, sometimes at high levels 

depending on the design and operation 

of the emission control equipment, and, 

for incinerators, depending on whether 

a waste heat recovery boiler is used. All 

hazardous waste combustors can also 

emit high levels of other organic HAP if 

they are not designed, operated, and 

maintained to operate under good 

combustion conditions. 

Hazardous waste combustors can also 

emit high levels of metal HAP, 

depending on the level of metals in the 

waste feed and the design and operation 

of air emissions control equipment. 

Hazardous waste burning hydrochloric 

acid production furnaces, however, 

generally feed and emit low levels of 

metal HAP. 

All of these HAP metals (except for 

the volatile metal mercury) are emitted 

as a portion of the particulate matter 

emitted by these sources. Hazardous 

waste combustors can also emit high 

levels of particulate matter, except that 

hydrochloric acid production furnaces 

generally feed hazardous wastes with 

low ash content and consequently emit 

low levels of particulate matter. A 

majority of particulate matter emissions 

from hazardous waste combustors are in 

the form of fine particulate. Particulate 

emissions from incinerators and liquid 

fuel-fired boilers depend on the ash 

content of the hazardous waste feed and 

the design and operation of air emission 

control equipment. Particulate 

emissions from cement kilns and 

lightweight aggregate kilns are not 

significantly affected by the ash content 

of the hazardous waste fuel because 

uncontrolled particulate emissions are 

attributable primarily to fine raw 

material entrained in the combustion 

gas. Thus, particulate emissions from 

kilns depends on operating conditions 

that effect entrainment of raw material, 

and the design and operation of the 

emission control equipment. 

IV. Does the Final Rule Apply to Me? 

The final rule applies to you if you 

own or operate a hazardous waste 

combustor—an incinerator, cement kiln, 

lightweight aggregate kiln, boiler, or 

hydrochloric acid production facility 

that burns hazardous waste. The final 

rule does not apply to a source that 

meets the applicability requirements of 

§ 63.1200(b) for reasons explained at 69 

FR at 21212–13. 

V. What Are the Emission Limitations? 

You must meet the emission limits in 

Tables 1 and 2 of this preamble for your 

applicable source category and 

subcategory. Standards are corrected to 

7 percent oxygen. As noted at proposal, 

we previously promulgated 

requirements for carbon monoxide, total 

hydrocarbon, and destruction and 

removal efficiency standards under 

subpart EEE for incinerators, cement 

kilns, and lightweight aggregate kilns. 

We view these standards as unaffected 

by the Court’s vacature of the 

challenged regulations in its decision of 

July 24, 2001. We are therefore not repromulgating and reopening 

consideration of these standards in 

today’s final rule, but are summarizing 

these standards in Tables 1 and 2 for 

reader’s convenience.13 See 69 FR at 

21221, 21248, 21261 and 21274. 

Liquid fuel boilers equipped with dry 

air pollution control devices are subject 

to different dioxin/furan emission 

standards than liquid fuel boilers that 

are not equipped with dry air pollution 

control devices.14 Liquid fuel boilers 

processing hazardous waste with a 

heating value less than 10,000 BTU/lb 

must comply with the emission 

concentration-based standards 

(expressed as mass of total HAP 

emissions per volume of stack gas 

emitted) for mercury, semivolatile 

metals, low volatile metals, and total 

chlorine. Liquid fuel boilers processing 

hazardous waste with heating values 

greater than 10,000 BTU/lb must 

comply with thermal emissions-based 

standards (expressed as mass of HAP 

emissions attributable to the hazardous 

waste per million BTU input from the 

hazardous waste) for those same 

pollutants. Low volatile metal standards 

for liquid fuel boilers apply only to 

emissions of chromium, whereas the 

low volatile metal standard for the other 

source categories applies to the 

combined emissions of chromium, 

arsenic, and beryllium. Semivolatile 

metal standards apply to the combined 

emissions of lead and cadmium. 

For any of the source categories 

except hydrochloric acid production 

59410 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

furnaces, you may elect to comply with 

an alternative to the total chlorine 

standard under which you would 

establish site-specific, health-based 

emission limits for hydrogen chloride 

and chlorine based on national exposure 

standards. This alternative chlorine 

standard is discussed in part two, 

section IX and part four, section VII. 

Incinerators and liquid and solid fuel 

boilers may elect to comply with an 

alternative to the particulate matter 

standard that would limit emissions of 

all the semivolatile metal HAPs and low 

volatile metal HAPs. Under this 

alternative, the numerical emission 

limits for semivolatile metal and low 

volatile metal emission HAP are 

identical to the limitations included in 

Tables 1 and 2. However, for 

semivolatile metals, the alternative 

standard applies to the combined 

emissions of lead, cadmium, and 

selenium; for low volatile metals, the 

standard applies to the combined 

emissions of chromium, arsenic, 

beryllium, antimony, cobalt, manganese, 

and nickel. See § 63.1219(e). 

TABLE 1.—SUMMARY OF EMISSION LIMITS FOR EXISTING SOURCES

Incinerators Cement kilns Lightweight aggregate kilns 

Solid fuel-fired 

boilers 1

Liquid fuel-fired boilers 1

Hydrochloric acid 

production furnaces 1

Dioxin/Furans (ng 

TEQ/dscm).

0.20 or 0.40 and 

temperature 

control < 400°F 

at APCD inlet 6.

0.20 or 0.40 and 

temperature 

control < 400°F 

at APCD inlet.

0.20 or rapid 

quench below 

400°F at kiln 

exit.

CO or HC and 

DRE standard as a 

surrogate.

0.40 for dry APCD 

sources; CO or HC 

and DRE standard 

as surrogate for 

others.

CO or HC and 

DRE standard 

as surrogate. 

Mercury .................. 130 μg/dscm ....... Hazardous waste 

feed restriction 

of 3.0 ppmw 

and 120 μg/ 

dscm MTEC 11; 

or 120 μg/dscm 

total emissions.

120 hazardous 

waste MTEC 11

feed restriction 

or 120 μg/dscm 

total emissions.

11 μg/dscm ... 4.2E-5lb/MMBtu 2, 5

or 19 μg/dscm 2; 

depending on BTU 

content of hazardous waste 13.

Total chlorine 

standard as 

surrogate. 

Particulate Matter ... 0.013 gr/dscf 8 ..... 0.028 gr/dscf and 

20% opacity 12.

0.025 gr/dscf ....... 0.030 gr/dscf 8 0.035 gr/dscf 8 ........... Total chlorine 

standard as 

surrogate. 

Semivolatile Metals 

(lead + cadmium).

230 μg/dscm ....... 7.6 E-4 lbs/ 

MMBtu 5 and 

330 μg/dscm 3.

3.0E-4 lb/MMBtu 5

and 250 μg/ 

dscm 3.

180 μg/dscm 8.2 E–5 lb/MMBtu 2, 5

or 150 μg/dscm 2; 

depending on BTU 

content of hazardous waste 13.

Total chlorine 

standard as 

surrogate. 

Low Volatile Metals 

(arsenic + beryllium + chromium).

92 μg/dscm ......... 2.1 E-5 lbs/ 

MMBtu 5 and 56 

μg/dscm 3.

9.5E-5 lb/MMBtu 5

and 110 μg/ 

dscm 3.

380 μg/dscm 1.26E–4 lbMMBtu 4, 5

or 370 μg/dscm 4; 

depending on BTU 

content of hazardous waste 13.

Total chlorine 

standard as 

surrogate. 

Total Chlorine (hydrogen chloride + 

chlorine gas).

32 ppmv 7 ............ 120 ppmv 7 .......... 600 ppmv 7 .......... 440 ppmv 7 .... 5.08E–2 lb/MMBtu 5, 7

or 31 ppmv 7; depending on BTU 

content of hazardous waste 13.

150 ppmv or 

99.923% system removal efficiency. 

Carbon Monoxide 

(CO) or Hydrocarbons (HC).

100 ppmv CO 9 or 

10 ppmv HC.

See Note # 10 

below.

100 ppmv CO 9 or 

20 ppmv HC.

(2) 100 ppmv CO 9 or 10 ppmv HC 

Destruction and Removal Efficiency.99.99% for each principal organic hazardous pollutant. For sources burning hazardous wastes F020, F021, F022, F023, 

F026, or F027, however, 99.9999% for each principal organic hazardous pollutant. 

Notes: 

1Particulate matter, semivolatile metal, low volatile metal, and total chlorine standards for solid and liquid fuel boilers apply only to major 

sources. Particulate matter, semivolatile and low volatile metal standards for hydrochloric acid production furnaces apply only to major sources, 

although area sources must still comply with the surrogate total chlorine standard to control mercury emissions. 2Standard is based on normal emissions data, and is therefore expressed as an annual average emission limitation. 

3Sources must comply with both the thermal emissions and emission concentration standards. 

4 Low volatile metal standard for liquid fuel-fired boilers is for chromium only. 

5Standards expressed as mass of pollutant contributed by hazardous waste per million BTU contributed by the hazardous waste. 

6APCD means ‘‘air pollution control device’’. 

7Sources may elect to comply with site-specific risk-based emission limits for hydrogen chloride and chlorine gas 

8Sources may elect to comply with an alternative to the particulate matter standard. 

9Sources that elect to comply with the CO standard must demonstrate compliance with the HC standard during the comprehensive performance test that demonstrates compliance with the destruction and removal efficiency requirement. 10Kilns without a bypass: 20 ppmv HC or 100 ppmv CO 9. Kilns with a bypass/mid-kiln sampling system: 10 ppmv HC or 100 ppmv CO9 in the 

bypass duct, mid-kiln sampling system or bypass stack. 11 MTEC means ‘‘maximum theoretical emission concentration’’, and is equivalent to the feed rate divided by gas flow rate 12The opacity standard does not apply to a source equipped with a bag leak detection system under 63.1206(c)(8) or a particulate matter detection system under 63.1206(c)(9). 13Emission concentration-based standards apply to sources processing hazardous waste with energy content less than 10,000 BTU/lb; thermal 

emission standards apply to sources processing hazardous waste with energy content greater than 10,000 btu/lb. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59411 

TABLE 2.—SUMMARY OF EMISSION LIMITS FOR NEW OR RECONSTRUCTED SOURCES

Incinerators Cement kilns Lightweight aggregate kilns 

Solid fuel boilers 1 Liquid fuel boilers 1

Hydrochloric acid 

production furnaces 1

Dioxin/Furans (ng 

TEQ/dscm).

0.11 for dry APCD 

and/or WHB5

sources; 0.20 

for other 

sources.

0.20 or 0.40 and 

temperature 

control <400 °F 

at APCD inlet.

0.20 or rapid 

quench 

<400 °F at kiln 

exit.

CO or HC and 

DRE standard as a 

surrogate.

0.40 for sources with 

dry APCD; CO or 

HC and DRE 

standard as a surrogate for other 

sources.

CO or THC and 

DRE standard 

as a surrogate. 

Mercury .................. 8.1 μg/dscm ........ Hazardous waste 

feed restriction 

of 1.9 ppmw 

and 120 μg/ 

dscm MTEC 10; 

or 120 μg/dscm 

total emissions.

120 hazardous 

waste MTEC 10

feed restriction 

or 120 μg/dscm 

total emissions.

11 μg/dscm ... 1.2E–6 lb/MMBtu 2 4

or 6.8 μg/dscm 2; 

depending on BTU 

content of hazardous waste 12.

TCl as surrogate. 

Particulate matter 

(gr/dscf).

0.0015 7 ............... 0.0023 and 20% 

opacity 11.

0.0098 ................. 0.015 7 ........... 0.0087 7 ..................... TCl as surrogate. 

Semivolatile Metals 

(lead + cadmium).

10 μg/dscm ......... 6.2E–5 lb/ 

MMBtu 4 and 

180 μg/dscm.

3.7 E–5 lb/ 

MMBtu 4 and 43 

μg/dscm.

180 μg/dscm 6.2 E–6 lb/MMBtu 2 4

or 78 μg/dscm 2; 

depending on BTU 

content of hazardous waste 12.

TCl as surrogate. 

Low Volatile Metals 

(arsenic + beryllium + chromium).

23 μg/dscm ......... 1.5E–5 lb/ 

MMBtu 4 and 54 

μg/dscm.

3..3E–5 lb/ 

MMBtu 4 and 

110 μg/dscm.

190 μg/dscm 1.41E–5lb/MMBtu 3 4

or 12 μg/dscm 3; 

depending on BTU 

content of hazardous waste 12.

TCl as surrogate. 

Total Chlorine (Hydrogen chloride + 

chlorine gas).

21 ppmv 6 ............ 86 ppmv 6 ............ 600 ppmv 6 .......... 73 ppmv 6 ...... 5.08E–2 lb/MMBtu 4 6

or 31 ppmv 6; depending on BTU 

content of hazardous waste 12.

25 ppmv or 

99.987% SRE. 

Carbon monoxide 

(CO) or Hydrocarbons (HC).

100 ppmv CO 8 or 

10 ppmv HC.

See note #9 

below.

100 ppmv CO 8 or 

20 ppmv HC.

100 ppmv CO 8 or 10 ppmv HC 

Destruction and Removal Efficiency.99.99% for each principal organic hazardous pollutant. For sources burning hazardous wastes F020, F021, F022, F023, 

F026, or F027, however, 99.9999% for each principal organic hazardous pollutant. 

Notes: 

1Particulate matter, semivolatile metal, low volatile metal, and total chlorine standards for solid and liquid fuel boilers apply only to major 

sources. Particulate matter, semivolatile and low volatile metal standards for hydrochloric acid production furnaces apply only to major sources, 

although area sources must still comply with the surrogate total chlorine standard to control mercury emissions. 2Standard is based on normal emissions data, and is therefore expressed as an annual average emission limitation. 

3 Low volatile metal standard for liquid fuel-fired boilers is for chromium only. Arsenic and beryllium are not included in the low volatile metal 

total for liquid fuel-fired boilers. 4Standards expressed as mass of pollutant contributed by hazardous waste per million BTU contributed by the hazardous waste. 

5APCD means ‘‘air pollution control device’’, WHB means ‘‘waste heat boiler’’. 6Sources may elect to comply with risk-based emission limits for hydrogen chloride and chlorine gas. 

7Sources may elect to comply with an alternative to the particulate matter standard. 

8Sources that elect to comply with the CO standard must demonstrate compliance with the THC standard during the comprehensive performance test that demonstrates compliance with the destruction and removal efficiency requirement. 9Greenfield kilns without a bypass: 20 ppmv HC or 100 ppmv CO 8 and 50 ppmv HC. Greenfield kilns with a bypass/mid kiln sampling system: 

Main stack standard of 50 ppmv HC and 10 ppmv HC or 100 ppmv CO 8 in the bypass duct, mid-kiln sampling system or bypass stack. Greenfield kilns with a bypass/mid-kiln sampling system: 10 ppmv HC or 100 ppmv CO 8 in the bypass duct, mid-kiln sampling system or bypass stack; 

Non-greenfield kilns without a bypass: 20 ppmv HC or 100 ppmv CO 8. A greenfield kiln is a kiln whose construction commenced after April 19, 

1996 at a plant site where a cement kiln (whether burning hazardous waste or not) did not previously exist. 10 MTEC means ‘‘maximum theoretical emission concentration’’, and is equivalent to the feed rate divided by gas flow rate. 11The opacity standard does not apply to a source equipped with a bag leak detection system under 63.1206(c)(8) or a particulate matter detection system under 63.1206(c)(9). 12Emission concentration-based standards apply to sources processing hazardous waste with energy content less than 10,000 BTU/lb; thermal 

emission standards apply to sources processing hazardous waste with energy content greater than 10,000 btu/lb. 

VI. What Are the Testing and Initial 

Compliance Requirements? 

The testing and initial compliance 

requirements we promulgate today for 

solid fuel boilers, liquid fuel boilers, 

and hydrochloric acid production 

furnaces are identical to those that are 

applicable to incinerators, cement kilns, 

and lightweight aggregate kilns at 

§§ 63.1206, 63.1207, and 63.1208. We 

note, however, that today’s final rule 

revises some of these requirements as 

they apply to all or specific HWCs (e.g., 

one-time dioxin/furan test for sources 

not subject to a numerical dioxin/furan 

standard; dioxin/furan stack test 

method; hydrogen chloride and chlorine 

stack test methods) 

We also discuss compliance and 

testing dates for incinerators, cement 

kilns, and lightweight aggregate kilns as 

well. Even though we are not 

repromulgating the compliance and 

testing requirements for those source 

categories, those sources must 

demonstrate compliance with the 

replacement emission standards 

promulgated today. 

59412 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

15See 69 FR at 21313 for rationale. We received 

no adverse comments at proposal. 

16Note that you may be required to use other test 

methods to document emissions of hydrogen 

chloride and chlorine if you elect to comply with 

the alternative, health-based emission limits for 

total chlorine under § 63.1215. See § 63.1208(b)(5). 

17These same requirements currently apply to 

incinerators, cement kilns, and lightweight 

aggregate kilns. 

18A major difference between a bag leak detection 

system and a particulate matter detection system is 

the way the alarm level is established. The alarm 

level for a bag leak detection system is established 

using concepts in the Agency’s bag leak detection 

system guidance document while the alarm level 

for a particulate matter detection system is 

established based on the detector response during 

the comprehensive performance test. The ash 

feedrate limit for incinerators and boilers is waived 

if you use a particulate matter detection system but 

not if you use a bag leak detection system because 

the bag leak detection system alarm level may not 

provide reasonable assurance of continuous 

compliance with the particulate matter emission 

standard. 

A. Compliance Dates 

The time-line for testing and initial 

compliance requirements is as follows: 

1. The compliance date is October 14, 

2008; 15

2. You must submit a comprehensive 

performance test plan to the permitting 

authority for review and approval 12 

months prior to commencing the test. 

3.You must submit an eligibility 

demonstration for the health-based 

compliance alternative to the total 

chlorine emission standard 12 months 

before the compliance date if you elect 

to comply with § 63.1215; 

4. You must place in the operating 

record a Documentation of Compliance 

by the compliance date identifying the 

operating parameter limits that, using 

available information, you have 

determined will ensure compliance 

with the emission standards; 

5. For boilers and hydrochloric acid 

production furnaces, you must 

commence the initial comprehensive 

performance test within 6 months after 

the compliance date; 

6. For incinerators, cement kilns, and 

lightweight aggregate kilns, you must 

commence the initial comprehensive 

performance test within 12 months after 

the compliance date; 

7. You must complete the initial 

comprehensive performance test within 

60 days of commencing the test; and 

8. You must submit a Notification of 

Compliance within 90 days of 

completing the test documenting 

compliance with emission standards 

and continuous monitoring system 

requirements. 

B. Testing Requirements 

All hazardous waste combustors must 

commence the initial comprehensive 

performance test under the time lines 

discussed above. The purpose of the 

comprehensive performance test is to 

document compliance with the 

emission standards of the final rule and 

establish operating parameter limits to 

maintain compliance with those 

standards. You must also conduct 

periodic comprehensive performance 

testing every five years. 

If your source is subject to a 

numerical dioxin/furan emission 

standard (i.e., incinerators, cement 

kilns, lightweight aggregate kilns that 

comply with the 0.2 ng TEQ/dscm 

standard, and liquid fuel boilers 

equipped with a dry air pollution 

control device), you must conduct a 

dioxin/furan confirmatory performance 

test no later than 2.5 years after each 

comprehensive performance test (i.e., 

midway between comprehensive 

performance tests). If your source is not 

subject to a numerical dioxin/furan 

emission standard (e.g., solid fuel 

boilers, lightweight aggregate kilns that 

comply with the 400 °F temperature 

limit at the kiln exit, liquid fuel boilers 

equipped with wet or no air pollution 

control system, and hydrochloric acid 

production furnaces), you must conduct 

a one-time dioxin/furan test to enable 

the Agency to evaluate the effectiveness 

of the carbon monoxide/hydrocarbon 

standard and the destruction and 

removal efficiency standard in 

controlling dioxin/furan emissions for 

those sources. Previous dioxin/furan 

emission tests may be used to meet this 

requirement if the combustor operated 

under the conditions required by the 

rule and if design and operation of the 

combustor has not changed since the 

test in a manner that could increase 

dioxin/furan emissions. The Agency 

will use those emissions data when 

reevaluating the MACT standards under 

CAA section 112(d)(6), when 

determining whether to develop 

residual risk standards for these sources 

pursuant to section 112(f)(2), and when 

determining whether the source’s RCRA 

Permit is protective of human health 

and the environment. 

You must use the following stack test 

methods to document compliance with 

the emission standards: (1) Method 29 

for mercury, semivolatile metals, and 

low volatile metals; and (2) Method 26/ 

26A, Methods 320 or 321, or ASTM D 

6735–01 for hydrogen chloride and 

chlorine; 16 (3) either Method 0023A or 

Method 23 for dioxin/furans; and (4) 

either Method 5 or 5i for particulate 

matter. 

C. Initial Compliance Requirements 

The initial compliance requirements 

for solid fuel boilers, liquid fuel boilers, 

and hydrochloric acid production 

furnaces include: 17

1. You must place in the operating 

record a Documentation of Compliance 

by the compliance date identifying the 

operating parameter limits that, using 

available information, you have 

determined will ensure compliance 

with the emission standards; 

2. You must develop and comply with 

a startup, shutdown, and malfunction 

plan; 

3. You must install an automatic 

waste feed cutoff system that links the 

operating parameter limits to the waste 

feed cutoff system; 

4. You must control combustion 

system leaks; 

5. You must establish and comply 

with an operator training and 

certification program; 

6. You must establish and comply 

with an operation and maintenance 

plan; 

7. If your source is equipped with a 

baghouse, you must install either a bag 

leak detection system or a particulate 

matter detection system; 18 and 

8. If your source is equipped with an 

electrostatic precipitator or ionizing wet 

scrubber, you must either establish sitespecific control device operating 

parameter limits which limits are linked 

to the automatic waste feed cutoff 

system, or install a particulate matter 

detection system and take corrective 

measures when the alarm level is 

exceeded. 

VII. What Are the Continuous 

Compliance Requirements? 

The continuous compliance 

requirements for solid fuel boilers, 

liquid fuel boilers, and hydrochloric 

acid production furnaces are identical to 

those applicable to incinerators, cement 

kilns, and lightweight aggregate kilns. 

See § 63.1209. We note, however, that 

today’s final rule revises some of these 

requirements as they apply to all or 

specific HWCs (e.g., bag leak detection 

system requirements; optional 

particulate matter detection system 

requirements; compliance assurance for 

thermal emissions-based standards). 

You must use carbon monoxide or 

hydrocarbon continuous emissions 

monitors (as well as an oxygen 

continuous emissions monitor to correct 

the carbon monoxide or hydrocarbon 

values to 7% oxygen) to ensure 

compliance with the carbon monoxide 

or hydrocarbon emission standards. 

You must also establish limits (as 

applicable) on the feedrate of metals, 

chlorine, and ash, key combustor 

operating parameters, and key operating 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59413 

19Note that the final rule sunsets the Interim 

Standards on the compliance date of today’s rule 

but codifies the Interim Standards for total chlorine 

under § 63.1215(b)(7). 

20Although hydrochloric acid production 

furnaces are not eligible for the health-based total 

chlorine emission limits (because control of total 

chlorine is a surrogate for control of metal HAP), 

you must consider total chlorine emissions from 

hydrochloric acid production furnaces when 

demonstrating that total chlorine emissions from all 

on-site hazardous waste combustors will not exceed 

the Hazard Index limit of 1.0 at an off-site receptor 

location. 

parameters of the air pollution control 

device based on operations during the 

comprehensive performance test. You 

must continuously monitor these 

parameters with a continuous 

monitoring system. 

VIII. What Are the Notification, 

Recordkeeping, and Reporting 

Requirements? 

The notification, recordkeeping, and 

reporting requirements that we 

promulgate today for solid fuel boilers, 

liquid fuel boilers, and hydrochloric 

acid production furnaces are identical to 

those that are applicable to incinerators, 

cement kilns, and lightweight aggregate 

kilns. See §§ 63.1210 and 63.1211. We 

note, however, that today’s final rule 

revises some of these requirements as 

they apply to all or specific HWCs. 

You must submit notifications 

including the following to the 

permitting authority in addition to those 

required by the NESHAP General 

Provisions, subpart A of 40 CFR part 63: 

1. Notification of changes in design, 

operation, or maintenance 

(§ 63.1206(b)(5)(i)); 

2. Notification of performance test 

and continuous monitoring system 

evaluation, including the performance 

test plan and continuous monitoring 

system performance evaluation plan 

(§ 63.1207(e)); 

3. Notification of compliance, 

including results of performance tests 

and continuous monitoring system 

evaluations (§§ 63.1210(b), 63.1207(j); 

63.1207(k), and 63.1207(l)); and 

4. Various notifications if you request 

or elect to comply with alternative 

requirements at § 63.1210(a)(2). 

You must submit the following 

reports to the permitting authority in 

addition to those required by the 

NESHAP General Provisions, subpart A 

of 40 CFR part 63: 

1. Startup, shutdown, and 

malfunction plan, if you elect to comply 

with § 63.1206(c)(2)(ii)(B)); 

2. Excessive exceedances report 

(§ 63.1206(c)(3)(vi)); and 

3. Emergency safety vent opening 

reports (§ 63.1206(c)(4)(iv)). 

Finally, you must keep records 

documenting compliance with the 

requirements of Subpart EEE. 

Recordkeeping requirements are 

prescribed in § 63.1211(b), and include 

requirements under the NESHAP 

General Provisions, subpart A of 40 CFR 

IX. What Is the Health-Based 

Compliance Alternative for Total 

Chlorine, and How Do I Demonstrate 

Eligibility? 

A. Overview 

The rule allows you to establish and 

comply with health-based compliance 

alternatives for total chlorine for 

hazardous waste combustors other than 

hydrochloric acid production furnaces 

in lieu of the MACT technology-based 

emission standards established under 

§§ 63.1216, 63.1217, 63.1219, 63.1220, 

and 63.1221. See § 63.1215. To identify 

and comply with the limits, you must: 

(1) Identify a total chlorine emission 

rate for each on-site hazardous waste 

combustor. You may select total 

chlorine emission rates as you choose to 

demonstrate eligibility for the healthbased limits, except the total chlorine 

emission rate limits for incinerators, 

cement kilns, and lightweight aggregate 

kilns cannot result in total chlorine 

emission concentrations exceeding the 

Interim Standards provided by 

§§ 63.1203, 63.1204, and 63.1205;19

(2) Calculate the HCl-equivalent 

emission rate for the total chlorine 

emission rates you select, considering 

long-term exposure and using Reference 

Concentrations (RfCs) as the health 

threshold metric. This emission rate is 

called the annual average HClequivalent emission rate; 

(3) Perform an eligibility 

demonstration to determine if your 

annual average HCl-equivalent emission 

rate meets the national exposure 

standard (i.e., Hazard Index not 

exceeding 1.0 considering the maximum 

annual average ambient concentration of 

hydrogen chloride and chlorine at an 

off-site receptor location which 

concentrations are attributable to all onsite hazardous waste combustors) and 

thus is below the annual average HClequivalent emission rate limit; 

(4) Calculate the HCl-equivalent 

emission rate for the total chlorine 

emission rates you select, considering 

short-term exposure and using acute 

Reference Exposure Levels (aRELs) as 

the health threshold metric. This 

emission rate is called the 1-hour 

average HCl-equivalent emission rate. 

(5) Determine whether your 1-hour 

HCl-equivalent emission rate may 

exceed the national exposure standard 

(i.e., Hazard Index not exceeding 1.0 

considering the maximum 1-hour 

average ambient concentration of 

hydrogen chloride and chlorine at an 

off-site receptor location which 

concentrations are attributable to all onsite hazardous waste combustors) and 

thus may exceed the 1-hour average 

HCl-equivalent emission rate limit when 

complying with the annual average HClequivalent emission rate limit, absent an 

hourly rolling average limit on the 

feedrate of total chlorine and chloride. 

(6) Submit your eligibility 

demonstration, including your 

determination of whether the 1-hour 

average HCl-equivalent emission rate 

limit may be exceeded absent an hourly 

rolling average limit on the feedrate of 

total chlorine and chloride, for review 

and approval; 

(7) Document during the 

comprehensive performance test the 

total chlorine system removal efficiency 

for each combustor and use this system 

removal efficiency to calculate chlorine 

feedrate limits. Also, document that 

total chlorine emissions during the test 

do not exceed the 1-hour average HClequivalent emission rate limit during 

any run of the test. In addition, establish 

operating limits on the emission control 

device based on operations during the 

comprehensive performance test; and 

(8) Comply with the requirements for 

changes in the design, operation, or 

maintenance of the facility which could 

affect the HCl-equivalent emission rate 

limits or system removal efficiency for 

total chlorine, and changes in the 

vicinity of your facility over which you 

do not have control (e.g., new receptors 

locating proximate to the facility). 

B. HCl-Equivalent Emission Rates 

You must express total chlorine 

emission rates (lb/hr) from each on-site 

hazardous waste combustor, including 

hydrochloric acid production 

furnaces 20, as an annual average HClequivalent emission rate and a 1-hour 

average HCl-equivalent emission rate. 

See § 63.1215(b). The annual average 

HCl-equivalent emission rate equates 

chlorine emission rates to hydrogen 

chloride (HCl) emission rates using 

Reference Concentrations (RfCs) as the 

health risk metric for long-term 

exposure. The 1-hour average HClequivalent emission rate equates 

chlorine emission rates to HCl emission 

rates using 1-hour Reference Exposure 

59414 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

21The total chlorine emission rates (lb/hr) for 

incinerators, cement kilns, and lightweight 

aggregate kilns cannot result in total chlorine 

emission concentrations (ppmv) exceeding the 

Interim Standards provided by §§ 63.1203, 63.1204, 

and 63.1205. The final rule sunsets the Interim 

Standards on the compliance date of today’s rule 

but codifies the Interim Standards for total chlorine 

under § 63.1215(b)(7). 

Levels (aRELs) as the health risk metric 

for acute exposure. 

To calculate HCl-equivalent emission 

rates, you must apportion total chlorine 

emissions (ppmv) between chlorine and 

HCl using the volumetric ratio of 

chlorine to hydrogen chloride (Cl2/HCl). 

• To calculate the annual average 

HCl-equivalent emission rate (lb/hr) and 

the emission rate limit, you must use 

the historical average Cl2/HCl 

volumetric ratio from all regulatory 

compliance tests and the gas flowrate 

(and other relevant parameters) from the 

most recent RCRA compliance test or 

MACT performance test. 

• To calculate the 1-hour average 

HCl-equivalent emission rate (lb/hr) and 

emission rate limit, you must use the 

highest Cl2/HCl volumetric ratio from 

all regulatory compliance tests and the 

gas flowrate from the most recent RCRA 

compliance test or MACT performance 

test. 

• If you believe that the Cl2/HCl 

volumetric ratio for one or more 

historical compliance tests is not 

representative of the current ratio, you 

may request that the permitting 

authority allow you to screen those 

ratios from the analysis of historical 

ratios. 

• If the permitting authority believes 

that too few historical Cl2/HCl ratios are 

available to establish a representative 

average ratio and a representative 

maximum ratio, the permitting authority 

may require you to conduct periodic 

testing to establish representative ratios. 

• You must include the Cl2/HCl 

volumetric ratio demonstrated during 

each performance test in your data base 

of historical Cl2/HCl ratios to update the 

ratios for subsequent calculations of the 

annual average and 1-hour average HClequivalent emission rates (and emission 

rate limits). 

C. Eligibility Demonstration 

You must perform an eligibility 

demonstration to determine whether the 

total chlorine emission rates you select 

for each on-site hazardous waste 

combustor meet the national exposure 

standard (i.e., the Hazard Index of 1.0 

cannot be exceeded at an off-site 

receptor location considering maximum 

annual average ambient concentrations 

attributable to all on-site hazardous 

waste combustors and the RfCs for HCl 

and chlorine) using either a look-up 

table analysis or a site-specific 

compliance demonstration.21 Eligibility 

for the health-based total chlorine 

standard is determined by comparing 

the annual average HCl-equivalent 

emission rate for the total chlorine 

emission rate you select for each 

combustor to the annual average HClequivalent emission rate limit. 

The annual average HCl-equivalent 

emission rate limit is the HCl-equivalent 

emission rate, determined by equating 

the toxicity of chlorine to HCl using 

RfCs as the health risk metric for longterm exposure, which ensures that 

maximum annual average ambient 

concentrations of HCl equivalents do 

not exceed a Hazard Index of 1.0, 

rounded to the nearest tenths decimal 

place (0.1) and considering all on-site 

hazardous waste combustors. See 

§ 63.1215(b)(2). 

Your facility is eligible for the healthbased compliance alternatives for total 

chlorine if either: (1) The annual 

average HCl-equivalent emission rate for 

each on-site hazardous waste combustor 

is below the HCl-equivalent emission 

rate limit determined from the 

appropriate value for the emission rate 

limit in the applicable look-up table and 

the proration procedure for multiple 

combustors discussed below; or (2) the 

annual average HCl-equivalent emission 

rate for each on-site hazardous waste 

combustor is below the annual average 

HCl-equivalent emission rate limit you 

calculate based on a site-specific 

compliance demonstration. 

1. Look-Up Table Analysis 

Look-up tables for the eligibility 

demonstration are provided as Tables 1 

and 2 to § 63.1215. Table 1 presents 

annual average HCl-equivalent emission 

rate limits for sources located in flat 

terrain. For purposes of this analysis, 

flat terrain is terrain that rises to a level 

not exceeding one half the stack height 

within a distance of 50 stack heights. 

Table 2 presents annual average HClequivalent emission rate limits for 

sources located in simple elevated 

terrain. For purposes of this analysis, 

simple elevated terrain is terrain that 

rises to a level exceeding one half the 

stack height, but that does not exceed 

the stack height within a distance of 50 

stack heights. 

If your facility is not located in either 

flat or simple elevated terrain, you must 

conduct a site-specific compliance 

demonstration. 

To determine the annual average HClequivalent emission rate limit for a 

source from the look-up table, you must 

use the stack height and stack diameter 

for your hazardous waste combustors 

and the distance between the stack and 

the property boundary. If any of these 

values for stack height, stack diameter, 

and distance to nearest property 

boundary do not match the exact values 

in the look-up table, you must use the 

next lowest table value. If you have 

more than one hazardous waste 

combustor on site, you must adjust the 

emission rate limits provided by the 

tables such that the sum of the ratios for 

all combustors of the adjusted emission 

rate limit to the emission rate limit 

provided by the table cannot exceed 1.0. 

See § 63.1215 (c)(3)(v). 

2. Site-Specific Compliance 

Demonstration 

You may use any scientificallyaccepted peer-reviewed risk assessment 

methodology for your site-specific 

compliance demonstration to calculate 

an annual average HCl-equivalent 

emission rate limit for each on-site 

hazardous waste combustor. An 

example of one approach for performing 

the demonstration for air toxics can be 

found in the EPA’s ‘‘Air Toxics Risk 

Assessment Reference Library, Volume 

2, Site-Specific Risk Assessment 

Technical Resource Document,’’ which 

may be obtained through the EPA’s Air 

Toxics Web site at http://www.epa.gov/ 

ttn/atw. 

To determine the annual average HClequivalent emission rate limit for each 

on-site hazardous waste combustor, 

your site-specific compliance 

demonstration must, at a minimum: (1) 

estimate long-term inhalation exposures 

through the estimation of annual or 

multi-year average ambient 

concentrations; (2) estimate the 

inhalation exposure for the actual 

individual most exposed to the facility’s 

emissions from hazardous waste 

combustors, considering locations 

where people reside and where people 

congregate for work, school, or 

recreation; (3) use site-specific, qualityassured data wherever possible; (4) use 

health-protective default assumptions 

wherever site-specific data are not 

available, and: (5) contain adequate 

documentation of the data and methods 

used for the assessment so that it is 

transparent and can be reproduced by 

an experienced risk assessor and 

emissions measurement expert. 

To establish the annual average HClequivalent emission rate limit for each 

combustor, you may apportion as you 

elect among the combustors the annual 

average HCl-equivalent emission rate 

limit for the facility, which limit 

ensures that the RfC-based Hazard Index 

of 1.0 is not exceeded. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59415 

22USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 24.2. 

23See discussion below in Section F regarding the 

requirement to establish chlorine feedrate limits. 

D. Assurance That the 1-Hour HClEquivalent Emission Rate Will Not Be 

Exceeded 

The long-term, RfC-based Hazard 

Index will always be higher than the 

short-term, aREL-based Hazard Index for 

a constant HCl-equivalent emission rate 

because the health threshold levels for 

short-term exposure are orders of 

magnitude higher than the health 

threshold levels for long-term 

exposure.22 Even though maximum 1- 

hour average ambient concentrations are 

substantially higher than maximum 

annual average concentrations, the 

higher short-term ambient 

concentrations do not offset the much 

higher health threshold levels for shortterm exposures. Thus, the long-term, 

RfC-based Hazard Index will always 

govern regarding whether a source can 

make an eligibility demonstration. 

Accordingly, eligibility for the healthbased emission limits is based solely on 

whether a source can comply with the 

annual average HCl-equivalent emission 

rate limit. 

Nonetheless, some sources may have 

highly variably chlorine feedrates (and 

corresponding highly variable HClequivalent emission rates) such that 

they may feed chlorine at very high 

levels for short periods of time and still 

remain in compliance with the chlorine 

feedrate limit established to ensure 

compliance with the annual average 

HCl-equivalent emission rate limit.23 To 

ensure that the 1-hour HCl-equivalent 

emission rate limit will not be exceeded 

during these periods of peak emissions, 

you must establish a 1-hour average 

HCl-equivalent emission rate and 1-hour 

average HCl-equivalent emission rate 

limit for each combustor and consider 

site-specific factors including prescribed 

criteria to determine if the 1-hour 

average HCl-equivalent emission rate 

limit may be exceeded absent an hourly 

rolling average limit on chlorine 

feedrate. If the 1-hour average HClequivalent emission rate limit may be 

exceeded, you must establish an hourly 

rolling average feedrate limit on 

chlorine. 

You must calculate the 1-hour average 

HCl-equivalent emission rate from the 

total chlorine emission rate you select 

for each source. 

You must establish the 1-hour average 

HCl-equivalent emission rate limit for 

each affected source using either a lookup table analysis or site-specific 

analysis. Look-up tables are provided 

for 1-hour average HCl-equivalent 

emission rate limits as Table 3 and 

Table 4 to this section. Table 3 provides 

limits for facilities located in flat terrain. 

Table 4 provides limits for facilities 

located in simple elevated terrain. You 

must use the Tables to establish 

emission rate limits in the same manner 

as you use Tables 1 and 2 to establish 

annual average HCl-equivalent emission 

rate limits. 

If you conduct a site-specific analysis 

to establish a 1-hour average HClequivalent emission rate limit, you must 

follow the risk assessment procedures 

you used to establish an annual average 

HCl-equivalent emission rate limit. The 

1-hour HCl-equivalent emission rate 

limit, however, is the emission rate than 

ensures that the Hazard Index 

associated with maximum 1-hour 

average exposures is not greater than 

1.0. 

You must consider criteria including 

the following to determine if a source 

may exceed the 1-hour HCl-equivalent 

emission rate limit absent an hourly 

rolling average chlorine feedrate limit: 

(1) The ratio of the 1-hour average HClequivalent emission rate based on the 

total chlorine emission rate you select 

for each hazardous waste combustor to 

the 1-hour average HCl-equivalent 

emission rate limit for the combustor; 

and (2) the potential for the source to 

vary total chlorine and chloride 

feedrates substantially over the 

averaging period for the feedrate limit 

you establish to ensure compliance with 

the annual average HCl-equivalent 

emission rate limit. 

If you determine that a source may 

exceed the 1-hour average HClequivalent emission rate limit, you must 

establish an hourly rolling average 

chlorine feedrate limit as discussed 

below in Section G. 

You must include the following 

information in your eligibility 

demonstration to document your 

determination whether an hourly rolling 

average feedrate limit is needed to 

maintain compliance with the 1-hour 

HCl-equivalent emission rate limit: (1) 

Determination of the Cl2/HCl 

volumetric ratio established for 1-hour 

average HCl-equivalent emission rate 

determinations as provided by 

§ 63.1215(b)(6)(ii); (2) determination of 

the 1-hour average HCl-equivalent 

emission rate calculated from the total 

chlorine emission rate you select for the 

combustor; (3) determination of the 1- 

hour average HCl-equivalent emission 

rate limit; (4) determination of the ratio 

of the 1-hour average HCl-equivalent 

emission rate to the 1-hour HClequivalent emission rate limit for the 

combustor; and (5) determination of the 

potential for the source to vary chlorine 

feedrates substantially over the 

averaging period for the long-term 

feedrate limit (i.e., 12-hours, or up to 

annually) established to maintain 

compliance with the annual average 

HCl-equivalent emission rate limit. 

E. Review and Approval of Eligibility 

Demonstrations 

The permitting authority will review 

and approve your eligibility 

demonstration. Your eligibility 

demonstration must contain, at a 

minimum, the information listed in 

§ 63.1215(d)(1). 

1. Review and Approval for Existing 

Sources 

If you operate an existing source, you 

must submit the eligibility 

demonstration to your permitting 

authority for review and approval not 

later than 12 months prior to the 

compliance date. You must also submit 

a separate copy of the eligibility 

demonstration to: U.S. EPA, Risk and 

Exposure Assessment Group, Emission 

Standards Division (C404–01), Attn: 

Group Leader, Research Triangle Park, 

North Carolina 27711, electronic mail 

address REAG@epa.gov. 

Your permitting authority should 

notify you of approval or intent to 

disapprove your eligibility 

demonstration within 6 months after 

receipt of the original demonstration, 

and within 3 months after receipt of any 

supplemental information that you 

submit. A notice of intent to disapprove 

your eligibility demonstration will 

identify incomplete or inaccurate 

information or noncompliance with 

prescribed procedures and specify how 

much time you will have to submit 

additional information or to comply 

with the MACT total chlorine standards. 

If your eligibility demonstration is 

disapproved, the permitting authority 

may extend the compliance date of the 

total chlorine standard to allow you to 

make changes to the design or operation 

of the combustor or related systems as 

quickly as practicable to enable you to 

achieve compliance with the MACT 

standard for total chlorine. 

If your permitting authority has not 

approved your eligibility demonstration 

by the compliance date, and has not 

issued a notice of intent to disapprove 

your demonstration, you may 

nonetheless begin complying, on the 

compliance date, with the annual 

average HCl-equivalent emission rate 

limits you present in your eligibility 

demonstration. 

If your permitting authority issues a 

notice of intent to disapprove your 

eligibility demonstration after the 

59416 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

24USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume IV: Compliance 

with the HWC MACT Standards,’’ September 2005, 

Chapter 15.1.2. 

compliance date, the authority will 

identify the basis for that notice and 

specify how much time you will have to 

submit additional information or to 

comply with the MACT total chlorine 

standards. The permitting authority may 

extend the compliance date of the total 

chlorine standard to allow you to make 

changes to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the MACT standard for 

total chlorine. 

2. Review and Approval for New and 

Reconstructed Sources 

The procedures for review and 

approval of eligibility demonstrations 

applicable to existing sources discussed 

above also apply to new or 

reconstructed sources, except that the 

date you must submit the eligibility 

demonstration is as discussed below. 

If you operate a new or reconstructed 

source that starts up by April 12, 2007, 

or a solid fuel-fired boiler or liquid fuelfired boiler that is an area source that 

increases its emissions or its potential to 

emit such that it becomes a major source 

of HAP before April 12, 2007, you must 

either: (1) Submit an eligibility 

demonstration for review and approval 

by April 12, 2006 and comply with the 

HCl-equivalent emission rate limits and 

operating requirements you establish in 

the eligibility demonstration; or (2) 

comply with the final total chlorine 

emission standards under §§ 63.1216, 

63.1217, 63.1219, 63.1220, and 63.1221, 

by October 12, 2005, or upon startup, 

whichever is later, except for a standard 

that is more stringent than the standard 

proposed on April 20, 2004 for your 

source. If a final standard is more 

stringent than the proposed standard, 

you may comply with the proposed 

standard until October 14, 2008, after 

which you must comply with the final 

standard. 

If you operate a new or reconstructed 

source that starts up on or after April 12, 

2007, or a solid fuel-fired boiler or 

liquid fuel-fired boiler that is an area 

source that increases its emissions or its 

potential to emit such that it becomes a 

major source of HAP on or after April 

12, 2007, you must comply with either 

of the following. You may submit an 

eligibility demonstration for review and 

approval 12 months prior to startup. 

Alternatively, you may comply with the 

final total chlorine emission standards 

under §§ 63.1216, 63.1217, 63.1219, 

63.1220, and 63.1221 upon startup. If 

the final standard is more stringent than 

the standard proposed for your source 

on April 20, 2004, however, and if you 

start operations before October 14, 2008, 

you may comply with the proposed 

standard until October 14, 2008, after 

which you must comply with the final 

standard. 

F. Testing Requirements 

You must comply with the 

requirements for comprehensive 

performance testing under § 63.1207. 

1. Test Methods for Stack Gas 

Containing Alkaline Particulate 

If you operate a cement kiln or a 

combustor equipped with a dry acid gas 

scrubber, you must use EPA Method 

320/321 or ASTM D 6735–01, or an 

equivalent method, to measure 

hydrogen chloride, and the back-half 

(caustic impingers) of Method 26/26A, 

or an equivalent method, to measure 

chlorine. 

2. Test Methods for Stack Gas 

Containing High Levels of Bromine or 

Sulfur 

If you operate an incinerator, boiler, 

or lightweight aggregate kiln and your 

feedstreams contain bromine or sulfur 

during the comprehensive performance 

test at the levels indicated below, you 

must use EPA Method 320/321 or 

ASTM D 6735’01, or an equivalent 

method, to measure hydrogen chloride, 

and Method 26/26A, or an equivalent 

method, to measure chlorine and 

hydrogen chloride combined. You must 

determine your chlorine emissions to be 

the higher of: (1) The value measured by 

Method 26/26A, or an equivalent 

method; or (2) the value calculated by 

the difference between the combined 

hydrogen chloride and chlorine levels 

measured by Method 26/26a, or an 

equivalent method, and the hydrogen 

chloride measurement from EPA 

Method 320/321 or ASTM D 6735–01, 

or an equivalent method. 

These procedures apply if you feed 

during the comprehensive performance 

test bromine at a bromine/chlorine ratio 

in feedstreams greater than 5 percent by 

mass, or sulfur at a sulfur/chlorine ratio 

in feedstreams greater than 50 percent 

by mass.24

Finally, you should precondition the 

M26/26A filter for one hour prior to 

beginning the performance test to 

minimize the potential for a low bias 

caused by adsorption/absorption of 

hydrogen chloride on the filter. 

G. Monitoring Requirements 

You must establish and comply with 

limits on the same operating parameters 

that apply to sources complying with 

the MACT standard for total chlorine 

under § 63.1209(o), except that feedrate 

limits on total chlorine and chloride 

must be established as described below. 

1. Feedrate Limit to Ensure Compliance 

with the Annual Average HClEquivalent Emission Rate Limit 

For sources subject to the feedrate 

limit for total chlorine and chloride 

under § 63.1209(n)(4) to ensure 

compliance with the semivolatile metals 

standard, the feedrate limit (and 

averaging period) for total chlorine and 

chloride to ensure compliance with the 

annual average HCl-equivalent emission 

rate limit is the same as required by that 

paragraph. Thus, the chlorine feedrate 

limit is the average of the run averages 

during the comprehensive performance 

test, and is established as a 12-hour 

rolling average. 

That chlorine feedrate limit cannot 

exceed the numerical value (i.e., not 

considering the averaging period) of the 

feedrate limit that ensures compliance 

with the annual average HCl-equivalent 

emission rate limit, however. Therefore, 

the numerical value of the total chlorine 

and chloride feedrate limit must not 

exceed the value you calculate as the 

annual average HCl-equivalent emission 

rate limit (lb/hr) divided by [1 ¥ system 

removal efficiency]. You must calculate 

a total chlorine system removal 

efficiency for each test run of the 

comprehensive performance test as [1 ¥ 

total chlorine emission rate (g/s)/ 

chlorine feedrate (g/s)], and calculate 

the average system removal efficiency of 

the test run averages. If your source does 

not control total chlorine, you must 

assume zero system removal efficiency. 

If emissions during the comprehensive 

performance test exceed the annual 

average HCl-equivalent emission rate 

limit, eligibility for the health-based 

emission limits is not affected. This is 

because the emission rate limit is an 

annual average limit. Compliance is 

based on a 12-hour rolling average 

chlorine feedrate limit (rather than an 

(up to) an annual averaging period) for 

sources subject to the 12-hour rolling 

average feedrate limit for total chlorine 

and chloride under § 63.1209(n)(4) to 

ensure compliance with the semivolatile 

metals standard given that the more 

stringent feedrate limit (i.e., the feedrate 

limit with the shorter averaging period) 

would apply. 

For sources exempt from the feedrate 

limit for total chlorine and chloride 

under § 63.1209(n)(4) because they 

comply with § 63.1207(m)(2) (which 

allows compliance with the semivolatile 

metals emission standard absent 

emissions testing by assuming all metals 

fed are emitted), the feedrate limit for 

total chlorine and chloride to ensure 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59417 

25Note again, however, that the total chlorine 

emission concentration (ppmv) is capped by the 

Interim Standards for incinerators, cement kilns, 

and lightweight aggregate kilns. 

compliance with the annual average 

HCl-equivalent emission rate must be 

established as follows: 

• You must establish an average 

period for the feedrate limit that does 

not exceed an annual rolling average; 

• You must calculate a total chlorine 

system removal efficiency for each test 

run of the comprehensive performance 

test as [1 ¥ total chlorine emission rate 

(g/s)/chlorine feedrate (g/s)], and 

calculate the average system removal 

efficiency of the test run averages. If 

your source is not equipped with a 

control system that consistently and 

reproducibly controls total emissions 

(e.g., wet or dry scrubber), you must 

assume zero system removal efficiency. 

If emissions during the comprehensive 

performance test exceed the annual 

average HCl-equivalent emission rate 

limit, eligibility for emission limits 

under this section is not affected. The 

emission rate limit is an annual average 

limit and compliance is based on an 

annual average feedrate limit on total 

chlorine and chloride (or a shorter 

averaging period if you so elect under 

paragraph (g)(2)(ii)(A) of this section); 

and 

• You must calculate the feedrate 

limit for total chlorine and chloride as 

the annual average HCl-equivalent 

emission rate limit (lb/hr) divided by [1 

¥ system removal efficiency] and 

comply with the feedrate limit on the 

averaging period you establish. 

2. Feedrate Limit To Ensure Compliance 

With the 1-Hour Average HClEquivalent Emission Rate Limit 

You must establish an hourly rolling 

average feedrate limit on total chlorine 

and chloride to ensure compliance with 

the 1-hour average HCl-equivalent 

emission rate limit unless you 

determine that the hourly rolling 

average feedrate limit is waived as 

discussed under Section D above. If 

required, you must calculate the hourly 

rolling average feedrate limit for total 

chlorine and chloride as the 1-hour 

average HCl-equivalent emission rate 

limit (lb/hr) divided by [1 ¥ system 

removal efficiency] using the system 

removal efficiency demonstrated during 

the comprehensive performance test. 

H. Relationship Among Emission Rates, 

Emission Rate Limits, and Feedrate 

Limits 

We summarize here the relationship 

among: (1) the total chlorine emission 

rate you select in your eligibility 

demonstration; (2) the annual average 

and 1-hour average HCl-equivalent 

emission rates you present in your 

eligibility demonstration; (3) the annual 

average and 1-hour average emission 

rate limits you present in your eligibility 

demonstration; (4) performance test 

emission rates for total chlorine and 

HCl-equivalent emissions; and (5) longterm and hourly rolling average chlorine 

feedrate limits. 

1. Total Chlorine Emission Rate, Annual 

Average HCl-Equivalent Emission Rate, 

and Annual Average HCl-Equivalent 

Emission Rate Limit 

For the eligibility demonstration, you 

must select a total chlorine emission 

concentration (ppmv) for each 

combustor, determine the Cl2/HCl 

volumetric ratio, calculate the annual 

average HCl-equivalent emission rate 

(lb/hr), and document that the emission 

rate does not exceed the annual average 

HCl-equivalent emission rate limit. 

You select a total chlorine (i.e., HCl 

and chlorine combined) emission 

concentration (ppmv) for each 

hazardous waste combustor expressed 

as chloride (Cl(-)

) equivalent. For 

incinerators, cement kilns, and 

lightweight aggregate kilns, this 

emission concentration cannot exceed 

the Interim Standards for total chlorine. 

You then determine the average Cl2/HCl 

volumetric ratio considering all 

historical regulatory emissions tests and 

apportion total chlorine emissions 

between Cl2 and HCl accordingly. You 

use these apportioned volumetric 

emissions to calculate the Cl2 and HCl 

emission rates (lb/hr) using the average 

gas flowrate (and other relevant 

parameters) for the most recent RCRA 

compliance test or MACT performance 

test for total chlorine. Finally, you use 

these Cl2 and HCl emission rates to 

calculate an annual average HClequivalent emission rate, which cannot 

exceed the annual average HClequivalent emission rate limit that you 

establish as discussed below. 

To establish the annual average HClequivalent emission rate limit, you may 

either use Tables 1 or 2 in § 63.1215 to 

look-up the limit, or conduct a sitespecific risk analysis. Under the sitespecific risk analysis option, the annual 

average HCl-equivalent emission rate 

limit would be the highest emission rate 

that the risk assessment estimates would 

result in a Hazard Index not exceeding 

1.0 for the actual individual most 

exposed to the facility’s emissions 

considering off-site locations where 

people reside and where people 

congregate for work, school, or 

recreation. 

If you have more than one on-site 

hazardous waste combustor, and if you 

use the look-up tables to establish the 

annual average HCl-equivalent emission 

rate limits, the sum of the ratios for all 

combustors of the annual average HClequivalent emission rate to the annual 

average HCl-equivalent emission rate 

limit cannot not exceed 1.0. This will 

ensure that the RfC-based Hazard Index 

of 1.0 is not exceeded, a principle 

criterion of the eligibility 

demonstration. 

If you use site-specific risk analysis to 

demonstrate that a Hazard Index of 1.0 

is not exceeded, you would generally 

identify for each combustor the 

maximum annual average HClequivalent emission rate that the risk 

assessment estimates would result in an 

RfC-based Hazard Index of 1.0 at any 

off-site receptor location (i.e., 

considering locations where people 

reside and where people congregate for 

work, school, or recreation.25 This 

emission rate would be the annual 

average HCl-equivalent emission rate 

limit for each combustor. 

2. 1-Hour Average HCl-Equivalent 

Emission Rate and Emission Rate Limit 

As discussed in Section D above, you 

must determine in your eligibility 

demonstration whether the 1-hour HClequivalent emission rate limit may be 

exceeded absent an hourly rolling 

average chlorine feedrate limit. To make 

this determination, you must establish a 

1-hour average HCl-equivalent emission 

rate and a 1-hour average HClequivalent emission rate limit. 

You calculate the 1-hour average HClequivalent emission rate from the total 

chlorine emission rate, established as 

discussed above, using the equation in 

§ 63.1215(b)(3). 

You establish the 1-hour average HClequivalent emission rate limit by either 

using Tables 3 or 4 in § 63.1215 to lookup the limit, or conducting a sitespecific risk analysis. Under the sitespecific risk analysis option, the 1-hour 

average HCl-equivalent emission rate 

limit would be the highest emission rate 

that the risk assessment estimates would 

result in an aREL-based Hazard Index 

not exceeding 1.0 at any off-site receptor 

location (i.e., considering locations 

where people reside and where people 

congregate for work, school, or 

recreation). 

3. Performance Test Emissions 

During the comprehensive 

performance test, you must demonstrate 

a system removal efficiency for total 

chlorine as [1 ¥ TCl emitted (lb/hr)/ 

chlorine fed (lb/hr)]. During the test, 

however, the total chlorine emission 

rate you select for each combustor and 

the annual average HCl-equivalent 

59418 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

emission rate limit can exceed the levels 

you present in the eligibility 

demonstration. This is because those 

emission rates are annual average rates 

and need not be complied with over the 

duration of three runs of the 

performance test, which may be 

nominally only 3 hours. 

The 1-hour average HCl-equivalent 

emission rate limit cannot be exceeded 

during any run of the comprehensive 

performance test, however. This limit is 

based on an aREL Hazard Index of 1.0; 

an exceedance of the limit over a test 

run with a nominal 1-hour duration 

would result in a Hazard Index of 

greater than 1.0. 

4. Chlorine Feedrate Limits 

To maintain compliance with the 

annual average HCl-equivalent emission 

rate limit, you must establish a longterm average chlorine feedrate limit. In 

addition, if you determine under 

§ 63.1205(d)(3) that the 1-hour average 

HCl-equivalent emission rate may be 

exceeded (i.e., because your chlorine 

feedrate may vary substantially over the 

averaging period for the long-term 

chlorine feedrate limit), you must 

establish an hourly rolling average 

chlorine feedrate limit. 

Long-Term Chlorine Feedrate Limit. 

The chlorine feedrate limit to maintain 

compliance with the annual average 

HCl-equivalent emission rate is either: 

(1) The chlorine feedrate during the 

comprehensive performance test if you 

demonstrate compliance with the 

semivolatile metals emission standard 

during the test (see § 63.1209(o)); or (2) 

if you comply with the semivolatile 

metals emission standard under 

§ 63.1207(m)(2) by assuming all metals 

in the feed to the combustor are emitted, 

the HCl-equivalent emission rate limit 

divided by [1 ¥ system removal 

efficiency] where you demonstrate the 

system removal efficiency during the 

comprehensive performance test. 

If you establish the chlorine feedrate 

limit based on the feedrate during the 

performance test to demonstrate 

compliance with the semivolatile metals 

emission standard, the averaging period 

for the feedrate limit is a 12-hour rolling 

average. If you establish the chlorine 

feedrate limit based on the system 

removal efficiency during the 

performance test, the averaging period is 

up to an annual rolling average. See 

discussion in Part Four, Section VII.B of 

this preamble. 

If you comply with the semivolatile 

metals emission standard under 

§ 63.1207(m)(2), however, the long-term 

chlorine feedrate limit is based on the 

system removal efficiency during the 

comprehensive performance test rather 

than the feedrate during the 

performance test. This is because the 

averaging period for this chlorine 

feedrate limit (that ensures compliance 

with the annual average HCl-equivalent 

emission rate limit) is up to an annual 

rolling average. See § 63.1215(g)(2). 

Thus, the chlorine feedrate, and total 

chlorine emissions, can be higher than 

the limit during the relatively short 

duration of the comprehensive 

performance tests. 

Hourly Rolling Average Chlorine 

Feedrate Limit. If you determine under 

§ 63.1205(d)(3) that the 1-hour average 

HCl-equivalent emission rate limit may 

be exceeded, you must establish an 

hourly rolling average chlorine feedrate 

limit. That feedrate limit is established 

as the 1-hour HCl-equivalent emission 

rate limit divided by [1 ¥ system 

removal efficiency]. The hourly rolling 

average chlorine feedrate limit is not 

established based on feedrates during 

the performance test because 

performance test feedrates may be 

substantially lower than the feedrate 

needed to ensure compliance with the 

1-hour average HCl-equivalent emission 

rate. Note, however, that the hourly 

rolling average feedrate limit cannot be 

exceeded during any run of the 

comprehensive performance test. This 

chlorine feedrate limit is based on the 

1-hour average HCl-equivalent emission 

rate limit, which is based on an aREL 

Hazard Index of 1.0. Thus, an 

exceedance of the hourly rolling average 

feedrate limit (and the 1-hour lHClequivalent emission rate limit) over a 

test run with a nominal 1-hour duration 

would result in a Hazard Index of 

greater than 1.0. 

I. Changes 

Your requirements will change in 

response to changes that affect the HClequivalent emission rate or HClequivalent emission rate limit for a 

source. 

1. Changes Over Which You Have 

Control 

Changes That Affect HCl-Equivalent 

Emission Rate Limits. If you plan to 

change the design, operation, or 

maintenance of the facility in a manner 

that would decrease the annual average 

or 1-hour average HCl-equivalent 

emission rate limit (e.g., reduce the 

distance to the property line; reduce 

stack gas temperature; reduce stack 

height), prior to the change you must 

submit to the permitting authority a 

revised eligibility demonstration 

documenting the lower emission rate 

limits and calculations of reduced total 

chlorine and chloride feedrate limits. 

If you plan to change the design, 

operation, or maintenance of the facility 

in a manner than would increase the 

annual average or 1-hour average HClequivalent emission rate limit, and you 

elect to increase your total chlorine and 

chloride feedrate limits, prior to the 

change you must submit to the 

permitting authority a revised eligibility 

demonstration documenting the 

increased emission rate limits and 

calculations of the increased feedrate 

limits prior to the change. 

Changes That Affect System Removal 

Efficiency. If you plan to change the 

design, operation, or maintenance of the 

combustor in a manner than could 

decrease the system removal efficiency, 

you are subject to the requirements of 

§ 63.1206(b)(5) for conducting a 

performance test to reestablish the 

combustor’s system removal efficiency. 

You also must submit a revised 

eligibility demonstration documenting 

the lower system removal efficiency and 

the reduced feedrate limits on total 

chlorine and chloride. 

If you plan to change the design, 

operation, or maintenance of the 

combustor in a manner than could 

increase the system removal efficiency, 

and you elect to document the increased 

system removal efficiency to establish 

higher feedrate limits on total chlorine 

and chloride, you are subject to the 

requirements of § 63.1206(b)(5) for 

conducting a performance test to 

reestablish the combustor’s system 

removal efficiency. You must also 

submit a revised eligibility 

demonstration documenting the higher 

system removal efficiency and the 

increased feedrate limits on total 

chlorine and chloride. 

2. Changes Over Which You Do Not 

Have Control 

If you use site-specific risk assessment 

in lieu of the look-up tables to establish 

the HCl-equivalent emission rate limit, 

you must review the documentation you 

use in your eligibility demonstration 

every five years from the date of the 

comprehensive performance test and 

submit for review and approval with the 

comprehensive performance test plan 

either a certification that the 

information used in your eligibility 

demonstration has not changed in a 

manner that would decrease the annual 

average HCl-equivalent emission rate 

limit, or a revised eligibility 

demonstration. Examples of changes 

beyond your control that may decrease 

the annual average HCl-equivalent 

emission rate limit (or 1-hour average 

HCl-equivalent emission rate limit) are 

construction of residences at a location 

exposed to higher ambient 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59419 

26See ‘‘Final Technical Support Document for 

HWC MACT Standards, Volume II: HWC Database’’

for a list of the sources that have initiated or 

completed RCRA closure. 

27We noticed the data from these sources but did 

not include them in the MACT standard 

calculations at proposal. Note that inclusion of 

these sources did not affect any of the calculated 

MACT standards. See ‘‘Final Technical Support 

Document for HWC MACT Standards, Volume II: 

HWC Database’’ for more discussion. 

concentrations than evaluated during 

your previous risk analysis, or a 

reduction in the RfCs or aRELs. 

If, in the interim between the dates of 

your comprehensive performance tests, 

you have reason to know of changes that 

would decrease the annual average HClequivalent emission rate limit, you must 

submit a revised eligibility 

demonstration as soon as practicable but 

not more frequently than annually. 

If you determine that you cannot 

demonstrate compliance with a lower 

annual average HCl-equivalent emission 

rate limit (dictated by a change over 

which you do not have control) during 

the comprehensive performance test 

because you need additional time to 

complete changes to the design or 

operation of the source or related 

systems, you may request that the 

permitting authority grant you 

additional time to make those changes 

as quickly as practicable. 

X. Overview on Floor Methodologies 

The most contentious issue in the 

rulemaking involved methodologies for 

determining MACT floors, namely, 

which sources are best performing, and 

what is their level of performance. 

Superficially, these questions have a 

ready answer: the best performers are 

the lowest emitters as measured by 

compliance tests, and those tests fix 

their level of performance. But 

compliance tests are snapshots which 

do not fully capture sources’ total 

operating variability. Since the 

standards must be met at all times, 

picking lowest compliance test data to 

set the standard results in standards best 

performing sources themselves would 

be unable to meet at all times. 

To avoid this impermissible result, 

EPA selected approaches that 

reasonably estimate best performing 

sources’ total variability. Certain types 

of variability can be quantified 

statistically, and EPA did so here (using 

standard statistical approaches) in all of 

the floor methodologies used in the rule. 

There are other components of 

variability, however, which cannot be 

fully quantified, but nonetheless must 

be accounted for in reasonably 

estimating best performing sources’

performance over time. EPA selected 

ranking methodologies which best 

account for this total variability. 

Where control of the feed of HAP is 

feasible and technically assessable (the 

case for HAP metals and for total 

chlorine), EPA used a methodology that 

ranked sources by their ability to best 

control both HAP feed and HAP 

emissions. This methodology thus 

assesses the efficiency of control of both 

the HAP inputs to a hazardous waste 

combustion unit, and the efficiency of 

control of the unit’s outputs. This 

methodology reasonably selects the best 

performing (and for new sources, best 

controlled) sources, and reasonably 

assesses their level of performance. 

When HAP feed control is not feasible, 

notably where HAP is contributed by 

raw material and fossil fuel inputs, EPA 

determined best performers and their 

level of performance using a 

methodology that selects the lowest 

emitters using the best air pollution 

control technology. This methodology 

reasonably estimates the best 

performing sources’ level of 

performance, and better accounts for 

total variability in emissions levels of 

the best performing sources. 

EPA carefully examined approaches 

selecting lowest emitters as best 

performers. Examination of other test 

conditions from the same best 

performing sources shows, however, 

that this approach results in standards 

not achievable even by the best 

performers. Indeed, in order to meet 

such standards, even ‘‘best performing’’

sources (lowest emitting in individual 

tests) would have to add additional air 

pollution control technology. EPA views 

this result as an end run around the 

section 112(d)(2) beyond-the-floor 

process, because floor standards would 

force industry-wide technological 

changes without consideration of the 

factors (cost and energy in particular) 

which Congress mandated for 

consideration when establishing 

beyond-the-floor standards. 

Part Three: What Are the Major 

Changes Since Proposal? 

I. Database 

A. Hazardous Burning Incinerators 

Five incinerators have been removed 

from the database because they have 

initiated or completed RCRA closure.26

Two incinerators have been added to 

the list of sources used to calculate the 

floor levels.27 Emissions data from 

source 3015 has been excluded for 

purposes of calculating the particulate 

matter floor because the source was 

processing an atypical waste stream 

from a particulate matter compliance 

perspective. See part four, section I.F. 

We have excluded the most recent 

mercury and dioxin/furan emissions 

data from source 327, and have instead 

used data from an older test condition 

to represent this source’s emissions 

because the source encountered 

problems with its carbon injection 

system during the most recent test. See 

part four, section I.F. Emissions data 

from source 3006 has been excluded for 

purposes of calculating the semivolatile 

metal standard because this source did 

not measure cadmium emissions during 

its emissions test. See part four, section 

I.F. We have added mercury emissions 

data from source 901 (DSSI) to the 

incinerator mercury database because 

this source (which is otherwise subject 

to standards for liquid fuel boilers) is 

burning a waste which is unlike that 

burned by any other liquid fuel boiler 

with respect to mercury concentration 

and waste provenance, but typical of 

waste burned by incinerators with 

respect to those factors. See part four, 

section VI.D.1. This change 

correspondingly affects the liquid fuel 

boiler standard by removing that data 

from the liquid fuel boiler database. 

B. Hazardous Waste Cement Kilns 

1. Use of Emissions Data From Ash 

Grove Cement Company 

The emissions data from Ash Grove 

Cement Company, which operates a 

recently constructed preheater/ 

precalciner kiln located in Chanute, 

Kansas, are considered when calculating 

MACT floors for new hazardous waste 

burning cement kilns. In the proposal, 

we did not consider their emissions data 

in the floor analyses for existing sources 

because Ash Grove Cement used the 

data to demonstrate compliance with 

the new source interim standards, and 

did not address the data for purposes of 

new source standards. See 69 FR at 

21217 n. 35. Consistent with our 

position on use of post-1999 emissions 

data, we are including Ash Grove 

Cement’s emissions data in the floor 

analyses for new sources. See also Part 

Four, Section I.B of the preamble. 

2. Removal of Holcim’s Emissions Data 

From EPA’s HWC Data Base 

Following cessation of hazardous 

waste operations in 2003, we are 

removing all emissions data from both 

wet process cement kilns at Holcim’s 

Holly Hill, South Carolina, plant from 

our hazardous waste combustor data 

base. This is consistent with our 

approach in both this rule and the 1999 

rule to base the standards only on 

performance of sources that actually are 

operating (i.e., burning hazardous 

waste). See also Part Four, Section I.A 

and 64 FR at 52844. 

59420 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

3. Use of Mercury Data 

As discussed below, we are using a 

commenter-submitted dataset as the 

basis of the mercury standards for 

existing and new cement kilns. This 

comprehensive dataset documents the 

day-to-day levels of mercury in 

hazardous waste fired to all cement 

kilns for a three year period covering 

1999 to 2001. We have determined that 

the commenter-submitted data are more 

representative than data used at 

proposal. See Part Four, Section I.D of 

the preamble for our rationale. 

C. Hazardous Waste Lightweight 

Aggregate Kilns 

We are incorporating mercury data 

submitted by a commenter into the 

MACT floor analysis for existing and 

new lightweight aggregate kilns. These 

data document the day-to-day levels of 

mercury in hazardous waste fired to 

lightweight aggregate kilns located at 

Solite Corporation’s Arvonia plant 

between October 2003 and June 2004. 

We have determined that the 

commenter-submitted data are more 

representative than the data used at 

proposal. See Part Four, Section I.E of 

the preamble for our rationale. 

D. Liquid Fuel Boilers 

In the proposed rule, we classified 

liquid fuel boilers as one category. The 

final rule classifies them into two for 

purposes of the mercury, semivolatile 

metals, chromium, and total chlorine 

standards: one for liquid fuel boilers 

burning lower heating value hazardous 

waste (hazardous waste with a heating 

value less than 10,000 Btu/lb), and 

another for liquid fuel boilers burning 

higher heating value hazardous waste 

(hazardous waste with a heating value 

of 10,000 Btu/lb or greater). 

We also made other, minor changes to 

the data base because some sources have 

initiated closure, were misclassified as 

other sources in the proposed rule, or 

were inadvertently not considered in 

the floor calculations although the 

sources’ test reports were in the docket 

at proposal. 

E. HCl Production Furnaces 

Six of the 17 hydrochloric acid 

production furnaces have ceased 

burning hazardous waste since 

proposal. Consequently, we do not use 

emissions data from these sources to 

establish the final standards. All six of 

these sources were equipped with waste 

heat recovery boilers and had relatively 

high dioxin/furan emissions. In 

addition, we reclassified source #2020 

as a boiler based on comments received 

at proposal. 

F. Total Chlorine Emissions Data Below 

20 ppmv 

We corrected all the total chlorine 

measurements in the data base that were 

below 20 ppmv to account for potential 

systemic negative biases in the Method 

0050 data in response to comments on 

the proposed rule. See the discussion in 

Part Four, Section I.C.1 below. 

To account for the bias, we corrected 

all total chlorine emissions data that 

were below 20 ppmv to 20 ppmv. We 

accounted for within-test condition 

emissions variability for the corrected 

data by imputing a standard deviation 

that is based on a regression analysis of 

run-to-run standard deviation versus 

emission concentration for all data 

above 20 ppmv. This approach of using 

a regression analysis to impute a 

standard deviation is similar to the 

approach we used to account for total 

variability (i.e., test-to-test and within 

test variability) of PM emissions for 

sources that use fabric filters. 

II. Emission Limits 

A. Incinerators 

The changes in the incinerator 

standards for existing sources since 

proposal are: 

Standard Proposed limit Final limit 

Dioxin/Furans (ng TEQ/dscm) ........................... Sources with dry air pollution control systems 

or waste heat boilers: 0.28; For others: 0.2 

or 0.4 and temperature control at inlet of air 

pollution control device < 400 °F.

For all sources, 0.20 or 0.40 and temperature 

control < 400 °F at the air pollution control 

device inlet. 

Particulate Matter (gr/dscf) ................................ 0.015 ................................................................ 0.013. 

Semivolatile Metals (μg/dscm) ........................... 59 ..................................................................... 230. 

Low Volatile Metals (μg/dscm) ........................... 84 ..................................................................... 92. 

Total Chlorine (ppmv) ........................................ 1.5 .................................................................... 32. 

Alternative to the particulate matter standard: 

Combined emissions of lead, cadmium and 

selenium (μg/dscm).

59 ..................................................................... 230. 

Alternative to the particulate matter standard: 

Combined emissions of arsenic, berrylium, 

chrome, antimony, cobalt, manganese, and 

nickel (μg/dscm).

84 ..................................................................... 92. 

The changes in the incinerator 

standards for new sources since 

proposal are: 

Standard Proposed 

limit Final limit 

Particulate Matter (gr/dscf) .................................................................................................................................................. 0 .0007 0 .0015 

Mercury (μg/dscm) ............................................................................................................................................................... 8 .0 8 .1 

Semivolatile Metals (μg/dscm) ............................................................................................................................................. 6 .5 10 

Low Volatile Metals (μg/dscm) ............................................................................................................................................ 8 .9 23 

Total Chlorine (ppmv) .......................................................................................................................................................... 0 .18 21 

Alternative to the particulate matter standard: Combined emissions of lead, cadmium and selenium (μg/dscm) ............ 6 .5 10 

Alternative to the particulate matter standard: Combined emissions of arsenic, berrylium, chrome, antimony, cobalt, 

manganese, and nickel (μg/dscm) ................................................................................................................................... 8 .9 23 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59421 

Hazardous Waste Burning Cement Kilns 

The changes in the standards for 

existing cement kiln since proposal are: 

Standard Proposed limit Final limit 

Mercury (μg/dscm) ............................................. 64 1 ................................................................... Both 3.0 ppmw 2 and either 120 μg/dscm 

(stack emissions) or 120 μg/dscm (expressed as a hazardous waste MTEC) 3. 

Particulate matter ............................................... 0.028 gr/dscf .................................................... 0.028 gr/dscf and 20% opacity 4. 

Semivolatile metals ............................................ 4.0E–04 lb/MMBtu 5 ......................................... 7.6E–04 lb/MMBtu 5 and 330 μg/dscm. 

Low volatile metals ............................................. 1.4E–05 lb/MMBtu 5 ......................................... 2.1E–05 lb/MMBtu 5 and 56 μg/dscm. 

Total chlorine (ppmv) 6 ....................................... 110 ................................................................... 120. 

1The proposed mercury standard was an annual limit. 

2Feed concentration of mercury in hazardous waste as-fired. 

3 HW MTEC means maximum theoretical emissions concentration of the hazardous waste and MTEC is defined at § 63.1201(a). 4The opacity standard does not apply to a source equipped with a bag leak detection system under § 63.1206(c)(8) or a particulate matter detection system under § 63.1206(c)(9). 5Standard is expressed as mass of pollutant stack emissions attributable to the hazardous waste per million British thermal unit heat input of 

the hazardous waste. 6 Combined standard, reported as a chloride (Cl(-)

) equivalent. 

The changes in the standards for new 

cement kilns since proposal are: 

Standard Proposed limit Final limit 

Mercury (μg/dscm) ............................................. 35 1 ................................................................... Both 1.9 ppmw 2 and either 120 μg/dscm 

(stack emissions) or 120 μg/dscm (expressed as a hazardous waste MTEC) 3. 

Particulate matter ............................................... 0.0058 gr/dscf .................................................. 0.0023 gr/dscf and 20% opacity 4. 

Semivolatile metals ............................................ 6.2E–05 lb/MMBtu 5 ......................................... 6.2E–05 lb/MMBtu 5 and 180 μg/dscm. 

Low volatile metals ............................................. 1.4E–05 lb/MMBtu 5 ......................................... 1.5E–05 lb/MMBtu 5 and 54 μg/dscm. 

Total chlorine (ppmv) 6 ....................................... 78 ..................................................................... 86. 

1The proposed mercury standard was an annual limit. 

2Feed concentration of mercury in hazardous waste as-fired. 

3 HW MTEC means maximum theoretical emissions concentration of the hazardous waste and MTEC is defined at § 63.1201(a). 4The opacity standard does not apply to a source equipped with a bag leak detection system under § 63.1206(c)(8) or a particulate matter detection system under § 63.1206(c)(9). 5Standard is expressed as mass of pollutant stack emissions attributable to the hazardous waste per million British thermal unit heat input of 

the hazardous waste. 6 Combined standard, reported as a chloride (Cl(-)

) equivalent. 

C. Hazardous Waste Burning 

Lightweight Aggregate Kilns 

The changes in the standards for 

existing lightweight aggregate kilns 

since proposal are: 

Standard Proposed limit Final limit 

Dioxins and furans (ng TEQ/dscm) .................... 0.40 .................................................................. 0.20 or rapid quench of the flue gas at the 

exit of the kiln to less than 400 °F. 

Mercury (μg/dscm) ............................................. 67 1 ................................................................... 120 μg/dscm (stack emissions) or 120 μg/ 

dscm (expressed as a hazardous waste 

MTEC) 2. 

Semivolatile metals ............................................ 3.1E–04 lb/MMBtu 3 and 250 μg/dscm ............ 3.0E–04 lb/MMBtu 3 and 250 μg/dscm. 

1The proposed mercury standard was an annual limit. 

2 HW MTEC means maximum theoretical emissions concentration of the hazardous waste and MTEC is defined at § 63.1201(a). 3Standard is expressed as mass of pollutant stack emissions attributable to the hazardous waste per million British thermal unit heat input of 

the hazardous waste. 

The changes in the standards for new 

lightweight aggregate kilns since 

proposal are: 

Standard Proposed limit Final limit 

Dioxins and furans (ng TEQ/dscm) .................... 0.40 .................................................................. 0.20 or rapid quench of the flue gas at the 

exit of the kiln to less than 400 °F. 

59422 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

Standard Proposed limit Final limit 

Particulate matter ............................................... 0.0099 gr/dscf .................................................. 0.0098 gr/dscf. 

Mercury (μg/dscm) ............................................. 67 1 ................................................................... 120 μg/dscm (stack emissions) or 120 μg/ 

dscm (expressed as a hazardous waste 

MTEC) 2. 

Semivolatile metals ............................................ 2.4E–05 lb/MMBtu 3 and 43 μg/dscm .............. 3.7E–05 lb/MMBtu 3 and 43 μg/dscm. 

1The proposed mercury standard was an annual limit. 

2 HW MTEC means maximum theoretical emissions concentration of the hazardous waste and MTEC is defined at § 63.1201(a). 3Standard is expressed as mass of pollutant stack emissions attributable to the hazardous waste per million British thermal unit heat input of 

the hazardous waste. 

D. Solid Fuel Boilers 

The changes in the solid fuel boiler 

standards for existing sources since 

proposal are: 

Standard Proposed 

limit 

Final 

limit 

Mercury (μg/dscm) ................................................................................................................................................................... 10 11 

Semivolatile Metals (μg/dscm) ................................................................................................................................................. 170 180 

Low Volatile metals (μg/dscm) ................................................................................................................................................ 210 380 

Alternative to the particulate matter standard: Combined emissions of lead, cadmium and selenium (μg/dscm) ................ 170 180 

Alternative to the particulate matter standard: Combined emissions of arsenic, beryllium, chromium, antimony, cobalt, 

manganese, and nickel (μg/dscm) ....................................................................................................................................... 210 380 

The changes in the solid fuel boiler 

standards for new sources since 

proposal are: 

Standard Proposed 

limit 

Final 

limit 

Mercury (μg/dscm) ................................................................................................................................................................... 10 11 

Semivolatile Metals (μg/dscm) ................................................................................................................................................. 170 180 

Low Volatile metals (μg/dscm) ................................................................................................................................................ 210 380 

Alternative to the particulate matter standard: Combined emissions of lead, cadmium and selenium (μg/dscm) ................ 170 180 

E. Liquid Fuel Boilers 

We redefined the liquid fuel boiler 

subcategory into two separate boiler 

subcategories based on the heating value 

of the hazardous waste they burn: Those 

that burn waste below 10,000 Btu/lb, 

those that burn hazardous waste with a 

heating value of 10,000 Btu/lb or 

greater. See Part Four, Section VI.D.2 of 

today’s preamble for a complete 

discussion. 

The additional changes to the liquid 

fuel boiler standards for existing sources 

since proposal are: 

Standard Proposed 

limit 

Final limit 

HW Fuel < 

10,000 Btu/lb 

HW Fuel ≥ 

10,000 Btu/lb 

Mercury (lb/MM Btu) ........................................................................................................................... 3.7E–6 ......... 19 μg/dscm 4.2E–5 

Particulate matter (gr/dscf) ................................................................................................................. 0.032 ........... 0.035 

Semivolatile metals (lb/MM Btu) ......................................................................................................... 1.1E–5 ......... 150 μg/dscm 8.2E–5 

Chromium (lb/MM Btu) ........................................................................................................................ 1.1E–4 ......... 370 μg/dscm 1.3E–4 

Total chlorine (Lb/MM Btu) ................................................................................................................. 2.5E–2 ......... 31 ppmv ...... 5.1E–2 

Alternative to the particulate matter standard: Combined emissions of lead, cadmium and selenium (lb/MM Btu).1.1E–5 ......... 150 μg/dscm 8.2E–5 

Alternative to the particulate matter standard: Combined emissions of arsenic, beryllium, chromium, antimony, cobalt, manganese, and nickel (lb/MM Btu).1.1E–4 ......... 370 μg/dscm 1.3E–4 

The changes in the liquid fuel boiler 

standards for new sources since 

proposal are: 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59423 

Standard Proposed limit 

Final limit 

HW fuel < 

10,000 Btu/lb 

HW fuel > 

10,000 Btu/lb 

Dioxin and Furan, dry APCD (ng TEQ/dscm) ............................................... 0.015 or temp control <400F for dry 

APCD.

0.40 

Mercury (lb/MM Btu) ...................................................................................... 3.8E–7 .............................................. 6.8 μg/dscm 1.2E–6 

Particulate matter (gr/dscf) ............................................................................ 0.0076 ............................................... 0.0087 

Semivolatile metals (lb/MM Btu) ................................................................... 4.3E–6 .............................................. 78 μg/dscm 6.2E–6 

Chromium (lb/MM Btu) .................................................................................. 3.6E–5 .............................................. 12 μg/dscm 1.4E–5 

Total chlorine (lb/MM Btu) ............................................................................. 7.2E–4 .............................................. 31 μg/dscm 5.1E–2 

Alternative to the particulate matter standard: Combined emissions of 

lead, cadmium and selenium (lb/MM Btu).

4.3E–6 .............................................. 78 μg/dscm 1 6.2E–6 1

Alternative to the particulate matter standard: Combined emissions of arsenic, beryllium, chromium, antimony, cobalt, manganese, and nickel 

(lb/MM Btu).

3.6E–5 .............................................. 12 μg/dscm 2 1.4E–5 2

1 New or reconstructed liquid fuel boilers that process residual oil or liquid feedstreams that are neither fossil fuel nor hazardous waste and that 

operate pursuant to the alternative to the particulate matter standard must comply with the alternative emission concentration standard of 4.7 μg/ 

dscm, which is applicable to lead, cadmium and selenium emissions attributable to all feedstreams (hazardous and nonhazardous). 2 New or reconstructed liquid fuel boilers that process residual oil or liquid feedstreams that are neither fossil fuel nor hazardous waste that operate pursuant to the alternative to the particulate matter standard must comply with the alternative emission concentration standard of 12 μg/ 

dscm, which is applicable to arsenic, beryllium, chrome, antimony, cobalt, manganese, and nickel emissions attributable to all feedstreams (hazardous and nonhazardous). 

F. Hydrochloric Acid Production 

Furnaces 

The changes in the hydrochloric acid 

production furnace standards for 

existing sources since proposal are: 

Standard Proposed limit Final limit 

Dioxin and Furans ................ 0.4 ng TEQ/dscm ............................................................ Carbon Monoxide/Total Hydrocarbons and DRE standards as surrogates. 

Total chlorine ....................... 14 ppmv or 99.9927% system removal efficiency .......... 150 ppmv or 99.923% system removal efficiency. 

The changes in the hydrochloric acid 

production furnace standards for new 

sources since proposal are: 

Standard Proposed limit Final limit 

Dioxin and Furans ................ 0.4 ng TEQ/dscm ............................................................ Carbon Monoxide/Total Hydrocarbons and DRE standards as surrogates 

Total chlorine ....................... 1.2 ppmv or 99.9994% system removal efficiency ......... 25 ppmv or 99.987% system removal efficiency 

G. Dioxin/Furan Testing for Sources Not 

Subject to a Numerical Standard 

Today’s final rule requires that all 

sources not subject to a numerical 

dioxin and furan standard perform a one 

time test to determine their dioxin and 

furan emissions. See the discussion in 

Part Four, Section VII.L. 

In the proposed rule, this requirement 

was limited to solid fuel boilers and 

those liquid fuel boilers with a wet or 

no air pollution control system. The 

final rule expands this requirement to 

include hydrochloric acid production 

furnaces and those lightweight aggregate 

kilns that elect to comply with the 

temperature limit at the kiln exit in lieu 

of the 0.20 ng TEQ/dscm dioxin/furan 

standard. Those sources are not subject 

to a numerical dioxin/furan standard 

under the final rule for reasons 

explained in Volume III of the Technical 

Support Document, Sections 12 and 15. 

We note that sources not subject to a 

numerical dioxin/furan emission 

standard are subject to the carbon 

monoxide or hydrocarbon standards and 

the DRE standard as surrogates. 

We are making no changes to the 

implementation of this requirement. See 

the proposed rule at 69 FR at 21307 for 

more information. 

III. Statistics and Variability 

A. Using Statistical Imputation To 

Address Variability of Nondetect Values 

In the final rule, we use a statistical 

approach to impute the value of 

nondetect emissions and feedrate 

measurements to avoid dampening of 

the variability of data sets when 

nondetect measurements are assumed to 

be present at the detection limit. 

At proposal, we assumed that 

nondetects (i.e., HAP levels in stack 

emissions below the level of detection 

of the applicable analytic method) are 

invariably present at the detection limit. 

Commenters on the proposed rule 

stated, however, that assuming 

nondetects are present at the detection 

limit dampens emissions variability—a 

consideration necessary to reasonably 

ascertain sources’ performance over 

time. This could have significant 

practical consequence for those data sets 

(such as the data base for liquid fuel 

boilers) dominated by nondetected 

values. We agree with these 

commenters, and instead of making the 

arbitrary assumption that all 

nondetected values are identical (which 

59424 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

28USEPA, ‘‘Draft Technical Support Document 

for HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ March 2004, p. 5–4. 

29USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 5.3. 

See also Part Four, Section III.C of this preamble. 

30Note that if your incinerator or boiler is 

equipped with a fabric filter and you elect under 

§ 63.1206(c)(8)(i) to use a particulate matter 

detection system in lieu of a bag leak detection 

system for compliance assurance, the ash feedrate 

limit is waived. The ash feedrate limit is not waived 

if you use a bag leak detection system, however, 

because the alarm level may not ensure compliance 

with the emission standard when you follow the 

in fact is highly unlikely), we are using 

a statistical methodology to impute the 

value of nondetect measurements. 

The imputation approach assigns a 

value for each nondetect measurement 

in a data set within the possible range 

of values that results in maximizing the 

99th percentile upper prediction limit 

for the data set. For example, the 

possible range of values for a 

measurement that is 100% nondetect is 

between zero and the detection limit. 

On February 4, 2005 we distributed a 

direct request for comments on the 

imputation approach to major 

stakeholders. We respond to the 

comments we received in Part Four, 

Section IV.D of today’s notice. 

B. Degrees of Freedom When Imputing 

a Standard Deviation Using the 

Universal Variability Factor for 

Particulate Matter Controlled by a 

Fabric Filter 

The use of the universal variability 

factor to impute a standard deviation for 

particulate emissions from sources 

controlled with a fabric filter takes 

advantage of the empirical observation 

that the standard deviation of 

particulate emissions from sources is 

positively correlated to the average 

particulate emissions of sources. Based 

on this observation, we use regression 

analysis to determine the best fitting 

curve to explain the relationship of 

average value to standard deviation. 

In the final rule, we use the actual 

sample size, rather than an assumed 

sample size of nine used at proposal, to 

determine the degrees of freedom for the 

t-statistic to calculate the floor using the 

standard deviation imputed from the 

universal variability factor for 

particulate matter controlled by a fabric 

filter. 

At proposal, we used eight degrees of 

freedom to identify the t-statistic to 

account for within-test condition 

variability (i.e., run-to-run variability) 

for standard deviations imputed from 

the universal variability factor 

regression.28 This is because, on 

average, about three test conditions with 

nine individual test runs are associated 

with each source used to develop the 

regression curve. 

A commenter states, however, that 

this approach can dramatically 

understate variability when imputing a 

standard deviation for a source with 

only three runs because the t-statistic is 

substantially higher for 2 degrees of 

freedom than 8 degrees of freedom. 

We agree with the commenter. 

Moreover, using the actual number of 

runs to identify the t-statistic rather than 

assuming nine runs is appropriate given 

that the true test condition average is 

less certain for sources with only three 

runs, and thus there is less certainty in 

the imputed standard deviation. The 

higher t-statistic associated with a threerun data set reflects this uncertainty. 

In addition, we include emissions 

data classified as ‘‘normal’’ in the 

regression analysis for the final rule. At 

proposal, we used only data classified 

as CT (i.e., highest compliance test 

condition in a test campaign) or IB (i.e., 

a compliance test condition that 

achieved lower emissions than another 

compliance test condition in the test 

campaign). We conclude that normal 

data (i.e., emissions data that were not 

used to establish operating limits and 

thus do not reflect variability in 

controllable operating parameters) 

should also be considered in the 

regression analysis because particulate 

matter emissions are relatively 

insensitive to baghouse inlet loading 

and operating conditions.29 Including 

normal emissions in the analysis 

provides additional data to better 

quantify these devices’ performance 

variability. 

IV. Compliance Assurance for Fabric 

Filters, Electrostatic Precipitators, and 

Ionizing Wet Scrubbers 

The final rule provides additional 

requirements to clarify how you 

determine the duration of periods of 

operation when the alarm set point has 

been exceeded for a bag leak detection 

system or a particulate matter detection 

system: 

1. You must keep records of the date, 

time, and duration of each alarm, the 

time corrective action was initiated and 

completed, and a brief description of the 

cause of the alarm and the corrective 

action taken. 

2. You must record the percent of the 

operating time during each 6-month 

period that the alarm sounds. 

3. In calculating the operating time 

percentage, if inspection of the fabric 

filter, electrostatic precipitator, or 

ionizing wet scrubber demonstrates that 

no corrective action is required, no 

alarm time is counted. 

4. If corrective action is required, each 

alarm shall be counted as a minimum of 

1 hour. 

The final rule also establishes revised 

procedures for establishing the alarm set 

point if you elect to use a particulate 

matter detector system in lieu of sitespecific operating parameter limits for 

compliance assurance for sources 

equipped with electrostatic precipitators 

and ionizing wet scrubbers. The rule 

explicitly allows you to maximize 

controllable operating parameters 

during the comprehensive performance 

test to account for variability by, for 

example, detuning the APCD or spiking 

ash. To establish the alarm set-point, 

you may either establish the set-point as 

the average of the test condition run 

average detector responses during the 

comprehensive performance test or 

extrapolate the detector response after 

approximating the correlation between 

the detector response and particulate 

matter emission concentrations. You 

may extrapolate the detector response 

up to a response value that corresponds 

to 50% of the particulate matter 

emission standard or 125% of the 

highest particulate matter concentration 

used to develop the correlation, 

whichever is greater. To establish an 

approximate correlation of the detector 

response to particulate matter emission 

concentrations you should use as 

guidance Performance Specification-11 

for PM CEMS (40 CFR Part 60, 

Appendix B), except that you need 

conduct only 5 runs to establish the 

initial correlation rather than a 

minimum of 15 runs required by PS–11. 

The final rule also notes that an 

exceedance of a detector response that 

corresponds to the particulate matter 

emission standard is not evidence that 

the standard has been exceeded because 

the correlation is an approximate 

correlation used for the purpose of 

compliance assurance to determine 

when corrective measures must be 

taken. The correlation, however, does 

not meet the requirements of PS–11 for 

compliance monitoring. 

In addition, if you elect to use a 

particulate matter detection system in 

lieu of site-specific control device 

operating parameter limits on the 

electronic control device, the ash 

feedrate limit for incinerators and 

boilers under § 63.1209(m)(3) is waived. 

The ash feedrate limit is waived because 

the particulate matter detection system 

continuously monitors relative 

particulate matter emissions and the 

alarm set point provides reasonable 

assurance that emissions will not 

exceed the standard.30

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59425 

concepts in the Agency’s guidance document on 

bag leak detection systems to establish the alarm 

level. 

31Note that, as a practical matter, most sources 

must establish the chlorine feedrate limit as the 

average of the test run average feedrate limit during 

the comprehensive performance test to demonstrate 

compliance with the semivolatile emission 

standard. This is because chlorine feedrate is a 

compliance assurance parameter for the 

semivolatile metal emission standard. That feedrate 

limit is based on a 12-hour rolling average. To 

ensure compliance with the annual average HClequivalent emission rate limit, however, that 

feedrate limit cannot exceed the value calculated as 

the annual average HCl-equivalent emission rate 

limit divided by [1 ¥ system removal efficiency], 

where you demonstrate the total chlorine system 

removal efficiency during the performance test. 

32Under the site-specific risk assessment 

approach to demonstrate eligibility, you must 

consider locations where people reside and where 

people congregate for work, school, or recreation. 

Finally, you must submit an excessive 

exceedance notification within 30 days 

of the date that the alarm set-point is 

exceeded more than 5 percent of the 

time during any 6-month block period 

of time, or within 30 days after the end 

of the 6-month block period, whichever 

is earlier. The proposed rule would have 

required you to submit that notification 

within 5 days of the end of the 6-month 

block period. 

V. Health-Based Compliance 

Alternative for Total Chlorine 

The final rule includes the following 

major changes to the proposed healthbased compliance alternative for total 

chlorine: 

(1) You must use 1-hour Reference 

Exposure Levels (aRELs) rather than 1- 

hour acute exposure guideline levels 

(AEGL–1) as the acute health risk 

threshold metric when calculating 1- 

hour HCl-equivalent emission rates; 

(2) You must establish a long-term 

average chlorine feedrate limit (i.e., 12 

hour rolling average or an (up to) annual 

rolling average) as the annual average 

HCl-equivalent emission rate limit 

divided by [1 ¥ system removal 

efficiency]. You establish the total 

chlorine system removal efficiency 

during the comprehensive performance 

test. The proposed rule would have 

required you to establish the long-term 

average chlorine feedrate limit as the 

average of the test run averages of the 

comprehensive performance test.31

(3) At proposal, we requested 

comment on whether and how to 

establish a short-term chlorine feedrate 

limit to ensure that the acute exposure 

Hazard Index of 1.0 is not exceeded. See 

69 FR at 21304. We conclude for the 

final rule that a 1-hour rolling average 

feedrate limit may be needed for some 

situations (i.e., if chlorine feedrates can 

vary substantially during the averaging 

period for the long-term feedrate limit 

and potentially result in an exceedance 

of the 1-hour average HCl-equivalent 

emission rate limit). Accordingly, 

although your eligibility for the healthbased compliance alternatives is based 

on annual average HCl-equivalent 

emissions, you must determine 

considering prescribed criteria whether 

your 1-hour HCl-equivalent emission 

rate may exceed the national exposure 

standard (i.e., Hazard Index not 

exceeding 1.0 considering the maximum 

1-hour average ambient concentration of 

hydrogen chloride and chlorine at an 

off-site receptor location32) and thus 

may exceed the 1-hour average HClequivalent emission rate limit absent an 

hourly rolling average limit on the 

feedrate of chlorine. If the acute 

exposure standard may be exceeded, 

you must establish an hourly rolling 

average chlorine feedrate limit as the 1- 

hour HCl-equivalent emission rate limit 

divided by [1 ¥ system removal 

efficiency]. You establish the system 

removal efficiency during the 

comprehensive performance test. 

(4) When calculating HCl-equivalent 

emission rates, rather than partitioning 

total chlorine emissions between 

chlorine and HCl (i.e., the Cl2/HCl 

volumetric ratio) based on the 

comprehensive performance test as 

proposed, you must establish the Cl2/ 

HCl volumetric ratio used to calculate 

the annual average HCl-equivalent 

emission rate based on the historical 

average ratio from all regulatory 

compliance tests. You must establish 

the Cl2/HCl volumetric used to calculate 

the 1-hour average HCl-equivalent 

emission rate as the highest of the 

historical ratios from all regulatory 

compliance tests. The rule allows you to 

exclude ratios from historical 

compliance tests where the emission 

data may not be representative of the 

current Cl2/HCl ratio for reasons such as 

changes to the design or operation of the 

combustor or biases in measurement 

methods. The rule also explicitly allows 

the permitting authority to require 

periodic emissions testing to obtain a 

representative average and maximum 

ratio; 

(5) The look-up table analysis has 

been refined by presenting annual 

average and 1-hour HCl-equivalent 

emission rate limits as a function of 

stack height, stack diameter, and 

distance to property line. In addition, 

separate look-up tables are presented for 

flat terrain and simple elevated terrain; 

(6) The proposed rule required 

approval of the eligibility demonstration 

before you could comply with the 

alternative health-based emission limits 

for total chlorine. Under the final rule, 

if your permitting authority has not 

approved your eligibility demonstration 

by the compliance date, and has not 

issued a notice of intent to disapprove 

your demonstration, you may 

nonetheless begin complying, on the 

compliance date, with the annual 

average HCl-equivalent emission rate 

limits you present in your eligibility 

demonstration. In addition, if your 

permitting authority issues a notice of 

intent to disapprove your eligibility 

demonstration, the authority will 

identify the basis for that notice and 

specify how much time you will have to 

submit additional information or to 

comply with the MACT total chlorine 

standards. The permitting authority may 

extend the compliance date of the total 

chlorine standards to allow you to make 

changes to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the MACT total 

chlorine standards; 

(7) We have revised the approach for 

determining chlorine emissions if you 

feed bromine or sulfur during the 

comprehensive performance test at 

levels higher than those specified in 

§ 63.1215(e)(3)(ii)(B). Under the final 

rule, you must use EPA Method 320/321 

or ASTM D 6735’01, or an equivalent 

method, to measure hydrogen chloride, 

and Method 26/26A, or an equivalent 

method, to measure chlorine and 

hydrogen chloride. You must determine 

your chlorine emissions to be the higher 

of: (1) The value measured by Method 

26/26A, or an equivalent method; or (2) 

the value calculated by difference 

between the combined hydrogen 

chloride and chlorine levels measured 

by Method 26/26a, or an equivalent 

method, and the hydrogen chloride 

measurement from EPA Method 320/ 

321 or ASTM D 6735–01, or an 

equivalent method; and 

(8) The proposed rule would have 

required you to conduct a new 

comprehensive performance test if you 

planned to make changes to the facility 

that would lower the annual average 

HCl-equivalent emission rate limit. 

Under the final rule, you would be 

required to conduct a performance test 

as a result of a planned change only for 

a change to the design, operation, or 

maintenance of the combustor that 

could affect the system removal 

efficiency for total chlorine if the change 

could reduce the system removal 

efficiency, or if the change would 

increase the system removal efficiency 

and you elect to increase the feedrate 

limits on total chlorine and chloride. 

59426 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

Part Four: What Are the Responses to 

Major Comments? 

I. Database 

A. Revisions to the EPA’s Hazardous 

Waste Combustor Data Base 

Comment: Several commenters 

identify sources which have ceased 

operations as a hazardous waste 

combustor and should be removed from 

EPA’s data base. 

Response: We agree with commenters 

that data and information from sources 

no longer burning hazardous waste 

should not be included in our 

hazardous waste combustor data base 

and should not be used to calculate the 

MACT standards. We consider any 

source that has initiated RCRA closure 

procedures and activities as a source 

that is no longer burning hazardous 

waste. This data handling decision is 

consistent with the approach we used in 

the 1999 final rule. See 64 FR at 52844. 

As we stated in that rule, ample 

emissions data remain to support 

calculating the MACT standards 

without using data from sources that no 

longer burn hazardous waste. 

As a result, we removed the following 

former hazardous waste combustors 

from the data base: the Safety-Kleen 

incinerator in Clarence, New York, the 

Dow Chemical Company incinerators in 

Midland, Michigan, and LaPorte, Texas, 

the two Holcim wet process cement 

kilns in Holly Hill, South Carolina, the 

Dow Chemical Company liquid fuelfired boiler in Freeport, Texas, the 

Union Carbide liquid fuel-fired boilers 

in Hahnville, Louisiana, and Texas City, 

Texas, and six Dow Chemical Company 

hydrochloric production furnaces in 

Freeport, Texas. 

We are retaining, however, Solite 

Corporation’s lightweight aggregate 

facility in Cascade, Virginia, in the data 

base. Even though the facility recently 

initiated RCRA closure procedures, this 

data handling decision differs from 

those listed in the preceding paragraph 

because Solite Corporation provided 

this new information in February 2005 

while information on the other closures 

was reported or available to us in 2004. 

Because we cannot continually adjust 

our data base and still finalize this 

rulemaking by the court-ordered 

deadline, we stopped making revisions 

to the data base in late 2004. Additional 

facility changes after that date, like 

Solite Corporation’s Cascade facility 

closure, simply could not be 

incorporated. 

Comment: One commenter identifies 

a source in EPA’s data base that should 

be classified as a boiler instead of a 

hydrochloric acid production furnace. 

Response: We agree with the 

commenter. In today’s rule, Dow 

Chemical Company’s boiler F–2820, 

located in Freeport, Texas, is 

reclassified in our data base as a boiler. 

This source is identified as unit number 

2020 in our data base. 

B. Use of Data From Recently Upgraded 

Sources 

Comment: Many commenters 

recommend that EPA remove from the 

data base (or not consider for standardssetting purposes) emissions data from 

sources that upgraded their emissions 

controls to comply with the 

promulgated emission standards of 

either the 1999 rule or the 2002 interim 

standards. Several commenters also 

state that any emissions data that were 

obtained or used to demonstrate 

compliance with the promulgated 

standards of 1999 or 2002 should not be 

used for standard-setting purposes by 

the Agency. That is, EPA must evaluate 

the source category as it existed at the 

beginning of the rule development 

process and not after emissions controls 

are later added to comply with the 1999 

or 2002 standards. Several commenters 

also state that EPA is only partly correct 

in claiming that the interim standards 

are not MACT standards because the 

interim standards were established and 

considered to be MACT until the Court 

issued its opinion in July 2001. Until 

that time, sources proceeded to upgrade 

their facilities to achieve the standards 

promulgated in 1999. The rationale for 

these recommendations is threefold: (1) 

Use of the data unfairly ignores the 

MACT-driven reductions already 

achieved by some sources; (2) it is 

contrary to sound public policy to use 

data from upgraded facilities to ‘‘ratchet 

down’’ the MACT floors to a level more 

stringent because these sources would 

not have increased their level of 

performance but for the legal obligation 

to comply with the standards; and (3) 

EPA’s reliance on National Lime Ass’n 

v. EPA, 233 F.3d 625, 640 (D.C. Cir. 

2000), for the proposition that the 

motivation for a source’s performance is 

legally irrelevant in developing MACT 

floor levels is misplaced because that 

case involved the initial MACT standard 

setting process, and not a subsequent 

rule. 

One commenter agrees with EPA’s 

proposed position and states that use of 

data from sources that have upgraded is 

not only appropriate, but also required 

by the Clean Air Act. This commenter 

states that the actual performance of 

sources that have upgraded their 

emissions equipment—to meet the 1999 

standards or for any reason—is reflected 

only by the most recently generated 

emissions data for the source. Thus, the 

Clean Air Act requires EPA to use the 

most recently generated data available 

to it and precludes the Agency from 

using older, out-of-date performance 

data. 

EPA also received several comments 

stating that the language of section 

112(d)(3)(A) of the Clean Air Act 

informs how the Agency should 

consider emissions data from sources 

that conducted testing after that 1999 

rule was promulgated. One commenter 

states that the only data which should 

not be used in calculating the MACT 

floors are from sources that are subject 

to lowest achievable emission rates 

(LAER). Thus, the commenter states, 

Congress considered the possibility of 

significant and recent upgrades, and 

concluded that EPA should use up-todate data to reflect source’s 

performance, but must exclude certain 

sources from the floor calculation if 

their upgrades were of a specific degree 

and were accomplished within a 

specific period of time. Another 

commenter states that Congress did not 

intend to pile technology upon 

technology as confirmed by section 

112(d)(3)(A) that specifically excludes 

sources that implemented LAER from 

consideration when establishing section 

112(d) standards. Thus, the commenter 

states, considering data from sources 

that have upgraded violates both the 

language and intent of the Clean Air 

Act. Another commenter states that, 

while Congress no doubt contemplated 

that EPA should use all available 

emissions information in setting initial 

MACT standards, neither the statute nor 

the legislative history suggest that 

follow-up MACT rulemakings require 

the use of data reflecting compliance 

efforts with previous MACT standards 

or interim standards. 

Response: As proposed, EPA 

maintains its position on use of post1999 emissions data. The statute 

indicates that EPA is to base MACT 

floors on performance of sources ‘‘for 

which the Administrator has emissions 

information.’’ Section 112(d)(3)(A); 

CKRC, 255 F. 3d at 867. There can be 

no dispute that post-1999 performance 

data in EPA’s possession fits this 

description. We also reiterate that the 

motivation for the control reflected in 

data available to us is irrelevant. See 69 

FR at 21217–218. We further agree with 

those commenters who pointed out that 

Congress was explicit when it wanted 

certain emissions information (i.e., 

sources operating pursuant to a LAER 

standard) excluded from consideration 

in establishing floors. There is, of 

course, no such enumerated exception 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59427 

33Steger, J.L., et al, ‘‘Laboratory Evaluation of 

Method 0050 for Hydrogen Chloride’’, Proc of 13th 

Annual Incineration Conference, Houston, TX, May 

1994. 

for sources that have upgraded their 

performance for other reasons. 

We also do not agree with those 

commenters arguing (with respect to the 

standards for the Phase 1 sources 

(incinerators, cement kilns, and 

lightweight aggregate kilns)) in effect 

that the present rulemaking involves 

revision of an existing MACT standard. 

If this were indeed a revision of a MACT 

standard under section 112(d)(6), then 

EPA would not redetermine floor levels. 

See 70 FR at 20008 (April 15, 2005). 

However, EPA has not to date 

promulgated valid MACT floors or valid 

MACT standards for these sources. The 

1999 standards do not reflect MACT, as 

held by the CKRC court. The interim 

standards likewise do not reflect MACT, 

but were designed to prevent a 

regulatory gap and were described as 

such from their inception. 67 FR at 7693 

(Feb. 13, 2002); see also Joint Motion of 

all Parties for Stay of Issuance of 

Mandate in case no. 99–1457 (October 

19, 2001), pp. 11–12 (‘‘The Parties 

emphasize that the contemplated 

interim rule is in the nature of a remedy. 

It would not respond to the Court’s 

mandate regarding the need to 

demonstrate that EPA’s methodology 

reasonably predicts the performance of 

the average of the best performing 

twelve percent of sources (or bestperforming source). EPA intends to 

address those issues in a subsequent 

rule, which will necessarily require a 

longer time to develop, propose, and 

finalize.’’) EPA consequently believes 

that it is adopting in this rule the initial 

section 112(d) MACT standards for 

hazardous waste burning incinerators, 

cement kilns, and lightweight aggregate 

kilns, and that the floor levels for 

existing sources are based, as provided 

in section 112(d)(3), on performance of 

those sources for which EPA has 

‘‘emissions information.’’

However, we disagree with the 

comment that we must make exclusive 

use of the most recent information from 

hazardous waste combustion sources. 

There is no such restriction in section 

112(d)(3). EPA has exhaustively 

examined all of the data in its 

possession for all source categories 

covered by this rule, and determined 

(and documented) which data are 

suitable for evaluating sources’

performance. 

C. Correction of Total Chlorine Data to 

Address Potential Bias in Stack 

Measurement Method 

Comment: Several commenters state 

that EPA’s proposed total chlorine 

standards of 1.5 ppm for existing 

incinerators and 0.18 ppm for new 

incinerators are based on biased data of 

indeterminate quality and are 

unachievable. Commenters assert that 

Method 26A and its RCRA equivalent, 

SW 846 Method 0050, have a negative 

bias at concentrations below 20 ppmv 

when used on stacks controlled with 

wet scrubbers. Commenters cite two 

recurring situations when this bias is 

likely to occur: (1) hydrogen chloride 

dissolving in condensed moisture in the 

sampling train; and (2) hydrogen 

chloride reacting with alkaline 

compounds from the scrubber water that 

are collected on the filter ahead of the 

impingers. 

Commenters are particularly 

concerned about the negative bias 

associated with stack gas containing 

substantial water vapor. Commenters 

note that EPA found in a controlled 

laboratory study by Steger 33 that the 

bias is between 17 and 29 percent at 

stack gas moisture content of 7 to 9 

percent. This stack gas moisture is much 

less than the nominal 50% moisture 

contained in some hazardous waste 

combustor stacks according to the 

commenters. Commenters believe this is 

why EPA’s Method 0050, which was 

used to gather most of the data in the 

HWC MACT data base, states in Section 

1.2 that ‘‘this method is not acceptable 

for demonstrating compliance with HCl 

emission standards less than 20 ppm.’’

Moreover, commenters state that the 

procedures in Method 0050 to address 

the negative bias caused by condensed 

moisture were not followed for many 

RCRA compliance tests. The method 

uses an optional cyclone to collect 

moisture droplets, and requires a 45 

minute purge of the cyclone and 

sampling train to recover hydrogen 

chloride from water collected by the 

cyclone and any condensed moisture in 

the train. The cyclone is not necessary 

if the stack gas does not contain water 

droplets. According to commenters, the 

cyclone and subsequent purge were 

often not used in the presence of water 

droplets because a potential low bias 

below 20 ppmv was irrelevant when 

demonstrating compliance with 

emission standards on the order of 100 

ppmv. There was no need for the extra 

complexity and expense of using a 

cyclone and train purge given the 

purpose of the test. Although the data 

were acceptable for their intended 

purpose, commenters conclude that the 

data are not useful for establishing 

standards below 20 ppmv. 

For these reasons, commenters 

suggest that EPA not consider total 

chlorine measurements below 20 ppmv 

when establishing the standards. 

Response: For the reasons discussed 

below, we corrected all total chlorine 

measurements in our data base for all 

source categories that were below 20 

ppmv to 20 ppmv to establish the total 

chlorine floors. Moreover, to address 

run-to-run variability given that all runs 

for several data sets are now corrected 

to 20 ppmv, we impute a run standard 

deviation based on a regression analysis 

of run standard deviation versus total 

chlorine concentration for sources with 

total chlorine measurements greater 

than 20 ppmv. This is the same 

approach we used to impute variability 

from sources using fabric filters when 

determining the particulate matter 

MACT floors. 

Effect of Moisture Vapor. Commenters 

imply that stack gas with high levels of 

gas phase water vapor will inherently be 

problematic, particularly at emissions 

less than 20 ppmv. There is no basis for 

claiming that water vapor, per se, causes 

a bias in SW–846 Method 0050 or its 

equivalent, Method 26A. Condensed 

moisture (i.e., water droplets), however, 

can cause a bias because it can dissolve 

hydrogen chloride in the sampling train 

and prevent it from being captured in 

the impingers if the sampling train is 

not properly purged. Water droplets can 

potentially be present due to 

entrainment from the wet scrubber, 

condensation in cooler regions of the 

stack along the stack walls, and 

entrainment from condensed moisture 

dripping down the stack wall across the 

inlet duct opening. 

Although Method 0050 addresses the 

water droplet issue by use of a cyclone 

and 45 minute purge, the Steger paper 

(Ibid.) concludes that a 45 minute purge 

is not adequate to evaporate all water 

collected by the cyclone in stacks with 

a total moisture content (vapor and 

condensed moisture) of 7 to 9%. At 

those moisture levels, Steger 

documented the negative bias that 

commenters reference. Steger’s 

recommendation was to increase the 

heat input to the sample train by 

increasing the train and filter 

temperature from 120C (248F) to 200C 

(392F). We agree that increasing the 

probe and filter temperature will 

provide a better opportunity to 

evaporate any condensed moisture, but 

another solution to the problem is to 

require that the post-test purge be run 

long enough to evaporate all condensed 

moisture. That is the approach used by 

Method 26A, which EPA promulgated 

after Method 0050, and which sources 

must use to demonstrate compliance 

with the final standards. Method 26A 

uses an extended purge time rather than 

59428 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

elevating the train temperature to 

address condensed moisture because 

that approach can be implemented by 

the stack tester at the site without using 

nonstandard equipment. 

We attempted to quantify the level of 

condensed moisture in the Steger study 

and to compare it to the levels of 

condensed moisture that may be present 

in hazardous waste combustor stack gas. 

This would provide an indication if the 

bias that Steger quantified with a 45 

minute purge might also be applicable 

to some hazardous waste combustors. 

We conclude that this comparison 

would be problematic, however, 

because: (1) given the limited 

information available in the Steger 

paper, it is difficult to quantify the level 

of condensed moisture in his gas 

samples; and (2) we cannot estimate the 

levels of condensed moisture in 

hazardous waste combustor stack gas 

because, even though condensed 

moisture may have been present during 

a test, method protocol is to report the 

saturation moisture level only (i.e., the 

amount of water vapor present), and not 

the total moisture content (i.e., both 

condensed and vapor phase moisture). 

We can conclude, however, that, if 

hazardous waste combustor stack gas 

were to contain the levels of condensed 

moisture present in the gas that Steger 

tested, the 45 minute purge required by 

Method 0050 would not be sufficient to 

avoid a negative bias. We also conclude 

that this is potentially a practical issue 

and not merely a theoretical concern 

because, as commenters note, hazardous 

waste combustors that use wet scrubbers 

are often saturated with water vapor that 

will condense if the flue gas cools. 

Data from Wet Stacks When a Cyclone 

Was Not Used. Commenters state that 

Method 0050 procedures for addressing 

water droplets (adequate or not, as 

discussed above) were not followed in 

many cases because a low bias below 20 

ppmv was not relevant to demonstrating 

compliance with standards on the order 

of 100 ppmv. We do not know which 

data sets may be problematic because, as 

previously stated, the moisture 

concentration reported was often the 

saturation (vapor phase only) moisture 

level and not the total (vapor and liquid) 

moisture in the flue gas. We also have 

no documentation that a cyclone was 

used—even in situations where the 

moisture content was documented to be 

above the dew point. We therefore 

conclude that all data below 20 ppmv 

from sources controlled with a wet 

scrubber are suspect and should be 

corrected. 

Potential Bias Due to Filter Affinity 

for Hydrogen Chloride. Studies by the 

American Society of Testing and 

Materials indicate that the filter used in 

the Method 0050 train (and the M26/ 

26A trains) may adsorb/absorb hydrogen 

chloride and cause a negative bias at 

low emission levels. (See ASTM D6735–

01, section 11.1.3 and ‘‘note 2’’ of 

section 14.2.3) This inherent affinity for 

hydrogen chloride can be satisfied by 

preconditioning the sampling train for 

one hour. None of the tests in our 

database were preconditioned in such a 

manner. 

We are normally not concerned about 

this type of bias because we would 

expect the bias to apply to all sources 

equally (e.g., wet or dry gas) and for all 

subsequent compliance tests. In other 

words, we are ordinarily less concerned 

if a standard is based on biased data, as 

long as the means by which the 

standard was developed and the means 

of compliance would experience 

identical bias. 

However, we did correct the wet gas 

measurements below 20 ppmv to 

address the potential low bias caused by 

condensed moisture. This correction 

would also correct for any potential bias 

caused by the filter’s inherent affinity 

for hydrogen chloride. This results in a 

data set that is partially corrected for 

this issue—sources with wet stacks 

would be corrected for this potential 

bias while sources with dry stacks 

would not be corrected. To address this 

unacceptable mix of potentially biased 

and unbiased data (i.e., dry gas data 

biased due to affinity of filter for 

hydrogen chloride and wet gas data 

corrected for condensed moisture and 

affinity of filter for hydrogen chloride), 

we also correct total chlorine 

measurements from dry gas stacks (i.e., 

sources that do not use wet scrubbers). 

Deposition of Alkaline Particulate on 

the Filter. Commenters are also 

concerned that hydrogen chloride may 

react with alkaline compounds from the 

scrubber water droplets that are 

collected on the filter ahead of the 

impingers. Commenters suggest this 

potential cause for a low bias at total 

chlorine levels below 20 ppmv is 

another reason not to use measurements 

below 20 ppmv to establish the 

standards. 

Although alkaline particulate 

deposition on the method filter causing 

a negative bias is a much greater 

concern for sources that have stack gas 

containing high levels of alkaline 

particulate (e.g., cement kilns, sources 

equipped with dry scrubbers), we agree 

with commenters that this may be of 

concern for all sources equipped with 

wet scrubbers. Our approach to correct 

all data below 20 ppmv addresses this 

concern. 

Decision Unique to Hazardous Waste 

Combustors. We note that the rationale 

for our decision to correct total chlorine 

data below 20 ppmv to account for the 

biases discussed above is unique to the 

hazardous waste combustor MACT rule. 

Some sources apparently did not follow 

Method 0050 procedures to minimize 

the low bias caused by condensed 

moisture for understandable reasons. 

Even if sources had followed Method 

0050 procedures to minimize the bias 

(i.e., cyclone and 45 minute purge) there 

still may have been a substantial bias 

because of insufficient purge time, as 

Steger’s work may indicate. We note 

that the total chlorine stack test method 

used by sources other than hazardous 

waste combustors—Method 26A—

requires that the cyclone and sampling 

train be purged until all condensed 

moisture is evaporated. We believe it is 

necessary to correct our data below 20 

ppmv data because of issues associated 

exclusively with Method 0050 and how 

it was used to demonstrate compliance 

with these sources. 

Determining Variability for Data at 20 

ppmv. Correcting those total chlorine 

data below 20 ppmv to 20 ppmv brings 

about a situation identical to the one we 

confronted with nondetect data. See 

Part Four, Section V.B. below. The 

MACT pool of best performing source(s) 

for some data sets is now comprised of 

largely the same values. This has the 

effect of understating the variability 

associated with these data. 

To address this concern, we took an 

approach similar to the one we used to 

determine variability of PM emissions 

for sources equipped with a fabric filter. 

In that case, we performed a linear 

regression on the data, charting 

variability against emissions, and used 

the variability that resulted from the 

linear regression analysis as the 

variability for the sources average 

emissions. In this case, most or all of the 

incinerator and liquid fuel boiler 

sources in the MACT pool have average 

emissions at or near 20 ppmv. We 

therefore performed a linear regression 

on the total chlorine data charting 

average test condition results above 20 

ppmv against the variability associated 

with that test condition. The variability 

associated with 20 ppmv was the 

variability we used for incinerator and 

liquid fuel boiler data sets affected by 

the 20 ppmv correction. 

We also considered using the 

statistical imputation approach we used 

for nondetect values. See discussion in 

Section IV.B below. The statistical 

imputation approach for correcting data 

below 20 ppmv without dampening 

variability would involve imputing a 

value between the reported value and 20 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59429 

34For multi-constituent HAP (e.g. SVM) the 

emissions for a run could be comprised of fully 

detected values for some HAP and detection limits 

for other HAP that were nondetect. 35See docket item OAR–2004–0022–0049. 

36Mercury is a volatile compound at the typical 

operating temperatures of the air pollution control 

devices used by cement kilns (i.e., baghouses and 

electrostatic precipitators). Most of the mercury 

exits the cement kiln system as volatile stack 

emissions, with a smaller fraction partitioning to 

the clinker product or cement kiln dust. Thus, in 

general, there is a proportional relationship 

between the mercury concentration in the 

hazardous waste and stack emissions of mercury 

(i.e., as the mercury concentration in hazardous 

waste increases (assuming mercury concentrations 

in other inputs such as raw materials and fossil 

fuels (coal) and other factors remain constant), 

emissions of mercury will correspondingly 

increase). 

37EPA’s dataset for mercury for cement kilns is 

not like the RCRA compliance test emission data for 

other HAPs where each source designs the 

compliance test such that the operating limits it 

establishes account for the variability it expects to 

encounter during its normal operations (e.g., semiand low volatile metals). This is not necessarily true 

for mercury for cement kilns as shown in our 

analysis of our mercury dataset at proposal. See 69 

FR at 21251. 

38USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ Sections 7.5.3 and 11.0, 

September 2005. 

ppmv because the ‘‘true’’ value of the 

biased data would lie in this interval. 

This approach would be problematic, 

however, given that many of the 

reported values were much lower than 

20 ppmv; our statistical imputation 

approach would tend to overestimate 

the run to run variability. Consequently, 

we conclude that a regression analysis 

approach is more appropriate. A 

regression analysis is particularly 

pertinent in this situation because: (1) 

We consider data above 20 ppmv used 

to develop the regression to be 

unbiased; and (2) all the corrected data 

averages for which we are imputing a 

standard deviation from the regression 

curve are at or near 20 ppmv. Thus, any 

potential concern about downward 

extrapolation from the regression would 

be minimized. 

We note that, although a regression 

analysis is appropriate to estimate runto-run variability for the corrected total 

chlorine data, we could not use a linear 

regression analysis to address variability 

of nondetect values. To estimate a 

standard deviation from a regression 

analysis, we would need to know the 

test condition average emissions. This 

would not be feasible, however, because 

some or all of the run measurements for 

a test condition are nondetect. In 

addition, we are concerned that a 

regression analysis would not accurately 

estimate the standard deviation at low 

emission levels because we would have 

to extrapolate the regression downward 

to levels where we have few measured 

data (i.e., data other than nondetect). 

Moreover, the statistical imputation 

approach is more suitable for handling 

nondetects because the approach 

calculates the run-to-run variability by 

taking into account the percent 

nondetect for the emissions for each 

run.34 A regression approach would be 

difficult to apply particularly in the case 

of test conditions containing partial 

nondetects or a mix of detect and 

nondetect values. Given these concerns 

with using a regression analysis to 

estimate the standard deviation of test 

conditions with runs that have one or 

more nondetect (or partial nondetect) 

measurements, we conclude that the 

statistical imputation approach best 

assures that the calculated floor levels 

account for run-to-run emissions 

variability. 

Compliance with the Standards. The 

final standards are based on data that 

were corrected to address specific issues 

concerning these data. See the above 

discussion regarding stack gas moisture, 

filter affinity for hydrogen chloride, and 

alkaline compound reactions with 

hydrogen chloride in the sampling train. 

Sources must demonstrate 

compliance using a stack test method 

that also addresses these issues. Sources 

with wet stacks must use Method 26A 

and follow those procedures regarding 

the use of a cyclone and the purging of 

the system whenever condensed 

moisture may be present in the 

sampling system. 

Finally, all sources—those with either 

wet or dry gas—should precondition the 

sampling train for one hour prior to 

beginning the test to satisfy the filter’s 

affinity for hydrogen chloride. The 

permitting authority will ensure that 

sources precondition the sample train 

(under authority of § 63.1209(g)(2)) 

when they review and approve the 

performance test plan. 

D. Mercury Data for Cement Kilns 

Comment: Several commenters state 

that EPA’s data base of mercury 

emissions data (and associated feed 

concentrations of mercury in the 

hazardous waste) are unrepresentative 

and unsuitable for use in determining 

MACT standards for cement kilns. 

These comments are supported by an 

extensive amount of data submitted by 

the cement manufacturing industry 

including three years of data 

documenting day-to-day levels of 

mercury in hazardous waste fuels fired 

to all 14 hazardous waste burning 

cement kilns.35 The commenters 

recommend that EPA use the 

commenter-submitted data as the basis 

for assessing cement kilns’ performance 

for control of mercury because it is the 

most complete and representative data 

available to EPA. 

Response: We agree that the 

commenter-submitted mercury data are 

more representative than those we used 

at proposal. First, these data represent a 

significantly larger and more 

comprehensive dataset compared to the 

one used to support the proposed 

mercury standard. The commentersubmitted data document the day-to-day 

levels of mercury in hazardous waste 

fired to all cement kilns for a three year 

period covering 1999 to 2001. In total, 

approximately 20,000 measurements of 

the concentration of mercury in 

hazardous waste are included in the 

dataset. When considered in whole, 

these data describe the performance 

(and variability thereof) of all cement 

kilns for the three year period because 

each measurement represents the 

mercury concentration in the burn tank 

used to fire the kiln over the course of 

a day’s operation (or longer period).36 In 

comparison, the data used to support 

the proposed floor level consisted of a 

much smaller dataset of approximately 

50 test conditions representing a 

snapshot of performance somewhere in 

the range of normal operations, with 

each test condition representing a 

relatively short period of time (e.g., 

several hours).37 As discussed at 

proposal, we were concerned regarding 

the representativeness of this smaller 

dataset. See 69 FR at 21251. In addition, 

the commenter-submitted dataset allows 

us to better evaluate the only mercury 

control technique used by existing 

hazardous waste burning cement kilns—

controlling the feed concentration of 

mercury in the hazardous waste. The 

commenters have demonstrated 

convincingly that the mercury dataset 

used at proposal does not properly show 

the range of performance and variability 

in performance these cement kilns 

actually experience, while the 

significantly more robust dataset 

submitted by commenters does illustrate 

this variability. Thus, we conclude the 

larger commenter-submitted dataset is 

superior to EPA’s smaller testing 

dataset. 

We note that our MACT floor analysis 

of the commenter-submitted dataset to 

determine which sources are the best 

performers and to identify a mercury 

standard for cement kilns is discussed 

in the background document.38

Additional discussion of issues related 

to the mercury standard for cement 

kilns is found in Part Four, Section VI.B 

of the preamble. 

59430 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

39See docket items OAR–2004–0022–0270 and 

OAR–2004–0022–0333. 

40See docket item OAR–2004–0022–0370. 

41Unlike that is available for the commenter’s 

kilns, we note that we have compliance test 

emissions data, which is designed to maximize 

operating parameters (e.g., HAP feedrates) that 

affect emissions, for the other two kilns. For 

additional discussion on how these data were 

analyzed in conjunction with the commentersubmitted data, see the document ‘‘Technical 

Support Document for HWC MACT Standards, 

Volume III: Selection of MACT Standards,’’ Section 

7.5.3 and 12.0, September 2005. 42A mercury concentration of 2 ppmw in the 

hazardous waste corresponds to a stack 

concentration of approximately 200 μg/dscm, which 

is well above the interim standard of 120 μg/dscm 

for mercury. 43See also docket items OAR–2004–0022–0233 

and OAR–2004–0022–0367. 

44We did not have ash feed data for source 3015. 

We acknowledge that ash feed control levels do not 

significantly affect particulate matter emissions 

from sources equipped with baghouses. However, 

in this instance, the particulate matter emissions 

from this source may not be representative because 

this source may not have been feeding any 

appreciable levels of ash given that scrap metal 

feeds generally would not contribute to the ash 

loading into the baghouse. 

E. Mercury Data for Lightweight 

Aggregate Kilns 

Comment: One commenter, an owner 

and operator of seven of the nine 

operating lightweight aggregate kilns, 

states that the mercury dataset used by 

EPA at proposal is a limited and 

unrepresentative snapshot of 

performance of their seven kilns. To 

support their position that the snapshot 

emissions data are unrepresentative, the 

commenter submitted eight months of 

data documenting levels of mercury in 

hazardous waste fuels fired to their 

lightweight aggregate kilns.39

Response: We agree with the 

commenter that their mercury data 

submission is more representative than 

those used at proposal. As discussed in 

a notice for public comment sent 

directly to certain commenters,40 the 

commenter-submitted dataset 

documents the day-to-day levels of 

mercury in hazardous waste fuels fired 

to Solite Corporation’s Arvonia kilns 

between October 2003 and June 2004. 

The dataset consists of over 310 

measurements of the concentration in 

mercury in hazardous waste. Each 

measurement represents the mercury 

concentration of the burn tank used to 

fire the kiln over the course of a day’s 

operation (or longer period). In 

comparison, the data used to support 

the proposed floor level consisted of a 

smaller dataset of 15 test conditions. 

The nature of the mercury data 

submitted by the commenter is the same 

as we received for the cement kiln 

category discussed in the preceding 

section. For similar reasons, we accept 

the more comprehensive commentersubmitted dataset as one that better 

shows the range of performance and 

variability in performance for these 

lightweight aggregate kilns. One notable 

difference, however, is that the 

commenter submitted mercury data 

only for its company (representing 

seven of nine lightweight aggregate 

kilns). Thus, we received no data 

documenting day-to-day levels of the 

concentration of mercury in hazardous 

waste fuels for the other two lightweight 

aggregate kilns owned by a different 

company. For these two lightweight 

aggregate kilns, we continue to use 

available data available in our 

database.41

Comment: One commenter opposes 

the use of the commenter-submitted 

mercury data because EPA would be 

uncritically accepting a limited and 

select data set from a commenter with 

a direct interest in the outcome of its 

use. Instead, the commenter suggests 

EPA use its section 114 authority to 

obtain all data that are available, not just 

the data selected by that commenter. 

Response: We disagree that we 

uncritically accepted the commentersubmitted mercury data. The reason the 

commenter submitted data collected 

between October 2003 and June 2004 is 

that the facility was, prior to October 

2003, in the process of upgrading its onsite analysis equipment. One outcome of 

this laboratory upgrade was its 

capability to detect mercury in 

hazardous waste at lower 

concentrations. Prior to the upgrade, the 

facility’s on-site laboratory was capable 

of detecting mercury in the hazardous 

waste at a concentration of 

approximately 2 ppmw, which is a level 

such that the vast majority of 

measurements would neither be 

detected nor useful for identifying best 

performers and their level of 

performance.42 The June 4, 2004 cutoff 

date represents a practicable date that 

measurements could still be 

incorporated into the commenter’s 

public comments to the proposed rule, 

which were submitted on July 6, 2004. 

Finally, the commenter provided all 

waste fuel measurements during this 

period and states reliably that no 

measurements made during this period 

were selectively excluded.43

We also reject the commenter’s 

suggestion that we use our authority 

under section 114 of the Clean Air Act 

to obtain additional hazardous waste 

mercury concentration data from the 

facility. There is no obligation for us to 

gather more performance data, given 

that the statute indicates that we are to 

base floor levels on performance of 

sources ‘‘for which the Administrator 

has emissions information.’’ Section 

112(d)(3)(A); CKRC, 255 F. 3d at 867. In 

addition, given our concerns about the 

usefulness of measurements with high 

detection limits discussed above, the 

collection of additional data prior to the 

laboratory upgrade would not be 

productive. When balanced against the 

expenditure of significant resources, 

both in time and level of effort, to 

collect several more months of data, we 

conclude that obtaining additional 

mercury measurements is unnecessary 

because the available eight months of 

data—including over 310 individual 

measurements—represent a significant 

amount of data that we judge to be 

adequately reflective of the source’s 

performance and variability in 

performance. 

F. Incinerator Database 

Comment: Commenters state that 

many of the top performers (e.g., 3011, 

3015, 3022, 349) dilute emission 

concentrations in the stack by burning 

natural gas to initiate reactive waste 

(e.g., explosives, inorganic hydrides) or 

to decontaminate inert material. 

Commenters do not believe these units 

should be considered ‘‘representative’’

of the overall incinerator source 

category and should not be used to 

establish standards for incinerators 

combusting primarily organic wastes. 

Response: Source 3022 has closed and 

has been removed from the database. 

Emission data from source #3015 (ICI 

explosives) has been excluded for 

purposes of calculating the particulate 

matter floor because the test report 

indicates this source was primarily 

feeding scrap metal, which we conclude 

to be an atypical waste stream from a 

particulate matter compliance 

perspective.44

The sources identified by the 

commenter are among the best 

performing sources in two instances. 

Source 3011 is the second ranked best 

performer for the particulate matter 

standard. This source is among the best 

performers for particulate matter 

because it uses a state-of-the art 

baghouse that is equipped with Teflon 

coated bags. There is no evidence to 

suggest that this source was diluting its 

particulate matter emissions. We 

acknowledge that we do not have ash 

feed data for the test conditions that 

were used in the particulate matter 

standard analysis. However, this source 

had the third and fourth highest metal 

feed control levels among all the sources 

used in the MACT analysis for the 

semivolatile and low volatile metal 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59431 

45We note that feed control levels are normalized 

based on each source’s gas flowrate. The feed 

control levels used to assess performance are 

therefore appropriate indicators that directly 

address whether emissions of these pollutants are 

in fact being diluted by the combustion of natural 

gas. 

46See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Vol I: Description of 

Source Categories,’’ September 2005, Section 3.2.2, 

for further discussion. 

47System removal efficiency is a measure of the 

amount of the pollutant that is removed from the 

flue combustion gas prior to being emitted and 

likewise is not influenced by the size of the 

combustor because back-end control systems are 

sized to achieve a given performance level. 

Hazardous waste feed control levels are normalized 

to remove the influence of combustor size by 

dividing each source’s mass feed rate by its 

volumetric gas flowrate. 

48See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards’’, September 2005, Section 4.3.2 

for further discussion. 

49See USEPA, ‘‘Final Technical Support 

Document for the HWC MACT Standards, Volume 

I: Description of Source Categories’’, September 

2005, Section 3.2.1, for further discussion. 

50See USEPA, ‘‘Final Technical Support 

Document for the HWC MACT Standards, Volume 

I: Description of Source Categories’’, September 

2005, Section 2.1 for further discussion. 

standards.45 We therefore conclude that 

it is appropriate to include this source 

in the MACT analysis that determines 

the relevant best performers for 

particulate matter. 

Source 349 is the eighth ranked (out 

of 11) best performer for the particulate 

matter standard. We acknowledge that 

the ash feed level for this source is 

lower than most incinerators equipped 

with baghouses. However, particulate 

matter emissions from sources equipped 

with baghouses are not significantly 

affected by the ash inlet loading to the 

baghouse.46 This is further supported by 

the fact that this source is ranked eighth 

among the best performers. We 

conclude source 349 is a best performer 

not because of its relatively low ash feed 

level, but rather because it is equipped 

with a well designed and operated 

baghouse. It is therefore appropriate to 

include this source in the MACT 

analysis. 

Comment: Commenters state that 

source 341 should not be considered in 

the MACT analysis because it is a small 

laboratory waste burner that processes 

only 900 lbs/hr of waste. Commenters 

claim that more than 80 percent of the 

waste profile is non-hazardous waste. 

Response: We approached this 

comment by asking if it would be 

appropriate to create a separate 

subcategory for source 341. We 

conclude it is not necessary to 

subcategorize hazardous waste 

incinerators based on the size of 

combustion units. This is because the 

ranking factors used to identify the 

relevant best performing sources are 

normalized in order to remove the 

influence that combustion unit size 

would otherwise have when identifying 

best performing sources. See part 4 

section III.D below. Air pollution 

control system types (a ranking factor 

for particulate matter) are generally 

sized to match the corresponding 

volumetric gas flow rate in order to 

achieve a given control efficiency. The 

size of the combustor therefore does not 

influence a source’s ability to achieve a 

given control efficiency. System 

removal efficiency and hazardous waste 

feed control MTECs (ranking factors 

used by the SRE/Feed methodology as 

described in part 4 section III.B below) 

are also not influenced by the size of the 

combustor.47

Emission limitations are similarly 

normalized to remove the influence of 

combustion unit size by expressing the 

standards as emission concentration 

limits rather than as mass emission rate 

limits. See section III.D. This is 

illustrated in the following example. 

Assume there are two cement kilns side 

by side with similar designs, the only 

difference being one is twice the size of 

the other, producing twice as much 

clinker. They both have identical types 

of air pollution control systems (the 

larger source is equipped with a larger 

control device that is appropriately 

sized to accommodate the larger 

volumetric gas flow rates and achieves 

the same control efficiency as the 

smaller control device). If we were to 

assess performance based on HAP mass 

emission rates (e.g., pounds per hour), 

the smaller source would be the better 

performer because its mass emission 

rates would be half of the mass emission 

rate of the larger source, even though 

they both are achieving the same backend control efficiency. Emission 

concentrations, on the other hand, are 

calculated by dividing the HAP mass 

emission rate (e.g., pounds per hour) by 

the volumetric gas flowrate (e.g., cubic 

feet per hour). In the above example, 

both sources would have identical HAP 

emission concentrations (the larger 

source has twice the mass emission rate, 

but twice the volumetric gas flow rate), 

accurately reflecting their identical 

control efficiency. Emission 

concentrations normalize the size of 

each source by accounting for 

volumetric gas flowate, which is 

directly tied to the amount of raw 

material each source processes (and 

subsequently the amount of product that 

is produced). This is a reason we point 

out that normalization eliminates the 

need to create subcategories based on 

unit size. See part four section III.D. 

Further, it would be difficult to 

determine an appropriate minimum size 

cutoff in which to base such a 

subcategorization determination. Such a 

subcategorization scheme could also 

yield nonsensical floor results, as was 

the case when we assessed 

subcategorizing commercial incinerators 

and on-site incinerators.48

We have identified source 341 as the 

best performing source for particulate 

matter and low volatile metals. It is the 

single best performing source for these 

standards because it is equipped with a 

state-of-the-art baghouse.49 This source, 

which simultaneously feeds hazardous 

and nonhazardous wastes, conducted 

several emission tests that reflected 

different modes of operation. The 

amount of nonhazardous waste that was 

processed in the combustion unit varied 

across test conditions. We could not 

ascertain the exact amount of hazardous 

waste processed in the test condition 

that was used in the MACT analysis for 

low volatile metals because the test 

report stated the wastes that were 

processed were a mixture of hazardous 

and nonhazardous wastes, although we 

estimate that at least 26% of the waste 

processed was nonhazardous.50 We note 

that we are aware of several other 

incinerators that processed 

nonhazardous waste at levels greater 

than 26 percent during their emission 

tests. We therefore do not believe this to 

be atypical operation that warrants 

subcategoriztion. 

Moreover, the fact that this source 

was feeding nonhazardous wastes does 

not result in atypically low hazardous 

waste low volatile metal feed control 

levels, as evidenced by the relative feed 

control ranking for this source of 

thirteenth among the 26 sources 

assessed in the MACT analysis. It also 

has the highest normalized hazardous 

waste feed control level among the best 

performing sources, and has the fifth 

best low volatile metal system removal 

efficiency among those same 26 sources. 

We repeat that this source is being 

identified as the best performing source 

primarily because it is equipped with a 

highly efficient baghouse, not because it 

is feeding low levels of HAP metals 

attributable to its hazardous waste. 

Furthermore, this source is not the 

lowest emitting source in the database. 

There are two sources with similar, but 

slightly lower low volatile metal 

compliance test emissions (one 

commercial incinerator and one onsite, 

non-commercial incinerator). This 

provides further evidence that the 

59432 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

51Source 341 particulate matter emissions, after 

accounting for variability, equated to 0.0015 gr/dscf. 

The second and third ranked particulate matter 

sources emissions, considering variability, equated 

to 0.0018 and 0.0023 gr/dscf, respectively. 

52See February 11, 2005 memo to docket titled 

‘‘October 20 Conference Call with Squibb 

Manufacturing regarding Source # 3018 and 3019’’. 

53Also see February 11, 2005 memo to docket 

titled ‘‘October 20 Conference Call with Squibb 

Manufacturing regarding Source # 3018 and 3019’’. 

54See July 15, 2005 memo to docket titled 

‘‘Telephone Conversation with Utah DEQ Regarding 

2001 Clean Harbor Emission Test.’’

emissions from this source 

appropriately represent emissions of a 

relevant best performing source. 

Regarding the particulate matter 

standard, source 341 does not have 

atypically low ash feed rates as 

compared to other sources equipped 

with baghouses. Out of the nine best 

performing particulate matter sources 

for which we have ash feed information, 

this source ranks fourth (a ranking of 

one is indicative of the lowest ash feed 

rate). Nonetheless, as previously 

discussed, particulate matter emissions 

from sources equipped with baghouses 

are not significantly affected by the ash 

inlet loading to the baghouse. We note 

that particulate matter emissions from 

the second and third best performing 

source are not significantly different 

from this source, providing further 

evidence that this source is 

representative of the range of emissions 

exhibited by other well designed and 

operating incinerators equipped with 

baghouses.51

Comment: Commenters state that 

sources 3018 and 3019 are identified as 

best performers for mercury emissions 

for incinerators. After evaluating the 

trial burn plans for these sources, the 

commenter believes the data should not 

be used to calculate the MACT floor 

because the spiking rate for mercury 

was extremely low for a compliance 

test. The ranking for feedrate is therefore 

unrepresentative. The commenter 

suggests that these test results should be 

characterized as ‘‘normal’’. 

Response: We have verified that the 

emission tests performed for sources 

3018 and 3019 reflect the upper range 

of mercury emissions that are not to be 

exceeded by these sources, and that 

their spiked mercury feed rates were 

back-calculated from a risk assessment. 

We therefore conclude that we properly 

characterized these emissions as 

compliance test emissions data because 

they reflect the emissions resulting from 

the upper bound of hazardous waste 

mercury feedrates from these sources.52

Consequently, these data are properly 

included with the other data used to 

calculate floor standards for mercury for 

incinerators. 

Comment: Commenters state the trial 

burn plan for sources 3018 and 3019 

describes these units to be of similar 

design. Thus the difference in results 

between these two similar sources is 

indicative of additional variability 

above and beyond the run-to-run 

variability and should be assessed if the 

data are deemed usable at all. 

Response: We conclude both of these 

sources are in fact unique sources that 

should be assessed as individual 

sources for purposes of the MACT 

analysis. Although these sources are of 

similar design, we do not believe they 

are identical, in part because: (1) The 

facility itself conducted separate 

emission tests for the two units (rather 

than trying to avail itself of the ‘data in 

lieu’ option, which could save it the 

expense of a second compliance test, the 

obvious inference being that the source 

or regulatory official regards the two 

units as different); and (2) discussions 

with facility representatives indicated 

these units are similar, but not 

identical.53 As a result, it would be 

inappropriate to assess emissions 

variability by combining the emissions 

of these two sources into one test 

condition given they are not identical 

units. 

Comment: Commenters state that 

emissions data from source 327 should 

not be used to calculate dioxin/furan 

and mercury floors because they claim 

the carbon injection system did not 

appear to function properly during the 

test. 

Response: We agree with the 

commenters. We have determined that 

this source encountered problems with 

its carbon injection system during the 

emissions test from which the data were 

obtained and subsequently used in 

EPA’s proposed MACT analysis. We 

have also verified that this source did 

not establish operating parameter limits 

for the carbon injection system as a 

result of this test.54 We therefore have 

excluded this mercury and dioxin data 

from the MACT analysis, and have 

instead used emissions data from an 

older test condition to represent this 

source’s emissions. 

Comment: Commenters state that the 

emissions data from source 3006 were 

based on a miniburn to determine how 

close the unit was to achieving the 

interim MACT standards. The 

commenter questions whether these 

data should be used for purposes of 

calculating MACT standards. 

Response: The fact that a source 

conducts a voluntary emissions test 

(e.g., a miniburn) to determine how 

close it is operating to upcoming 

emission standards does not necessarily 

lead us to conclude that the emission 

data are inappropriate for purposes of 

calculating MACT standards. However, 

since proposal, we have determined that 

this source did not measure cadmium 

emissions during this emissions test. As 

a result, we conclude the semivolatile 

metal emissions data from this source 

should not be used in the MACT 

standard calculation for semivolatile 

metals because the data do not represent 

the source’s combined emissions of lead 

and cadmium. 

II. Affected Sources 

A. Area Source Boilers and 

Hydrochloric Acid Production Furnaces 

Comment: Five commenters state that 

the area sources subject to the proposed 

rule are negligible contributors to 

112(c)(6) HAP emissions and should not 

be subject to major source standards for 

112(c)(6) HAP. Commenters note that 

requiring compliance with MACT for 

112(c)(6) HAP and RCRA for other toxic 

pollutants is more complicated and 

burdensome for sources than complying 

only with RCRA. Although an area 

source can choose to become regulated 

as a major source in order to reduce 

some RCRA requirements, they would 

become subject to more onerous 

emissions limits under Subpart EEE and 

the other MACT requirements. 

One of these commenters states that 

subjecting an area source to major 

source standards under 112(c)(6) sends 

a negative message to industry that EPA 

does not value emissions reduction and/ 

or chemical substitution, or other 

methods used by area sources to achieve 

that status. EPA is no longer providing 

any incentive for sources to take such 

difficult yet environmentally beneficial 

steps to become an area source. 

Imposing Title V permitting 

requirements on an entire facility that 

operates as an area source of hazardous 

air pollutants (HAPs) will impose an 

unfair and undue burden on the facility. 

Another of these commenters states 

that section 112(c)(6) requires in 

pertinent part that EPA list categories 

and subcategories of sources assuring 

that sources accounting for not less than 

90% of the aggregate emissions of each 

pollutant (specified in 112(c)(6)) are 

subject to standards under Section 

112(d)(2) or (d)(4). In 1998, EPA 

published a notice identifying the list of 

source categories accounting for the 

section 112(c)(6) HAP emissions and to 

be regulated under section 112(d) to 

meet the 90% requirement. (63 FR 

17838) At the time, EPA acknowledged 

that MACT standards for a number of 

the source categories had not yet been 

promulgated, and stated that when the 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59433 

55Courts have repeatedly upheld EPA’s authority 

under CAA section 112(d) to use a surrogate to 

regulate hazardous pollutants if it is reasonable to 

do so. See, e.g., National Lime, 233 F. 3d at 637 

(holding that EPA properly used particulate matter 

as a surrogate for HAP metals). 

56See USEPA ‘‘Technical Support Document for 

HWC MACT Standards, Volume V: Emission 

Estimates and Engineering Costs,’’ September, 2005, 

Section 3. 

57We note that as a practical matter, however, the 

same MACT standards apply to both major and area 

source HCl production furnaces. This is because 

major sources are subject to the following 

standards: CO/HC, DRE, and total chlorine. Because 

the CO/HC and DRE standards are surrogates to 

control dioxin/furan, and the total chlorine 

standard is a surrogate to control metal HAP, area 

sources are subject to the same standards that 

address dioxin/furan, polycyclic organic matter, 

polychlorinated biphenyls, and mercury. There is 

an enforcement difference between the 

requirements, however. For area sources, an 

exceedance of the total chlorine standard (or failure 

to ensure that compliance is maintained) relates to 

control of mercury only while for a major source, 

the same failure relates to control of mercury, other 

metal HAP, and HCl and chlorine. 

regulations for each of those categories 

are developed, EPA will analyze the 

data specific to those sources and 

determine, under Section 112(d), in 

what manner requirements will be 

established. EPA also stated that: 

‘‘Some area categories may be negligible 

contributors to the 90% goal, and as such 

pose unwarranted burdens for subjecting to 

standards. These trivial source categories will 

be removed from the listing as they are 

evaluated since they will not contribute 

significantly to the 90% goal.’’ (63 FR 17841) 

The commenter believes the ‘‘two or 

fewer’’ area source boilers identified by 

EPA in the present rulemaking are 

‘‘negligible contributors’’ to the 90% 

goal and therefore, should not be 

required to adopt the same MACT 

emission limitations and requirements 

as major sources of the 112(c)(6) 

pollutants. The commenter believes 

EPA’s decision to subject area source 

boilers and hydrochloric acid 

production furnaces is incorrect, 

unsupported by the administrative 

record, and therefore arbitrary and 

capricious. 

One commenter states that, if EPA 

regulates area sources, it should 

significantly reduce the administrative 

burden for area sources by: exempting 

them from Title V provisions for 

Subpart EEE requirements; exempting 

them from compliance with the General 

Provisions of 63 Subpart A; limiting 

them to a one-time comprehensive 

performance test; or limiting other 

applicable requirements. 

Response: We continue to believe that 

boiler and hydrochloric acid furnace 

area sources warrant regulation under 

the major source MACT standards for 

mercury, dioxin/furan, carbon 

monoxide/hydrocarbons, and 

destruction and removal efficiency 

pursuant to section 112(c)(6). 

As discussed at proposal (69 FR at 

21212), section 112(c)(6) of the CAA 

requires EPA to list and promulgate 

section 112(d)(2) or (d)(4) standards 

(i.e., standards reflecting MACT) for 

categories and subcategories of sources 

emitting seven specific pollutants. Five 

of those listed pollutants are emitted by 

boilers and hydrochloric acid 

production furnaces: mercury, 2,3,7,8- 

tetrachlorodibenzofuran, 2,3,7,8- 

tetrachlorodibenzo-p-dioxin, polycyclic 

organic matter, and polychlorinated 

biphenyls. 

As discussed below, EPA must assure 

that source categories accounting for not 

less than 90 percent of the aggregated 

emissions of each enumerated pollutant 

are subject to MACT standards (and of 

course is not prohibited from requiring 

more than 90 percent of aggregated 

emissions to be controlled by MACT 

standards). Congress singled out the 

pollutants in section 112(c)(6) as being 

of ‘‘’specific concern’’’ not just because 

of their toxicity but because of their 

propensity to cause substantial harm to 

human health and the environment via 

indirect exposure pathways (i.e., from 

the air through other media, such as 

water, soil, food uptake, etc.). 

Furthermore, these pollutants have 

exhibited special potential to 

bioaccumulate, causing pervasive 

environmental harm in biota and, 

ultimately, human health risks. 

Section 112(c)(6) of the CAA requires 

EPA to list categories and subcategories 

of sources of seven specified pollutants 

to assure that sources accounting for not 

less than 90 percent of the aggregate 

emissions of each such pollutant are 

subject to standards under CAA section 

112(d)(2) or 112(d)(4). In 1998, EPA 

issued the list of source categories 

pursuant to section 112(c)(6), and that 

list is published at 63 Fed. Reg. 17838, 

17849, Table 2 (April 10, 1998). 

In the 1998 listing, EPA identified the 

following three subcategories of the 

HWC source category that emit one or 

more of the seven section 112(c)(6) 

pollutants: (1) Hazardous waste 

incinerators—(emit mercury, dioxin, 

furans, polycyclic organic matter (POM) 

and polychlorinated biphenyls (PCBs)); 

(2) Portland cement manufacture: 

hazardous waste kilns—(emit mercury, 

dioxin, furans, and POM); and (3) 

lightweight aggregate kilns: hazardous 

waste kilns—(emit dioxin, furans, and 

mercury). These three subcategories are 

all subject to today’s rule, which is 

issued pursuant to CAA section 

112(d)(2). As explained below, the HWC 

NESHAP effectively controls emissions 

of the identified section 112(c)(6) 

pollutants from the identified 

subcategories. Accordingly, EPA 

considers the sources in these three 

subcategories as being ‘‘subject to 

standards’’ for purposes of section 

112(c)(6). 

Specifically, with regard to hazardous 

waste-burning incinerators, cement 

kilns, and lightweight aggregate kilns, 

EPA is adopting in this final rule MACT 

standards for mercury and dioxins/ 

furans. EPA has already adopted MACT 

standards for control of POM and PCBs 

emitted by these sources in the 1999 

rule, which standards were not 

reopened or reconsidered in this 

rulemaking. These standards are the 

CO/HC standards, which in 

combination with the Destruction 

Removal Efficiency (DRE) requirement, 

assure that these sources operate 

continuously under good combustion 

conditions which inhibit formation of 

POM and PCBs as combustion byproducts, or destroy these HAP if they 

are present in the wastes being 

combusted.55 See discussion in Part 

Four, Sections V.A and V.B of this 

preamble. 

The HWC NESHAP also applies to 

hazardous waste-burning boilers and 

hydrochloric acid production furnaces. 

In particular, for these boilers and 

furnaces, this rule addresses emissions 

of dioxin/furan, mercury, POM and 

PCBs either through specific numeric 

standards for the identified HAP, or 

through standards for surrogate 

pollutants which control emissions of 

the identified HAP. 

We estimate that approximately 620 

pounds of mercury are emitted annually 

in aggregate from hazardous waste 

burning boilers in the United States.56

Also, we estimate that hazardous waste 

burning boilers and hydrochloric acid 

production furnaces emit in aggregate 

approximately 2.3 and 0.2 grams TEQ 

per year of dioxin/furan, respectively. 

Controlling emissions of these HAP 

from area sources consequently reduces 

emissions of these HAP through 

application of MACT standards. We 

note that only major source boilers and 

hydrochloric acid furnaces are subject to 

the full suite of subpart EEE emission 

standards.57 Section 112(c)(3) of the 

CAA requires us to subject area sources 

to the full suite of standards applicable 

to major sources if we find ‘‘a threat of 

adverse effects to human health or the 

environment’’ that warrants such action. 

We cannot make this finding for area 

source boilers and halogen acid 

production furnaces. 69 FR at 21212. 

Consequently, as proposed, area sources 

in these categories would be subject 

only to the MACT standards for 

mercury, dioxin/furan, and polycyclic 

59434 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

58RCRA, 40 CFR Part 264 requirements that are 

similar to MACT requirements include: the general 

inspection requirements and personnel training 

requirements of Subpart B; the preparedness and 

prevention requirements of Subpart C, including 

design and operation of facility, testing and 

maintenance of equipment, and access to 

communications or alarm system; the contingency 

plan and emergency procedures requirements of 

Subpart D; and the operating requirements and 

monitoring and inspection requirements of Subpart 

O. 

organic matter and polychlorinated 

biphenyls (through the surrogate 

standards for carbon monoxide/ 

hydrocarbons and destruction and 

removal efficiency) to control the HAP 

enumerated in section 112(c)(6). RCRA 

standards under Part 266, Subpart H for 

particulate matter, metals other than 

mercury, and hydrogen chloride and 

chlorine gas would continue to apply to 

these area sources unless an area source 

elects to comply with the major source 

standards in lieu of the RCRA standards. 

See § 266.100(b)(3) and the revisions to 

§§ 270.22 and 270.66. 

Commenters refer to the ‘‘two or 

fewer’’ potential area source boilers we 

identified at proposal as ‘‘negligible 

contributors’’ and, therefore, conclude 

that these area sources should not be 

subject to major source standards for 

emission of these HAPs. Commenters 

did not quantify the amount of 

emissions from area sources, and did 

not even identify how many area 

sources are at issue. We do not know 

how many boilers and hydrochloric acid 

furnaces are area sources. We 

apparently underestimated the number 

given that four companies commented 

on the proposed rule saying that area 

sources should not be subject to major 

source standards for mercury, dioxin/ 

furan, PCBs, and polycyclic organic 

matter, and one of those companies 

indicates it operates multiple area 

sources. Consequently, we continue to 

believe that area sources in these 

categories may have the potential to 

emit more than negligible levels of these 

HAP. 

We also note that the major source 

standards are tailored to minimize the 

compliance burden for sources that emit 

low levels of HAP. Commenters raise 

concerns about applying the major 

source standards for HAP enumerated in 

section 112(c)(6) to liquid fuel boiler 

area sources. The emission standard 

compliance burden for liquid fuel 

boilers that have the potential to emit 

only low levels of mercury, dioxin/ 

furan, and polycyclic organic matter is 

minimal. For example, sources that emit 

low levels of mercury because their 

feedstreams have low levels of mercury 

can elect to comply with the mercury 

emission standard by documenting that 

the mercury in feedstreams will not 

exceed the standard assuming zero 

removal by emission control equipment. 

We note that 75% of the liquid fuel 

boilers in our data base, and the two 

boilers cited by commenters, do not 

have emission control devices. 

The compliance burden for the major 

source standards for dioxin/furan and 

for the surrogates to control other 

polycyclic organic matter—carbon 

monoxide/hydrocarbons and 

destruction and removal efficiency 

(DRE)—should also be minimal for area 

source liquid fuel boilers. The dioxin/ 

furan standard applicable to the 90% of 

liquid fuel boilers with wet or no air 

pollution control equipment is 

compliance with the carbon monoxide/ 

hydrocarbon standard and the DRE 

standard. Liquid fuel boilers already 

comply with these same standards 

under RCRA. The surrogate standards to 

control other polycyclic organic matter 

are also the carbon monoxide/ 

hydrocarbon and DRE standards. 

Finally, we note that the DRE 

requirement under Subpart EEE is less 

burdensome than the DRE requirement 

under RCRA. Under Subpart EEE, a 

source needs to conduct a one-time only 

DRE test, provided that design and 

operation does not change in a manner 

than could adversely affect DRE. Under 

RCRA, the DRE test must be conducted 

each time the RCRA permit is renewed. 

The incremental compliance burden 

associated with the other Subpart EEE 

major source requirements, such as the 

operations and maintenance plan, the 

startup, shutdown, and malfunction 

plan, operator training, and the 

automatic waste feed cutoff system 

should also be minimal for liquid fuel 

boilers without an emission control 

device. In addition, most of the 

requirements are either identical to or 

very similar to requirements under 

RCRA with which these area sources are 

already complying.58

B. Boilers Eligible for the RCRA Low 

Risk Waste Exemption 

Comment: Several commenters state 

that EPA should exempt those boilers 

that qualify as Low Risk Waste 

Exemption (LRWE) burners under the 

RCRA Boiler and Industrial Furnace 

Rule at § 266.109 from the MACT 

particulate matter and destruction and 

removal efficiency (DRE) standards 

because EPA has not: (1) Made a 

demonstration that the data used to 

provide the exemption to low risk 

burners under RCRA is no longer valid; 

or (2) established in the affirmative that 

regulating these units will provide any 

benefit to human, health and the 

environment. Commenters believe that 

regulating LRWE units under Subpart 

EEE is unnecessary and inconsistent 

with RCRA subtitle C and more 

importantly, appears to be controlling 

LRWE units for control’s sake. 

Commenters also state that EPA has 

not properly addressed the requirements 

of CAA section 112(n)(7) regarding the 

inconsistency between the requirements 

for Low Risk Waste Exempt (LRWE) 

units under RCRA and those of Subpart 

EEE. The purported purpose of section 

112(n)(7) is to allow EPA to avoid 

imposing additional emission 

limitations on a source category 

subcategory when such limitations 

would be unnecessary and duplicative. 

In addition, commenters state that the 

costs associated with this MACT are 

much more than improved feed control 

or better back-end control. This 

proposed rule also requires substantial 

dollar investment in improved data 

acquisition, computer controls and 

recordkeeping systems, performance 

testing, training, development of plans, 

and other regulatory requirements. 

Response: Boilers and hydrochloric 

acid production furnaces that currently 

qualify for the RCRA § 266.109 low risk 

waste exemption are not exempt from 

Subpart EEE under the final rule. 

The Administrator does not have the 

authority under CAA section 112(d) to 

exempt sources that comply with RCRA 

§ 266.109. Indeed, there is no necessary 

connection between the two provisions, 

since one is technology-based and the 

other is risk-based. CAA section 

112(d)(2) requires the Administrator to 

establish technology-based emission 

standards, standards that require the 

maximum degree of reduction in 

emissions that is deemed achievable. 

Although section 112(d)(4) gives the 

Administrator the authority to establish 

health-based emission standards in lieu 

of the MACT standards for pollutants 

for which a health threshold has been 

established, we cannot use that 

authority to develop health-based 

standards for sources that comply with 

RCRA § 266.109 because those sources 

emit HAP for which a health threshold 

has not been established. 

The final rule complies fully with 

CAA section 112(n)(7) by coordinating 

applicability of the RCRA and CAA 

requirements and precluding dual 

requirements. For example, RCRA 

requirements that are duplicative of 

MACT requirements will be removed 

from the RCRA operating permit when 

the permitting authority issues a 

certification of compliance after the 

source submits a Notification of 

Compliance. 

We also note that the MACT 

standards are tailored to impose 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59435 

59USEPA ‘‘Technical Support Document for 

HWC MACT Standards, Volume V: Emission 

Estimates and Engineering Costs,’’ September, 2005. 

minimal burden on sources that have 

low emissions of HAP. The particulate 

matter emission standard and associated 

testing can be waived (similar to the 

§ 266.109 exemption) for boilers that 

elect to document that emissions of total 

metal HAP do not exceed the limits 

provided by § 63.1206(b)(14). 

Hydrochloric acid production furnaces 

are not subject to a particulate matter 

emission standard. 

The compliance burden with the 

destruction and removal efficiency 

(DRE) standard is also minimal given 

that it is a one-time test, provided that 

the source does not change its design or 

operation in a manner that would 

adversely affect DRE. In addition, the 

compliance burden for sources with low 

levels of metals in their feedstreams is 

minimal. Sources can document 

compliance with the metals emission 

standards by assuming all metals in the 

feed are emitted (i.e., by assuming zero 

system removal efficiency). Under this 

procedure, boilers burning relatively 

clean wastes are not required to conduct 

a performance test to document 

compliance with the metals emission 

standards. 

Further, we note that the MACT 

standard to control organic HAP 

emissions other than dioxin/furan is the 

same as the RCRA standard—

demonstrating good combustion 

conditions by complying with a carbon 

monoxide standard of 100 ppmv. 

Finally, we note that the ancillary 

requirements under MACT (e.g., 

personnel training; operating and 

maintenance plan; startup, shutdown, 

and malfunction plan) should not pose 

substantially higher costs than similar 

requirements under RCRA. See response 

to comment in Section A above. To the 

extent that compliance costs increase, 

we have accounted for those costs in our 

estimates of the cost of the final rule.59

C. Mobile Incinerators 

Comment: A mobile incinerator used 

as a directly-fired thermal desorption 

unit at a Superfund remediation site 

should not be an affected source under 

this rule. 

Response: EPA is not determining or 

changing the applicability of any 

hazardous waste burning unit under 

today’s rule. A combustion unit that 

treats hazardous waste and meets the 

definition of incinerator at 40 CFR 

260.10 is an affected source under this 

rule. 40 CFR part 63 also defines a 

source as any building, structure, 

facility, or installation which emits or 

may emit any air pollutant. A mobile 

incinerator at a remediation site meets 

this definition. 

Comment: One commenter states that 

a subcategory with different standards 

must be created for mobile incinerators, 

or the standards for incinerators must be 

calculated using actual emissions data 

from mobile units. 

Response: EPA did not have any 

emissions data from mobile incinerators 

in the database for the proposed rule. 

That data base was developed over 

many years with ample opportunity for 

public comment. We developed a data 

base for incinerators to support the 1996 

proposed rule (61 FR 17358) and 

noticed that data base for public 

comment on January 7, 1997 (64 FR 

52828). We updated that data base in 

July 2002, and noticed the revised data 

base for public comment (67 FR 44452). 

We used that revised data base to 

support the proposed rule. We did not 

receive comments providing data for 

mobile incinerators as a result of either 

public notice. 

One commenter on the proposed rule 

provided a summary of emissions data 

from one test at a mobile incinerator. 

The commenter suggested that the data 

support its view that its mobile 

incinerator is unique and that EPA 

should consider subcategorizing 

incinerators according to mobile 

incinerators versus other incinerators. 

We analyzed these data and conclude 

that the final standards are readily 

achievable by this source. Moreover, as 

explained elsewhere, EPA’s approach to 

assess the need for subcategorization is 

to apply a statistical test to determine 

whether the emissions data are 

statistically different from the remaining 

group. Given that owners and operators 

of mobile incinerators have not 

provided emissions data prior to 

proposal, and that the commenter 

provides summarized data for only one 

mobile incinerator (which also indicate 

that the source can achieve the emission 

standards in the final rule); we are not 

compelled to gather additional 

information, particularly given our time 

constraints to promulgate the final rule 

under a court-ordered deadline. 

Comment: In support of 

subcategorizing mobile incinerators, 

commenters state that mobile thermal 

treatment systems are substantially 

different from hazardous waste 

incinerators. They are much smaller in 

size, firing capacity rate, refractory 

lining, and operating temperatures. 

Most of them treat contaminated soil, so 

have very high particulate feedrate 

loading with high ash content, rapid 

kiln rotation rate, and counter-current 

flow design like cement kilns. This 

results in high particulate matter 

emissions. They operate only for a short 

duration at a site (usually less than 6 

months), and have no flexibility with 

regard to their waste feed. 

Response: We recognize that there is 

variability between various sources’

with regard to size, capacity, operating 

temperatures etc., and so we applied a 

statistical test to assess the need of 

subcategorization, as has been discussed 

above. The emissions data provided by 

the commenter also indicate the source 

can achieve the final standards. The soil 

entrained in desorber off-gases of mobile 

incinerators has a relatively large 

particle size, and is very easy to capture 

with conventional particulate control 

systems (such as a fabric filter) used by 

the incinerators. 

Comment: Since mobile incinerators 

are relocated from site to site, the new 

source standard should not apply based 

on the erection date of the mobile unit. 

Response: We are not changing the 

applicability of a new or reconstructed 

source designation in this rulemaking. 

The relocation issue is addressed in the 

definition of ‘‘construction’’ in 40 CFR 

Section 63.2, which states: 

‘‘Construction does not include the 

removal of all equipment comprising an 

affected source from an existing location 

and the reinstallation of such equipment 

at a new location * * *’’ (emphasis 

added). Therefore, the relocation of an 

existing Subpart EEE affected source, 

such as a mobile incinerator, would not 

result in that mobile incinerator 

becoming a ‘‘new’’ source. Keep in mind 

also that the relocation exemption only 

applies to affected sources. If a mobile 

incinerator is relocated from an R&D 

facility (where the unit is not an affected 

source per Table 1 to Section 63.1200) 

to a location where the mobile 

incinerator would become an affected 

source, the relocation exemption within 

the definition of ‘‘construction’’ would 

not apply and the mobile incinerator 

would be a ‘‘new’’ source. Also, with 

regard to leased sources, the owner/ 

operator of the facility is responsible for 

all affected sources operating at his/her 

facility regardless of whether the 

sources are owned or leased. The owner 

or operator should obtain from the 

leasing company all relevant 

information pertaining to the affected 

source in order to be able to 

demonstrate that the affected source is 

operating in compliance with the 

appropriate standards. 

III. Floor Approaches 

In this section we discuss comments 

addressing methodologies used in this 

rule for determining MACT floors. We 

address comments relating both to 

59436 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

60See also Chemical Manufacturers Ass’n v. EPA, 

870 F. 2d 177, 228 (5th Cir. 1989) (‘‘The same plant 

using the same treatment method to remove the 

same toxic does not always achieve the same result. 

Tests conducted one day may show a different 

concentration of the same toxic than are shown by 

the same test the next day. This variability may be 

due to the inherent inaccuracy of analytical testing, 

(i.e. ‘analytical variability,’ or to routine 

fluctuations in a plant’s treatment performance.’’) 

general, overarching issues and to the 

specific methodologies used in the rule. 

Our most important point is that the 

methodologies EPA selected reasonably 

estimate the performance of the best 

performing sources by best accounting 

for these sources’ total variability. 

A. Variability 

1. Authority To Consider Emissions 

Variability 

Comment: Many commenters concur 

with our approach to account for 

emissions variability while several 

commenters believe that our approach 

does not adequately account for 

emissions variability. See discussions 

on separate topics below. One 

commenter, however, states that use of 

variability factors (however derived) is 

inherently unlawful and arbitrary and 

capricious. The commenter notes that, 

because floors for existing sources must 

reflect the ‘‘average’’ emission level 

achieved by the relevant best 

performing sources, they cannot reflect 

any worse levels of performance from 

the best performers. Indeed, the 

argument is that the Clean Air Act 

already accounts for variability by 

requiring EPA to base existing source 

floors on the average emission level 

achieved by the best performing 

sources. 

The commenter continues by stating 

that EPA has added variability factors 

both to each individual source’s 

performance and to the collective 

performance of the alleged best 

performers, in each case purporting to 

find an emission level that the 

individual or group would meet ninetynine times out of 100 future emission 

tests. Thus, EPA ignores sources’

measured performance in favor of the 

theoretical worst performance that 

might ever be expected from them. By 

looking to the best performers’ worst 

performance rather than their average 

performance, EPA would set weaker 

floors than the Clean Air Act allows. 

In addition, the commenter notes that 

EPA’s approach to account for 

emissions variability is arbitrary and 

capricious because EPA never explains 

why it chose the 99th percentile for its 

variability adjustments rather than some 

other percentile. 

Finally, the commenter notes that 

EPA appears to indicate that its 

variability analysis would either be 

applied to variation between sources or 

would affect EPA’s statistical analysis of 

the variation between sources. The 

commenter states that any attempt by 

EPA to add a variability factor to adjust 

for intersource variability is unlawful 

and arbitrary and capricious. 

Response: Our response explains our 

approach to estimating best performing 

sources’ variability and addresses the 

following issues: (1) Considering the 

variability in each source’s performance 

is necessary to identify the best 

performing sources and their level of 

performance; (2) EPA reasonably 

considered variability in ranking 

sources to identify the best performers 

and in considering the range of best 

performing sources’ performance over 

time to identify an emission level that 

the average of those sources can 

achieve; (3) considering variability at 

the 99th percentile level is reasonable; 

(4) considering intersource variability 

by pooling run-to-run variability is 

appropriate; and (5) compliance test 

conditions do not fully reflect all of best 

performing sources’ performance 

variability. 

a. Variability Must Be Considered. 

Variability in each source’s performance 

must be considered at the outset in 

identifying the best performing sources. 

This is simply another way of saying 

that best performers are those that 

perform best over time (i.e. day-in, dayout), a reasonable approach. This 

approach not only reasonably reflects 

the statutory language, but also furthers 

the ultimate objective of section 112 

which is to reduce risk from exposure 

to HAP. Since most of the risk from 

exposure to emissions from this source 

category is associated with chronic 

exposure to HAP (see Part 1 section VI 

above), assessing a source’s performance 

over time by accounting for variability 

is reasonable and appropriate. 

For similar reasons, variability must 

be considered in ascertaining these 

sources’ level of performance. Floors for 

existing sources must reflect ‘‘the 

average emission limitation achieved by 

the best performing 12 percent’’ of 

sources, and for new sources, must 

reflect ‘‘the emission control that is 

achieved in practice by the best 

controlled source.’’ Section 112 (d) (3). 

EPA construes these requirements as 

meaning achievable over time, since 

sources are required to achieve the 

standards at all times. This 

interpretation has strong support in the 

case law. See Sierra Club v. EPA, 167 F. 

3d 658, 665 (D.C. Cir. 1999), stating that 

‘‘EPA would be justified in setting the 

floors at a level that is a reasonable 

estimate of the performance of the ‘best 

controlled similar unit’ under the worst 

reasonably foreseeable circumstances. It 

is reasonable to suppose that if an 

emissions standard is as stringent as ‘the 

emissions control that is achieved in 

practice’ by a particular unit, then that 

particular unit will not violate the 

standard. This only results if ‘achieved 

in practice’ is interpreted to mean 

‘achieved under the worst foreseeable 

circumstances’; see also National Lime 

Ass’n v. EPA, 627 F. 2d 416, 431 n. 46 

(D.C. Cir. 1980) (where a statute requires 

that a standard be ‘achievable,’ it must 

be achievable under ‘‘the most adverse 

circumstances which can reasonably be 

expected to recur’’); 

The court has further indicated that 

EPA is to account for variability in 

assessing sources’ performance for 

purposes of establishing floors, and 

stated that this assessment may require 

EPA to make reasonable estimates of 

performance of best performing sources. 

CKRC, 255 F. 3d at 865–66; Mossville 

Environmental Action Now v. EPA, 370 

F. 3d 1232, 1242 (D.C. Cir. 

2004)(maximum daily variability must 

be accounted for when establishing 

MACT floors).60 Indeed, EPA’s error in 

CKRC was not in estimating best 

performing sources’ variability, but in 

using an unreasonable means of doing 

so. CKRC, 255 F. 3d at 866; Mossville, 

370 F. 3d at 1241. 

Since the emission standards in 

today’s rule must be met at all times, the 

standards need to account for 

performance variability that could occur 

on any single day of these sources’

operation (assuming proper design and 

operation). See Mossville, 370 F. 3d at 

1242 (upholding MACT floor because it 

was established at a level that took into 

account sources’ long term performance, 

not just performance on individual 

days). Moreover, since EPA’s database 

consists of single data points (because 

there are no continuous emission 

monitors for HAPs in stack emissions), 

EPA must of necessity estimate longterm performance, including daily 

maximum performance, from this 

limited set of short term data. 

b. EPA Reasonably Considered 

Variability in Ranking Sources to 

Identify the Best Performers and in 

Considering the Range of Best 

Performing Sources’ Performance Over 

Time to Identify an Emission Level that 

the Average of Those Sources Can 

Achieve. (1) Selecting Best Performing 

Sources. Each of the floor 

methodologies used in the rule 

considers various factors in ranking 

which sources are the best performing. 

For each methodology, we therefore 

consider the quantifiable variability of 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59437 

61These ranking methodologies are discussed 

later in this section of the preamble, and in USEPA, 

‘‘Technical Support Document for HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ September 2005, Section 7. 

62Analytic variability exists, and normally must 

be accounted for in establishing technology-based 

standards based on performance of the bestperforming plants. Chemical Manufacturers Ass’n 

v. EPA, 870 F. 2d at 230. 

63There are myriad factors that affect 

performance of an emissions control device. These 

factors change over time, including during the 

maintenance cycle of the device, such that it is 

virtually impossible to conduct future compliance 

tests under conditions that replicate the 

performance of the control device. See USEPA, 

‘‘Technical Support Document for HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ September 2005, Section 5.3. 

64We note that the Agency used a statistical 

approach when proposing the NESHAP for Electric 

Utility Steam Generating Units. See memo from 

William Maxwell, EPA, to Utility MACT Project 

Files, entitled, ‘‘Analysis of variability in 

determining MACT floor for coal-fired electric 

utility steam generating units,’’ dated Nov. 26, 2003, 

Docket A–92–55. 

65For example, sources equipped with 

electrostatic precipitators generally establish 

multiple operating limits to best assure compliance 

with the emission standard (feed control limits, 

power input limits, etc.). There is not an exact 

correlation between emission levels and operating 

levels because there are several factors that can 

affect the control efficiency of these air pollution 

control systems, such as variations in inlet loads, 

power inputs, spark rates, humidity, as well as 

particle resistivity. See USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards,’’ September 2005, 

Sections 16 and 17. 

the ranking factors in determining 

which are the best performing sources. 

69 FR at 21230–31. Specifically, we 

assess run-to-run variability (normally 

the only type of variability which we 

can quantify) of the factors used under 

each methodology to rank best 

performers. Where SRE/Feed is the 

ranking methodology, we thus assess 

run-to-run variability of hazardous 

waste HAP feedrate and of system 

removal efficiency. Where ranking is 

based on sources’ emissions (the straight 

emissions methodology), we assess the 

run-to-run variability of emission levels. 

Where we use the air pollution control 

device methodology for ranking, we 

assess the run-to-run variability of 

emissions of the lowest-emitting sources 

(as we do for straight emissions) using 

the best air pollution control devices. 

For hydrochloric acid production 

furnaces, we assess the run-to-run 

variability of total chlorine system 

removal efficiency. Id.61

To account for run-to-run variability 

in these ranking factors, we rank sources 

by the 99th percentile upper prediction 

limit (UPL99). The UPL99 is an estimate 

of the value that the source would 

achieve in 99 of 100 future tests if it 

could replicate the operating conditions 

of the compliance test. Id. at 21231. 

(2). Assessing the Best Performers’

Level of Performance Over Time. Once 

we identify the best performing sources, 

we need to consider their emissions 

variability to establish a floor level that 

the average of the best performing 

sources can achieve day-in, day-out. 

There are two components of emissions 

variability that must be considered: runto-run variability and test-to-test 

variability. Run-to-run emissions 

variability encompasses variability in 

individual runs comprising the 

compliance tests, and includes 

uncertainties in correlation of 

monitoring parameters and emissions, 

and imprecision of stack test methods 

and laboratory analyses. See 69 FR at 

21232.62 Test-to-test emissions 

variability is the variability that exists 

between multiple compliance tests 

conducted at different times and 

includes the variability in control 

device collection efficiency caused by 

testing at different points in the 

maintenance cycle of the emission 

control device 63, and the variability 

caused by other uncontrollable factors 

such as using a different stack testing 

crew or different analytical laboratory, 

and by different weather conditions 

(e.g., ambient moisture and temperature) 

that may affect measurements. 

We are able to quantify run-to-run 

variability. We do so by applying a 99th 

percentile modified upper prediction 

limit to the averaged emissions of the 

best performing sources. Id. at 21233 

and Technical Support Document 

Volume III section 7.2. The modified 

upper prediction limit accounts for runto-run variability of the best performers 

by pooling their run variance (i.e., 

within-test condition variability).64 See 

Chemical Manufacturer’s Ass’n v EPA, 

870 F. 2d 177, 228 (5th Cir. 1989) 

(upholding use of a variability factor 

derived, as here, by pooling the 

performance variability of the best 

performing plants). Using this approach, 

we ensure that the average of the best 

performing sources will be able to 

achieve the floor in 99 of 100 future 

performance tests, assuming these best 

performing sources could replicate their 

performance when attempting to operate 

under identical conditions to those used 

for the compliance test establishing the 

source as best performing. As just noted, 

we call this value the modified UPL 99. 

The only instance in which we are 

able to quantify test-to-test variability 

(as noted above, the other significant 

component of total operating variability) 

is for fabric filters (baghouses) when 

used to control emissions of particulate 

matter. The modified UPL 99 in these 

instances reflects not only run-to-run 

variability, but test-to-test variability as 

well. That total variability is expressed 

by the Universal Variability Factor 

which is derived from analyzing longterm variability in particulate matter 

emissions for best performing sources 

across all of the source categories 

sources that are equipped with fabric 

filters. 69 FR at 21233. See also the 

discussion below in Section III.A.2. 

Test-to-test variability must be 

accounted for in other instances as well, 

however. It follows that if the 

performance of most efficient fabric 

filters varies over time relative to 

particulate matter emissions, then so 

does their performance relative to the 

non-mercury metal HAP emissions. We 

also believe that particulate matter 

emissions variability from sources 

equipped with back-end controls other 

than fabric filters also exists, and is 

furthermore likely to be higher than 

what was calculated for fabric filters 

because there are more uncertainties 

associated with the correlations between 

operating parameter limits and control 

efficiency for these devices.65 Again, it 

clearly follows that if the performance 

of these other control devices varies 

relative to particulate matter emissions 

(perhaps even more than what has 

already been quantified for fabric 

filters), then so does their performance 

relative to the non-mercury metal HAP 

emissions. 

Although we cannot quantify this testto-test variability, we can document its 

existence and its significance. We 

conducted two parallel analyses 

examining all situations where we had 

multiple test conditions for the sources 

ranked as best performing performing 

(examining separate pools for best 

performing sources under both the 

straight emissions and SRE/feed ranking 

methodologies). These analyses showed 

that these sources’ emissions do in fact 

vary over time, sometimes significantly. 

In many instances sources had poorer 

system removal efficiencies and higher 

emission levels than those in the 

compliance test used to identify the 

source as best performing. We further 

projected that in many instances these 

best performing sources would not 

achieve their own UPL 99, the 

statistically determined prediction limit 

which captures 99 out of 100 future 

three-run test averages for the source, if 

they were to operate at the poorer 

system removal efficiency of its earlier 

test and used the federate of its later 

(best-performing) compliance test. This 

is significant because the UPL 99 

reflects all of a source’s run-to-run 

59438 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

66We explain in those sections that these 

projections assume that system removal efficiencies 

are constant across differing HAP federates and that 

the sources’ historical (poorer) system removal 

efficiencies were not the primary result of operating 

at poorer ‘‘controllable’’ conditions relative to the 

most recent test condition. These are reasonable 

assumptions, as explained in section 17. 3 of 

Volume III of the Technical Support Document, 

although these assumptions also create a measure 

of uncertainty regarding the emissions projections. 

67Note, again, that the variability we quantify by 

these analyses is within-test condition variability 

only. We cannot quantify test-to-test variability and 

thus cannot quantify sources’ total variability. 

68See Volume III of the Technical Support 

Document, Section 7.2 . 

69The opinion notes further that percentiles for 

standards expressed as long-term average typically 

use a lower confidence level (usually 95 %c) due 

to the opportunity to lower the overall distribution 

with multiple measurements. 286 F. 3d at 573. The 

standards in this rule are necessarily daily 

maximum standards because continuous emissions 

monitors for HAP do not exist or have not been 

demonstrated on all types of Subpart EEE sources. 

70See also Chemical Mfrs. Ass’n v. EPA, 870 F. 

2d at 229 (99th percentile daily variability factor is 

reasonable); 227 (‘‘the choice of statistical methods 

is committed to the sound discretion of the 

Administrator’’). 

variability. Failure to meet the UPL 99 

thus shows both that further variability 

exists, namely test-to-test variability, 

and that it is a significant component of 

total variability. We obtained similar 

results when we projected best 

performing sources’ performance based 

on each of these sources’ overall system 

removal efficiency obtained by pooling 

the removal efficiencies of all of its 

tests. In many instances, moreover, 

these projected levels exceeded floor 

levels calculated by using the straight 

emissions approach, which ranks best 

performers as those with the lowest 

emission levels. This point is discussed 

further in Section III.B below. EPA’s 

analysis is set out in detail in chapters 

16 and 17 of Volume III of the Technical 

Support Document.66

EPA’s conclusion is that total 

variability includes both run-to-run and 

test-to-test variability, and that both 

must be accounted for in determining 

which are the best performing sources 

and what are their levels of performance 

over time. As explained in the following 

Sections B and C, EPA has accordingly 

adopted floor methodologies which 

account for this total variability either 

quantitatively or qualitatively. The 

approach advocated by the commenter 

simply ignores that variability exists. 

Since this approach is contrary to both 

fact and law, EPA is not adopting it. 

c. Quantifying Run-to-Run Variability 

at the 99th Percentile Level Is 

Reasonable. We selected the 99% 

prediction limit to ensure a reasonable 

level ‘‘ namely the 99th percentile—of 

achievability for sources designed and 

operated to achieve emission levels 

equal to or better than the average of the 

best performing sources.67 Because of 

the randomness of the emission values, 

there is an associated probability of the 

average of the best performing sources, 

and similarly designed and operated 

sources, not passing the performance 

test conducted under the same 

conditions.68 At a 99% confidence 

level, the average of the best performing 

sources could expect to achieve the 

floor in 99 of 100 future performance 

tests conducted under the same 

conditions as its performance test.. The 

commenter thus sharply 

mischaracterizes a 99% confidence level 

as the worst performance of a best 

performing source.: the level in fact 

assumes identical operating conditions 

as those of the performance test. 

EPA routinely establishes not-toexceed standards (daily maximum 

values which cannot be exceeded in any 

compliance test) using the 99% 

confidence level. National Wildlife 

Federation v. EPA, 286 F. 3d 554, 572 

(D.C. Cir. 2002).69 At a confidence level 

of only 97% for example, the average of 

the best performing sources could 

expect to achieve the floor in only 97 of 

100 future performance tests. 

We note that the choice of a 

confidence level is not a choice 

regarding the stringency of the emission 

standard. Although the numerical value 

of the floor increases with the 

confidence level selected it only appears 

to become less stringent. If EPA selected 

a lower confidence interval, we would 

necessarily adjust the standard 

downward due to the expectation that a 

source would not be expected to achieve 

the standard for uncontrollable reasons 

a larger per cent of the time. We would 

then have to account in some manner 

for this inability to achieve the standard. 

See Weyerhaeuser v. Costle, 590 F. 2d 

1011, 1056–57 (D.C. Cir. 1978) (also 

upholding standards established at 99 

% confidence level). The governing 

issue is what level of confidence should 

the average of the best performing 

sources, and similarly designed and 

operated sources, have of passing the 

performance test demonstrating 

compliance with the standard. We 

believe that the 99% confidence level is 

a confidence level within the range of 

values we could have reasonably 

selected.70

d. Considering Intersource Variability 

by Pooling Run-to-Run Variability is 

Appropriate. The commenter believes 

that any attempt by EPA to add a 

variability factor to adjust for 

intersource variability is unlawful and 

arbitrary and capricious. We see no 

statutory prohibition in considering 

intersource run-to-run variability of the 

best performing sources (which is all 

our floor calculation does, by 

considering the pooled run-to-run 

variability of the best performing 

sources). Section 112(d)(3) states that 

MACT floors are to reflect the ‘‘average 

emission limitation achieved’’ but does 

not specify any single method of 

ascertaining an average. Considering the 

average run-to-run variability among the 

group of best performing sources is well 

within the language of the provision 

(and was upheld in CMA, as noted 

above; see 870 F. 2d at 228). The 

commenter’s further argument that 

‘average’ can only mean average of 

emission levels achieved in 

performance tests is inconsistent with 

the holding in Mossville, 370 F. 3d at 

1242, that EPA must account for 

variability in developing MACT floors 

and that individual performance tests 

do not by themselves account for such 

variability. 

We believe that it is reasonable and 

necessary to account for intersource 

variability of the best performing 

sources by taking the pooled average of 

the best performing sources’ run-to-run 

variability. This is an aspect of 

identifying the average performance of 

those sources. Emissions data for each 

best performing source are random in 

nature, and this random nature is 

characterized by a stochastic 

distribution. The stochastic distribution 

is defined by its central tendency 

(average value) and the amount of 

dispersion from the point of central 

tendency (variance or standard 

deviation). Consequently, to define the 

performance of the average of the best 

performing sources, we must consider 

the average of the average emissions for 

the best performing sources as well as 

the pooled variance for those sources. 

Hence, we must consider intersource 

variability to identify the floor—the 

average performance of the best 

performing sources. 

The commenter further states that 

EPA’s attempt to adjust for intersource 

variability is unlawful, arbitrary, and 

capricious. EPA set floors at the 99th 

percentile worst emission level that it 

believed any source within the group of 

best performers could achieve, 

according to the commenter. The 99th 

percentile worst performance that could 

be expected from a source within the 

best performers is, simply put, not the 

average performance of the sources in 

that group, according to the commenter. 

The commenter misunderstands our 

approach to calculate the floor—the 

floor is not the 99th percentile highest 

emission level that any best performing 

source could achieve. The floor for 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59439 

71Performance tests take an average of 5–8 days 

to conduct, and cost approximately from 

$200,000—$500,000 per test. The commenter’s offhand suggestion appears to have ignored these 

realities. 

existing sources is calculated as the 99th 

percentile modified upper prediction 

limit of the average of the best 

performing sources. It represents the 

average of the best performing sources’

emissions levels plus the pooled withintest condition variance of the best 

performing sources. The floor for 

existing sources is not the highest 99th 

percentile upper prediction limit for any 

best performing source as the 

commenter states. 

e. Why isn’t Total Variability Already 

Accounted for by Compliance Test 

Conditions? 

Comment: One commenter states that 

EPA’s use of variability factors along 

with worst-case data is unlawful and 

arbitrary and capricious. EPA has stated 

that its use of worst case ‘‘compliance’’

data accounts for variability. EPA 

admits that compliance data reflect 

special worst case conditions created 

artificially for the purpose of obtaining 

lenient permit limits, according to the 

commenter. EPA provides no reason 

whatsoever to believe that a source 

would continue to operate under such 

conditions even one percent of the time. 

Thus, the commenter concludes, by 

applying a 99 percent variability factor 

to compliance test data, EPA ensures 

that the adjusted data do not accurately 

reflect the performance of any source. 

Accordingly, EPA’s use of a variability 

factor is unlawful. 

The commenter also states that, to 

increase compliance data with the 

reality that sources will not be operating 

under the worst case conditions except 

during permit setting tests, the Agency’s 

use of a variability factor with 

compliance data is arbitrary and 

capricious. 

Response: All but two standards in 

the final rule are based on compliance 

test data—when sources maximized 

operating parameters that affect 

emissions to reflect variability of those 

parameters and to achieve emissions at 

the upper end of the range of normal 

operations. Use of these data is 

appropriate both because they are data 

in EPA’s possession for purposes of 

section 112(d)(3) and because these data 

help account for best performing 

sources’ operating variability. CKRC, 

255 F. 3d at 867. 

The main thrust of the comment is 

that total variability is accounted for by 

the conditions of the performance test, 

so that making further adjustments to 

allow for additional variability is 

improper. The commenter believes that 

the floor should be calculated simply as 

the average emissions of the best 

performing sources and that this floor 

would encompass the range of 

operations of the average of the best 

performing sources. We disagree. 

The compliance test is designed to 

mirror the outer end of the controllable 

variability occurring in normal 

operations. These controllable factors 

include the amount of HAP fed to a 

source in hazardous waste, and 

controllable operating parameters on 

pollution control equipment (such as 

power input to ESPs, or pressure drop 

across wet scrubbers, factors which are 

reflected in the parametric operating 

limits written into the source’s permit 

and which are based on the results of 

the compliance testing). However, this 

is plainly not all of the variability a 

source experiences. Other components 

of run-to-run variability, including 

variability relating to measuring (both 

stack measurements and measurements 

at analytic laboratories) are not 

reflected, for example. Nor is test-to-test 

variability reflected, notably the point in 

the maintenance cycle that testing is 

conducted and the variability associated 

with those inherently differing test 

conditions even though the source 

attempts to replicate the test conditions 

(e.g., measurement variability 

attributable to use of a different test 

crew and analytical laboratory and 

different weather conditions such as 

ambient temperature and moisture). 

Other changes that occur over time are 

due to a wide variety of factors related 

to process operation, fossil fuels, raw 

materials, air pollution control 

equipment operation and design, and 

weather. Sampling and analysis 

variations can also occur from test to 

test (above and beyond those accounted 

for when assessing within-test 

variability) due to differences in 

emissions testing equipment, sampling 

crews, weather, and analytical 

laboratories or laboratory technicians. 

Thus, there is some need for a 

standard to account for this additional 

variability, and not simply expect for a 

single performance test to account for it. 

The analyses in Sections 16 and 17 of 

Volume III of the Technical Support 

Document confirm these points. 

Moreover, the best performing sources 

(and the average of the best performers) 

must be able to replicate the compliance 

test if they are to be able to continue 

operating under their full range of 

normal operations. It is thus no answer 

to say that the best performing sources 

could operate under a more restricted 

set of conditions in subsequent 

performance tests and still demonstrate 

compliance, so that there is no need to 

assure that results of initial performance 

tests can be replicated. To do so would 

no longer allow the best performing 

sources (and thus the average of the best 

performing sources) to operate under 

their full range of normal operations, 

and thus impermissibly would fail to 

account for their total variability. 

As discussed throughout this 

preamble, emissions variability—run-torun and test-to-test variability—is real 

and must be accounted for if a best 

performing source is to be able to 

replicate the emissions achieved during 

the initial compliance test. We 

consequently conclude that we must 

account for variability in establishing 

floor levels, and that merely considering 

the average of compliance test data fails 

to do so. We have therefore quantified 

run-to-run variability using standard 

statistical methodologies, and accounted 

for test-to-test variability either by 

quantifying it (in the case of fabric filter 

particulate matter removal performance) 

or accounting for it qualitatively (in the 

case of the SRE/feed ranking 

methodology). 

Comment: The commenter notes that 

if EPA believes that single performance 

test results do not accurately capture 

source’s variability, the solution is to 

gather more data, not to avoid using a 

straight emissions methodology. EPA 

cannot use this as an excuse for basing 

floor levels on a chosen technology 

rather than the performance of the best 

performing sources. 

Response: There is no obligation for 

EPA to gather more performance data, 

since the statute indicates that EPA is to 

base floor levels on performance of 

sources ‘‘for which the Administrator 

has emissions information.’’ Section 

112(d)(3)(A); CKRC, 255 F. 3d at 867 

(upholding EPA’s decision to use the 

compliance test data in its possession in 

establishing MACT standards). Indeed, 

the already-tight statutory deadlines for 

issuing MACT standards would be even 

less feasible if EPA took further time in 

data gathering. EPA notes further that 

because particulate matter continuous 

emission monitors are not widely used, 

even further data gathering would be 

limited to snapshot, single performance 

test results, still leaving the problem of 

estimating variability from a limited 

data set.71 See also Sierra Club v. EPA, 

167 F. 3d at 662 (‘‘EPA typically has 

wide latitude in determining the extent 

of data-gathering necessary to solve a 

problem’’). 

Thus, EPA has no choice but to assess 

best performers and their level of 

performance on the basis of limited 

amounts of data per source. As 

explained in the previous response to 

59440 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

72USEPA, ‘‘Technical Support Document for the 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’, September 2005, Sections 16 

and 17. 

73USEPA, ‘‘Draft Technical Support Document 

for HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’, March 2004, p. 5–4. 

74 In addition, emissions are not generally 

affected by particulate inlet loading. 

75See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 5.3. 

comments, EPA has selected a 

methodology that reasonably do so. 

EPA notes further that it has carefully 

examined those instances where there 

are multiple test conditions (usually 

compliance tests conducted at different 

times) for sources ranked as best 

performing. This analysis confirms 

EPA’s engineering judgment that total 

variability is not fully encompassed in 

the single test condition results used to 

identify these sources as best 

performing, and that without taking this 

additional variability into account, best 

performing sources would be unable to 

achieve the floor standard reflecting 

their own performance in those single 

test conditions.72

2. Universal Variability Factor for 

Particulate Emissions Controlled with a 

Fabric Filter 

Comment: One commenter states that, 

in calculating the universal variability 

factor (UVF) to account for total 

variability—test-to-test variability and 

within-test variability—for sources 

controlling particulate matter with a 

fabric filter, it appears that EPA 

considered the variability of sources 

that are not best performing sources. If 

so, EPA has contravened the law. 

The commenter also states that EPA’s 

attempt to use a variability factor 

derived from an analysis of variability of 

multiple sources is unlawful. If EPA 

considers variability at all, it must 

consider the relevant source’s 

variability. 

Response: We developed the 

particulate matter UVF for sources 

equipped with a fabric filter using data 

from best performing sources only.73

It is reasonable to aggregate 

particulate matter emissions data across 

source categories for all best performing 

sources equipped with a fabric filter 

because the relationship between 

standard deviation and emissions of 

particulate matter is not expected to be 

impacted by the source category type.74

Rather, particulate emissions from fabric 

filters are a function of seepage (i.e., 

migration of particles through the filter 

cake) and leakage (i.e., particles leaking 

through pores, channels, or pinholes 

formed as the filter cake builds up). The 

effect of seepage and leakage on 

emissions variability should not vary 

across source categories.75 Put another 

way, fabric filter particulate matter 

reduction is relatively independent of 

inlet loadings to the fabric filter. 69 FR 

21233. This is confirmed by the fact that 

there are no operating parameters that 

can be readily changed to increase 

emissions from fabric filters, id., so 

control efficiencies reflected in test 

conditions from different source types 

will still accurately reflect fabric filter 

control efficiency. 

3. Test-to-Test Variability 

Comment: Several commenters state 

that EPA seems to have ignored test-totest variability resulting from changes 

that occur over time such as: normal 

and natural changes in a wide variety of 

factors related to process operation, 

fuels, raw materials, air pollution 

control equipment operation and 

design, and differences in emissions 

testing equipment, sampling crews, 

weather, analytical laboratories or 

laboratory technicians. All these sources 

of variation are expected in that they are 

typical and are not aberrations. In 

addition, there are unexpected sources 

of variability that occur in real-world 

operations, which also must be 

accommodated according to 

commenters. 

Commenters state that using 

compliance test data and assessing 

within-test condition variability (i.e., 

run variance) do not fully account for 

test-to-test variability and thus 

understates total variability. 

Consequently, the average of the best 

performing sources may not be able to 

achieve the same emission level under 

a MACT performance test when 

attempting to operate under the same 

conditions as it did during the 

compliance test EPA used to establish 

the floor. Even though sources generally 

operated at the extreme high end of the 

range of normal operations during the 

compliance tests EPA uses to establish 

the standards, the average of the best 

performing sources would need to 

operate under those same compliance 

test conditions to establish the same 

operating envelope—the operating 

envelope needed to ensure the source 

can operate under the full range of 

normal emissions. 

Response: We agree with commenters 

that we have not quantified test-to-test 

variability when establishing the floors 

for standards other than particulate 

matter where a best performing source 

uses a fabric filter. We are able to 

quantify only within-test variability 

(i.e., run-to-run variability) for the other 

floors, which is only one component of 

total variability. This is one reason we 

use the SRE/Feed approach wherever 

possible rather than a straight emissions 

approach to rank the best performing 

sources to calculate the floor—the SRE/ 

Feed ranking approach derives floors 

that better estimate the levels of best 

performing sources’ performance. See 

also discussion in Part Four, Section 

III.A, and the discussion below 

documenting that test-to-test variability 

can be substantial. 

Comment: One commenter states that 

EPA should use the universal variability 

factor (UVF) that accounts for total 

variability for particulate matter 

controlled with a fabric filter to derive 

a correction factor to account for the 

missing test-to-test variability 

component of variability for 

semivolatile metals and low volatile 

metals. The commenter then suggests 

that the within-test variability for 

semivolatile and low volatile metals be 

adjusted upward by the correction factor 

to correct for the missing test-to-test 

variability component. 

The commenter focused on cement 

kilns and compared the total variability 

imputed from the UVF for the three 

cement kiln facilities used to establish 

the UVF to the within-test variability 

(i.e., run variance) for each facility. The 

commenter determined that, on average 

for the three facilities, total variability 

was a factor of 4.2 higher than withintest variability. Because semivolatile 

and low volatile metals are also 

controlled with a fabric filter, the 

commenter suggested that the total 

variability of particulate matter could be 

used as an estimate of the total 

variability for semivolatile and low 

volatile metals. Thus, the commenter 

suggested that the within-test condition 

variability for semivolatile and low 

volatile metals be increased by a factor 

of 4.2 to account for total variability 

when calculating floors. 

Response: As stated throughout this 

preamble, we believe that there is 

variability in addition to within-test 

condition (i.e., run-to-run) variability 

that we cannot quantify—that we refer 

to as test-to-test variability. We also do 

not believe this test-to-test variability is 

captured by compliance test operating 

conditions as discussed above, and thus 

establishing the floor using emissions 

data representing the extreme high end 

of the range of normal emissions does 

not account for test-to-test variability. 

We disagree, however, with the 

commenter’s attempts to quantify the 

remaining test-to-test variability for 

floors other than particulate matter 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59441 

76We note, however, that an argument could be 

made for using a source or condition-specific 

correction factor rather than averaging the 

correction factors for all sources within a source 

category. 

77We infer that the commenter suggests that we 

use this correction factor for semivolatile and low 

volatile metals controlled by both electrostatic 

precipitators and fabric filters since the majority of 

cement kilns are equipped with electrostatic 

precipitators. 

where all best performing sources are 

equipped with fabric filters. 

We generally agree with the 

commenter’s approach for extracting the 

test-to-test component of variability 

using the UVF curve for particulate 

matter controlled with a fabric filter.76

The commenter has documented that for 

cement kilns, test-to-test variability of 

particulate emissions controlled with a 

fabric filter is on average a factor of 4.2 

higher than within-test variability. 

We believe the commenter’s 

suggestion to adopt this correction 

factor to semivolatile and low volatile 

metals is technically flawed and for 

several reasons would present statistical 

difficulties. First, total variability for 

semivolatile metals and low volatile 

metals controlled with a fabric filter can 

be different from the total variability of 

particulate matter controlled with a 

fabric filter because: (1) The test 

methods are different (i.e., Method 5 for 

particulate matter and Method 29 for 

metals) and thus sample extraction and 

analysis methods differ; (2) the factors 

that affect partitioning of particulate 

matter to combustion gas (i.e., 

entrainment) are different from the 

factors that affect semivolatile metal 

partitioning to the combustion gas (i.e., 

metal volatility); and (3) the volatility of 

semivolatile metals is affected by 

chlorine feedrates. 

Second, adopting a variability factor 

applicable to fabric filters for use on 

electrostatic precipitators 77 is 

problematic because both test-to-test 

and within-test variability of these 

emission control devices can be vastly 

different. Factors that affect emissions 

variability for sources equipped with a 

fabric filter include: (1) Bag wear and 

tear due to thermal degradation and 

chemical attack; and (2) variability in 

flue gas flowrate. Factors that affect 

emissions variability for sources 

equipped with an electrostatic 

precipitator are different (see discussion 

in Section III.B above) and include: 

variations in particle loading and 

particle size distribution, erosion of 

collection plates, and variation in fly 

ash resistivity due to changes 

atmospheric moisture and in sulfur 

feedrate (e.g. different type of coal). 

Finally, the approach raises several 

difficult statistical questions including: 

(1) What is the appropriate number of 

runs to use to identify the degrees of 

freedom and the t-statistic in the floor 

calculations (e.g., should we use the 

number of runs available for metals 

emissions for the source or the number 

of runs available for particulate matter 

emissions from which the correction 

factor is derived); and (2) should we use 

a generic correction factor for all source 

categories or calculate source categoryspecific or source-specific correction 

factors. 

For these reasons, we believe the 

approach we use for quantifying 

baghouse particulate matter collection 

variability is not readily transferable to 

other types of control devices and other 

HAP. We therefore are not applying a 

quantified correction factor in the final 

rule but rather are using a MACT 

ranking methodology that qualitatively 

accounts for total emission variability, 

notably test-to-test variability. 

B. SRE/Feed Methdology 

1. Description of the Methodology 

As proposed, we are using the System 

Removal Efficiency (SRE)/Feed 

approach to determine the pool of best 

performing sources for those HAP 

whose emissions can be controlled in 

part by controlling the hazardous waste 

feed of the HAP—that is, controlling the 

amount of HAP in the hazardous waste 

fed to the source. These are HAP metals 

and chlorine. Our basic approach is to 

determine the sources in our database 

with the lowest hazardous waste 

feedrate of the HAP in question (semivolatile metals, low volatile metals, 

mercury, or chlorine), and the sources 

with the best system removal efficiency 

for the same HAP. The system removal 

efficiency is a measure of the percentage 

of HAP that is removed prior to being 

emitted relative to the amount fed to the 

unit from all inputs (hazardous waste, 

fossil fuels, raw materials, and any other 

input). The pool of best performing 

sources are those with the best 

combination of hazardous waste 

feedrate and system removal efficiency 

as determined by our ranking 

procedure, separate best performer 

pools being determined for each HAP in 

question (SVM, LVM, mercury, and 

chlorine), reflecting the variability 

inherent in each of these ranking factors 

(see A.2.a.(1) above). We then use the 

emission levels from these sources to 

calculate the emission level achieved by 

the average of the best performing 

sources, as also explained in the 

previous section. This is the MACT 

floor for the HAP from the source type. 

For new sources, we use the same 

methodology but select the emission 

level (adjusted statistically to account 

for quantifiable variability) of the source 

with the best combined ranking. A more 

detailed description of the methodology 

is found in Volume III of the Technical 

Support Document, section 7.3. 

This methodology provides a 

reasonable estimate of the best 

performing sources and their level of 

performance for HAP susceptible to 

hazardous waste feed control. As 

required by section 112(d)(2), EPA has 

considered measures that reduce the 

volume of emissions through process 

changes, or that prevent pollutant 

release through capture at the stack, and 

assessed how these control measures are 

used in combination. Section 

112(d)(2)(A), (C) and (E). Hazardous 

waste feed control is clearly a process 

change that reduces HAP emissions; air 

pollution control systems collect 

pollutants at the stack. These are the 

best systems and measures for 

controlling HAP emissions from 

hazardous waste combustors. 69 FR at 

21226. In considering these factors, EPA 

has necessarily considered such factors 

as design of different air pollution 

control devices, waste composition, 

pollution control operator training and 

behavior, and use of pollution control 

devices and methodologies in 

combination. CKRC, 255 F. 3d at 864–

65 (noting these as factors, in addition 

to a particular type of air pollution 

control device, that can influence 

pollution control performance); 69 FR at 

21223 n. 47 (system removal efficiency 

measures all internal control 

mechanisms as well as back-end 

emission control device performance). 

EPA also believes that this 

methodology reasonably estimates the 

best performing sources’ level of 

performance by accounting for these 

sources’ total variability, including their 

performance over time. The 

methodology quantifies run-to-run 

variability. See 69 FR at 21232–33. It 

does not quantify test-to-test variability 

because we are unable to do so for these 

pollutants. (See sections A. 2.a.(2) and 

3 above.) Although all variability must 

be accounted for when calculating 

floors, the only definitive way to 

accurately quantify this test-to-test 

emissions variability is through 

evaluation of long-term continuous 

emissions monitoring data, which do 

not presently exist. We believe, 

however, that SRE/Feed methodology 

provides some margin for estimating 

this additional, non-quantifiable 

variability. This is illustrated in the 

technical support document (volume III 

section 17), which clearly shows that 

the straight emissions approach 

underestimates (indeed, fails to account 

59442 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

78At proposal, we conducted a technical analysis 

to determine potential subcategorization options. 

We then conducted an analysis to determine if 

these different types of sources exhibited 

statistically different emissions. Although EPA in 

the end determined that these source categories 

should not be subcategorized further, this decision 

was based in part because the SRE/Feed 

methodology better accounts for the range of 

emissions from the best performing sources for 

these diverse combustion types. See USEPA, 

‘‘Technical Support Document for the HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ September 2005, Section 4, for an 

explanation of the subcategorization assessment, 

which includes examples of anomalous floor results 

for certain subcategorization approaches. 

79See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Appendix C, 

Table ‘‘E_INC_SVMCT’’ and, to determine relative 

feed control and SRE rankings for these sources, 

Appendix E Table ‘‘SF_INC_SVMCT’’. 

80Source 340 had a semivolatile metal feed 

control MTEC of 892 μg/dscm, whereas source 327 

had a semivolatile metal feed control MTEC of 

3,080,571 μg/dscm. 

81See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 17.4 

for) lower emitting sources’ long-term 

emissions variability. These lower 

emitting sources that would otherwise 

not meet the floor levels on individual 

days under the straight emission 

approach would be able (or otherwise 

are more capable) to do so under the 

SRE/feed approach. 

EPA further believes that the SRE/ 

Feed methodology appropriately 

accounts for design variability that 

exists across sources for categories, like 

those here, which consist of a diverse 

and heterogeneous mixture of sources. 

This is especially true of incinerators 

and boilers, for which there are smaller 

on-site units that are located at widely 

varying industrial sectors that 

essentially combust single, or multiple 

wastestreams that are specific to their 

industrial process, and off-site 

commercial units dealing with many 

different wastes of different origins and 

HAP metal and chlorine composition. 

EPA believes that these variations are 

best encompassed in the SRE/Feed 

approach, rather than with a 

subcategorization scheme that could 

result in anomalous floor levels because 

there are fewer sources in each source 

subcategory from which to assess 

relative performance.78 See Mossville, 

370 F. 3d at 1240 (upholding floor 

methodology involving reasonable 

estimation, rather than use of emissions 

data, when sources in the category have 

heterogeneous emission characteristics 

due to highly variable HAP 

concentrations in feedstocks). 

Use of the SRE/Feed approach also 

avoids basing the floor standards on a 

combination of the lowest emitting low 

feeding sources and the lowest emitting 

high feeding sources. For example, the 

five lowest emitting incinerators for 

semivolatile metals that would comprise 

the MACT pool using a straight 

emissions methodology include three 

sources that are the first, second, and 

fourth lowest feeding sources among all 

the incinerators.79 The other two best 

performing incinerators have the first 

and second best system removal 

efficiencies (and the highest two metal 

feedrates). It is noteworthy that the 

highest feed control level among these 

best performing sources is over three 

orders of magnitude higher than the 

feed control level of the lowest feeding 

best performing source.80 Establishing 

limits dominated by both superior feed 

control sources and back-end controlled 

sources would result in floor levels that 

are not reflective of the range of 

emissions exhibited by either low 

feeding sources or high feeding sources 

and would more resemble new source 

standards for both of these different 

types of combustors. Such floors could 

lead to situations, for example, where 

commercial sources could find it 

impracticable to achieve the standards 

without reducing the overall scope of 

their operations (since the standard 

could operate as a direct constraint on 

the amount of hazardous waste that 

could be fed to the device, in effect 

depriving a combustion source of its 

raw material). Similarly, low feeding 

sources that cannot achieve this floor 

level may be required to add expensive 

back-end control equipment that would 

result in minimal emission reductions, 

likely forcing the smaller on-site source 

to cease hazardous waste treatment 

operations and to instead send the waste 

to a commercial treatment unit. 

The inappropriateness of a straight 

emissions-based approach for feed 

controlled pollutants for commercial 

hazardous waste combustors is further 

highlighted by the fact that several 

commercial hazardous waste 

combustors that are achieving the 

design level of the particulate matter 

standard are not achieving the 

semivolatile and/or low volatile metals 

straight emissions based design level, 

and, in some instances, floor level.81

This provides further evidence that low 

feeding sources are in fact biasing some 

of the straight emissions-based floors to 

the extent that even the sources with the 

most efficient back-end control devices 

would be incapable of achieving the 

emission standards calculated on a 

straight emission basis. 

These results are inconsistent with 

the intent of the section 112 (d) (see 2 

Legislative History at 3352 (House 

Report) stating that MACT is not 

intended to drive sources out of 

business). Standards that could force 

commercial sources to reduce the 

overall scope of their operations are also 

inconsistent with requirements and 

objectives of the Resource Conservation 

and Recovery Act to require treatment of 

hazardous wastes before the wastes can 

be land disposed, and to encourage 

hazardous waste treatment. RCRA 

sections 3004 (d), (e), (g) and 1003 (a) 

(6); see also section 112 (n) (7) of the 

CAA, stating that section 112 (d) MACT 

standards are to be consistent with 

RCRA subtitle C emission standards for 

the same sources to the maximum 

extent practicable (consistent with the 

requirements of section 112 (d)); 

moreover, EPA doubts that a standard 

which precludes effective treatment 

mandated by a sister environmental 

statute must be viewed as a type of best 

performance under section 112 (d). The 

SRE/Feed methodology avoids this 

result by always considering hazardous 

waste feed control in combination with 

system removal efficiency and 

according equal weight to both means of 

control in the ranking process. 

It is also important to emphasize what 

the SRE/Feed methodology does not 

evaluate: Feed control of HAP in fossil 

fuel or raw material inputs to these 

devices. Emission reduction of these 

HAP are controllable by back-end 

pollution control devices which remove 

a given percentage of pollutants 

irrespective of their origin and is 

assured by the system removal 

efficiency portion of the methodology, 

as well as through the particulate matter 

standard (see section IV.A below). Feed 

control of these inputs is not a feasible 

means of control, however. HAP content 

in raw materials and fossil fuel can be 

highly variable, and so cannot even be 

replicated by a single source. Raw 

material and fossil fuel sources are also 

normally proprietary, so other sources 

would not have access to raw material 

and fossil fuel available (in its 

performance test) to a source with low 

HAP fossil fuel and raw material inputs. 

Such sources would thus be unable to 

duplicate these results. Moreover, there 

are no commercial-scale pretreatment 

processes available for removing or 

reducing HAP content in raw materials 

or fossil fuels to these units. See 

technical support document volume III 

section 17.5 and 25; see also 69 FR at 

21224 and n. 48. 

2. Why Aren’t the Lowest Emitters the 

Best Performers? 

Some commenters nonetheless argue 

that best performing sources can only 

mean sources with the lowest HAP 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59443 

82 In fact, many of the sources identified as best 

performing under the SRE/Feed methodology are 

also the lowest emitting, although this is not 

invariably the case. 

83Best performing sources pursuant to the 

straight emissions methodology are projected to be 

unable to achieve the levl of their of their 

performance test emissions even after they are 

adjusted upward to account for run-to-run 

variability. 

emissions, and that the SRE/Feed 

methodology is therefore flawed 

because it does not invariably select 

lowest emitters as best performers.82

The statute does not compel this result. 

There is no language stating that lowest 

emitting sources are by definition the 

best performers. The floor for existing 

sources is to be based on the average 

emission limitation achieved by the 

‘‘best performing’’ 12 per cent of 

sources. Section 112(d)(3)(A). This 

language does not specify how ‘‘best 

performing’’ is to be determined: by 

means of emission level, emission 

control efficiency, measured over what 

period of time, etc. See Sierra Club v. 

EPA, 167 F. 3d at 661 (language of floor 

requirement for existing sources ‘‘on its 

own says nothing about how the 

performance of the best units is to be 

calculated’’). Put another way, this 

language does not answer the question 

of which source is the better performing: 

one that emits 100 units of HAP but also 

feeds 100 units of that HAP, or one that 

emits 101 units of the HAP but feeds 

10,000 units. See 69 FR at 21223. 

Moreover, new source floors are to be 

based on the performance of the ‘‘best 

controlled’’ similar source achieved in 

practice. Section 112(d)(3). ‘‘Best 

controlled’’ can naturally be read to 

refer to some means of control such as 

system removal efficiency as well as to 

emission level. 

Use of a straight emissions approach 

to identify floor levels can lead to 

arbitrary results. Most important, as 

explained above, it leads to standards 

which cannot be achieved consistently 

even by the best performing sources 

because operating variability is not 

accounted for. This is shown in section 

17 of volume III of the technical support 

document. These analyses show that (a) 

emissions from these sources do in fact 

vary from test-to-test, and that no two 

snapshot emission test results are 

identical; (b) our statistical approach 

that quantifies within test, run-to-run 

variability underestimates the best 

performing sources’ long term, test-totest variability; 83 (c) best performing 

sources under the straight emissions 

approach advocated by the commenter 

(i.e. the lowest emitting sources) had 

other test conditions that did not 

achieve straight emission floor levels; 

(d) best performing sources under the 

straight emissions approach are 

projected, based on two separate 

analyses using reasonable assumptions, 

not to achieve the straight emissions 

floor standard based on these sources’

demonstrated variations in system 

removal efficiencies over time (i.e., from 

test-to-test); and (e) SRE/feed 

methodology yields floor levels (i.e. the 

floor standards in the rule) that better 

estimate the emission levels reflecting 

the performance over time of the best 

performing sources. See Mossville, 370 

F. 3d at 1242 (floor standard is 

reasonable because it accommodated 

best performing source’s highest level of 

performance (i.e. its total variability), 

even though the level of the standard 

was higher than any individual 

measurement from that source). 

As noted earlier, the straight 

emissions methodology can also limit 

operation of commercial units because 

the standard reflects a level of 

hazardous waste feed control which 

could force commercial units to burn 

less hazardous waste because such 

standards more resemble new source 

standards. The straight emissions 

methodology also arbitrarily reflects 

HAP levels in raw materials and fossil 

fuels, an infeasible means of control for 

any source. 

Another arbitrary, and indeed 

impermissible, result of the straight 

emissions methodology is that in some 

instances (noted in responses below) the 

methodology results in standards which 

would force sources identified as best 

performing to install upgraded air 

pollution control equipment. This result 

undermines section 112 (d) (2) of the 

statute, by imposing what amounts to a 

beyond the floor standard without 

consideration of the beyond the floor 

factors: the cost of achieving those 

reductions, as well as energy and nonair 

environmental impacts. 

Comment: The commenter states that 

because MACT floors must reflect the 

‘‘actual performance’’ of the relevant 

best performing hazardous waste 

combusters, this means that the lowest 

emitters must be the best performers. 

The commenter cites CKRC v. EPA, 255 

F. 3d at 862 and other cases in support. 

Response: As explained in the 

introduction above, the statute does not 

specify that lowest emitters are 

invariably best performers. Nor does the 

caselaw cited by the commenter support 

this position. The D.C. Circuit has held 

repeatedly that EPA may determine 

which sources are best performing and 

may ‘‘reasonably estimate’’ the 

performance of the top 12 percent of 

these sources by means other than use 

of actual data. Mossville, 370 F. 3d at 

1240–41 (collecting cases). In Mossville, 

sources had varying levels of vinyl 

chloride emissions due to varying 

concentrations of vinyl chloride in their 

feedstock. Individual measurements 

consequently did not adequately 

represent these sources’ performance 

over time. Not-to-exceed permit limits 

thus reasonably estimated sources’

performance, corroboration being that 

individual sources with the lowest longterm average performance occasionally 

came close to exceeding those permit 

limits. Id. at 1241–42. The facts are 

similar here, since our examination of 

best performing sources with multiple 

test conditions likewise shows instances 

where these sources would be unable to 

meet floors established based solely on 

lowest emissions (including their own). 

As here, EPA was not compelled to base 

the floor levels on the lowest measured 

emission levels. 

Comment: The same commenter 

maintains that it is clear from the 

caselaw that MACT floors must reflect 

the relevant best performing sources’

‘‘actual performance’’, and that this 

must refer to the emissions level it 

achieves. 

Response: As just stated, the D.C. 

Circuit has repeatedly stated that EPA 

may make reasonable estimates of 

sources’ performance in assessing both 

which sources are best performing and 

the level of their performance. The court 

has further indicated that EPA is to 

account for variability in assessing 

sources’ performance for purposes of 

establishing floors, and this assessment 

may require that EPA make reasonable 

estimates of performance of best 

performing sources. CKRC, 255 F. 3d at 

865–66; Mossville, 370 F. 3d at 1241–42. 

See discussion in A.1.a above. 

Comment: The commenter generally 

maintains that EPA’s floor approaches 

consider only the performance of backend pollution control technology and so 

fail to capture other means of HAP 

emission control that otherwise would 

be captured if EPA were to assess 

performance based on the emission 

levels each source achieved. 

Response: EPA agrees that factors 

other than end-of-stack pollution 

control can affect metal HAP and 

chlorine emissions. This is why EPA 

assesses performance for these HAP by 

considering combinations of system 

removal efficiency (which measures 

every element in a control system 

resulting in HAP reduction, not limited 

to efficiency of a control device), and 

hazardous waste HAP feed control. 

Standards for dioxins and other organic 

HAP (which have no hazardous waste 

feed control component) likewise assess 

every element of control. 

59444 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

84Although this language arose in the context of 

a potential beyond-the-floor standard, EPA believes 

that the principle stated is generally applicable. 

MACT standards, after all, are technology-based, 

and if there is no technology (i.e. no avaialble 

means) to achieve a standard—i.e. for a soruce to 

achieve a standard whenever it is tested (as the 

rules require)—then the standard is not an 

achieveable one. 

85Analysis of the levels of HAP in raw matrial 

and nonhazardous waste fuels suggests that this is 

a realistic outcome. Our analysis shows that 

emissions attributable to raw material and fossil 

fuel can be significant relative to the level of the 

straight emissions-based floor design level and floor 

(the methodology advocated by the commenter), 

and therefore could inappropriately impact a 

sournce’s ability to comply with such a floor 

standard. See USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards,’’ September 2005, 

Section 17.6. 

86See, for example, 69 FR at 21252, where we 

discuss the use of fuel-switching or raw material 

substitution as a possible beyond-the-floor control 

for mercury at cement kilns. 

87See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards, September 2005, Sections 11 and 

25, for further discussion. 

EPA also accounts for the variability 

of HAP levels in the (essential) use of 

raw materials and fossil fuels by 

assessing performance of back-end 

control but not evaluating fuel/raw 

material substitution, which, as 

discussed later in the response to 

comments section, are infeasible means 

of control. Mossville, 370 F. 3d at 1241–

42, is instructive on this point. The 

court held that the constant change in 

raw materials justified EPA’s use of a 

regulatory limit to estimate a floor level. 

The reasonableness of this level was 

confirmed by showing that the highest 

individual data point of a best 

performing source was nearly at the 

level of the regulatory limit. Under the 

commenter’s approach, the court would 

have had no choice but to hold that the 

level the source achieved in a single test 

result using ‘clean’ raw materials—i.e. 

the ‘level achieved’ in the commenter’s 

language—dictated the floor level. 

See part four, section III.C for EPA’s 

response to this comment as it relates to 

the methodologies for the particulate 

matter standard and total chlorine 

standard for hydrochloric acid 

production furnaces. 

Comment: The commenter notes that 

the SRE/Feed methodology does not 

account for all HAP emissions, failing to 

account for metal and chlorine feedrates 

in raw materials and fossil fuels. 

Response: The methodology does not 

assess the effect of feed ‘‘control’’ of 

HAP levels in raw materials or fossil 

fuels which may be inputs to the 

combustion units. This is because such 

control may not be replicable by an 

individual source, or duplicable by any 

other source. See 69 FR at 21224 and n. 

48; Sierra Club v. EPA, 353 F. 3d 976, 

988 (‘‘substitution of cleaner ore stocks 

was not * * * a feasible basis on which 

to set emission standards. Metallic 

impurity levels are variable and 

unpredictable both from mine to mine 

and within specific ore deposits, 

thereby precluding ore-switching as a 

predictable and consistent control 

strategy’’).84 EPA’s methodology does 

account for HAP control of all inputs by 

assessing system removal efficiency, 

which measures reductions of HAPs in 

all inputs (including fossil fuel and raw 

materials) to a hazardous waste 

combustion unit. Further, nonmercury 

metal HAP emissions attributable to raw 

materials and fossil fuels are effectively 

controlled with the particulate matter 

standard, a standard that is based on the 

sources with best back-end control 

devices. The only element which is not 

controlled is what cannot be: HAP 

levels in feeds for which fuel or raw 

material switching is simply not an 

available option. 

Comment: The commenter further 

maintains, however, that the means by 

which sources may be achieving levels 

of performance are legally irrelevant 

(citing National Lime Ass’n v. EPA, 233 

F. 3d 625 , 634 and 640 (D.C. Cir. 2000)). 

The fact that sources with ‘‘cleaner’’ raw 

material and fossil fuel inputs may not 

intend to have resulting lower HAP 

emissions is therefore without legal 

bearing. 

Response: The issue here is not one of 

intent. The Court, in National Lime, 

rejected the argument that sources’ lack 

of intent to control a HAP did not 

preclude EPA from establishing a 

section 112(d) standard for that HAP. 

See 233 F. 3d at 640, rejecting the 

argument that HAP metal control 

achieved by use of back-end control 

devices (baghouses) could not be 

assessed by EPA because the sources 

used the back-end control devices to 

control emissions of particulate matter. 

The case did not consider the facts 

present here, where the issue is not a 

source’s intent, but rather a means of 

control which involves happenstance 

(composition of HAP in raw materials 

and fossil fuel used the day the test was 

conducted) and so is neither replicable 

nor duplicable. 

National Lime also held that EPA 

must establish a section 112(d) emission 

standard for every HAP emitted by a 

major source. 233 F. 3d at 634. EPA is 

establishing emission standards for all 

HAP emitted by these sources. In 

establishing these standards, EPA is not 

evaluating emission reductions 

attributable to the type of fossil fuel and 

raw material used in the performance 

tests, because this is not a ‘‘feasible 

basis on which to set emission 

standards.’’ Sierra Club, 353 F. 3d at 

988. 

EPA thus does not agree with this 

comment because the issue is not a 

source’s intent but rather whether or not 

to assess emission reductions from 

individual test results which reflect an 

infeasible means of control. 

Comment: The commenter maintains, 

however, that even if individual sources 

(including those in the pool of best 

performing sources) cannot reduce HAP 

concentrations in raw materials and 

fossil fuels, they may achieve the same 

reductions by adding back-end 

pollution control. Nothing in section 

112(d)(3) says that sources have to use 

the means of achieving a level of 

performance that other best performing 

sources used. 

Response: The thrust of this comment 

is essentially to impermissibly bypass 

the beyond-the-floor factors set out in 

section 112(d)(2) under the guise of 

adopting a floor standard. Suppose that 

EPA were to adopt a floor standard 

dominated by emission levels reflecting 

HAP concentrations present in a few 

sources’ raw materials and fossil fuels 

during their test conditions. Suppose 

further that some sources have to 

upgrade their back-end control 

equipment to operate at efficiencies 

better than the average level 

demonstrated by the best performing 

sources, because test results based on 

fossil fuel and raw material levels are 

neither replicable nor duplicable. In this 

situation, EPA believes that it would 

have improperly adopted a beyond-thefloor standard because EPA would have 

failed to consider the beyond-the-floor 

factors (cost, energy, and nonair 

environmental impacts) set out in 

section 112(d)(2).85

Comment: EPA has not substantiated 

its claim that sources cannot switch 

fossil fuels or raw materials. 

Response: At proposal we evaluated 

fuel switching and raw material 

substitution as beyond-the-floor 

technologies for cement kilns and 

lightweight aggregate kilns and stated 

these technologies would not be cost 

effective.86 We also discussed why fuel 

switching is not an appropriate floor 

control technology for solid fuel-fired 

boilers. 69 FR at 21273. Upon further 

evaluation, we again conclude that fuel 

switching and raw material substitution 

are not floor control technologies and 

are not cost effective beyond-the-floor 

technologies for cement kilns, 

lightweight aggregate kilns, and solid 

fuel-fired boilers.87

Comment: EPA has failed to 

document the basis for its SRE ranking. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59445 

88See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume II: Database,’’

September 2005, Section 2, for further discussion 

on system removal efficiencies, which includes 

sample calculations and references to the database 

that contain the calculated system removal 

efficiencies for each source and each HAP or HAP 

group. 

Specifically, EPA has not stated how it 

measured sources’ SREs, or how it 

knows those rankings are accurate. 

Response: System removal efficiency 

is a parameter that is included in our 

database that is calculated by the 

following formula: 

SRE total HAP mass feedrate stack gas= × ( ) − 100

 HAP mass emission rate

total HAP mass feedrate

 ( )  



The HAP feedrate and emission data 

are components of the database that 

were extracted from emission test 

reports for each source. We use system 

removal efficiency for each relevant 

pollutant or pollutant group (e.g., 

semivolatile metals, low volatile metals, 

mercury, total chlorine) whenever the 

data allows us to calculate a reliable 

system removal efficiency. For example, 

we generally do not use system removal 

efficiencies that are based on normal 

emissions data because of the concern 

that normal feed data are too sensitive 

to sampling and measurement error. See 

69 FR at 21224.88

The system removal efficiencies used 

in our ranking process are reliable and 

accurate because the feed and emissions 

data originate from compliance tests 

that demonstrate compliance with 

existing emission standards (primarily 

RCRA requirements). As such, the data 

are considered to have excellent 

accuracy and quality. RCRA trial burn 

and certification of compliance reports 

are typically reviewed in detail by the 

permitting authority. The compliance 

tests and test reports generally contain 

the use of various quality assurance 

procedures, including laboratory, 

method, and field blanks, spikes, and 

surrogate samples, all of which are 

designed to minimize sampling and 

analytical inaccuracies. EPA also 

noticed the data base for this rule for 

multiple rounds of comment and has 

made numerous changes in response to 

comment to assure accuracy of the 

underlying data. Thus, EPA concludes 

the calculated system removal 

efficiencies used in the ranking process 

are both reliable and accurate. 

Comment: EPA’s approach with 

regard to use of stack data is internally 

contradictory. EPA uses stack data in 

establishing floors, but does not use 

stack data to determine which 

performers are best. EPA has failed to 

explain this contradiction. 

Response: Emission levels are used to 

calculate system removal efficiencies in 

order to assess each source’s relative 

back-end control efficiency. Also, as 

explained in the introduction to this 

comment response section, the SRE/ 

Feed methodology uses the stack 

emission levels of the sources using the 

best combinations of hazardous waste 

feed control and system-wide air 

pollution control (expressed as HAP 

percent removal over the entire system) 

to calculate the floors. The data are 

adjusted statistically to account for 

quantifiable forms of variability (run-torun variability). This methodology 

reasonably selects best performing 

sources (for HAP amenable to these 

means of control), and reasonably 

estimates these sources’ performance 

over time. As further stated in section 

B.2 above, using a straight emissions 

approach to identify best performers 

and their level of performance can lead 

to standards for these HAP that do not 

fully account for variability (including 

variability resulting from varying and/or 

uncontrollable amounts of HAP in raw 

materials and fossil fuels) and could 

force installation of de facto beyond-thefloor controls without consideration of 

the section 112(d)(2) beyond-the-floor 

factors. 

EPA thus does not see the 

contradiction expressed by the 

commenter. Use of the straight 

emissions approach as advocated by the 

commenter would lead to standards that 

do not reasonably estimate sources’

performance and which could not be 

achieved even by the best performers 

with individual test conditions below 

the average of the 12 percent of best 

performing sources. These problems 

would be compounded many-fold if the 

data were not normalized and adjusted 

to at least account for quantifiable 

variability, steps the commenter also 

opposes. EPA’s use of emissions data 

(suitably adjusted) after identifying best 

performers through the ranking 

methodology avoids these problems and 

reasonably estimates best performers’

level of performance. 

Comment: The commenter rejects 

EPA’s finding (69 FR at 21226) that 

individual test results in the data base 

do not fully express the best performing 

sources’ performance. The commenter 

gives a number of reasons for its 

criticisms, which we answer in the 

following sequence of comments listed 

a though f. 

a. Comment: The commenter states 

that EPA claims emission levels do not 

fully reflect variability in part because 

they are sometimes based on tests where 

the source was feeding low levels of 

HAP during the test. The commenter 

claims this is inconsistent with the fact 

that EPA preferentially uses worst-case 

emissions obtained from tests where the 

sources spiked their feedstreams with 

metals, and that the mere possibility 

that these emissions do not reflect test 

data from conditions where variability 

was not maximized does not mean those 

data fail to represent a source’s actual 

performance. The commenter also states 

that ‘‘EPA’s apparent suggestion that the 

best performing sources could not 

replicate the average performance of the 

sources with the lowest emissions is 

unsubstantiated and unexplained. 

Assuming that EPA accurately assesses 

a source’s actual performance, the 

source can replicate that performance.’’

Response: HAPs in raw materials and 

fossil fuels contribute to a source’s 

emissions. EPA has concerns that a 

straight emissions approach to setting 

floors may not be replicable by the best 

performing sources nor duplicable by 

other non-best performing sources 

because of varying concentration levels 

of HAP in raw material and 

nonhazardous waste fuels. The best 

performing sources operated under 

compliance test conditions as the 

commenter suggests. However, raw 

material and nonhazardous fuel HAP 

concentrations for the best performing 

sources will change over time, perhaps 

due to a different source of fuel or raw 

material quarry location, which could 

affect their ability to achieve the floor 

level that was based on emissions 

obtained while processing different 

fossil fuel or raw materials. EPA takes 

sharp issue with the commenter’s 

statement that a single performance test 

result is automatically replicable so long 

as it is measured properly in the first 

instance. This statement is incorrect 

even disregarding HAP contributions in 

raw materials and fossil fuels since, as 

noted previously in section A.2.e, there 

are many other sources of variability 


ER12OC05.000</MATH>
59446 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

89See USEPA, ‘‘Final Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards,’’ September 2005, 

Section 17.6. . 

90These achievability analyses did not account 

for the additional test-to-test variability that we 

cannot quantify. 

91See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume V: Emission 

Estimates and Engineering Costs,’’ September 2005, 

Section 4.2.3 for a discussion that explains how 

such a new source could be designed to achieve the 

new source standards. 

92See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards’’, September 2005, Section 17.4. 

which will influence sources’

performance over time (i.e., in 

subsequent performance tests). 

A straight emissions approach for 

establishing semivolatile and low 

volatile metal floors may result in 

instances where the best performing 

sources would not be capable of 

achieving the standards if their raw 

material and nonhazardous waste fuel 

HAP levels change over time. For each 

cement kiln and lightweight aggregate 

kiln, we estimated the emissions 

attributable to these raw materials and 

fossil fuels assuming each source was 

operating with hazardous waste HAP 

feed and back-end control levels 

equivalent to the average of the best 

performing sources (the difference in 

emissions across sources only being the 

result of the differing HAP levels in the 

nonhazardous waste feeds). The 

analysis shows that emissions 

attributable to these nonhazarous waste 

feedstreams (raw materials and fossil 

fuels) varies across sources, and can be 

significant relative to the level of the 

straight emissions-based floor design 

level and floor, and therefore could 

inappropriately impact a source’s ability 

to comply with the floor standard.89

b. Comment: The commenter states 

that EPA must consider contributions to 

emissions from raw materials and fossil 

fuels, that it is irrelevant if sources from 

outside the pool of best performing 

sources can duplicate emission levels 

reflecting ‘‘cleaner’’ raw materials and 

fossil fuels used by the best performing 

sources, and that sources unable to 

obtain such ‘‘cleaner’’ inputs may 

always upgrade other parts of their 

systems to achieve that level of 

performance. 

Response: As previously discussed, 

EPA’s methodology does account for 

HAP control of all inputs by assessing 

system removal efficiency, which 

measures reductions of HAPs from all 

inputs. Further, nonmercury metal HAP 

emissions attributable to raw materials 

and fossil fuels are effectively controlled 

with the particulate matter standard, a 

standard that is based on the sources 

with lowest emissions from best backend control devices. We are not basing 

any standards on performance of 

sources not ranked as among the best 

performing. 

c. Comment: The commenter disputes 

EPA’s conclusions that failure of 

sources to meet all of the standards 

based on a straight emissions 

methodology at once shows that the 

methodology is flawed. The standards 

are not mutually dependent, so the fact 

that they are not achieved 

simultaneously is irrelevant. There is no 

reason a best performer for one HAP 

should be a best performer for other 

HAP. 

Response: EPA agrees with this 

comment. On reflection, EPA believes 

that because all our standards are not 

technically interdependent (i.e., 

implementation of one emission control 

technology does not prevent the source 

from implementing another control 

technology), the fact that sources are not 

achieving all the standards 

simultaneously does not indicate a flaw 

in a straight emissions approach. See 

Chemical Manufacturers Ass’n, 870 F. 

2d at 239 (best performing sources can 

be determined on a pollutant-bypollutant basis so that different plants 

can be best performers for different 

pollutants). 

d. Comment: Several commenters 

took the opposite position that EPA 

must assure that all existing source 

standards must be achievable by at least 

6 percent of the sources, and that all 

new source standards must be 

achievable by at least one existing 

source. 

Response: As discussed above, we are 

not obligated to establish a suite of 

floors that are simultaneously 

achievable by at least six percent of the 

sources because the standards are not 

technically interdependent. 

Nonetheless, the SRE/Feed methodology 

does result in existing floor levels (when 

combined with the other floor levels for 

sources in the source category) that are 

simultaneously achievable by at least 

six percent of the sources (or, for source 

categories that have fewer than 30 

sources, by at least two or three 

sources).90 However, for the new source 

standards, three of the source categories 

do not include any sources that are 

simultaneously achieving all the 

standards (incinerators, cement kilns, 

and lightweight aggregate kilns). Again, 

similar to existing sources, EPA is not 

obligated to establish a suite of new 

source floors that are simultaneously 

achievable by at least one existing 

source because these standards are not 

technically interdependent. We 

conclude that a new source can be 

designed (from a back-end control 

perspective) to achieve all the new 

source standards.91

e. Comment: The commenter 

criticizes EPA’s discussion at 69 FR 

21227–228 indicating that both 

hazardous waste feed control and backend pollution control are superior 

means of HAP emission control and 

treatment standards should be 

structured to allow either method to be 

the dominant control mechanism. 

Response: EPA is not relying on this 

part of the proposed preamble 

discussion as justification for the final 

rule, with the one exception noted in 

the response to the following comment. 

f. Comment: Considerations of proper 

waste disposal policy are not relevant to 

MACT floor determinations. In any case, 

the possibility that some commercial 

waste combustors may upgrade their 

back-end pollution control systems to 

meet standards reflecting low hazardous 

waste HAP feedrates, or divert wastes to 

better-controlled units, is positive, not 

negative. 

Response: As discussed in section B.1 

above, there are instances where 

standards derived by using a straight 

emissions approach are based on a 

combination of lowest emitting low 

feeding sources and lowest emitting 

higher feeding sources. Resulting floor 

standards would thus reflect these low 

hazardous waste feedrates and could 

put some well-controlled commercial 

incinerators in the untenable situation 

of having to reduce the amount of 

hazardous waste that is treated at their 

source. Our database verifies that such 

an outcome is in fact realistic.92

This type of standard would operate 

as a direct constraint on the amount of 

hazardous waste that could be fed to the 

device, in effect depriving a combustion 

source of its raw material. In this 

instance, hazardous wastes could not be 

readily diverted to other units because 

the low feeding hazardous waste 

sources tend not to be commercial units. 

In these circumstances, there would be 

a significant adverse nonair 

environmental impact. Hazardous waste 

is required to be treated by Best 

Demonstrated Available Technology 

(BDAT) before it can be land disposed. 

RCRA sections 3004 (d), (e), (g), and (m); 

Hazardous Waste Treatment Council v. 

EPA, 866 F. 2d 355, 361 (D.C.Cir. 1990) 

(upholding Best Demonstrated Available 

Technology treatment requirement). 

Most treatment standards for organic 

pollutants in hazardous waste can only 

be achieved by combustion. Leaving 

some hazardous wastes without a 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59447 

93See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards’’, September 2005, Section 4. and 

Appendix C, Table ‘‘E–INC–SVM–CT–COM’’ and 

Table ‘‘E–INC–LVM–CT-COM’’

94See generally USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards’’, September 2005, 

Section 7.4 and 7.5. 

treatment option is in derogation of 

these statutory requirements and goals, 

and calls into question whether a 

treatment standard that has significant 

adverse nonair environmental impacts 

must be viewed as best performing. See 

Portland Cement Ass’n v. Ruckelshaus, 

486 F. 2d 375 , 386 (D.C. Cir. 1973); 

Essex Chemical Co. v. EPAEPA, 486 F. 

2d 427, 439 (D.C. Cir. 1973). The 

commenter’s statement that waste 

disposal policy is not relevant to the 

MACT standard-setting process is not 

completely correct, since section 112 (n) 

(7) of the Clean Air Act directs some 

accommodation between MACT and 

RCRA standards for sources combusting 

hazardous waste. Part of this 

accommodation is using a methodology 

to evaluate best performing sources that 

evaluates as best performers those using 

the best combination of hazardous waste 

feed control (among other things, an 

existing control measure under RCRA 

rules) and system-wide removal. 

We assessed whether we could 

address this issue by subcategorizing 

commercial incinerators and on-site 

incinerators. Applying the straight 

emission approach to such a 

subcategorization scheme, however, 

yields anomalous results due to the 

scarcity of available and complete 

compliance test data from commercial 

incinerators. Calculated floor levels for 

semivolatile metals and low volatile 

metals for the commercial incinerator 

subcategory equate to 2,023 and 111 μg/ 

dscm, respectively (both higher than the 

current interim standards).93 We 

conclude that the SRE/Feed 

methodology better addresses this issue 

because it yields floor levels that better 

represent the performance of the best 

performing commercial incinerators and 

onsite incinerators alike by applying 

equal weights to hazardous waste feed 

control and back-end control in the 

ranking process. 

EPA notes, however, that its choice of 

the SRE/Feed methodology is justified 

independent of considerations of 

adverse impact on hazardous waste 

treatment and disposal. 

Comment: The commenter reiterates 

its comments with respect to floor levels 

for new sources. 

Response: EPA’s previous responses 

to comments apply to both new and 

existing source standards. 

Comment: Two commenters 

recommend that EPA define the single 

best performing source as that source 

with the lowest aggregated SRE/Feed 

aggregated score (as proposed), as 

opposed to the source with the lowest 

emissions among the best performing 

existing sources (an approach on which 

we requested comment). 

Response: We agree with the 

commenters because this is consistent 

with our methodology for defining best 

performers for existing sources and 

assessing their level of performance. We 

note, however, that with respect to the 

new source standards, we encountered 

two instances where the SRE/Feed 

methodology identified multiple 

sources with identical single best 

aggregated scores, resulting in a tie for 

the best performing source. This 

occurred for the mercury and low 

volatile metal new source standards for 

incinerators. In these instances, EPA 

applied a tie breaking procedure that 

resulted in selecting as the single best 

performing source as that source (of the 

tied sources) with the lowest emissions. 

We believe this is a reasonable 

interpretation of section112(d)(3), which 

states the new source standard shall not 

be less stringent than the emission 

control that is achieved in practice by 

the best controlled similar source 

(‘‘source’’ being singular, not plural). 

Moreover, we believe use of the 

emission level as the tie-breaking 

criteria is reasonable, not only because 

it is a measure of control, but because 

we have already fully accounted for 

hazardous waste feedrate control and 

system removal efficiency in the ranking 

methodology. To choose either of these 

factors to break the tie would give that 

factor disproportionate weight. 

C. Air Pollution Control Technology 

Methodologies for the Particulate Matter 

Standard and for the Total Chlorine 

Standard for Hydrochloric Acid 

Production Furnaces 

At proposal, EPA used what we 

termed ‘‘air pollution control 

technology’’ methodologies to estimate 

floor levels for particulate matter from 

all source categories as a surrogate for 

non-mercury HAP metals, and for total 

chlorine from hydrochloric acid furnace 

production furnaces. 69 FR at 21225–

226. Under this approach, we do not 

estimate emission reductions 

attributable to feed control, but instead 

assess the performance of back-end 

control technologies.94 We are adopting 

the same methodologies for these HAP 

in the final rule. Because the details of 

the approaches differ for particulate 

matter and for total chlorine, we discuss 

the approaches separately below. 

1. Air Pollution Control Device 

Methodology for Particulate Matter 

Our approach to establishing floor 

standards for particulate matter raises 

three major issues. 

The first issue is whether particulate 

matter is an appropriate surrogate for 

non-enumerated HAP metals from all 

inputs, and for all non-mercury HAP 

metals in raw material and fossil fuel 

inputs. This issue is discussed at section 

IV.A of this part, where we conclude 

that particulate matter is indeed a 

reasonable surrogate for these metal 

HAP. 

The second issue is why EPA is not 

evaluating some type of feed control for 

the particulate matter floor. There are 

two potential types of feed control at 

issue: hazardous waste feed control of 

nonenumerated metals, and feed control 

of non-mercury HAP metals in raw 

material and fossil fuel inputs. With 

respect to feed control of nonenumerated metals in hazardous waste, 

as discussed in more detail in section 

IV.A of this part, we lack sufficient 

reliable data on non-enumerated metals 

to assess their feedrates in hazardous 

waste. In addition, there are significant 

questions about whether feedrates of the 

non-enumerated metals can be 

optimized along with SVM and LVM 

feedrates. We also have explained 

elsewhere why control of hazardous 

waste ash feedrate would be technically 

inappropriate, since it would not 

properly assess feed control of 

nonenumerated metals in hazardous 

waste. See also 69 FR at 21225. 

We have also explained why we are 

not evaluating control of feedrates of 

HAP metals in raw materials and fossil 

fuels to hazardous waste combusters: it 

is an infeasible means of control. See 

section B of this part. We consequently 

are not evaluating raw material and 

fossil fuel ash feed control in 

determining the level of the various 

floors for particulate matter. 

a. The methodology. The final issue is 

the means by which EPA is evaluating 

back-end control. Essentially, after 

determining (as just explained) that 

back-end control is the means of 

controlling non-mercury metal HAP and 

that particulate matter is a proper 

surrogate for these metals, EPA is using 

its engineering judgment to determine 

what the best type of air pollution 

control device (i.e., back-end control) is 

to control particulate matter (and, of 

course, the contained HAP metals). We 

then ascertain the level of performance 

by taking the average of the requisite 

number of sources (either 12 % or five, 

59448 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

95As explained in the responses below, the 

approach varies slightly if the requisite number of 

sources do not all use the best back-end pollution 

control technology. In that case, EPA includes in its 

pool of best performers the lowest emission levels 

from sources using the next best pollution control 

technology. 

96See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 22. 

97See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 5.3. 

depending on the size of the source 

category) equipped with the best backend control with the lowest emissions.95

These floor standards are therefore 

essentially established using a straight 

emissions methodology. We have 

determined that baghouses (also termed 

fabric filters) are generally the best air 

pollution control technology for control 

of particulate matter, and that 

electrostatic precipitators are the next 

best. 

b. Why not select the lowest emitters? 

Although sources with baghouses 

tended to have the lowest emission 

levels for particulate matter, this was 

not invariably the case. There are 

certain instances when sources 

controlled with electrostatic 

precipitators (or, in one instance, a 

venturi scrubber) had lower emissions 

in individual test conditions than 

sources we identified as best performing 

which were equipped with baghouses.96

Under the commenter’s approach, we 

must always use these lowest emitting 

sources as the best performers. 

We again disagree. We do not know 

if these sources equipped with control 

devices other than baghouses with 

lower emissions in single test 

conditions would actually have lower 

emissions over time than sources 

equipped with baghouses because we 

cannot assess their uncontrollable 

emissions variability over time. Our 

data suggests that they likely are not 

better performing sources. We further 

conclude that our statistical procedures 

that account for these sources’ within 

test, run-to-run emissions variability 

underestimates these sources long-term 

emissions variability. This is not the 

case for sources equipped with 

baghouses, where we have completely 

assessed, quantified, and accounted for 

long-term, test-to-test emissions 

variability through application of the 

universal variability factor.97 The 

sources equipped with control devices 

other than baghouses with lower 

snapshot emissions data could therefore 

have low emissions in part because they 

were operating at the low end of the 

‘‘uncontrollable’’ emissions variability 

profile for that particular snapshot in 

time. The basis for these conclusions, all 

of which are supported by our data, are 

found in section 16 of volume III of the 

technical support document. 

We therefore conclude sources 

equipped with baghouses are the best 

performers for particulate matter control 

not only based on engineering 

judgment, but because we are able to 

reliably quantify their likely 

performance over time. The straight 

emissions methodology ignores the 

presence of long-term emissions 

variability from sources not equipped 

with baghouses, and assumes without 

basis that these sources are always 

better performing sources in instances 

where they achieved lower snapshot 

emissions relative to the emissions from 

baghouses, emissions that have notably 

already been adjusted to account for 

long-term emissions variability. 

A straight emissions approach also 

results in inappropriate floor levels for 

particulate matter because it improperly 

reflects/includes low ash feed when 

identifying best performing sources for 

particulate matter. 69 FR at 21228. For 

example, the MACT pool of best 

performing liquid fuel boilers for 

particulate matter under the straight 

emissions approach includes eight 

sources, only one of which is equipped 

with a back-end control device. These 

sources have low particulate matter 

emissions solely because they feed low 

levels of ash. The average ash inlet 

loadings for these sources are well over 

two orders of magnitude lower than the 

average ash inlet loading for the best 

performing sources that we identify 

with the Air Pollution Control 

Technology approach. (Of course, since 

ash loadings are not a proper surrogate 

for HAP metals, these sources’

emissions are lowest for particulate 

matter but not necessarily for HAP 

metals.) The straight emissions 

approach would yield a particulate 

matter floor level of 0.0025 gr/dscf (with 

a corresponding design level of 0.0015 

gr/dscf). There is not one liquid fuel 

boiler that is equipped with a back-end 

control that achieved this floor level, 

much less the design level. The best 

performing source under the air 

pollution control technology approach, 

which is equipped with both a fabric 

filter and HEPA filter, did not even 

make the pool of best performing 

sources for the straight emissions 

approach. Yet this unit has an excellent 

ash removal efficiency of 99.8% and the 

lower emitting devices’ removal 

efficiencies are, for the most part, 0% 

because they do not have any back-end 

controls. EPA believes that it is arbitrary 

to say that these essentially 

uncontrolled devices must be regarded 

as ‘‘best performing’’ for purposes of 

section 112(d)(3). We therefore conclude 

that a straight emissions floor would not 

be achievable for any source feeding 

appreciable levels of ash, even if they all 

were to upgrade with baghouses, or 

baghouses in combination with HEPA 

filters, and that a rote selection of lowest 

emitters as best performers can lead to 

the nonsensical result of uncontrolled 

units being classified as best performers. 

Comment: Commenter claims end-ofstack control technology is not the only 

factor affecting emissions of particulate 

matter, stating that EPA admits that 

particulate matter emission levels are 

affected by the feedrate of ash. 

Accordingly, the performance of a 

source’s end-of-stack control technology 

is not a reasonable estimate of that 

source’s total performance. 

Response: The particulate matter 

standard serves as a surrogate control 

for the non-enumerated metals in the 

hazardous waste streams (for all source 

categories), and all nonmercury metal 

HAP in the nonhazardous waste process 

streams (essentially, raw materials and 

fossil fuels) for cement kilns, 

lightweight aggregate kilns, and liquid 

fuel boilers. The commenter suggests 

that the APCD approach inappropriately 

ignores HAP feed control in the 

assessment of best performing sources. 

We conclude that it would not be 

appropriate to use a methodology that 

directly assesses feed control, such as 

the SRE/Feed methodology, to 

determine particulate matter floors. 

First, direct assessment of total ash feed 

control would inappropriately assess 

and seek to control (even though 

variability of raw material and fossil 

fuel inputs are uncontrollable) raw 

material and fossil fuel HAP input, as 

well as raw material and fossil fuel 

input. Controlling raw material and 

fossil fuel HAP input is infeasible, as 

previously discussed. It also 

inappropriately limits theses sources’

feedstocks that are necessary for their 

associated production process. 

Second, we do not believe that 

developing a floor standard based on 

hazardous waste feed control of 

nonenumerated metals (as opposed to 

feed control of these metals in raw 

material and fossil fuels) is appropriate 

or feasible. In part four, section IV.A, we 

explain that we lack the data to reliably 

assess direct feedrate of these metals in 

hazardous waste. In addition, we also 

discuss that it is unclear (the lack of 

certainty resulting from the sparse 

available data) that hazardous waste 

feed control of the nonenumerated 

metals is feasible. The majority of these 

metals are not directly regulated under 

existing RCRA requirements, so sources 

have optimized control of the other HAP 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59449 

98For the same reason, even if feed control of 

total inputs (i.e. raw material and fossil fuel as well 

as hazardous waste fuel) were feasible, it would be 

technically inappropriate to use ash feedrates as a 

surrogate: ash feed control allows sources to 

selectively reduce the ash feeds without reducing 

the metal HAP portion of that feed. Back-end 

control, in contrast, unselectively removes a 

percentage of everything that is fed to the 

combustor. 

99See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

Mact Standards,’’ September 2005, Section 3.1. 

100See USEPA, ‘‘Technical Support Document for 

th HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 5.3 

and 16.2, for further discussion. 

metals, raising issues of whether 

simultaneous optimization of feed 

control of the remaining metals is 

feasible. Moreover, even if one were to 

conclude that hazardous waste feed 

control is feasible for the 

nonenumerated metal HAPs, hazardous 

waste ash feedrates are not reliable 

indicators of nonmercury metal HAP 

feed control levels and are therefore 

inappropriate parameters to assess in 

the MACT evaluation process. For 

example, a source could reduce its ash 

feed input by reducing the amount of 

silica in its feedstreams. This would not 

result in feed control or emission 

reductions of metal HAP.98

Finally, hazardous waste ash feed 

control levels do not significantly affect 

particulate matter emissions from 

cement kilns, lightweight aggregate 

kilns, and solid fuel-fired boilers 

because the majority of particulate 

matter that is emitted originates from 

the raw material and nonhazardous fuel. 

Hazardous waste ash feed control levels 

also do not significantly affect 

particulate matter emissions from 

sources equipped with baghouses 

because these control devices are not 

sensitive to particulate matter inlet 

loadings.99

Thus, even if one were to conclude 

that the nonenumerated metal HAPs are 

amenable to hazardous waste feed 

control, explicit use of ash feed control 

in a MACT methodology would not 

assure that each source’s ability to 

control either nonmercury metal HAP or 

surrogate particulate matter emissions is 

assessed. The Air Pollution Control 

Device methodology identifies and 

assesses (with the surrogate particulate 

matter standard) the known technology 

that always assures metal HAP 

emissions are being controlled to MACT 

levels—that technology being back-end 

control. 

Comment: Commenter claims the Air 

Pollution Control Device approach to 

calculate particulate matter floors is 

flawed because the performance of backend control technology alone does not 

reflect the performance of the relevant 

best sources that otherwise would be 

reflected if EPA were to assess 

performance based on the emission 

levels each source achieved because, as 

EPA admits, it fails to account for the 

effect of ash feed rate. 

Response: We explain above why the 

Air Pollution Control Technology 

approach properly identifies the 

relevant best performing sources for 

purposes of controlling non-mercury 

metal HAP (measured as particulate 

matter), irrespective of ash feed rates. 

Typically, this results in selecting the 

sources with the lowest particulate 

matter emission rates, the result the 

commenter advocates. This is because 

we evaluate sources with the bestperforming (e.g. lowest emitting) 

baghouses, and particulate matter 

emissions from baghouses are not 

significantly affected by inlet particulate 

matter loadings. Where the pool of best 

performing sources includes sources 

operating some other type of back-end 

control device (because insufficient 

numbers of sources are equipped with 

baghouses to comprise 12% of sources, 

or five sources (depending on the size 

of the source category)), we again use 

the lowest particulate matter emission 

level from the sources equipped with 

second best technology. Although these 

data do not reflect test-to-test variability, 

they are the best remaining data in 

EPA’s possession to estimate 

performance and EPA is therefore, as 

required by section 112 (d) (3) (A) and 

(B), using the data to fill out the 

requisite percentage of sources for 

calculating floors. 

Comment: Commenter states that EPA 

has failed to demonstrate how it 

reasonably estimated the actual 

performance of each source’s end-ofstack control technology because: (1) It 

failed to acknowledge that there can be 

substantial differences between the 

performance of different models of the 

same type of technology; and (2) it did 

not explain or support its rankings of 

pollution control devices. 

Response: As discussed in sections 

7.4 and 16.2 of volume III of the 

technical support document and C.1 of 

this comment response section, we rank 

associated back-end air pollution 

control device classes (e.g., baghouses, 

electrostatic precipitators, etc.), after 

assessing particulate matter control 

efficiencies from hazardous waste 

combustors that are equipped with the 

associated back-end control class. The 

data used to make this assessment are 

included in our database. We also 

evaluated particulate matter control 

efficiencies from other similar source 

categories that also use these types of 

control systems, such as municipal 

waste combustors, medical waste 

incinerators, sewage sludge combustors, 

coal-fired boilers, oil fired boilers, nonhazardous industrial waste combustors, 

and non-hazardous waste Portland 

cement kilns.100

After we assign a ranking score to 

each back-end control class, we 

determine the number of sources that 

are using each of these control 

technology classes. We then identify the 

MACT control technology or 

technologies to be those best ranked 

back-end controls that are being used by 

12 percent of the sources (or used by 

five sources in instances where there are 

fewer than 30 sources). We then look 

only at those sources using MACT backend control and rank order all these 

sources first by back-end control type, 

and second by emissions. For example, 

in instances where there is more than 

one MACT back-end control, we array 

the emissions from the sources 

equipped with the top ranked back-end 

controls from best to worst (i.e., lowest 

to highest), followed by the emissions 

from sources equipped with the second 

ranked back-end controls from best to 

worst, and so on. We then determine the 

appropriate number of sources to 

represent 12 percent of the source 

category (5 in instances where there are 

fewer than 30 sources). If 10 sources 

represented 12% of the sources in the 

source category, we would then select 

the emissions from best ranked 10 

sources in accordance with this ranking 

procedure to calculate the MACT floor. 

This methodology results in selection of 

lowest emitters using best back-end air 

pollution control as pool of the best 

performing sources. 

The commenter is correct that there 

can be differences between the 

performance of different models of the 

same type of technology. We are not 

capable of thoroughly assessing 

differences in designs of each air 

pollution control device in a manner 

that could be used in the MACT 

evaluation process, so that we would 

only select, for example, baghouses of a 

certain type. Each baghouse, for 

example, will be designed differently 

and thus will have different 

combinations of design aspects that may 

or may not make that baghouse better 

than other baghouses (e.g., bag types, air 

to cloth ratios, control mechanisms to 

collect accumulated filter cake and 

maintain optimum pressure drops). We 

also do not have detailed design 

information for each source’s air 

pollution control system; such an 

assessment would therefore not be 

59450 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

possible even if the information could 

be used to assess relative performance. 

We instead account for this difference 

by selecting sources with the lowest 

emissions that are using the defined 

MACT back-end controls to differentiate 

the performance among those sources 

that are using that technology (the best 

performer being the source with the 

lowest emissions, as just explained). For 

example, in situations where more than 

12% of the sources are using the single 

best control technology (e.g., more than 

12% of incinerators use baghouses to 

control particulate matter), we use the 

emissions from the lowest emitting 

sources equipped with baghouses to 

calculate the MACT floor. In instances 

where there are two defined MACT 

technologies (i.e., 12% of sources do not 

use the single best control technology), 

we use all the emissions data from 

sources equipped with the best ranked 

control class, and then subsequently use 

only the lowest emissions from the 

sources equipped with the second 

ranked back-end controls. 

Comment: EPA did not say how it 

picked the best performers if more than 

twelve percent used the chosen 

technologies. If EPA used emissions 

data to differentiate performance, the 

Agency is necessarily acknowledging 

that emissions data are a valid measure 

of sources’ performance—in which case 

the Agency’s claims to the contrary are 

arbitrary and capricious. 

Response: We did use emissions data 

to select the pool of best performers 

where over 12% use the best type of 

emissions control technology, as 

explained in the previous response. 

Emissions data is obviously one means 

of measuring performance. EPA’s 

position is that it need not be the 

exclusive means, in part because doing 

so leads to arbitrary results in certain 

situations. Our use of emission levels to 

rank sources that use the best 

particulate matter control (i.e., 

baghouses) does not lead to arbitrary 

results, however. First, we are assessing 

emission levels here as a means of 

differentiating sources using a known 

type of pollution control technology. 

More importantly, the adjusted emission 

levels from sources equipped with 

baghouses are the most accurate 

measures of performance because these 

emissions have been statistically 

adjusted to accurately account for longterm variability through application of 

the universal variability factor. 

Comment: Commenter states that 

EPA, in its support for its Air Pollution 

Control Technology Approach used to 

calculate particulate matter floors, 

claims that an emissions-based 

approach would result in floor levels 

that ‘‘could not necessarily be achieved 

by sources using the chosen end-ofstack technology,’’ citing 69 FR at 

21228. Commenter claims that it is 

settled law that standards do not have 

to be achievable through the use of any 

given control technology, and that it is 

also erroneous to establish floors at 

levels thought to be achievable rather 

than levels sources actually achieve. 

Response: EPA is not establishing 

floor levels based on assuring the 

standards are achievable by a particular 

type of end-of-stack technology (or, for 

that matter, any end-of-stack 

technology). The floor levels in today’s 

final rule reasonably estimate average 

performance of the requisite percent of 

best performing sources without regard 

for whether the levels themselves can be 

achieved by a particular means. Floor 

standards for particulate matter are 

based on the performance of those 

sources with the lowest emissions using 

the best back-end control technology 

(most often baghouses, and sometimes 

electrostatic precipitators). EPA uses 

this approach not to assure that the 

floors are achievable by sources using 

these control devices, but to best 

estimate performance of the best 

performing sources, including these 

sources’ variability. 

2. Total Chlorine Standard for 

Hydrochloric Acid Production Furnaces 

We are adopting the methodology we 

proposed to estimate floor levels for 

total chlorine from hydrochloric acid 

production furnaces. 69 FR at 21225–

226. As stated there, we are defining 

best performers as those sources with 

the best total chlorine system removal 

efficiency. We are not assessing a level 

of control attributable to control of 

chlorine in feedstocks because this 

would simply prevent these furnaces 

from producing their ultimate product. 

Further details are presented in 

responses below. 

Comment: Basing the standard for 

hydrochloric acid production furnaces 

on the basis of system removal 

efficiency rather than chlorine emission 

reduction is impermissible. Even though 

these devices’ purpose is to produce 

chlorinated product, the furnaces can 

use less chlorinated inputs. EPA’s 

proposed approach is surreptitious, an 

impermissible attempt to assure that the 

standards are achievable by all sources 

using EPA’s chosen technology, the 

approach already rejected in CKRC. 

Response: EPA disagrees. There is 

nothing in the text of the statute that 

compels an approach that forces sources 

to produce less product to achieve a 

MACT floor standard. Yet this is the 

consequence of the comment. If 

standards were based on levels of 

chlorine in feedstock to these units, less 

product would be produced since there 

would be less chlorine to recover. EPA 

has instead reasonably chosen to 

evaluate best performing/best controlled 

sources for this source category by 

measuring the efficiency of the entire 

chlorine emission reduction system. 

Indeed, the situation here is similar to 

that in Mossville, where polyvinyl 

chloride production units fed raw 

materials containing varying amounts of 

vinyl chloride depending on the 

product being produced. This led to 

variable levels of vinyl chloride in plant 

emissions. Rather than holding that EPA 

must base a floor standard reflecting the 

lowest amount of vinyl chloride being 

fed to these units, the court upheld a 

standard estimating the amount of 

pollution control achievable with backend control. 370 F. 3d at 1240, 1243. In 

the present case, as in Mossville, the 

standard is based on actual performance 

of back-end pollution control (although 

here EPA is assessing actual 

performance of the control technology 

rather than estimating performance by 

use of a regulatory limit, making the 

situation here a fortiorari from that in 

Mossville), and does not reflect 

‘‘emission variations not related to 

technological performance’’. 370 F. 3d 

at 1240. 

It also should be evident that EPA is 

not establishing a standard to assure its 

achievability by a type of pollution 

control technology, as the commenter 

mistakenly asserts. The standard for 

total chlorine is based on the average of 

the best five sources ‘‘ best meaning 

those sources with greatest (most 

efficient) system removal efficiencies. 

EPA did not, as in CKRC, establish the 

standard using the highest emission 

limit achieved by a source operating a 

particular type of control. 

Comment: The commenter generally 

maintains that EPA’s methodology to 

determine total chlorine floors for 

hydrochloric acid production furnaces 

fails to capture other means of HAP 

emission control that otherwise would 

be captured if EPA were assess 

performance based on the emission 

levels each source achieved. 

Response: As discussed above, the 

standard for total chlorine is based on 

the sources with the best system 

removal efficiencies. System removal 

efficiency encompasses all means of 

MACT floor control when assessing 

relative performance because: (1) 

Chlorine feed control is not a MACT 

floor technology for these sources; and 

(2) the measure of system removal 

efficiency accounts for every other 

controllable factor that can affect 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59451 

101A more familiar example of normalization is 

the Earned Run Average (ERA), which normalizes 

a baseball pitchers’ earned runs on the basis of nine 

innings pitched in order to make comparisons 

among pitchers possible. 102Or, put another way, the statute does not 

directly address the question of whether a small 

source that emits 10 units of HAP is better than a 

much larger source with better back-end control 

(but feeding the same raw material at a higher mass 

feedrates) that emits 100 units of HAP. 103See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 6.0. 

104EPA thus has expressed the MACT standards 

for particulate matter, mercury, and hydrogen 

chloride standards for nonhazardous waste 

industrial boilers as pounds of allowable emissions 

per million BTUs. § See 63.7500. This 

normalization considers the total heat input into the 

combustion device. Normalizing by total heat input 

would not be appropriate for hazardous waste 

combustors for metals and chlorine because this 

would implicitly account for, and in turn require 

the use of, feed control of HAP in non hazardous 

waste fuels. This is inappropriate for the reasons 

discussed in Section III.B of this Part. 

105We distinguish (i.e., subcategorize) liquid fuel 

boilers that process hazardous waste with heating 

values less than 10,000 BTU/lb from those 

processing hazardous wastes with heating content 

greater than 10,000 BTU/lb. Although boilers that 

process hazardous waste with heating values less 

than 10,000 BTU/lb are still considered to be energy 

recovery units, we conclude a thermal emissions 

normalization approach for these sources is not 

appropriate. See Part Four, Section VI.D. 

emissions (e.g., operating practices, 

worker training, proper maintenance, 

pollution control device type, etc). 

D. Format of Standards 

1. Thermal Emissions 

EPA proposed, and is finalizing 

standards for HAP metals and chlorine 

(the HAPs amenable to hazardous waste 

feed control) emitted by energy recovery 

units (cement kilns, lightweight 

aggregate kilns, and liquid fuel boilers) 

expressed in terms of pounds of HAP 

attributable to the hazardous waste fuel 

per million british thermal units (BTUs) 

of hazardous waste fired. 69 FR at 

21219–20. EPA received many 

comments on this issue to which we 

respond below and in the Response to 

Comment Document. Some initial 

discussion of the issue is appropriate, 

however. 

a. Expressing Standards in Terms of a 

Normalizing Parameter is Reasonable. 

First, using a thermal emissions form of 

a standard is an example of expressing 

standards in terms of a normalizing 

parameter. EPA routinely normalizes 

emission standards either by expressing 

them as stack HAP concentrations or by 

expressing the standards in units of 

allowable mass emissions per amount of 

production or raw material processed. 

Emission concentration-based standards 

normalize the size of each source by 

accounting for volumetric gas flowrate, 

which is directly tied to the amount of 

raw material each source processes (and 

subsequently the amount of product that 

is produced). Metal and particulate 

matter emission standards for 

commercial and industrial solid waste 

incinerators are expressed in emission 

concentration format. See § 60.2105. 

The particulate matter standard for 

Portland cement kilns is expressed as 

mass of allowable emissions per mass of 

raw material processed. See § 63.1342. 

The particulate matter, mercury, and 

hydrogen chloride standards for 

nonhazardous waste industrial boilers 

are expressed as pounds of allowable 

emissions per million British thermal 

units (BTUs). See § 63.7500. 

Technology-based standards typically 

normalize emissions because such a 

format assures equal levels of control 

across sources per amount of raw 

material that is processed, and allows 

EPA to equally assess source categories 

that comprise units that differ in size. 

By normalizing the emissions standard 

we better ensure the same percentage of 

emission reduction per unit of raw 

material processed by each source.101

See Weyerhaeuser v. Costle, 590 F. 2d 

1011, 1059 (D.C. Cir. 1978) (technologybased standards are typically expressed 

in terms of volume of pollutants emitted 

per volume of some type of unit of 

production). 

There is no legal bar to this approach 

since the statute does not directly 

address the question of whether a 

source emitting 100 units of HAP per 

unit of production but 100 units of HAP 

overall is a better performer (or, for new 

sources, better controlled) than a source 

emitting 10 units of HAP per unit of 

production but emitting 101 units 

overall.102 One commenter appeared to 

suggest that we should assess 

performance on mass feedrates and 

mass emission rates, without 

normalizing. Such an approach would 

yield nonsensical results because the 

best performing sources would more 

likely be the smallest sources in the 

source category (smaller sources 

generally have lower mass emission 

rates because they process less 

hazardous waste). This would likely 

yield emission standards that would not 

be achievable by the larger sources that 

more likely are better controlled sources 

based on a HAP removal efficiency 

basis.103 Normalization by unit of 

production is another way of expressing 

unit size, so that normalizing on this 

basis is a reasonable alternative to 

subcategorization on a plant size-byplant size basis. See section 112(d)(1) 

(size is an enumerated basis for 

subcategorizing). 

b. Using Hazardous Waste Thermal 

Input as the Normalizing Parameter is 

Permissible and Reasonable. 

Normalization of standards based on 

thermal input is analogous. For energy 

recovery units (in this rule, kilns and 

most liquid fuel boilers), normalizing on 

the basis of thermal input uses a key 

feed input as the normalizing parameter, 

allowing comparison of units with 

different inputs rather than separately 

evaluating these units by size and type 

(see section 112(d)(1)). Again, this 

approach is legally permissible. The 

statute does not answer the question of 

which source is better performing, the 

source emitting 100 pounds of HAP per 

million BTUs hazardous waste but 100 

pounds of HAP overall or the source 

emitting 10 pounds of HAP per million 

BTUs hazardous waste but emitting 101 

pounds overall. 

The approach also is reasonable. First, 

as with other standards expressed in 

normalized terms, by normalizing the 

emissions standard we ensure the same 

percentage of emission reduction per 

unit of raw material processed by each 

source, thus allowing meaningful 

comparison among sources. For 

example, emission concentration-based 

standards normalize the size of each 

source by accounting for volumetric gas 

flowrate, which is directly tied to the 

amount of raw material each source 

processes (and subsequently to the 

amount of product that is produced), 

and assures equal levels of control per 

amount of product. Normalization on 

the basis of HAP amount in hazardous 

waste per BTU level in the hazardous 

waste similarly assures equal levels of 

control across sources per amount of 

raw material that is processed. Here, the 

raw material is the hazardous waste 

fuel, expressed as units of energy. It is 

reasonable to regard a hazardous waste 

fuel as a raw material to an energy 

recovery device. Indeed, fuels are the 

only input to boilers, so fuels are 

necessarily such units’ sole raw 

material.104 105 Hazardous waste burning 

cement kilns and lightweight aggregate 

kilns produce a product in addition to 

recovered energy and so process other 

raw materials. However, the reason 

these units use hazardous waste as 

inputs is typically to recover usable 

energy from the wastes. Hence, the 

hazardous waste fuel is reasonably 

viewed as a raw material to these 

devices. 

In this regard, we note that our choice 

of normalizing parameter essentially 

says that best performers with respect to 

hazardous waste fuel burned in energy 

recovery units are those using the 

lowest HAP feedrate (for metals and 

chlorine) per amount of energy 

59452 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

106As explained earlier, the ultimate ranking of 

best performers then further evaluates system 

removal efficiency, best performers then being 

defined in terms of the combination of hazardous 

waste thermal feed and system removal efficiency. 

See USEPA, ‘‘Technical Support Document for the 

HWC MACT Standards, Volume III: Selection of 

MACT Standards’’, September 2005, Section 7.3. 107EPA would adopt the thermal format for the 

standards, however, whether or not the approach 

furthered RCRA objectives. 

108This example assumes there are no HAP 

emissions attributable to the fossil fuels. 

109As discussed later, the heating values of 

hazardous wastes processed at cement kiln and 

lightweight aggregate kilns are primarily 10,000 

BTU/lb or greater. 

110These data are based on a compilation of 

heating contents for every incinerator test condition 

in the database where the source reported such 

heating content, and include both the most recent 

test conditions as well as older test conditions. 

Incinerator test condition heating values range from 

a low of 790 to a high of 19,800 BTU/lb, with a 

median value of 7800 BTU/lb. 

recovered.106 This approach accords 

well with the requirement in section 

112(d)(2) that EPA take energy 

considerations into account in 

developing MACT, and also that the 

Agency consider front-end means of 

control such as input substitution 

(section 112(d)(2)(A)). In addition, our 

choice furthers the RCRA goal of 

encouraging properly conducted 

recycling and reuse (RCRA section 

1003(b)(6)), which is of relevance here 

in that Congress directed EPA to 

consider the RCRA emission controls for 

hazardous waste combustion units in 

developing MACT standards for these 

units, and to ensure ‘‘to the maximum 

extent possible, and consistent with 

[section 112 ]’’ that section 112 

standards are ‘‘consistent’’ with the 

RCRA scheme. CAA section 

112(n)(7).107 Conversely, emission 

concentration-based standards, the 

methodology that otherwise would be 

used to calculate emission 

concentration-based standards, may 

result in standards that are biased 

against sources that recover more energy 

from hazardous waste. This may 

discourage sources from recovering 

energy from hazardous waste because 

such standards do not normalize each 

source’s allowable emissions based on 

the amount of hazardous waste it 

processes for energy recovery purposes. 

See 69 FR at 21219 and responses 

below. 

Second, use of this normalizing 

parameter makes it much more likely 

that hazardous waste feed controls will 

be utilized by these devices as an aspect 

of emissions control. See section 

112(d)(2)(A) (use of measures reducing 

the volume of pollutants emitted 

through ‘‘substitution of materials’’); 

CKRC, 255 F. 3d at 865 (EPA to consider 

means of control in addition to back-end 

pollution control technology when 

establishing MACT floors). As explained 

in our discussion of the SRE/Feed 

methodology, the MACT floor level for 

metals and chlorine reflects the best 

combination of hazardous waste 

feedrate, and total HAP removal 

efficiency. See section III.B. However, if 

standards for energy recovery units are 

expressed in terms of mass of HAP per 

volume of stack gas, then it would be 

relatively easy for these energy recovery 

devices to achieve a standard, without 

decreasing concentrations of HAP in 

their hazardous waste fuels, by diluting 

the HAP contribution of hazardous 

waste with emissions from fossil fuel. A 

thermal emissions format prevents this 

type of dilution from happening because 

it ignores additions of stack gases 

attributable to burning fossil fuels. 

Weyerhaeuser, 590 F. 2d at 1059 (use of 

production of a unit as a normalizing 

parameter serves ‘‘the commendable 

purpose’’ of preventing plants from 

achieving emission limitations via 

dilution). 

For example, assume there are two 

identical energy recovery units with 

identical back-end control devices (that 

reflect the performance of the average of 

the best performing sources). Source A 

fulfills 25% of its energy demand from 

the combustion of hazardous waste; 

source B fulfills 50% of its energy 

demand from the combustion of 

hazardous waste. Also assume that the 

hazardous waste for these two sources 

have equivalent energy contents. If these 

sources were required to comply with 

an emission concentration basedstandard (e.g., μg/dscm), source A 

would be allowed to feed hazardous 

waste containing twice the metal 

content (on a mass concentration basis, 

e.g., ppm), and would be allowed to 

emit metal HAP at the same mass 

emission rate relative to source B. This 

is because this source is effectively 

diluting its emissions with the 

emissions that are being generated by 

the fossil fuels.108 A thermal emissions 

standard format does not allow sources 

to dilute their emissions with the 

emissions from fossil fuel inputs 

because it directly regulates the 

emissions and feeds associated with the 

hazardous waste fuel. Under a thermal 

emissions format both sources would be 

required to feed hazardous waste with 

the same thermal feed concentrations 

(on a lb HAP per million BTU 

hazardous waste basis), and source A 

would be required to process hazardous 

waste with an equivalent concentration 

of metal HAP (on a mass basis) and also 

be required to emit half as much metal 

HAP (on a mass emission rate basis) 

relative to source B, because source A is 

processing half as much hazardous 

waste fuel, thus vindicating the 

hazardous waste feed control aspect of 

the standard (see also note below 

regarding the likelihood of sources 

using hazardous waste feed control). 

Further, the thermal feed concentration 

with which these sources must comply 

reflects the feed control of the average 

performance of the best performing 

sources (on a mass of HAP per million 

BTU basis). Such a requirement assures 

that these sources are processing the 

cleanest hazardous waste fuels to 

recover energy and are reducing HAP 

emissions to MACT levels. 

We note that it would not be 

appropriate to express the emission 

standards for incinerators, hydrochloric 

acid production furnaces, and solid fuel 

boilers in terms of thermal emissions. 

As just explained, the choice of a 

normalizing parameter is fitted to the 

nature of the device to which it is 

applied in order to allow the most 

meaningful comparisons between 

devices of like type. We therefore 

conclude that a thermal emissions 

format (i.e., normalizing parameter) for 

incinerators is not appropriate because 

the primary function of incinerators is 

to thermally treat hazardous waste (as 

opposed to recovering energy from the 

hazardous waste). See 67 FR at 17362 

(April 19, 1996). Our database indicates 

that most incinerators processed 

hazardous waste during their emissions 

tests that had, on average, heating 

values below 10,000 BTU/lb.109 We 

have emission test hazardous waste 

heating value information for 62 

incinerators in our database. Of these 62 

sources, 40 sources processed hazardous 

waste with an average heating value of 

less than 10,000 BTU/lb. The other 22 

sources processed hazardous waste with 

heating values greater than 10,000 BTU/ 

lb in at least one test condition, 

although we note that 14 of these 22 

sources also processed hazardous waste 

in different test conditions with heating 

values lower than 10,000 BTU/lb.110

We assessed whether we should 

subcategorize incinerators, similar to 

how we subcategorize liquid fuel 

boilers, based on the BTU content of the 

hazardous waste. Incinerators do 

recover energy from processing high 

BTU wastes. Some incinerators are 

equipped with waste heat boilers, and 

high BTU hazardous waste can displace 

fossil fuels that otherwise would have to 

be burned to thermally treat low BTU 

wastestreams. However, such energy 

recovery is considered to be a secondary 

product because their primary function 

is to thermally treat hazardous waste. A 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59453 

111EPA notes that when first adopting RCRA air 

emission standards for hydrochloric acid recovery 

furnaces (then called ‘halogen acid furnaces’), EPA 

indicated that those furnaces designed as boilers 

would be subject to the emission standards for 

boilers. 56 FR at 7040. This determination did not 

have regulatory consequence, since all hydrochloric 

acid production furnaces were subject to the same 

emission standards whether they were classified as 

boilers or as industrial furnaces. Thus, EPA was not 

concluding that some hydrochloric acid furnaces 

existed for the primary purpose of recovering 

energy in the 1991 rulemaking. 56 FR at 7139 

(‘‘[Hydrochloric acid recovery furnaces] are 

typically modified firetube boilers that process 

secondary waste streams containing 20 to 70 per 

cent chlorine or bromine to produce a halogen acid 

product by scrubbing acid from the combustion 

gases’’). 

112Hazardous waste chlorine feedrates that are 

included in our database (expressed as MTECs) 

range from a low of 46,000,000 μg/dscm to a high 

of 294,000,000 μg/dscm. On a mass chlorine 

percentage basis, these wastes range from 17% to 

82%, noting that these percentages did not include 

the chlorine that was also spiked during the 

emissions tests). See USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards’’, September 2005, 

Section 15. 

113Although the rule does not require use of feed 

control (or any particular means of control to 

achieve a standard), the rule assures that all 

sources’ emissions will reflect the emissions of the 

sources with the best hazardous waste federates 

expressed in terms of amount of HAP per BTU of 

hazardous waste. Because this format eliminates 

Continued 

thermal emissions normalization 

approach for incinerators that combust 

hazardous wastes with heating values 

greater than 10,000 BTU/lb would 

therefore not be appropriate because the 

normalized parameter would not be tied 

to the primary production output that 

results from the processing of hazardous 

waste (i.e., treated hazardous waste). In 

confirmation, no commenters suggested 

that we apply a thermal emissions 

format to incinerators. 

We also conclude that a thermal 

emission format is inappropriate for 

hydrochloric acid production furnaces. 

These devices recover chlorine, an 

essential raw material in the process, 

from hazardous waste. The classic 

normalizing parameter of amount of 

product (HCl) produced is therefore the 

obvious normalizing parameter for these 

sources. It is true that some 

hydrochloric acid production furnaces 

recover energy from high BTU 

hazardous wastes. See 56 FR at 7141/1 

and 7141–42 (Feb. 21, 1991). Some 

sources are equipped with waste heat 

boilers, and high BTU wastes help 

sustain the combustion process, which 

is necessary to liberate the chlorine from 

the wastestreams prior to recovering the 

chlorine in the scrubbing systems. 

Again, energy recovery is not the 

primary function of these types of 

sources.111 Hydrochloric acid 

production furnace hazardous waste 

heating values range from 1,100 to 

11,000 BTU/lb (the median energy 

content for these sources is slightly 

above 6,000 BTU/lb). The range of 

hazardous waste heating contents from 

these sources is much lower than the 

ranges for cement kilns, lightweight 

aggregate kilns, and liquid fuel boilers, 

supporting the premise that energy 

recovery is of secondary importance. In 

addition, and critically, the hazardous 

waste that is processed in these units 

contains high concentrations of 

chlorine, confirming that the wastes 

serve as feedstock for hydrochloric acid 

production, even if the wastes also have 

energy value.112 No commenters 

suggested that we apply a thermal 

emissions format to hydrochloric acid 

production furnaces. 

We consider the processing of 

hazardous waste in solid fuel boilers to 

be more reflective of energy recovery 

(relative to incinerators and 

hydrochloric acid production furnaces) 

because these sources directly recover 

the heat that is released from the 

combustion of the waste streams. 

However, as stated at proposal, not all 

these sources are processing hazardous 

wastes for energy recovery. 69 FR at 

21220. These boilers are generally not 

commercial units, and so tend to burn 

whatever hazardous wastes are 

generated at the facility where they are 

located. Heating values for this source 

category range from 1,300 to 10,500 

BTU/lb, with a median value of 8,000 

BTU/lb. We therefore conclude that 

thermal emission standards for these 

sources are not appropriate because 

most of these sources are processing 

hazardous waste with energy content 

lower than 10,000 BTU/lb. As discussed 

in section VI.D, we conclude that 10,000 

BTU/lb is an appropriate level that 

distinguishes whether thermal emission 

standards or mass emission 

concentration-based standards are 

appropriate. We also note that no 

commenters suggested that we apply a 

thermal emissions format to solid fuel 

boilers. 

Comment: Commenters state that 

thermal emission standards are 

inappropriate because sources burning 

hazardous waste with a higher energy 

content or higher percent hazardous 

waste firing rate (i.e., one that fulfills a 

greater percentage of its total energy 

demand from the hazardous waste) 

would be allowed to emit more HAP. 

Response: Part of this comment would 

apply regardless of what normalizing 

parameter is used. Technology-based 

standards (including MACT standards) 

are almost always expressed in terms of 

some type of normalizing parameter, 

i.e., ‘‘X’’ amount of HAP may be emitted 

per unit of normalizing parameter. This 

allows a meaningful comparison 

between units of different size and 

production capacity. A consequence is 

that the overall mass of HAP emissions 

varies, but the rate of control remains 

constant per the normalizing unit. As 

explained in the introduction to this 

section, this approach is both routine 

and permissible. 

Cement kilns, lightweight aggregate 

kilns, and liquid fuel boilers combust 

hazardous waste to recover valuable 

energy. Recovering energy is an integral 

part of their production process. As 

discussed at proposal, emission 

concentration-based standards (and the 

methodology that otherwise would be 

used to calculate emission 

concentration-based standards) may 

result in standards that are biased 

against sources that recover more energy 

from hazardous waste. 69 FR at 21219. 

This may discourage sources from 

recovering energy from hazardous waste 

because such standards do not 

normalize each source’s allowable 

emissions based on the amount of 

hazardous waste it processes for energy 

recovery purposes. A source that fulfills 

100 percent of its energy demand from 

hazardous waste would be required to 

limit its mass HAP emissions to the 

same levels as an identical source that 

satisfies, for example, only 10 percent of 

its energy demand from hazardous 

waste and 90% from coal. This would 

inappropriately discourage the safe 

recovery of energy from hazardous 

waste, and could in turn result in 

greater consumption of valuable fossil 

fuels that otherwise would be 

consumed. 

Sources which fulfill a greater 

percentage of their energy demand from 

hazardous waste (either by processing 

hazardous wastes that are higher in 

energy content, or by simply processing 

more hazardous waste) will be allowed 

to emit more HAP (on a mass emission 

rate basis) than an identical source that 

satisfies less of its total energy demand 

from hazardous waste. This is 

appropriate because: (1) The source 

fulfilling a greater percentage of its 

energy demand from hazardous waste is 

processing more raw material than the 

other source (the raw material being the 

energy content of the waste); and (2) 

The source fulfilling a lower percentage 

of its energy demand requirements from 

hazardous waste would not be allowed 

to dilute its emissions with 

nonhazardous waste fuels, and we 

would thus assure that all sources 

implement hazardous waste feed control 

to levels consistent with MACT.113 This 

59454 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

consideration of stack gas attributable to fossil fuel 

emissions, and thus eliminates the dilutive effect of 

these emissions, the likelihood that sources will in 

fact use hazardous waste feed control as part of 

their control strategy is great. 

114See comment submitted by the Cement Kiln 

Recycling Coalition, USEPA, ‘‘Comment Response 

Document to the Proposed HWC MACT Standards, 

Volume 1: MACT Standards,’’ September 2005, 

Section 3.3. Also see USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards,’’ September 2005, 

Section 23. 

115The hazardous waste heating values of liquid 

fuel boilers range from 2,200 to 21,000 BTU/lb, with 

a median value of 14,800. Heating values of 

lightweight aggregate kilns range from 4,900 to 

16,900 BTU/lb, with a median value of 14,800. We 

note that the low end heating value for lightweight 

aggregate kilns reflects one source and is not typical 

of heating values used by the other commercial 

lightweight aggregate kiln facilities, and are similar 

to the heating values of cement kilns. 

was illustrated in the example provided 

in the introduction to this comment 

response section. 

Similarly, two sources that combust 

hazardous waste with the same energy 

content and the same metal 

concentrations (on both a thermal 

concentration and mass-based 

concentration basis), but at different 

hazardous waste firing rates, would be 

required to achieve identical back-end 

control device operating efficiencies to 

comply with a thermal emissions-based 

standard. Holding these factors 

constant, thermal emission standards 

require sources to achieve identical 

percent reductions of the HAP that is 

processed within the combustor via 

removal with an air pollution control 

device. A thermal emission standard 

format is thus equally stringent for these 

sources on a percent HAP removal basis, 

irrespective of the amount of hazardous 

waste it processes for energy recovery, 

and better assures that sources burning 

smaller amounts of hazardous waste 

(from an energy recovery perspective) 

are also controlling emissions as well as 

the average of the best performing 

sources. 

Sources processing higher energy 

content hazardous wastes would be 

allowed to feed hazardous wastes with 

higher metal and chlorine mass-based 

concentrations relative to other sources 

combusting lower energy content 

wastes. To illustrate this, assume there 

are two sources (named C and D) with 

identical back-end control systems and 

identical mass feedrates of hazardous 

waste. Also assume the hazardous waste 

of source C has twice the energy content 

as compared to the hazardous waste 

processed by source D. A thermal 

emission standard will allow Source C 

to feed a hazardous waste that has twice 

the metals concentration (as measured 

on a mass basis) as compared to source 

D, even though both sources would be 

required to comply with equivalent 

thermal feed rates limitations. Notably, 

however: (1) Source C is displacing (i.e., 

not using) twice as much valuable fossil 

fuel as the source with the lower energy 

content hazardous waste, and is feeding 

twice as much raw material—the raw 

material being energy content contained 

in the hazardous waste; (2) source C 

cannot exceed the feed control levels 

(expressed on a lbs of HAP per million 

BTU basis) that was achieved by the 

average of the best performing sources 

(assuming its back-end control 

efficiency is equivalent to the average 

performance demonstrated by the best 

performing sources); and (3) source D is 

required to have lower mass 

concentrations of metals in its 

hazardous waste because it is firing 

poorer quality hazardous waste fuel 

(from an energy recovery perspective) 

and because it is feeding less of the 

same raw material (measured by energy 

content). Thus, the thermal emissions 

format appropriately encourages and 

promotes the processing of clean, high 

energy content hazardous waste fuels 

(consistent with evaluating hazardous 

waste feed control as an aspect of 

MACT, and not just relying on control 

solely through use of back end 

technology), and does so equally for all 

sources because it normalizes the 

allowable emissions based on the 

amount of energy each source recovers 

from the hazardous waste. Put another 

way, source C in the above example is 

controlling HAP emissions to the same 

extent as the average of the best 

performing sources per every BTU of 

hazardous waste fuel it processes (as is 

source D). 

We note that this is a hypothetical 

example. In practice the average energy 

content of hazardous waste processed at 

cement kilns does not vary significantly 

across sources. Cement kilns burn 

hazardous wastes with relatively 

consistent energy contents because that 

is what their production process 

necessitates. This is supported by our 

database and by comments received 

from the Cement Kiln Recycling 

Coalition.114 Heating values of 

hazardous wastes processed at cement 

kilns during compliance tests 

(information which is included in our 

database) range from 10,300 to 17,600 

BTU/lb, with a median value of 12,400 

BTU/lb. We note that these are snapshot 

representations of hazardous waste 

heating content from these sources that 

originate from compliance tests. We also 

have long term average hazardous waste 

heating measurements from cement 

kilns indicating that the heating content 

of the hazardous wastes on average 

range from 9,900 to 12,200 BTU/lb, with 

a median value of 11, 500 BTU/lb. We 

thus conclude that the commenter’s 

concern regarding sources being 

allowed to emit more HAP if they 

process hazardous waste with higher 

energy content is overstated for these 

sources. 

Energy content of hazardous wastes 

processed in liquid fuel boilers and 

lightweight aggregate kilns varies more 

than energy content of hazardous wastes 

processed by cement kilns, and sources 

with higher energy content wastes 

would be allowed to emit more metals 

than identical sources burning identical 

volumes of lower energy content wastes 

(although the degree of control is 

identical per BTU of hazardous waste 

fuel processed).115 Again, these are 

hypothetical examples. Each energy 

recovery unit will have an upper bound 

on the amount of energy it can process 

from the hazardous waste. Sources that 

process higher energy content 

hazardous wastes would not necessarily 

feed the same volume of hazardous 

waste as compared to sources 

processing lower energy content 

hazardous wastes because they cannot 

exceed the thermal capacity of their 

combustion unit. Under a thermal 

emission standard format, the mass 

emission rates that would be allowed for 

identical sources that fulfill 100 percent 

of their energy demand from hazardous 

waste and that have differing hazardous 

waste energy contents would be 

identical. Although the source with the 

higher energy content hazardous waste 

would have a higher allowable massbased hazardous waste feed 

concentration, this source would have 

to process less hazardous waste (on a 

mass basis) to remain within its thermal 

capacity. This helps to ensure that its 

mass HAP emission rate is similar to 

other sources that process lower energy 

content hazardous waste. 

One commenter’s apparent concern 

with thermal emissions seems to center 

on an assertion that sources will 

intentionally blend nonhazardous, high 

heating value wastes or fuels with low 

energy, high metal bearing hazardous 

wastes in order to increase the energy 

content of these metal bearing wastes so 

that they will be subject to higher 

allowable emissions via thermal 

emission standards. We specifically 

address that comment later as it relates 

to commercial energy recovery units 

(lightweight aggregate kilns and cement 

kilns). We note here, however, that we 

do not consider that comment to be of 

practical concern for liquid fuel boilers 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59455 

116For emission concentration-based standards 

we normalize hazardous waste feed control levels 

by calculating what we call maximum theoretical 

emission concentrations, which are equivalent to 

the HAP mass feed rate divided by gas flow rate. 

because they do not engage in 

commercial fuel blending practices. 

Comment: A commenter states that 

EPA’s assessment of thermal emissions 

to identify the relevant best sources is 

inappropriate because thermal 

emissions are not emission levels, but 

rather a ratio of emissions to the heat 

content in a source’s hazardous waste. 

Response: This comment challenges 

the basic idea of normalization, since 

the comment would be the same 

regardless of the normalizing parameter 

being used. Thermal emissions are 

emission levels that are normalized to 

account for the amount of energy (i.e., 

raw material) these sources recover by 

processing hazardous waste. Similarly, a 

mass emission concentration (i.e., μg/ 

dscm) is a ratio of the emissions to the 

volume of combustion gas that is 

generated, which normalize emissions 

to account for differences in the size of 

the combustion units (as well as 

differences in production capacity). 

This rulemaking assesses performance 

and expresses emission standards in 

both of these formats; both formats 

normalize the emissions so that we may 

better assess emission control 

efficiencies equally across sources based 

on the percent of HAP in the feed 

(whether thermal feed or feed 

normalized based on combustor size) 116

that is controlled or removed from the 

stack gas prior to being emitted into the 

atmosphere. As discussed above, 

technology-based standards have 

historically assessed performance after 

normalizing emissions based on the 

amount of raw material processed by the 

given industry sector. Thermal 

emissions normalize each source’s 

emissions based on the amount of raw 

material (hazardous waste fuel) it 

processes, and are therefore appropriate 

to assess and identify the relevant best 

performers. Finally, as previously 

explained, this approach is consistent 

with both the language of section 112 

(d) (2) and (3), and the purpose of these 

provisions. 

Comment: A commenter states that 

EPA’s assessment of thermal emissions 

to identify the relevant best sources is 

inappropriate because it ignores HAP 

emissions attributable to the 

nonhazardous fuel and raw material. 

Response: Thermal emission 

standards do not directly control HAP 

emissions attributable to the fossil fuels 

and raw material, in the sense that we 

did not assess feed control of fossil fuels 

or raw materials. However, this issue is 

not related to our choice to use thermal 

content of hazardous waste as a 

normalizing parameter. Rather, the issue 

is whether feed control of fossil fuels 

and raw materials is a feasible means of 

control at all. We have determined that 

it is not, and that only back-end control 

(expressed as system removal efficiency) 

is feasible. Moreover, today’s rule 

controls emissions from HAP in raw 

material and fossil fuels. All nonmercury metal HAP emissions 

attributable to fossil fuels or raw 

material are effectively and efficiently 

controlled to the level of the average of 

the best performing sources with the 

surrogate particulate matter standard, as 

well as the system removal efficiency 

component of the SRE/Feed 

methodology. 

Comment: EPA has failed to 

document sources’ actual feedrates. 

Feedrates are presented either as MTECs 

(where hazardous waste HAP feedrates 

are divided by gas flow rates) or as 

thermal feedrates, (where feedrate is 

expressed as the mass of HAP per 

million BTUs of hazardous waste fired). 

This is impermissible, since it does not 

measure actual feed levels. 

Response: This comment essentially 

takes the position that it is legally 

impermissible to normalize standards, 

i.e., express standards on a common 

basis. EPA rejects this comment for the 

reasons stated in the introduction to this 

section. 

Comment: A commenter states that an 

increasing number of fuel blenders are 

producing fuels with a minimum 

heating content and maximum metals 

content in order to maximize revenues 

because high metal bearing wastes 

command a higher revenue on the 

commercial waste market. The 

commenter states that thermal emission 

standards are not appropriate because 

they are based on the implicit 

assumption that energy recovery entails 

metals feed. 

Response: Contrary to what the 

commenter suggests, the thermal 

emissions format will more likely 

discourage the alleged practice of fuel 

blenders producing fuels with a 

minimum heat content and maximum 

metals content because the standard 

limits the allowable metal emissions 

based on the amount of energy 

contained in the hazardous waste. Thus, 

a source with a lower energy waste 

would have to ensure that the mass 

concentration of metals is also lower to 

comply with the thermal emission 

formatted standard. The source would 

consequently emit less metals (on a 

mass basis) because of the lower metal 

mass concentration in the waste fuel. 

Thermal emission standards reflect the 

reality that the hazardous waste fuels 

that are currently processed safely and 

efficiently in energy recovery units to 

displace valuable fossil fuel do in fact 

contain metal HAP. From a feed control 

perspective, the thermal emissions 

format appropriately requires sources to 

process high energy content hazardous 

waste fuels that reflect the thermal feed 

control levels achieved by the average of 

the best performing sources, and does so 

equally for all sources because it 

normalizes the allowable emissions 

based on the amount of energy each 

source recovers from the hazardous 

waste. 

Comment: A commenter states that 

EPA should be concerned that fuel 

blenders and kilns will use the thermal 

emission standard format to increase the 

allowable metals feedrates for their 

units. The commenter claims that 

sources could inappropriately convert 

non-hazardous waste fuel to hazardous 

waste fuel by simply putting coal in a 

bunker in which hazardous waste was 

once stored, or mixing nonhazardous 

waste fuel oil with hazardous waste. 

The commenter states that a facility 

with a low hazardous waste firing rate, 

and relatively low allowable emissions 

can become a facility with a high 

hazardous waste percent firing rate, 

with higher allowable emissions, simply 

by ‘creative’ use of the hazardous waste 

mixture rule. The commenter suggests 

that EPA clearly state that the hazardous 

waste thermal emission standards apply 

only to the hazardous waste portion of 

the fuel blend mixture. The commenter 

further suggests that EPA require fuel 

blenders to report the amount of 

nonhazardous waste fuel that is 

contained in the fuel blend, and that 

cement kilns use this to determine 

allowable metal feed rates based on the 

original hazardous waste energy 

content. 

Response: We do not believe 

hazardous waste combustors will engage 

in the practice of redesignating their 

fossil fuels, i.e., coal, as hazardous 

wastes with creative use of the mixture 

rule in order to increase their allowable 

metal HAP emission rate. That would 

require large quantities of coal to be 

newly classified as hazardous waste. 

The coal, and the unit where the coal is 

stored, would subsequently become 

subject to all applicable subtitle C 

requirements, which include storage 

and closure/post closure requirements. 

We believe this disincentive will 

discourage this hypothetical practice. 

Moreover, as previously discussed, 

today’s rule does not allow cement kiln 

or lightweight aggregate kiln emissions 

to exceed the interim standards. The 

fact that we are issuing emission 

59456 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

117We reference comments submitted by the 

cement kiln recycling coalition that address this 

very point. See USEPA, ‘‘Comment Response 

Document to the Proposed HWC MACT Standards, 

Volume 1: MACT Standards,’’ September 2005, 

Section 3.3. We have evaluated these comments and 

find them persuasive on this issue. 

118Although today’s final rule allows sources to 

extrapolate their allowable hazardous waste feed 

control levels to levels that are higher than the level 

demonstrated in the comprehensive performance 

test, sources must still spike metals into the 

hazardous waste during the test in order to assure 

that the system removal efficiency used for the 

extrapolation procedure is reliable and accurate. 

119SW–846, ‘‘Test Methods for Evaluating Solid 

Waste, Physical/Chemical Methods.’’

standards for some pollutants in the 

thermal emissions standard format will 

not encourage fuel blenders to send 

more metals to these commercial energy 

recovery sources because their 

allowable emission concentrations are, 

by definition, either equivalent to or 

more stringent than the current 

limitations with which they are 

complying. Thus, even if the fuel 

blenders and energy recovery units 

engaged in this practice, they could not 

emit more metals than they are 

currently allowed to emit. We therefore 

conclude that it is not necessary to 

promulgate complicated regulatory 

provisions that would increase the 

reporting and recordkeeping 

requirements of fuel blenders and 

energy recovery units in order to 

address a hypothetical scenario that 

likely would never occur. 

Finally, we note that combustion of 

certain high HAP metal content wastes 

is already prohibited under RCRA rules. 

See 40 CFR 268.3. Such wastes remain 

prohibited from combustion even if they 

are mixed with fossil fuel so that the 

mixture has a higher energy content. 

U.S. v. Marine Shale Processors, 81 F. 

3d 1361, 1366 (5th Cir. 1996) (an 

unrecyclable hazardous waste is not 

recycled when it is mixed with a usable 

non-waste and the mixture is 

processed). Thus, the dilution 

prohibition in § 268.3 serves as a further 

guard against the commenter’s concern. 

Comment: A commenter states that 

the thermal emissions format may be 

problematic because it is based on a 

flawed assumption that metal HAP from 

the cement kiln raw material and 

hazardous waste partition in equal 

proportions to the total stack gas 

emissions. The commenter believes that 

metal retention in the raw materials is 

higher than the hazardous waste, 

suggesting that thermal emission 

standards allow an arbitrary increase in 

allowable hazardous waste metals 

emissions. The commenter suggests that 

EPA require that compliance 

demonstrations be conducted only 

under conditions where the metals 

content in the hazardous waste is 

significantly higher than the metal 

content in the raw material to minimize 

this bias. 

Response: The commenter has not 

provided any emissions data to support 

this claim, nor does the EPA know of 

data available that reaches this 

conclusion. We do not believe there is 

a significant difference in the 

partitioning rates of these metals in a 

cement kiln.117 Even if there is a 

difference, this would not result in an 

arbitrary increase of allowable 

hazardous waste metals emissions. The 

thermal emission standards were 

calculated using thermal emissions data 

that are based on each source’s 

compliance test. These tests were 

conducted at hazardous waste feed 

control levels that represented the upper 

bound of feed control levels these 

sources see on a day-to-day basis. To 

accomplish this, sources spiked metals 

into the hazardous waste prior to 

combusting the wastes. The amount of 

metals that were contained in the 

hazardous waste streams, after 

accounting for these spiked metals, far 

exceeded the metal levels that were 

contained in the raw material. Thus the 

differences in partitioning, if any, would 

likely be overshadowed by the fact that 

the majority of the metals were 

contained in the hazardous waste. 

Notably, any partitioning bias that 

that may be present would also have 

been present during these compliance 

tests. As a result, this potential bias 

would be built into the emission 

standard and thus would not result in 

an arbitrary increase in allowable 

hazardous waste metals emissions 

because these sources will again 

demonstrate compliance under testing 

conditions similar to those used to 

generate the data used to calculate the 

MACT floors. We conclude that it is not 

necessary to provide additional 

prescriptive regulatory language that 

would require sources to demonstrate 

system removal efficiencies under 

testing conditions that exhibit a high 

ratio of hazardous waste metal content 

to raw material metal content because 

the regulations implicitly require 

sources to demonstrate hazardous waste 

metal feed control levels that represent 

the upper range of their allowable feed 

control levels.118

Comment: A commenter states that 

compliance with standards expressed in 

a thermal emissions format is 

problematic because the measurement 

of energy content of hazardous waste 

fuel blends is subject to significant 

variability due to the nature of the test. 

The commenter also claims that heating 

value measurements of waste streams 

that are mixtures of solids and liquids 

tend be biased high, which would 

inappropriately give these sources 

higher allowable metal emission 

limitation. 

Response: There are standard ASTM 

procedures that reliably measure the 

energy content of the hazardous waste. 

Any parameter that is measured for 

compliance purposes is subject to 

method imprecision and variability. We 

do not believe that hazardous waste 

energy content measurements result in 

imprecision and variability above and 

beyond the measurement methods that 

are currently used to assure compliance 

with emission concentration-based 

standards. 

The commenter did not provide 

evidence that supports the claim that 

energy content measurement and/or 

sampling methods consistently result in 

a positive bias. If a bias were 

consistently present for these types of 

wastes, then one would expect it to be 

also reflected in the measured data for 

which we based the emission standards, 

which would fully address the 

commenter’s concern. Nonetheless, we 

note that all hazardous waste sampling 

and analysis procedures must be 

prescribed in each source’s feedstream 

analysis plan, which can be reviewed by 

the permitting authority upon request. 

These feedstream analysis plans must 

ensure that sampling and analysis 

procedures are unbiased, precise, and 

that the results are representative of the 

feedstream. See § 63.1208(b)(8). More 

information on obtaining a 

representative samples can be found in 

EPA’s SW–846 publication.119 These 

procedures involve acquiring several 

sub-samples that provide integration 

over the breadth, depth and surface area 

of the waste container and obtaining 

replicate samples (see Ch. 13.3.1 of SW–

846). 

Comment: A commenter states that 

BTU measurements can be reported as 

either a higher heating value or a lower 

heating value, and suggests that EPA 

require sources to use the lower heating 

value calculation when determining 

allowable hazardous waste feed control 

levels. The commenter seems to imply 

that use of higher heating values will 

inappropriately result in higher 

allowable metal feed rates for fuel 

blends that contain aqueous waste. 

Response: The BTU data in our 

database that we use to calculate the 

emission standards reflect higher 

heating values. It is standard practice in 

the incineration/combustion industry to 

report the gross heat of combustion (or 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59457 

120The difference between the higher heating 

value and lower heating value of an aqueous waste 

is insignificant relative to the difference in heating 

value between an aqueous waste and an organic 

liquid waste fuel. 

121An F-factor is an estimate of the amount of 

combustion gas volume that is generated per fuel 

heat input for a given type of fuel, expressed in 

units, for example, cubic feet of combustion gas per 

million British thermal units (BTU) of fuel burned. 

In the proposal, EPA used F-factors to convert the 

emission standards expressed on a thermal basis to 

mass concentrations in order to make a judgment 

as to the relative stringency of the proposed MACT 

standards relative to the interim standards. 

122For example, see 69 FR at 21255–258, 267–

271. 

123Although the mercury standard promulgated 

for cement kilns is not expressed using a thermal 

emission format basis, the same concept applies 

because the mercury standard is a hazardous waste 

feed concentration standard, which is a different 

format than the interim standard. 

higher heating value). We conclude that 

sources should use the higher heating 

value rather than the lower heating 

value for all compliance determinations 

because these are method-based 

emission standards. Fuel blends that 

contain aqueous wastes will not be 

inappropriately rewarded with higher 

allowable feed rates because any fuel 

mixture that contain aqueous mixtures 

will have lower reported heating values, 

irrespective of whether they are 

reported as higher heating values or 

lower heating values.120

E. Standards Can Be No Less Stringent 

Than the Interim Standards 

Comment: Several commenters 

oppose EPA’s position in the proposed 

rule that the replacement standards can 

be promulgated at a level no less 

stringent than the interim standards for 

incinerators, cement kilns, and 

lightweight aggregate kilns. In instances 

where the calculated replacement 

standard is less stringent than the 

interim standard, the commenters 

oppose EPA’s position of ‘‘capping’’ the 

replacement standard at the level of the 

interim standard to prevent backsliding 

from those levels. Instead, commenters 

recommend that EPA calculate and 

finalize the existing and new source 

floor levels without regard to the 

interim standards. One commenter also 

notes that the interim standards are 

simply a placeholder without the 

necessary statutory basis to qualify as 

emission limitations for purposes of 

establishing MACT floors. Another 

commenter, however, supports EPA’s 

position to prevent backsliding to levels 

less stringent than the interim 

standards. 

Response: We maintain that the 

replacement standards can be no less 

stringent than existing standards, 

including the interim standards under 

§§ 63.1203–1205, for incinerators, 

cement kilns, and lightweight aggregate 

kilns. These standards were 

promulgated on February 13, 2002, and 

sources were required to comply with 

them no later than September 30, 2003, 

unless granted a one-year extension (see 

§ 63.1206(a)). Thus, all hazardous waste 

combustors are currently complying 

with the interim standards. The 

comment that the standards lack some 

type of requisite statutory pedigree 

misses the central point of our 

interpretation of the statute: motivation 

for achieving a standard (be it regulatory 

compulsion, statutory requirement, or 

some other reason) is irrelevant in 

determining levels of MACT floors. 

National Lime v. EPA, 233 F. 3d at 640. 

What matters is the level of 

performance, not what motivated that 

level. 

As a result, the replacement standards 

promulgated today ensure that sources 

will emit HAP at levels no higher than 

levels achieved under current 

regulations. We do this in this rule, 

when necessary, by either capping a 

calculated floor level by the interim 

standard (when both the calculated floor 

level and interim standard are expressed 

in the same format of the standard) or 

by adopting dual standards in cases 

where formats of the standard vary (so 

that comparison of stringency cannot be 

uniformly determined (as for cement 

kilns and lightweight aggregate kilns, as 

explained in the preceding section 

above and in the following response). In 

this case, the sources are subject to both 

the replacement and interim standards. 

Comment: One commenter states that 

some proposed standards expressed in a 

thermal emissions format would allow 

some sources to emit semivolatile 

metals at levels higher than the interim 

standard. The commenter states that 

EPA reached incorrect conclusions 

when making relative stringency 

comparisons between standards 

expressed in a thermal emissions and 

mass concentrations format because, in 

part, EPA assumed an average F-factor 

(e.g., semivolatile metals for cement 

kilns).121 In addition, the commenter 

notes that the actual relationship 

between standards expressed in terms of 

thermal emissions and mass 

concentrations is complex and depends 

on a number of factors. As a result, the 

commenter urges EPA to adopt dual 

standards (i.e., promulgate the MACT 

standard as both the standard expressed 

in a thermal emissions format and also 

the interim standard expressed in a 

mass concentration format) to prevent 

backsliding. 

Response: Even though a source may 

operate in compliance with a standard 

expressed in a thermal emission format, 

a source may or may not also be in 

compliance with the corresponding 

mass concentration interim standard 

(e.g., the semi- and low volatile metal 

emission standards for cement and 

lightweight aggregate kilns of §§ 63.1204 

and 63.1205, respectively). As reflected 

in the comment, making a judgment as 

to whether a replacement standard is 

more stringent than the interim standard 

for the HAP is not always a straightforward calculation. As we discussed in 

the proposed rule 122 and echoed by the 

commenter, comparing standards in the 

thermal emissions format to those in a 

mass concentration format involves 

assumptions that vary on a site-specific 

basis and can vary over time, including 

the hazardous waste fuel replacement 

rate, contributions to emissions from 

nonhazardous waste inputs such as raw 

materials and nonhazardous waste fuels 

such as coal, how close to the standard 

a source elects to comply, the system 

removal efficiency demonstrated during 

testing, and the type and composition, 

including heating value, of fuels burned. 

To ensure that sources operating 

under standards expressed in a thermal 

emissions format will not emit HAP 

metals at levels higher than currently 

achieved under the interim standards, 

we adopt a dual standard to prevent 

emissions increasing to levels higher 

than the interim standards. The dual 

standard structure includes both the 

standard expressed in a thermal 

emissions format and the interim 

standard, which is expressed in a mass 

concentration format. We apply this 

concept to several standards including 

semivolatile metals, low volatile metals, 

and mercury 123 for cement kilns and 

semivolatile metals and low volatile 

metals for lightweight aggregate kilns. 

This approach ensures that sources are 

not emitting HAP metals above the 

levels of the interim standards because 

we cannot reliably determine that 

emissions under a standard expressed in 

a thermal emissions format would not 

exceed the interim standard for all 

sources in the category. See 

§§ 63.1220(a)(2)–(a)(4), and (b)(2)–(b)(4) 

and 63.1221(a)(3)–(a)(4) and (b)(3)–

(b)(4). 

We evaluated the relative stringency 

of the standards expressed in the 

thermal emissions format compared to 

the interim standards for the entire 

source category in order to determine if 

the dual standard scheme could be 

avoided. We determined that we could 

not. For some HAP groups we found 

that many sources in the category would 

have the potential to exceed the interim 

59458 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

124An example for each category is semivolatile 

metals thermal emissions standard for existing 

cement and lightweight aggregate kilns. See USEPA, 

‘‘Final Technical Support Document for the HWC 

MACT Standards, Volume III: Selection of MACT 

Standards,’’ Section 23.1, September 2005. 

125An example is the emission standards for low 

volatile metals for existing and new cement kilns 

and new lightweight aggregate kilns. See USEPA, 

‘‘Final Technical Support Document for the HWC 

MACT Standards, Volume III: Selection of MACT 

Standards,’’ Section 23.1, September 2005. 

126 In response to a comment regarding the 

implementation of dual standards, we note the 

promulgation of a new provision allowing sources 

to petition the Administrator to waive the HAP 

metal feedrate operating parameter limits for either 

the emissions standards expressed in a thermal 

emissions format (or the mercury feed 

concentration standard for cement kilns) or the 

interim standards based on documentation that the 

feedrate operating parameter limit is not needed to 

ensure compliance with the relevant standard on a 

continuous basis. See new § 63.1209(g)(1)(iv) and 

Comment Response Document, Volume I, Section 

3.5. 

127See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 19, for 

further discussion. 

128For a single test condition the t factor used in 

variability factor calculation has n–1 degrees of 

freedom where n is the number of runs for that 

condition. For the MACT floor calculation the t 

factor has X–N degrees of freedom where X is the 

total number of runs from all sources in the MACT 

pool and N is the number of sources in the pool. 

See USEPA, ‘‘Technical Support Document for the 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September, 2005, Section 7.1 for 

more information on the floor calculation 

procedure. 

standards for that HAP.124 In this case, 

we considered simply ‘‘capping’’ the 

standard expressed in the thermal 

emission format by the interim standard 

(i.e., the promulgated standard would 

only be expressed in a mass 

concentration format). However, we 

conclude that this approach would not 

be appropriate because the standard 

expressed in a thermal emission format 

would likely be more stringent than the 

mass concentration for some sources, 

and the statute requires that MACT 

floors reflect this superior level of 

performance. 

In other cases we found that the 

standards expressed in the thermal 

emissions format would not likely 

exceed the interim standards by the 

majority of sources operating under 

typical conditions.125 While our 

analysis (based on information in our 

data base) shows in these cases that the 

emission standard expressed in a 

thermal emission format would not 

likely result in an exceedance of the 

interim standard, this conclusion may 

not be true because the assumptions 

may not be valid for a particular source 

or site-specific factors may change in 

future operations. For example, HAP 

metal emissions could increase over 

time due to increases in HAP 

contributions from raw materials or 

alternative raw materials. Given this 

potential, we adopt dual standards for 

the HAP metal standards in order to 

ensure that standards expressed in a 

thermal emissions format will not 

exceed emission levels achieved under 

the interim standards.126

Comment: Several commenters state 

that the interim standards do not reflect 

the average performance of the best 

sources, and so cannot be the basis for 

floor levels. 

Response: In those few situations 

where we have established floor levels 

at the level of the interim standards, we 

have done so as the best means of 

estimating performance of the best 

performing sources. Based on the 

available data to us, the average of the 

best performing sources exceeds the 

level of the interim standards in a few 

instances. Under these circumstances, 

the binding regulatory limit becomes the 

best means available to us to estimate 

performance. See Mossville, 370 F. 3d at 

1241–42 (accepting regulatory level as a 

floor standard where sources’ measured 

performance is not a valid means of 

determining floor levels, and where 

such data contains results as high as 

those regulatory levels). 

F. How Can EPA’s Approach to 

Assessing Variability and its Ranking 

Methodologies Be Reasonable When 

They Result in Standards Higher Than 

the Interim Standards? 

A commenter argued that EPA’s floor 

methodologies, in particular its 

consideration of variability beyond that 

demonstrated in single test conditions, 

the SRE/feed and Air Pollution Control 

Device methodologies, must be arbitrary 

because in a few instances projected 

standards using these approaches were 

higher than the current interim 

standards, a level every source (not just 

the best performers) are achieving. 

Commenters also noted that one of the 

new source standards calculated under 

these approaches was higher than an 

existing source standard, another 

arbitrary result. 

EPA believes that these seeming 

anomalies (which are infrequent) result 

from the database used to calculate 

performance and standards, rather than 

from the approaches to assessing 

variability or the two questioned floor 

methodologies. The data base is from 

test results which preceded EPA’s 

adoption of the interim standards. Thus, 

the level of performance required by the 

later rule is not necessarily reflected in 

pre-rule test data. In confirmation, some 

of the standards computed using 

straight emission approaches also are 

higher than the interim standards. Other 

anomalies arise simply due to scarcity 

of data (floor levels for certain HAP 

emitted by lightweight aggregate kilns 

especially, where there are only nine 

sources total). In these situations there 

is a greater likelihood that one or more 

of the best performing sources will have 

relatively high emissions because we are 

required to use data from five sources to 

comprise the MACT pool whenever we 

have data from fewer than 30 sources, 

and a small amount of data can skew the 

result. See § 112(d)(3)(B).127

For example, many of the calculated 

new source chlorine floors were slightly 

higher than the calculated existing 

source standards because we assumed 

all sources with measured emissions 

below 20 ppmv were in fact emitting at 

20 ppmv (see part four, section I.C). We 

generally are unable to differentiate a 

single best performing source among 

these best performers because many/all 

of the best performing sources emissions 

are adjusted to the same emission level. 

The calculated new source floor can be 

slightly higher than the existing source 

floor because the variability factor that 

is applied to the single best performing 

source is based on only one test 

condition (with three emission test 

runs). This results in a higher level of 

uncertainty relative to the existing 

source standard, which is based on a 

compilation of emissions data from 

several sources that have essentially the 

same projected emissions as a result of 

the method bias correction factor. The 

variability factor that is applied to the 

emissions of the single best performing 

source is therefore higher than the 

variability factor for the existing source 

floor because there are fewer degrees of 

freedom in the statistical analysis.128

Likewise, many of the calculated solid 

fuel boiler new source standards were 

slightly higher than the calculated 

existing source standards because, as 

discussed above, there are fewer degrees 

of freedom when assessing the 

variability from a single best performing 

source. The solid fuel boiler 

‘‘anomalies’’ also occur using a straight 

emissions methodology. See USEPA, 

‘‘Technical Support Document for the 

HWC MACT Standards, Volume III: 

Selection of MACT Standards,’’

September, 2005, Section 19, for further 

discussion that summarizes and 

explains these so-called anomalies. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59459 

129 ‘‘Enumerated’’ metals are those HAP metals 

directly controlled with an emission limit, i.e., lead, 

cadmium, chromium, arsenic and beryllium. The 

remaining nonmercury metal HAP (i.e., antimony, 

cobalt, manganese, nickel, and selenium) are called 

‘‘nonenumerated’’ metal HAP (note that arsenic and 

berrylium are nonenumerated metals for liquid fuel 

boilers because the low volatile metal emission 

standard applies only to chrome). 

130This statement is equally true for any emitting 

source, not just hazardous waste combustors. It is 

well established that semivolatile and low volatile 

metals exist in solid particulate form at typical air 

pollution control device operating temperatures. 

This is supported by (1) known operating 

temperature ranges of air pollution control devices 

used by hazardous waste combustors; (2) known 

metal volatility equilibrium relationships; and (3) 

extensive technical literature. See USEPA, 

‘‘Technical Support Document for the HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ September 2005, Section 3.1. 

131At best, we may have enough compliance test 

data for antimony and selenium to adequately 

assess relevant best performers for only incinerators 

and lightweight aggregate kilns. 

IV. Use of Surrogates 

A. Particulate Matter as Surrogate for 

Metal HAP 

Comment: A commenter states that 

EPA’s use of particulate matter as a 

surrogate for nonenumerated metals is 

unlawful and arbitrary and capricious 

because although particulate matter 

emissions may provide some indication 

of how good a source’s end-of stack 

control of such metals is, it does not 

indicate what its actual metal emission 

levels are.129 The commenter states that 

emissions of these metals can vary 

based on metal feed rate without having 

any appreciable effect on particulate 

matter emission levels. Thus a 

particulate matter standard does not 

necessarily ensure that metal emissions 

are reduced to the metal emission levels 

achieved by the relevant best 

performing sources. To support this 

assertion, the commenter states that 

EPA is on record saying ‘‘low 

particulate matter emissions do not 

necessarily guarantee low metal HAP 

emissions, especially in instances where 

the hazardous waste feeds are highly 

concentrated with metal HAP.’’ 69 FR at 

21221. 

Response: The final rule uses a 

particulate matter standard as a 

surrogate to control: (1) Emissions of 

nonenumerated metals that are 

attributable to all feedstreams (both 

hazardous waste and remaining inputs); 

and (2) all nonmercury metal HAP 

emissions (both enumerated and 

nonenumerated metal HAP) from the 

nonhazardous waste process feeds at 

cement kilns, lightweight aggregate 

kilns, and liquid fuel boilers (e.g., 

emissions attributable to coal and raw 

material at a cement kiln, and emissions 

attributable to fuel oil for liquid fuel 

boilers). Incinerators, liquid and solid 

fuel boilers may elect to comply with an 

alternative to the particulate matter 

standard that would limit emissions of 

all the semivolatile metal HAPs and low 

volatile metal HAPs. See § 63.1219(e). 

The particulate matter standard is a 

necessary, effective, and appropriate 

surrogate to control nonmercury metal 

HAPs. The record demonstrates 

overwhelmingly that when a hazardous 

waste combustor emits particulate 

matter, it also emits nonmercury HAP 

metals as part of that particulate matter, 

and that when particulate matter is 

removed from emissions the 

nonmercury HAP metals are removed 

with it.130 Nonmercury metal HAP 

emissions are therefore reduced 

whenever particulate matter emissions 

are reduced. The particulate matter 

standard thus is an effective and 

appropriate surrogate that assures 

sources are controlling these metal HAP 

with an appropriate back-end control 

technology. National Lime v. EPA, 233 

F. 3d at 639. The nonenumerated metal 

HAP are no different than other 

semivolatile or low volatile metals in 

that they also will be effectively 

controlled with a back-end particulate 

matter air pollution control device. 

We also considered the possibility of 

developing a standard for 

nonenumerated HAP metals instead of a 

PM standard (i.e., regulating these 

metals directly, rather than through use 

of a surrogate). We conclude for several 

reasons, however, that issuing emission 

standards for these nonenumerated 

metals in lieu of a particulate matter 

standard would not adequately control 

nonmercury metal HAPs to levels 

achieved by the relevant best 

performing sources. 

We generally lack sufficient 

compliance test emissions data for the 

noneneumerated metals to assess the 

relevant best performing sources, 

because, as discussed below, most of 

these metals were not directly regulated 

pursuant to RCRA air emission 

standards.131 Although we have more 

emissions data for these metals that are 

based on (so called) normal operations, 

we still lack sufficient emissions data to 

establish nonenumerated metal 

standards for all the source categories. 

Use of normal data may also be 

problematic because of the concern 

raised by the cement kiln and 

lightweight aggregate kiln stakeholders 

that our normal metals emissions data 

obtained from compliance tests are not 

representative of the range of actual 

emissions at their sources. Cement kiln 

and lightweight aggregate kiln 

stakeholders submitted long-term 

hazardous waste mercury feed control 

data that support their assertion. 

Although these stakeholders did not 

submit long-term normal hazardous 

waste feed control data for the 

nonenumerated metals, we can still see 

that use of the normal nonenumerated 

metal snapshot emissions in our 

database to determine MACT floors 

could raise similar concerns with 

respect to whether the normal data in 

fact represents average emissions at 

these sources, and their level of 

performance. 

Use of particulate matter emissions 

data to assess the relevant best 

performers for nonenumerated metal 

HAP is therefore more appropriate for 

two reasons. Compliance test data better 

account for emissions variability and 

avoid the normal emissions bias 

discussed above. We also have much 

more particulate matter emissions data 

from more sources, which better allows 

us to evaluate the true range of 

emissions from all the sources within 

the source category and to assess and 

identify the relevant top performing 12 

percent of the sources. 

It would be inappropriate to assess 

total stack gas emissions of 

nonenumerated metals for cement kiln 

and lightweight aggregate kilns when 

determining the relevant best 

performers because these emissions 

would, in part, reflect the metal feed 

levels in these sources’ nonhazardous 

waste process feedstreams. This is not 

appropriate because nonhazardous 

process feedstream control is not a 

feasible means of control. See part four, 

section III.B.1. A potential solution to 

this problem would be to identify the 

relevant best performers by assessing 

each source’s hazardous waste thermal 

emissions for these nonenumerated 

metals (given that hazardous waste 

thermal emissions exclude by definition 

emissions attributable to inputs other 

than hazardous waste, i.e. raw materials 

and fossil fuels). This, however, would 

be problematic because, aside from the 

data limitation issues, the majority of 

the nonenumerated metals data reflect 

normal emissions which often do not 

contain the highest feed rates used by 

the source. As a result, we cannot assess 

performance on a thermal emissions 

basis because of the uncertainty 

associated with system removal 

efficiencies at such low metal feedrates. 

Furthermore, even if we could issue 

hazardous waste thermal emissions 

standards for these metals, a particulate 

matter emission standard would still be 

necessary to control nonmercury metal 

HAP emissions from the nonhazardous 

waste process feedstreams. 

59460 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

132Sources that otherwise would be equipped 

with what is considered to be a MACT back-end 

control devices (i.e., a control device achieving the 

final rule particulate matter standard) may not be 

able to achieve these metal emissions standards due 

to varying metal feed levels (both within sources 

and across sources). Such an outcome may require 

a source to limit the amount of metal that is fed into 

the combustion unit to achieve the standard. 

133Antimony is the only nonenumerated metal 

that is directly regulated pursuant to the boilers and 

industrial furnace regulations. See § 266.106. 

134We generally cannot combine these 

nonenumerated metals into the associated 

semivoltile or low volatile metal volatility 

groupings promulgated in this final rule for 

purposes of establishing ‘‘grouped’’ emission 

standards because we cannot mix compliance test 

data with normal emissions data when calculating 

floors (the majority of the standards included in this 

final rule are based on compliance test data, and the 

majority of the data we have for nonenumerated 

metals being normal). Furthermore, if we were to 

separately group the normal nonenumerated metal 

emission data into their associated semivolatile or 

low volatile metal group, we may encounter data 

limitation issues because each source would need 

to have measured each of the nonenumerated 

metals in that associated metal volatility group in 

order for us to conclude that the emission data 

adequately represents the sources combined 

emissions of semivolatile or low volatile metals. 

135See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 3.1. 

Emission standards for these 

nonenumerated metals could require 

sources to implement hazardous waste 

feed control (for these metals) to comply 

with the standard.132 We are less 

assured that these sources were 

implementing hazardous waste feed 

control for these nonenumerated metals 

at the time they conducted the 

emissions tests (which serve as the basis 

for floor calculations) because most of 

these metals were never directly 

regulated pursuant to the RCRA 

emission standards.133 This means that 

sources tended to optimize (or at least 

concentrate their efforts on) control of 

the metals that are regulated. Although 

these metals were being controlled with 

each source’s back-end control device, 

sources may not have been controlling 

these metal feedrates because they 

probably were not subject to specific 

feedrate limitations (feed control of the 

enumerated metal HAP does not ensure 

feed control of these nonenumerated 

metal HAP). Furthermore, simultaneous 

feed control of all these metals, when 

combined with enumerated semivolatile 

and low volatile metals, may not be 

possible because the best performing 

sources for all these metals may 

collectively represent a hazardous waste 

feedstream that does not exist in 

practice (from a combined metal 

concentration perspective) because 

there likely would be different best 

performers for each of the metal HAP or 

metal HAP groups.134 We thus conclude 

that back-end control as measured and 

assessed by each source’s particulate 

matter emissions is the appropriate floor 

technology to assess when identifying 

the relevant best performers for 

nonenumerated HAP metals and 

estimating these sources’ level of 

performance. 

Comment: A commenter states that 

EPA’s rationale for use of particulate 

matter as a surrogate for nonenumerated 

metals is flawed because EPA has 

provided no data in the proposal to 

justify its hypothesis that particulate 

matter is an appropriate surrogate for 

non-enumerated metal HAP. The 

commenter also states that the proposed 

emission standards for particulate 

matter for existing sources discriminate 

against boilers and process heaters that 

burn clean (i.e., little or very low 

concentrations of HAP metals) 

hazardous waste fuels. The commenter 

suggests that if there are sufficient data, 

EPA should consider developing an 

alternative emission standard for total 

HAP metals for new and existing liquid 

fuel boilers, as was done for the Subpart 

DDDDD National Emission Standards 

for Hazardous Air Pollutants for 

Industrial/Commercial/Institutional 

Boilers and Process Heaters. 

Response: As previously discussed in 

this section, particulate matter reflects 

emissions of nonmercury metal HAPs 

because these compounds comprise a 

percentage of the particulate matter 

(provided these metals are fed into the 

combustion unit). The technologies that 

have been developed and implemented 

to control particulate matter also control 

nonmercury metal HAP. Since nonmercury metal HAP is a component of 

particulate matter, we can use 

particulate matter as a surrogate for 

these metals. Further justification for 

the use of particulate matter as a 

surrogate to control metal HAP is 

included in the technical support 

document.135

We conclude that we do not have 

enough nonenumerated metal emissions 

data to calculate alternative total metal 

emission floors for liquid fuel boilers. 

The most problematic of these metals 

are manganese and cobalt, where we 

have emission data from only three 

sources. We have much more 

compliance test particulate matter 

emissions data from liquid fuel boilers, 

and thus conclude that the particulate 

matter standard best reflects the 

emission levels achieved by the relevant 

best performers. 

Similar to the above discussion, 

calculating an alternative total metal 

emissions floor raises questions 

regarding the method used to calculate 

such floors. Hazardous waste combustor 

metal emissions have traditionally been 

regulated in volatility groupings because 

the volatility of the metal affects the 

efficiency of back-end control (i.e., 

semivolatile metals are more difficult to 

control than low volatile metals because 

they volatilize in the combustor and 

then condense as small particulates 

prior to or in the emission control 

device). When identifying the best 

performing sources, we previously have, 

in general, only evaluated sources that 

have metal emissions information for 

every metal in the volatility grouping. 

This approach could prove to be 

problematic since it is not likely many 

sources will have emissions data for all 

the metals. 

Although we could not calculate 

alternative total metal emission floor 

standards based on the available 

emissions data we have, we agree with 

the commenters’ view that sources that 

burn hazardous waste fuels with low 

levels of nonenumerated metals should 

be allowed to comply with a metals 

standard rather than the particulate 

matter standard. We proposed an 

alternative to the particulate matter 

standard (see 69 FR at 21331) for 

incinerators, liquid, and solid fuel 

boilers that was a simplified version of 

the alternative particulate matter 

standard that is currently in effect for 

incinerators pursuant to the interim 

standards (see § 63.1206(b)(14)). We 

received no adverse comment and are 

promulgating this alternative as 

proposed. The alternative metal 

standards apply to both enumerated and 

nonenumerated metal HAP, excluding 

mercury. For purposes of these 

alternative requirements, each 

nonenumerated metal is classified as 

either a semivolatile or a low volatile 

metal and subsequently grouped with 

the associated semivolatile and low 

volatile enumerated metals. The 

semivolatile and low volatile metals 

standards under this alternative are the 

same as those that apply to other liquid 

fuel boilers, but the standard would 

apply to all metal HAP, not just those 

enumerated in the generic low volatile 

metal and semivolatile metal standards. 

See §§ § 63.1216(e), 63.1217(e) and 

63.1219(e). 

B. Carbon Monoxide/Hydrocarbons and 

DRE as Surrogates for Dioxin/Furan 

Comment: One commenter states that 

the dioxin/furan floors for new and 

existing solid fuel boilers is unlawful 

and arbitrary and capricious. EPA 

established the floor for dioxin/furan for 

these sources as compliance with the 

carbon monoxide or hydrocarbon 

standard and the destruction and 

removal efficiency (DRE) standard. The 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59461 

136As discussed in Part Two, Section V, we view 

the carbon monoxide, hydrocarbon, and destruction 

removal efficiency standards as unaffected by the 

Court’s vacature of the September 1999 challenged 

regulations for incinerators, cement kilns, and 

lightweight aggregate kilns. We are therefore not repromulgating and reopening consideration of these 

standards in today’s final rule for these source 

categories. 

137Operating under good combustion conditions 

also helps minimize soot formation on boiler tubes. 

Research has shown that operating under 

conditions that can form soot followed by operating 

under good combustion conditions can lead to 

dioxin/furan formation. See Section 2.4 of Volume 

III of the Technical Support Document. 

138See Energy and Environmental Research 

Corporation, ‘‘’Surrogate Evaluation of Thermal 

Treatment Systems,’’’ Draft Report, October 17, 

1994. 

commenter states that EPA has not 

shown that carbon monoxide or 

hydrocarbon emissions correlate to 

dioxin/furan emissions, and, 

accordingly, has not shown that the 

carbon monoxide or hydrocarbon 

standard, together with the DRE 

standard, are valid surrogates. 

This commenter also states that it is 

inappropriate for EPA to use carbon 

monoxide or hydrocarbons and DRE as 

surrogates to establish dioxin/furan 

floors for liquid fuel boilers with wet or 

no air pollution control devices and for 

hydrochloric acid production furnaces. 

The commenter believes EPA 

inappropriately justifies these surrogates 

by claiming that a numerical dioxin/ 

furan floor would not be replicable by 

the best sources or duplicable by the 

others. The commenter states that EPA 

has no discretion to avoid setting floors 

for a HAP just because it believes that 

HAP is not controlled with a 

technology. Rather, EPA must set floors 

reflecting the relevant best sources’

actual performance. Such floors 

necessarily will be duplicable by the 

relevant best sources themselves. That 

they cannot be replicated by other 

sources is irrelevant according to the 

commenter. 

In addition, the commenter states that 

EPA does not claim or demonstrate that 

the carbon monoxide and hydrocarbon 

floors for solid fuel boilers reflect the 

average emission levels achieved by the 

relevant best sources. 

Finally, the commenter also notes that 

EPA appears to argue that its carbon 

monoxide or hydrocarbon standard and 

DRE standard could be viewed as work 

practice standards under section 112(h) 

which allows EPA to establish work 

practice standards in lieu of emission 

standards only if it is not be feasible to 

set the former. Because EPA has made 

no such demonstration, setting work 

practice standards to control dioxin/ 

furan emissions from boilers would be 

unlawful according to the commenter. 

Response: The commenter raises four 

issues: (1) Are the carbon monoxide/ 

hydrocarbon standard and the DRE 

standard adequate surrogate floors to 

control dioxin/furan; (2) floors for 

existing sources must be established as 

the average emission limitation 

achieved by the best performing sources 

irrespective of whether the limitation is 

duplicable by the best performing 

sources or replicable by other sources; 

(3) EPA has not explained how the 

carbon monoxide and hydrocarbon 

floors reflect the average emission 

limitation achieved by the relevant best 

sources; and (4) EPA cannot establish 

work practice standards for dioxin/furan 

under section 112(h) because it has not 

demonstrated that setting an emission 

standard is infeasible under section 

112(h)(1). 

Carbon Monoxide and Hydrocarbons 

Are Adequate Surrogates to Control 

Dioxin/Furan when Other Controls Are 

Not Effective or Achievable. Carbon 

monoxide and hydrocarbons (coupled 

with the DRE standard) are the best 

available surrogates to control dioxin/ 

furan emissions when a numerical floor 

would not be achievable and when 

other indirect controls, such as control 

of the gas temperature at the inlet of a 

dry particulate matter control device to 

400F, are not applicable or effective.136

As we explained at proposal, 

operating under good combustion 

conditions to minimize emissions of 

organic compounds such as 

polychlorinated biphenyls, benzene, 

and phenol that can be precursors to 

dioxin/furan formation is an important 

requisite to control dioxin/furan 

emissions.137 See 69 FR at 21274. 

Minimizing dioxin/furan precursors by 

operating under good combustion 

practices plays a part in controlling 

dioxin/furan emissions, and that role is 

substantially enhanced when there are 

no other dominant factors that relate to 

dioxin/furan formation and emission 

(e.g., operating a dry particulate matter 

control device at temperatures above 

400F). 

Carbon monoxide and hydrocarbons 

are widely accepted indicators of 

combustion conditions. The current 

RCRA regulations for boilers and 

hydrochloric acid production furnaces 

use emissions limits on carbon 

monoxide and hydrocarbons to control 

emissions of toxic organic compounds. 

See 56 FR 7150 (February 21, 1991) 

documenting the relationship between 

carbon monoxide, combustion 

efficiency, and emissions of organic 

compounds. In addition, carbon 

monoxide and hydrocarbons are used by 

many CAA standards for combustion 

sources to control emissions of organic 

HAP, including: MACT standards for 

hazardous waste burning incinerators, 

hazardous waste burning cement kilns, 

hazardous waste burning lightweight 

aggregate kilns, Portland cement plants, 

and industrial boilers; and section 129 

standards for commercial and industrial 

waste incinerators, municipal waste 

combustors, and medical waste 

incinerators. Finally, hydrocarbon 

emissions are an indicator of organic 

hazardous air pollutants because 

hydrocarbons are a direct measure of 

organic compounds. 

Commenters on our proposed MACT 

standards for hazardous waste 

incinerators, cement kilns, and 

lightweight aggregate kilns stated that 

EPA’s own surrogate evaluation 138 did 

not demonstrate a relationship between 

carbon monoxide or hydrocarbons and 

organic HAP at the carbon monoxide 

and hydrocarbon levels evaluated. See 

64 FR at 52847 (September 30, 1999). 

Several commenters on that proposed 

rule noted that this should not have 

been a surprise given that the carbon 

monoxide and hydrocarbon emissions 

data evaluated were generally from 

hazardous waste combustors operating 

under good combustion conditions (and 

thus, relatively low carbon monoxide 

and hydrocarbon levels). Under these 

conditions, emissions of HAP were 

generally low, which made the 

demonstration of a relationship more 

difficult. These commenters noted that 

there may be a correlation between 

carbon monoxide and hydrocarbons and 

organic HAP, but it would be evident 

primarily when actual carbon monoxide 

and hydrocarbon levels are higher than 

the regulatory levels. We agreed with 

those commenters, and concluded that 

carbon monoxide and hydrocarbon 

levels higher than those we established 

as emission standards for hazardous 

waste burning incinerators, cement 

kilns, and lightweight aggregate kilns 

are indicative of poor combustion 

conditions and the potential for 

increased emissions organic HAP. We 

continue to believe that carbon 

monoxide and hydrocarbons are 

adequate surrogates for organic HAP 

which may be precursors for dioxin/ 

furan formation and note that the 

commenter did not explain why our 

technical analysis is problematic. 

Emissions that Are Not Replicable or 

Duplicable Are Not Being ‘‘Achieved’’. 

The commenter believes that floors 

must be established as the average 

emission limitation of the best 

performing sources irrespective of 

whether they are replicable by the best 

performing sources or duplicable by 

other sources. To the contrary, emission 

59462 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

139We note that the same rationale also applies 

to incinerators with wet or no air pollution control 

equipment and that are not equipped with a waste 

heat boiler. 

140See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Sections 12, 

13, and 15. 

141We note, however, that this general principle 

may not always apply. There are data that indicate 

that even though carbon monoxide levels are below 

100 ppmv, hydrocarbon levels may not always be 

below 10 ppmv. See 64 FR at 52851 and Part Four, 

Section IV B. and C. of this preamble. An example 

of how this might occur, although not a likely 

practical scenario, is if combustion is quenched 

before substantial carbon monoxide can be 

generated, leaving unburned hydrocarbons in the 

stack gas. Because of this potential (although 

unlikely) concern, the rule requires sources that 

elect to monitor carbon monoxide rather than 

hydrocarbons to conduct a one-time test to 

document that hydrocarbons are below 10 ppmv 

and to establish operating limits on parameters that 

affect combustion conditions (i.e., the same 

operating parameters that we use for compliance 

assurance with the DRE standard). See 

§ 63.1206(b)(6). 

levels that are not replicable by the best 

performing sources are not being 

‘‘achieved’’ by those sources and cannot 

be used to establish the floor. 

For solid fuel boilers, we explained at 

proposal why dioxin/furan emissions 

are not replicable by the best performing 

sources (or duplicable by other sources): 

there is no dominant, controllable 

means that sources are using that can 

control dioxin/furan emissions to a 

particular level. See 69 FR at 21274–75. 

We explained that data and information 

lead us to conclude that rapid quench 

of post-combustion gas temperatures to 

below 400 °F—the control technique 

that is the basis for the MACT standards 

for dioxin/furan for hazardous waste 

burning incinerators, and cement and 

lightweight aggregate kilns—is not the 

dominant dioxin/furan control 

mechanism for coal-fired boilers. We 

believe that sulfur contributed by the 

coal fuel is a dominant control 

mechanism by inhibiting formation of 

dioxin/furan. Nonetheless, we do not 

know what minimum level of sulfur 

provides significant control. Moreover, 

sulfur in coal causes emissions of sulfur 

oxides, a criteria pollutant, and 

particulate sulfates. For this reason, as 

well as reasons stated at 69 FR 21275, 

we are not specifying a level of sulfur 

in coal for these sources as a means of 

dioxin/furan control. 

The same rationale applies to liquid 

fuel boilers with no air pollution 

controls or wet air pollution control 

systems and to hydrochloric acid 

production furnaces—there is no 

dominant, controllable means that 

sources are using that can control 

dioxin/furan emissions to a particular 

emission level.139 Thus, best performer 

dioxin/furan emissions are not 

replicable by the best performing 

sources (or duplicable by other sources). 

For these sources, the predominant 

dioxin/furan formation mechanism for 

other source categories—operating a 

fabric filter or electrostatic precipitator 

above 400F—is not a factor. 

Given that these sources are not using 

controllable means to control dioxin/ 

furan to a particular emission level, 

there is no assurance that the best 

performers can achieve in the future the 

emission level reported in the 

compliance test in our data base. Put 

another way, the test data do not reflect 

these sources’ variability, and the 

variability is largely unquantifiable 

given the uncertainties regarding control 

mechanisms plus the environmental 

counter-productiveness of encouraging 

use of higher sulfur coal. Hence, that 

reported emission level is not being 

‘‘achieved’’ for the purpose of 

establishing a floor. 

Finally, we note that beyond-the-floor 

controls such as activated carbon can 

control dioxin/furan to a particular 

emission level. If a source were to 

install activated carbon, it could achieve 

the level demonstrated in a compliance 

test, after adjusting the level to account 

for emissions variability to ensure the 

measurement was replicable. The 

commenter argues that such a result is 

mandatory under the straight emissions 

approach (the only way the commenter 

believes best performers can be 

determined). Doing so, however, would 

amount to a surreptitious beyond-thefloor standard (forcing adoption of a 

control technology not used by any 

existing source), without considering 

the beyond-the-floor factors set out in 

section 112(d)(2). In fact, we considered 

beyond-the-floor standards based on use 

of activated carbon for these sources—

solid fuel boilers, liquid fuel boilers 

with wet or no emission control device, 

and hydrochloric acid production 

furnaces—but rejected them for reasons 

of cost. The cost-effectiveness ranged 

from $2.5 million to $4.9 million per 

gram TEQ of dioxin/furan removed. In 

contrast, the cost-effectiveness of the 

beyond-the-floor standard we 

promulgate for liquid fuel boilers 

equipped with dry emission control 

devices is $0.63 million per gram TEQ 

of dioxin/furan removed.140

Consequently, we are not 

promulgating a beyond-the-floor 

standard for dioxin/furan for these 

sources, and do not believe we should 

adopt such a standard under the guise 

of determining floor levels. 

The Carbon Monoxide and 

Hydrocarbon Floors Are Appropriate 

MACT Floors. We explained at proposal 

why the carbon monoxide standard of 

100 ppmv and the hydrocarbon 

standard of 10 ppmv are appropriate 

floors. See 69 FR at 21282. The floor 

level for carbon monoxide of 100 ppmv 

is a currently enforceable Federal 

standard. Although some sources are 

achieving carbon monoxide levels 

below 100 ppmv, it is not appropriate to 

establish a lower floor level because 

carbon monoxide is a conservative 

surrogate for organic HAP. Organic HAP 

emissions may or may not be substantial 

at carbon monoxide levels greater than 

100 ppmv, and are extremely low when 

sources operate under the good 

combustion conditions required to 

achieve carbon monoxide levels in the 

range of zero to 100 ppmv.141 (See also 

the discussion below regarding the 

progression of hydrocarbon oxidation to 

carbon dioxide and water). As such, 

lowering the carbon monoxide floor 

below 100 ppmv may not provide 

significant reductions in organic HAP 

emissions. Moreover, it would be 

inappropriate to establish the floor 

blindly using a mathematical 

approach—the average emissions for the 

best performing sources—because the 

best performing sources may not be able 

to replicate their emission levels (and 

other sources may not be able to 

duplicate those emission levels) using 

the exact types of good combustion 

practices they used during the 

compliance test documented in our data 

base. This is because there are myriad 

factors that affect combustion efficiency 

and, subsequently, carbon monoxide 

emissions. Extremely low carbon 

monoxide emissions cannot be assured 

by controlling only one or two operating 

parameters. 

We proposed a floor level for 

hydrocarbons of 10 ppmv even though 

the currently enforceable standard for 

boilers and hydrochloric acid 

production furnaces is 20 ppmv 

because: (1) Although very few sources 

elect to comply with the RCRA standard 

for hydrocarbons rather than the 

standard for carbon monoxide, those 

that comply with the hydrocarbon 

standard have hydrocarbon levels well 

below 10 ppmv; and (2) reducing 

hydrocarbon emissions within the range 

of 20 ppmv to 10 ppmv may reduce 

emissions of organic HAP. 

Although all sources are likely to be 

achieving hydrocarbon levels below 10 

ppmv, it is not appropriate to establish 

a lower floor level because 

hydrocarbons are a surrogate for organic 

HAP. Although total hydrocarbons 

would be reduced at a floor level below 

10 ppmv, we do not know whether 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59463 

142USEPA, Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards and Technologies, July 1999, 

Section 12.1.2. 

143As discussed in part two, section V, we view 

carbon monoxide, hydrocarbon, and destruction 

removal efficiency standards as unaffected by the 

Court’s vacature of the September 1999 challenged 

regulations for incinerators, cement kilns, and 

lightweight aggregate kilns. We are therefore not repromulgating and did not reconsider these 

standards in today’s final rule for these source 

categories. 

144As discussed in the previous section, these 

standards are also used as surrogates to control 

dioxin/furans for hydrochloric acid production 

furnaces, solid fuel-fired boilers, and liquid fuelfired boilers that are not equipped with dry air 

pollution control devices. 

organic HAP would be reduced 

substantially. As combustion conditions 

improve and hydrocarbon levels 

decrease, the larger and easier to 

combust compounds are oxidized to 

form smaller compounds that are, in 

turn, oxidized to form carbon monoxide 

and water. As combustion continues, 

carbon monoxide is then oxidized to 

form carbon dioxide and water. Because 

carbon monoxide is a difficult-todestroy refractory compound (i.e., 

oxidation of carbon monoxide to carbon 

dioxide is the slowest and last step in 

the oxidation of hydrocarbons), it is a 

conservative surrogate for destruction of 

hydrocarbons, including organic HAP, 

as discussed above. As oxidation 

progresses and hydrocarbon levels 

decrease, the larger, heavier compounds 

are destroyed to form smaller, lighter 

compounds until ideally all 

hydrocarbons are oxidized to carbon 

monoxide (and then carbon dioxide) 

and water. Consequently, the 

relationship between total hydrocarbons 

and organic HAP becomes weaker as 

total hydrocarbon levels decrease to 

form compounds that are not organic 

HAP, such as methane and acetylene.142

Moreover, as discussed above for 

carbon monoxide, it would be 

inappropriate to establish the floor 

blindly using a mathematical 

approach—the average emissions for the 

best performing sources—because the 

best performing sources may not be able 

to replicate their emission levels (and 

other sources may not be able to 

duplicate those emission levels) using 

the exact types of good combustion 

practices they used during the 

compliance test documented in our data 

base. This is because there are myriad 

factors that affect combustion efficiency 

and, subsequently, hydrocarbon (and 

carbon monoxide) emissions. Extremely 

low hydrocarbon emissions cannot be 

assured by controlling only one or two 

operating parameters. 

The Standards for CO and HC Are 

Not Work Practice Standards. The floor 

standards for CO or HC for boilers and 

hydrochloric acid production furnaces 

are quantified emission limits. The 

standards consequently are not work 

practice standards (even though they 

represent levels showing good 

combustion control). CAA section 

302(k). EPA’s reference to section 

112(h)(1) at proposal (69 FR at 21275) 

was consequently erroneous. 

C. Use of Carbon Monoxide and Total 

Hydrocarbons as Surrogate for NonDioxin Organic HAP 143

Comment: A commenter states that 

neither the total hydrocarbon nor carbon 

monoxide standard alone provides 

adequate surrogate control for organic 

HAP. Accordingly, EPA must include 

standards for both. Hazardous waste 

combustors could have total 

hydrocarbon levels below the standard 

during the carbon monoxide compliance 

tests, but higher total hydrocarbon 

levels at other times during normal 

operation because there are many 

variables that can affect total 

hydrocarbon emissions, and these will 

not all be represented during the carbon 

monoxide compliance test. The 

commenter states that EPA is on record 

stating that carbon monoxide limits 

alone may not by itself minimize 

organic emissions because products of 

incomplete combustion can result from 

small pockets within the combustion 

zone where adequate time, temperature, 

turbulence and oxygen have not been 

provided to completely oxidize these 

organics. The commenter also states that 

EPA is on record stating that total 

hydrocarbon levels can exceed good 

combustion condition levels when 

carbon monoxide levels are below 100 

ppmv. 

Response: The final rule requires 

compliance with destruction and 

removal efficiency and carbon 

monoxide or hydrocarbon standards as 

surrogates to control non-dioxin organic 

HAP emissions 144 from liquid fuel 

boilers, solid fuel boilers, and 

hydrochloric acid production furnaces. 

These are effective and reliable 

surrogates to control organic HAP. We 

conclude that simultaneous 

measurement of both total hydrocarbons 

and carbon monoxide with continuous 

emission monitors is not necessary 

because each serves as a reliable 

surrogate to control organic HAP 

emissions. The commenter has cited 

EPA preamble language that was 

included in the April 19, 1996 proposed 

rule for hazardous waste incinerators, 

cement kilns, and lightweight aggregate 

kilns. In that rule we proposed to 

require compliance with both the total 

hydrocarbon standard and the carbon 

monoxide standard. We requested 

comment on whether these 

requirements were redundant, and we 

later requested comment on whether we 

should allow sources to comply with 

either the carbon monoxide standard or 

the total hydrocarbon standard. We 

clarified, however, that allowing sources 

to comply with the carbon monoxide 

standard would be contingent on the 

source demonstrating compliance with 

the hydrocarbon standard during the 

compliance test. We believed this was 

necessary because we had limited data 

that showed a source could have total 

hydrocarbon levels exceeding 10 ppmv 

even though their carbon monoxide 

emission levels were below 100 ppmv. 

EPA subsequently promulgated this 

approach in the September 1999 Final 

Rule. 62 FR 52829. 

Today’s rule adopts the same 

approach for liquid and solid fuel 

boilers and hydrochloric acid 

production furnaces. We again conclude 

that it is not necessary to require 

sources to verify compliance with both 

of these standards on a continuous basis 

with two separate continuous emission 

monitors, given the redundancy of these 

measurement techniques. Total 

hydrocarbon emission measurements 

are a more direct indicator of organic 

HAP emissions than carbon monoxide. 

Hence, continuous compliance with this 

standard always assures that organic 

HAP are well controlled. Carbon 

monoxide is a conservative indicator of 

combustion efficiency because it is a 

product of incomplete combustion and 

because it is a refractory compound that 

is more thermally stable than 

hydrocarbons. The hydrocarbon 

products of incomplete combustion that 

are simultaneously formed during 

incomplete, or inefficient, combustion 

conditions can be subsequently 

oxidized later in the combustion 

process. In such instances carbon 

monoxide will likely still be prevalent 

in the exhaust gas even though the 

products of incomplete combustion 

were later oxidized. The conservative 

nature of carbon monoxide as an 

indicator of good combustion practices 

is supported by our data. At carbon 

monoxide levels less than 100 ppmv, 

our data indicates that there is no 

apparent relationship between carbon 

monoxide and hydrocarbons (other than 

that hydrocarbon levels are generally 

below 10 ppm when carbon monoxide 

levels are below 100 ppm). For example, 

a source with a carbon monoxide level 

of 1 ppm is no more likely to have lower 

59464 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

145See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 3.2 

and USEPA, ‘‘Final Technical Support Document 

for the HWC MACT Standards, Volume III: 

Selection of MACT Standards and Technologies,’’

July 1999, Section 5.1. 

146This is why almost all of the RCRA Land 

Disposal Restiction treatment standards for organic 

waste, which standards are for the most part 

established at an analytic detection level for the 

organic HAP in question plus a variability factor, 

are based on the performance of combustion 

technology. See 40 CFR Part 268.40–43. 

147See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005 Section 7.3. 

measured hydrocarbons than a source 

achieving a carbon monoxide emission 

level of 100 ppm. 145

We consider the few instances where 

the data showed total hydrocarbon 

levels above 10 ppmv while carbon 

monoxide levels are below 100 ppmv to 

be anomalies. Even so, we have 

accounted for this by requiring 

compliance with the hydrocarbon 

standard during the compliance test if a 

source elects to comply with the carbon 

monoxide standard. See 

§§ § 63.1216(a)(5)(i), 1217(a)(5)(i), and 

1218(a)(5)(i). 

We disagree with the commenter’s 

assertion that the total hydrocarbon 

compliance demonstration during the 

compliance test is insufficient. Sources 

are required to establish numerous 

operating requirements based on 

operating levels that were demonstrated 

during the test, including minimum 

operating temperature, maximum feed 

rates, minimum combustion zone 

residence time, and operating 

requirements on the hazardous waste 

firing system that control liquid waste 

atomization efficiency. Sources must 

comply with these operating 

requirements on a continuous basis. 

Compliance with these requirements, in 

addition to the requirements to comply 

with the carbon monoxide and 

destruction and removal standards, 

adequately assure sources are 

controlling organic HAP emissions to 

MACT levels. 

Comment: A commenter states that 

EPA’s proposed use of surrogates for 

organic HAP do not ensure that each of 

the organic HAP (e.g., polychlorinated 

biphenyls and polyaromatic 

hydrocarbons) are reduced to the level 

of the HAP emitted by the relevant best 

performing sources. EPA has not shown 

the necessary correlation between either 

the total hydrocarbon or carbon 

monoxide standards and organic HAP, 

and neither is a reasonable surrogate 

according to the commenter. 

Response: Carbon monoxide and total 

hydrocarbon monitoring are widely 

used and accepted indicators of 

combustion efficiency, and hence 

control organic HAP, which are 

destroyed by combustion.146 Sources 

that are achieving carbon monoxide of 

emission levels of 100 ppm or a 

hydrocarbon emission levels of 10 ppm 

are known to be operating pursuant to 

good combustion practices. This is 

supported by an extensive data analysis 

we used to support identical standards 

for incinerators, cement kilns, and 

lightweight kilns which were 

promulgated in the September 1999 

Final Rule. We are applying the same 

rationale to support these standards for 

boilers and hydrochloric acid 

production furnaces. 

Today’s rule requires continuous 

compliance with either a carbon 

monoxide and hydrocarbon standard, in 

combination with a destruction and 

removal efficiency standard, as 

surrogates to control organic HAP. We 

conclude that sources which comply 

with these standards are operating 

under efficient combustion conditions, 

assuring non-dioxin organic HAP are 

being oxidized, thus limiting emissions 

to levels reflecting MACT. Efficient 

combustion of hazardous waste 

minimizes emissions of organic HAP 

that are fed to the combustion chamber 

as well as emissions attributable to 

products of incomplete combustion that 

may form within the combustion 

chamber or post combustion. We are not 

capable of issuing emission standards 

for each organic HAP because of data 

limitations and because such emission 

standards may not be replicable by 

individual sources or duplicable by the 

other best performing sources because of 

the complex nature of combustion and 

post combustion formation of products 

of incomplete combustion. 

V. Additional Issues Relating to 

Variability and Statistics 

Many commenters raised issues 

relating to emissions variability and 

statistics other than those discussed 

above in Section III.A: (1) Variability 

dampening for data sets containing 

nondetects; (2) imputation of variability 

to address variability dampening for 

data sets containing nondetects; and (3) 

our analysis of variance procedures to 

identify subcategories. We present 

comments and responses on the 

remaining topics below. 

A. Data Sets Containing Nondetects 

Comment: One commenter states that 

EPA’s approach of assuming 

measurements that are below detection 

limits are present at the detection limit 

dampens the variability of the data set. 

Thus, the variability of ranking 

parameters is understated when ranking 

sources to identify the best performers 

and emissions variability is understated 

when calculating the floor. 

Response: We agree with the 

commenter. For the final rule, we use an 

approach to address nondetects 

whereby a value is assigned to each 

nondetect within its possible range such 

that the 99th percentile upper 

prediction limit for the data set (i.e., test 

condition runs for each source) is 

maximized. Although this approach 

maximizes the deviation among runs 

containing nondetect measurements, the 

test condition average is lower because 

we no longer assume the nondetect 

analyte is present at the level of 

detection. See response to comments 

discussion below for more information 

on this statistical approach to address 

variability of nondetects. 

We use this measurement imputation 

approach to address variability of 

feedrate data sets containing nondetects 

for source ranking purposes and to 

address variability of emissions data 

sets containing nondetects when 

calculating floors. We do not apply the 

measurement implementation approach 

to system removal efficiency (SRE) data 

sets where feedrates or emissions 

contain nondetects, however. Statistical 

imputation of nondetect SREs is 

complicated given that SRE is derived 

from feedrate and emissions data, both 

of which could contain nondetect 

measurements.147 Our inability to apply 

the imputation approach to SREs is not 

a major concern, however, because 

system removal efficiency is used as a 

source ranking criterion only (i.e., it is 

not used as the standard, except for 

hydrochloric acid production furnaces 

where there are no nondetect feedrate or 

emissions measurements), and there are 

few instances where system removal 

efficiencies are derived from nondetect 

feedrate or emissions data. 

B. Using Statistical Imputation To 

Address Variability of Nondetect Values 

On February 4, 2005, EPA distributed 

by email to major commenters on the 

proposed rule a direct request for 

comments on a limited number of issues 

that were raised by the public comments 

on the proposed rule. The nondetect 

measurement imputation approach 

discussed above was one of the issues 

for which we requested comment. We 

discuss below the major comments on 

the approach. 

Comment: Most commenters state that 

they agree with either the concept or the 

approach in principle but cannot 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59465 

148Note that, under this approach, we would 

continue to assume that the nondetect analyte is 

present at the detection limit. 

149Note that this was not the case where we use 

a regression analysis of relative standard deviation 

versus total chlorine measurements to impute a 

standard deviation for values below 20 ppmv that 

we corrected to 20 ppmv to address the low bias 

of Method 0050. In that situation, we have several 

total chlorine measurements very close to 20 ppmv. 

150See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 5.4. 

provide substantive comments. These 

commenters indicate they cannot 

provide substantive comments because 

they cannot determine the implications 

of using the approach given that we did 

not provide the resulting floor 

calculations. One commenter suggests 

that, before blindly applying this 

arbitrary estimate of a nondetect value, 

a reality check should be done to 

validate that this is reasonable by 

consulting what is published on the 

method variability, as well as by 

checking variability factors derived for 

other data in the database that are above 

the detection limit. 

Another commenter voiced significant 

concerns with the approach. The 

commenter states that EPA contradicts 

its assumption at proposal that all data 

that are reported as nondetect are 

present at the detection limits by now 

admitting that the true value is between 

zero and the level of detection. The 

commenter concludes that EPA now 

proposes to retreat from its assumption 

that undetected pollutants are always 

present at the detection limits not 

because that assumption is false but 

because it does not generate sufficiently 

lenient floors. The commenter believes 

that this underscores that EPA’s 

statistical analysis approach cannot 

possibly give an accurate picture of any 

source’s actual emission levels. 

Accordingly, it cannot possibly satisfy 

EPA’s obligation to ensure that its floors 

reflect the average emission levels 

achieved by the relevant best 

performing sources. 

The commenter also states that EPA’s 

imputation approach is independently 

flawed because it assumes—again 

inaccurately—that the value for a 

nondetect is always either the highest 

value or lowest value in the allowable 

range. In reality the undetected values 

will necessarily fall in a range between 

the highest and lowest, and thus yield 

less variability than EPA would assume. 

Response: We agree in theory with the 

commenter who suggests that the results 

of the imputation approach should be 

checked to see if it overstates variability 

for nondetect data by comparing the 

results of the imputation approach with 

the actual variability for detected 

measurements in the data set. We 

considered comparing the relative 

standard deviation derived from the 

imputation approach for data sets with 

nondetects, to the relative standard 

deviation for the data set using a 

regression analysis. Under the 

regression analysis approach, we 

considered relating the relative standard 

deviation of detected data sets to the 

average measurement. We would 

determine this relationship for each 

standard for which we have nondetect 

data, and use the relationship to impute 

the standard deviation for a data set 

containing nondetects.148

We could not perform this analysis, 

however, because: (1) We have very few 

detected measurements for the data sets 

for several standards and could not 

establish the relationship between 

relative standard deviation and 

emission concentration for those data 

sets; and (2) moreover, for many data 

sets where detected measurements 

would have been adequate to establish 

the relationship, it would have been 

problematic statistically to extrapolate 

the relationship to the very low values 

assigned to the nondetect measurements 

(e.g., 100% of the detection limit; the 

value assigned by our statistical 

imputation approach).149

This commenter also suggests that we 

check the resultant standard deviation 

after imputation by consulting what is 

published on the method variability. 

The commenter did not explain, 

however, how method variability relates 

to the variability of nondetect data. 

Moreover, we believe that the 

imputation approach is one approach 

we could have reasonably used to 

estimate variability of nondetect data. 

We first attempted to apply standard 

statistical techniques to address the 

nondetect issue. We investigated 

standard interval censoring techniques 

to calculate maximum likelihood 

estimates (MLE) of the average and 

standard deviation that provide the best 

fit for a normal distribution for the data 

containing nondetect values, taking into 

account that each nondetect data point 

can be anywhere within its allowable 

interval. These techniques are not 

applicable, however, to data sets where 

all data are nondetects, as is the case for 

many of our data sets. In that situation, 

we approximated the mean as the 

average of the midpoints of the 

nondetect intervals, and the standard 

deviation as one half of the possible 

range of the data. 

After working with this MLE/ 

Approximation approach for some time 

and iteratively developing complicated 

algorithms to address problems as they 

arose, we concluded that we needed a 

simpler approach that could be applied 

to all data sets. Accordingly, we 

developed the statistical imputation 

approach discussed in Section IV.A 

above. 

For 22 separate floors, we compared 

the results of the approaches we 

considered for nondetects: (1) 

Nondetects present at the detection 

limit (i.e., full detection limit approach); 

(2) MLE; (3) MLE combined with an 

approximation approach (i.e., MLE/ 

Approximation approach; and (4) 

statistical imputation.150 The MLE 

approach was only applicable to 2 of the 

22 floor data sets, and the numerical 

algorithm failed to converge on an 

answer for one of those. The MLE/ 

Approximation approach sometimes 

results in floors that are unrealistically 

high (i.e., it calculated 5 of 22 floors that 

were higher than the statistical 

imputation approach, which always 

produces floors that are equal to or 

higher than assuming nondetects are 

present at the full detection limit), and 

sometimes fails to converge on an 

answer. Because of these limitations, we 

do not use either the MLE or MLE/ 

Approximation approach. 

We believe the statistical imputation 

approach is preferable to the full 

detection limit approach because it: (1) 

Accounts for variability of data sets 

containing nondetects; (2) can be 

applied to all data sets containing 

nondetects; and (3) results in reasonable 

floor levels. In most cases, floors 

calculated using statistical imputation 

are close to those calculated by the full 

detection limit approach. The statistical 

imputation approach can produce 

substantially higher floors than the full 

detection limit approach, however, 

when a relatively high nondetect is 

reported because of a high detection 

limit. Nonetheless, the statistical 

imputation approach calculated floors 

that were 30% higher than the full 

detection limit approach for only 2 of 

the 22 floors. 

We reject the comment that our 

approach to handling nondetect data is 

a mere manipulation to raise the floor. 

The commenter observes that EPA 

appears to determine that its initial 

approach of assuming the worst-case for 

nondetect data—that the data are 

present at the detection limit—did not 

produce floors that were high enough, 

and consequently applies another 

manipulation—statistical imputation of 

nondetect measurements—that assumes 

the nondetect data are present at lower 

levels but nonetheless generates floors 

that are even higher than before. 

Although the commenter is correct 

59466 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

151USEPA, ‘‘Technical Support Document for the 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 8.2. 

about the outcome of our handling of 

nondetect data’the floors are generally 

higher after statistically imputing 

nondetect measurements than if 

nondetects are simply assumed to be 

present at the detection limit—our 

rationale for handling nondetects is 

sound. At proposal, we assumed that 

nondetects are present at the detection 

limit. We do not know (nor does anyone 

else) whether a nondetect value is 

actually present at 1% or 99% of the 

detection limit. We thought that 

assuming that all values were at the 

limit of detection would reasonably 

estimate the range of performance a 

source could experience for these 

nondetect measurements. This approach 

inherently maximizes the average 

emissions but minimizes emissions 

variability. 

Commenters on the proposed rule 

state that assuming nondetects are 

present at the detection limit dampens 

emissions variability—a consideration 

necessary to ensure that a source’s 

performance over time is estimated 

reasonably. Mossville, 370 F. 3d at 1242 

(daily maximum variability must be 

accounted for in MACT standards 

[including floors] which must be 

achieved continuously). See also CMA, 

870 F. 2d at 232 (EPA not even obligated 

to use data from plants that consistently 

reported nondetected values in 

calculating variability factors for best 

performing plants). We agree with these 

commenters, and are using the 

statistical imputation approach to 

address the concern. Relative to our 

proposed approach of assuming 

nondetect measurements are present at 

the detection limit, the statistical 

imputation approach reduces the 

average of the data set for a source while 

maximizing the deviation of the data 

set. These are competing and somewhat 

offsetting factors when calculating the 

floor for existing sources given that we 

use a modified 99th percentile upper 

prediction limit to calculate the floor—

the floor is the average of the test 

condition averages for the best 

performers plus the pooled variance of 

their runs. See CMA, 870 F. 2d at 232 

(upholding approach to variability for 

datasets with nondetect values where 

various conservative assumptions in 

methodology offset less conservative 

assumptions). 

We further disagree with this 

commenter’s view that the statistical 

imputation approach is independently 

flawed because it assumes that the value 

for a nondetect is always either the 

highest value or lowest value in the 

allowable range. The commenter states 

that, in reality, the undetected values 

will necessarily fall in a range between 

the highest and lowest, and thus yield 

less variability than EPA would assume. 

Although the commenter is correct that 

the true value of a nondetect 

measurement is likely to be in the range 

between the highest or lowest value 

possible rather than at either extreme, 

we do not know where the true value is 

within that range. To ensure that 

variability is adequately considered in 

establishing a floor, the statistical 

imputation approach, by design, 

maximizes the deviation by assuming 

the nondetect value is at one end of the 

range or the other, whichever results in 

a higher average for the data set. 

C. Analysis of Variance Procedures To 

Assess Subcategorization 

We use analysis of variance (ANOVA) 

to determine whether subcategories of 

sources have significantly different 

emissions. For two subsets of emissions, 

the variance of the data between the two 

subsets is compared to the variance 

within the subsets. The ratio of these 

two variances is called the F-statistic. 

The larger the F-statistic the more likely 

the underlying data distributions are 

different. To make a decision regarding 

the difference between the two subsets, 

we compare this calculated F-statistic to 

an F-value associated with a particular 

confidence level. 

One commenter has raised several 

concerns with our use of the ANOVA 

procedure in the selection of incinerator 

subcategories. 

Comment: The ANOVA procedure is 

based upon the assumption that the 

underlying distribution of both data sets 

has a normal shape. For incinerator 

emissions data this assumption is not 

valid. A log-probability plot shows that 

particulate emission data is better 

described by a lognormal distribution. 

Prior to conducting the ANOVA 

procedure, the data should be logtransformed. 

Response: We use probability plots, 

Skewness Coefficients, and Correlation 

Coefficient/Shapiro-Wilks testing to 

evaluate whether it is more appropriate 

to analyze emissions data for ANOVA 

and floor calculations assuming the data 

represent a normal or lognormal 

distribution. We believe it is reasonable 

to assume the data represent a normal 

distribution for several reasons. 

The purpose of the ANOVA 

subcategorization analysis is to 

determine if there is a significant 

difference in emission levels between 

potential subcategories to warrant 

establishing separate floors for the 

subcategories. Although in some cases it 

may appear that a data set in its entirety 

may be better represented by a 

lognormal distribution, the high 

emissions data causing the right-hand 

skew will be truncated when we 

identify the best performing sources—

those with the lowest emissions—to 

calculate floors. This moves the 

appearance of a skewed distribution 

toward one that is more symmetric and 

thus, more representative of a normal 

distribution. 

In addition, our analyses showed: (1) 

The probability plots do not suggest that 

either assumed distribution is 

significantly or consistently better; (2) 

the data set arithmetic averages tend to 

be in the neighborhood of the medians, 

indicating the data sets are not 

significantly skewed and more closely 

normal than lognormal; and (3) in some 

cases, neither assumed distribution 

could be statistically rejected.151

Comment: Some of the data sets used 

for comparison have very few members. 

This means that the within-group 

variance for a small data set would have 

to be very low for the two groups to be 

judged as separate. 

Response: We agree, but note that as 

the sample sizes change, the critical 

values are also changing depending on 

the degrees of freedom. 

Comment: Only emissions data were 

considered in the ANOVA tests. Feed 

rate and removal efficiency should have 

been considered as well. 

Response: Differences between 

subcategories in feedrates or system 

removal efficiency are irrelevant if there 

is no significant difference in emissions 

between the subcategories. The purpose 

of considering subcategorization is to 

determine if there are design, operation, 

or maintenance differences between 

subcategories that could affect the type 

or concentration of HAP emissions and 

thus sources’ ability to achieve the floor 

absent subcategorization. Consequently, 

it is appropriate to consider emissions 

only when evaluating subcategorization. 

Comment: The confidence level used 

by EPA for the F-statistic in all cases 

was 95 percent. If the calculated Fstatistic were equal to this 95 percent 

confidence value, it would mean that 

there is only a 5 percent chance that 

data for the two subsets were drawn 

from the same parent distribution. A 

less stringent (lower) confidence level 

would be more appropriate for this 

analysis. 

The commenter evaluated particulate 

emissions for specialty incinerators (i.e., 

munitions, chemical weapons and 

mixed waste incinerators) and nonspecialty incinerators (all others). The 

commenter log-transformed the data and 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59467 

152Although we subcategorize between 

incinerators with wet or no air pollution control 

device and incinerators equipped with dry air 

pollution control devices or waste heat boilers for 

the floor analysis, the calculated dioxin furan floors 

for both subcategories for existing sources were 

determined to be less stringent than the current 

interim standard. Subsequently, the final rule 

emission limitations for both subcategories are, for 

the most part, identical, and equivalent to the 

interim standard. See USEPA, ‘‘Technical Support 

Document for the HWC MACT Standards, Volume 

III: Selection of MACT Standards,’’ September 2005, 

Section 10.1, for further discussion. 

153See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume IV: Selection 

of MACT Standards,’’ September 2005, Section 3, 

for further discussion. 

154A similar analogy applies to incinerators that 

are not equipped with air pollution systems. These 

incinerators are not designed to control emissions 

of metals, chlorine, and particulate matter (perhaps 

because emission levels are low due to low HAP 

feed levels). Similar to incinerator types with wet 

systems, this design does not provide the locations 

for surface catalyzed reactions to occur, which leads 

us to conclude that these are different types of 

incinerator with respect to dioxin/furan control. 

determined that there was only a 30 

percent chance that the two data sets 

could come from the same parent 

distribution. This result, together with 

the vastly different operating 

characteristics for the two types of 

incinerators, argues for their being 

treated as separate categories, according 

to the commenter. 

Response: A confidence level of 95% 

assigns a probability of 0.95 of accepting 

the hypothesis when there is no 

difference between subcategories and 

hence a probability of 0.05 of rejecting 

a true hypothesis. This reduces the 

probability to 5% of rejecting a true 

hypothesis. A less stringent confidence 

level would increase the chances of 

rejecting a true hypothesis. The farther 

apart the averages of the two potential 

subcategories are, the more likely they 

are to be statistically different and the 

more likely you are to be wrong if you 

hypothesize that they are not different. 

A 95% confidence level is most often 

used for ANOVA because it is generally 

believed that being wrong one time out 

of 20 is an acceptable risk for purposes 

of ANOVA. In addition, statisticians are 

comfortable with a 95% confidence 

level because, in a normal distribution, 

95% of the data fall within 2 (actually 

1.96) standard deviations of the mean. 

Other confidence levels could be used 

for ANOVA—99% or 90%—if there is a 

good reason to deviate from the general 

default of 95%. A 99% confidence level 

is the second most commonly used 

confidence level and is generally used 

when it is very important that you be 

sure that you are right (i.e., where you 

can only accept the risk of being wrong 

1 time out of 100) before you classify the 

populations (in this case subcategories) 

as different. Occasionally, but much less 

frequently, confidence levels of 90% or 

less are used. But, we note that these 

situations are so infrequent that some 

statistics books provide tables for the 

ANOVA F-statistic only at the 95% and 

99% confidence levels. 

For these reasons, we believe that the 

95% confidence level is an appropriate 

level among those we could have 

reasonably selected. 

VI. Emission Standards 

A. Incinerators 

Comment: A commenter states that 

EPA’s subcategorization (and 

assignment of differing dioxin/furan 

standards as a result) between 

incinerators with wet or no air pollution 

control device and incinerators 

equipped with dry air pollution control 

devices or waste heat boilers is unlawful 

because incinerators equipped with a 

given type of pollution control 

equipment are not different ‘‘classes,’’

‘‘types,’’ or ‘‘sizes’’ of source. The 

commenter implies that EPA justifies 

this subcategorization by stating that 

these sources have different emission 

characteristics, which is no less 

unlawful and arbitrary than 

subcategorizing based on the pollution 

control devices they use. 

Response: We agree that it would not 

be appropriate to subcategorize source 

categories based on a given air pollution 

control technique. See 69 FR at 403 (Jan. 

4, 2004). As stated at proposal, we do 

not subcategorize incinerators with 

respect to dioxin/furans based on the 

type of air pollution control device 

used. 69 FR at 21214. For example, with 

respect to dioxin/furans, it would not be 

appropriate subcategorize based on 

whether a source is using: (1) Good 

combustion practices; (2) a carbon bed; 

(3) an activated carbon injection system; 

or (4) temperature control at the inlet to 

its dry air pollution control device. 

These devices and practices are what 

control dioxin/furan emissions. Today’s 

final rule does not subcategorize based 

on these control devices and practices. 

Instead, our subcategorization approach 

recognizes the potential of some 

emission control equipment to create 

pollutant emissions that subsequently 

must be addressed.152

Dioxin/furans are unique in that these 

pollutants are not typically present in 

the process inputs, but rather are formed 

in the combustor or in post combustion 

equipment. The primary cause of 

dioxin/furan emissions from 

incinerators not equipped with waste 

heat boilers is post combustion 

formation by surface-catalyzed reactions 

that occur within the dry air pollution 

system.153 This is evidenced by the 

statistically significant higher dioxin 

furan emissions for incinerators with 

dry air pollution control systems 

compared to those without dry systems. 

Incinerators with dry air pollution 

systems are designed to effectively 

control metal and particulate matter 

emissions through use of baghouses, 

electrostatic precipitators, etc. 

Incinerators that are designed in this 

manner have the potential for elevated 

dioxin/furan emissions because dry air 

pollution control systems provide 

locations where surface-catalyzed 

reactions can occur (e.g., on particles on 

fabric filter bags or electrostatic 

precipitator plates). Thus, for purposes 

of dioxin/furan formation and control, 

incinerators equipped with dry air 

pollution systems are in fact different 

‘‘types’’ of incinerators because of their 

unique pollutant generation 

characteristics. 

On the other hand, incinerators with 

wet air pollution control systems are 

generally designed to effectively reduce 

total chlorine emissions (with the use of 

wet scrubbers) and metals and 

particulate matter emissions. There 

generally is a tradeoff, however, in that 

these types of incinerators may not be 

as efficient in reducing particulate 

matter and metal emissions compared to 

incinerators that are equipped with 

baghouses and dry electrostatic 

precipitators. These types of 

incinerators generally do not have the 

potential to have elevated dioxin/furan 

emissions because they do not provide 

locations where surface catalyzed 

reactions can occur. For purposes of 

dioxin/furan emission formation and 

control, sources with wet air pollution 

control systems are thus likewise 

different types of incinerators.154

Subcategorizing dry air pollution 

systems and wet air pollution control 

systems for purposes of establishing a 

dioxin/furan standard is no different 

than subcategorizing incinerators 

equipped with waste heat boilers. The 

waste heat boiler is the origin of the 

dioxin/furan that is generated. These 

incinerators are designed to efficiently 

recover heat from the flue gas to 

produce useful energy. A result of this 

type of incinerator design, however, is 

that it also provides a location where 

surface catalyzed reactions can occur 

(i.e., the boiler tubes), potentially 

resulting in elevated dioxin/furan 

formation (and emissions if not properly 

controlled). 

An alternative approach that does not 

subcategorize these sources, but rather 

identifies best performing sources as 

those sources with the lowest emissions 

irrespective of whether they have a wet 

59468 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

155See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Section 20 and 

Appendix C, tables labeled ‘‘E-INC-all-DF’’ and ‘‘ELFB-all-DF’’. 156 Dioxin/furan formation mechanisms are 

complex. Sources equipped with wet or no air 

pollution control systems cannot rely on good 

combustion practices alone to achieve these floor 

levels because they cannot ‘‘dial in’’ to a specific 

emission level, as is the case with typical back-end 

control systems that control particulate matter and 

metals, for example. See Part Four, Section IV.B. 

157USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ Section 23.4, September 2005. 

or dry air pollution control device, 

would yield floors that would not be 

achievable unless all the sources, 

including the best performers, adopted 

beyond-the-floor technology. The 

calculated dioxin/furan floor for 

existing incinerators and liquid fuel 

boilers using such an approach would 

be 0.008 and 0.009 ng TEQ/dscm, 

respectively.155 All of the best 

performing sources for these calculated 

floors had either wet air pollution 

systems or no air pollution control 

systems. The floor technology used by 

these sources is good combustion 

practices. As a result, these floor levels 

would not be replicable by these best 

performing sources nor duplicable by 

other sources through use of the same 

good combustion practices because of 

the uncertainties associated with 

dioxin/furan generation mechanisms 

and rates that can vary both within 

sources and across sources, potentially 

leading to significant variability in 

emission levels.156 Sources equipped 

with wet or no air pollution systems 

would thus likely be required to install 

carbon systems to comply with these 

standards, a technology used by only 

four incinerators (none of which were 

best performers in the above discussed 

floor analysis). Such an outcome should 

be viewed as a beyond-the-floor 

technology and therefore assessed 

pursuant to the factors enumerated in 

section 112(d)(2). Furthermore, it is 

unclear, and perhaps doubtful, that 

these floors would be achievable by 

these sources even if they were to install 

beyond-the-floor controls such as 

activated carbon systems because no 

sources using activated carbon are 

currently achieving those floor levels. 

We therefore conclude that it is 

appropriate, and necessary, to 

subcategorize these types of incinerators 

for purposes of calculating dioxin/furan 

floor standards. 

B. Cement Kilns 

1. Hg Standard 

Comment: Several commenters 

recommend that EPA use a commentersubmitted dataset, which includes three 

years of data documenting day-to-day 

levels of mercury in hazardous waste 

fuels fired to all hazardous waste 

burning cement kilns, to identify a 

MACT floor for existing and new 

cement kilns. Several commenters state 

that existing cement kilns should have 

the option to comply with either of the 

following mercury standards: (1) A 

hazardous waste feed concentration 

limit, expressed in ppmw, based on an 

evaluation of the five best performing 

sources within the commentersubmitted dataset (documenting day-today levels of mercury in the hazardous 

waste over a three year period); or (2) a 

hazardous waste maximum theoretical 

emissions concentration (MTEC), 

expressed in units of μg/dscm, 

developed by projecting emissions of 

the best performing sources assuming 

mercury concentrations in the 

hazardous waste were at the source’s 

99th percentile level in the commentersubmitted dataset. To identify the best 

performing sources, the commenter 

suggests selecting the five sources with 

the lowest median mercury 

concentrations in the dataset. For 

existing sources, the commenters’

evaluation yields a hazardous waste 

feed concentration limit of 3.3 ppmw 

and a stack concentration emission limit 

of 150 μg/dscm (rounded to two 

significant figures and considering 

mercury contributions only from the 

hazardous waste). For new cement kilns, 

the commenters recommend a mercury 

standard in the format of a hazardous 

waste feed concentration limit only, 

expressed in ppmw, based on the single 

source with the lowest 99th percentile 

level of mercury in hazardous waste. 

The commenters recommend a mercury 

standard of 1.9 ppmw for new sources. 

Response: We agree with commenters 

that the commenter-submitted dataset 

documenting the day-to-day levels of 

mercury in hazardous waste fuels fired 

to all hazardous waste burning cement 

kilns is the best available data to 

identify floor levels for existing and new 

cement kilns. See discussion in Part 

Four, Section I.D. However, we disagree 

with the commenters’ suggested format 

of the mercury standard for existing 

sources. Establishing the mercury 

standard as the commenters’ suggest 

(i.e., 3.3 ppmw in the hazardous waste 

feed or 150 μg/dscm as a hazardous 

waste MTEC) fails to consider the 

interim mercury standards. As 

discussed in Part Four, Section III.E, 

there can be no backsliding from the 

levels of performance established in the 

interim standards. While not every 

source feeding hazardous waste with a 

maximum mercury concentration of 3.3 

ppmw would exceed the interim 

standard, most sources using more than 

50 percent hazardous waste as fuel (i.e., 

replacing at least half its fossil fuel with 

hazardous waste) would exceed the 

interim standard, emitting mercury 

higher than the levels allowed under 

§§ 63.1204(a)(2) and 63.1206(b)(15) of 

the interim standards.157 The hazardous 

waste MTEC of 150 μg/dscm calculated 

by the commenters is also higher than 

the level currently allowed under 

§ 63.1206(b)(15) of the interim 

standards. Since sources cannot 

backslide from the levels of the interim 

standards, if we were to accept the 

commenters’ floor analysis results as 

presented (which we are not), then we 

would ‘‘cap’’ each calculated standard 

(i.e., 3.3 ppmw hazardous waste feed 

concentration and 150 μg/dscm in stack 

emissions) at the interim standard level. 

This would result in a mercury standard 

for existing sources of 3.3 ppmw 

hazardous waste feed and a hazardous 

waste feed MTEC of 120 μg/dscm or 120 

μg/dscm as a stack gas concentration 

limit. We note this is similar to the 

mercury standard adopted today: a 

hazardous waste feed concentration 

limit of 3.0 ppmw and a hazardous 

waste feed MTEC of 120 μg/dscm or 120 

μg/dscm as a stack gas concentration 

limit. For an explanation of why we 

derived a level of 3.0 ppmw from the 

data, see Section 7.5.3 of Volume III of 

the Technical Support Document. 

The commenters’ suggested new 

source mercury standard of 1.9 ppmw in 

the hazardous waste has the same 

deficiency. New sources with a 

hazardous waste fuel replacement rate 

of approximately 75% could emit 

mercury at levels higher than currently 

allowed under the interim standards. 

After capping the calculated standard at 

the interim standard level, we would 

identify the mercury standard for new 

sources as a hazardous waste 

concentration limit of 1.9 ppmw in the 

hazardous waste and a hazardous waste 

feed MTEC of 120 μg/dscm or 120 μg/ 

dscm as a stack gas concentration limit. 

For reasons discussed in Section 7.5.3 of 

Volume III of the Technical Support 

Document, this is indeed the mercury 

standard we are promulgating for new 

cement kilns. 

The commenters also suggest that the 

best performing sources should be 

identified as those with the lowest 

three-year median concentration of 

mercury in hazardous waste. Although 

this approach would be permissible, we 

conclude that it is more appropriate to 

identify the best performers (or single 

best performer for new sources) by 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59469 

158Please note that we do not regard this standard 

as a work practice standard under section 112(h)(1) 

of the Act, because part of the standard includes an 

emission limit which is measured at the stack. EPA 

believes the special requirements of section 

112(h)(1) apply when a work practice is the 

exclusive standard. 

selecting those with the lowest 99th 

percentile upper level mercury 

concentrations. (This is not a 

statistically determined upper 

prediction limit; there is sufficient data 

for an arithmetically calculated 99th 

percentile to reliably reflect sources’

performance.) We believe that this 

approach best accounts for the 

variability experienced by best 

performing sources over time. 

A detailed discussion of the MACT 

floor analysis for existing and new 

cement kilns is presented in Section 

7.5.3 of Volume III of the Technical 

Support Document. In summary, the 

mercury standard for existing cement 

kilns is 3.0 ppmw in the hazardous 

waste feed and 120 μg/dscm as a 

hazardous waste maximum theoretical 

emission concentration feed limit or 120 

μg/dscm as a stack gas concentration 

limit. For new sources the mercury 

standard is 1.9 ppmw in the hazardous 

waste feed and 120 μg/dscm as a 

hazardous waste maximum theoretical 

emission concentration feed limit or 120 

μg/dscm as a stack gas concentration 

limit.158

Comment: Two commenters oppose 

EPA’s proposed approach to base 

compliance with the mercury standard 

on averaged annual emissions. The 

commenters state an annual average 

would allow mercury emissions to 

exceed the interim standard because a 

source could burn high concentrations 

of mercury waste over a short period 

and still comply with an annual limit by 

burning low concentration wastes at 

other times. These commenters support 

the concept of a 12-hour rolling average 

feedrate limit (i.e., the current 

requirement under the interim 

standards) in conjunction with an 

emission standard no less stringent than 

the interim standard. 

Response: We agree with these 

comments. Cement kilns must establish 

a 12-hour rolling average feedrate limit 

of mercury to comply with these 

standards. The mercury standards for 

cement kilns are ‘‘capped’’ at the 

interim standard level to prevent 

backsliding from the current level of 

performance. This is accomplished by 

expressing the standard as a limit on the 

mercury concentration in the hazardous 

waste (with the rolling average) and 

either an emission concentration limit 

or hazardous waste maximum 

theoretical emission concentration feed 

limit. See § 63.1209(l)(1)(iii). 

2. Total Chlorine 

Comment: One commenter states that 

the proposed MACT floor approach is 

inconsistent with the statutory 

definition of MACT because EPA’s 

selection of a routinely achievable 

system removal efficiency (SRE) was 

arbitrary and not representative of the 

best performing sources. Instead, the 

commenter suggests EPA identify a 

MACT SRE based on the five sources 

with the best SREs and apply that SRE 

to the MACT chlorine feed level. Later, 

in supplemental comments, the same 

commenter suggests two alternative 

approaches to identify a floor level. One 

approach applies a ranking 

methodology based on emissions and 

chlorine feed, and the second suggested 

approach applies a triple ranking 

method based on emissions, feed, and 

chlorine SRE. Other commenters, 

however, supported EPA’s proposed 

approach. 

Response: We are adopting the same 

approach we proposed at 69 FR at 

21259. As we explained, this is a variant 

of the SRE/Feed approach, the variant 

involving the degree of system removal 

efficiency achieved by the best 

performing sources. In summary, to 

determine the floor level we first 

identify the best performing sources 

according to their hazardous waste 

chlorine feedrate. The best performing 

sources are those that have the lowest 

maximum theoretical emissions 

concentration (MTEC), considering 

variability. We then apply an SRE of 90 

percent (the specific point in 

contention) to the best performing 

sources’ total MTEC (i.e., thus 

evaluating removal of total chlorine 

across the entire system, including 

chlorine contributions to emissions 

from all feedstreams such as raw 

materials and fossil fuels) to identify the 

MACT floor, which is expressed as a 

stack gas emissions concentration in 

parts per million by volume. This 

approach defines the MACT floor as an 

emission level that the best performing 

sources could achieve if the source 

limits the feedrate of chlorine in the 

hazardous waste to the MACT level (i.e., 

the level achieved by the average of the 

best performing five sources) while also 

achieving an SRE that accounts for the 

inherent variability in raw material 

alkalinity and (to a lesser degree) 

cement kiln dust recycle rates, and 

production requirements. 69 FR at 

21259. 

Under this approach, we are 

evaluating hazardous waste feed control 

as we do for other sources. One 

commenter objects to our determination 

that an SRE of 90 percent is 

representative of the best performing 

sources because we have not established 

a MACT SRE—the average SRE 

achieved by the best performing 

sources. 

There is no doubt that the cement 

manufacturing process is capable of 

capturing significant quantities of 

chlorine when favorable conditions 

exist within the kiln system. Our usual 

approach of establishing an SRE by 

ranking the most efficient SREs taken 

from individual compliance tests, 

however, would result in a standard that 

would not be achievable because it may 

not be duplicable by the best performers 

or certainly would not be replicable by 

others, given that it is a function of 

various highly variable parameters, 

especially levels of alkali metals (e.g., 

sodium and potassium) and volatile 

compounds (e.g., chlorine and sulfur) in 

the raw materials. Alkalis and volatiles 

vary at a given best performer facility (in 

fact, at all facilities) as different strata 

are mined in the quarry, and across 

facilities due to different sources of raw 

materials. Raw material substitution is 

infeasible and counter to the objective of 

producing quality product (i.e., a 

product with low alkali content). 

Cement kilns thus are not able to 

design or operate to achieve a specific 

SRE at the high (most efficient) end of 

the range of test conditions. This is 

demonstrated by our calculations of 

system removal efficiency data, which is 

essentially a collection of performance 

‘‘snapshots.’’ See SRE data summarized 

in Table 1 at the end of this response; 

see also Mossville, 370 F. 3d at 1242 

(maximum emission variability 

associated with raw material variability 

needs to be accounted for in MACT 

floor determination since the standard 

must be met at all times under all 

operating conditions). The performance 

data of the ‘‘apparent’’ best performers—

upwards of 99 percent—identified by 

the commenter are simply a snapshot in 

the possible range of performance and 

are not replicable in the future due to 

factors which are uncontrollable by the 

source, as just explained. In 

confirmation, cement kilns achieving 

this level of removal in one test proved 

incapable of replicating their own result 

in other tests even though individual 

sources each have their own proprietary 

source of raw materials. See results in 

table for Giant (SC), Essroc (IN), Holcim 

(MO), Giant (PA), and LaFarge (KS) all 

59470 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

160As discussed a number of times earlier, we are 

not basing any standards on feed control of HAP in 

raw material and fossil fuel input. We instead are 

controlling HAP attributable to those inputs by 

means of end-of-stack emission standards which 

reflect removal of HAP by some type of control 

device. This approach is consistent with the 

discussion above, since we are not basing the 

cement kiln chlorine standard on control of any raw 

material input, but rather on some type of back-end 

removal efficiency. 

161 It is common for cement manufacturing plants 

to operate multiple cement kilns at the same plant. 

162Nonetheless, we analyzed the SVM and LVM 

floors for cement kilns as suggested by the 

commenter. Results of the analysis are presented in 

‘‘Technical Support Document for HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ Section 8.8, September 2005. 

of whom would violate a 99 + percent standard based on their own operating 

results. 

TABLE 1.—SUMMARY OF SYSTEM REMOVAL EFFICIENCY DATA FOR WET PROCESS CEMENT KILNS 159

Facility Number Runs 

in Data Base 

Low SRE Run 

(%) 

High SRE Run 

(%) 

Average SRE 

of All Runs 

(%) 

LaFarge (OH) ................................................................................................... 3 99.1 99.4 99.3

Giant (SC) ........................................................................................................ 24 95.5 99.8 99.0 

Essroc (IN) ....................................................................................................... 13 97.3 99.9 98.7 

Holcim (MO) ..................................................................................................... 6 96.4 99.9 98.4 

LaFarge (KS) ................................................................................................... 12 95.7 99.3 98.1 

Giant (PA) ........................................................................................................ 17 87.7 99.4 97.1 

Continental (MO) ............................................................................................. 3 95.7 97.0 96.5 

Ash Grove (AR) ............................................................................................... 37 85.1 98.8 95.1 

Texas Industries (TX) ...................................................................................... 6 88.8 97.0 93.6 

Holcim (MS) ..................................................................................................... 9 76.5 99.2 90.0 

159See Section 3.6 of Volume II (Specific MACT Standards) of Comment Response Document, September 2005. 

However, the data indicate that SRE is 

reasonably quantifiable to a point. Based 

on our data base of system removal 

efficiency information from 130 test 

conditions where total chlorine was 

evaluated, we conclude that a system 

removal efficiency of 90 percent is a 

reasonable estimate of MACT SRE.160

We also reject the commenter’s three 

suggested alternative approaches to 

identify a MACT SRE to apply to the 

MACT feed level. The commenter’s 

methods all suffer a common flaw: They 

fail to recognize and take into account 

the limitations of the total chlorine SRE 

data. For example, as just demonstrated, 

available data show that considering the 

SRE data associated with the most 

recent compliance test as a ranking 

factor will result in unachievable 

standards due to the varying 

effectiveness of chlorine capture (which 

impacts emissions) depending on the 

raw material mix characteristics. 

Considering only the most recent 

compliance test data as suggested yields 

results that are unachievable because 

the best performer’s SRE data are likely 

biased high (e.g., sources that happen to 

test under favorable conditions are 

likely to be identified as best 

performers), which would not be 

replicable by even that source on a dayto-day basis. 

3. Semivolatile and Low Volatile Metals 

Comment: Commenters oppose EPA’s 

proposed approach to treat each kiln as 

a separate and unique source in the 

SRE/Feed MACT floor analysis for 

cement kilns.161 Commenters state that 

the approach is an improper way to 

perform a statistical analysis and 

reduces the variability in emissions that 

otherwise would be observed in a 

MACT pool of five unique sources. 

Variability is reduced because colocated kilns at the same plant share 

many of the factors that comprise frontend and back-end controls. As a result, 

the calculated MACT floors for SVMs 

and LVMs for cement kilns are too 

stringent. The commenters’

recommended solution (in instances 

where co-located kilns are among the 

top five performers) is to use only the 

data from the best performing co-located 

kiln, exclude any lesser performing 

kilns at the plant site, and then include 

the next-best performing non-co-located 

kiln in the MACT pool. Implementing 

their recommendation, the commenters 

state that the MACT floor for SVMs 

increases from 4.0 × 10¥4 to 7.4 × 10¥4

lbs/MMBtu and the floor for LVMs 

increases from 1.4 × 10¥5 to 1.8 × 10¥5

lbs/MMBtu. Another commenter 

generally supports EPA’s approach 

noting that the variability factor applied 

to the emissions data already accounts 

for variability. 

Response: We consider sources that 

are not identical as unique sources and 

emissions data and information from 

unique sources are considered separate 

sources in the floor analyses. An 

example of an ‘‘identical’’ source in our 

data base is compliance test data from 

a similar on-site combustion unit used 

in place of a compliance test for another 

unit (i.e., emissions testing of an 

identical unit was not conducted). 

These sources and their associated data 

are called ‘‘data in lieu of’’ sources in 

our data based on the RCRA provisions 

under § 266.103(c)(3)(i). We 

acknowledge that co-located sources 

may in fact share certain similar 

operation features (e.g., use of raw 

material from the same quarry, use of 

the same coal and hazardous waste burn 

tank to fire the kilns); however, given 

that the co-located sources (except those 

designated as data in lieu of) are not 

designed identically, and given their 

hazardous waste feed control levels 

were not identical during testing, we 

conclude we must consider each source 

as a unique source in the floor 

analyses.162

Comment: Commenter states that 

EPA’s proposed standards for new 

cement kilns are unachievable due to 

problems with its accounting for 

variability, in part because EPA did not 

consider geographic differences when 

assessing feed control levels. The 

concentrations of hazardous 

constituents in the waste in a particular 

region are likely to be different than in 

the waste from another geographical 

region due to types of industrial sectors 

located within each region. Sources 

cannot reasonably arrange for 

transportation of lower HAP wastes 

generated across the country and cannot 

treat the hazardous waste to remove or 

reduce HAP concentrations. The 

commenter cites several court decisions 

that support their assertions. 

Commenter believes that while this 

represents a problem for developing 

both the new and existing source floors, 

it is a greater predicament for the new 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59471 

163We note that the commenter-submitted dataset 

is not amenable for use in establishing standards 

expressed in a thermal emission format because 

sufficient information on the characteristics of the 

hazardous waste (e.g., heating value of hazardous 

waste) were not provided. 164See docket item OAR–2004–0022–0370. 

source floor because this floor level is 

based on test data for only one source. 

Response: We are not obligated to 

account for varying hazardous waste 

feed control levels occurring because of 

differing HAP generation rates in 

different locations (for commercial 

sources), or because different 

production process types generate 

higher or lower levels HAP 

concentration wastes. Hazardous waste 

feed control is a legitimate control 

technology. The commenter seems to 

suggest that we should subcategorize 

low feeding sources and high feeding 

sources based on their hazardous waste 

feed control level. This would 

inappropriately subcategorize sources 

based on differing levels of controls, 

which we do not do. See 69 FR at 403 

(January 5, 2004). Nonetheless, as 

previously discussed, the SRE/Feed 

methodology lessens the impact of feed 

control variations across commercial 

units because it results in fewer 

situations where best performing backend controlled sources (from a 

particulate matter emissions 

perspective) cannot achieve the 

semivolatile and low volatile metal 

design levels and floors. 

For new source standards, the single 

best performing cement kiln sources for 

semivolatile metals and low volatile 

metals were not the lowest hazardous 

waste feed controlled source (both floors 

were based on sources with the fourth 

best, (i.e., lowest, hazardous waste feed 

control level). We therefore do not 

believe these sources are atypically low 

hazardous waste feeders relative to the 

other best performing sources in the 

existing source MACT pools. 

C. Lightweight Aggregate Kilns 

1. Mercury Standard 

Comment: One commenter, an 

operator of lightweight aggregate kilns 

subject to this rule, recommends that 

EPA establish the mercury standard for 

lightweight aggregate kilns at a 

hazardous waste feed concentration 

limit of 3.3 ppmw for existing sources 

and 1.9 ppmw for new sources, which 

is the same standard suggested in public 

comments by a trade organization 

representing hazardous waste burning 

cement kilns. The commenter notes that 

these mercury limits are appropriate for 

lightweight aggregate kilns because the 

commenter’s two lightweight aggregate 

manufacturing facilities participate in 

the same hazardous waste fuel market as 

the majority of cement kilns. Moreover, 

the commenter maintains that its parent 

company also owns and operates two 

cement kilns and that its lightweight 

aggregate kilns receive hazardous waste 

from many of the same generators that 

provide hazardous waste fuel to the 

cement kilns. Consequently, the 

commenter states that the cement 

industry’s data set of actual mercury 

feed concentrations in the hazardous 

waste best represents the full range of 

hazardous waste fuel concentrations 

that exist in the waste fuel market (see 

also Part Four, Sections I.D and E). 

Response: We disagree with the 

commenter. Although the cement 

industry’s set of mercury feed 

concentration data in the hazardous 

waste may represent the full range of 

concentrations for the cement kiln 

source category, we cannot conclude the 

same for lightweight aggregate kilns 

because the commenter states that the 

mercury dataset are only applicable to 

its kilns.163 Further, the commenter 

provides no specific information or data 

to support the conclusion that its 

suggested approach is justified for the 

other lightweight aggregate kiln facility. 

We also disagree with the commenter 

as to the appropriateness of establishing 

the mercury standard in the format of a 

hazardous waste feed concentration 

(i.e., 3.3 ppmw for existing sources and 

1.9 ppmw for new sources) for 

lightweight aggregate kilns. A hazardous 

waste feed concentration standard is 

improper for this source category 

because one lightweight aggregate kiln 

facility’s sources (although not the 

commenter’s) controls mercury 

emissions using wet scrubbing. Thus, a 

hazardous waste feed concentration 

standard would inappropriately limit 

the mercury concentration in hazardous 

waste for sources that use control 

equipment capable of capturing 

mercury. A source with control 

equipment should not be restricted to a 

hazardous waste feed concentration 

standard that is based on sources that 

can only control mercury emissions 

through limiting the amount of mercury 

in the hazardous waste. 

In any case, as explained earlier in 

our discussion of cement kiln mercury 

standard, we believe that it is preferable 

to establish an emission standard to 

assure that the actual amount of 

mercury emitted by these sources is 

controlled by means of a numerical 

standard for stack emissions. 

Comment: One commenter agrees that 

a source may not be able to achieve the 

mercury standard due to raw material 

contributions that might cause an 

exceedance of the emission standard in 

spite of a source using properly 

designed and operated MACT floor 

control technologies, including 

controlling the levels of metals in the 

hazardous waste. The commenter 

opposes the proposed alternative 

standard of 42 μg/dscm, which is 

expressed as a hazardous waste 

maximum theoretical emissions 

concentration. Instead, the commenter 

suggests that EPA maintain the 

alternative standard options of 

§§ 63.1206(b)(15) or 63.1206(b)(9). 

Response: We agree with the 

commenter that the mercury standard 

should address the concern of raw 

material contributions causing an 

exceedance of the emission standard. 

We also agree that the proposed 

alternative standard of a hazardous 

waste maximum theoretical emissions 

concentration of 42 μg/dscm is an 

improper standard because the 

underlying data are unrepresentative. 

See discussion in Part Four, Section I.E. 

We note that the mercury standard 

promulgated today is 120 μg/dscm as a 

stack gas concentration limit or 120 μg/ 

dscm as a hazardous waste maximum 

theoretical emission concentration feed 

limit. The alternative mercury standard 

sought by the commenter under 

§ 63.1206(b)(15) is a limit of 120 μg/ 

dscm as a hazardous waste maximum 

theoretical emission concentration, 

which is included in the mercury 

standard promulgated today. This 

should address the commenter’s 

concern. 

Comment: One commenter supports a 

mercury standard with short-term 

compliance limits (e.g., 12-hour rolling 

average feedrate limits) as opposed to 

the annual limit proposed. 

Response: For reasons discussed in 

Part Four, Section I.E, we are using a 

different mercury dataset than at 

proposal. We solicited comment on a 

floor approach using these data in a 

notice 164 sent directly to certain 

commenters. We are adopting that 

approach today. The monitoring 

requirements of the mercury standard 

for lightweight aggregate kilns includes 

short-term averaging periods (i.e., not to 

exceed a 12-hour rolling average), as 

recommended by the commenter. 

2. Total Chlorine Standard 

Comment: One commenter supports 

excluding from the floor analysis all 

lightweight aggregate kiln sources that 

lack air pollution control devices for 

chlorine, such as scrubbing technology. 

The floor analysis should simply 

exclude sources without back-end 

controls according to the commenter. 

59472 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

165See CAA section 112 (d) (1)), authorizing EPA 

to distinguish among different ‘‘types * * * of 

sources within a category or subcategory’’ in 

developing MACT standards. 

166Maximum theoretical emission concentration 

is the feedrate normalized by gas flowrate assuming 

zero system removal efficiency. 

Response: We disagree. For the final 

rule, we are using the SRE/Feed MACT 

floor approach which defines best 

performers as those sources with the 

best combined front-end hazardous 

waste feed control and back-end air 

pollution control efficiency. The 

commenter’s suggestion would exclude 

emissions data from two of the three 

facilities in this source category even 

though valid emissions data from these 

sources are available (and therefore 

ordinarily to be used, see CKRC, 255 F. 

3d at 867), and these sources achieved 

the best front-end hazardous waste feed 

control in the category. We note that the 

best feedrate controlled sources have 

hazardous waste thermal feed levels that 

are approximately one-fifth the level of 

the source’s with back-end controls. 

These data describe the level of 

performance of sources in the category 

and must be evaluated in the MACT 

floor analysis. We also note that even if 

we were to implement the commenter’s 

suggestion, the MACT floor results 

would not change for existing and new 

lightweight aggregate kilns because the 

total chlorine emissions data of the 

source with back-end air pollution 

controls (after considering variability) 

are higher than the standards 

promulgated today. Thus, the 

commenter’s suggestion also would 

result in a standard that would be 

capped by the interim standard. 

3. Beyond-the-Floor Standards 

Comment: One commenter opposes 

EPA’s proposed decision to promulgate 

a beyond-the-floor standard for dioxin/ 

furans for existing and new lightweight 

aggregate kilns based on performance of 

activated carbon injection. 

Response: For the final rule, we 

conclude that a beyond-the-floor 

standard for lightweight aggregate kilns 

is not warranted. The Clean Air Act 

requires us to consider costs and nonair quality impacts and energy 

requirements when considering more 

stringent requirements than the MACT 

floor. In the proposed rule, we estimated 

that the incremental annualized 

compliance costs for lightweight 

aggregate kilns to achieve the beyondthe-floor standard would be 

approximately $1.8 million and would 

provide an incremental reduction in 

dioxin/furan emissions of 1.9 grams 

TEQ per year (see 69 FR at 21262). At 

proposal we judged costs of 

approximately $950,000 per additional 

gram of dioxin/furan TEQ removed as 

justified, and, therefore, we proposed a 

beyond-the-floor standard. Since 

proposal, we made several changes to 

the dioxin/furan data base as the result 

of public comments. One implication of 

these changes is a lower national 

emissions estimate for dioxin/furans for 

lightweight aggregate kilns. We now 

estimate an incremental reduction in 

dioxin/furan emissions of 1.06 grams 

TEQ per year with costs ranging 

between $1.6 and $2.2 million per 

additional gram of dioxin/furan TEQ 

removed. Based on these costs and 

consideration of the non-air quality 

impacts and energy requirements 

(including more waste generated in the 

form of spent activated carbon, and 

more energy consumed), we conclude 

that a beyond-the-floor standard for 

existing and new lightweight aggregate 

kilns is no longer justified. For an 

explanation of the beyond-the-floor 

analysis, see Section 12.1.2 of Volume 

III of the Technical Support Document. 

We note that EPA also retains its 

authority under RCRA section 3005(c) 

(the so-called omnibus permitting 

authority) by which permit writers can 

adopt more stringent emission standards 

in RCRA permits if they determine that 

today’s standards are not protective of 

human health and the environment. 

D. Liquid Fuel Boilers 

1. Mercury Standard Not Achievable 

When Burning Legacy Mixed Waste 

Comment: One commenter states that 

the proposed liquid fuel boiler mercury 

standard is not achievable by a 

commercial boiler, DSSI (Diversified 

Scientific Services, Inc.) that burns 

mercury-bearing low level radioactive 

waste that is also a hazardous waste (socalled ‘mixed waste’) that was generated 

years ago (so-called, legacy waste). The 

waste is an organic liquid containing 

high concentrations of mercury. The 

boiler is equipped with a wet scrubber 

which provides good mercury control—

93%, system removal efficiency 

according to the commenter. 

The commenter states that the 

proposed liquid fuel boiler mercury 

standard is not achievable using 

feedrate control and/or additional backend control. Waste minimization is not 

an option because the waste has already 

been generated. Further, available 

national treatment capacity for mercurybearing, low-level radioactive organic 

hazardous waste is very limited. The 

only other hazardous waste combustion 

facility authorized to treat such waste is 

the Department of Energy incinerator at 

Oak Ridge, Tennessee. Waste treatment 

volumes at that facility are restricted by 

the mercury feed rate limitation for the 

incinerator. In addition, the feedrate of 

the waste cannot be practicably reduced 

because of the large back-log of waste 

that must be treated. 

The commenter suggests that their 

boiler be subject to the incinerator 

mercury standard because the mixed 

waste has far higher concentrations of 

mercury than wastes burned by other 

boilers and, as a consequence, the boiler 

is more incinerator-like with respect to 

the feedrate of mercury. 

Response. We agree with the 

commenter’s suggestion. The final rule 

subjects this commercial liquid fuel 

boiler to the mercury standard for 

incinerators. We are classifying this 

source as a separate type of source for 

purposes of the mercury standard, 

because the type of mercury-containing 

waste it processes is dramatically 

different from that processed by other 

liquid fuel boilers, effectively making 

this a different type of source for 

purposes of a mercury standard 165. The 

source thus feeds mercury at 

concentrations exceeding that of any 

boiler but at concentrations within the 

range processed by hazardous waste 

incinerators. The maximum test 

condition average MTEC166 for mercury 

for the remaining liquid fuel boilers is 

20 μg/dscm. All the liquid fuel boiler 

mercury data represent ‘‘normal’’ data, 

i.e., data that were not spiked. (The lack 

of spiked data in the liquid fuel boiler 

data base, in and of itself, indicates that 

these sources do not process mercurybearing waste and do not need the 

operational flexibility gained by spiking 

to account for occasional higher 

concentration mercury wastes.) DSSI’s 

2002 mercury test condition average 

MTEC was spiked to 3500 μg/dscm. In 

other words, DSSI needs the operational 

flexibility to feed 175 times more 

mercury than any other liquid fuel 

boiler. Incinerators, on the other hand, 

had mercury MTECs that ranged to 

110,000 μg/dscm in 2002. In fact, DSSI’s 

mercury feed rate is the eighth highest 

of the 40 incinerators, including DSSI, 

for which we have 2002 mercury feed 

rate data. DSSI’s process feed is thus 

within the upper range of mercury feed 

found at incinerators. 

We believe it is well within the broad 

discretion accorded us in section 

112(d)(1) to subcategorize among 

‘‘types’’ and ‘‘classes’’ of sources within 

a category. See also Weyerhaeuser v. 

Costle, 590 F. 2d at 254, n. 70 (D.C. Cir. 

1978) (similar raw waste characteristics 

justify common classification) and 

Chemical Manufacturers Ass’n v. EPA, 

870 F. 2d 177, 253–54 and n. 340 (5th 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59473 

167USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume I: Description of 

Source Categories,’’ September 2004, Section 2.4.4. 

168For more explanation concerning mixed waste 

sources, limitations on the concentrations of 

mercury fed to these sources, and the system 

removal efficiency achieved, see USEPA, 

‘‘Technical Support Document for HWC MACT 

Standards, Volume III: Selection of Standards,’’

September 2005, Section 8.7. 

Cir. 1989) (same). We note that this 

boiler will be subject to the liquid fuel 

boiler standards for all HAP other than 

mercury (the only HAP where the issue 

of appropriate classification arises). 

Not surprisingly, given the disparity 

in waste concentration levels, the DSSI 

boiler, even though equipped with back 

end control comparable to best 

performing commercial incinerators, 

achieves mercury emission levels less 

than an order of magnitude higher than 

the other hazardous waste-burning 

liquid fuel boilers, few of which use 

back end control that is effective for 

mercury.167 This emission disparity 

likewise indicates that DSSI is treating 

a different type of waste than other 

liquid fuel boilers. 

The nature of the mercury-bearing 

waste further confirms that it is of a 

different type than that processed by 

other hazardous waste burning liquid 

fuel boilers. The waste is a remediation 

waste, a type of waste burned routinely 

by commercial hazardous waste 

incinerators but almost never by a liquid 

fuel boiler. 

Moreover, the waste is a legacy, 

mixed waste generated decades ago in 

support of the United States’ strategic 

nuclear arsenal. It is not amenable to the 

types of control all other liquid fuel 

boilers use to reduce mercury 

emissions—some type of feed control or 

other minimization technique. We 

investigated whether any waste 

minimization options are feasible for 

this waste, and find that they are not. 

Normally, waste minimization is 

accomplished by one of three means: 

eliminating the use of mercury in the 

process to prevent it from being in the 

waste; pretreating the waste before 

burning to remove the mercury; or 

sending it to another facility better 

suited to handle the waste. Changing the 

production process to eliminate or 

reduce the mercury content of the waste 

is not an option because this waste has 

already been generated. Pretreatment is 

already practiced to the maximum 

extent feasible by settling out and 

separating the heavier mercury from the 

liquid components after thermal 

desorbtion. The remaining organic 

liquid that is burned by the mixed waste 

boiler contains concentrations of 

mercury (in organo-mercury and other 

organic soluble forms) that are orders of 

magnitude higher than burned by other 

liquid fuel boilers. Much of the waste 

cannot be feasibly pretreated to remove 

mercury because this legacy, mixed 

waste comes from many highly diverse 

sources. It is not practical or feasible to 

investigate how to remove the mercury 

from wastes of such varied and unique 

origins. 

Only one other facility could 

potentially treat this mixed waste, 

DOE’s incinerator at Oak Ridge, 

Tennessee, whose permit allows the 

incinerator to manage mixed waste. 

However, waste treatment volumes for 

mercury-bearing wastes at that facility 

are restricted by the mercury feed rate 

limitation in the incinerator’s permit. 

The DOE incinerator alone cannot 

assure national capacity for mercurybearing, low-level radioactive organic 

hazardous waste. In addition, the backend emission controls of the mixed 

waste boiler are superior to those used 

by most incinerators, including the Oak 

Ridge incinerator. This boiler uses a 

highly effective wet scrubbing system—

the principal MACT floor back-end 

control for mercury used by 

incinerators—that achieves over 93% 

system removal efficiency. This is 

superior control compared to most 

incinerators, including the one at Oak 

Ridge which achieves 75 to 85% 

removal.168

Thus, this mixed waste boiler is 

reasonably classified a different type of 

source with respect to mercury waste 

than other hazardous waste-burning 

liquid fuel boilers, based on the nature 

of the waste burned and confirmed by 

the source’s mercury emissions. We 

note that, although the final rule 

subjects only the DSSI mixed waste 

boiler to the incinerator mercury 

standard, we would conclude that any 

other liquid fuel boiler with the same 

fact pattern (i.e., that met the same 

criteria as the DSSI boiler as discussed 

above) should also be subject to the 

incinerator mercury standard rather 

than the liquid fuel boiler mercury 

standard. 

Comment. One commenter states that 

EPA’s standards for all sources must 

reflect the actual emission levels 

achieved by the relevant best sources. If 

EPA wishes to subject the boiler source 

and incinerators to the same emission 

standards, however, it is entirely within 

the Agency’s power to do so. 

Response. We agree. There is no 

functional difference between this boiler 

and incinerators with respect to 

mercury feed rate and the type of waste 

processed (incinerators often treat 

remediation wastes). Therefore, the 

most relevant sources for the purposes 

of clarification in this case are 

incinerators, not liquid fuel boilers. 

Accordingly, we have classified DSSI 

as an incinerator for purposes of a 

mercury standard (i.e., made it subject 

to the mercury standard for 

incinerators), and have included the 

DSSI mercury data with the incinerator 

data when assessing mercury standards 

for incinerators. 

Comment. In something of a 

contradiction, the same commenter 

argues that the mixed waste boiler 

source (DSSI) does not claim that it 

cannot meet the relevant mercury 

standard for liquid fuel boilers, but only 

that it cannot do so ‘‘using either 

feedrate control or MACT floor back end 

emission control.’’ Floors must reflect 

the emission levels that the relevant best 

sources actually achieve, not what is 

achievable through the use of a chosen 

emission control technology. It is flatly 

unlawful—and essentially 

contemptuous of court—for EPA even to 

entertain the source’s argument that the 

source should be subject to a less 

stringent emission standard based on 

the levels they believe would be 

achievable through the use of one 

chosen control technology. 

The commenter also states that the 

source acknowledges that it could 

achieve a better emission level, and 

apparently meet the relevant standards, 

by using activated carbon. Their 

argument that doing so would generate 

large quantities of spent radioactive 

carbon does not support its attempt to 

avoid Clean Air Act requirements; the 

alternative to the source accumulating 

large quantities of radioactive carbon is 

releasing large quantities of radioactive 

and toxic pollution into the 

environment. 

Response. DSSI cannot meet the 

liquid boiler mercury standard because 

it burns a unique waste that resembles 

wastes processed by hazardous waste 

incinerators (in terms of mercury 

concentration and provenance) and is 

unlike any mercury-containing waste 

burned by the remaining liquid fuel 

boilers. See the earlier discussion 

showing that DSSI needs the operational 

flexibility to feed 175 times more 

mercury than any other liquid fuel 

boiler, but that DSSI’s process feed is 

within the upper range of mercury feed 

found at incinerators. 

We agree that DSSI is processing 

different types of mercury-bearing 

wastes than those combusted by all 

other liquid fuel boilers. We believe that 

establishing a different mercury 

standard for DSSI is warranted, as it 

would for any source with demonstrably 

unique, unalterable feedstock which is 

59474 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

169Although the legacy waste that DSSI is 

burning is nominally classified as a nonwastewater 

due to its high organic content, it is in fact a liquid 

matrix, meaning that the treatment standard of 

0.025 μg/l is effectively a total standard. 

more difficult to treat than that 

processed by other sources otherwise in 

the same category. 

How DSSI chooses to comply with the 

incinerator mercury standard (for 

example, whether it must use some 

other type of emissions control 

technology) is not germane to this 

decision. We note that today’s mercury 

standard for incinerators will force this 

source to lower its mercury emissions, 

since it is unlikely that it can meet 

today’s 120 μg/dscm standard at all 

times without some changes in 

operations. 

Comment. The source argues that 

waste minimization is not feasible for 

legacy mixed waste that has already 

been generated. It is not possible to 

travel back in time and unmake mixed 

legacy waste that already has been 

created. That obvious fact, however, 

lends no support to their argument that 

it should be allowed to burn mixed 

legacy waste with less stringent 

emission standards, according to one 

commenter. 

Response. As discussed above, the 

mercury standard for liquid fuel boilers 

is not achievable for this source because 

it is a different type and class of boiler, 

based on the type of mercury-containing 

hazardous waste it processes. Because 

this boiler has mercury feed rates that 

resemble those of incinerators—not 

liquid fuel boilers—and waste 

minimization is not possible, subjecting 

the boiler to the mercury incinerator 

standard is a reasonable means of subcategorization pursuant to the 

discretionary authority provided us by 

section 112(d)(1) of the Clean Air Act. 

Comment. The commenter states that 

it is entirely possible to dispose of 

mixed legacy waste without burning it. 

Specifically, currently available 

technologies such as chemical oxidation 

and precipitation can be used to treat 

mixed legacy waste without burning it—

and without releasing mercury into the 

air. Therefore, mixed legacy waste 

should not be burned at all; it should be 

disposed of safely through the 

application of one of these more 

advanced technologies. 

Response. First, these wastes must be 

treated before they can be land 

disposed. RCRA sections 3004(d), (g)(5), 

and (m). They also must meet a standard 

of 0.025 mg/l measured by the Toxicity 

Characteristic Leaching Procedure 

before land disposal is permissible. 40 

CFR 268.40 (standard for ‘‘all other 

nonwastewaters that exhibit the 

characteristic of toxicity for 

mercury’’).169 EPA’s technical judgment 

is that it would be very difficult to meet 

this standard by any means other than 

combustion. Moreover, as an organic 

liquid, the waste is readily amenable to 

treatment by combustion. In addition, 

combustion is a legal form of treatment 

for the waste. EPA did not propose to 

change or otherwise reconsider these 

treatment standards in this rulemaking, 

and is not doing so here. We note, 

however, that 40 CFR 268.42 and 268.44 

provide means by which generators and 

treatment facilities can petition the 

Agency to seek different treatment 

standards from those specified by rule, 

and set out requirements for evaluating 

such petitions. 

We note further that, because this 

waste is radioactive, exceptional 

precautions need to be taken in its 

handling. The nonthermal treatment 

alternatives mentioned by the 

commenter ignore the potential for 

radiation exposure if nonthermal 

treatment is used. Concerns (some of 

which are mentioned in DSSI’s 

comment) include: Nonthermal 

treatment would (or could) increase 

worker exposure; desire to reduce 

handling of radioactive materials in 

general; need to avoid contaminating 

equipment that subsequently requires 

decontamination or handling as 

radioactive material; minimizing the 

generation of additional radioactive 

waste residues; reducing the amount of 

analysis of radioactive materials, which 

causes potential exposure, generation of 

radioactive wastes and equipment; 

wastes are varied and often of small 

volumes, which makes it difficult to 

develop routine procedures. 

Nonthermal treatment alternatives are 

also not currently available to DOE to 

manage the diversity and volume of 

DOE mixed waste. It is thus our belief 

that the commenter has not fully 

explored the implications of its 

position, especially with regard to 

radiation exposure. 

If the commenter wishes to pursue 

this issue, EPA believes the appropriate 

context is through the Land Disposal 

Restriction mechanisms described 

above. 

Comment. The commenter states that 

the source argues that feedrate control is 

not ‘‘practical.’’ There appears to be no 

record evidence indicating what would 

make feedrate control impractical and 

why any such obstacle could not be 

overcome. 

Response. Feedrate control to the 

extent necessary to achieve the liquid 

fuel boiler standards is not practical for 

reasons just discussed. This source is 

one of two available sources that is 

authorized to treat mixed waste, and the 

other source is not likely to have the 

ability to burn mercury-bearing organic 

waste in the future due to permit 

limitations and size constraints. 

Comment. The commenter states that 

mixed legacy waste should not be 

burned at all. If there are truly no other 

facilities that are currently permitted to 

dispose of mixed legacy waste, such 

waste should be stored until a facility 

that can treat such waste safely—e.g., 

through chemical oxidation—can be 

permitted. 

Response. The commenter’s 

suggestion is beyond the scope of 

today’s rulemaking. The suggestion is 

also illegal, since RCRA prohibits the 

storage of hazardous waste for extended 

periods. See RCRA section 3004(j); and 

Edison Electric Inst. v. EPA, 996 F. 2d 

326, 335–37 (DC Cir. 1993) (illegal 

under RCRA section 3004(j) to store 

hazardous waste pending development 

of a treatment technology). EPA also 

notes that it retains authority under 

RCRA section 3005(c) (the so-called 

omnibus permitting authority) by which 

permit writers can adopt more stringent 

emission standards in RCRA permits if 

they determine that today’s standards 

are not protective of human health and 

the environment. 

2. Different Mercury, Semivolatile 

Metals, Chromium, and Total Chlorine 

Standards for Liquid Fuel Boilers 

Depending on the Heating Value of the 

Hazardous Waste Burned 

Comment. Several commenters state 

that liquid fuel boilers should have an 

alternative concentration-based 

standard in addition to the thermal 

emission-based standard. Liquid fuel 

boilers are typically ‘‘captive’’ units that 

burn waste fuels generated from on-site 

or nearby manufacturing operations, 

rather than accepting wastes from a 

wide variety of other sources. Because 

they have captive fuel sources, operators 

generally do not have fuel blending 

capabilities. Liquid fuel boilers ‘‘burn 

what they have,’’ and as such have very 

limited operational flexibility. EPA 

should not penalize boilers that have 

the same mass concentrations of metals 

or chlorine in their waste compared to 

other boilers, but which wastes have a 

lower heating value than wastes burned 

by other boilers. (The ‘‘penalty’’ is that 

emissions limits that are normalized by 

the heating value of the hazardous waste 

require that less volume of lower 

heating value waste can be burned 

compared to higher heating value fuel.) 

This problem is made worse by the 

limited data base for liquid fuel boilers, 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59475 

170We also agree that liquid fuel boilers present 

several unique circumstances, namely: they are 

often unable to blend fuel and have limited 

operational flexibility as a result; our data base on 

these sources’ performance is relatively small; 

much of our mercury and semivolatile metals data 

is at or near detection limits; and much of the 

mercury and semivolatile metals data was obtained 

for other purposes, namely from risk burns or as a 

result of Method 29 testing to demonstrate 

compliance with a RCRA chromium standard. 

While not immediately important to the topic at 

hand—namely that not all liquid fuel boilers burn 

for energy recovery—they are secondary issues that 

we need to closely consider to make sure we do not 

estimate what the best performing 12% of sources 

are achieving in an unreasonable manner. 

171See NESHAP for Stationary Combustion 

Turbines, 40 CFR section 63.6175 (definitions of 

‘‘diffusion flame gas-fired stationary combustion 

turbine’’, ‘‘diffusion flame oil-fired stationary 

combustion turbine’’, ‘‘lean pre-mix gas-fired 

stationary combustion turbine’’ and ‘‘lean premix 

oil-fired stationary combustion turbine’’). 

the lack of historical data to verify that 

these standards are achievable over 

time, and having most or all of the 

measured emissions below detection 

limits. In addition, most of the mercury 

and semivolatile metal data EPA has in 

the data base were obtained during 

normal operations and while the source 

demonstrated compliance with RCRA’s 

chromium standard—the other metals 

data were available only because stack 

method Method 29 reports data for all 

RCRA metals, even ones that are not at 

issue for the compliance test. (Sources 

generally elected to comply with the BIF 

Tier I metals emissions levels, but Tier 

III for chromium. Thus, the Method 29 

test for chromium will give emissions 

results for all the metals—even those 

not subjected to stack testing—not just 

chromium.) 

Response. As explained earlier in Part 

Four, Section V.A., EPA has selected 

normalizing parameters that best fit the 

input to the combustion device. A 

thermal normalizing parameter (i.e., 

expressing the standards in terms of 

amount of HAP contributed by 

hazardous waste per thermal content of 

hazardous waste) is appropriate where 

hazardous waste is being used in 

energy-recovery devices as a fuel, since 

the waste serves as a type of fuel. Using 

a thermal normalizing parameter in 

such instances avoids the necessity of 

subcategorizing based on unit size. 

The commenters raise the other side 

of the same issue. As the commenters 

point out, some liquid fuel boilers burn 

lower Btu hazardous waste because that 

is the waste available to them, and those 

with waste that has a low heating value 

are, in their words, ‘‘penalized,’’

compared to those with a high(-er) 

heating value. Also, since these are not 

commercial combustion units, they 

normally lack the opportunity to blend 

wastes of different heating values to 

result in as-fired high heating value 

fuels. If boiler standards are normalized 

by hazardous waste heating value, 

sources with lower heating value waste 

must either reduce the mass 

concentration of HAP or increase the 

waste fuel heating value (or increase the 

system removal efficiency) compared to 

sources with wastes having the same 

mass concentration of HAP but higher 

heating value. 

Moreover, the thermal normalizing 

parameter is not well suited for a 

hazardous waste that is not burned 

entirely for its fuel value. In cases where 

the lower heating value waste is burned, 

the boiler is serving—at least in part—

as a treatment device for the lower 

heating value hazardous waste. When 

this occurs, the better normalizing 

parameter is the unit’s gas flow (a 

different means of accounting for 

sources of different size), where the 

standard is expressed as amount of HAP 

per volume of gas flow (the same 

normalizing parameter used for most of 

the other standards promulgated in 

today’s final rule.) 

The commenters requested that liquid 

fuel boilers be able to select the 

applicable standard (i.e., to choose 

between normalizing parameters) and 

further requested that we assess the 

performance of these units (for the 

purpose of establishing concentrationbased MACT floor levels) by using the 

same MACT pool of best performing 

sources expressed on a thermal 

emissions basis. 

Neither of these suggestions is 

appropriate. Choice of normalizing 

parameter is not a matter of election, but 

rather reflects an objective 

determination of what parameter is 

reasonably related to the activity 

conducted by the source. Moreover, the 

commenter’s suggestion to use thermal 

emissions to measure best performance 

for a concentration-based standard does 

not make sense. It arbitrarily assumes 

that the best performers with respect to 

low and high heating value wastes are 

identical. 

Instead, we have established two 

subcategories among the liquid fuel 

boilers: those burning high and those 

burning low heating value hazardous 

waste. The normalizing parameter for 

sources burning lower energy hazardous 

waste is that used for the other 

hazardous waste treatment devices, gas 

flow rate, so that the standard is 

expressed as concentration of HAP per 

volume of gas flow (a concentrationbased form of the standard.) The 

normalizing parameter for sources 

burning higher energy content 

hazardous waste is the thermal 

parameter used for energy recovery 

devices, such as cement kilns and 

lightweight aggregate kilns. For the 

purposes of calculating MACT floors, 

the best performers are then drawn from 

those liquid fuel boilers burning lower 

energy hazardous waste for the lower 

heating value subcategory, and from 

those liquid fuel boilers burning higher 

energy hazardous waste for the higher 

heating value subcategory 170. (See 

Section 23.2 of Volume III of the 

Technical Support Document for more 

information.) 

Moreover, liquid fuel boilers are not 

irrevocably placed in one or the other of 

these subcategories. Rather, the source 

is subject to the standard for one or the 

other of these subcategories based on 

the as-fired heating value of the 

hazardous waste it burns at a given 

time. Thus, when the source is burning 

for energy recovery, then the thermal 

emissions-based standard would apply. 

When the source is burning at least in 

part for thermal destruction, then the 

concentration based standard would 

apply. This approach is similar to how 

we have addressed the issue of 

normalization in other rules where 

single sources switch back and forth 

among inputs which are sufficiently 

different to warrant separate 

classification. 171

We next considered what an 

appropriate as-fired heating value 

would be for each liquid fuel boiler 

subcategory. Although we have used 

5000 Btu/lb (the heating value of lowest 

grade fuels such as scrap wood) in past 

RCRA actions as a presumptive measure 

of when hazardous waste is burned for 

destruction (see, e.g. 48 FR 11159 

(March 16, 1983)), we do not think that 

measure is appropriate here. We used 

the 5,000 Btu/lb level to delineate 

burning for destruction from burning for 

energy recovery at a time when that 

determination meant the difference 

between regulation and nonregulation. 

See 50 FR 49166–167 (Nov. 29, 1985). 

This is a different issue from choosing 

the most reasonable normalizing 

parameter for regulated units (i.e., units 

which will be subject to a standard in 

either case). 

Instead, we are adopting a value of 

10,000 Btu/lb as the threshold for 

subcategorization. This is approximately 

the heating value of commercial liquid 

fossil fuels. 63 FR 33782, 33788 (June 

19, 1998) It is also typical of current 

hazardous waste burned for energy 

recovery. Id. Moreover, EPA has used 

this value in its comparable fuel 

specification as a means of 

differentiating fuels from waste. See id. 

and Table 1 to 40 CFR section 261.38, 

showing that EPA normalizes all 

59476 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

172The Norlite light-weight aggregate kiln was not 

included in this analysis because they claim they 

are not burning for energy recovery. The waste 

Norlite burns is 4,860 Btu/lb or lower. This is 

indicative of a source burning solely for thermal 

treatment of the waste and not, at least in part, for 

energy recovery. See 40 CFR 266.100(d)(2)(ii). 

173The cement kiln burn tank data and test report 

data shows the minimum heating values of 9,900 

and 10,000 Btu/lb, respectively, for the hazardous 

waste. The minimum lightweight aggregate kiln 

heating values for hazardous waste was 10,000 Btu/ 

lb, excluding the Norlite source. 

174 If you burn hazardous waste in more than one 

firing nozzle, you must determine the massweighted average heating value of the as-fired 

hazardous waste across all firing nozzles. 

constituent concentrations to a 10,000 

Btu/lb level in its specification for 

differentiating fuels from wastes. 

We next examined the waste fuel 

being burned at cement kilns and 

lightweight aggregate kilns, which burn 

hazardous waste fuels to drive the 

process chemistry to produce 

products172, to cross-check whether 

10,000 Btu/lb is a reasonable 

demarcation value for subcategorizing. 

10,000 Btu/lb is the minimum heating 

value found in burn tank and test report 

data we have for cement kilns and 

lightweight aggregate kilns 173. We 

believe the cement kiln and light weight 

aggregate kiln data confirm that this is 

an appropriate cutpoint, since these 

sources are energy recovery devices that 

blend hazardous wastes into a 

consistent, high heating value fuel for 

energy recovery in their manufacturing 

process. 

We then separated the liquid fuel 

boiler emissions data we had into two 

groups, sources burning hazardous 

waste fuel with less than 10,000 Btu/lb 

and all other liquid fuel boilers, and 

performed separate MACT floor 

analyses. (See Sections 13.4, 13.6, 13.7, 

13.8, and 22 of Volume III of the 

Technical Support Document.) We 

calculated concentration-based MACT 

standards for these sources from their 

respective mercury, semivolatile metals, 

chromium, and total chlorine data. 

Liquid fuel boilers will need to 

determine which of the two 

subcategories the source belongs in at 

any point in time. Thus, you must 

determine the as-fired heating value of 

each batch of hazardous waste fired so 

that you know the heating value of the 

hazardous waste fired at all times.174 If 

the as-fired heating value of hazardous 

wastes varies above and below the 

cutpoint (i.e., 10,000 Btu/lb) at times, 

you are subject to the thermal emissions 

standards when the heating value is not 

less than 10,000 Btu/lb and the mass 

concentration standards when the 

heating value is less than 10,000 Btu/lb. 

To avoid the administrative burden of 

frequently switching applicable 

operating requirements between the 

subcategories, you may elect to comply 

with the more stringent operating 

requirements that ensure compliance 

with the standards for both 

subcategories. 

Comment: EPA’s attempt to give 

actual performance two different 

meanings within a single floor approach 

is unlawful, unexplained, internally 

inconsistent, and arbitrary. If EPA 

believes that mass-based emissions 

constitute sources’ actual performance, 

the best performing sources must be 

those with the best mass based 

emissions—not thermal emissions. 

Response: As just explained, we agree 

with this comment, and have developed 

MACT floors independently for the two 

subcategories of liquid fuel boilers. 

Thus, we have defined two separate 

MACT pools based on the thermal input 

of the waste fuel and derived two 

separate and consistent MACT 

standards for sources when they burn 

solely for energy recovery, and when 

they do not. 

We also note that a source cannot 

‘‘pick and choose’’ the less stringent of 

the two standards and comply with 

those. The source must be in 

compliance with the set of standards 

that apply. 

3. Alternative Particulate Matter 

Standard for Liquid Fuel Boilers 

Comment: A commenter requested 

that EPA establish standards that allow 

boilers the option to comply with either 

a concentration-based particulate matter 

standard or thermal emissions-based 

particulate matter standard. 

Response: We determined that it is 

appropriate to express the particulate 

matter emission standard as a 

concentration-based standard 

consistently across source categories 

and not to give boilers the option to 

comply with a thermal emissions-based 

particulate matter standard. As 

discussed in Part Four, Section III.D as 

well as the preceding section, metal and 

chlorine concentration-based emission 

standards can be biased against sources 

that process more hazardous waste 

(from an energy demand perspective), in 

part because the SRE/Feed methodology 

assesses feed control of each source 

when identifying the best performing 

sources; the ranking procedure thus 

favors sources with lower percentage 

hazardous waste firing rates (keeping all 

other assessment factors equal). The 

thermal emission standard format 

eliminates this firing rate bias, which 

amounts to a limitation on the amount 

of raw material (hazardous waste fuel to 

an energy recovery device) that may be 

processed, when identifying best 

performing sources. 

The methodology we use to identify 

best performing sources for particulate 

matter emissions is not affected by the 

firing rate bias in the manner that metal 

and chlorine emissions are. This is 

primarily because we define best 

performing sources as those with the 

best back-end air pollution control 

technology; feed control is not assessed 

(specifically ash feed control) for raw 

materials, fossil fuel, or unenumerated 

HAP metal in the hazardous waste. The 

hazardous waste firing rate bias is 

therefore not present when we identify 

the best performing particulate matter 

sources because a source’s hazardous 

waste firing rate is not a direct factor in 

the ranking procedure. 

We also note that four of the nine best 

performing liquid fuel boilers for 

particulate matter are equipped with 

fabric filters. Particulate matter 

emissions from sources equipped with 

fabric filters are not significantly 

affected by ash inlet loading. This is not 

true for metals and chlorine, given metal 

and chlorine emissions from fabric 

filters tend to increase at increased feed 

rates. See Volume III of the Technical 

Support Document, Sections 5.3 and 

7.4. We conclude that the hazardous 

waste firing rate issue is not a concern 

for these sources given their particulate 

matter emissions would not be 

significantly affected by increased 

hazardous waste firing rates. 

4. Long-term, Annual Averaging Is 

Impermissible 

Comment: Standards expressed as 

long-term limits are legally 

impermissible because those levels, by 

definition, would sometimes be greater 

than the average emission levels 

achieved by the best performing 

sources. Compliance also must be 

measured on a continuous basis, under 

section 302(k) of the Act. Thus, floor 

levels (and standards) for mercury 

expressed as long-term limits are illegal. 

Response: The commenter maintains 

that the statutory command in section 

112(d)(3)(A) to base floor standards for 

existing sources on ‘‘the average 

emission limitation achieved by the best 

performing 12 percent of * * * existing 

sources’’ precludes establishing 

standards expressed as long term 

averages because certain daily values 

could be higher. We do not accept this 

position. The statute does not state what 

type of ‘‘average’’ performance EPA 

must assess. Long term, i.e., annual, 

averaging of performance is quite 

evidently a type of average, and so is 

permissible under the statutory text. 

Moreover, it is reasonable to establish 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59477 

175Two emission standards in this rulemaking are 

based on normal data but are expressed as short 

term limits (the mercury standards for lightweight 

aggregate and cement kilns). However, in these 

instances we had enough normal data to reasonably 

estimate each source’s maximum emissions, thus 

allowing us to express the standard as a short term 

limit. See USEPA, ‘‘Technical Support Document 

for HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Sections 11.2 

and 12.2. 

176This is not the case for floors that are based 

on compliance tests because sources spiked their 

hazardous wastes to account for variability in 

hazardous waste feedrate. See Part Four, Section 

III.C above. Normal data, however, are a snapshot 

of what occurred on that day and are not likely to 

be representative over the long term, especially for 

mercury and semivolatile metals for liquid fuel 

boilers, where these limited data were almost 

entirely below the analytic detection limit. 

177For example, sources 2014 and 2015 owned by 

Environmental Purification Industries in Toledo, 

Ohio, were considered hazardous waste boilers at 

the time the Phase II data base was noticed in the 

June 27, 2000, despite the fact that these boilers 

burned only gasses. These boilers have since 

stopped burning hazardous waste. 

standards on this basis (the standards 

being the average of the best performing 

sources, expressed as a long-term 

average), where sufficient data exist. 

Indeed, since the principal health 

concern posed by the emitted HAP is 

from chronic exposure (i.e. cumulative 

exposure over time), long-term 

standards (which reduce the long-term 

distribution of emitted HAP) arguably 

would be preferable in addressing the 

chief risks posed by these sources’

emissions. 

We establish standards with long-term 

averaging limits whenever we use 

normal data to estimate long-term 

performance. We do this in the few 

instances where there are insufficient 

data (whether normal data or 

compliance test data) to estimate each 

source’s short term emission levels (e.g., 

mercury and semivolatile metal 

standards for liquid fuel boilers).175 One 

or two snapshot data based on normal 

operations are not likely to reflect a 

source’s short-term operating levels in 

part because feed control levels can vary 

over time.176 See Mossville, 370 F. 3d at 

1242 (varying feed rates lead to different 

emission levels, and this variability 

must be encompassed within the floor 

standard because the standard must be 

met at all times). As a result, snapshot 

normal emissions, when averaged 

together, better reflect a source’s long 

term average emissions. An emission 

standard based on normal data that is 

averaged together, but expressed as a 

short-term limit, would not be 

achievable by the best performing 

sources because it would not adequately 

account for their emissions variability. 

See National Wildlife Federation v. 

EPA, 286 F. 3d at 572–73 (‘‘[c]ontinuous 

operation at or near the daily maximum 

would in fact result in discharges that 

exceed the long-term average. Likewise, 

setting monthly limitations at the 99th 

percentile would not insure that the 

long-term average is met’’). Long-term 

limits better account for this variability 

because such limits allow sources to 

average their varying feed control levels 

over time while still assuring average 

emissions over this period are below the 

levels demonstrated by the best 

performing sources. 

Indeed, under the commenter’s 

approach where no averaging of intrasource data would be allowed, sources 

would not be in compliance with the 

standards during the performance tests 

themselves. The tests consist of the 

average of three data runs, so half of the 

emissions-weighted data points would 

be impermissibly higher than the 

average during the test used to derive 

today’s emission standards. 

EPA also does not see that section 

302(f) of the Act, cited by the 

commenter, supports its position. That 

provision indicates that the emission 

standards EPA establishes must limit 

the quantity, rate, or concentration of air 

pollutants on a continuous basis. A 

standard expressed as a long-term 

average does so by constraining the 

overall distribution of emissions to meet 

a long-term average. Also, long term 

limits result in emission standards that 

are lower than those that otherwise 

would be implemented on a short-term 

basis. The short-term limit would have 

to reflect the best performing sources’

short term emissions variability (i.e., the 

maximum amount of variability a source 

could experience during a single test 

period). National Wildlife Federation, 

286 F. 3d at 571–73. 

Comment: Other commenters argued 

the opposite point, that ERA has no data 

to show that an annual average is 

achievable, and EPA should establish a 

longer averaging period. 

Response: We believe that all sources 

can achieve the mercury and 

semivolatile metals standards for liquid 

fuel boilers on an annual basis using 

some combination of MACT controls, 

i.e., feed control, back end control, or 

some combination of both. We agree 

that we have a small data set for these 

standards, but also believe that it is 

intuitive that a liquid fuel boiler can 

meet these standards on an annual 

basis, because one year is sufficiently 

more than any seasonal (i.e., several 

month long) production of certain items 

that may not be represented by the tests 

we have. 

This informs us that an average of less 

than a year may not be achievable. It 

does not inform us that averaging of 

more than a year is required, since 

variations that occur with a year are 

averaged together. An annual average is 

sufficient for a source to determine 

whether an individual waste stream 

impacts negatively on the compliance of 

the liquid fuel boiler and take measures 

to address the issue. 

5. Gas Fuel Boilers 

Comment: How can a boiler burning 

only gaseous waste also be burning 

hazardous waste? Uncontained gases are 

not considered hazardous waste under 

RCRA. Why are boilers that burn only 

gasses part of the liquid fuel boiler 

subcategory? 

Response: We agree with the 

commenter that boilers that burn gasses 

are unlikely to burn hazardous wastes. 

However, gas fuel hazardous waste 

boilers have existed in the past,177 and 

we believe we need to define a MACT 

standard for them. Therefore, we 

included gas fuel boilers in the liquid 

fuel boiler subcategory for reasons cited 

in the proposed rule. See 69 FR at 

21216. 

E. General 

1. Alternative to the Particulate Matter 

Standards 

Comment: Commenters state that 

some incinerators are currently 

complying with the alternative to the 

particulate matter standard provision 

pursuant to the interim standards. See 

§ 63.1206(b)(14). The eligibility and 

operating requirements for the 

alternative to the particulate matter 

standard in the Interim Standards are 

different than the proposed alternative 

to the particulate matter standard in the 

replacement rule. Specifically, the 

proposed alternative to the particulate 

matter standard would no longer require 

sources to demonstrate a 90% system 

removal efficiency or a minimum 

hazardous waste metal feed control 

level to be eligible for the alternative. 

Commenters request that EPA clarify in 

the final rule that the proposed 

alternative to the particulate matter 

standard supersedes the requirements in 

the Interim Standards. 

Response: We are finalizing the 

alternative to the particulate matter 

standard for incinerators as proposed, 

with the exception that the alternative 

metal emission limitations have been 

revised as a result of database changes 

since proposal. See § 1219(e) and part 

three, section II.A. We considered 

superseding the interim standard 

alternative to the particulate matter 

standard requirements (63.1206(b)(14)) 

immediately (upon promulgation) by 

replacing it with the revised alternative 

59478 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

178Sources can only use § 63.1206(b)(14) for 

purposes of complying with the interim standards. 

After the compliance date for today’s rule, 

incinerators electing to comply with the alternative 

to the particulate matter standard must comply with 

the provisions found in § 63.1219(e). 

179See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume V: Emission 

Estimates and Engineering Costs,’’ September 2005, 

Section 6, for a discussion of the non-air impact 

that were assessed for this final rule. 

standard provisions finalized in today’s 

rule. Although the eligibility 

requirements for the alternative to the 

particulate matter standard finalized 

today are less stringent than the interim 

standard requirements, the metal 

emission limitations that are also 

required by the alternative finalized 

today are by definition equivalent to or 

more stringent than the metal 

limitations in the interim standard 

alternative. We therefore cannot 

completely supersede the interim 

standard provisions immediately (upon 

promulgation) because sources have 

three years to comply with more 

stringent standards. We are instead 

revising the interim standard provisions 

of § 63.1206(b)(14) to only reflect the 

revised alternative standard eligibility 

criteria (specifically, we have removed 

the requirements to achieve a given 

system removal efficiency and 

hazardous waste metal HAP feed control 

level).178 These eligibility criteria 

revisions become effective immediately 

with respect to the interim standards 

because they are less stringent than the 

current requirements. Sources should 

modify existing Notifications of 

Compliance and permit requirements as 

necessary prior to implementing these 

revised procedures. 

Comment: One commenter is opposed 

to the alternative to the particulate 

matter standard because it ignores the 

health effects/benefits that are 

attributable to particulate matter. 

Response: Particulate matter is not 

defined as a hazardous air pollutant 

pursuant the NESHAP program. See 

CAA 112(b)(1). We control particulate 

matter as a surrogate for metal HAP. See 

part four, section IV.A. As a result, a 

particulate matter standard is not 

necessary in instances where metal HAP 

emission standards can alternatively 

and effectively control the nonmercury 

metal HAP that is intended be 

controlled with the surrogate particulate 

matter standard. The alternative to the 

particulate matter standard in the final 

rule accomplishes this. We acknowledge 

that particulate matter emission 

reductions result in health benefits. 

That in itself does not give EPA the 

authority under § 112(d)(2) to directly 

regulate particulate matter, however. 

2. Assessing Risk as Part of 

Consideration of Nonair Environmental 

Impacts 

Comment: Commenter states that EPA 

has inappropriately failed to consider 

emissions of persistent bioaccumulative 

pollutants in its beyond-the-floor 

analysis despite EPA’s acknowledgment 

that these HAPs have non-air quality 

health and environmental impacts. 

Response: EPA has taken the 

consistent position that considerations 

of risk from air emissions have no place 

when setting MACT standards, but 

rather are to be considered as part of the 

residual risk determination and 

standard-setting process made under 

section 112 (f) of the statute. EPA thus 

interprets the requirement in section 

112 (d) (2) that we consider ‘‘non-air 

quality health and environmental 

impacts’’ as applying to the by-product 

outputs from utilization of the pollution 

control technology, such as additional 

amount of waste generated, and water 

discharged.179 EPA’s interpretation was 

upheld as reasonable in Sierra Club v. 

EPA, 353 F. 3d 976, 990 (D.C. Cir. 2004) 

(Roberts, J.). 

VII. Health-Based Compliance 

Alternative for Total Chlorine 

A. Authority for Health-Based 

Compliance Alternatives 

Comment: One commenter states 

there is no established health threshold 

for either HCl or chlorine. 

Response: Although EPA has not 

developed a formal evaluation of the 

potential for HCl or chlorine 

carcinogenicity (e.g., for IRIS), the 

evaluation by the International Agency 

for Research on Cancer stated that there 

was inadequate evidence for 

carcinogenicity in humans or 

experimental animals and thus 

concluded that HCl and chlorine are not 

classifiable as to their carcinogenicity to 

humans (Group 3 in their categorization 

method). Therefore, for the purposes of 

this rule, we have evaluated HCl and 

chlorine only with regard to non-cancer 

effects. In the absence of specific 

scientific evidence to the contrary, it has 

been our policy to classify noncarcinogenic effects as threshold effects. 

RfC development is the default 

approach for threshold (or nonlinear) 

effects. 

Comment: One commenter states that 

the proposal is an inappropriate forum 

for bringing forward such a significant 

change in the way that MACT standards 

are established under Section 112(d) of 

the Clean Air Act. A precedent-setting 

change of the magnitude that EPA has 

raised should be discussed openly and 

carefully with all affected parties, rather 

than being buried in several individual 

proposed standards. 

Response: Including health-based 

compliance alternatives for hazardous 

waste combustors does not mean that 

EPA will automatically provide such 

alternatives for other source categories. 

Rather, as has been the case throughout 

the MACT rule development process, 

EPA will undertake in each individual 

rule to determine whether it is 

appropriate to exercise its discretion to 

use its authority under CAA section 

112(d)(4) in developing applicable 

emission standards. Stakeholders for 

those affected rules will have ample 

opportunity to comment on the 

Agency’s proposals. 

Comment: One commenter states that 

the proposed approach is contrary to the 

intent of the CAA which explicitly calls 

for a general reduction in HAP 

emissions from all major sources 

nationwide through the establishment of 

MACT standards based on technology, 

rather than risk, as a first step. 

Response: For pollutants for which a 

health threshold has been established, 

CAA section 112(d)(4) allows the 

Administrator to consider such 

threshold level, with an ample margin 

of safety, to establish emission 

standards. 

Comment: One commenter states that 

the proposed approach would take the 

national air toxics program back to the 

time-consuming NESHAP process that 

existed prior to the Clean Air Act 

Amendments of 1990. 

Response: We disagree that allowing a 

health-based compliance alternative in 

the final rule will alter the MACT 

program or affect the schedule for 

promulgation of the remaining MACT 

standards. Today’s rule is the last 

MACT rule to be promulgated, and the 

health-based compliance alternative did 

not delay promulgation of the rule. 

Comment: A commenter is concerned 

that the proposal would remove the 

benefit of the ‘‘level-playing field’’ that 

would result from the proper 

implementation of technology-based 

MACT standards. 

Response: Providing health-based 

compliance alternatives in the final rule 

for sources that can meet them will 

assure the application of a uniform set 

of requirements across the nation. The 

final rule and its criteria for 

demonstrating eligibility for the healthbased compliance alternatives apply 

uniformly to all hazardous waste 

combustors except hydrochloric acid 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59479 

180See also Legislative History at 876 (section 

112(d)(4) standard may be less stringent than 

MACT). 

production furnaces. The final rule 

establishes two baseline levels of 

emission reduction for total chlorine, 

one based on a traditional MACT 

analysis and the other based on EPA’s 

evaluation of the health threat posed by 

emissions of HCl and chlorine. All 

hazardous waste combustor facilities 

must meet one of these baseline levels, 

and all facilities have the same 

opportunity to demonstrate that they 

can meet the alternative health-based 

emission standards. We also note that 

additional uniformity is provided by 

limiting the health-based compliance 

alternatives for incinerators, cement 

kilns, and lightweight aggregate kilns to 

the emission levels allowed by the 

Interim Standards. 

Comment: Several commenters state 

that site-specific emission limits are 

inappropriate under section 112(d)(4) 

because they are not emission 

standards. One commenter asserts that 

the Agency’s position that the limits are 

based on uniform procedures is flawed 

because the process allows ‘‘any 

scientifically-accepted, peer-reviewed 

risk assessment methodology for your 

site-specific compliance 

demonstration.’’ This is not a ‘‘uniform’’

procedure, according to the commenter. 

There are a host of variables that 

influence the results of an accepted 

methodology. The commenter reasons 

that, without some standardization of 

those variables, there is no uniform or 

standard analysis. Each permitting 

authority could establish its view of 

appropriate variables; there would be no 

national consistency. 

Several other commenters assert that 

EPA has the authority to establish an 

exposure-based emission limit for total 

chlorine. One commenter notes that one 

issue that often arises when considering 

risk-based standards is whether EPA has 

authority under section 112 to establish 

an exposure-based emission limit. The 

commenter states that the concern 

seems to be that some stakeholders 

construe the Act’s statutory provisions 

as requiring uniform emission 

limitations at all facilities, rather than 

emissions that are measured at places 

away from the source and that vary from 

facility to facility. The commenter does 

not see any legal impediment to 

establishing exposure-based limits. 

The commenter notes that, first, under 

section 112, EPA has authority to 

establish ‘‘emission standards.’’

Emission standards are defined to be a 

requirement established by the State or 

the Administrator which limits the 

quantity, rate or concentration of 

emissions of air pollutants on a 

continuous basis * * * to assure 

continuous emission reduction, and any 

design, equipment, work practice or 

operational standard promulgated under 

this chapter. EPA’s alternate risk-based 

emission standard will limit the 

quantity, rate or concentration of the 

emissions. The commenter states that 

there is no requirement in the definition 

that specifies where the emission 

standard is to be measured, nor is there 

such a requirement anywhere in the 

statute. 

Second, the commenter notes that 

EPA’s proposed exposure-based limit 

will result in facilities establishing 

operating parameter limitations, or 

OPLs. These OPLs qualify as emission 

limitations because they are 

‘‘operational standards’’ being 

promulgated under section 112, 

according to the commenter. They will 

be measured at the facility, not at the 

point of exposure. Finally, the 

commenter reasons that the limitations 

EPA is establishing are uniform. They 

uniformly protect the individual most 

exposed to emission levels no higher 

than a hazard index of 1.0. 

Consequently, the commenter believes 

that there is nothing in the statute that 

prevents the Agency from promulgating 

exposure-based emission standards. 

Response: We agree with the 

commenters who believe the Agency 

has the authority to establish healthbased compliance alternatives under a 

national exposure standard. In 

particular, we agree with the commenter 

that the health-based compliance 

alternatives are national standards since 

they provide a uniform and national 

measure of risk control, and also that 

the health-based compliance 

alternatives are ‘‘emission standards’’

because they limit the quantity, rate or 

concentration of total chlorine 

emissions. 

Section 112(d)(4) authorizes EPA to 

bypass the mandate in section 112(d)(3) 

in appropriate circumstances. Those 

circumstances are present for hazardous 

waste combustors other than 

hydrochloric acid production furnaces. 

Section 112(d)(4) provides EPA with 

authority, at its discretion, to develop 

health-based compliance alternatives for 

HAP ‘‘for which a health threshold has 

been established,’’ provided that the 

standard reflects the health threshold 

‘‘with an ample margin of safety.’’

Both the plain language of section 

112(d)(4) and the legislative history 

indicate that EPA has the discretion 

under section 112(d)(4) to develop 

health-based compliance alternatives for 

some source categories emitting 

threshold pollutants, and that those 

standards may be less stringent than the 

corresponding MACT standard 

(including floor standards) would be.180

EPA’s use of such standards is not 

limited to situations where every source 

in the category or subcategory can 

comply with them. As with technologybased standards, a particular source’s 

ability to comply with a health-based 

standard will depend on its individual 

circumstances, as will what it must do 

to achieve compliance. 

In developing health-based 

compliance alternatives under section 

112(d)(4), EPA seeks to ensure that the 

concentration of the particular HAP to 

which an individual exposed at the 

upper end of the exposure distribution 

is exposed does not exceed the health 

threshold. The upper end of the 

exposure distribution is calculated 

using the ‘‘high end exposure estimate,’’

defined as ‘‘a plausible estimate of 

individual exposure for those persons at 

the upper end of the exposure 

distribution, conceptually above the 

90th percentile, but not higher than the 

individual in the population who has 

the highest exposure’’ (EPA Exposure 

Assessment Guidelines, 57 FR 22888, 

May 29, 1992). Assuring protection to 

persons at the upper end of the 

exposure distribution is consistent with 

the ‘‘ample margin of safety’’

requirement in section 112(d)(4). 

We agree with the view of several 

commenters that section 112(d)(4) is 

appropriate for establishing healthbased compliance alternatives for total 

chlorine for hazardous waste 

combustors other than hydrochloric 

acid production furnaces. Therefore, we 

have established such compliance 

alternatives for affected sources in those 

categories. Affected sources which 

believe that they can demonstrate 

compliance with the health-based 

compliance alternatives may choose to 

comply with those compliance 

alternatives in lieu of the otherwise 

applicable MACT-based standard. 

Comment: One commenter states that 

the risk assessments would not provide 

an ample margin of safety because 

background exposures are not taken into 

account. There is no accounting for 

other chlorine compounds from other 

sources at the facility, or from other 

neighboring facilities. The commenter 

believes that there is no evidence in the 

section 112(f) residual risk assessments 

produced thus far that emissions from 

collocated sources will actually be 

pursued by EPA. The commenter also 

notes that the Urban Air Toxics program 

cannot be relied upon to address 

ambient background. This program, 

59480 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

181Note that we conclude for the final rule that 

most sources are not likely to exceed the acute 

Hazard Index because they will establish a 12-hour 

rolling average chlorine feedrate limit and their 

chlorine feedrates are not likely to vary 

substantially over that averaging period. Thus, we 

believe that most sources will not be required to 

establish an hourly rolling average chlorine feedrate 

limit. The owner/operator must determine whether 

the hourly rolling average chloride feedrate limit 

can be waived under § 63.1215(d). 

required under section 112(k), was to be 

completed by 1999. However, the 

strategy has not been finalized and the 

small amount of activity in this area is 

focused on voluntary emission 

reductions rather than federal 

requirements. Finally, the commenter 

notes that control of criteria pollutants 

via State Implementation Plans to 

achieve compliance with the NAAQS is 

problematic. For particulate matter (PM) 

and ozone, new NAAQS were set in 

1997 and seven years later the 

nonattainment designations are still 

being determined. The designation 

process will be followed by a 3 year 

period to prepare State Implementation 

Plans and several more years to carry 

out those plans. In the meantime, there 

will be high levels of PM and ozone in 

the air near many hazardous waste 

combustors in New Jersey which will 

exacerbate exposures to chlorine and 

hydrogen chloride. 

Response: Total chlorine missions 

from collocated hazardous waste 

combustors must be considered in 

establishing health-based compliance 

alternatives under § 63.1215. Ambient 

levels of HCl or chlorine attributable to 

other on-site sources, as well as off-site 

sources, are not considered, however. 

As we indicated in the Residual Risk 

Report to Congress and in the recent 

residual risk rule for Coke Ovens, the 

Agency intends to consider facility-wide 

HAP emissions as part of the ample 

margin of safety determination for CAA 

section 112(f) residual risk actions. 70 

FR at 19996–998 (April 15, 2005); see 

also, 54 FR at 38059 (Sept. 14, 1989) 

(benzene NESHAP). 

Comment: Several commenters state 

that acute exposure guideline levels 

(AEGLs) are once-in-a-lifetime exposure 

levels. They assert that, because short 

term exposures at a Hazard Index 

greater than 1.0 may occur more than 

once in a lifetime, using AEGLs for the 

purpose of setting risk-based short-term 

limits for HCl and chlorine does not 

provide an ‘‘ample margin of safety.’’

Response: To assess acute exposure, 

we proposed to use acute exposure 

guideline levels for 1-hour exposures 

(AEGL–1) as health thresholds. We have 

investigated commenters’ concerns, 

however, and conclude that AEGLs are 

not likely to be protective of human 

health because individuals may be 

subject to multiple acute exposures at a 

Hazard Index greater than 1.0 from 

hazardous waste combustors. 

Consequently, we use acute Reference 

Exposure Levels (aRELs) rather than 

acute exposure guideline levels (AEGLs) 

as acute exposure thresholds for the 

final rule. See also Part Two, Section 

IX.D above. Acute RELs are health 

thresholds below which there would be 

no adverse health effects while AEGL–

1 values are health thresholds below 

which there may be mild adverse 

effects. 

Acute exposures are relevant (in 

addition to chronic exposures) and the 

acute exposure hazard index of 1.0 

could be exceeded multiple times over 

an individual’s lifetime. Although we 

concluded at proposal that the chronic 

exposure Hazard Index would always be 

higher than the acute exposure Hazard 

Index, and thus would be the basis for 

the total chlorine emission rate limit, 

this conclusion relates to acute versus 

chronic exposure to a constant, 

maximum average emission rate of total 

chlorine from a hazardous waste 

combustor. See 69 FR at 21300. We 

explained that acute exposure must 

nonetheless be considered when 

establishing operating requirements to 

ensure that short-term emissions do not 

result in an acute exposure Hazard 

Index of greater than 1.0. This is 

because total chlorine and chloride 

feedrates to a hazardous waste 

combustor (e.g., commercial incinerator) 

can vary substantially over time. 

Although a source may remain in 

compliance with a feedrate limit with a 

long-term averaging period (e.g., 12- 

hour, monthly, or annual) based on the 

chronic Hazard Index, the source could 

feed chlorine during short periods of 

time that substantially exceed the longterm feedrate limit. This could result 

potentially in emissions that exceed the 

one-hour (i.e., acute exposure) Hazard 

Index. Consequently, we discussed at 

proposal the need to establish both 

short-term and long-term total chlorine 

and chloride feedrate limits to ensure 

that neither the chronic exposure nor 

the acute exposure Hazard Index 

exceeds 1.0.181

We conclude that 1-hour Reference 

Exposure Levels (aRELs) are a more 

appropriate health threshold metric 

than AEGL–1 values for hazardous 

waste combustors given that the acute 

Hazard Index limit of 1.0 may be 

exceeded multiple times over an 

individual’s lifetime, albeit resulting 

from uncontrollable factors. The 

California Office of Health Hazard 

Assessment has developed acute health 

threshold levels that are intended to be 

protective for greater than once in a 

lifetime exposures. The acute exposure 

levels are called acute Reference 

Exposure Levels and are available at 

http://www.oehha.ca.gov/air/acute_rels/ 

acuterel.html. 

The 1-hour REL values for hydrogen 

chloride and chlorine are 2.1 mg/m3 and 

0.21 mg/m3, respectively. The AEGL–1 

values for hydrogen chloride and 

chlorine are 2.7 mg/m3 and 1.4 mg/m3, 

respectively. Although there is little 

difference between the 1-hour REL and 

AEGL–1 values for hydrogen chloride, 

the 1-hour REL for chlorine is 

substantially lower than the AEGL–1 

value. 

In summary, we believe that aRELs 

are a more appropriate health threshold 

metric than AEGL–1 values for 

establishing health-based compliance 

alternatives for hazardous waste 

combustors because aRELs are ‘‘no 

adverse effect’’ threshold levels that are 

intended to be protective for multiple 

exposures. 

Comment: One commenter states that 

the health-based compliance alternative 

is unlawful because the proposal does 

not address ecological risks that may 

result from uncontrolled HAP 

emissions, including risks posed to 

those areas where few people currently 

live, but sensitive habitats exist. 

Response: An ecological assessment is 

normally required under CAA section 

112(d)(4) to assess the presence or 

absence of ‘‘adverse environmental 

effects’’ as that term is defined in CAA 

section 112(a)(7). To identify potential 

multimedia and/or environmental 

concerns, EPA has identified HAP with 

significant potential to persist in the 

environment and to bioaccumulate. This 

list does not include hydrogen chloride 

or chlorine. 

We also note that health-based total 

chlorine emission limits for 

incinerators, cement kilns, and 

lightweight aggregate kilns cannot be 

higher than the current Interim 

Standards. See § 63.1215(b)(7). Thus, 

the ecological risk from total chlorine 

emissions from these sources will not be 

increased under the health-based limits. 

In addition, we note that only 2 of 12 

solid fuel boilers have total chlorine 

emissions higher than 180 ppmv, and 

only 1 liquid fuel boiler has emissions 

higher than 170 ppmv. Thus, boilers 

generally have low total chlorine 

emissions which would minimize 

ecological risk. 

Consequently, we do not believe that 

emissions of hydrogen chloride or 

chlorine from hazardous waste boilers 

will pose a significant risk to the 

environment, and facilities attempting 

to comply with the health-based 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59481 

182See Table 2 of Appendix A to Subpart 

DDDDD, Part 63. 

alternatives for these HAP are not 

required to perform an ecological 

assessment. 

B. Implementation of the Health-Based 

Standards 

Comment: Several commenters are 

concerned that the health-based 

compliance alternative will place an 

intensive resource demand on state and 

local agencies to review and approve 

facilities’ eligibility demonstrations, and 

State and local agencies may not have 

adequate expertise to review and 

approve the demonstrations. One 

commenter states that permitting 

authorities do not have the expertise to 

review eligibility demonstrations that 

are based on procedures other than 

those included in EPA’s Reference 

Library, as would be allowed. The 

commenter also states that, if the healthbased compliance alternative is 

promulgated, EPA should establish one 

standard method for the analyses so 

there is consistency nationwide. If EPA 

offers more than one method, EPA 

should do all of the risk assessment 

reviews, instead of passing the 

responsibility, without clear direction, 

to the permitting authorities, according 

to the commenter. 

Response: The health-based 

compliance alternatives for total 

chlorine that EPA has adopted in the 

final rule should not impose significant 

resource burdens on states. The required 

compliance demonstration methodology 

is structured in such a way as to avoid 

the need for states to have significant 

expertise in risk assessment 

methodology. We have considered the 

commenters’ concerns in developing the 

criteria defining eligibility for these 

compliance alternatives, and the 

approach that is included in the final 

rule provides clear, flexible 

requirements and enforceable 

compliance parameters. The final rule 

provides two ways that a facility may 

demonstrate eligibility for complying 

with the health-based compliance 

alternatives. First, look-up tables allow 

facilities to determine, using a limited 

number of site-specific input 

parameters, whether emissions from 

their sources might cause the Hazard 

Index limit to be exceeded. Second, if a 

facility cannot demonstrate eligibility 

using a look-up table, a modeling 

approach can be followed. The final rule 

presents the criteria for performing this 

modeling. 

Only a portion of hazardous waste 

combustors will submit eligibility 

demonstrations for the health-based 

compliance alternatives. Of these 

sources, several should be able to 

demonstrate eligibility based on simple 

analyses—using the look-up tables. 

However, some facilities will require 

more detailed modeling. The criteria for 

demonstrating eligibility for the 

compliance alternatives are clearly 

defined in the final rule. Moreover, 

under authority of RCRA section 

3005(c)(3), multi-pathway risk 

assessments will typically have already 

been completed for many hazardous 

waste combustors to document that 

emissions of toxic compounds, 

including total chlorine, do not pose a 

hazard to human health and the 

environment. Thus, state permitting 

officials have already reviewed and 

approved detailed modeling studies for 

many hazardous waste combustors. The 

results of these studies could be applied 

to the eligibility demonstration required 

by this final rule. 

Because these requirements are 

clearly defined, and because any 

standards or requirements created under 

CAA section 112 are considered 

applicable requirements under 40 CFR 

part 70, the compliance alternatives 

would be incorporated into title V 

programs, and states would not have to 

overhaul existing permitting programs. 

Finally, with respect to the burden 

associated with ongoing assurance that 

facilities that opt to do so continue to 

comply with the health-based 

compliance alternatives, the burden to 

states will be minimal. In accordance 

with the provisions of title V of the CAA 

and part 70 of 40 CFR (collectively ‘‘title 

V’’), the owner or operator of any 

affected source opting to comply with 

the health-based compliance 

alternatives is required to certify 

compliance with those standards every 

five years on the anniversary of the 

comprehensive performance test. In 

addition, if the facility has reason to 

know of changes over which the facility 

does not have control, and these 

changes could decrease the allowable 

HCl-equivalent emission rate limit, the 

facility must submit a revised eligibility 

demonstration. Further, before changing 

key parameters that may impact an 

affected source’s ability to continue to 

meet the health-based emission 

standards, the source is required to 

evaluate its ability to continue to 

comply with the health-based 

compliance alternatives and submit 

documentation to the permitting 

authority supporting continued 

eligibility for the compliance 

alternative. Thus, compliance 

requirements are largely selfimplementing and the burden on states 

will be minimal. 

Comment: One commenter suggests 

that the look-up tables would have more 

utility if EPA developed tables for each 

source category to ensure the HClequivalent emission rate limits reflected 

stack parameters representative of each 

source category. Similarly, another 

commenter notes that a look-up table 

designed to be applicable to all 

hazardous waste combustors is very 

conservative and will have limited 

utility. This commenter does not suggest 

that EPA develop look-up tables for 

each class of hazardous waste 

combustors, however. Rather, the 

commenter suggests that since look-up 

tables have already been developed for 

industrial boilers that do not burn 

hazardous waste 182 hazardous waste 

combustors should be allowed to use 

those look-up tables instead of the lookup tables proposed for hazardous waste 

combustors. 

Response: We noted at proposal that 

the emission rates provided in the lookup table for hazardous waste 

combustors are more stringent than 

those promulgated for solid fuel 

industrial boilers that do not burn 

hazardous waste. This is because the 

key parameters used by the SCREEN3 

atmospheric dispersion model (i.e., 

stack diameter, stack exit gas velocity, 

and stack exit gas temperature) to 

predict the normalized air 

concentrations that EPA used to 

establish HCl-equivalent emission rates 

for solid fuel industrial boilers that do 

not burn hazardous waste are 

substantially different for hazardous 

waste combustors. Thus, the maximum 

HCl-equivalent emission rates for 

hazardous waste combustors would 

generally be lower than those EPA 

established for solid fuel industrial 

boilers that do not burn hazardous 

waste. 

Nonetheless, we agree with the 

commenter’s concerns that the look-up 

tables would have more utility if they 

better reflected the range of stack 

properties representative of hazardous 

waste combustors. Accordingly, we 

examined the stack parameters for all 

hazardous waste-burning sources in our 

data base (except for hydrochloric acid 

production furnaces that are not eligible 

for the health-based emission 

standards). After analyzing the 

relationships among the various stack 

parameters (i.e., stack height, stack 

diameter, stack gas exhaust volume, and 

exit temperature), we concluded that the 

look-up table should be modified to 

treat both stack diameter and stack 

height as independent variables rather 

than relying on stack height alone. 

We developed separate tables for 

short-term (i.e., 1-hour) HCl-equivalent 

59482 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

183We note that this factor of 10 ratio of the 

aRELs of HCl to chlorine is based on current aREL 

values and is subject to change. You must use 

current aREL (and RfC) values when you conduct 

your eligibility demonstration. See § 63.1215(b)(4 

and 5). 

184To also ensure compliance with the annual 

average HCl-equivalent emission rate limit, 

however, the numerical value of the feedrate limit 

established during the semivolatile metals 

performance test cannot exceed the value calculated 

as the annual average HCl-equivalent emission rate 

limit divided by [1 ¥ system removal efficiency], 

where you demonstrate the total chlorine system 

removal efficiency during the comprehensive 

performance test. 

185We note that we have also applied this ‘‘notto-exceed’’ approach to establishing the duration of 

emissions limits to protect against acute 

health effects and long-term (i.e., 

annual) emission limits to protect 

against chronic effects from exposures 

to chlorine and hydrogen chloride. As 

discussed above, we used the acute 

Reference Exposure Level (aREL) 

developed by Cal-EPA as the benchmark 

for acute health effects. We used EPA’s 

Reference Concentrations (RfC) as the 

benchmark for chronic health effects 

from exposures occurring over a 

lifetime. 

Emission limits in the look-up table 

are expressed in terms of HCl-toxicity 

equivalent emission rates (lbs/hr). To 

convert your total chlorine emission rate 

(lb/hr) to an HCl-equivalent emission 

rate, you must adjust your chlorine 

emission rate by a multiplicative factor 

representing the ratio of the HCl health 

risk benchmark to the chlorine health 

risk benchmark. For 1-hour average HClequivalent emission rates, the ratio is 

the ratio of the aREL for HCl (2100 

micrograms per cubic meter) to the 

aREL for chlorine (210 micrograms per 

cubic meter), or a factor of 10.183 For 

annual average emissions, the ratio is 

the ratio of the RfC for HCl (20 

micrograms per cubic meter) to the RfC 

of chlorine (0.2 micrograms per cubic 

meter), or a factor of 100. See 

§ 63.1215(b). 

We used the SCREEN3 air dispersion 

model to develop the emission limits in 

the look-up tables. SCREEN3 is a 

screening model that estimates air 

concentrations under a wide variety of 

meteorological conditions in order to 

identify the meteorological conditions 

under which the highest ambient air 

concentrations are likely to occur and 

what the magnitude of the ambient air 

concentrations are likely to be. The 

SCREEN3 model implements the 

procedures in EPA’s ‘‘Screening 

Procedures for Estimating the Air 

Quality Impact of Stationary Sources, 

Revised’’ (EPA–454/R–92–019, U.S. 

Environmental Protection Agency, 

Office of Air Quality Planning and 

Standards, Research Triangle Park, NC, 

October 1992). Included are options for 

estimating ambient air concentrations in 

simple elevated terrain and complex 

terrain. Simple elevated terrain refers to 

terrain elevations below stack top. We 

did not use the complex terrain option 

in the development of the look-up tables 

because of the site-specific nature of 

plume impacts in areas of complex 

terrain. Therefore, the look-up tables 

cannot be used in areas of complex 

terrain (which we define generally as 

terrain that rises above stack top). 

Sources located in complex terrain (i.e., 

as a practical matter, sources other than 

those that are located in flat or simple 

elevated terrain as discussed below and 

thus cannot use the look-up tables) must 

use site-specific modeling procedures to 

establish HCl-equivalent emission rates. 

We looked at two generic terrain 

scenarios for purposes of the look-up 

table. In one we assumed the terrain 

rises at a rate of 5 meters for every 100 

meter run (i.e., a slope of 5 percent) and 

that terrain is ‘‘chopped off’’ above stack 

top (following the convention for such 

analyses in simple elevated terrain). In 

the other we assumed flat terrain. As 

can be seen from the tables in § 63.1215, 

the emission limits with flat terrain are 

significantly higher than those with 

simple elevated terrain. To reasonably 

ensure that the emission limits are not 

substantially over-stated (e.g., by a 

factor of 2), the simple elevated terrain 

table must be used whenever terrain 

rises to an elevation of one half (1⁄2) the 

stack height within a distance of 50 

stack heights. 

For both the simple elevated terrain 

and flat terrain scenarios, we performed 

model runs for urban and rural 

dispersion conditions, with and without 

building downwash. We selected the 

highest (ambient air concentration) 

values at each distance from among the 

four runs for each of the terrain 

scenarios. 

As can be seen from the tables in 

§ 63.1215, the HCl-equivalent emission 

rate limits range from 0.13 pounds per 

hour on an annual average (for a 0.3 

meter diameter stack that is 5 meters tall 

that lies within 30 meters of the 

property boundary) to 340 pounds per 

hour (for a 4.0 meter diameter stack that 

is 100 meters tall that lies 5000 meters 

from the property boundary) when 

located in simple elevated terrain. In flat 

terrain, the range is from 0.37 to 1100 

pounds per hour on an annual average. 

This contrasts with the look-up table at 

proposal, where the comparable range 

was from 0.0612 pounds per hour (for 

a 5 meter stack height at a distance of 

30 meters) to a maximum of 18 pounds 

per hour (for stack heights of 50 meters 

or greater, at distances of 500 meters or 

greater). 

If you have more than one hazardous 

waste combustor on site, the sum of the 

ratios for all combustors of the HClequivalent emission rate to the HClequivalent emission rate limit cannot 

exceed 1.0. See § 63.1215 (c)(3)(v). This 

will ensure that the Hazard Index of 1.0 

is not exceeded considering emissions 

from all on-site combustors. 

Comment: Several commenters state 

that facilities should be allowed to 

establish an averaging period for the 

total chlorine and chloride feedrate 

limit that is shorter than an annual 

rolling average. Commenters are 

referring to the feedrate limit to ensure 

compliance with the annual average 

HCl-equivalent emission rate limit. 

Commenters are concerned with the 

data handling issues that could arise 

from calculating, recording, and 

reporting an annual rolling average 

feedrate level that is updated hourly, 

and note that a shorter averaging period 

would make the limit more stringent. 

Response: We agree with commenters, 

and conclude, moreover, that a 12-hour 

averaging period rather than an annual 

averaging period will be imposed on the 

vast majority of sources as a practical 

matter. This is because sources must 

establish a limit on the feedrate of total 

chlorine and chloride to ensure 

compliance with the semivolatile metals 

emission standards. See § 63.1209(n). 

The feedrate limit for total chlorine and 

chloride is established under 

§ 63.1209(n) as the average of the hourly 

rolling averages for each test run, and 

the averaging period is 12 hours. Thus, 

the averaging period for the feedrate 

limit for semivolatile metals—12-hour 

rolling average updated hourly—trumps 

the annual rolling average averaging 

period that would otherwise apply 

here.184

Sources may also demonstrate 

compliance with the semivolatile metals 

standard by assuming all semivolatile 

metals in feedstreams are emitted. See 

§ 63.1207(m)(2). Sources that do not 

have emission control equipment, such 

as most liquid fuel boilers, are 

particularly likely to use this approach. 

Under this approach, there is no 

concern regarding increased volatility of 

metals as chlorine feedrates increase, 

and such sources are not subject to a 

feedrate limit for chlorine for 

compliance assurance with the 

semivolatile metal standard. These 

sources may establish an averaging 

period for the feedrate of total chlorine 

and chloride for compliance with the 

health-based compliance alternative for 

total chlorine of not to exceed one 

year.185

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59483 

averaging periods for the limits on all operating 

parameters established under § 63.1209. See new 

§ 63.1209(r) and USEPA, ‘‘Final Technical Support 

Document for HWC MACT Standards, Volume IV: 

Compliance with HWC MACT Standards, 

September 2005, Section 2.4.6. 

186We discussed at proposal that the feedrate 

limit to ensure compliance with the long-term 

Hazard Index limit of not to exceed 1.0 would be 

the average of the hourly rolling averages for each 

test run, with compliance based on an annual 

average. Note that, under the final rule however, the 

long-term chlorine feedrate limit is established as 

the annual average HCl-equivalent emission rate 

limit divided by [1 ¥ system removal efficiency]. 

See § 63.1215(g)(2). 

Comment: Several commenters 

offered suggestions on whether a shortterm feedrate limit was needed for total 

chlorine and chloride (i.e., chlorine) as 

EPA suggested, and if EPA continues to 

consider it necessary, how the limit 

should be established. 

One commenter states that it is not 

necessary to set short-term limits for 

chlorine feedrates. If EPA concludes 

that short-term limits are necessary, 

however, the commenter recommended 

these options: (1) Cap the feedrate at a 

level that is extrapolated up to the 

feedrate associated with Interim 

Standard for incinerators; (2) if the 

facility uses the site-specific option to 

set emission limits, the dispersion 

models can easily be used to set a 1- 

hour (or longer) limit; and (3) if the 

facility uses the look up table (which at 

proposal provided only annual average 

HCl-equivalent emission rate limits), a 

short-term limit can be set based on a 

multiplier of the annual limit’10 times 

the annual limit as recommended by 

documents in EPA’s Air Toxics Risk 

Assessment Reference Library. 

Another commenter states that, if EPA 

were to promulgate a short-term feedrate 

limit, the EPA-endorsed factor of 0.08 

employed to translate maximum hourly 

concentrations to annual concentrations 

could be used to identify the maximum 

hourly feedrate limit. 

Finally, another commenter states that 

extrapolation of the chlorine feedrate 

(from the level during the 

comprehensive performance test when 

the source documents compliance with 

the annual average HCl-equivalent 

emission rate limit) should be allowed 

to 100% of the 1-hour average HClequivalent emission rate limit because 

numerous safety factors have already 

been included in the health risk 

threshold values, look-up tables, and 

modeling demonstration. 

Response: At proposal, we explained 

that sources would establish an annual 

average feedrate limit on chlorine as the 

feedrate level during the comprehensive 

performance test demonstrating 

compliance with the annual average 

HCl-equivalent emission rate limit. 186

Only long-term exposures—maximum 

annual average exposures—need be 

considered when confirming that the 

chlorine feedrate during the 

comprehensive performance test (i.e., 

average of the hourly rolling averages 

for each run) is acceptable because the 

annual exposure Hazard Index limit 

(i.e., not to exceed 1.0) would always be 

exceeded before the 1-hour Hazard 

Index limit (i.e., not to exceed 1.0). 

Thus, the feedrate limit associated with 

annual exposures would always be more 

stringent than the feedrate limit 

associated with 1-hour exposures. See 

69 FR at 21299. 

We further explained at proposal, 

however, the need to establish a shortterm feedrate limit for chlorine to 

ensure that the 1-hour HCl-equivalent 

emission rate did not exceed the 1-hour 

average HCl-equivalent emission rate 

limit due to variability in the chlorine 

feedrate during the annual averaging 

period for the feedrate limit. We 

requested comment on approaches to 

establish this 1-hour chlorine feedrate 

limit, including extrapolating feedrates 

to 100% of the 1-hour average HClequivalent emission rate limit. See 69 

FR at 21304. 

In the final rule we have corrected 

and refined these procedures. The final 

rule requires you to establish a longterm chlorine feedrate limit to maintain 

compliance with the annual average 

HCl-equivalent emission rate limit as 

either: (1) The chlorine feedrate during 

the comprehensive performance test if 

you demonstrate compliance with the 

semivolatile metals emission standard 

during the test (see § 63.1209(o)); or (2) 

if you comply with the semivolatile 

metals emission standard under 

§ 63.1207(m)(2) by assuming all metals 

in the feed to the combustor are emitted, 

the annual average HCl-equivalent 

emission rate limit divided by [1 ¥ 

system removal efficiency] where you 

demonstrate the system removal 

efficiency during the comprehensive 

performance test. See discussion in Part 

Two, Section IX.H, of this preamble. If 

you establish the chlorine feedrate limit 

based on the feedrate during the 

performance test to demonstrate 

compliance with the semivolatile metals 

emission standard, the averaging period 

for the feedrate limit is a 12-hour rolling 

average. If you establish the chlorine 

feedrate limit based on the system 

removal efficiency during the 

performance test, the averaging period is 

up to an annual rolling average. 

The final rule also requires you to 

establish an hourly rolling average 

chlorine feedrate limit if you determine 

under § 63.1215(d)(3) that the 1-hour 

average HCl-equivalent emission rate 

limit may be exceeded. That feedrate 

limit is established as the 1-hour HClequivalent emission rate limit divided 

by [1 ¥ system removal efficiency]. 

Under § 63.1215(d)(3), you must 

establish an hourly rolling average 

chlorine feedrate limit unless you 

determine considering specified criteria 

that your chlorine feedrates will not 

increase over the averaging period for 

the long-term chlorine feedrate limit 

(i.e., 12-hour rolling average or (up to) 

annual rolling average) to a level that 

may result in an exceedance of the 1- 

hour average HCl-equivalent emission 

rate limit. The criteria that you must 

consider are: (1) The ratio of the 1-hour 

average HCl-equivalent emission rate 

based on the total chlorine emission rate 

you select for each combustor to the 1- 

hour average HCl-equivalent emission 

rate limit for the combustor; and (2) the 

potential for the source to vary chlorine 

feedrates substantially over the 

averaging period for the long-term 

chlorine feedrate limit. 

For example, if a source’s primary 

chlorine-bearing feedstreams have a 

relatively constant chlorine 

concentration over the averaging period 

for the chlorine feedrate limit to ensure 

compliance with the annual average 

HCl-equivalent emission rate limit (e.g., 

generally 12-hours), as may be the case 

for commercial sources feeding from 

large burn tanks or on-site sources 

where chlorine levels in wastes are 

fairly constant, you may conclude that 

there is little probability that 1-hour 

feedrates would vary substantially over 

the averaging period. Thus, a 1-hour 

rolling average chlorine feedrate limit 

may not be warranted. Even if chlorine 

feedrates could vary substantially over 

the long-term feedrate averaging period, 

however, an hourly rolling average 

feedrate limit still may not be warranted 

if the source’s 1-hour average HClequivalent emission rate is well below 

the 1-hour HCl-equivalent emission rate 

limit. See Part Two, Section IX.H, of this 

preamble for a discussion of the 

relationship between emission rates, 

emission rate limits, and feedrate limits. 

We disagree with the commenter who 

states that short-term chlorine feedrate 

limits are not necessary. The 1-hour 

average HCl-equivalent emission rate 

limit could potentially be exceeded for 

sources with highly variable chlorine 

feedrates and where the 1-hour HClequivalent emission rate is relatively 

high compared to the 1-hour HClequivalent emission rate limit. The 1- 

hour average HCl-equivalent emission 

rate limit could be exceeded even 

though the source remains in 

compliance with the annual average 

HCl-equivalent emission rate limit (and, 

59484 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

moreover, the 12-hour rolling average or 

(up to) annual rolling average chlorine 

feedrate limit). 

We agree with commenters that 

suggest that the hourly rolling average 

chlorine feedrate limit should be 

extrapolated from performance test 

feedrates up to 100% of the 1-hour 

average HCl-equivalent emission rate 

limit. The final rule requires you to 

establish the hourly rolling average 

feedrate limit (if a limit is required 

under § 63.1215(d)(3)) as the 1-hour 

HCl-equivalent emission rate limit 

divided by [1 ¥ system removal 

efficiency]. Establishing the hourly 

rolling average feedrate in this manner 

ensures that the 1-hour HCl-equivalent 

emission rate limit is not exceeded, and 

thus that the aREL-based Hazard Index 

of 1.0 is not exceeded. 

We also agree in principle with 

commenters that suggest that the hourly 

rolling average feedrate limit be based 

on the 1-hour average HCl-equivalent 

emission rate limit which is based on 

emissions modeling. These commenters 

suggested that we use a multiplier of 10 

or 12.5 (i.e., 1/0.08) to project 1-hour 

average HCl-equivalent emission rate 

limits from the annual average HClequivalent emission rate limits. Rather 

than use these approaches to project 1- 

hour average emissions from annual 

average emissions, however, we use 

emissions modeling to develop look-up 

tables for both 1-hour average HClequivalent emission rate limits and 

annual average HCl-equivalent emission 

rate limits. For sources that use sitespecific risk assessment to demonstrate 

eligibility, they will use the same 

models to estimate 1-hour average 

maximum ambient concentrations. 

Thus, the final rule uses modeling to 

establish directly 1-hour average HClequivalent emission rate limits rather 

than approximating those limits from 

annual average HCl-equivalent emission 

rate limits as commenters suggest. In 

summary, the final rule requires you to 

establish the 1-hour average HClequivalent emission rate limit by either 

using Tables 3 or 4 in § 63.1215 to lookup the limit, or conducting a sitespecific risk analysis. Under the sitespecific risk analysis option, the 1-hour 

average HCl-equivalent emission rate 

limit would be the highest emission rate 

that the risk assessment estimates would 

result in an aREL-based Hazard Index 

not exceeding 1.0 at any off-site receptor 

location. 

We do not agree that the short-term 

feedrate limit should be capped at the 

level corresponding to the Interim 

Standards for incinerators, cement kilns, 

and lightweight aggregate kilns. The 

final rule caps the total chlorine 

emission rate and the annual average 

HCl-equivalent emission rate limit at the 

level equivalent to the Interim Standard 

for total chlorine. Thus, the long-term 

chlorine feedrate limit (12-hour rolling 

average or (up to) an annual rolling 

average) is capped at the level 

corresponding to the Interim Standards 

for incinerators, cement kilns, and 

lightweight aggregate kilns. The hourly 

rolling average feedrate limit to 

maintain compliance with the 1-hour 

average HCl-equivalent emission rate 

limit, however, can exceed the 

numerical value of the long-term 

chlorine feedrate limit because the 1- 

hour average HCl-equivalent emission 

rate limit is substantially higher than 

the annual average HCl-equivalent 

emission rate limit. Thus, capping at the 

interim standard level is inappropriate 

unless the interim standard were 

somehow re-expressed as a 1-hour limit. 

Comment: Many commenters state 

that requiring prior approval of the 

eligibility demonstration would be 

unworkable. Commenters are concerned 

that the permitting authority may not 

approve the demonstration prior to the 

compliance date even though the source 

has submitted complete and accurate 

information and has responded to any 

requests for additional information in 

good faith. Commenters are also 

concerned that the permitting authority 

may disapprove the demonstration too 

late for the source to take other 

measures to comply with the total 

chlorine MACT standard. Once 

commenter recommends the following 

alternative approach: (1) If the 

regulatory agency does not act on a risk 

demonstration within the 6-month 

period, it is conditionally deemed 

approved; and (2) if a risk 

demonstration is disapproved, the 

source would have to comply with the 

MACT emission standards no later than 

three years after notice of disapproval 

and, in the interim, sources would 

comply with current emission limits for 

total chlorine. 

Another commenter suggests that, if 

the permitting authority has neither 

approved nor disapproved the eligibility 

demonstration by the compliance date, 

the source may begin complying on the 

compliance date with the alternative 

health-based limits specified in the 

eligibility demonstration. 

Finally, another commenter states that 

facilities should be granted a three-year 

extension of the compliance date if the 

Agency denies a good-faith eligibility 

demonstration. The commenter is 

concerned that sources will not have 

time to install additional controls or 

take other measures after a denial is 

issued but prior to the compliance date. 

Response: We agree with commenters 

that requiring prior approval of the 

eligibility demonstration may be 

unworkable for the reasons commenters 

suggest. We also agree with commenters 

that sources who make a good-faith 

eligibility demonstration but whose 

demonstration is denied by the 

permitting authority may need 

additional time to install controls or 

take other measures to comply with the 

MACT emission standards. 

Accordingly, the final rule does not 

require prior approval of the eligibility 

demonstration for existing sources. If 

your permitting authority has not 

approved your eligibility demonstration 

by the compliance date, and has not 

issued a notice of intent to disapprove 

your demonstration, you may 

nonetheless begin complying, on the 

compliance date, with the HClequivalent emission rate limits and 

associated chlorine feedrate limits you 

present in your eligibility 

demonstration. 

In addition, the final rule states that 

the permitting authority should notify 

you of approval or intent to disapprove 

your eligibility demonstration within 6 

months after receipt of the original 

demonstration, and within 3 months 

after receipt of any supplemental 

information that you submit. A notice of 

intent to disapprove your eligibility 

demonstration, whether before or after 

the compliance date, will identify 

incomplete or inaccurate information or 

noncompliance with prescribed 

procedures and specify how much time 

you will have to submit additional 

information or comply with the total 

chlorine MACT standards. The 

permitting authority may extend the 

compliance date of the total chlorine 

MACT standards to allow you to make 

changes to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the total chlorine 

MACT standards. 

Comment: One commenter states that 

proposed § 63.1215(f)(1)(A) should have 

required sources to conduct a new 

comprehensive performance test only if 

there are changes that would decrease 

the HCl-equivalent emission rate limit 

below the HCl-equivalent emission rate 

demonstrated during the comprehensive 

performance test. Similarly, the 

commenter suggests that a retest should 

not be required if a change increases the 

HCl-equivalent emission rate limit but 

the source elects to maintain the current 

feedrate limit. 

Another commenter states that the 

Agency should clarify that if there are 

any changes that are not controlled by 

the facility owner/operator, and the 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59485 

187See Trinity Consultants, ‘‘Analysis of HCl/Cl2 

Emissions from Cement Kilns for 112(d)(4) 

Consideration in the HWC MACT Replacement 

Standards,’’ September 17, 2003. 188The HCl/Cl2 ratio for the total chlorine 

measurement is important because the current RfC 

for chlorine is 0.2 μg/m3 while the current RfC for 

HCl is 20 μg/m3. Thus, when calculating HClequivalent emission rate limits, chlorine emissions 

are currently multiplied by a factor of 100. 

facility is required to change its design 

or operation to lower chlorine emissions 

to address the changes, the facility may 

request up to three years to make such 

changes. 

Response: We generally agree with the 

commenters and have revised the rule 

as follows: (1) A new comprehensive 

performance test is required to 

reestablish the system removal 

efficiency for total chlorine only if you 

change the design, operation, or 

maintenance of the source in a manner 

that may decrease the system removal 

efficiency (e.g., the emission control 

system is modified in a manner than 

may decrease total chlorine removal 

efficiency); and (2) if you use the sitespecific risk analysis option for your 

eligibility demonstration and changes 

beyond your control (e.g., off-site 

receptors newly residing or congregating 

at locations exposed to higher ambient 

levels than originally estimated) dictate 

a lower HCl-equivalent emission rate 

limit and you must make changes to the 

design, operation, or maintenance of the 

combustor or related systems to comply 

with the lower limit, you may request 

that the permitting authority grant you 

additional time to make those changes 

as quickly as practicable. 

Comment: Several commenters state 

that the proposed approach for 

calculating chlorine emissions to 

address the potential bias using Method 

26/26A attributable to high bromine or 

sulfur levels in feedstreams is not 

statistically valid. They indicate that the 

approach could lead to collection of 

total chlorine, hydrogen chloride and 

chlorine data that are contradictory and 

difficult to apply in a compliance 

situation. One commenter suggests that 

using Method 26/26A results for sources 

with bromine and sulfur dioxide, while 

recognizing that there is bias in the 

sampling method, will result in a valid 

compliance approach. 

Response: We agree with commenters 

that the proposed approach to avoid the 

bias when feedstreams contain high 

levels of bromine or sulfur (bromine/ 

chlorine ratio in feedstreams of greater 

than 5 percent, or sulfur/chlorine ratio 

in feedstreams of greater than 50 

percent) during the comprehensive 

performance test may be problematic. 

The proposed approach would have 

required you to use Method 320/321 or 

ASTM D 6735–01 for hydrogen chloride 

measurements, to use Method 26/26A 

for total chlorine (i.e., hydrogen 

chloride and chlorine combined) 

measurements, and to calculate chlorine 

levels by difference. The potential 

problem is that chlorine emission levels 

are generally a very small portion of 

total chlorine measurements, and 

variability in the hydrogen chloride or 

total chlorine measurements due to 

method imprecision or other factors 

could result in inaccurate estimations of 

chlorine emission levels. 

We do not agree, however, that using 

Method 26/26A for chlorine 

measurements for combustors feeding 

high levels of bromine or sulfur is 

acceptable–the chlorine measurement 

may be biased low. Chlorine emission 

levels must be determined as accurately 

as possible given that the long-term 

health threshold for chlorine is 100 

times the threshold for HCl, and the 

short-term health threshold for chlorine 

is 10 times the threshold for HCl (i.e., 

using current RfCs and aRELs). To 

ensure that a conservative estimate of 

the chlorine emission rate is used to 

establish the alternative health-based 

emission limits and to address 

commenters’ concerns, the final rule 

requires that you determine chlorine 

emissions to be the higher of: (1) The 

chlorine value measured by Method 26/ 

26A, or an equivalent method; or (2) the 

chlorine value calculated by difference 

between the combined hydrogen 

chloride and chlorine levels measured 

by Method 26/26A, or an equivalent 

method, and the hydrogen chloride 

measurement from EPA Method 320/ 

321 or ASTM D 6735–01, or an 

equivalent method. 

Comment: Several commenters state 

the procedures for calculating HClequivalent emission rates cannot merely 

reference an outside source, such as a 

Web site, unless that reference specifies 

that the contents of the source are as of 

a date certain. To specify use of health 

threshold values that can change over 

time provides inadequate opportunity 

for notice and comment on the 

regulation. 

Response: We believe that the best 

available sources of health effects 

information should be used for risk or 

hazard determinations. To assist us in 

identifying the most scientifically 

appropriate toxicity values for our 

analyses and decisions, the Web site to 

be used for RfCs identifies pertinent 

toxicity values using a default hierarchy 

of sources, with EPA’s Integrated Risk 

Information System (IRIS) being the 

preferred source. The IRIS process 

contains internal and external peer 

review steps and IRIS toxicity values 

represent EPA consensus values. When 

adequate toxicity information is not 

available in IRIS, however, we consult 

other sources in a default hierarchy that 

recognizes the desirability of these 

qualities in ensuring that we have 

consistent and scientifically sound 

assessments. Furthermore, where the 

IRIS assessment substantially lags the 

current scientific knowledge, we have 

committed to consider alternative 

credible and readily available 

assessments (e.g., the acute Relative 

Exposure Levels established by the 

California Office of Health Hazard 

Assessment). For our use, these 

alternatives need to be grounded in 

publicly available, peer-reviewed 

information. We agree with the 

commenter that the issue of changing 

toxicity values is a general challenge in 

setting health-based regulations. 

However, we are committed to 

establishing such regulations that reflect 

current scientific understanding, to the 

extent feasible. 

C. National Health-Based Standards for 

Cement Kilns 

Comment: One commenter states that 

our suggestion at proposal that it would 

be appropriate to establish a single 

national emission rate type standard 

applicable to all cement kilns based on 

the worst-case scenario cement kiln is 

unduly burdensome as it discounts the 

benefits of improved dispersion realized 

by facilities that have invested in taller 

stacks that minimize downwash effects. 

The commenter recommends a dual 

limit for cement kilns such that the HCl 

equivalent emission rate is limited to 

both: (1) A 130 ppmv total chlorine 

emission standard (the Interim 

Standard) coupled with a chlorine 

feedrate limit based on a 12-hour rolling 

average; and (2) a Hazard Index of 1.0. 

Response: We have decided not to 

include a separate national standard for 

cement kilns in the final rule for several 

reasons: (1) We have no assurance that 

the Cl2/HCl volumetric ratio exhibited 

during the most recent compliance test, 

and that was the basis for the 

commenter documenting in a study 187

that the Hazard Index of 1.0188 was not 

exceeded, is representative of ratios in 

the past or future; (2) the commenter’s 

recommended emission standard for 

cement kilns—130 ppmv total chlorine 

emission limit and a Hazard Index of 

1.0—is equivalent to the requirements 

under § 63.1215 applicable to other 

hazardous waste combustors to establish 

site-specific emission limits; (3) the 

MACT standard for total chlorine for 

cement kilns is 120 ppmv such that the 

health-based standard that the 

commenter recommends—130 ppmv, 

59486 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

189See discussion in Part Five, Section III.C, for 

an explanation of how the alternative monitoring 

provisions of § 63.1209(g)(1) relate to those of 

§ 63.8(f). 

the Interim Standard—would provide 

little compliance relief; and (4) even 

though the final rule does not provide 

a separate national health-based 

standard for cement kilns, cement kilns 

may apply for the health-based 

compliance alternatives applicable to 

other hazardous waste combustors. 

Prior to publication of the proposed 

rule, the commenter submitted results of 

site-specific risk assessments for all 

cement kiln facilities showing that both 

the long-term and short term Hazard 

Index of 1.0 would not be exceeded at 

any facility assuming: (1) Sources emit 

total chlorine at the Interim Standard 

level of 130 ppmv; and (2) total chlorine 

emissions are apportioned between HCl 

and chlorine according to the 

apportionment exhibited during the 

most recent compliance test. 

At proposal, we requested comment 

on how to ensure that the 130 ppmv 

concentration-based standard would 

ensure that total chlorine emission rates 

(lb/hr) would not increase to levels that 

may exceed the Hazard Index limit of 

1.0 given that: (1) The partitioning ratio 

between HCl and chlorine could change 

over time such that a larger fraction of 

total chlorine could be emitted as 

chlorine, which has a much lower 

health risk threshold; and (2) the mass 

emission rate of total chlorine could 

increase. See 69 FR at 21306. 

The commenter has addressed the 

concern about the mass emission rate of 

total chlorine potentially increasing by 

suggesting that the health-based 

standard include a limit on the feedrate 

of total chlorine and chloride at the 

level used in their risk assessment 

supporting a separate national standard 

for cement kilns. The commenter has 

also addressed the concern about the 

HCl and chlorine apportionment ratio 

changing over time by suggesting that 

the standard also include a requirement 

that the Hazard Index of 1.0 not be 

exceeded. We agree that sources need to 

account for variability in the chlorine to 

HCl ratio (see § 63.1215(b)(6)) and that 

periodic checks to ensure that the 

Hazard Index of 1.0 is not exceeded are 

needed. We believe the best way to 

ensure that the health-based compliance 

alternatives for total chlorine for cement 

kilns are protective with an ample 

margin of safety is through the 

procedures of § 63.1215 where sitespecific emission rate limits are 

established rather than under a separate 

national standard for cement kilns. 

VIII. Implementation and Compliance 

A. Compliance Assurance Issues for 

both Fabric Filters and Electrostatic 

Precipitators (and Ionizing Wet 

Scrubbers) 

1. Implementation Issues 

Comment: Several commenters state 

that design and performance 

specifications and explicit detailed test 

procedures to determine conformance 

with the specifications are needed so 

that manufacturers can certify that their 

bag leak detection systems and 

particulate matter detection systems 

meet applicable criteria. Absent design 

and performance specifications and test 

procedures, commenters assert that the 

‘‘manufacturer’s certification’’ cannot 

ensure the performance capabilities of 

the devices. 

Response: In general, we believe 

adherence to manufacturer’s written 

specifications and recommendations is 

an appropriate approach to reasonably 

ensure performance of a bag leak 

detection system or particulate matter 

detection system, and we have retained 

that provision in the final rule. We 

agree, however, that there may be cases 

where other procedures are more 

appropriate than the manufacturer’s 

recommendations to ensure 

performance of a bag leak detection 

system or particulate matter detection 

system. Consequently, the rule allows 

you to request approval for alternative 

monitoring procedures under 

§ 63.1209(g)(1).189 We note that you may 

use references other than EPA’s 

Guidance Document, ‘‘Fabric Filter Bag 

Leak Detection Guidance,’’ September 

1997 to identify appropriate 

performance specifications for the bag 

leak detection system or particulate 

matter detection system, including: PS–

11 for PM CEMS; PS–1 for opacity 

monitors; and CPS–001 for opacity 

monitoring below 10% opacity. You 

may use these references to support 

your request for additions to, or 

deviations from, manufacturer’s 

specifications. 

Comment: One commenter states that 

bag leak detection systems and 

particulate matter detection systems 

should have a detection limit of 1.0 mg/ 

acm to ensure peak performance is 

maintained rather than explicitly 

allowing sources to request approval for 

a detection limit on a site-specific basis 

as the rule currently allows. Several 

other commenters state that the bag leak 

detection system or particulate matter 

detection system need not have a 

detection limit as low as 1.0 mg/acm to 

detect increases in normal emissions. 

One commenter believes that bag leak 

detection systems installed on cement 

kilns should be allowed to have a 

detection limit of 10 mg/acm because: 

(1) A detection limit requirement of 10 

mg/acm is more than sufficient to 

protect the particulate matter emission 

limit and to detect increases in 

particulate matter concentration given 

that the current particulate matter 

emission limit for existing kilns is 63 

mg/dscm; (2) a detection limit 

requirement of 10 mg/acm is consistent 

with the requirement for bag leak 

detection systems in Subpart LLL, Part 

63, for cement plants that choose to 

install bag leak detection systems on 

finish mills and raw mills, for bag leak 

detection systems and particulate matter 

detection systems installed on lime 

kilns under Subpart AAAAAA, and for 

industrial boilers under Subpart 

DDDDD; (3) a 10 mg/acm detection limit 

is achievable using state-of-the-art 

transmissometers (the actual instrument 

used in a continuous opacity monitoring 

system (COMS) at cement plants having 

kiln stack diameters of 2–3 meters, or 

greater; and (4) it is unclear if any bag 

leak detection system device can 

actually be demonstrated to achieve a 

1.0 mg/acm detection limit except by 

extrapolation from tests conducted at 

higher dust loadings and theoretical 

arguments based on signal-to-noise 

ratios or other parameters. This 

commenter also recommends that EPA 

establish a 10 mg/am3 detection limit 

for all cement kilns rather than provide 

for site-specific determinations because 

allowing site-specific determinations is 

likely to create confusion in the 

selection of monitoring devices and 

further complicate the manufacturer’s 

certification of performance 

requirements. 

Response: The current requirement 

for the bag leak detection system 

sensitivity/detection limit applicable to 

incinerators and lightweight aggregate 

kilns is 1.0 mg/acm unless you 

demonstrate under § 63.1209(g)(1) that a 

lower sensitivity (i.e., higher detection 

limit) would detect bag leaks. We 

proposed to apply the bag leak detection 

system requirements to all hazardous 

waste combustors equipped with fabric 

filters and promulgate that requirement 

today. Although we also requested 

comment whether detection limits 

higher than 1.0 mg/acm should be 

allowed, none of the comments has 

convinced us to alter our view that the 

rule should allow higher detection 

limits on a site-specific basis. Similarly, 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59487 

190USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume IV: Compliance 

with the HWC MACT Standards,’’ September 2005, 

Appendix C, Section 4.0. 

191Actually, the BLDS is not correlated at all to 

PM concentrations, and the alarm level for a PMDS 

may or may not be approximately correlated to PM 

concentrations. See § 63.1206(c)(9). 

192Moreover, for FFs, we are not aware of any 

APCD operating parameters that correlate well with 

PM emissions. Thus, sources must use a BLDS or 

PMDS for compliance assurance. For ESPs and 

IWSs, we are not aware of generic APCD parameters 

that correlate well with PM emissions. See 

discussion below in Section VIII.C of the text. 

Consequently, although the rule allows sources 

with ESPs and IWSs to establish site-specific 

operating parameter limits, sources are encouraged 

to use a PMDS. 

we believe that the same detection limit 

requirement should apply to particulate 

matter detection systems that you may 

elect to use for compliance monitoring 

for your electrostatic precipitator or 

ionizing wet scrubber in lieu of sitespecific operating parameter limits. 

Both bag leak detection systems and 

particulate matter detection systems 

must be able to detect particulate 

emission in the range of normal 

concentrations. For example, to 

establish the alarm level for the bag leak 

detection system, you must first adjust 

detector gain/sensitivity and response 

time based on normal operations. 

Although the alarm level for particulate 

matter detection systems will be 

established based on operations during 

the comprehensive performance test or 

higher (see discussion below), the 

detector must be responsive within the 

range of normal operations for you to 

effectively minimize exceedances of the 

alarm level. 

The range of normal emission 

concentrations will generally be well 

below both the particulate matter 

standard and emissions during the 

comprehensive performance test. 

Consequently, we disagree with 

commenters that believe the detection 

limit need only be within the range of 

emissions at the particulate matter 

emission standard. On the other hand, 

normal emissions may be well above 1.0 

mg/acm such that a higher detection 

limit (e.g., 10 mg/acm) may be 

appropriate on a site-specific basis. 

We also disagree with the comment 

that bag leak detection systems (or 

particulate matter detection systems) 

may not be able actually to achieve a 1.0 

mg/acm detection limit. EPA is aware of 

bag leak detection system instruments 

certified to meet levels of 0.2 mg/m3 and 

particulate matter detection systems can 

readily achieve detection limits well 

below 1.0 mg/acm.190

Comment: One commenter states that 

a continuous opacity monitoring system 

(COMS) that can achieve a detection 

level of 10 mg/acm or less can be used 

to monitor electrostatic precipitator 

performance. The commenter believes 

that allowing a COMS for compliance 

under Subpart EEE is also appropriate 

because cement kilns will be operating 

under the requirements of Subpart LLL 

(for cement kilns that do not burn 

hazardous waste) at times, which 

requires compliance with an opacity 

standard using a COMS. 

Response: You may use a COMS (i.e., 

transmissometer) that meets the 

detection limit requirement as discussed 

above (i.e., 1.0 mg/acm or a higher 

detection limit that you document 

under an alternative monitoring petition 

under § 63.1209(g)(1) would routinely 

detect particulate matter loadings 

during normal operations) as the 

detector for your bag leak detection 

system or particulate matter detection 

system. 

2. Compliance Issues 

Comment: One commenter states that, 

if the bag leak detection system or 

particulate matter detection system 

exceeds the alarm level or an operating 

parameter limit (OPL) is exceeded, the 

automatic waste feed cutoff (AWFCO) 

system must be initiated. Allowing a 

source to exceed the alarm level for 5% 

of the time in a 6-month period does not 

ensure continuous compliance. 

Response: Although the AWFCO 

system must be initiated if an OPL is 

exceeded, we believe that allowing 

exceedances of the bag leak detection 

system or particulate matter detection 

system alarm level up to 5% of the time 

in a 6-month period is reasonable. 

Requiring initiation of the AWFCO for 

an exceedance of an OPL is reasonable 

because sources generally can control 

directly the parameter that is limited. 

Examples are the feedrate of metals or 

chlorine, or pressure drop across a wet 

scrubber. Bag leak detection systems 

and particulate matter detection 

systems, however, measure mass 

emissions of particulate matter, a 

parameter that is affected by many 

interrelated factors and that is not 

directly controllable. We believe that 

the 5 percent alarm rate is a reasonable 

allowance for sources due to difficult-tocontrol variations in particulate matter 

emissions. More important, although the 

bag leak detection system and 

particulate matter detection system 

measure mass emissions of particulate 

matter, the detector response is not 

correlated to particulate matter emission 

concentrations to the extent necessary 

for compliance monitoring.191 Thus, 

triggering the alarm level is not 

evidence that the particulate matter 

emission standard has been exceeded. 

The purpose of a BLDS or PMDS is to 

alert the operator that the PM control 

device is not functioning properly and 

that corrective measures must be 

undertaken. We believe that using a 

BLDS or PMDS for compliance 

assurance better minimizes emissions of 

PM (and metal HAP) than use of 

operating parameter limits (which are 

linked to the automatic waste feed 

cutoff system). APCD operating 

parameters often have an uncertain 

relationship to PM emissions while the 

BLDS and PMDS provide real-time 

information on actual PM mass 

emission levels.192

Comment: One commenter states that 

requiring a notification if the bag leak 

detection system or particulate matter 

detection system set point is exceeded 

more than 5% of the time in a 6-month 

period is not cost-effective. Sources 

using bag leak detection systems have 

not linked exceedances to the data 

logging system and would incur an 

expense to do so. 

Response: We continue to believe that 

limiting the aggregate duration of 

exceedances in a 6-month period is a 

reasonable approach to gage the 

effectiveness of the operation and 

maintenance procedures for the 

combustor. We note that recent MACT 

standards for several other source 

categories use this approach, including 

standards for industrial boilers and 

process heaters and standards for lime 

kilns. 

Comment: One commenter states that 

EPA did not present a rationale for 

requiring a notification within 5 

working days if the bag leak detection 

system or particulate matter detection 

system set point is exceeded more than 

5% of the time during a 6-month period. 

The commenter notes that this notice is 

not required under the Subpart DDDDD 

boiler and process heater MACT. The 

commenter also notes that the source is 

required to take corrective measures 

under both the operation and 

maintenance plan and bag leak 

detection systems and particulate matter 

detection systems requirements. The 

commenter believes that requiring a 

report to the permitting authority is 

duplicative, unnecessary, and increases 

the burden on regulated facilities 

without providing additional protection 

to human health or the environment. 

Response: If a source exceeds the 

alarm set point more than 5% of the 

time in a 6-month period, it is an 

indication that the operation and 

maintenance plan may need to be 

revised. Requiring the source to report 

the excess exceedances to the permitting 

59488 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

193One approach to detune a fabric filter to 

simulate the extreme high range of normal 

operations would be to install a butterfly valve that 

allows a portion of the combustion gas to by-pass 

a section of the baghouse. 

authority serves as a notification that 

the authority may need to review the 

operation and maintenance plan with 

the source to determine if changes are 

warranted. 

We agree with the commenter, 

however, that it is not necessary to 

require that the report be submitted 

within five working days of the end of 

the 6-month block period. 

Consequently, the final rule requires 

you to submit the report within 30 days 

of the end of the 6-month block period. 

Allowing 30 days to submit the report 

rather than 5 days as proposed is 

reasonable. We are concerned that 5 

days may not be enough time to 

complete the report given that several 

exceedances toward the end of the 6- 

month block period may cause you to 

exceed the 5% time limit and that there 

may be many individual exceedances 

that need to be included in the report. 

We acknowledge that it may take some 

time to prepare the report given that you 

must describe the causes of each 

exceedance and the revisions to the 

operation and maintenance plan you 

have made to mitigate the exceedances. 

Comment: One commenter notes that 

there is no guidance on how to calculate 

when the set-point has been exceeded 

more than 5 percent of the operating 

time within a 6 month period. The 

commenter notes that the MACT for 

industrial boilers and process heaters 

provides minimal instruction on how 

this is to be done, but it is not specific 

enough to enable facilities to ensure that 

they are in compliance with this 

requirement. 

Response: For the final rule, we have 

adopted the procedures specified in the 

industrial boiler and process heater 

MACT for calculating the duration of 

exceedances of the set point. Those 

procedures are as follows: 

1. You must keep records of the date, 

time, and duration of each alarm, the 

time corrective action was initiated and 

completed, and a brief description of the 

cause of the alarm and the corrective 

action taken. 

2. You must record the percent of the 

operating time during each 6-month 

period that the alarm sounds. 

3. In calculating the operating time 

percentage, if inspection of the fabric 

filter, electrostatic precipitator, or 

ionizing wet scrubber demonstrates that 

no corrective action is required, no 

alarm time is counted. 

4. If corrective action is required, each 

alarm shall be counted as a minimum of 

1 hour. 

Although the commenter indicates 

that these procedures are not specific 

enough to ensure that sources are in 

compliance with the requirements, the 

commenter did not indicate the 

deficiencies or suggest additional 

requirements. If you need additional 

guidance on compliance with this 

provision, you should contact the 

permitting authority. 

Comment: One commenter supports 

the approach of listing the shutting 

down of the combustor as a potential—

but not mandatory—corrective measure 

in response to exceeding an alarm set 

point. Several commenters suggest, 

however, that EPA should specify that 

corrective measures could include 

shutting off the hazardous waste feed 

rather than shutting down the 

combustor. Other commenters state that 

it is inappropriate to imply that shutting 

down the combustor must be part of a 

corrective measures program for 

responding to exceedance of a set point. 

These commenters believe that the 

requirement to take corrective action 

upon the alarm is sufficiently 

protective. The facility should 

determine if shutting down the 

combustor is a necessary response to 

avoid noncompliance with a standard. 

Response: You must operate and 

maintain the fabric filter, electrostatic 

precipitator, or ionizing wet scrubber to 

ensure continuous compliance with the 

particulate matter, semivolatile metals, 

and low volatile metals emission 

standards. Your response to exceeding 

the alarm set point should depend on 

whether you may be close to exceeding 

an operating parameter limit (e.g., ash 

feedrate limit for an incinerator or 

liquid fuel boiler equipped with an 

electrostatic precipitator) or an emission 

standard. If so, corrective measures 

should include, as commenters suggest, 

cutting off the hazardous waste feed. 

Corrective measures could also include, 

however, shutting down the combustor 

as the ultimate immediate corrective 

measure if an emission standard may 

otherwise be exceeded. Consequently, 

the final rule continues to require you 

to alleviate the cause of the alarm by 

taking the necessary corrective 

measure(s) which may include shutting 

down the combustor. This provision 

does not imply that shutting down the 

combustor is the default corrective 

measure. Rather, it implies that the 

ultimate immediate response, absent 

other effective corrective measures, 

would be to shut down the combustor. 

Comment: One commenter states that 

periods of time when the combustor is 

operating but the bag leak detection 

system or particulate matter detection 

system is malfunctioning should not be 

considered exceedances of the set-point. 

Response: If the bag leak detection 

system or particulate matter detection 

system is malfunctioning, the source 

cannot determine whether it is 

operating within the alarm set point. 

Accordingly, it is reasonable to consider 

periods when the bag leak detection 

system or particulate matter detection 

system is malfunctioning as 

exceedances of the set point. 

B. Compliance Assurance Issues for 

Fabric Filters 

Comment: One commenter states that 

establishing the set point for the bag 

leak detection system at twice the 

detector response achieved during bag 

cleaning as recommended by EPA 

guidance would not be sensitive enough 

to detect gradual degradation of the 

fabric filter, nor would it be low enough 

to require the operator of the source to 

take corrective measures that would 

ensure effective operation of the 

baghouse over time. 

Response: The commenter expresses 

the same concern that EPA raised at 

proposal. See 69 FR at 21347. We have 

concluded, however, that it may be 

problematic to establish an alarm set 

point for fabric filters based on 

operations during the comprehensive 

performance test. This is because, as 

noted in earlier responses and at 69 FR 

at 21233, it is much more difficult to 

‘‘detune’’ a fabric filter than an 

electrostatic precipitator to maximize 

emissions during the performance 

test.193 Consequently, emissions from 

fabric filters that have not been detuned 

during the performance test may not be 

representative of the range of normal 

emissions caused by factors such as bag 

aging. Baghouse performance degrades 

over time as bags age. In addition, 

establishing the alarm set point based 

on operations during the performance 

test for baghouses that have not been 

detuned would establish more stringent 

compliance requirements on sources 

that perform the best—the lower the 

emissions, the lower the alarm set point. 

This would unfairly penalize the best 

performing sources. 

For these reasons, the final rule 

requires you to establish the alarm setpoint for bag house detection systems 

using principles provided in USEPA, 

‘‘Fabric Filter Bag Leak Detection 

Guidance,’’ (EPA–454/R–98–015, 

September 1997). 

Comment: One commenter states that 

the bag leak detection system 

requirement should not apply to the 

coal mill baghouse for cement kilns 

with indirect-fired coal mill systems 

where a fraction of kiln gas is taken 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59489 

194USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume IV: Compliance 

with the HWC MACT Standards,’’ September 2005, 

Appendix C. 

from the preheater and routed to the 

coal mill and subsequently to a 

baghouse before entering the stack. The 

commenter notes that the PM in this gas 

is nearly exclusively coal dust, and the 

baghouse is substantially smaller than 

the baghouse for the kiln. 

Response: We believe that a bag leak 

detection system is a reasonable 

approach to monitor emissions for the 

coal mill baghouse to ensure 

compliance with the particulate matter 

(and semivolatile and low volatile 

metals) emission standards. These 

systems are inexpensive to install and 

operate. Annualized costs are 

approximately $24,000.194 Although the 

commenter did not suggest an 

alternative monitoring approach, and 

we are not aware of a less expensive and 

effective approach, we note that sources 

may petition the permitting authority 

under § 63.1209(g)(1) to request an 

alternative monitoring approach. 

C. Compliance Issues for Electrostatic 

Precipitators and Ionizing Wet 

Scrubbers 

Comment: Several commenters 

believe that a particulate matter 

detection system may not be necessary 

for monitoring of electrostatic 

precipitators and ionizing wet 

scrubbers. Commenters state that sitespecific operating parameter limits 

linked to the automatic waste feed 

cutoff system can effectively monitor 

and ensure the performance of 

electrostatic precipitators and ionizing 

wet scrubbers. Particulate matter 

detection systems on cement kilns 

would have to operate in a high 

moisture stack environment (all kilns 

burning hazardous waste that are 

equipped with electrostatic precipitators 

are wet process kilns), with the 

potential for condensation and/or water 

droplet interference. Commenters state 

that when water droplets are present, 

many of these devices are not 

applicable. 

Response: The final rule provides 

sources equipped with electrostatic 

precipitators or ionizing wet scrubbers 

the alternative of using a particulate 

matter detection system or establishing 

site-specific operating parameter limits 

for compliance assurance. If a 

particulate matter detection system is 

used, corrective measures must be taken 

if the alarm set point is exceeded. If the 

source elects to establish site-specific 

operating parameter limits, the limits 

must be linked to the automatic waste 

feed cutoff system. 

In response to commenters’ concern 

that high moisture stack gas may be 

problematic for particulate matter 

detection systems, we note that 

extractive light-scattering detectors and 

beta gauge detectors can effectively 

operate in high moisture environments. 

We acknowledge, however, that the cost 

of these extractive detector systems is 

substantially higher than 

transmissometers or in situ lightscattering detectors. 

Comment: One commenter states that 

EPA must set minimum total power 

requirements for both ionizing wet 

scrubbers and electrostatic precipitators 

because allowing permit officials to 

establish compliance operating 

parameters on a site-specific basis 

frustrates the intention of the CAA by 

obviating the requirements for federal 

standards. The commenter asserts that a 

minimum total power requirement is 

monitorable, recordable, and reportable, 

three requirements that are necessary for 

these facilities to come into, and remain 

in compliance with, their Title V 

operating permits. 

Other commenters state that 

electrostatic devices are not easily 

characterized by operating parameters 

in a ‘‘one-size-fits-all’’ fashion. The 

significant operating parameters for 

electrostatic devices are secondary 

voltage, secondary current, and 

secondary power (the product of the 

first two items). The relationship 

between these parameters and 

performance of the unit differ between 

applications and unit types. For 

example, inlet field power can increase 

as unit performance appears to decrease. 

In this case, an operating parameter 

other than secondary power by field 

would be more appropriate. The 

commenter notes that, in its various 

proposals over the years, EPA has 

discussed a number of approaches to 

establish operating parameter limits for 

electrostatic devices, including: 

Minimum total secondary power; 

minimum secondary power by field; 

pattern of increasing power from inlet to 

outlet field; and minimum secondary 

power of the last 1⁄3 of fields (or the last 

field). Commenters have also proposed: 

minimum specific power (secondary 

power divided by flue gas flow rate); 

minimum secondary voltage and/or 

secondary current; and total secondary 

voltage and/or secondary current. The 

commenter concludes that it is not 

surprising that there is so little 

agreement on the right approach, 

because different units and applications 

respond differently. EPA’s proposal to 

let facilities and local regulators 

determine the best approach is far wiser 

than regulating from a distance. 

Response: We agree with the 

commenters that state that it is not 

practicable to establish operating 

parameter limits that would effectively 

ensure performance of all electrostatic 

devices. Accordingly, the final rule 

continues to allow sources to establish 

site-specific operating parameter limits 

for these devices. 

We disagree with the commenter’s 

assertion that site-specific operating 

parameter limits obviate the 

requirements for federal standards. The 

site-specific operating parameter limits 

merely reflect the truism that no two 

sources are identical and so what each 

needs to do to comply with the uniform 

standards may differ. The final rule 

provides consistent, federallyenforceable emission standards. 

Necessary flexibility in compliance 

assurance for those emission standards 

does not undermine the uniformity of 

those standards. In addition, we 

disagree with the commenter’s concern 

that without a minimum power limit, 

there will be no monitorable, 

recordable, and reportable Title V 

permit limits for electrostatic devices. 

To the contrary, site-specific operating 

parameter limits can and will be 

monitored, recorded, reported, and 

linked to the automatic waste feed cutoff system. And, if a source elects to use 

a particulate matter detection system in 

lieu of establishing site-specific 

operating parameter limits, the detector 

response will be monitored, recorded, 

reported, and linked to requirements to 

take corrective measures if the alarm set 

point is exceeded. 

Comment: One commenter asserts 

that the use of electrostatic precipitator 

total power input data (sum of the 

product of kilovolts times milliamps for 

each electrostatic precipitator field) is 

one acceptable approach as a sitespecific parameter to monitor 

electrostatic precipitator performance. 

Limits on power input for each field (or 

particular fields) are not warranted. 

Response: A limit on total power 

input to a multifield electrostatic device 

is generally not an acceptable operating 

parameter for compliance assurance. We 

have documented that when total power 

input was held constant for a four-field 

electrostatic precipitator while the 

power input to the fourth field was 

decreased, emissions of particulate 

matter doubled from 0.06 gr/dscf to 0.12 

gr/dscf. See 66 FR at 35143 (July 3, 

2001). Thus, if the total power input 

during the comprehensive performance 

test were used as the operating 

parameter limit, particulate matter 

emissions could exceed the emission 

59490 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

195Note that a bag leak detection system is a type 

of particulate matter detection system for purposes 

of this discussion. A triboelectric detector is 

normally used for a bag leak detector system 

because it is very inexpensive and has a low 

detection limit. A triboelectric detector meets the 

criterion for a particulate matter detector in a 

particulate matter detection system in that it detects 

relative mass emissions of particulate matter within 

the range of normal emission concentrations. (Note 

further, however, that a triboelectric detector cannot 

be correlated to particulate matter concentrations 

and thus cannot be used as a particulate matter 

CEMS. Note also that a triboelectric detector cannot 

be used on sources equipped with electronic 

control devices.) The alarm level for a bag leak 

detection system would be established using the 

concepts discussed in the Agency’s guidance 

document on bag leak detection systems. The alarm 

level for a particulate matter detection system used 

on a fabric filter, however, (preferable with a 

detector other than a tribolectric device that could 

be correlated to PM concentrations) would be 

established based on the detector response during 

the comprehensive performance test. 

196Note, however, that bypassing or detuning an 

emission control system could cause PM 

stratification and could make it difficult to pass the 

PS–11 performance criteria you use as guidelines 

for a PMDS.) 

197 You perform an RRA by collecting three 

simultaneous reference method PM concentration 

measurements and PM CEMS measurements at the 

as-found source operating conditions and PM 

concentration. 

standard because of changes in other 

parameters that were not limited even 

though total power input did not exceed 

the parametric limit. 

Notwithstanding our concern that a 

limit on total power input to a 

multifield electrostatic device is 

generally not an effective operating 

parameter for compliance assurance, 

this does not preclude you from 

documenting to the permitting authority 

that total power input is an effective 

compliance assurance parameter for 

your source. See § 63.1209(m)(1)(iv). 

Comment: Several commenters 

suggest that the rule should offer 

various approaches to establish an 

achievable particulate matter detection 

system alarm level on a site-specific 

basis in lieu of the approach we 

proposed (i.e., average detector response 

during the comprehensive performance 

test): (1) Use the 2 times the maximum 

peak height or 3 times the baseline 

concepts developed in EPA’s bag leak 

detection guidance documents; (2) allow 

spiking to set the alarm set point given 

that PS 11 allows for spiking as a way 

to calibrate PM CEMs; (3) establish the 

limit as the 99th percentile upper 

prediction limit of the average response 

during each performance test run 

instead of the average of the test run 

averages; (4) allow upward 

extrapolation from the average of the 

test run averages to some percentage of 

the particulate matter emissions 

standard (fraction could be variable 

depending upon how close to the 

standard the facility is during the 

compliance test); or (5) set the alarm 

point at the maximum test run. 

Response: We agree with several of 

the commenters’ suggestions: explicitly 

allowing spiking (and emission control 

device detuning) during the 

comprehensive performance test to 

maximize controllable operating 

parameters to simulate the full range of 

normal operations; and upward 

extrapolation of the detector response. 

See discussion below. 

The final rule is consistent with 

commenters’ suggestion to establish the 

alarm level for particulate matter 

detection systems on fabric filters based 

on the concepts in the Agency’s 

guidance document on bag leak 

detection systems. Commenters made 

this suggestion in response to our 

request for comments on requiring 

particulate matter detection systems on 

fabric filters and establishing the alarm 

level based on the detector response 

during the comprehensive performance 

test. See 69 FR at 21347. The final rule 

requires bag leak detection systems on 

all fabric filters and suggests that you 

establish the alarm level using concepts 

in the bag leak detection system 

guidance. 195

Neither the suggestion to establish the 

alarm level at the 99th percentile upper 

prediction limit (UPL99) based on the 

average response during the 

comprehensive performance test runs 

nor the suggestion to establish the alarm 

level at the maximum test run response 

would control PM emissions at the level 

achieved during the performance test or 

provide some assurance that the PM 

standard was not being exceeded, unless 

the detector response is correlated to 

PM concentrations. For example, if the 

detector response does not relate 

linearly to PM concentration (or if the 

response changes w/changes in 

particulate characteristics), the UPL99 

detector response could relate to a much 

higher (e.g., 99.9th percentile) PM 

concentration. In addition, even if the 

detector response were correlated to PM 

concentration, there is no assurance that 

the correlation would be consistent over 

the range of the average detector 

response during the performance test to 

the UPL99 detector response. Note that 

under PS–11 for PM CEMS, even after 

complying with rigorous procedures to 

correlate the detector response to PM 

concentrations, the detector response 

may be extrapolated only to 125% of the 

highest PM concentration used for the 

correlation. Thus, the final rule does not 

use these approaches to establish the 

alarm level. 

If you elect to use a particulate matter 

detection system in lieu of site-specific 

operating parameters for your 

electrostatic precipitator or ionizing wet 

scrubber, you must establish the alarm 

level using either of two approaches. 

See Appendix C of USEPA, ‘‘Technical 

Support Document for HWC MACT 

Standards, Volume IV: Compliance with 

the HWV MACT Standards,’’ September 

2005. Under either approach, you may 

maximize controllable operating 

parameters during the comprehensive 

performance test to simulate the full 

range of normal operations (e.g., by 

spiking the ash feedrate and/or detuning 

the electrostatic device).196

You may establish the alarm set-point 

as the average detector response of the 

test condition averages during the 

comprehensive performance test. 

Alternatively, you may establish the 

alarm set point by extrapolating the 

detector response. Under the 

extrapolation approach, you must 

approximate the correlation between the 

detector response and particulate matter 

emission concentrations during an 

initial correlation test. You may 

extrapolate the detector response 

achieved during the comprehensive 

performance test (i.e., average of the test 

condition averages) to the higher of: (1) 

A response that corresponds to 50% of 

the particulate matter emission 

standard; or (2) a response that 

correlates to 125% of the highest 

particulate matter concentration used to 

develop the correlation. 

To establish an approximate 

correlation of the detector response to 

particulate matter emission 

concentrations, you should use as 

guidance Performance Specification–11 

for PM CEMS (40 CFR Part 60, 

Appendix B), except that you need only 

conduct only 5 runs to establish the 

initial correlation rather than a 

minimum of 15 runs required by PS–11. 

In addition, the final rule requires you 

to conduct an annual Relative Response 

Audit (RRA) for quality assurance as 

required by Procedure 2—Quality 

Assurance Requirements for Particulate 

Matter Continuous Emission Monitoring 

Systems at Stationary Sources, 

Appendix F, Part 60.197 The RRA is 

required on only a 3-year interval, 

however, after you pass two sequential 

annual RRAs. 

The rule requires only minimal 

correlation testing because the 

particulate matter detection system is 

used for compliance assurance only—as 

an indicator for reasonable assurance 

that an emission standard is not 

exceeded. The particulate matter 

detection system is not used for 

compliance monitoring—as an indicator 

of continuous compliance with an 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59491 

198See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume IV: Compliance 

With the HWC MACT Standards,’’ September 2005, 

Section 10. 

199See § 63.1206(c)(5)(i)(C) and (D). 

200See § 266.102(e)(7) and § 264.345(d). 

201Section 3004(a) of RCRA requires the Agency 

to promulgate standards for hazardous waste 

treatment, storage, and disposal facilities as 

necessary to protect human health and the 

environment. The standards for hazardous waste 

incinerators generally rest on this authority. 

§ 3004(q) of RCRA requires the Agency to 

promulgate standards for emissions from facilities 

that burn hazardous waste fuels (e.g., cement and 

lightweight aggregate kilns, boilers, and 

hydrochloric acid production furnaces) as necessary 

to protect human health and the environment. 

202See 69 FR at 21203 and 64 FR at 52871, and 

§ 63.1206(b)(1)(ii). 

203Portland cement manufacturing facilities that 

combust hazardous waste are subject to both 

Subpart EEE and Subpart LLL, and hydrochloric 

acid production facilities that combust hazardous 

waste may be subject to both Subpart EEE and 

Subpart NNNNN. In these instances Subpart EEE 

controls HAP emissions from the cement kiln and 

hydrochloric acid production furnace stack (and 

also fugitive emissions from the combustion 

chamber), while Subparts LLL and NNNNN would 

control HAP emissions from other operations that 

are not directly related to the combustion of 

hazardous waste (e.g., clinker cooler emissions for 

cement production facilities, and hydrochloric acid 

product transportation and storage for hydrochloric 

acid production facilities). 

204This issue has little relevance given that the 

measures taken to control the fugitive emissions 

from the combustion of hazardous waste will also 

control the fugitive emission associated with other 

feedstreams. 

205The February 14, 2002 Final Amendments 

Rule clarifies that that a reasonable pressure 

monitoring frequency that could meet the intent of 

‘‘instantaneous’’ would be once every second. See 

67 FR at 6974. 

206Commenters did not provide data to the 

contrary. 

emission standard. Because particulate 

matter detection system correlation 

testing and quality assurance is much 

less rigorous than the requirements of 

PS–11 for a PM CEMS, the particulate 

matter detection system response cannot 

be used as credible evidence of 

exceedance of the emission standard. 

D. Fugitive Emissions 

Comment: A commenter does not 

support EPA’s proposed approach to 

allow alternative techniques that can be 

demonstrated to prevent fugitive 

emissions without the use of 

instantaneous pressure limits given that 

the CAA requires continuous 

compliance with the standards and 

given positive pressure events can result 

in fugitive emissions, irrespective of 

facility design. 

Response: Rotary kilns can be 

designed to prevent fugitive emissions 

during positive pressure events. As 

stated in the February 14, 2002 final 

rule, and subsequently in the April 20, 

2004 proposed rule, there are state-ofthe-art rotary kiln seal designs (such as 

those with shrouded and pressurized 

seals) which are capable of handling 

positive pressures without fugitive 

releases. See 67 FR at 6973 and 69 FR 

at 21340. We have included 

documentation of such kiln designs in 

the docket.198 Instantaneous combustion 

zone pressure limits thus may not be 

necessary to assure continuous 

compliance with these fugitive emission 

control requirements. Our approach to 

allow alternative techniques that have 

been demonstrated to prevent fugitive 

emissions is therefore reasonable and 

appropriate. We note that these 

alternative techniques must be reviewed 

and approved by the appropriate 

delegated regulatory official.199

Comment: A commenter disagrees 

with EPA’s clarification that fugitive 

emission control requirements apply 

only to fugitives attributable to the 

hazardous waste, given that the CAA 

does not distinguish between HAP 

emissions that come from hazardous 

waste streams and other HAP emissions. 

Response: The fugitive emission 

control requirements in today’s final 

rule originated from the RCRA 

hazardous waste combustion fugitive 

emission control requirements for 

incinerators and boilers and industrial 

furnaces.200 The primary focus of these 

RCRA requirements is to ensure 

hazardous waste treatment operations 

are conducted in a manner protective of 

human health and the environment.201

It is therefore appropriate to clarify that 

the intent of this requirement is to 

control fugitive emission releases from 

the combustion of hazardous waste. 

Furthermore, MACT requirements for 

source categories that do not combust 

hazardous waste (e.g., industrial boilers, 

Portland cement kilns, and commercial 

and industrial solid waste incinerators) 

do not have combustion chamber 

fugitive emission control requirements 

for the non-hazardous waste inputs or 

outputs (e.g., clinker product for cement 

kilns or coal and natural gas fuels for 

industrial boilers). We have previously 

taken the position that emissions not 

affected by the combustion of hazardous 

waste (e.g., clinker coolers, raw material 

handling operations, etc.) are regulated 

pursuant to the applicable nonazardous 

waste MACT rules.202, 203 We conclude 

the clarification that the fugitive 

emission control requirements applies 

only to fugitive emissions that result 

from the combustion of hazardous waste 

is appropriate because it regulates 

emissions attributable to nonhazardous 

waste streams to the same level of 

stringency that otherwise would apply if 

the source did not combust hazardous 

waste.204

Comment: A commenter states that 

the instantaneous monitoring 

requirements are inappropriate because 

(1) EPA has not demonstrated that the 

average of the top 12% of boilers are 

capable of operating with no 

instantaneous deviations from the 

negative pressure requirements; and (2) 

these requirements, though not 

standards themselves, effectively 

increase the stringency of the standard 

itself beyond what even the best 

available technology can achieve. 

Response: As previously discussed, 

the fugitive emission control 

requirements included in today’s rule 

originated from the RCRA hazardous 

waste combustion chamber fugitive 

emission control requirements. These 

provisions allow sources to control 

fugitive emissions by ‘‘maintaining the 

combustion zone pressure lower than 

atmospheric pressure, or an alternative 

means of control equivalent to 

maintenance of combustion zone 

pressure lower than atmospheric 

pressure.’’ All sources that must comply 

with the provisions of this rule are, or 

were, required to control fugitive 

emissions from the combustion unit 

pursuant to RCRA. 

The monitoring requirements in 

today’s rule do not increase the 

stringency of the standard beyond what 

the best available technology can 

achieve. Although we do not have data 

that confirm negative pressure is being 

maintained on an instantaneous basis 

(as we define it)205 for at least 12 

percent of the boilers, we believe this is 

current practice and readily achievable 

by most sources.206 These requirements 

have been in force for many years, and 

there is no basis for stating that they are 

unachievable (EPA is not aware of 

industrywide noncompliance with these 

provisions, the necessary premise of the 

comment). First, maintaining negative 

pressure is the option that most boilers 

elect to implement to demonstrate 

compliance with the RCRA fugitive 

emission control requirements. Second, 

negative pressure is readily achieved on 

an instantaneous basis in boilers 

through use of induced draft fans. 

Third, the requirements we are 

finalizing today for boilers are identical 

to the fugitive emission control 

requirements that hazardous waste 

incinerators, cement kilns, and 

lightweight aggregate kilns are currently 

complying with pursuant to the EEE 

interim standard regulations. See 

§ 63.1206(c)(5). Most of these sources 

maintain negative combustion chamber 

pressure through use of induced draft 

fans, providing further evidence that 

continuously maintaining combustion 

59492 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

207The commenter did not provide information 

that would lead us to conclude that these 

requirements are harder to implement for boilers 

than for incinerators, cement kilns, and lightweight 

aggregate kilns. 

208We recognize that there may be instances 

when states can coordinate the Title V permit reopening, revision, and renewal process with the 

NIC timeframe requirements. Where this is possible, 

we encourage states (or other permitting authorities) 

to coordinate the two processes. By coordinating 

the two, duplication with respect to material 

content and public participation would be 

eliminated for both sources and states. 

zone pressure lower than ambient 

pressure is readily achievable by well 

designed and operated boilers.207

We note that use of instantaneous 

pressure monitoring is not a 

requirement. A source can elect to 

implement any of the four compliance 

options to control combustion system 

leaks as well as request to use 

alternative monitoring approaches. See 

§§ 63.1206(c)(5) and 63.1209(g). The 

instantaneous pressure monitoring 

option offers sources a method that 

satisfies the intent of the rule that can 

be applied at numerous sources. The 

inclusion of this requirement in today’s 

rule is thus an attempt to simplify the 

review process for both regulators and 

affected sources; the absence of 

prescriptive compliance options in this 

case may likely result in timeconsuming site-specific negotiations 

that would prolong the review and 

approval of comprehensive performance 

test workplans. 

Comment: A commenter believes that 

requiring an instantaneous waste-feed 

cutoff when these pressure excursions 

occur is short-sighted and will result in 

greater HAP emissions. The commenter 

recommends EPA instead allow the use 

of reasonable pressure averaging periods 

in lieu of instantaneous pressure 

requirements. 

Response: As discussed in the 

February 14, 2002 Final Amendments 

Rule, automatic waste feed cutoffs are 

appropriate non-compliance deterrents, 

and are necessary whenever an 

operating limit is exceeded. See 67 FR 

at 6973. Pressure excursions that result 

in combustion system leaks (and 

subsequently lead to automatic waste 

feed cutoffs) should be prevented by 

maintaining negative pressure in the 

combustion zone. We agree that 

needless triggering of automatic waste 

feed cutoffs due to short term pressure 

fluctuations that do not result in 

combustion system leaks would provide 

less environmental protection, not more. 

Today’s rule offers three alternative 

options that do not require the use of 

instantaneous pressure monitoring to 

control combustion system leaks. See 

§ 63.1206(c)(5). The use of averaging 

periods in these alternatives is not 

prohibited. Sources that elect to use an 

alternative compliance option must 

demonstrate that the alternative method 

is equivalent to maintaining combustion 

zone pressure lower than ambient 

pressure or, that the alternative 

approach prevents fugitive emissions. 

E. Notification of Intent To Comply and 

Compliance Progress Report 

1. Notice of Intent To Comply 

In the NPRM, we proposed to reinstitute the Notification of Intent to 

Comply (NIC) because we felt that it 

offered many benefits in the early stages 

of MACT compliance. As discussed in 

the 1998 ‘‘fast track’’ rule (63 FR 33782) 

and in the proposal, the NIC serves 

several purposes: as a planning and 

communication tool in the early 

implementation stages, to compensate 

for lost public participation 

opportunities when using the RCRA 

streamlined permit modification 

procedure to make upgrades for MACT 

compliance, and as a means to share 

information and provide public 

participation opportunities that would 

be lost when new units are not required 

to comply with certain RCRA permit 

requirements and performance 

standards. Please refer to the proposal at 

69 FR 21313–21316 for additional 

discussion of the regulatory history, 

purpose, and implementation of the NIC 

provisions. 

Overall, most commenters supported 

our decision to finalize NIC provisions. 

However, they also feel that the NIC 

should only be required for sources that 

have not completed a NIC previously 

(i.e., Phase 2 sources or Phase 1 sources 

that did not meet the previous NIC 

deadline) and for sources that need to 

make upgrades to comply with the final 

standards (i.e., either Phase 1 or Phase 

2). They suggest that if sources do not 

need to make upgrades, then they 

should not be required to complete the 

NIC process, if they had done so 

previously. To require a second NIC 

would only add to the administrative 

burden and is not in line with Agency 

efforts to reduce reporting burdens. We 

agree that if Phase 1 sources do not need 

to make upgrades to comply with the 

Replacement Standards and if they 

completed the NIC process before, then 

it is not necessary to do so again. 

In addition to the comment discussed 

above, a few commenters proposed that 

for sources who must still comply with 

the NIC because they wish to make 

upgrades, that the NIC public notice be 

combined with the Title V re-opening or 

renewal public notice. They point out 

that sources with existing Title V 

permits will have their permits reopened or renewed to incorporate the 

new applicable requirements (i.e., Phase 

1 Replacement or even Phase 2 

Standards) shortly after the NIC public 

notice and meeting are to occur. Title V 

permit re-openings and renewals 

require: public notice, a minimum of 30 

days for comment, and an opportunity 

to request a hearing. 

While we do agree that the Title V reopening and renewal requirements 

provide adequate information to the 

public and an opportunity for the public 

to comment and request a hearing, we 

are concerned that the timing 

requirements for the NIC may not 

correspond with the timing 

requirements for title V permit 

reopenings, revisions, and renewals. 

The public review of the draft NIC and 

subsequent public meeting are 

scheduled to occur 9 and 10 months, 

respectively, after the rule’s effective 

date. On the other hand, Title V permits 

for major sources that have a remaining 

permit term of greater than 3 years from 

the rule’s promulgation date will need 

to be re-opened, but this re-opening may 

not occur until 18 months beyond the 

promulgation date of the rule. Also, 

Title V permits that have a remaining 

permit term of less than 3 years from the 

rule’s promulgation date will need to be 

renewed, but the timing of the renewal 

is contingent upon the individual 

permit term, not the timing 

requirements for public review of the 

draft NIC and public meeting. Thus, we 

do not believe there is ample 

opportunity to combine the 

requirements of the NIC and Title V 

process for the vast majority of 

sources.208 Also, those sources that need 

to make upgrades to comply with the 

final standards and that need to modify 

any applicable conditions in their RCRA 

permit will not be able to request the 

streamlined modification procedure (see 

40 CFR 270.42(j)) until they meet the 

NIC requirements. So the earlier they 

comply with the NIC requirements, the 

earlier they can begin upgrading their 

combustion units. 

Another commenter suggested a 

change to the regulations at 

§ 63.1210(c)(1) to account for sources 

that will cease burning hazardous waste 

prior to or on the compliance date. The 

regulations, as proposed, require 

sources to hold an informal public 

meeting to discuss anticipated activities 

described in the draft NIC even if they 

plan to cease burning hazardous waste. 

The commenter also suggested a similar 

change to § 63.1210(b)(2) that requires 

the draft NIC be made available for 

public review no later than 30 days 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59493 

prior to the public meeting. We agree 

with the commenter that it does not 

make sense to require sources that 

intend to cease burning hazardous waste 

to submit a NIC that discusses 

anticipated activities that will allow 

them to achieve compliance with the 

standards. We also agree that it is not 

necessary for those sources to hold an 

informal public meeting, since there are 

no MACT compliance activities to 

discuss. However, we believe that the 

public should be provided notice of the 

draft NIC so that they are aware of the 

source’s intentions to cease burning and 

the steps (and key dates) the source will 

undertake to stop hazardous waste 

combustion activities. 

With regard to Phase 2 sources, we 

had proposed that all Phase 2 sources 

comply with the same NIC requirements 

as the Phase 1 sources. Commenters did 

not express opinions in favor or against 

the NIC for Phase 2 sources. We believe 

that the NIC is beneficial in several 

respects. As mentioned previously, it 

serves as a planning and 

communication tool in the early 

implementation stages, it compensates 

for lost public participation 

opportunities when using the RCRA 

streamlined permit modification 

procedure to make upgrades for MACT 

compliance, and it is a tool to share 

information and provide public 

participation opportunities that would 

be lost when new units are not required 

to comply with certain RCRA permit 

requirements and performance 

standards. Ultimately, it creates more 

public confidence in the permitting 

process and so promotes a more stable 

regulatory environment. 

For today’s rule, we are finalizing our 

decision to re-institute the NIC 

provisions for Phase 1 and Phase 2 

sources. We are including a few minor 

changes and clarifications to improve 

the proposed regulatory language based 

on commenters’ suggestions. Section 

63.1210(b) is revised so that Phase 1 

sources that previously complied with 

the NIC requirements, and that do not 

need to make upgrades to comply with 

the Replacement Standards, are not 

required to comply with the NIC again. 

Sections 63.1210(b)(1)(iv) and (b)(2) 

have been revised and (c)(5) has been 

added so that sources that intend to 

cease burning hazardous waste prior to 

or on the compliance date are only 

required to prepare a (draft) NIC, make 

a draft of the NIC available for public 

review no later than 9 months after the 

effective date of the rule, and submit a 

final NIC to the Administrator no later 

than one year following the effective 

date of the rule. Last, we have revised 

language in § 63.1210(b) based upon a 

commenter’s concerns that the term you 

‘‘will’’ implies that sources are required 

meet their ‘‘estimated’’ dates for 

achieving key activities. We have 

removed ‘‘will’’ and replaced it with 

‘‘anticipate’’ to more accurately 

represent the objective of the NIC, 

which is for sources to communicate 

their plans for complying with the 

standards in two years. 

2. Compliance Progress Report 

In the proposal, we explained why we 

thought a compliance progress report 

would be beneficial. In short, we 

believed it would help regulatory 

agencies determine whether Phase 1 and 

Phase 2 sources were making sufficient 

headway in their efforts to meet the 

compliance date. The progress report 

would be due to the regulatory agency 

at the midway point of the 3 year 

compliance period and would serve to 

update the information the source 

provided in its NIC. However, because 

we do not have any experience to draw 

upon regarding the value of the progress 

report, we requested comment on 

whether or not it should be required. 

In response to our request for 

comment, all commenters were opposed 

to the progress report. They cited 

several reasons, with the most 

consistent one being that the progress 

report serves no useful purpose and 

imposes unnecessary additional 

burdens on sources. As we discussed 

above, sources and regulatory agencies 

will be focusing on the NIC as well as 

initial Title V applications, re-openings, 

revisions, and renewals during this 

three year compliance period. We agree 

with the commenter who noted that 

there is already significant interaction 

between sources and regulatory 

authorities during this period. 

Furthermore, we learned through 

implementation of the Interim 

Standards that some regulatory agencies 

found it difficult to manage the notices, 

applications, requests, and test plans 

that were due prior to the compliance 

date. Therefore, we have decided not to 

finalize any compliance progress report 

requirements for today’s rule. 

F. Startup, Shutdown, and Malfunction 

Plan 

Comment: One commenter states that 

an exceedance of a standard or 

operating requirement during a 

malfunction should be a violation not 

only because source owners and 

operators need an incentive to minimize 

exceedances caused by malfunctions, 

but also because an exemption for 

malfunction periods would violate the 

plain language of the CAA. The 

commenter notes that an emission 

standard is defined by 42 U.S.C. 

§ 7602(k) as a standard that ‘‘limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis, including any 

requirement relating to the operation of 

maintenance of a source to assure 

continuous emission reduction, and any 

design, equipment, work practice or 

operational standard * * *.’’ The 

commenter concludes that a standard 

that contains a malfunction exemption 

does not apply ‘‘on a continuous basis’’

as required by the statute. Likewise, the 

commenter concludes that an 

exemption for startup and shutdown 

periods would also violate this 

unambiguous statutory language. 

The commenter also notes that, 

although some courts have held that a 

technology-based standard must provide 

some kind of an exemption for 

unavoidable technology failures, the 

rationale for such an exemption is that 

the underlying standard is based on the 

performance of a particular control 

technology that cannot be expected to 

function properly all of the time. The 

commenter believes that neither the 

rationale nor the exemption apply to 

section 112(d) standards, which are not 

based on the performance of any 

particular technology but instead must 

reflect the ‘‘maximum degree of 

reduction’’ that can be achieved, 

irrespective of the measures used by a 

source to achieve that reduction. CAA 

§ 112(d)(2). 

The commenter states that, even 

assuming for the sake of argument that 

EPA has authority to depart from the 

statutory language and carve out a 

startup, shutdown, and malfunction 

exemption, any such exemption must be 

narrowly drafted to apply only where a 

source demonstrates that a violation was 

unavoidable. See, e.g., Marathon Oil, 

564 F.2d at 1272–73. As EPA 

recognizes, emission exceedances that 

occur during SSM events are frequently 

avoidable. See 69 FR at 21339/3 (noting 

that ‘‘proper operation and maintenance 

of equipment’’ helps avoid exceedances 

during startup, shutdown, and 

malfunction events), 69 FR at 21339/2 

(describing the industry view that 

‘‘some’’ exceedances that occur due to 

malfunctions are unavoidable). Thus, 

the commenter concludes that, even if a 

Marathon Oil-type exemption applies to 

a § 112(d) standard, it would be 

unlawful and arbitrary for EPA to 

exempt sources from liability for all 

emission exceedances occurring during 

startup, shutdown, and malfunction 

events. Rather, such an exemption could 

only apply where a source demonstrates 

that a given exceedance was 

unavoidable. 

59494 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

Many other commenters state that it 

would be illegal to require compliance 

with the emission standards and 

operating requirements during startup, 

shutdown, and malfunction events. The 

commenters note that EPA and the 

courts have long recognized that 

technology fails at times, despite a 

source’s best efforts to maintain 

compliance. For this reason, the courts 

have recognized that technology-based 

standards such as EPA’s § 112(d)(2) 

MACT standards must account for such 

unavoidable technology failures if the 

standards are to be truly ‘‘achievable.’’

Thus, the standards must excuse 

noncompliance with the actual emission 

standards during startup, shutdown, 

and malfunction events. 

These commenters also note that EPA 

took the position in the September 1999 

final MACT rule for hazardous waste 

combustors that exceedance of an 

operating requirement during startup, 

shutdown, or malfunction events was a 

violation if hazardous waste remained 

in the combustion chamber. The 

commenters note that industry groups 

challenged the rule, and while the D.C. 

Circuit did not reach this issue because 

it vacated the emission standards, it 

pointed out that ‘‘industry petitioners 

may be correct that EPA should have 

exempted HWCs from regulatory limits 

during periods of startup, shutdown, 

and malfunction, permitting sources to 

return to compliance by following the 

steps of a startup, shutdown, and 

malfunction plan filed with the 

Agency.’’ CKRC v. EPA, 255 F.3d 855, 

872 (2001). Commenters conclude that, 

after reading this language, EPA officials 

wisely decided that hazardous waste 

combustors should not be required to 

meet the MACT emission standards and 

operating limits during startup, 

shutdown, and malfunction events. 

Response: We agree with commenters 

who state that sources must be exempt 

from technology-based emission 

standards and operating limits during 

startup, shutdown, and malfunction 

events. Technology is imperfect and can 

malfunction for reasons that are not 

reasonably preventable. The regulations 

must provide relief for such situations. 

We believe that existing case law 

supports this position. See, e.g., 

Chemical Mfr’s Ass’n v. EPA, 870 F. 2d 

at 228–230 (daily maximum limitations 

established at 99th percentile reasonable 

because rules also provide for upset 

defense for unavoidable exceedances); 

Marathon Oil v. EPA, 541 F. 2d at 1272–

73 (acknowledged by commenter). As 

commenters noted, the D.C. Circuit also 

intimated in CKRC that some type of 

exception from compliance with 

standards during startup, shutdown and 

malfunction periods was required. 

We do not agree with the commenter 

who contends that the § 112(d) MACT 

standards are not technology-based 

standards because they are not based on 

the performance of any particular 

technology but instead must reflect the 

‘‘maximum degree of reduction’’ that 

can be achieved, irrespective of the 

measures used by a source to achieve 

that reduction. On the contrary, the 

standards must reflect the average 

performance of the best performing 

sources, which performance is achieved 

using technical controls—air pollution 

control devices, and for some 

pollutants, hazardous waste feedrate 

control. Those controls can fail for 

reasons that are not reasonably 

preventable. We note further that the 

situation was the same in the Clean 

Water Act cases which the commenter 

seeks to distinguish. Like section 112(d) 

standards, Clean Water Act standards 

are technology-based (reflecting Best 

Practicable Technology or Best 

Available Technology, see CWA 

sections 304 (b) and 301 (b)) and do not 

require use of any particular type of 

technology. See also Mossville, 370 F. 

3d at 1242 (EPA must account for 

foreseeable variability in establishing 

MACT floor standards). 

We agree with the commenter who 

states that any exemption from the 

emission standards and operating 

requirements during malfunctions must 

apply only where a source demonstrates 

that a violation was unavoidable. We 

note that the term malfunction is 

defined in § 63.2 as ‘‘any sudden, 

infrequent, and not reasonably 

preventable failure of air pollution 

control and monitoring equipment, 

process equipment, or a process to 

operate in a normal or usual manner 

which causes, or has the potential to 

cause, the emission limitations in an 

applicable standard to be exceeded. 

Failures that are caused in part by poor 

maintenance or careless operation are 

not malfunctions.’’ We believe this 

definition largely addresses the 

commenter’s concern. 

We acknowledge, however, that 

emissions can increase during 

malfunctions and potentially exceed the 

standards and agree that exceedances 

must be minimized. Accordingly, the 

final rule (and the current rule for 

incinerators, cement kilns, and 

lightweight aggregate kilns) requires that 

sources maintain compliance with the 

automatic hazardous waste feed cutoff 

system during malfunctions and notify 

the permitting authority if they have 10 

or more exceedances of an emission 

standard or operating limit during a 6- 

month block period when hazardous 

waste is in the combustion chamber. See 

§ 63.1206(c)(2)(v). This will alert the 

permitting authority that the source’s 

operation and maintenance plan may 

not be adequate to maintain compliance 

with the emission standards and that 

the authority may need to direct the 

source to revise the plan under 

§ 63.6(e)(3)(vi). Finally, we note that 

sources must report all excess emissions 

semiannually under § 63.10(e)(3) if an 

emission standard or operating limit is 

exceeded, including during 

malfunctions. 

Comment: One commenter states that 

any exemption for emission 

exceedances during startup, shutdown, 

or malfunction events would violate the 

RCRA mandate for standards necessary 

‘‘to protect human health and the 

environment.’’ 42 U.S.C. 6924(a). The 

commenter reasons that, because EPA’s 

RCRA standards are health-based rather 

than technology-based, no 

unavoidability defense is available. 

Given that EPA concludes that the 

hazardous waste combustor MACT rule 

satisfies both its CAA and RCRA 

mandates, the emission standards and 

operating requirements cannot be 

waived during startup, shutdown, and 

malfunction events. 

Response: We agree that the RCRA 

mandate to ensure protection of human 

health and the environment applies at 

all times, including during startup, 

shutdown, and malfunction events. 

Accordingly, the existing MACT 

requirements for incinerators, cement 

kilns, and lightweight aggregate kilns 

give sources the option of continuing to 

comply with RCRA permit requirements 

to control emission during these events, 

or to comply with special MACT 

requirements that are designed to be 

proactive and reactive and intended to 

be equivalent to the incentive to 

minimize emissions during these events 

provided by the RCRA requirements. 

See existing § 63.1206(c)(2)(ii). The 

special MACT requirements require 

sources to include proactive measures 

in the startup, shutdown, and 

malfunction plan to minimize the 

frequency and severity of malfunctions 

and to submit the startup, shutdown, 

and malfunction plan to the permitting 

authority for review and approval. We 

proposed to require boilers and 

hydrochloric acid production furnaces 

to comply with those same provisions 

providing for equivalence between the 

two sets of requirements, and 

promulgate those provisions today. 

Comment: One commenter states that 

the rule should clarify the definitions of 

startup, shutdown, and malfunctions to 

preclude sources from improperly 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59495 

classifying as unavoidable exceedances 

those exceedances that could have been 

avoided had the source implemented an 

appropriate operation and maintenance 

plan. Many other commenters state that 

the current definitions in § 63.2 clearly 

define these terms. 

Response: We believe the definitions 

of startup, shutdown, and malfunction 

are clearly defined in § 63.2, and 

combined with the startup, shutdown, 

and malfunction plan requirements, will 

preclude sources from improperly 

classifying as malfunctions events that 

could have been reasonably prevented 

by following appropriate procedures in 

the operation and maintenance plan. As 

discussed above, the definition of 

malfunction clearly states that failures 

that are caused in part by poor 

maintenance or careless operation are 

not malfunctions. 

Comment: One commenter states that 

all stack bypasses, automatic waste feed 

cutoffs, and excursions from the 

operating parameter limits should be 

considered malfunctions. 

Response: All failures resulting in 

stack bypasses, automatic waste feed 

cutoff, and excursions from the 

operating parameter limits are not 

malfunctions. As discussed above, 

failures caused in part by poor 

maintenance or careless operation are 

not malfunctions. 

Comment: One commenter states that 

the rule should require sources to 

expand the startup, shutdown, and 

malfunction plan to address specific 

proactive measures that the source has 

considered and is taking to minimize 

the frequency and severity of 

malfunctions. Many other commenters 

believe that it is not necessary to expand 

the scope of the startup, shutdown, and 

malfunction plan beyond that required 

under § 63.6(e)(3) for other MACT 

source categories. 

Response: We do not believe that it is 

necessary to expand the scope of the 

startup, shutdown, and malfunction 

plan generically for all hazardous waste 

combustors to address specific proactive 

measures that the source has considered 

and is taking to minimize the frequency 

and severity of malfunctions. Imposing 

additional requirements in particular 

situations is appropriate, however. For 

example, as discussed above, this 

expanded plan is required for sources 

that elect to meet the RCRA mandate 

using provisions of the startup, 

shutdown, and malfunction plan. See 

§ 63.1206(c)(2)(ii). In addition, the plan 

with expanded scope may be 

appropriate for sources that have 

demonstrated an inability to minimize 

malfunctions. Consequently, the 

permitting authority should consider 

expanding the scope of the startup, 

shutdown, and malfunction plan on a 

site-specific basis under authority of 

§ 63.6(e)(3)(vii) if the source has 

excessive exceedances during 

malfunctions. See 

§ 63.1206(c)(2)(v)(A)(3) defining 

excessive exceedances during 

malfunctions and requiring reporting of 

the exceedances in the excess emissions 

report required under § 63.10(e)(3). 

Comment: Two commenters state that 

all startup, shutdown, and malfunction 

plans should be submitted for review 

and approval by the delegated authority 

and made available for a 60-day public 

review period. Review and approval of 

the plans is needed in light of EPA’s 

acknowledgment that most excess 

emissions would occur during startup, 

shutdown, and malfunctions. One of 

these commenters also believes that the 

regulations should provide for the 

public review period to be extended as 

necessary to accommodate a thorough 

public review. The reviewing authority 

should be required to provide a written 

response to public comments explaining 

any decision to reject a public comment 

suggesting ways for a facility to limit 

emissions during startup, shutdown, 

and malfunction events. 

Many other commenters have 

concerns with requiring review and 

approval of startup, shutdown, and 

malfunction plans, except as required 

under § 63.1206(c)(2)(ii) for sources that 

elect to meet the RCRA mandate using 

provisions of the startup, shutdown, and 

malfunction plan as discussed above. 

Response: Commenters express the 

same views here that they expressed 

under the rulemaking the Agency 

recently completed to revise the startup, 

shutdown, and malfunction plan 

requirements of the General Provisions 

applicable to all MACT source 

categories. See 68 FR at 32589–93 (May 

30, 2003). 

EPA concluded in that final rule that 

the Administrator may at any time 

request in writing that the owner or 

operator submit a copy of any startup, 

shutdown, and malfunction plan (or a 

portion thereof). Upon receipt of such a 

request, the owner or operator must 

promptly submit a copy of the requested 

plan (or a portion thereof) to the 

Administrator. In addition, the 

Administrator must request that the 

owner or operator submit a particular 

startup, shutdown, or malfunction plan 

(or a portion thereof) whenever a 

member of the public submits a specific 

and reasonable request to examine or to 

receive a copy of that plan or portion of 

a plan. 

These provisions to provide the 

Administrator and the public with 

access to startup, shutdown, and 

malfunction plans, coupled with the 

provisions of § 63.6(e)(3)(vii) under 

which the Administrator must require 

the source to make changes to a 

deficient plan, should ensure that 

startup, shutdown, and malfunction 

plans are complete and accurate. We 

note that under § 63.6(e)(3)(vii) the 

Administrator must require the source 

to revise the plan if the plan: (1) does 

not address a startup, shutdown, or 

malfunction event that has occurred; (2) 

fails to operate the source (including 

associated air pollution control and 

monitoring equipment) during a startup, 

shutdown, or malfunction event in a 

manner consistent with the general duty 

to minimize emissions; (3) does not 

provide adequate procedures for 

correcting malfunctioning process and/ 

or air pollution control and monitoring 

equipment as quickly as practicable; or 

(4) includes an event that does not meet 

the definition of startup, shutdown, or 

malfunction listed in § 63.2. 

The commenter advocating that all 

hazardous waste combustors should be 

required to submit their startup, 

shutdown, and malfunction plans for 

review and approval did not explain 

why the concerns the Agency expressed 

in the General Provisions rulemaking 

(see 68 FR at 32589–93) are not valid for 

hazardous waste combustors. 

Accordingly, we do not believe it is 

appropriate to deviate from the General 

Provisions to require that all hazardous 

waste combustors submit their startup, 

shutdown, and malfunction plans for 

review. 

G. Public Notice of Test Plans 

1. What Are the Revised Public Notice 

Requirements for Test Plans? 

Prior to the proposal, it was brought 

to our attention that the Agency did not 

provide any direction in the 1999 final 

rule regarding how and when sources 

should notify the public, what the 

notification should include, or where 

and for how long performance test plans 

should be made available. 

Consequently, we proposed to add 

clarifying language to the § 63.1207(e)(2) 

public notification requirement for 

approved performance test and CMS 

performance evaluation test plans 

because we believe that providing 

opportunities for timely and adequate 

public notice is necessary to fully 

inform nearby communities of a 

source’s plans to initiate important 

waste management activities. The 

proposed clarifications are based upon 

the RCRA Expanded Public 

Participation Rule (60 FR 63417, 

December 11, 1995) requirements for 

59496 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

209See 69 FR 21347–21349. 

210We expect that some source’s test plans may 

be modified after notice is issued and prior to 

approval or commencement of their test. However, 

even under the previous regulations, test plans 

could be modified after they had been approved 

and public noticed. It is often a necessary 

consequence as sources continue to prepare the 

combustion unit for the test. 

211Sections 63.1207(e)(2) and (e)(3) each require 

public notice, but neither had provided any 

direction on how, when, where, and what should 

be included in their respective notices until today’s 

final rule. 

public notification of an impending trial 

burn test. As a result, we did not feel 

that the clarifications imposed any new 

or additional requirements upon sources 

that will conduct a MACT 

comprehensive performance test or 

confirmatory performance test. 

Commenters generally supported the 

clarifications to the public notice.209

However, they suggested a change to the 

proposed requirement to provide notice 

of test plan approval no later than 60 

days prior to conducting the test. The 

basis for suggesting a change is that 

many sources had not received approval 

of their test plans 60 days prior to the 

deadline for initiating their test under 

the Interim Standards. Moreover, 

several sources did not receive approval 

until well after the deadline for 

initiating the test. The problem created 

for these sources is that the required 60 

day notification of the approved test 

plan effectively determines when the 

source will be able to begin its test. In 

other words, its test would need to be 

postponed until the approved test plan 

had been noticed for 60 days. Thus, 

commenters provided several possible 

alternatives. 

One alternative that would avoid 

causing delays to testing is to require 

the public notice when the source 

submits its test plan. Although this 

fulfills the notification requirement, this 

alternative has a shortfall: The notice 

would occur at least one year (barring 

any extensions) in advance of the test 

and given this long period of time, the 

test plan is likely to be modified prior 

to approval. A second alternative is to 

provide notice of the test plan 60 days 

before the test as before, but regardless 

of approval status. This alternative is 

improved over the first, but still faces 

the same problem of potentially not 

offering the public an opportunity to 

view a final approved plan. A third 

alternative is to issue notice of the test 

plan as soon as it is approved. With this 

alternative, the public will have the 

most up-to-date information; however, it 

may not be until a few days prior to 

commencement of the test. Ideally, the 

second and third alternatives could be 

combined to provide the best possible 

chance of providing the public with an 

approved test plan in a reasonable 

period of time prior to the test. On the 

other hand, that would potentially 

require the facility to issue two notices 

if the test plan is not approved 60 days 

prior to the test. We do not believe this 

would be reasonable given that sources 

will be focused on activities associated 

with the impending test. 

In consideration of practicality, we 

believe that the second alternative 

provides an adequate solution. As we 

mentioned, the drawback is that the 

public may not have the opportunity to 

view an approved test plan. However, 

we believe it is more important that the 

public be aware of a source’s plans (i.e., 

how and when) for conducting the 

performance test.210 This way, if they 

have questions, there will be 60 days in 

which they may contact the regulatory 

authority or the source before the test is 

scheduled to begin. This alternative will 

also eliminate the conflict associated 

with the confirmatory performance test. 

The regulations at § 63.1207(e)(1)(ii) 

specify that a source must submit to the 

regulatory authority its notice of intent 

to conduct a confirmatory performance 

test and the applicable test plans at least 

60 calendar days prior to the date the 

test is to begin. Since we are no longer 

requiring that the test plans be approved 

before issuing public notice, sources 

would then provide notice of their 

confirmatory performance test plan to 

the public at the same time they submit 

their notice of intent and test plans to 

the regulatory authority. Therefore, we 

are requiring that sources issue the 

public notice of test plans 60 days in 

advance of commencing the 

performance test, whether their test 

plans have been approved or not. The 

regulations at § 63.1207(e)(2) have been 

revised accordingly. 

One last concern related to the public 

notice of approved test plans involves 

sources that choose to conduct a 

performance test without an approved 

test plan (e.g., both time extensions 

provided by §§ 63.7(h) and 63.1207(e)(3) 

have expired or due to other 

circumstances, the source has elected to 

begin the test without approval). 

Because we did not believe any sources 

would choose or need to do so, we did 

not propose any guidance or regulations 

specific to issuing notice to the public 

of their test plans. Nevertheless, a few 

commenters raised this possibility 

indirectly in their discussion of the 

problematic 60 day notice of approved 

test plan requirement. The revised 

proposal addresses this concern by no 

longer requiring that test plans be 

approved before issuing public notice. 

Thus, sources that choose to begin their 

test without an approved plan will have 

complied with the requirement to issue 

public notice. Irrespective of the public 

notice requirements for noticing test 

plans, we expect that sources will notify 

their regulatory authority of their 

decision to proceed with their test in the 

absence of plan approval. 

2. What Are the Revised Public Notice 

Requirements for the Petition To Waive 

a Performance Test? 

In the Final Amendments Rule (67 FR 

6968, February 14, 2002), the Agency 

did not provide direction regarding 

how, when, where, and what should be 

included in the public notice for a 

petition for time extension if the 

Administrator fails to approve or deny 

test plans.211 In the proposal, we 

believed it important to provide 

clarification regarding when the notice 

must be issued and what it should 

contain. Thus, we proposed to revise 

paragraph § 63.1207(e)(3)(iv). 

We received only one comment in 

response to the proposed requirements. 

The commenter did not express any 

concern over the requirements 

themselves, but rather suggested a 

change to terminology used. The 

commenter feels that the terms ‘‘to 

waive a performance test’’ or ‘‘waiver’’

as used in § 63.1207(e)(3)(iv) could be 

confusing to readers when we are 

actually referring to a time extension for 

commencing the test. Although we agree 

the terminology could be confusing, 40 

CFR 63.1207(e)(3) clearly uses the term 

‘‘waiver’’ in the context of an extension 

of time to conduct the performance test 

at a later date, implying that the 

deadline can be waived in this specific 

situation. The use of the term waiver is 

derived from the General Provisions 

requirements for requesting a waiver of 

performance tests (§ 63.7(h)). Thus, 

§ 63.7(h)(3) provides the basis by which 

sources may petition, in the form of a 

waiver, for a time extension under 

§ 63.1207(e)(3). In consideration of the 

above and that the existing regulations 

of § 63.1207(e)(3)(i)-(iii) consistently use 

the term waiver, we do not feel that a 

change to § 63.1207(e)(3)(iv) is 

warranted. 

H. Using Method 23 Instead of Method 

0023A 

Comment. Most commenters support 

our proposal to allow the use of Method 

23 instead of Method 0023A if a source 

includes this request in the 

comprehensive test plan to the 

permitting authority. Some commenters 

believe that Method 23 should be 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59497 

212 If you select an averaging period for the 

feedrate limit that is greater than a 12-hour rolling 

average, you must calculate the initial rolling 

average as though you had selected a 12-hour 

rolling average, as provided by § 63.1209 (b)(5)(i). 

This is reasonable because allowing a longer period 

of time before calculating the initial rolling average 

would not effectively ensure compliance with the 

feedrate limit. You must calculate rolling averages 

thereafter as the average of the available one-minute 

values until enough one-minute values are available 

to calculate the rolling average period you select. 

We note that this is an approach allowed for 

calculating rolling averages under different modes 

of operation at § 63.1209(q)(2)(ii). At that time and 

thereafter, you update the rolling average feedrate 

each hour with a 60-minute average feedrate. 

213See USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

HWC MACT Standards,’’ September 2005, Section 

13. 

214The emission standard accounts for long-term 

variability by incorporating an (not to exceed) 

annual averaging period that is implemented by an 

(not to exceed) annual average chlorine feedrate 

limit. Thus, because the emission level achieved 

during the performance test relates to daily (or 

hourly) variability, an exceedance of the emission 

standard during the test is not a violation. 

allowed in all cases without prior 

approval or on a source category basis. 

Response. We proposed to allow 

sources to use Method 23 for dioxin and 

furan testing instead of SW–846 Method 

0023A in situations where the enhanced 

procedures found in Method 0023A 

would not increase measurement 

accuracy. We proposed this change in 

the July 3, 2001, proposed rule, and 

again in the April 20, 2004, proposal. 

See 66 FR at 35137 and 69 FR at 21342. 

The final rule promulgates this 

change as proposed. See 

§ 63.1208(b)(1)(i). You may use Method 

23 in lieu of Method 0023A after 

justifying use of Method 23 as part of 

your performance test plan that must be 

reviewed and approved the delegated 

permitting authority. You may be 

approved to use Method 23 considering 

factors including whether previous 

Method 0023A analyses document that 

dioxin/furan are not detected, are 

detected at low levels in the front half 

of Method 0023A, or are detected at 

levels well below the emission standard, 

and the design and operation of the 

combustor has not changed in a manner 

that could increase dioxin/furan 

emissions. We note that coal-fired 

boilers and combustors equipped with 

activated carbon injection systems may 

not be able to support use of Method 23, 

however, because these sources’ stack 

gas is likely to contain carbonaceous 

particulate. Thus, these sources are 

likely to benefit the most from using 

Method 0023A. 

The final rule does not automatically 

allow use of Method 23 for particular 

source categories because we cannot 

assess whether all sources in a category 

meet the conditions for use of Method 

23—generally that quality assurance 

may not be improved—such as those 

listed above. These determinations can 

only be made on a site specific basis by 

the permitting authority most familiar 

with the particular source. 

Comment: Commenters do not believe 

that an additional petition process (i.e., 

under § 63.1209(g)(1)) is necessary 

before allowing use of Method 23. 

Instead, EPA should require that the use 

of Method 23 should be submitted with 

the test plan to the regulatory agency for 

approval. 

Response: We agree that a separate 

petition is unnecessary. Sources should 

include a justification to use Method 23 

in the performance test plan that is 

submitted for review and approval. This 

will allow the permitting authority to 

determine whether use of Method 23 is 

appropriate for the source. 

Comment: Two commenters state that 

‘‘the justification of the use of Method 

23 will not be by the existing system of 

a petition to EPA, but will be included 

as a part of the performance test plan 

that is submitted to the delegated 

regulatory authority for review and 

approval. This means that the expertise, 

training, and decision-making will not 

be consistent across the country. This is 

especially a problem because of the 

severe resource, training and staff 

reductions among the delegated 

regulatory authorities across the country 

and from region to region. The decision 

to allow or disallow use of Method 23 

should come specifically, for each case, 

from EPA consideration of the 

submitted justification, based on the 

knowledge and expertise of trained and 

experienced EPA staff. This is important 

for uniformly applying the testing 

requirements all across the country.’’

Response: We disagree, and we 

believe the responses to comments in 

today’s rule make clear when Method 23 

is an acceptable substitute for Method 

0023A. If the source has carbon in the 

flue gas, as is the case with coal-fired 

boilers, boilers with carbon injection, 

and other sources likely to have a 

substantial amount of carbonaceous 

particulate matter in the flue gas, 

Method 0023A will generally be 

preferable because it includes 

procedures to account for dioxin and 

furan bound to carbonaceous particulate 

matter found in the probe and filter. In 

other situations, Method 23 will 

generally give the same results at a 

lower cost. 

I. Extrapolating Feedrate Limits for 

Compliance With the Liquid Fuel Boiler 

Mercury and Semivolatile Metal 

Standards 

Comment: One commenter questions 

whether allowing sources to extrapolate 

metal feedrates downward from the 

levels achieved during the 

comprehensive performance test to 

establish a metal feedrate limit will 

ensure compliance with the emission 

standards. 

Response: The mercury and 

semivolatile metals standards for liquid 

fuel boilers are annual average emission 

limits where compliance is established 

by a rolling average mercury feedrate 

limit with an averaging period not to 

exceed an annual rolling average 

(updated hourly).212 We use this 

approach because the emissions data 

used to establish the standards are more 

representative of normal emissions than 

compliance test emissions.213

As we explained at proposal, to 

ensure compliance with the mercury 

and semivolatile metal emission 

standards for liquid fuel boilers, you 

must document during the 

comprehensive performance test a 

system removal efficiency for the metals 

and back-calculate from the emission 

standard a maximum metal feedrate 

limit that must not be exceeded on an 

(not to exceed) annual rolling average. 

See 69 FR at 21311–12. If your source 

is not equipped with an emission 

control system (such as activated carbon 

to control mercury) for the metals in 

question, however, you must assume 

zero system removal efficiency. This is 

because, although a source that is not 

equipped with an emission control 

system may be able to document a 

positive system removal efficiency in a 

single test, that removal efficiency is not 

likely to be reproducible. Rather, it is 

likely to be an artifact of the calculation 

of emissions and feeds rather than a 

removal efficiency that can reliably be 

repeated. 

To ensure that you can calculate a 

valid, reproducible system removal 

efficiency for sources equipped with a 

control system that effectively controls 

the metal in question, you may need to 

spike metals in the feed during the 

comprehensive performance test at 

levels that may result in emissions that 

are higher than the standard. This is 

appropriate because compliance with an 

emission standard derived from normal 

emissions data is based on compliance 

with an (not to exceed) annual average 

feedrate limit calculated as prescribed 

here, rather than compliance with the 

emission standard during the 

comprehensive performance test.214

The commenter is concerned that 

downward extrapolation from the levels 

achieved during the comprehensive 

performance test to establish a metal 

feedrate limit may not ensure 

59498 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

215USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume IV: Compliance 

with the HWC MACT Standards,’’ September 2005, 

Section 2.5 and Appendix B. 

216Note, however, that you convert the MTEC 

(μg/dscm) to a mass feedrate (lb/hr) by considering 

the average gas flowrate of the test run averages 

during the comprehensive performance test to 

simply implementation and compliance. 

217Mercury SRE is constant as the mercury 

feedrate decreases. 

218Examples include 40 CFR part 60, subparts 

CCCC and DDDD for commercial and industrial 

solid waste incinerators, 40 CFR part 63, subpart 

LLL for Portland cement manufacturing facilities, 

40 CFR part 63, subpart DDDDD for industrial/ 

commercial/institutional boilers and process 

heaters, and 40 CFR part 63, subpart NNNNN for 

hydrochloric acid production facilities. 

219This provision has been discussed in several 

Federal Register notices including 64 FR at 52904 

(September 30, 1999), 66 FR at 35090, 35145 (July 

3, 2001), 67 FR at 6979 (February 14, 2002), and 69 

FR at 21203 (April 20, 2004). 

compliance with the standard because 

system removal efficiency may be lower 

at lower feedrates. 

This is a valid concern, and we have 

investigated it since proposal. We 

conclude that downward extrapolation 

of feedrates for the purpose of 

complying with the mercury and 

semivolatile metals emission standards 

for liquid fuel boilers will ensure 

compliance with the emission standards 

under the conditions discussed below. 

We investigated the theoretical 

relationship between stack gas 

emissions and feedrate considering 

vapor phase metal equilibrium, the 

chlorine, mercury, and semivolatile 

metal feedrates for liquid fuel boilers in 

our data base, and the mercury and 

semivolatile emission standards for 

liquid fuel boilers.215 We considered 

sources equipped with dry particulate 

matter controls and sources equipped 

with wet particulate matter controls. 

Sources Equipped with Dry Controls. 

For sources equipped with dry controls 

other than activated carbon, mercury is 

not controlled. Thus, you must assume 

zero system removal efficiency. 

Consequently, if you are in the low Btu 

subcategory and comply with the 

mercury standard expressed as a mass 

concentration (μg/dscm), the mercury 

feedrate limit expressed as an MTEC 

(maximum theoretical emission 

concentration, μg/dscm) is equivalent to 

the emission standard.216 If you are in 

the high Btu subcategory and comply 

with the mercury standard expressed as 

a hazardous waste thermal emission 

concentration (lb/MM Btu), the mercury 

feedrate limit expressed as a hazardous 

waste thermal feed concentration (lb/ 

MM Btu) is also equivalent to the 

emission standard. 

For semivolatile metals, the 

theoretical relationship between 

emissions and feedrate indicates that 

downward extrapolation introduces 

only a trivial error’0.17% at an emission 

rate 100 times the standard irrespective 

of the level of chlorine present. Id. 

Nonetheless, to ensure the error is 

minimal and to be practicable, you 

should limit semivolatile emissions 

during the comprehensive performance 

test to five times the emission standard. 

Sources Equipped with Wet 

Scrubbers. For sources equipped with 

wet scrubbers, we conclude that the 

approach we use for semivolatile metals 

for dry scrubbers will also be 

appropriate to extrapolate a semivolatile 

metal feedrate limit for wet scrubbers. 

To ensure that downward extrapolation 

of the feedrate limit is conservative and 

to be practicable, you should limit 

semivolatile metal emissions during the 

comprehensive performance test to five 

times the emission standard. 

For mercury, ensuring control with 

wet systems is more complicated 

because the level of chlorine present 

affects the formation of mercuric 

chloride which is soluble in water and 

easily controlled by wet scrubbers. 

Elemental mercury has very low 

solubility in scrubber water and is not 

controlled. The worst-case situation for 

conversion of elemental mercury to 

soluble mercuric chloride would be 

when the chlorine MTEC is lowest and 

the mercury MTEC is highest. We 

conclude that downward extrapolation 

of mercury feedrates is conservative for 

feedstreams that contain virtually no 

chlorine, e.g., below an MTEC of 100 μg/ 

dscm. In addition, we conclude that 

downward extrapolation is 

appropriate 217 for boilers feeding 

chlorinated feedstreams provided that 

during the performance test: (1) 

Scrubber blowdown has been 

minimized and the scrubber water has 

reached steady-state levels of mercury 

prior to the test (e.g., by spiking the 

scrubber water); (2) scrubber water pH 

is minimized (i.e., you establish a 

minimum pH operating limit based on 

the performance test as though you were 

establishing a compliance parameter for 

the total chlorine emission standard); 

and (3) temperature of the scrubber 

water is maximized (i.e., you establish a 

maximum scrubber water temperature 

limit). 

J. Temporary Compliance With 

Alternative, Otherwise Applicable 

MACT Standards 

Comment: One commenter requests 

clarification on the requirements 

applicable to a source that switches to 

an alternative mode of operation when 

hazardous waste is no longer in the 

combustion chamber under the 

provisions of § 63.1206(b)(1)(ii). The 

commenter suggests that 

§ 63.1206(b)(1)(ii) can imply that the 

complete compliance strategy needs to 

be switched over to the alternative 

section 112 or 129 requirements, even 

though compliance with the Subpart 

EEE requirements for monitoring, 

notification, reporting, and 

recordkeeping remains environmentally 

protective under Subpart EEE. For 

example, the commenter notes that 

§ 63.1206(b)(1)(ii) could be incorrectly 

interpreted to require a source to 

comply with illogical requirements 

when the source temporarily switches to 

alternative, otherwise applicable 

standards, including standards testing 

and opacity monitoring under the 

alternative section 112 or 129 

requirements. The commenter states 

that this interpretation makes little 

sense because a source that temporarily 

changes its mode of operation will 

continue to do testing under Subpart 

EEE, Part 63, or, in the case of opacity, 

the alternative section 112 requirements 

for cement kilns would necessarily 

require duplicate systems and 

compliance with redundant limits 

because a source may already be using 

a bag leak detection system or a 

particulate matter detection system. The 

commenter suggests only requiring 

sources to comply with the otherwise 

applicable emission standards under the 

alternative section 112 or 129 

requirements while still operating under 

the various associated compliance 

requirements of Subpart EEE, part 63. 

Response: The commenter requests 

clarification of § 63.1206(b)(1)(ii), which 

states that if a source is not feeding 

hazardous waste to the combustor and 

the hazardous waste residence time has 

expired (i.e., the hazardous waste feed 

to the combustor has been cut off for a 

period of time not less than the 

hazardous waste residence time), then 

the source may elect to comply 

temporarily with alternative, otherwise 

applicable standards promulgated under 

the authority of sections 112 and 129 of 

the Clean Air Act.218 As we have 

explained in previous notices,219

sources that elect to invoke 

§ 63.1206(b)(1)(ii) to become 

temporarily exempt from the emission 

standards and operating requirements of 

Subpart EEE, Part 63, remain an affected 

source under Subpart EEE (and only 

Subpart EEE) until the source is no 

longer an affected source by meeting the 

requirements specified in Table 1 of 

§ 63.1200. Of course, a source can elect 

not to use the alternative requirements 

for compliance during periods when 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59499 

220However, the operating requirements do not 

apply during startup, shutdown, or malfunction 

provided that hazardous waste is not in the 

combustion chamber. See § 63.1206(b)(1)(i). 

they are not feeding hazardous waste, 

but, if so, the source must comply with 

all of the operating and monitoring 

requirements and emission standards of 

Subpart EEE at all times.220 To 

implement § 63.1206(b)(1)(ii) a source 

defines the period of compliance with 

the otherwise applicable sections 112 

and 129 requirements as an alternative 

mode of operation under § 63.1209(q). 

In order to be exempt from the emission 

standards and operating requirements of 

Subpart EEE, a source documents in the 

operating record that they are 

complying with the otherwise 

applicable Section 112 and 129 

requirements specified under 

§ 63.1209(q). 

The commenter recommends that the 

complete compliance strategy need not 

be switched over to the alternative 

section 112 and 129 requirements when 

temporarily switching to the alternative 

standards. In general, we disagree. The 

intent of § 63.1206(b)(1)(ii) is to ensure 

that a source is complying with all 

requirements of sections 112 and 129 as 

an alternative mode of operation in lieu 

of the requirements under Subpart EEE. 

In the 1999 final rule we stated that the 

source must comply with all otherwise 

applicable standards under the 

authority of sections 112 and 129. 

Specifically, the source must comply 

with all of the applicable notification 

requirements of the alternative 

regulation, comply with all of the 

monitoring, recordkeeping, and testing 

requirements of the alternative 

regulation, modify the Notice of 

Compliance (or Documentation of 

Compliance) to include the alternative 

mode(s) of operation, and note in the 

operating record the beginning and end 

of each period when complying with the 

alternative regulation. See 64 FR at 

52904. A source that elects to comply 

with otherwise applicable standards 

under § 63.1206(b)(1)(ii) must specify all 

requirements of those standards, not 

only the emission standards applicable 

under the sections 112 and 129 

standards, but also the associated 

monitoring and compliance 

requirements and notification, 

reporting, and recordkeeping 

requirements in the operating record 

under § 63.1209(q). 

The commenter suggests that a source 

should be able to comply with the 

otherwise applicable emission 

standards, while continuing to operate 

under the associated compliance 

requirements for the HAP under Subpart 

EEE. An example would be a cement 

kiln source complying with the dioxin 

and furan monitoring requirements 

under § 63.1209(k) of Subpart EEE for 

the dioxin and furan standards under 

§ 63.1343(d) under Subpart LLL. We did 

not determine, when promulgating the 

provisions of §§ 63.1206(b)(1)(ii) and 

63.1209(q)(1), that the monitoring 

provisions under Subpart EEE are 

equivalent to the associated monitoring 

requirements under the otherwise 

applicable 112 and 129 standards, or 

indeed, whether they are even wellmatched. Such a determination would 

require notice and opportunity for 

comment, which we have not provided. 

However, this should not be interpreted 

to mean that a similar determination 

could not be made on a site-specific 

basis given that the MACT general 

provisions allow a source to request 

alternative monitoring procedures under 

§ 63.8(f)(4). Certainly, a source can 

apply under this provision that the 

compliance requirements under Subpart 

EEE satisfy the associated monitoring 

requirements under the otherwise 

applicable 112 and 129 standards. 

We also disagree with the commenter 

that emissions testing under the 

alternative standards of sections 112 

and 129 is an example of an illogical 

requirement under § 63.1206(b)(1)(ii). 

Performance testing generally is 

required to demonstrate compliance 

with the emission standards and to 

establish limits on specified operating 

parameters to ensure compliance is 

maintained. In order to take advantage 

of the alternative under 

§ 63.1206(b)(1)(ii), a source needs to 

show that compliance with and 

establish operating parameter limits for 

the otherwise applicable standards of 

sections 112 and 129. Thus, testing in 

order to establish operating parameter 

limits will be necessary. However, this 

does not mean that a separate 

performance test with the alternative 

sections 112 or 129 standards is 

necessarily required. We note that a 

source can make use of the performance 

test waiver provision under § 63.7(h) of 

the general provisions to request that 

the performance test under the 

alternative sections 112 and 129 

standards be waived because the source 

is meeting the relevant standard(s) on a 

continuous basis by continuing to 

comply with Subpart EEE for the 

relevant HAP. This approach may be 

practicable for sources that can 

demonstrate that their level of 

performance during testing under 

Subpart EEE, including the associated 

operating and monitoring limits, will 

undoubtedly ensure continuous 

compliance with the emissions 

standards and the associated operating 

limits of alternative sections 112 and 

129 standards. 

Finally, the commenter notes that 

Subpart LLL (the alternative section 112 

standards for cement kilns) includes 

opacity monitoring while Subpart EEE 

may not. The commenter states that this 

unnecessarily would require duplicate 

systems and compliance with redundant 

limits because of the bag leak detection 

and particulate matter detection system 

requirements under Subpart EEE. We 

respond that Subpart LLL specifies 

opacity as a standard (see 

§ 63.1343(b)(2)), and, therefore, cement 

kilns subject to Subpart EEE must 

comply with the opacity standard when 

electing to comply temporarily with the 

requirements of Subpart LLL. We note 

that the opacity standard under Subpart 

EEE does not apply to cement kilns that 

are equipped with a bag leak detection 

system under § 63.1206(c)(8) and to 

sources using a particulate matter 

detection system under § 63.1206(c)(9). 

However, a cement kiln may use an 

opacity monitor that meets the detection 

limit requirements as the detector for a 

bag leak detection system or particulate 

matter detection system. See Part Four, 

Section VIII.A-C of the preamble. 

K. Periodic DRE Testing and Limits on 

Minimum Combustion Chamber 

Temperature for Cement Kilns 

Comment: Several commenters 

oppose the need for cement kilns that 

burn at locations other than the normal 

flame zone to demonstrate compliance 

with the destruction and removal 

efficiency (DRE) standard during each 

comprehensive performance test. These 

commenters recommend that EPA 

remove the requirement of 

§ 63.1206(b)(7)(ii) for cement kilns 

citing that existing rule provisions (i.e., 

the requirements under § 63.1206(b)(5) 

pertaining to changes that may 

adversely affect compliance) are 

sufficient to require additional DRE 

testing after changes are made that may 

adversely affect combustion efficiency. 

Commenters question EPA’s position 

that cement kilns that burn hazardous 

waste at locations other than the normal 

flame zone demonstrate a variability in 

DRE sufficient to justify the expense of 

re-testing for DRE with each 

performance test. Commenters point to 

EPA’s data base that includes DRE 

results from over 30 tests with nearly 

250 runs showing consistent DRE 

results, including sources burning 

hazardous waste at locations other than 

the normal flame zone, being achieved 

by cement kilns. The commenters note 

several burdens associated with DRE 

59500 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

221The DRE demonstration for these sources need 

be made only once during the operational life of a 

source, either before or during the initial 

comprehensive performance test, provided that the 

design, operation, or maintenance features do not 

change in a manner that could reasonably be 

expected to affect the ability to meet the DRE 

standard. See §§ 63.1206(b)(7) and 63.1207(c)(2)(ii). 

The source would ensure continued compliance by 

operating under the operating parameter limits 

established during this DRE test. 

222For example, Ash Grove Cement in Chanute, 

KS replaced their two wet process cement kilns 

with one preheater/precalciner kiln in 2001. Holcim 

Inc in Holly Hill, SC has also recently constructed 

a new preheater/precalciner kiln to replace two wet 

process cement kilns. Keystone Cement Company 

in Bath, PA is considering replacing their two wet 

process cement kilns with a new preheater/ 

precalciner kiln. See docket item OAR–2004–0022–

0384. 

223U.S. EPA, ‘‘Final Technical Support Document 

for HWC MACT Standards, Volume III: Selection of 

MACT Standards and Technologies,’’ Section 23.4, 

September 2005. 

testing that do not result in improved 

environmental benefit including the 

purchase of expensive exotic virgin 

chemicals for performance testing, the 

risks to workers and contractors 

associated with the handling of these 

chemicals, and increasing the length of 

operation at stressful kiln operating 

conditions necessary to conduct DRE 

testing at minimum combustion 

chamber temperatures. Alternatively, 

commenters recommend that EPA revise 

the DRE requirements such that periodic 

testing is no longer required for cement 

kilns (that burn at locations other than 

the normal flame zone) after they have 

successfully achieved the DRE standard 

over multiple testing cycles (e.g., two or 

three) under similar testing regimes. 

That is, the source should only be 

required to demonstrate compliance 

with the DRE standard a maximum of 

two or three times until the source (that 

burns at locations other than the normal 

flame zone) modifies the system in a 

manner that could affect the ability of it 

to achieve the DRE standard. 

Response: We are revising the 

requirements of § 63.1206(b)(7)(ii) such 

that cement kilns that feed hazardous 

waste at locations other than the normal 

flame zone need only demonstrate 

compliance with the DRE standard 

during three consecutive comprehensive 

performance tests provided that the 

source has successfully demonstrated 

compliance with the DRE standard in 

each test and that the design, operation, 

and maintenance features of each of the 

three tests are similar. These revisions 

do not affect sources that burn 

hazardous waste only in the normal 

flame zone.221

Prior to today’s change, we required 

sources that feed hazardous waste in 

locations other than the flame zone to 

perform periodic DRE testing every 5 

years to ensure that the DRE standard 

continues to be achieved over the life of 

the unit. See § 63.1206(b)(7)(ii). We 

justified this requirement because of 

concerns that sources that feed 

hazardous waste at locations other than 

the flame zone have a greater potential 

of varying DRE performance due to their 

hazardous waste firing practices. As we 

stated in the 1999 rule, we were 

concerned that the DRE may vary over 

time due to the design and operation of 

the hazardous waste firing system, and 

that those variations may not be 

identical or limited through operating 

limits set during a single DRE test 

(similar to what we concluded for 

sources that burn hazardous waste only 

in the normal flame zone). See 64 FR at 

52850. 

Commenters now question the need 

for subsequent DRE testing at cement 

kilns that feed hazardous waste at 

locations other than the normal flame 

zone once a cement kiln demonstrates 

compliance with the MACT DRE 

standard. The regulatory requirement 

for the destruction and removal 

efficiency standard has proved to be an 

effective method to determine 

appropriate process controls necessary 

for the combustion of hazardous waste. 

We are not convinced that only one DRE 

test is sufficient to ensure that a cement 

kiln that burns hazardous waste at 

locations other than the normal flame 

zone will continue to meet the DRE 

standard because temperatures are 

lower and gas residence times are 

shorter at the other firing locations. This 

is especially true given the industry 

trend to convert to the more thermally 

efficient preheater/precalciner kiln 

manufacturing process.222 Precalciner 

kilns use a secondary firing system (i.e., 

flash furnace) at the base of the 

preheater tower to calcine the raw 

material feed outside the rotary kiln. 

This results in two separate combustion 

processes that must be controlled ‘‘ one 

in the kiln and the other in the flash 

furnace. The gas temperature necessary 

for calcining the limestone raw material 

in the flash furnace is lower than the 

temperature required making the clinker 

product. We conclude, therefore, that it 

is necessary, in spite of the concerns 

raised by commenters, to retain periodic 

DRE testing to ensure continued 

compliance with the DRE standard 

necessary for the control of nondioxin/ 

furan organic HAP. 

We also acknowledge, however, the 

concerns raised by the commenters. Our 

DRE data base of operating cement kilns 

includes results from approximately 25 

DRE tests and nearly 200 runs.223 All 

data show compliance with the DRE 

standard. Of these, approximately onequarter of the data are from cement kilns 

that burned hazardous waste at 

locations other than the normal flame 

zone (e.g., injecting waste at midkiln in 

a wet process kiln), but we do not have 

DRE results from every operating 

cement kiln. Considering available DRE 

data and the concerns of the 

commenters, we believe that DRE 

testing during three consecutive 

comprehensive performance tests is 

sufficient to provide needed certainty 

about DRE performance while reducing 

the overall costs and toxic chemical 

handling concerns to the regulated 

source. Thus, we are revising the 

requirements of § 63.1206(b)(7)(ii) such 

that cement kilns that feed hazardous 

waste at locations other than the normal 

flame zone need only demonstrate 

compliance with the DRE standard 

during three consecutive comprehensive 

performance tests provided that the 

source has successfully demonstrated 

compliance with the DRE standard in 

each test and that the design, operation, 

and maintenance features of each of the 

three tests are similar. If a facility 

wishes to operate under new operating 

parameter limits that could be expected 

to affect the ability to meet the DRE 

standard, then the source would need to 

conduct another DRE test. Once the 

facility has conducted another three 

DRE tests under the new operating 

limits, then subsequent DRE testing 

would not be required. Accordingly, we 

are revising the requirements of 

§ 63.1206(b)(7)(ii). 

Comment: Several commenters 

support EPA’s proposal to delete the 

requirement to establish an operating 

limit on the minimum combustion 

chamber temperature for dioxin/furans 

under § 63.1209(k)(1) for cement kilns. 

These commenters point to the high 

temperatures of approximately 2500°F 

required to make the clinker product. 

These high temperatures are fixed by 

the reaction kinetics and 

thermodynamics occurring in the 

burning zone and cannot be reduced 

below minimum values at the whim of 

the operator and still make a marketable 

product. In addition to deleting the 

minimum combustion chamber 

temperature limit for dioxin/furans, 

commenters also recommend, for 

similar reasons, that EPA delete the 

minimum combustion chamber 

temperature requirement under 

§ 63.1209(j)(1) associated with the 

destruction and removal efficiency 

standand. Commenters note that 

demonstrating the minimum 

temperature requires operating under 

stressful operating conditions that can 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59501 

224Under the interim standards, cement kilns 

must establish and continuously monitor limits on 

minimum gas temperature in the combustion zone 

for both the dioxin/furan and DRE standards. As 

discussed in the preceding paragraph, a source may 

not need to conduct DRE testing during each 

comprehensive performance test. If DRE testing is 

required, then the source will need to establish a 

minimum combustion zone temperature limit as 

required under the DRE standard. However, if DRE 

testing is not required, then (according to the 

changes made today) the cement kiln will not be 

required to establish the minimum combustion 

chamber temperature limit under the dioxin/furan 

standard during a subsequent comprehensive 

performance test. The minimum combustion 

chamber temperature operating limit established 

during previous testing remains in effect, however. 

225For example, dioxin/furan emissions from 

source number 307 range from a low of 0.024 to a 

high of 57.9 ng TEQ/dscm. See ‘‘Source Category 

Summary Sheets’’ available in the docket or 

USEPA, ‘‘Final Technical Support Document for 

HWC MACT Standards, Volume II: HWC Data 

Base,’’ September 2005. 

226These sources do, however, need to comply 

with the carbon monoxide or hydrocarbon 

standards, as well as the DRE standard as surrogates 

to comply with today’s dioxin and furan emissions 

control requirements. 

lead to upset conditions and potentially 

damage the integrity of the 

manufacturing equipment. Other 

commenters oppose, however, deletion 

of the minimum combustion chamber 

temperature limit for cement kilns. 

These commenters state that all 

combustion sources, including cement 

kilns, must meet a minimum 

combustion chamber temperature limit 

to control dioxin/furans and organic 

HAP emissions given that some cement 

kilns feed hazardous waste at locations 

other than the high temperature clinkerforming zone of the kiln. 

Response: We are deleting as 

proposed the requirement to establish a 

minimum combustion chamber 

temperature limit for dioxin/furan 

under § 63.1209(k)(2) for cement kilns. 

See 69 FR at 21343. However, we retain 

the requirement for cement kilns to 

establish and comply with a minimum 

combustion chamber temperature limit 

for the destruction and removal 

efficiency standard under 

§ 63.1209(j)(1).224

As discussed in the 1999 rule, 

nondioxin/furan organic hazardous air 

pollutants are controlled by the DRE 

standard and the carbon monoxide and 

hydrocarbon standards. See 64 FR at 

52848–52852. This standard was not 

reopened in the present rulemaking. We 

note, however, that the DRE standard 

determines appropriate process controls 

necessary for the combustion of 

hazardous waste. Establishing and 

monitoring a minimum temperature of 

the combustion chamber is a principal 

factor in ensuring combustion efficiency 

and destruction of toxic organic 

compounds. As discussed in the 

previous response, we believe this is 

especially true given the industry trend 

to convert to the more thermally 

efficient preheater/precalciner kiln 

manufacturing process, which use two 

separate combustion processes. We 

conclude that it is necessary, in spite of 

the concerns raised by commenters, to 

retain the minimum combustion 

chamber temperature limit as related to 

the DRE standard to ensure that 

combustion efficiency within the entire 

kiln system is maintained for the control 

of nondioxin/furan organic HAP. 

However, we acknowledge the 

difficulties that cement kiln operators 

face in establishing a minimum 

combustion chamber temperature limit, 

including the stressful operating 

conditions necessary to establish the 

limit. As we stated at proposal, our data 

indicate that limiting the gas 

temperature at the inlet to the 

particulate matter control device is a 

critical parameter in controlling dioxin/ 

furan emissions in cement kilns. See 69 

FR at 21344. Therefore, we believe that 

an operating limit on the minimum 

combustion chamber temperature is less 

important to ensure compliance with 

the dioxin/furan standard than to ensure 

compliance with the DRE standard. 

Thus, we remove the requirement to 

establish a minimum combustion 

chamber temperature limit for dioxin/ 

furan under § 63.1209(k)(2) for cement 

kilns. This change does not affect the 

other operating parameter limits under 

§ 63.1209(k) that must be established for 

dioxin/furans, including a limit on the 

gas temperature at the inlet to the 

particulate matter control device. 

Comment: One commenter supports 

the use of previous minimum 

combustion zone temperature data, 

regardless of the test age, in lieu of 

conducting new, stressful DRE testing. 

That is, if a cement kiln is required to 

conduct future DRE tests, then the 

source should not have to re-establish a 

minimum combustion chamber 

temperature limit during the new test. 

Rather, the source should have the 

option to submit minimum combustion 

chamber temperature results in lieu of 

re-establishing the limit. 

Response: We reject the commenter’s 

suggestion for reasons discussed above. 

We believe that it is necessary to retain 

the link between the minimum 

combustion chamber temperature limit 

and the DRE test itself, which will 

ensure that the combustion efficiency of 

the entire system will be maintained for 

the control of nondioxin/furan organic 

HAP. 

Comment: One commenter supports 

deletion of the minimum combustion 

chamber temperature requirement for 

dioxin/furan under § 63.1209(k)(2) for 

lightweight aggregate kilns. 

Response: We reject the commenter’s 

suggestion. Our data base of dioxin/ 

furan emissions data shows substantial 

variability in test results at each 

source.225 This may indicate that factors 

other than limiting kiln exit gas 

temperatures may be influencing 

significantly dioxin/furan formation in 

lightweight aggregate kilns. As such, we 

conclude that removing the minimum 

combustion chamber temperature limit 

would not be appropriate at this time 

due to the uncertain nature of dioxin/ 

furan formation in lightweight aggregate 

kilns. Thus, we are retaining the 

requirement to establish a minimum 

combustion chamber temperature limit 

for dioxin/furans under § 63.1209(k)(2) 

and § 63.1209(j)(1) for lightweight 

aggregate kilns. 

L. One Time Dioxin and Furan Test for 

Sources Not Subject to a Numerical 

Limit for Dioxin and Furan 

Comment. Commenters support the 

one-time dioxin/furan test for sources 

not subject to a numerical dioxin and 

furan standard. Commenters agree that 

previous testing should be allowed to 

document the one time test. 

Response. The final rule requires 

sources that are not subject to a standard 

with numerical dioxin and furan 

levels 226 to conduct a one-time dioxin 

and furan test as part of their initial 

comprehensive performance testing: 

lightweight aggregate kilns that elect to 

control the gas temperature at the kiln 

exit rather than comply with a dioxin/ 

furan standard of 0.20 ng TEQ/dscm, 

solid fuel boilers, liquid fuel boilers 

with wet or no air pollution control 

systems, and HCl production furnaces. 

We will use these data as part of the 

process of addressing residual risk 

under CAA section 112(f) and 

evaluating future MACT standards 

under section 112(d)(6). The results may 

also be used as part of the RCRA 

omnibus permitting process. 

Comment. EPA proposed that source 

not subject to a numerical dioxin and 

furan limit conduct a dioxin and furan 

test under worst-case conditions. 

Commenters state that operating under 

worst-case conditions is inconsistent 

with the CAA Section 112(f) process, 

which is to consider actual (i.e., normal) 

emissions. Commenters suggest that we 

require the tests be conducted under 

normal to above normal conditions. 

Response. Section 112 (f) standards 

evaluate allowable emission levels, 

although actual emissions levels may 

also be considered. See 70 FR at 19998–

59502 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

227See USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume IV: Compliance,’’

July 1999, Chapter 3. 

228 Dioxin/furan are some of the most toxic 

compounds known due to their bioaccumulation 

potential and wide range of health effects, including 

carcinogenesis, at exceedingly low doses. Exposure 

via indirect pathways is a chief reason that 

Congress singled out dioxin/furan for priority 

MACT control in CAA section 112(c)(6). See S. Rep. 

No. 128, 101st Cong. 1st Sess. at 154–155. 

19999 (April 15, 2005). Although we 

agree with the commenter that, in 

general, emissions in the range of 

normal to maximum are considered for 

section 112(f) determinations, we 

believe that dioxin/furan testing to 

provide information of use in section 

112(f) residual risk determinations 

should be conducted under conditions 

where controllable operating conditions 

are maximized to reflect the full range 

of expected variability of those 

parameters which can be controlled. 

This is because dioxin/furan emissions 

may relate exponentially with the 

operating conditions that affect 

formation. We believe that dioxin/furan 

emissions relate exponentially with gas 

temperature at the inlet to an ESP or 

fabric filter,227 and are concerned that 

emissions may also relate exponentially 

with the operating parameters 

(discussed below) that affect emissions 

from sources subject to the one-time 

dioxin/furan emissions test. Emissions 

testing under operating conditions that 

are in the range of ‘‘normal to above 

normal’’ may be exponentially lower 

than emissions under operating 

conditions reflecting maximum daily 

variability of the source. Since testing 

under normal operating conditions 

makes no effort to assess operating 

variability, emissions during such 

testing would fail to reflect expected 

daily maximum operating variability 

and so would not represent timeweighted average emissions and would 

under-represent health risk from 

chronic exposure. 

Although we acknowledge that 

sources will not exhibit maximum 

operating variability each day of 

operation, we believe that it is 

important to assess the upper range of 

emissions that these sources may emit 

to properly evaluate under section 

112(f) whether the MACT standards for 

dioxin/furan for these sources (i.e., 

absent a numerical emission standard) 

protect public health with an ample 

margin of safety.228

In addition, we note that emissions 

reflecting daily maximum variability 

would be most useful for section 

112(d)(6) determinations in the future 

because they would represent the full 

range of emissions variability that 

results from controllable operating 

conditions. 

For these reasons, the final rule 

requires sources to test under feed and 

operating conditions that are most likely 

to reflect maximized expected daily 

variability of dioxin/furan emissions, as 

proposed. Such testing is similar to a 

comprehensive performance test to 

demonstrate compliance with a 

numerical dioxin/furan emission 

standard where operating limits would 

be established based on operations 

during the test. As a practical matter, 

however, we note that many of the 

operating parameters discussed below, 

although controllable to some extent, 

cannot be quantified and cannot be 

controlled to replicate the condition in 

a future test. In addition, some operating 

parameters we identify may not have as 

strong a relationship to dioxin/furan 

emissions as others. Consequently, the 

operating conditions are generally 

described subjectively. 

Based on currently available research, 

you should consider the following 

factors to ensure that you conduct the 

test under operating conditions that 

seek to fully reflect maximum daily 

variability of dioxin/furan emissions: (1) 

Dioxin/furan testing should be 

conducted at the point in the 

maintenance cycle for a boiler when the 

boiler tubes are more fouled and sootladen, and not after maintenance 

involving soot or ash removal from the 

tubes; (2) dioxin/furan testing should be 

performed following (or during) a 

period of feeding normal or greater 

quantities of metals; (3) dioxin/furan 

testing should be performed while 

feeding normal or greater quantities of 

chlorine; (4) the flue gas temperature in 

some portion of the heat recovery 

section of a boiler should be within the 

dioxin formation temperature window 

of 750 to 400°F during the testing; (5) 

the testing should not be conducted 

under optimal combustion conditions 

(e.g., combustion chamber temperature 

should be in the range of normal to the 

operating limit; hazardous waste 

feedrate and combustor through put 

should be in the range of normal to 

maximum); (6) for units equipped with 

wet air pollution control systems, the 

testing should be conducted after a high 

solids loading has developed in the 

scrubber system (consistent with normal 

operating cycles); and (7) for solid fuel 

boilers, the sulfur content of the coal 

should be equivalent to or lower than 

normal coal sulfur levels (within the 

range of sulfur levels that the source 

utilizes), and the gas temperature at the 

inlet to the electrostatic precipitator or 

fabric filter should be close to the 

operating limit. In addition, unless 

sulfur compounds are routinely fed to 

the boler, dioxin/furan testing should 

not be performed after a period of firing 

high sulfur fuel or injection of sulfur 

additives. See 69 FR at 21308 for more 

information. 

Comment: Commenters state that we 

should delete the one-time testing 

requirement for dioxin and furans. The 

Clean Air Act at Section 114(a)(1)(D) 

allows EPA to request ‘‘any person’’ to 

sample emissions. Applying the Section 

114 authority to an entire subcategory of 

sources is overly broad, particularly in 

the context of having already 

established appropriate surrogates for 

dioxin and furan in a MACT rule. 

Commenters are not aware of EPA 

taking this approach in previous efforts. 

(Section 114 requests have focused on 

collecting existing information from 

sources facing future MACT standards). 

Commenters oppose this approach 

because it established a precedent they 

do not favor, and will bring about 

significant costs and difficulties to 

provide the data. They suggest that we 

delete the proposed requirements for a 

one-time dioxin and furan test. 

Response: We believe that section 

114(a)(1)(D) of the Clean Air Act 

provides us the authority to require 

sources to conduct a one time test to 

generate data which can be used in 

making later section 112 (f) 

determinations for the source category. 

The results of the testing may also 

inform the section 112(d)(6) review and 

the RCRA omnibus permitting 

processes. The fact that section 114 

specifically indicates that a purpose of 

gathering information under section 114 

is to assist in developing national rules 

indicates that the provision can have 

wide sweep extending to all sources in 

a category. See 69 FR at 21307–308 for 

a full explanation. 

We believe a dioxin and furan test 

costs approximately $10,000 when 

conducted along with other testing. We 

do not believe this cost is significant, 

and sources must only perform this test 

once, not more frequently as would be 

the case to ensure compliance with a 

standard. We also allow sources to use 

prior testing to meet this requirement, 

and allow sources to use ‘‘data in lieu’’

so they can test one source if they have 

more than one of the same identical 

sources. 

We do not believe that obtaining these 

data will be difficult, and note that the 

permitting authority can assist sources 

in planning their tests. 

M. Miscellaneous Compliance Issues 

Comment: Several commenters state 

that § 63.1206(c)(3)(iv) requiring an 

automatic waste feed cutoff (AWFCO) if 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59503 

229For example, see 69 FR at 21268. 

a parameter linked to the AWFCO is 

exceeded should be revised to reflect 

§ 63.1206(c)(2)(v)(A)(1). Section 

63.1206(c)(2)(v)(A)(1) states that, if the 

AWFCO is affected by a malfunction 

such that the malfunction itself prevents 

immediate and automatic cutoff of the 

hazardous waste feed, you must cease 

feeding hazardous waste as quickly as 

possible. 

Response: We agree with commenters 

in principle, but note that the automatic 

waste feed cutoff system may fail for 

reasons other than a malfunction. That 

is, equipment or other failures are 

malfunctions only if they meet the 

definition of malfunction at § 63.2. 

Failures that result from improper 

maintenance or operation are not 

malfunctions. Consequently, the final 

rule revises § 63.1206(c)(3)(iv) to state 

that if the AWFCO is affected by a 

failure such that the failure itself 

prevents immediate and automatic 

cutoff of the hazardous waste feed, you 

must cease feeding hazardous waste as 

quickly as possible. Revised 

§ 63.1206(c)(3)(iv) does not refer to 

malfunctions, however, because the 

AWFCO system may fail for reasons 

other than a malfunction. The reference 

in § 63.1206(c)(2)(v)(A)(1) to 

malfunctions is appropriate because that 

paragraph addresses requirements 

during malfunctions. 

Comment: Several commenters note 

that the proposed rule did not include 

a sunset provision for the Interim 

Standards applicable to incinerators, 

cement kilns, and lightweight aggregate 

kilns after the compliance date of the 

standards we promulgate today (i.e., the 

‘‘permanent replacement standards’’). 

Commenters are concerned that, 

although the Agency intends for the 

replacement standards to be more 

stringent than the Interim Standards, 

that may not be the case in all situations 

because of the different format used for 

some of the replacement standards. For 

example, several of the replacement 

standards for cement kilns and 

lightweight aggregate kilns are 

expressed as hazardous waste thermal 

emissions. 

Response: Although we are 

promulgating the replacement standards 

in a format that ensures they are not less 

stringent than the Interim Standards, we 

agree with commenters that not 

sunsetting the Interim Standards may 

lead to confusion as to which standards 

apply. Consequently, we include a 

sunset provision in today’s rule for the 

Interim Standards. The Interim 

Standards will be superseded by the 

final rule promulgated today on the 

compliance date. 

We note, however, that the Interim 

Standards for total chlorine continue to 

apply to sources that establish healthbased limits for total chlorine under 

§ 63.1215. Consequently, we have 

incorporated the total chlorine Interim 

Standards in § 63.1215 as they apply as 

a cap to the health-based emission 

limits. 

Comment: Several commenters state 

that the rule should allow extrapolation 

of ash and chlorine feedrates to 

establish feedrate limits corresponding 

to the particulate matter and total 

chlorine standards. Commenters believe 

the rationale we use to allow 

extrapolation of metals feedrates is also 

applicable to ash and chlorine. 

Response: The final rule does not 

allow you to extrapolate ash and 

chlorine feedrates achieved during the 

comprehensive performance test to 

establish feedrate limits comparable to 

the particulate matter and total chlorine 

emission standards. 

We do not allow extrapolation of ash 

to the particulate matter emission 

standard because particulate matter (i.e., 

soot) may form in the combustor, 

particularly at times of unstable 

combustion conditions. Consequently, 

extrapolating from ash feedrates may 

underestimate particulate matter 

emissions and may not ensure 

compliance with the particulate matter 

emission standard. 

We do not allow extrapolation of 

chlorine feedrates to the total chlorine 

emission standard because chlorine 

feedrate is an operating parameter limit 

to ensure compliance with the 

semivolatile metal emission standard. 

Because an increase in chlorine feedrate 

can increase the volatility of 

semivolatile metals and we do not know 

the precise relationship among chlorine 

feedrate, metal volatility, and metals 

emissions, extrapolating the chlorine 

feedrate achieved during the 

comprehensive performance test to a 

feedrate comparable to the total chlorine 

emission standard may not ensure 

compliance with the semivolatile metal 

emission standard. If a source complies 

with the semivolatile metals emission 

standard under § 63.1207(m)(2) where 

the performance test is waived, 

however, by assuming zero system 

removal efficiency and limiting the 

semivolatile feedrate (expressed as a 

maximum theoretical emission 

concentration) to the level of the 

emission standard, the source may 

request under § 63.1209(g)(1) to 

extrapolate chlorine feedrates during the 

comprehensive performance test up to 

the total chlorine emission standard. 

Comment: Several commenters state 

that the proposed regulatory language 

under §§ 63.1206(b)(9)(i) and 

63.1206(b)(10)(i) is inconsistent with the 

proposed preamble, which states that 

sources should be allowed to petition 

for alternative standards provided they 

submit information showing that HAP 

contributions to emissions from the raw 

materials are preventing the source from 

achieving the emissions standard 

though the source is using MACT 

control.229 The commenters state that 

the proposed regulatory language, 

despite the intent signaled in the 

proposed preamble, inappropriately 

excludes the provisions of 

§§ 63.1206(b)(9)(i) and 63.1206(b)(10)(i) 

as an alternative option when 

complying with the replacement 

emission standards under §§ 63.1220 

and 63.1221. 

Response: We agree with the 

commenters. The proposed regulatory 

text inadvertently excluded the 

alternative standard provisions from use 

by cement and lightweight aggregate 

kilns under the replacement standards. 

Accordingly, we are revising the 

introductory text of §§ 63.1206(b)(9)(i) 

and 63.1206(b)(10)(i) by making the 

alternative standards available under 

the replacement standards. 

Comment: One commenter states that 

the availability of the alternative 

standard for mercury under 

§ 63.1206(b)(10)(i) should not be 

conditioned upon mercury being 

present only at levels below the 

detection limit in raw materials, as 

specified under § 63.1206(b)(10)(i)(B). 

The commenter suggests that the 

approach for mercury should be the 

same as for other HAP such as semi- and 

low volatile metals under 

§ 63.1206(b)(10)(i)(A). 

Response: The commenter misreads 

the alternative standard provisions 

under § 63.1206(b)(10)(i). We note that 

§ 63.1206(b)(10) includes two separate 

provisions for cement kilns. The first 

provision allows sources to petition for 

an alternative standard when a source 

cannot achieve a standard because of 

HAP metal or chlorine concentrations in 

their raw material feedstocks cause an 

exceedance of a standard despite the 

source’s use of MACT control. See 

§ 63.1206(b)(10)(i)(A). The term 

‘‘regulated metals’’ specified in 

§ 63.1206(b)(10)(i)(A) includes mercury, 

semivolatile metals, and low volatile 

metals. The second provision allows a 

source to petition for an alternative 

mercury standard when mercury is not 

present at detectable levels in the 

source’s raw materials. 

§ 63.1206(b)(10)(i)(B). These two 

provisions are indeed separate as 

59504 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

discussed in the 1999 rule. See 64 FR at 

52962–967. Also note that the 

conjunction separating paragraphs 

(b)(10)(i)(A) and (b)(10)(i)(B) is ‘‘or,’’ not 

‘‘and.’’

Given the potential confusion of the 

term ‘‘regulated metals,’’ we are 

clarifying the regulatory text by 

specifying the three metal HAP 

volatility groups that comprise the term 

‘‘regulated metals.’’ See revised 

§ 63.1206(b)(10)(i)(A). Finally, given 

that the alternative standard provisions 

are similar for lightweight aggregate 

kilns, we are also clarifying 

§§ 63.1206(b)(9)(i)(A) and (b)(9)(iv). 

IX. Site-Specific Risk Assessment 

Under RCRA 

A. What Is the Site-Specific Risk 

Assessment Policy? 

The Site-Specific Risk Assessment 

(SSRA) Policy has undergone several 

revisions since its inception in the 1993 

draft Combustion Strategy. Currently, it 

is the same policy as we expressed in 

the 1999 final rule preamble. In the 

1999 rule, we recommended that for 

hazardous waste combustors subject to 

the Phase 1 MACT standards, permitting 

authorities should evaluate the need for 

an SSRA on a case-by-case basis. 

Further, while SSRAs are not 

anticipated to be necessary for every 

facility, they should be conducted 

where there is some reason to believe 

that operation in accordance with the 

MACT standards alone may not be 

protective of human health and the 

environment. For hazardous waste 

combustors not subject to the Phase 1 

standards, we continued to recommend 

that SSRAs be conducted as part of the 

RCRA permitting process. See 64 FR 

52841. Since 1999, we have provided 

additional clarification of the 

appropriate use of the SSRA policy and 

technical guidance in an April 10, 2003 

memorandum from OSWER’s Assistant 

Administrator to the EPA Regional 

Administrators entitled, ‘‘Use of the 

Site-Specific Risk Assessment Policy 

and Guidance for Hazardous Waste 

Combustion Facilities’’ (see Docket # 

OAR–2004–0022–0083). Most 

importantly, in this memorandum we 

reiterated that where a permitting 

authority concludes that a risk 

assessment is necessary for a particular 

combustor, the basis for this decision 

must be substantiated in each case. The 

factual and technical basis for any 

decisions to conduct a risk assessment 

must be included in the administrative 

record for the facility per 40 CFR 124.7, 

124.8, 124.9, and 124.18. In addition, if 

the facility, or any other party, files 

comments on a draft permit decision 

objecting to the permitting authority’s 

conclusions regarding the need for a risk 

assessment, the permitting authority 

must respond fully to the comments. 

Any permit conditions determined to be 

necessary based either on the SSRA, or 

because the facility declined to conduct 

an SSRA, also must be documented and 

supported in the administrative record. 

Today, we are codifying additional 

regulatory language providing authority 

for SSRAs while maintaining the same 

basic SSRA policy. It is important to 

note that all of the requirements of Part 

124 referred to above will continue to 

apply to actions taken in accordance 

with the additional regulatory language 

we are codifying. The SSRA regulatory 

provisions, which establish that the 

need for an SSRA should be determined 

on a case-by-case basis, apply equally to 

both Phase 1 and Phase 2 sources. 

B. Why Might SSRAs Continue To Be 

Necessary for Sources Complying With 

Phase 1 Replacement Standards and 

Phase 2 Standards? 

EPA conducted a national evaluation 

of human health and ecological risk for 

the MACT standards as proposed in the 

1996 NPRM and then revised the 

evaluation to include more facilities for 

the 1999 final rulemaking. Based on the 

results of the final national risk 

evaluation for hazardous air pollutants 

(excluding non-dioxin products of 

incomplete combustion), we concluded 

that sources complying with the MACT 

standards generally would not pose an 

unacceptable risk to human health or 

the environment. For today’s final rule, 

we did not conduct another national 

risk assessment as we did for the 1999 

rule. Rather, for both the April 20, 2004 

NPRM and today’s final rule we 

conducted a comparative risk analysis, 

comparing the Phase 1 Replacement and 

Phase 2 Standards to the 1999- 

promulgated Phase 1 Standards, to 

determine if there were any significant 

differences that might influence or 

impact the potential risk. Similar to the 

proposal, the comparative analysis 

conducted for today’s final rule focused 

on several key characteristics: emission 

rates, stack height, stack gas buoyancy, 

meteorological conditions (which 

include a number of variables), 

population parameters including 

density and radial distribution, and 

correlations among the characteristics 

themselves. The results of the 

comparative analysis suggest that the 

MACT standards for both Phase 1 and 

Phase 2 sources are generally protective. 

Therefore, separate national emissions 

standards under RCRA are unnecessary. 

See Part Seven: How Does the Final 

Rule Meet the RCRA Protectiveness 

Mandate? Although we have concluded 

that the Phase 1 Replacement and Phase 

2 standards are generally protective, as 

we discussed in the 2004 proposal (69 

FR 21325), there may be instances 

where we cannot assure that emissions 

from each source will be protective of 

human health and the environment, and 

therefore an SSRA may be necessary. 

Furthermore, it should be noted that, 

just as for the risk assessment for the 

1999 rule, the comparative analysis does 

not account for cumulative emissions at 

a source or background exposures from 

other sources. 

Before discussing factors that may 

lead permit authorities to consider 

whether or not to conduct an SSRA, it 

should be noted that the Agency 

generally does not expect that facilities 

that have conducted risk assessments 

will have to repeat them. As we 

explained in the 1999 final rule 

preamble, changes to comply with the 

MACT standards should not cause an 

increase in risk for the vast majority of 

facilities given that the changes will 

likely be the addition of pollution 

control equipment or a reduction in the 

hazardous waste being burned (see 64 

FR 52842). Instances where a facility 

may need to repeat a risk assessment 

would be related to changes in 

conditions that would likely lead to 

increased risk. For example, if the only 

changes at a facility relate to the 

exposed population (a new housing 

development is constructed within a 

few square miles of the source), what 

was once determined to be protective 

under a previous risk assessment may 

now be beyond acceptable levels. 

Another example would be where a 

hazardous waste burning cement kiln 

that previously monitored hydrocarbons 

in the main stack elects to install a midkiln sampling port for carbon monoxide 

or hydrocarbon monitoring to avoid 

restrictions on hydrocarbon levels in the 

main stack. Thus, the stack hydrocarbon 

emissions may increase (64 FR 52843, 

footnote 29). In such situations, we 

would anticipate that the risk 

assessment would not have to be 

entirely redone. It may be as limited as 

collecting relevant new data for 

comparison purposes, leading to a 

decision not to repeat any portion of a 

risk assessment. Or, it may be more 

inclusive such that modifications would 

be made to specific inputs to or aspects 

of the risk assessment using data from 

a previous risk assessment, risk burn or 

comprehensive performance test. In 

recognition of this, we have added an 

additional factor to the list of factors at 

§ 270.10(l)(1) to indicate that a 

previously conducted risk assessment 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59505 

230The comparative analysis did not specifically 

suggest concern as it has for other source categories, 

but per the reference to the proposal, we have some 

concern regarding the protectiveness of the 

standard. 

231There is ongoing uncertainty in cancer and 

other health effects levels for chlorinated dioxins 

and furans. 

232Uncertainties stem from a lack of information 

regarding the behavior of mercury in the 

environment and a lack of sufficient emissions data 

and parameter values (e.g., bioaccumulation values) 

for nondioxin products of incomplete combustion. 

See 64 FR 52840–52841. 

233Currently, there are only five area sources that 

this may apply to; they are interim status units in 

the process of conducting an SSRA as part of their 

final permits. 

234An exception would be the semivolatile metal 

Interim standard for existing cement kilns, which 

is less stringent than the 1999 final standard. As we 

noted, permit authorities may consider the need for 

an SSRA as a result. 

would be relevant in evaluating changes 

in conditions that may lead to increased 

risk. The factor reads as follows: 

‘‘Adequacy of any previously conducted 

risk assessment, given any subsequent 

changes in conditions likely to affect 

risk.’’ The following discussion is 

intended mainly to address facilities 

that have not yet conducted an SSRA 

(i.e., where it has been determined that 

one is needed). 

In the proposal we discussed our 

conclusion that almost all of the 

proposed standards for Phase 1 sources 

were equivalent to or more stringent 

than the 1999 final standards, with the 

exception of the mercury standard for 

new and existing LWAKs and the total 

chlorine standard for new LWAKs. 

However, there are additional standards 

for Phase 1 sources finalized in today’s 

rulemaking that are less stringent than 

the 1999 final standards. In addition to 

those discussed in the proposal, the 

following standards are less stringent 

than the 1999 final standards: mercury 

for new cement kilns and semi-volatile 

metals for existing cement kilns; dioxin/ 

furan for existing and new LWAKs, 

mercury for existing and new LWAKs, 

and total chlorine for existing and new 

LWAKs. Because these standards exceed 

the levels which were evaluated in the 

1999 national risk assessment, 

especially with respect to mercury and 

dioxin/furan standards for which the 

national risk assessment showed high 

end risks at or near levels of concern, 

permit authorities may decide on a caseby-case basis that an SSRA is 

appropriate to determine whether the 

less stringent Replacement standards are 

protective. In addition, the comparative 

analysis results suggest concern 

regarding the dioxin/furan standard for 

LWAKs and thus, permit authorities 

may consider site-specific factors in 

determining whether the standard is 

sufficiently protective. 

Specific to Phase 2 sources, we 

mentioned earlier that we conducted the 

same comparative risk analysis for 

Phase 2 sources as we did for Phase 1 

sources (i.e., by comparing the Phase 2 

standards to the 1999 final standards for 

Phase 1 sources). Although several 

MACT standards for Phase 2 sources are 

more stringent than the BIF standards 

under RCRA, there are a few MACT 

standards that may be cause for concern 

on a case-by-case basis, as they are 

either less stringent than some of the 

1999 final standards or the comparative 

risk analysis suggests concern. They are: 

The particulate matter standard (and 

certain metals such as antimony and 

thallium), mercury standard, and total 

chlorine standard for solid fuel-fired 

boilers (SFBs); the dioxin/furan 

standard (carbon monoxide or total 

hydrocarbon as surrogate controls, 

versus a numerical standard) for HCl 

production furnaces; and the dioxin/ 

furan standard for liquid fuel-fired 

boilers (LFBs) with dry APCDs. In 

addition, dioxin/furan emissions data 

for LFBs with wet or no APCDs indicate 

an observed level (1.4 ng TEQ/dscm) of 

more than three times the highest 

dioxin/furan standard evaluated in the 

1999 national risk assessment (69 FR 

21285).230 Thus, these standards may 

warrant site-specific risk consideration, 

especially with respect to the dioxin/ 

furan standards. That is, due to the 

complexity of the dioxin/furan 

formation mechanism and given the 

toxicity of dioxin/furans,231 an SSRA 

may be needed based on the specific 

emission levels of each source not 

subject to a numerical standard. For 

additional discussion on the 

protectiveness of standards, please refer 

to Part Seven: How Does the Final Rule 

Meet the RCRA Protectiveness Mandate? 

There are also site-specific factors 

beyond the standards that can be 

important to the SSRA decision making 

process. As discussed in the proposal, 

examples include a source’s proximity 

to a water body or endangered species 

habitat, repeated occurrences of 

contaminant advisories for nearby water 

bodies, the number of hazardous air 

pollutant emission sources within a 

facility and the surrounding 

community, whether or not the waste 

feed to the combustor is made up of 

persistent, bioaccumulative or toxic 

contaminants, and sensitive receptors 

with potentially significantly different 

exposure pathways, such as Native 

Americans (69 FR 21326). Also, there 

are several uncertainties inherent in the 

1999 national risk assessment.232 Thus, 

the same uncertainties related to the fate 

and transport of mercury in the 

environment and the biological 

significance of mercury exposures in 

fish (i.e., once mercury has been 

transformed into methylmercury, it can 

be ingested by the lower trophic level 

organisms where it can bioaccumulate 

in fish tissue), as well as the risk posed 

by non-dioxin products of incomplete 

combustion, remain today and may 

influence a permitting authority’s 

decision. Last, we are finalizing the 

option for Phase 2 area sources to 

comply with specific MACT standards 

as provided by CAA § 112(c)(6) specific 

pollutants authority. These area sources 

may need to conduct an SSRA for the 

remaining RCRA standards that they 

choose to comply with (i.e., since they 

do not address the potential risk from 

indirect exposures to long-term 

deposition of metals onto soils and 

surface waters).233

In addition to the examples provided 

in the previous paragraph, we also 

expressed that an SSRA may be 

necessary with respect to the proposed 

thermal emission standards. With 

respect to Phase 1 sources, we had 

noted in the proposal that the thermal 

emission standards for semi-volatile and 

low volatile metals for cement kilns and 

LWAKs may be of concern because they 

directly address emissions attributable 

to hazardous waste versus a source’s 

total HAP metal emissions. See 69 FR 

21326. However, we are requiring 

sources to comply with both the thermal 

emission standards and the Interim 

Standards in today’s final rulemaking, 

since compliance with the thermal 

emission standards may not always 

assure compliance with the Interim 

Standards. As a result, the thermal 

emission standards for cement kilns and 

LWAKs no longer pose the uncertainties 

that they had in the proposal.234 In 

regard to Phase 2 sources, the concern 

at the time of proposal was with respect 

to the thermal emission standards for 

liquid fuel-fired boilers. However, the 

comparative analysis for today’s final 

rulemaking for liquid fuel-fired boilers, 

which is based on total stack emissions 

from these sources while assuming 

compliance with the thermal standards, 

does not suggest that risks for LFBs are 

cause for concern (except as otherwise 

noted, e.g., dioxins). 

C. What Changes Are EPA Finalizing 

With Respect to the Site-Specific Risk 

Assessment Policy? 

In the 1999 final rule preamble, we 

included a revised site-specific risk 

assessment (SSRA) policy 

recommendation to account for 

promulgation of the new technologybased CAA MACT standards for Phase 

59506 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

235 Dioxin is a common risk driver due to ongoing 

uncertainty in cancer and other health effects levels 

for chlorinated dioxins and furans. Mercury is also 

a common risk driver due to uncertainties implicit 

in the quantitative mercury analysis. See discussion 

in Part Seven, Section II. and 65 FR 52997. Thus, 

it is not uncommon for permit authorities to require 

risk-based RCRA permit limits (based on risk 

assessment results) to control emissions of these 

pollutants. 

1 sources. We recommended that 

permitting authorities evaluate the need 

for an SSRA on a case-by-case basis for 

hazardous waste combustors subject to 

the Phase 1 MACT standards. For 

hazardous waste combustors not subject 

to the Phase 1 standards, we continued 

to recommend that SSRAs be conducted 

as part of the RCRA permitting process 

if necessary to protect human health 

and the environment. We indicated that 

the RCRA omnibus provision authorized 

permit authorities to require applicants 

to submit SSRA results where an SSRA 

was determined to be necessary. For the 

reasons described in the previous 

subsection, we believe that additional 

controls may be necessary on a sitespecific basis to ensure that adequate 

protection is achieved in accordance 

with RCRA. 

Consequently, because SSRAs are 

likely to continue to be necessary at 

some facilities (mainly those that have 

not previously conducted an SSRA), we 

concluded that it is more appropriate to 

include a regulatory provision that 

explicitly provides for the permit 

authority to require SSRAs on a case-bycase basis and add conditions to RCRA 

permits based on SSRA results. 

Therefore, instead of relying on RCRA 

§ 3005(c)(3) and its associated 

regulations at § 270.10(k) when 

permitting authorities conduct or 

require a risk assessment on a sitespecific basis (i.e., as applicable to those 

newly entering the RCRA permit 

process), we had proposed to codify the 

authorities provided by sections 3004(a) 

and (q) and 3005(b). See proposed 

regulations at 69 FR 21383–21384, 

§§ 270.10(l) and 270.32(b)(3). In 

proposing to codify these authorities, 

we stated that we were not requiring 

that SSRAs automatically be conducted 

for hazardous waste combustion units, 

but that the decision of whether or not 

a risk assessment is necessary must be 

made based upon relevant factors 

associated with an individual 

combustion unit and that there are 

combustion units for which an SSRA 

will not be necessary. Further, we 

explained that the proposed language 

would provide notice to the regulated 

community that an SSRA may be 

necessary to support a source’s permit, 

while reminding the permit agency of 

the need to evaluate whether an SSRA 

would be necessary on a site-specific 

basis. 

Despite our efforts to explain that by 

codifying these provisions, we are only 

modifying the statutory authority under 

which we implement the SSRA policy 

while maintaining the same SSRA 

policy from a substantive standpoint, 

commenters generally opposed EPA’s 

proposed codification. The comment 

most frequently presented was that the 

proposed regulatory language is not 

helpful to anyone (i.e., regulated 

community, the public or permitting 

agencies), is redundant with the 

omnibus authority, and sets an 

extremely low hurdle for regulators to 

require SSRAs. 

We disagree that the new regulatory 

language is not helpful and that it sets 

an extremely low hurdle for regulators 

to require SSRAs. We believe that the 

new provisions are beneficial in two 

ways: (1) They provide notice to the 

regulated community and public that an 

SSRA may be necessary to support a 

source’s permit; and (2) they remind the 

permitting agencies of the importance of 

evaluating whether an SSRA would be 

necessary on a site-specific basis. The 

new regulatory provision in no way 

expands or supplements the authority 

on which EPA had previously relied—

i.e., omnibus and § 270.10(k), thus it 

does not provide any more or less 

authority to permit authorities (i.e., 

lower or raise the hurdle) to require 

SSRAs. We agree that, because the 

proposed language provides permitting 

authorities with no greater authority 

than the omnibus authority, it is 

somewhat duplicative of § 270.10(k). 

However, as noted, EPA believes this 

provision offers important benefits to 

both the agency and the regulated 

community, and as explained further 

below, EPA has adopted a slightly 

modified version of the proposal 

pursuant to RCRA § 3004(a) and 

§ 3005(b). See also discussion in 

subsection F. 

Another common view expressed by 

commenters is that, although extensive 

risk assessments that have been 

performed for more than a decade, 

showing lack of risk to human health 

and the environment, EPA continues to 

require SSRAs without a technical 

evaluation of the historical results. To 

the contrary, EPA Regional permit 

writers have found that certain 

chemicals (especially dioxin and 

mercury)235 pose excess risk in certain 

circumstances—even under the Interim 

Standards—and consequently find it 

necessary to assess risk to human health 

and the environment based on sitespecific conditions at the facility. In 

EPA Regions 7 and 10 for example, 

some facilities have RCRA risk-based 

permit conditions that establish more 

frequent sampling or limits on feed rate 

for specified metals to ensure that 

ecologically sensitive areas are not 

adversely impacted. 

Many commenters also state that CAA 

§ 112(f) residual risk process is the 

appropriate method to assess risk for 

hazardous waste combustors complying 

with MACT, not RCRA risk assessments. 

Specifically, one commenter argued that 

EPA lacked statutory authority to rely 

on the omnibus provisions to require 

SSRA and SSRA-based controls on the 

grounds that § 112(f) of the Clean Air 

Act establishes a specific provision to 

control any residual risk from 

combustor emissions. We disagree with 

commenters for two reasons. First, as we 

explained in the 1999 final rule 

preamble, the omnibus provision is a 

RCRA statutory requirement and the 

CAA does not override RCRA. 

Promulgation of the MACT standards, 

therefore, does not duplicate, supersede, 

or otherwise modify the omnibus 

provision or its applicability to the 

sources covered by today’s rule. Second, 

the SSRA under RCRA is usually 

conducted prior to issuance of the final 

permit. The CAA residual risk 

determination is generally made eight 

years after promulgation of the MACT 

standards for a source category. 

Accordingly, a permit authority 

currently facing a permit decision could 

not rely on these yet unwritten residual 

risk standards to resolve its identified 

concern that the MACT standard may 

not be sufficiently protective at an 

individual site. In addition, even though 

we believe that § 3005(c)(3) and its 

associated regulations provide the 

authority to require and perform SSRAs 

and to write permit conditions based on 

SSRA results, we are not relying on 

these provisions as the authority for 

§ 270.10(l). Rather, we are relying on 

§§ 3004(a) and (q) and 3005(b). See 69 

FR 21327. 

With respect to the costs incurred 

when conducting an SSRA, several 

commenters raised the concern that our 

approximations do not include portions 

of actual costs (e.g., data gathering, QA/ 

QC, and third party consultants, risk 

assessors, and plant personnel time to 

coordinate and review SSRA efforts and 

collect facility data), thus resulting in 

artificially low costs. Commenters cited 

additional reasons why they feel that 

EPA’s cost estimates are too low 

including our assumptions that: (1) 

SSRAs are a one-time or infrequent cost; 

(2) most SSRAs fall under ‘‘normal’’

versus ‘‘unusual’’ situations; and (3) the 

cost of conducting a risk burn during a 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59507 

236The high end of this range applies only to 

those systems operating under ‘‘unusual 

conditions’’ (the available data suggest that there 

are only five such facilities). 

237Normal conditions assume use of previously 

collected performance burn data, use of standard 

commercial modeling software that meet Agency 

guidance, and limited interactions with State and 

Federal oversight authorities. Unusual conditions 

assume the need for site-specific modeling, 

extensive interactions with stakeholders and 

regulators, an extended time frame, and targeted 

ecological analyses. 

trial burn adds only 20% more to the 

cost. 

Regarding the comment that we did 

not include actual costs for our 

estimates of overall costs to conduct an 

SSRA, we agree that some costs were 

overlooked. We did include the costs 

related to conducting an SSRA under 

‘‘normal’’ and ‘‘unusual’’ conditions, 

SSRA data collection in conjunction 

with a regular performance burn, and a 

full independent risk burn including 

protocol, sampling, analysis, and report. 

However, we did not capture facility 

time associated with data collection and 

management related to the SSRA. 

Consequently, we have revised our cost 

estimate for performing these activities; 

see chapter 4 of the background 

document entitled, Assessment of the 

Potential Costs, Benefits, and Other 

Impacts of the Hazardous Waste 

Combustion MACT Replacement 

Standards—Final Rule, October 12, 

2005. 

In response to the broader comment 

that our cost estimates are too low (for 

several reasons mentioned previously), 

we agree that our estimate of a 20% 

additional cost to conduct a risk burn 

with a trial burn may have been 

conservative and therefore, we have 

adjusted our previous estimate to 

include a range of 20% to 40%. The 

total SSRA cost range has also been 

updated from $141K–$370K to $157K–

$815K.236 With respect to our 

assumption that the majority of SSRAs 

are conducted under ‘‘normal’’

conditions (lending to overall lower cost 

estimates), we do believe that the 

majority of future SSRAs will fall under 

the ‘‘normal’’ conditions.237 We believe 

this is appropriate due to: lack of new 

facilities coming on-line for which there 

is no previous test data; availability of 

commercial modeling software; and 

finalization of the ‘‘Human Health Risk 

Assessment Protocol for Hazardous 

Waste Combustion Facilities’’ guidance, 

or ‘‘HHRAP’’ guidance. However, we do 

recognize that some facilities can be 

more complex than others in the 

hazardous waste combustion universe. 

Therefore, we have identified a portion 

of facilities that are likely to incur 

‘‘unusual’’ costs for a future SSRA and 

have revised our cost analysis to reflect 

inclusion of these higher-cost facilities. 

See background document, Assessment 

of the Potential Costs, Benefits, and 

Other Impacts of the Hazardous Waste 

Combustion MACT Replacement 

Standards—Final Rule, October 12, 

2005. 

Also, we maintain our assumption 

that SSRAs generally represent a onetime cost unless a facility significantly 

changes its operations or if receptors 

change such that an increase in risk is 

anticipated as a result. Even so, as 

explained earlier in subsection B., we 

would anticipate that the risk 

assessment would not have to be 

entirely redone. It may be as limited as 

collecting relevant new data for 

comparison purposes, leading to a 

decision not to repeat any portion of a 

risk assessment. Or, it may be more 

inclusive such that modifications would 

be made to specific inputs to or aspects 

of the risk assessment using data from 

a previous risk assessment, risk burn or 

comprehensive performance test. With 

respect to chemical weapons 

demilitarization facilities, we recognize 

that due to their specialized waste 

streams and multiple treatment units, 

SSRAs, in many cases, are not one-time 

events and as a result, their SSRA costs 

are relatively high. The high costs can 

be attributed to the necessity for each 

chemical weapons demilitarization 

facility to perform surrogate trial burns 

and then agent trial burns for each 

furnace and each agent campaign (e.g., 

GB (Sarin), VX, and HD (Sulfur 

Mustard)). For example, a chemical 

weapons demilitarization facility would 

conduct GB trial burns on all the 

furnaces and then complete destruction 

of the GB stockpile, followed by VX trial 

burns and VX stockpile and finally, the 

HD trial burns and the HD stockpile. 

This effectively extends the input to the 

risk assessment of the trial burn data 

over most of the operational life of the 

facility. 

Last, several commenters raised the 

concern that EPA’s proposal to codify 

the authority to require SSRAs on a 

case-by-case basis and add conditions to 

RCRA permits based on SSRA results, 

violates the due process protections 

afforded under the current structure, 

where SSRAs are required and 

performed pursuant to RCRA 

§ 3005(c)(3) omnibus authority. 

Commenters were further concerned 

that the proposed language in § 270.10(l) 

would remove existing procedural 

safeguards by allowing the Agency to 

require a very expensive SSRA before 

the draft permit is even issued, thus 

violating EPA’s own procedural 

standards as well as due process. It 

appears as though commenters believe 

that the procedures (and procedural 

protections) currently applicable 

whenever an SSRA is conducted are 

unique to circumstances in which the 

permitting authority proceeds under the 

authority of RCRA § 3005(c)(3)—the 

‘‘omnibus’’ provision. This is incorrect. 

All of the specific procedural 

requirements the commenters have 

raised would be applicable whether the 

permitting authority proceeded under 

§ 270.10(l), as EPA proposed, or 

pursuant to RCRA § 3005(c)(3) and 

§ 270.10(k), as is the current practice. 

All of the requirements established in 

Part 124 continue to apply, whether 

EPA proceeds under § 270.10(l) or under 

§ 270.10(k). As we discussed in the 

proposal, the basis for the decision to 

conduct a risk assessment, or to request 

additional information to evaluate risk 

or determine whether a risk assessment 

is necessary, must be included in the 

administrative record for the facility and 

made available to the public during the 

comment period for the draft permit. 

See 40 CFR 124.7 [statement of basis]; 

124.9 [administrative record for draft 

permit]; 124.18 [administrative record 

for final permit]. If the facility, or any 

other party, files comments on a draft 

permit decision objecting to the 

permitting authority’s conclusions 

regarding the need for a risk assessment, 

the permitting authority must respond 

fully to the comments. Any permit 

conditions determined to be necessary 

based either on the SSRA, or because 

the facility declined to conduct an 

SSRA, also must be documented and 

supported in the administrative record. 

The commenters’ concern that 

§ 270.10(l) allows the permitting 

authority to require the SSRA prior to 

the issuance of a draft permit, and 

therefore the applicant would have no 

opportunity to comment or challenge 

that determination, is equally 

unfounded. There is effectively no 

practical or substantive distinction 

between the circumstance when a 

permit authority communicates the 

decision that an SSRA is necessary to 

issue the permit prior to issuing the 

draft permit, or as part of the draft 

permit. In either case, if a facility 

refuses to provide a risk assessment or 

data to support a risk assessment 

requested under this provision, the 

regulations at part 124 make clear that 

the appropriate recourse is for the 

permit authority to deny the permit (See 

40 CFR 124.3(d); 124.6(b) and 270.10(c). 

The basis for the denial would 

essentially be the same in either case—

that the information before the agency 

gives rise to a concern that the MACT 

may not be sufficiently protective, 

59508 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

238See final Response to Comment to the HWC 

MACT Standards, Volume 5, Miscellaneous. 

239Authorized states are required to modify their 

programs only when EPA enacts federal 

requirements that are more stringent or broader in 

scope than existing federal requirements. This 

applies to regulations promulgated under both 

HSWA and non-HSWA authorities. 

240Additional clarification on the appropriate use 

of the SSRA policy and technical guidance is 

provided in the April 10, 2003 memorandum from 

Marianne Lamont Horinko entitled ‘‘Use of the Sitewhich the agency is unable to dispel 

based on the information before it. 

Consequently, the permit authority 

cannot determine that the permit meets 

RCRA’s standard for permit issuance. 

An as noted above, all of the 

requirements of Part 124 would apply to 

actions taken in accordance with 

§ 270.10(l). For additional discussion on 

this issue, please refer to the Response 

to Comments background document for 

this final rule.238

Despite the many reasons offered by 

commenters opposing our proposal, we 

continue to believe that our proposed 

approach is appropriate. As discussed 

in the proposal (69 FR 21327) and in the 

previous subsection, although the Phase 

1 Replacement and Phase 2 standards 

provide a high level of protection (i.e., 

they are generally protective) to human 

health and the environment, thereby 

allowing us to nationally defer the 

RCRA emission requirements to MACT, 

additional controls may be necessary on 

an individual source basis to ensure that 

adequate protection is achieved in 

accordance with RCRA. Until today, we 

have relied exclusively upon RCRA 

§ 3005(c)(3) and its associated 

regulations at § 270.10(k) when 

conducting or requiring an SSRA. We 

continue to believe that § 3005(c)(3) and 

its associated regulations provide the 

authority to require and perform SSRAs 

and to write permit conditions based on 

SSRA results. In fact, as the next 

subsection will explain, EPA will likely 

continue to include permit conditions 

based on the omnibus authority in some 

circumstances when conducting these 

activities, and state agencies in states 

with authorized programs will continue 

to rely on their own authorized 

equivalent. However, because SSRAs 

are likely to continue to be necessary at 

some facilities, we are finalizing the 

authority to require them on a case-bycase basis and add conditions to RCRA 

permits based on SSRA results under 

the authority of RCRA §§ 3004(a) and (q) 

and 3005(c). Therefore, we are finalizing 

§§ 270.10(l) and 270.32(b)(3) with some 

minor modifications to provide further 

clarification of the Agency’s intent. 

D. How Will the New SSRA Regulatory 

Provisions Work? 

The new regulatory provisions are 

finalized under both base program 

authority (§ 3004(a) and § 3005(b)) and 

HSWA authority (§ 3004(q)). That is, 

changes made to regulations applicable 

to boilers are promulgated under HSWA 

authority, whereas changes made to 

regulations applicable to incinerators 

are promulgated under non-HSWA 

authority. Consequently, when it is 

determined that an SSRA is needed, the 

applicability of these provisions will 

vary according to the type of 

combustion unit (whether it is regulated 

under 3004(q), or only 3004(a) and 

3005(b)), and the authorization status of 

the state. Depending on the facts, the 

new authority would be applicable, or 

the omnibus provision would remain 

the principal authority for requiring 

SSRAs and imposing risk-based 

conditions where appropriate. See 69 

FR 21327. 

According to the state authorization 

section of this preamble (see Part Five, 

Section IV.), EPA does not consider 

these provisions to be either more or 

less stringent than the pre-existing 

federal program, since they simply make 

explicit an authority that has been and 

remains available under the omnibus 

authority and its implementing 

regulations. Thus, states with 

authorized equivalents to the federal 

omnibus authority will not be required 

to adopt these provisions, so long as 

they interpret their omnibus authority 

broadly enough to require risk 

assessments where necessary.239

The provisions of §§ 270.10(l) and 

270.32(b)(3) adopted in today’s rule are 

substantially similar to the provisions 

EPA proposed. Section 270.10(l) 

continues to explicitly provide that a 

permit authority has the authority to 

evaluate, on a case-by-case basis, the 

need for an SSRA. EPA has also retained 

its proposed language that explicitly 

provides that, where an SSRA is 

determined to be necessary, the permit 

authority may require a permittee or an 

applicant to conduct an SSRA, or to 

provide the regulatory agency with the 

information necessary to conduct an 

SSRA on behalf of the permittee/ 

applicant. The final provision also 

essentially retains the standard laid out 

in the proposal: that a permit authority 

may decide that an SSRA is warranted 

based on a conclusion that additional 

controls beyond those required pursuant 

to 40 CFR parts 63, 264, 265, or 266 may 

be needed to ensure protection of 

human health and the environment 

under RCRA. In § 270.32(b)(3), EPA has 

also explicitly codified the authority for 

permit authorities to require that the 

applicant provide information, if 

needed, to make the decision of whether 

an SSRA should be required. 

However, EPA has adopted some 

further clarifications to the final 

provisions in response to comments. In 

response to comments that the 

regulatory language EPA had proposed 

still fails to provide the regulated 

community with adequate notice that an 

SSRA might be required, and what that 

might entail, EPA has included 

additional language to address those 

issues. Specifically, EPA has included a 

sentence stating that the information 

required under § 270.10(l) can include 

the information necessary to evaluate 

the potential risk to human health and/ 

or the environment resulting from both 

direct and indirect exposure pathways. 

EPA has also added language to remind 

permit authorities that the 

determination that the MACT standards 

may not be sufficiently protective is to 

be based only on factors relevant to the 

potential risk from the hazardous waste 

combustion unit at the site, and has 

provided a list of factors to guide the 

permit authority in making that 

determination. See subsections E. and F. 

for further discussion. The applicability 

language of §§ 270.19, 270.22, 270.62, 

and 270.66 also has been amended to 

allow a permit authority that has 

determined that an SSRA is necessary to 

continue to apply the relevant 

requirements of these sections on a caseby-case basis and as they relate to the 

performance of the SSRA after the 

source has demonstrated compliance 

with the MACT standards. 

As previously noted, the requirements 

at 40 CFR Part 124 continue to apply to 

actions taken to implement § 270.10(l). 

Thus, if the permitting authority 

concludes that a risk assessment or 

additional information is necessary for a 

particular combustor, the permitting 

authority must provide the factual and 

technical basis for its decision in the 

permit’s administrative record and must 

make it available to the public during 

the comment period for the draft permit. 

If the facility or any other party files 

comments on a draft permit decision 

objecting to the permitting authority’s 

conclusions regarding the need for an 

SSRA, the authority must respond fully 

to the comments. In addition, the SSRA 

must be included in the administrative 

record and made available to the public 

during the comment period. Any 

additional conditions and limitations 

determined to be necessary as a result 

of the SSRA must be documented and 

supported in the administrative record 

as well.240

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59509 

Specific Risk Assessment Policy and Guidance for 

Hazardous Waste Combustion Facilities.’’ (See 

Docket # OAR–2004–0022–0083). 

E. What Were Commenters’ Reactions to 

EPA’s Proposed Decision Not To 

Provide National Criteria for 

Determining When an SSRA Is or Is Not 

Necessary? 

In the proposal, we stated that we 

were not proposing national criteria 

(e.g., guiding factors) for determining 

when an SSRA is necessary. Although 

we had developed a list of qualitative 

guiding factors for permit authorities to 

consult when considering the need for 

an SSRA in the September 1999 final 

rulemaking (revised from the April 1996 

NPRM), we never intended for them to 

comprise an exclusive list for several 

reasons. Mainly, we felt that the 

complexity of multi-pathway risk 

assessments precluded the conversion 

of the qualitative guiding factors into 

more definitive criteria. See 69 FR 

21328. 

Commenters generally agreed that the 

risk assessment guidance and policy 

should not be codified. They agreed in 

principle that it is important to keep the 

decision to require an SSRA flexible 

because factors vary from facility to 

facility. However, several commenters 

raised the concern that the proposed 

language of § 270.10 (l) was too vague. 

For example, one commenter suggested 

that any additional guidance clarifying 

how risk assessments should be 

performed and that providing standards 

or goals to be achieved by the operating 

conditions would be helpful. Another 

commenter felt that EPA should identify 

specific factors that the regions and 

authorized states should consider, and 

specific criteria that should be met, 

before requiring an SSRA or additional 

emission controls or other standards. 

We agree with commenters that 

additional guidance would be beneficial 

and have taken a number of actions in 

this regard. First, EPA is adopting a 

more detailed regulatory provision that 

provides a non-exclusive list of guiding 

factors for permit authorities to use in 

determining whether the MACT will be 

sufficiently protective at an individual 

site, and consequently, whether an 

SSRA is warranted. Section 270.10(l) 

now requires that the permit writer’s 

evaluation of whether compliance with 

the standards of 40 CFR part 63, Subpart 

EEE alone is protective of human health 

or the environment be based on factors 

relevant to the potential risk from a 

hazardous waste combustion unit, 

including, as appropriate, any of the 

specifically enumerated factors. These 

factors reflect the eight guiding factors 

that EPA has discussed in several rule 

preambles. See 61 FR 17372, 64 FR 

52842, and 69 FR 21328. However, EPA 

has also incorporated a few minor 

revisions to reflect the standards 

promulgated today, and to reflect the 

fact that the factors will be codified. 

EPA has revised the language of the 

factors so that the language is consistent 

between the provisions. Consistency of 

phrasing is generally more important in 

regulations, which are binding, than in 

guidance. For example, some of the 

factors listed in the 1999 preamble used 

the phrase ‘‘presence or absence’’ while 

other used the phrase ‘‘identities and 

quantities.’’ EPA has adopted the phrase 

‘‘identities and quantities,’’ on the 

grounds that it more precisely expresses 

the concept intended by both phrases. 

EPA has also made minor revisions to 

reduce redundant text, and to shorten 

the provisions, in the interests of clarity. 

For example, rather than addressing the 

proximity of receptors in two factors, 

EPA addresses this issue in a single 

factor. However, nothing contained in 

either of the original factors was deleted 

as part of this revision. None of the 

revisions described here substantively 

change the issues to be considered from 

those contained in the original eight 

guiding factors. 

In addition to these minor technical 

revisions, EPA has included language to 

clarify that one potentially relevant 

factor for consideration is the ‘‘identities 

and quantities of persistent, 

bioaccumulative or toxic pollutants 

considering enforceable controls in 

place to limit those pollutants.’’ This 

reflects changes made between the 

proposed and final MACT standards 

(e.g., the proposed rule called for 

beyond-the-floor dioxin limits for some 

sources; those were not promulgated in 

the final rule). 

Another change is the EPA has 

deleted the factor that listed ‘‘concerns 

raised by the public.’’ The regulation 

will allow the decision to be based on 

any one of the listed factors, and public 

concern, unaccompanied by an 

identifiable risk, would not provide an 

adequate basis for determining that an 

SSRA was warranted. 

Finally, as discussed previously in 

subsection B., EPA has added an 

additional factor to indicate that a 

previously conducted risk assessment 

would be relevant in evaluating changes 

in conditions that may lead to increased 

risk. The factor reads as follows: 

‘‘Adequacy of any previously conducted 

risk assessment, given any subsequent 

changes in conditions likely to affect 

risk.’’ See § 270.10(l)(1). 

One commenter raised the concern 

that the eight guiding factors the Agency 

specified in its Federal Register notice 

at 64 FR 52842 (September 30, 1999) did 

not adequately focus on the central 

question of whether there are likely to 

be emissions that would be 

uncontrolled under the Subpart EEE 

final rule. They argued that, as an 

example, under guiding factor #5, if the 

waste containing highly toxic 

constituents are being addressed by the 

Subpart EEE standards, the fact that 

there might be such wastes should not 

justify an SSRA. The commenter 

apparently misunderstands that the 

factors were not intended to function as 

stand-alone criteria for requiring an 

SSRA—i.e., to use their example, the 

commenter believes that the mere fact 

that highly toxic constituents are 

present in the waste would justify an 

SSRA without consideration of whether 

the MACT emission standards were 

sufficiently protective. This is an 

incorrect reading of EPA’s proposed 

regulation. Rather, the factors were 

always intended to function as 

considerations that might be relevant to 

the determination of whether the MACT 

was sufficiently protective. However, 

the regulatory structure EPA has 

adopted in the final rule makes perfectly 

clear that the critical determination is 

that ‘‘compliance with the standards of 

40 CFR part 63, Subpart EEE alone may 

not be protective of human health or the 

environment.’’ Further, the provision 

states that this determination is to be 

based only on factors relevant to the 

potential risk from the hazardous waste 

combustion unit, including, as 

appropriate, the listed factors. EPA 

believes that these provisions make 

clear that the determination of whether 

to require an SSRA is to be based on 

consideration of the conditions at the 

facility site, including, for example, an 

evaluation of all enforceable controls in 

place to limit emissions. Further 

discussion of EPA’s revised provisions 

can be found in subsection F. 

Second, as discussed in more detail 

below, EPA is issuing a revised risk 

assessment guidance document that we 

believe will provide additional insight 

to help users. While clearly delineating 

between risk management and risk 

assessment, the HHRAP explains in 

great detail a recommended process for 

performing and reporting on costeffective, scientifically defensible risk 

assessments. It includes numerous 

recommended defaults, while at the 

same time is flexible enough to 

incorporate site-specific values. 

Although the HHRAP provides 

numerous recommendations, it remains 

merely guidance and consequently 

leaves the final decisions up to the 

permitting authority. We believe that 

59510 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

240aCKRC provided numerous comments 

organized by subtitles. Rather than relying on this 

format in the preamble, we have organized the 

comments and responses according to the concerns 

initially raised in the petition, and consistent with 

the discussion presented in the proposal. 

the revised HHRAP guidance will 

provide further assistance to permit 

writers, risk assessors and facilities in 

determining whether or not to conduct 

an SSRA and what and how much 

information is required for the SSRA. 

F. What Are EPA’s Responses to the 

Cement Kiln Recycling Coalition’s 

Comments on the Proposal and What is 

EPA’s Final Decision on CKRC’s 

Petition? 

In the proposal, we provided a 

lengthy discussion in response to 

CKRC’s petition for rulemaking (69 FR 

21325–21331). In its petition, CKRC 

presented two requests with respect to 

SSRAs: (1) That EPA repeal the existing 

SSRA policy and technical guidance 

because CKRC believes that the policy 

and guidance ‘‘are regulations issued 

without appropriate notice and 

comment rulemaking procedures’’; and 

(2) after EPA repeals the policy and 

guidance, ‘‘should EPA believe it can 

establish the need to require SSRAs in 

certain situations, CKRC urges EPA 

undertake an appropriate notice and 

comment rulemaking process seeking to 

promulgate regulations establishing 

such requirements.’’ Additionally, 

CKRC stated that it does ‘‘not believe 

that these SSRAs are in any event 

necessary or appropriate’’ and that they 

disagree with EPA’s use of the RCRA 

omnibus provision as the authority to 

conduct SSRAs. Finally, CKRC raised 

three general concerns: (1) Whether an 

SSRA is needed for hazardous waste 

combustors that will be receiving a 

RCRA permit when the combustor is in 

full compliance with the RCRA boiler 

and industrial furnace regulations and/ 

or with the MACT regulations; (2) how 

an SSRA should be conducted; and (3) 

what is the threshold level for a ‘‘yes’’

or ‘‘no’’ decision that additional riskbased permit conditions are necessary. 

We believe our tentative decision in the 

proposal addressed each request and 

concern presented in their petition. 

However, in its comments, CKRC has 

restated many of the same issues with 

new emphasis. Thus, we believe it is 

appropriate to address their major 

comments in the following 

paragraphs.240a

1. Whether SSRAs Are Necessary for 

Facilities in Full Compliance With BIF 

or MACT Regulations 

In its comments, CKRC continues to 

question the need for any SSRAs at 

facilities that are in full compliance 

with the MACT EEE standards. CKRC 

also states that ‘‘[our] Petition 

challenged EPA to explain why, if there 

is any need for SSRAs at all under 

RCRA, there is a rational basis for why 

it has limited the entire SSRA program 

to hazardous waste combustors.’’ They 

argue that, ‘‘The point is that if the 

‘‘omnibus’’ words in RCRA mean what 

EPA says they mean for hazardous 

waste combustors, why do they not 

mean the same thing for all of the other 

TSD facilities that also pose the same 

kind of ‘‘what-if’’ hypotheticals that 

EPA throws out in its preamble?’’

As discussed above in subsection B., 

and in greater detail below, EPA 

believes that risk assessments will 

continue to be necessary at some 

facilities. For example, based on the 

inconclusive results from the national 

risk assessment conducted for the 1999 

final rule and the comparative risk 

analysis conducted for today’s rule, EPA 

is not able to conclude that all MACT 

standards will be sufficiently protective 

for every facility (e.g., non-dioxin PICs 

not previously modeled, no numerical 

dioxin/furan emission standard for solid 

fuel-fired boilers, liquid fuel-fired 

boilers with wet or no APCDs, and 

hydrochloric acid production furnaces, 

etc.). EPA also provided examples of 

site-specific factors that might lead risk 

assessors to decide that the MACT 

standards may not be sufficiently 

protective, and therefore an SSRA may 

be necessary (e.g., if a source’s 

emissions are comprised of persistent 

bioaccumulative or toxic contaminants). 

EPA also discussed this issue at length 

in both the 2004 proposal, and the 1999 

rule preamble. See 69 FR 21326 and 64 

FR 52842. Given these uncertainties, the 

SSRA provides significant support for 

the Agency’s 1006(b) determination 

supporting the elimination of separate 

RCRA emission standards for MACT 

EEE facilities. 

We disagree that our discussion of 

standards (and site-specific factors) that 

may warrant a risk evaluation at certain 

types of facilities are mere ‘‘what-if’’

hypotheticals. The examples that we 

discussed in both the earlier preambles 

and above were based on the 1999 

national risk assessment and a 

comparative risk analysis, which 

concluded that either there was not 

enough information to make a definitive 

protectiveness determination or that 

uncertainty in cancer and other health 

effects levels of dioxin and furans, for 

instance, make it difficult to draw 

conclusions about potential risks. 

Furthermore, the discussions with 

respect to the protectiveness of certain 

standards (i.e., some are less stringent 

today than the 1999 standards) in 

subsection B., present a reasonable basis 

for permitting authorities to consider 

whether or not risk should be evaluated. 

In support of our position that the 

examples we have provided in the 1999 

final rule preamble, the 2004 proposed 

rule preamble, and this final rule, are 

more than ‘‘what-if’’ hypotheticals, we 

have placed copies of completed risk 

assessments where risk-based limits 

were found to be necessary in the 

docket for today’s final rule (see OAR–

2004–0022). 

The CKRC fails to acknowledge that 

there are many aspects of hazardous 

waste combustors and the combustion 

process itself, which make this category 

of TSD facilities different from others, 

and which factor heavily into our SSRA 

policy. Consider that many combustion 

facilities feed a wide array of waste 

streams comprised of many hazardous 

constituents. The combustion of these 

constituents results in complex 

chemical processes (which are difficult 

to predict) occurring throughout the 

combustion unit. The end product is 

stack emissions comprised of a variety 

of compounds different from those that 

enter the process, and thus are difficult 

to predict because they can vary greatly 

based on the many variables of the 

individual combustion unit, making 

them difficult to address (i.e., there are 

no specific emissions standards to limit 

certain compounds such as products of 

incomplete combustion). For example, 

in attempting to maximize the 

destruction of organic compounds, 

products of incomplete combustion are 

often generated as a consequence. 

Further, due to stack dispersion, 

hazardous waste combustors have the 

potential to affect several square miles. 

Other types of TSD facilities’ operations 

typically do not encompass such 

complex processes or have the potential 

to adversely affect receptors for several 

square miles. 

It should be noted that hazardous 

waste combustors are not the only type 

of TSD subjected to site-specific 

evaluations of risk. We take a sitespecific approach to regulating 

miscellaneous units under Part 264, 

subpart X. Because it is not possible to 

develop performance standards and 

emission limits for each type of 

treatment unit that may fall under this 

broad category, we rely on general 

environmental performance standards to 

meet our mandate under §§ 3004 (a) and 

(q) that standards governing the 

operation of hazardous waste facilities 

be protective of human health and the 

environment. For example, § 264.601(c) 

requires ‘‘Prevention of any release that 

may have adverse effects on human 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59511 

241As discussed in section B., we expect that 

facilities that have previously conducted an SSRA 

will not need to conduct another in consideration 

of today’s final standards. Only those facilities 

newly subject to the RCRA permitting requirements, 

or existing sources where changes in conditions 

could lead to increased risk, may need to conduct 

or modify an existing SSRA. 

health or the environment due to 

migration of waste constituents in the 

air, considering: * * * (6) the potential 

for health risks caused by human 

exposure to waste constituents; and 

***’’ For all intents and purposes, 

subparts X units are subject to SSRAs as 

well. 

In addition, the question of whether 

an SSRA continues to be necessary is 

partly a function of the fact that EPA is 

seeking to rely on CAA MACT standards 

in order to eliminate RCRA emissions 

standards for these facilities. As noted 

above, because the MACT is technologybased, and because of uncertainties in 

our national risk assessments, permit 

writers’ ability to conduct an SSRA in 

individual cases provides important 

support for our deferral. 

RCRA §§ 3004(a) and (q) mandate that 

standards governing the operation of 

hazardous waste combustion facilities 

be protective of human health and the 

environment. To meet this mandate, we 

originally developed national 

combustion standards under RCRA, 

taking into account the potential risk 

posed by direct inhalation of the 

emissions from these sources. With 

advancements in risk assessment 

science since promulgation of the 

original national standards (i.e., 1981 for 

incinerators and 1991 for boilers and 

industrial furnaces), it became apparent 

that the risk posed by indirect exposure 

(e.g., ingestion of contaminants in the 

food chain) to long-term deposition of 

metals, dioxins/furans and other organic 

compounds onto soils and surface 

waters should be assessed in addition to 

the risk posed by direct inhalation 

exposure to these contaminants. We also 

recognized that the national assessments 

performed in support of the original 

hazardous waste combustor standards 

did not take into account unique and 

site-specific considerations which might 

influence the risk posed by a particular 

source. Therefore, until EPA was able to 

revise its regulations, to ensure the 

RCRA mandate was met on a facilityspecific level for all hazardous waste 

combustors, we strongly recommended 

that site-specific risk assessments 

(SSRAs), including evaluations of risk 

resulting from both direct and indirect 

exposure pathways, be conducted as 

part of the RCRA permitting process. In 

those situations where the results of an 

SSRA showed that a facility’s operations 

could pose an unacceptable risk (even 

after compliance with the RCRA 

national regulatory standards), 

additional risk based, site-specific 

permit conditions could be imposed 

pursuant to RCRA’s omnibus authority, 

§ 3005(c)(3). 

Rather than establish separate 

emission standards under RCRA, EPA 

decided to coordinate its revisions to 

the RCRA emissions standards for 

hazardous waste combustors with the 

adoption of the MACT standards 

pursuant to § 112(d) of the CAA. See 64 

FR 52832. In the rulemaking 

establishing the MACT standards for 

incinerators, cement kilns and 

lightweight aggregate kilns (Phase 1 

sources), relying on RCRA § 1006(b), 

EPA determined that in most cases, the 

MACT standards would be sufficiently 

protective that separate RCRA emission 

standards and operating conditions 

would not need to be included in the 

facility’s RCRA permit. However, for a 

variety of reasons, EPA lacked sufficient 

factual basis to conclude that a complete 

deferral of RCRA requirements could be 

supported for all facilities. 

Section 1006(b) conditions EPA’s 

authority to reduce or eliminate RCRA 

requirements on the Agency’s ability to 

demonstrate that the integration meets 

RCRA’s protectiveness mandate (42 

U.S.C. 6005(b)(1)). See Chemical Waste 

Management v. EPA, 976 F.2d 2, 23, 25 

(D.C. Cir. 1992). To support its RCRA 

§ 1006(b) determination, EPA conducted 

a national evaluation of both direct and 

indirect human health and ecological 

risks to determine if the MACT 

standards would satisfy the RCRA 

mandate to protect human health and 

the environment. That evaluation, 

however, did not quantitatively assess 

the proposed standards with respect to 

mercury and nondioxin products of 

incomplete combustion. This was due to 

a lack of adequate information regarding 

the behavior of mercury in the 

environment and a lack of sufficient 

emissions data and parameter values 

(e.g., bioaccumulation values) for 

nondioxin products of incomplete 

combustion. Since it was not possible to 

suitably evaluate the proposed 

standards for the potential risk posed by 

mercury and nondioxin products of 

incomplete combustion, in order to 

support our 1006(b) determination, we 

continued to recommend that SSRAs be 

conducted for some facilities as part of 

the permitting process until we could 

conduct a further assessment once final 

MACT standards were promulgated and 

implemented. Specifically, we 

recommended that for hazardous waste 

combustors subject to the Phase 1 

MACT standards—hazardous waste 

burning incinerators, cement kilns and 

light-weight aggregate kilns—permitting 

authorities should evaluate the need for 

an SSRA on a case-by-case basis. We 

further stated that while SSRAs are not 

anticipated to be necessary for every 

facility, they should be conducted 

where there is some reason to believe 

that operation in accordance with the 

MACT standards alone may not be 

protective of human health and the 

environment. For hazardous waste 

combustors not subject to the Phase 1 

standards, we continued to recommend 

that SSRAs be conducted as part of the 

RCRA permitting process. See 64 FR 

52841. As discussed in subsection B., 

EPA believes that SSRAs may continue 

to be necessary for some Phase 1 

facilities. For the Phase 2 sources, our 

comparative risk analysis generally 

indicates that, although the MACT 

standards for Phase 2 sources are 

appreciably more stringent than the 

current RCRA BIF standards, an SSRA 

may be necessary to confirm that a 

facility will operate in a way that is 

protective of human health and the 

environment. 

Thus, for both Phase 1 and Phase 2 

sources, we continue to believe that 

SSRAs may be necessary for some 

facilities.241 We generally believe the 

MACT standards will be protective; in 

most cases they are substantially more 

protective than the existing RCRA part 

264, 265, and 266 requirements. 

However, because HWCs manage 

hazardous waste and process it by 

burning and emitting the by-products 

into the air, a multitude of potential 

exposure pathways exist. These 

exposure pathways can also vary 

substantially based on site-specific 

factors associated with an individual 

combustion unit and the surrounding 

site. Such factors make it difficult for 

the Agency to conclude that a single, 

national risk assessment provides 

adequate factual support for its 

determination that the technology-based 

MACT standards will be sufficiently 

protective. This is further complicated 

by the fact that, for certain parameters, 

the Agency lacked sufficient 

information to quantitatively assess the 

risk, but is relying on a combination of 

quantitative and qualitative assessments 

of the MACT standards’ protectiveness. 

Nonetheless, EPA does not believe 

that the uncertainty is so great that it 

would preclude a deferral under 1006(b) 

for the affected categories of facilities; 

nor does EPA believe that these 

uncertainties necessarily support 

requiring a risk assessment for all such 

facilities. Conditions at the facility 

59512 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

might confirm that the MACT standards 

are sufficiently protective, without the 

need for a facility-wide risk assessment. 

For example, if the results of the MACT 

testing demonstrated that the facility’s 

dioxin emissions fall below the levels 

estimated in the database EPA used for 

its comparative risk assessment, the 

uncertainties in EPA’s comparative risk 

assessment would not, by itself, support 

a decision to require an SSRA. Such 

decisions require an evaluation of the 

conditions at the site, and EPA believes 

it important to retain the flexibility for 

permit authorities to take these 

conditions into account. Accordingly, 

EPA believes that the regulatory 

structure adopted in today’s rule strikes 

the appropriate balance between these 

competing factors. 

In response to EPA’s statement in the 

proposal that non-HAP emissions, 

which were beyond the direct scope of 

MACT, may pose risk which could 

necessitate an SSRA (69 FR 21326), 

CKRC pointed out that the same could 

be said for other types of TSDs, such as 

landfills, land treatment systems, 

etcetera, and EPA has not addressed this 

point in its preamble. As previously 

noted, combustion units are distinct 

from other types of TSDs due to the 

wide array of waste streams being fed to 

the unit, the complex chemical 

processes throughout the combustion 

unit, stack emissions comprised of a 

wide variety of compounds that are 

difficult to address, and the potential to 

impact receptors for several square 

miles due to stack dispersion. A further 

distinction is that EPA is seeking to rely 

on the MACT standards to eliminate 

national RCRA stack emissions 

standards under § 1006(b). Unless EPA 

can affirmatively demonstrate that 

RCRA’s protectiveness standards are 

met, the Agency cannot eliminate RCRA 

requirements. A number of uncertainties 

remain concerning the protectiveness of 

the MACT standards based on the 

uncertainties remaining in the 

supporting national risk assessment and 

comparative analysis, and the variability 

of site-specific factors from one facility 

to another. Permitting authorities’

ability to resolve these uncertainties 

through the use of the SSRA, where 

appropriate, provides important support 

for the Agency’s 1006(b) finding. 

Furthermore, as we have noted, under 

omnibus, to the extent permitting 

authorities believe there are problems 

with other types of TSDs, they can 

impose requirements and request 

additional information, including an 

SSRA in accordance with § 270.10(k). 

Also as previously noted, Part 264, 

subpart X specifically incorporates sitespecific consideration of risk into its 

regulatory framework. 

Next, CKRC comments that EPA has 

a non-discretionary duty under CAA 

§ 112(f) to address and take care of any 

‘‘residual risk’’ from MACT facilities in 

the future in any event. We discussed 

why we do not believe that the residual 

risk process should or can take the place 

of an SSRA under RCRA in subsection 

C. of this SSRA preamble, as well as in 

the 1999 rule preamble (64 FR 52843). 

In short, because the residual risk 

standards have not yet been established, 

permit writers cannot rely on this 

process in reaching current permitting 

decisions or in acting on currently 

pending permit applications. 

2. Codification of EPA’s Technical 

Guidance 

In response to our explanation in the 

proposal that risk assessment guidelines 

should be flexible and reflect current 

science, CKRC gave three comments: (1) 

Not a word of the current SSRA 

guidelines has been changed in 3 years; 

(2) it is easy to write regulations that 

have provisions that might be applied 

differently in different situations, and at 

least many basic, fundamental points 

can go in regulations, while some 

details can be in guidance—EPA writes 

regulations accompanied by ‘‘fill in the 

small details’’ guidance all the time; and 

(3) EPA seems to have no real problems 

with regulatory fixes anyway. In 

addition, CKRC provides several 

comments related to the previous three 

throughout their comment document, 

which are addressed below. 

None of these comments address the 

specific issue EPA raised, which is that, 

while it certainly is possible to codify 

our risk assessment guidance, for a 

variety of reasons, we disagree that it 

would be appropriate to issue these 

technical recommendations as a 

regulation. As we previously explained, 

risk assessment—especially multipathway, indirect exposure 

assessment—is a highly technical and 

evolving field. Any regulatory approach 

EPA might codify in this area is likely 

to become outdated, or at least 

artificially constraining, shortly after 

promulgation in ways that EPA cannot 

anticipate now. In support of this, we 

noted specific examples of problems we 

experienced in implementing the BIF 

regulations. See 69 FR 21330. Further, 

we explained that at the time of 

codification, BIF risk assessments were 

not intended to address indirect routes 

of exposure, thus making the parameters 

easier to implement. Today, however, 

risk assessments are more complex due 

to the necessary inclusion of multipathway and indirect exposure routes. 

Given the complexity of multi-pathway 

and indirect exposure assessments and 

the fact that risk science is continuously 

evolving, it would be difficult and 

again, overly constraining, to codify risk 

parameters today. We note as well, in 

this regard, that several commenters 

agreed that codification of EPA’s risk 

assessment guidance would be too 

constraining for both the agency and the 

regulated community. 

We also believe that a guidance 

approach is consistent with the fact that 

permit authorities must make sitespecific decisions whether to do risk 

assessments at all. We think that it 

makes little sense to allow this kind of 

flexibility regarding whether to do a risk 

assessment and for what purposes, 

while prescribing how one must be 

conducted if one is required. In fact, 

permitting authorities, in some cases, 

have developed their own guidance 

methodologies responsive to the specific 

needs associated with their facilities. 

For example, North Carolina, Texas, and 

New York have each developed their 

own risk assessment methodologies. 

Further, facilities that choose to conduct 

SSRAs themselves can choose 

alternative approaches in applying 

methodologies as well. We think this 

flexibility employed in the field 

supports our judgment that risk 

assessment methodologies should not be 

codified. CKRC’s comments failed to 

address any of these issues. 

Turning to the remainder of CKRC’s 

specific points—CKRC’s assertion that 

the technical guidance has not been 

amended in the past three years is 

inaccurate. A revised HHRAP guidance, 

that has been amended to take into 

account the technical recommendations 

from both the public comments and 

peer review, is published in conjunction 

with this rule. In addition, as noted 

above, in some cases, permitting 

authorities have developed their own 

methodologies responsive to the specific 

needs associated with their facilities. 

With respect to CKRC’s third point, 

the regulatory corrections made to the 

MACT rules were necessary either to fix 

an error or omission or to resolve 

potential legal issues. To codify 

technical tools and chemical 

information pertinent to the risk process 

simply is not prudent, as this 

information is continually changing and 

would almost always be out of date. 

Granted, when this information is 

presented in guidance, it can just as 

easily become outdated, however, 

facilities and risk assessors are free to 

use the most up-to-date air modeling 

tools and toxicity values available (i.e., 

they would not be bound to regulations 

requiring the use of obsolete tools and 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59513 

information). We continue to believe 

that publishing our technical 

recommendations as regulation would 

remove much of the flexibility that is 

important in evaluating risk on a sitespecific basis. 

CKRC discounts EPA’s statement that 

codification of risk assessment is the 

exception arguing that ‘‘Neither TSCA 

or CERCLA, however, specifically 

commands EPA to define the type of 

information necessary for a permit 

application through the rulemaking 

process as RCRA does. Moreover, the 

TSCA and CERCLA examples EPA cites 

are not analogous to the situation where 

a permit applicant can be denied a 

permit—or at least strung through 

months or years of tortuous and costly 

submissions, revision, and 

resubmission—to obtain a permit.’’

Even if TSCA and CERCLA were not 

considered to be analogous, that does 

not change EPA’s fundamental rationale 

that codification of highly technical risk 

assessment guidance is not appropriate. 

EPA does not believe that RCRA 

§ 3005(b) requires EPA to codify an 

exhaustive list of every possible piece of 

information that might be required in a 

permit. To some extent, that is the 

reason for having a permit process—to 

allow site specific conditions to be 

taken into account. Nevertheless, EPA 

has revised part 270, pursuant to RCRA 

§ 3004(a) and § 3005(b) to specifically 

provide that a risk assessment may be 

necessary, where there is reason to 

believe that the MACT standards may 

not be sufficiently protective. This was 

done wholly to address the petitioner’s 

concern that the current regulations do 

not adequately provide notice that an 

SSRA might be necessary as part of a 

permit application. This provision, 

while it does not provide as much detail 

as the petitioner wishes, clearly 

‘‘defines the type of information 

necessary for a permit application.’’

CKRC complains that the Agency did 

not address in its proposed response the 

petitioner’s discussion of the ‘‘strong 

case law compelling the conclusion that 

‘guidance’ documents EPA has issued 

for conducting SSRAs must be subjected 

to notice-and-comment rulemaking.’’

EPA has chosen not to respond to 

CKRC’s legal interpretation because we 

believe that it is clear that the guidance 

documents do not impose mandatory 

requirements, and therefore need not be 

issued by notice and comment 

rulemaking. Nevertheless, EPA notes 

that in the proposal, the Agency 

explained that we were in the process 

of reviewing the guidance documents, 

and, to the extent we found language 

that could be construed as limiting 

discretion, we committed to revise the 

documents to make clear that they are 

non-binding. See 69 FR 21329. We 

specifically noted that CKRC indicated 

in its petition that, in its view, the 

documents contain language that could 

be construed as mandatory. While EPA 

does not necessarily agree, and believes 

that, in context, it is clear that the 

recommendations in the documents are 

discretionary, EPA nonetheless 

reviewed the documents to ensure that 

they are carefully drafted. Consequently, 

under the standards articulated in 

Appalachian Power Co. v. EPA, 208 

F.3d 1015 (D.C. Cir. 2000) and 

subsequent case law, the final HHRAP 

guidance is truly guidance and does not 

require notice-and-comment 

rulemaking. The HHRAP explains in 

great detail an acceptable process for 

performing and reporting on costeffective, scientifically defensible risk 

assessments. It includes numerous 

recommended defaults, while at the 

same time provides the risk assessor or 

facility full opportunity to incorporate 

site-specific values in place of the 

defaults. The HHRAP offers numerous 

recommendations, but requires nothing. 

EPA has placed a copy of the final 

guidance document in the docket for 

today’s action (see OAR–2004–0022). 

CKRC believes that EPA’s technical 

guidance imposes information 

requirements upon the RCRA permit 

applicant that are not contained in any 

regulations and in fact exceed by orders 

of magnitude any information 

requirements contained in the part 270 

regulations. We disagree that anything 

contained in HHRAP is ‘‘required’’ in 

any way. Moreover, to the extent any 

individual facility believes the 

information requested is inappropriate 

or unnecessary, they can challenge that 

as part of the permitting process. 

Lastly, CKRC argues that ‘‘The 

procedures EPA has been using to issue 

and revise the SSRA guidance do not by 

any measure comply with the full 

panoply of procedures and protections 

offered by the APA process. Most 

critically, when EPA merely solicits 

comments on draft guidance documents, 

it has no duty to respond to comments 

and provide a rational basis and 

justification in defense of its choices in 

the face of comments. EPA is essentially 

running its entire SSRA program on the 

basis of ‘‘draft’’ guidance versions for 

which EPA has never to this day 

prepared any response to comments.’’

As previously noted, EPA believes the 

final HHRAP is merely guidance and 

therefore, EPA is not required to 

proceed through notice and comment 

rulemaking pursuant to § 553 of the 

APA. However, because we want the 

HHRAP guidance to be useful and clear, 

we have solicited public review and 

comment. As a result, it has been 

improved over the years by including 

revisions to the guidance based upon 

feedback from users of the guidance and 

from experience in the field. A response 

to comments document has been 

prepared and released along with the 

final HHRAP and final MACT rules, 

even though the Agency was not 

required to do so. More to the point, 

because it is only guidance, sources will 

have the opportunity to raise questions 

or comments on anything in the 

guidance as part of the permitting 

process and the permitting authority 

will be required to respond to those 

comments as part of the permitting 

process. See 40 CFR part 124. Sources 

will also have the right to challenge the 

responses or use of the guidance as part 

of the permitting process. 

3. Codification of Criteria for 

Determining That Additional RiskBased Permit Conditions or an SSRA Is 

Necessary 

CKRC argues that EPA’s proposed 

regulatory changes should not be 

considered as a partial grant because 

EPA has not codified specific criteria in 

the proposed regulations for permit 

authorities to use to decide whether to 

require an SSRA; to set the risk levels 

that are deemed protective; or to 

otherwise provide any further definition 

as to what it means to protect human 

health and the environment. 

In its petition, CKRC requested that 

after we repeal the policy and guidance 

(per the first request), ‘‘should EPA 

believe it can establish the need to 

require SSRAs in certain situations, 

CKRC urges EPA to undertake an 

appropriate notice and comment 

rulemaking process seeking to 

promulgate regulations establishing 

such requirements.’’ As discussed at 

length in both the proposal (69 FR 

21325–21327) and the preceding 

paragraphs, we believe that we have 

established certain circumstances where 

the MACT standards may not be 

protective and that an SSRA may be 

warranted, based on relevant sitespecific factors associated with an 

individual combustion unit. 

Consequently, we are finalizing 

regulations that explicitly authorize 

permitting authorities to conduct or 

require an SSRA on a site-specific basis. 

This, in our view, grants the second of 

CKRC’s requests. Our response directly 

addresses a number of CKRC’s concerns: 

(1) Through a notice and comment 

rulemaking process, EPA has 

established circumstances in which an 

SSRA may be necessary; and (2) EPA’s 

regulations will now explicitly 

59514 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

acknowledge that an SSRA might be 

necessary as part of the permitting 

process, thereby addressing the 

petitioner’s concern that EPA’s past 

approach of relying on RCRA’s omnibus 

authority to implement this policy 

violates the requirements of RCRA 

§ 3005(b). And as discussed further 

below, EPA has codified criteria for 

permit authorities to use to determine 

whether to require an SSRA. 

While it does not provide exactly 

what CKRC requested, the regulated 

community has had a full opportunity 

to comment on the need for an SSRA 

both as part of the 1999 rulemaking and, 

again, as part of this rulemaking to 

adopt the provisions of § 270.10(l), 

which contain an explicit reference to 

the potential need for an SSRA as part 

of the permitting process pursuant to 

RCRA § 3004(a) and § 3005(b). As 

previously explained, § 270.10(k) does 

not explicitly mention the potential for 

an SSRA to be required. Although the 

rule does not identify a priori that an 

SSRA will be required in an individual 

circumstance, but defers that 

determination to the permitting process, 

the final rule reflects EPA’s findings that 

an SSRA is not anticipated to be 

necessary in every circumstance—only 

where site-specific conditions give the 

permit authority reason to believe that 

additional controls beyond those 

required pursuant to 40 CFR parts 63, 

264, 265, or 266 may be necessary to 

protect human health and the 

environment. 

CKRC argues that EPA’s decision not 

to codify national criteria renders the 

regulation impermissibly vague, and 

therefore, ‘‘in their view totally deficient 

as a legal matter.’’ The petitioner argues 

that the rule is essentially ‘‘a bootstrap 

attempt to avoid rulemaking 

requirements by establishing ‘rules’ that 

give no more guidance or direction than 

general terms in the statute and in no 

way channel the decision maker’s 

discretion or put the public on notice of 

anything.’’ According to CKRC, this 

unbridled discretion is manifest in three 

ways: (1) No criteria explain how a 

permit writer is to decide whether to 

require an SSRA; need merely to 

conclude ‘‘reason to believe’’; (2) there 

are absolutely no limits on what type of 

information or assessments the permit 

writer may demand and the proposed 

reg. does not even hint at what type of 

information or assessments might be 

demanded; and (3) there is not a word 

of guidance or specification as to what 

it means to ‘‘ensure protection of human 

health and the environment.’’ The 

petitioner argues that as a consequence, 

the proposed § 270.10(l) would be 

struck down as a ‘‘standardless 

regulation.’’

EPA disagrees that the provisions at 

§ 270.10(l) are impermissibly vague, or 

otherwise inconsistent with the cases 

the petitioner cites. In the cited cases 

the courts found that the regulated 

entity bore the entire burden of 

determining how to comply with the 

challenged regulation in the complete 

absence of a government-generated 

standard or guidance. See Maryland v. 

EPA, 530 F.2d 215, 220 (4th Cir. 1975); 

South Terminal Corp v. EPA, 504 F.2d 

646, 670 (1st Cir. 1974). This is entirely 

distinct from the regulations codified at 

§ 270.10(l). 

In § 270.10(l) EPA identified the 

standard for when a risk assessment 

may be necessary: where the regulatory 

authority identifies factors or conditions 

at the facility that indicate that the 

MACT standards may not be sufficiently 

protective, and defers the articulation of 

the more precise requirement to the 

permitting process, where the onus falls 

on the permitting authority to identify 

the basis for its determination. Until the 

permitting authority provides this 

further guidance, the regulated entity 

incurs no obligation. The mere fact that 

specific factors or facility conditions 

that form the basis for the determination 

that an SSRA is warranted will be 

subsequently identified through the 

permitting process does not invalidate 

the regulation. See Ethyl Corp v. EPA, 

306 F.3d 1144, 1149–1150 (D.C. Cir. 

2002). 

The regulation also identifies the 

categories of information that might be 

required for MACT EEE facilities: The 

information must be necessary to 

determine whether additional controls 

are needed to ensure protection of 

human health and the environment; it 

can include the information necessary 

to evaluate the potential risk from both 

direct and indirect exposure pathways; 

or it can include the information 

necessary to determine whether such an 

assessment is necessary. Here as well, 

EPA’s reliance on the permitting process 

to provide further specification of the 

required information is not improper. 

Moreover, as discussed above in 

subsection C., in response to 

commenters’ concerns, EPA has revised 

§ 270.10(l) to provide more detail, both 

with respect to the basis for the 

determination that an SSRA is 

necessary, and with respect to the type 

of information the permit authority 

might need. EPA has added language to 

remind permit authorities that the 

determination that the MACT standards 

may not be sufficiently protective is to 

be based only on factors relevant to the 

potential risk from the hazardous waste 

combustion unit at the site. EPA has 

also added language to § 270.10(l) to 

identify guiding factors for permitting 

authorities to consult in determining 

whether the MACT will be sufficiently 

protective at an individual site. 

Although the list of guiding factors is 

not all-inclusive, they offer a structure 

for risk managers (as well as the 

regulated community) to use to frame 

the evaluation of whether a combustor’s 

potential risk may or may not be 

acceptable. 

Finally, we note that, unlike the 

circumstances in the cited cases, 

§ 270.10 is promulgated in the context 

of an existing permitting regime. The 

regulatory standards at 40 CFR part 124 

provide further structure for both the 

regulated community and the permit 

authority. For similar reasons, EPA 

disagrees that the cited cases compel the 

Agency to establish risk levels that are 

deemed protective, or to otherwise 

provide any further definition as to 

what it means to protect human health 

and the environment. We discussed at 

length throughout the proposal the 

reasons we believe it would not be 

appropriate to codify either an exclusive 

set of national criteria for determining 

that an SSRA (or additional risk-based 

permit conditions) would be necessary, 

or a uniform risk level. The decision to 

require an SSRA is inherently site 

specific, thus permitting authorities 

need to have the flexibility to evaluate 

a range of factors that can vary from 

facility to facility. See 69 FR 21328–

21331. CKRC has neither presented new 

factual or policy reasons that would 

cause the Agency to reconsider the 

tentative decisions presented in the 

proposal, nor specifically addressed the 

issues underlying EPA’s decision. 

Instead, the petitioner has merely 

reiterated the concerns presented in its 

petition and its general disagreement 

with EPA’s decision. 

EPA also disagrees that its new 

regulatory structure grants permit 

writers unbridled discretion for many of 

the same reasons that EPA does not 

believe that § 270.10(l) is impermissibly 

vague. As EPA has previously 

explained, the requirements at Part 124 

continue to apply to actions taken to 

implement § 270.10(l). Moreover, the 

language of § 270.10(l) makes clear that 

the onus initially falls on the permitting 

authority to identify the basis for its 

conclusion that the MACT standards 

may not be sufficiently protective. As 

both part 124 et. seq., and EPA’s 

preamble discussions make clear, 

facilities will continue to have the 

opportunity to comment on and 

challenge the determination. See 

§§ 124.10, 124.11, and 124.19. The 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59515 

regulatory structure adopted in 

§ 270.10(l) mirrors the structure 

Congress established in sections 3004 

and 3005; although 3004 directs EPA to 

establish national standards, section 

3005 recognizes that those standards 

will be applied on a case-by-case basis 

through the permitting process, to allow 

site-specific conditions to be taken into 

account, and to supplement those 

standards as necessary. 

EPA has also provided 

recommendations through guidance on 

how an SSRA can be conducted. 

Although the recommendations are not 

binding, they provide risk managers (as 

well as the facility) with a starting point 

from which to determine whether a 

combustor’s potential risk may or may 

not be acceptable. 

CKRC argues that it appears that 

rather than following the statutory 

authorities and requirements to review 

and amend regulations every 3 years as 

necessary (RCRA § 2002(b)), EPA 

decided to take the easy way out and 

impose, through non-rulemaking 

‘‘guidance’’, massive, costly, and 

confusing requirements leaving 

unbridled discretion to its permit 

writers. 

We disagree that the Agency has 

attempted to avoid rulemaking in this 

context. EPA has conducted several 

rulemakings to amend our regulations. 

The first was in 1999, when we adopted 

revised emission standards under the 

authority of both § 112(d) of the CAA 

and RCRA to more rigorously control 

toxic emissions from burning hazardous 

waste in incinerators, cement kilns, and 

lightweight aggregate kilns. See 64 FR 

52828. At the time, we noted that 

‘‘today’s rule fulfills our 1993 and 1994 

public commitments to upgrade 

emission standards for hazardous waste 

combustors.’’ We have continued to 

revise our regulations consistent with 

and based on the facts before the 

Agency, taking into account the 

arguments presented in CKRC’s petition. 

As explained above, we believe that the 

facts do not support granting all of 

CKRC’s requests. Rather we believe that 

the MACT standards will generally be 

protective, and that permit authorities 

should reach the decision to require an 

SSRA based on a variety of factors and 

concerns specific to their sites. In 

addition, as previously addressed, we 

believe that our risk assessment 

guidance should remain as guidance. 

Several other commenters agree that the 

guidance should not be codified. 

The petitioner argues that the 

regulation EPA has proposed to adopt is 

so vague, that it is essentially not a 

regulation, and that consequently, even 

if finalized, it would not be sufficient to 

comply with the requirement in RCRA 

§ 3005(b) to specify in regulations, the 

information necessary to obtain a 

permit. They compare the level of detail 

in § 270.10(l) to the lengthy regulations 

(codified in 40 CFR part 270) specifying 

in great detail the information required 

when one is submitting a RCRA permit 

application, arguing that ‘‘these 

regulations cover 75 pages of fine print 

in Code of Federal Regulations,’’ to 

demonstrate that this regulation would 

be insufficient under RCRA § 3005(b). In 

further support of this argument, CKRC 

cites Ethyl Corporation v. EPA, 306 F.3d 

1144 (D.C. Cir. 2002). 

EPA disagrees that its regulations are 

in any way inconsistent with the 

decision in Ethyl Corp. At issue in that 

case was a regulation issued pursuant to 

section 206(d) of the CAA. Section 

206(d) provides that EPA ‘‘shall, by 

regulation, establish methods and 

procedures for making tests under this 

section.’’ 42 U.S.C. 7525(d). The court 

found that ‘‘with CAP 2000, [the 

challenged regulation] the EPA does not 

claim to have itself articulated even a 

vague durability test. Rather CAP 2000 

requires that ‘the manufacturer shall 

propose a durability program’ for EPA 

approval. 40 CFR 86.182301(a). It thus 

falls on the forbidden side of the line.’’

Ethyl Corp., 306 F.3d at 323–324. The 

Court distinguished the challenged 

regulation from the situation in which 

an agency issues a ‘‘vague’’ regulation, 

and relies on subsequent proceedings to 

flesh out the specific details. And as the 

court explained, where ‘‘Congress had 

not specified the level of specificity 

expected of the agency, we held that the 

agency was entitled to broad deference 

in picking the suitable level.’’ 306 F.3d 

at 323 (citing American Trucking 

Associations v. DOT, 166 F.3d 374 (D.C. 

Cir. 1999) and New Mexico v. EPA, 114 

F.3d 290 (D.C. Cir. 1997). 

In § 270.10(l) EPA has articulated the 

standard for when a risk assessment 

may be necessary: where the regulatory 

authority has identified factors or 

conditions at the facility that indicate 

that the MACT standards may not be 

sufficiently protective. EPA has also 

adopted a list of factors on which permit 

writers are to rely in reaching this 

determination. EPA has also identified 

the categories of information that might 

be required for MACT EEE facilities: 

The information must be necessary to 

determine whether additional controls 

are needed to ensure protection of 

human health and the environment; it 

can include the information necessary 

to evaluate the potential risk from both 

direct and indirect exposure pathways; 

or it can include the information 

necessary to determine whether such an 

assessment is necessary. While it does 

not provide as much detail as the 

petitioner wishes, this provision 

unquestionably ‘‘defines the type of 

information necessary for a permit 

application.’’

Thus, the issue turns on the level of 

specificity that RCRA § 3005(b) requires, 

and EPA does not believe that RCRA 

§ 3005(b) requires EPA to publish a list 

of every possible piece of information 

that might be required in a permit. 

Section 3005(b) merely establishes a 

broad directive that ‘‘each application 

for a permit under this section shall 

contain such information as may be 

required under regulations promulgated 

by the Administrator,’’ and that it shall 

include the information contained in 

subsections (1) and (2), leaving to EPA’s 

discretion to determine the level of 

specificity at which to promulgate 

regulations. To some extent, this reflects 

the reason for having a permit process—

to allow site specific conditions to be 

taken into account. The regulatory 

structure adopted in § 270.10 mirrors 

the structure Congress established in 

RCRA § 3004 and § 3005. Despite the 

petitioner’s comparison to the length of 

part 270, the length of these provisions 

are not indicative of any determination 

of the precise level of detail that 

§ 3005(b) requires, but reflects the fact 

that EPA has adopted requirements 

specific to individual types of units. 

Moreover, notwithstanding the 

petitioner’s characterization, the 

language at § 270.10(l) is comparable to 

many other provisions in 40 CFR part 

270. See, for example: §§ 270.14(b)(8); 

270.16(h)(1)–(2); 270.22(a)(6)(i)(C); 

270.22(c). 

Lastly, CKRC argues that the proposed 

regulation is particularly problematic, 

because it extends beyond 

‘‘information’’ that may already exist. 

CKRC says that it is one thing to 

demand that a party go out and gather 

existing information, but another thing 

to demand that an applicant conduct 

‘‘assessments.’’ Moreover, nothing in the 

regulations prohibits a permit authority 

from demanding revised assessments, 

and even more revised assessments. We 

agree that permit authorities have the 

authority to require facilities to provide 

additional information beyond that 

which already exists. However, based 

on feedback from EPA Regional permit 

writers, SSRAs generally represent a 

one-time cost. We do not expect that 

facilities that have conducted risk 

assessments will have to repeat them. 

As discussed in the 1999 final rule 

preamble, changes to comply with the 

MACT standards should not cause an 

increase in risk for the vast majority of 

facilities given that the changes, in all 

59516 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

242For example, hazardous waste burning cement 

kilns that previously monitored hydrocarbons in 

the main stack may elect to install a mid-kiln 

sampling port for carbon monoxide or hydrocarbon 

monitoring to avoid restrictions on hydrocarbon 

levels in the main stack. Thus, their hydrocarbon 

emissions may increase. (64 FR 52843, footnote 29.) 

Another example would be if the only change at a 

facility relates to the exposed population; what was 

acceptable in a previous risk assessment may not 

be any longer. 

243Although we expect that the vast majority of 

Phase 1 sources will have had their RCRA permits 

modified by the time this rule is promulgated, we 

acknowledge that there may be a few permits yet 

to be modified. 

probability, will be the addition of 

pollution control equipment or a 

reduction in the hazardous waste being 

burned (see 64 FR 52842). Instances 

where a facility may need to repeat a 

risk assessment would be related to 

changes in conditions that would likely 

lead to increased risk.242 In such 

situations, we would anticipate that the 

risk assessment would not have to be 

entirely redone. It may be as limited as 

collecting relevant new data for 

comparison purposes, leading to a 

decision not to repeat any portion of a 

risk assessment. Or, it may be more 

inclusive such that modifications would 

be made to specific inputs to or aspects 

of the risk assessment using data from 

a previous risk assessment, risk burn or 

comprehensive performance test. As 

discussed in subsection B., we have 

added a new regulatory provision to 

indicate a previously conducted risk 

assessment would be relevant in 

evaluating changes in conditions that 

may lead to increased risk. The factor 

reads as follows: ‘‘Adequacy of any 

previously conducted risk assessment, 

given any subsequent changes in 

conditions likely to affect risk.’’

4. EPA’s Cost Estimates for SSRAs 

CKRC raised several objections to our 

cost estimates for conducting an SSRA, 

and provided higher cost estimates 

($200K to $1M, with upper bound of 

$1.3M). We suggested in the proposal, 

that the higher cost figures provided by 

CKRC were likely incurred prior to the 

1998 release of the Human Health Risk 

Assessment Protocol (HHRAP) guidance 

document. We believe our lower cost 

estimates can be attributed to the fact 

that we based them on the conduct of 

future SSRAs that will benefit from 

substantially better guidance and 

commercially available software. 

Multiple issues regarding the cost 

information we provided in the 

proposal are raised by CKRC. The first 

of five issues is that CKRC believes that 

EPA’s methods for calculating costs 

associated with future SSRAs do not 

include data gathering costs, QA/QC, 

third party consultants in addition to 

risk assessors and plant personnel time 

to coordinate and review SSRA efforts 

and collect facility data. We disagree 

with this statement in part; the 

estimates developed by the Agency do 

include data gathering costs, QA/QC, 

and third-party consultants. (Refer to 

the proposed rule’s support document 

entitled: Preliminary Cost Assessment 

for Site Specific Risk Assessment, 

November 2003, Docket # OAR–2004–

0022; and the Assessment of the 

Potential Costs, Benefits, and Other 

Impacts of the Hazardous Waste 

Combustion MACT Replacement 

Standards—Final Rule, October 12, 

2005, for a description of how the 

estimates were arrived at.) However, we 

agree with CKRC that the method used 

to develop SSRA costs does not capture 

facility time associated with data 

collection and management related to 

the SSRA. Consequently, we have 

adjusted our SSRA cost estimates to 

account for these activities by 

incorporating costs associated with time 

needed for facility data collection and 

management efforts associated with the 

SSRA, and will assume that engineering 

staff are required to perform these tasks. 

The second issue concerns the extent 

to which cement kiln SSRAs are 

consistent with EPA’s ‘‘normal’’

assumptions. We do not question the 

accuracy of the costs submitted by 

CKRC. However, it is not clear that the 

costs submitted by CKRC represent 

typical future costs for SSRA 

implementation at all facilities in the 

universe. Certain of the CKRC cost 

estimates (e.g., those submitted by Ash 

Grove and Holcim) reflect 

implementation of SSRAs over a 

number of years in the 1990s, while 

SSRA implementation was in its early 

stages. In other cases (e.g., estimates 

provided by Solite) costs appear to be 

consistent with EPA estimates. While 

we do not dispute the accuracy of these 

costs, earlier costs are likely to reflect 

the deliberative process common with 

early SSRAs. 

For the third issue, CKRC’s points out 

that EPA’s estimate of 20 percent 

additional cost for adding a risk burn 

during a trial burn may be low; CKRC 

asserts that additional test costs can add 

up to 40 percent depending on the 

circumstances. We agree with this and 

have adjusted the range of total SSRA 

costs as necessary to assure that a range 

of additional test costs for separate risk 

burns (20 to 40 percent incremental 

cost) are included. For revised figures, 

see background document, Assessment 

of the Potential Costs, Benefits, and 

Other Impacts of the Hazardous Waste 

Combustion MACT Replacement 

Standards—Final Rule, October 12, 

2005. 

CKRC’s fourth issue is that EPA does 

not appear to include more than 

evaluations of stack emissions in its 

estimates of SSRA costs. We disagree 

with this comment. The estimates of 

SSRA costs developed by the Agency 

reflect total contractor costs for 

performing an SSRA at a facility under 

different sets of conditions, and are not 

limited to stack emissions. 

In the fifth cost-related issue, CKRC 

asserts that EPA’s average estimates 

might be reasonable if the SSRA process 

were limited to the submission and 

acceptance of one SSRA effort. CKRC 

contends, however, that its members’

experiences with SSRAs have involved 

coordination with state and regional 

offices and multiple revisions and 

submissions. Again, we do not question 

the experiences and costs of specific 

facilities. However, we anticipate that 

the 2003 Memorandum, Use of the SiteSpecific Risk Assessment Policy and 

Guidance for Hazardous Waste 

Combustion Facilities, and the Human 

Health Risk Assessment Protocol for 

Hazardous Waste Combustion Facilities 

guidance, which is finalized and 

released in conjunction with today’s 

rule, will provide facilities and 

regulators with a clearer understanding 

of SSRA policy and guidance and will 

support a more efficient SSRA process. 

EPA’s future SSRA cost estimates are 

based on current or recent cost data 

from multiple practitioners, and likely 

reflect a more efficient process than that 

experienced by some CKRC members in 

the 1990s. 

X. Permitting 

As discussed in the proposal, we 

believe that the permitting approach we 

adopted in the 1999 final rule is still the 

most appropriate means to avoid 

duplication to the extent practicable and 

to streamline requirements. Thus, both 

Phase 1 and Phase 2 sources will 

comply with their RCRA emission limits 

and operating requirements until they 

demonstrate compliance with the 

MACT standards by conducting a 

comprehensive performance test (CPT), 

submitting a Notification of Compliance 

(NOC) documenting compliance to the 

Administrator or delegated state, and 

then requesting to have their RCRA 

permits modified to remove the 

duplicative RCRA requirements (unless 

a sunset clause had been added 

previously that inactivates specified 

requirements upon compliance with 

MACT).243 Ultimately, the MACT air 

emissions and related operating 

requirements will reside in the CAA 

Title V permit, while all other aspects 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59517 

244The requirements in § 63.1206(b)(5)(ii) call for 

sources to revise (as necessary) the performance test 

plan, DOC, NOC, and start-up, shutdown, and 

malfunction plan. For sources complying with the 

Interim Standards, it is not necessary to revise the 

performance test plan or the DOC, since they were 

developed in preparation for compliance with the 

Interim Standards. 

of the combustion unit and the facility 

(e.g., corrective action, general facility 

standards, other combustor specific 

concerns such as material handling, 

risk-based emission limits and operating 

requirements, and other hazardous 

waste management units) will remain in 

the RCRA permit. A new pictorial 

timeline has been provided to highlight 

milestones of the MACT compliance 

process. See figure 1 at the end of this 

section. 

A. What is the Statutory Authority for 

the RCRA Requirements Discussed in 

this Section? 

EPA is finalizing amendments to 

modify RCRA permits in today’s rule 

pursuant to sections 1006(b), 2002, 

3004, 3005 and 7004(b) of RCRA. 42 

U.S.C. §§ 6905(b), 6912, 6924, 6905, and 

6074. Our approach is likewise 

consistent with section 112(n)(7) of the 

Clean Air Act which indicates that EPA 

should strive to harmonize requirements 

under section 112 and RCRA 

requirements for hazardous waste 

combustion sources. With respect to the 

regulatory framework that is discussed 

in this section, we are finalizing the 

process to eliminate the existing RCRA 

stack emissions national standards for 

hazardous air pollutant for Phase 2 

sources as we had done for Phase 1 

sources in the 1999 final rule. That is, 

after submittal of the NOC established 

by today’s rule and, where applicable, 

once RCRA permit modifications are 

completed at individual facilities, RCRA 

national stack emission standards will 

no longer apply to these hazardous 

waste combustors (unless risk-based 

permit conditions are determined 

necessary). 

We originally issued emission 

standards under the authority of section 

3004(a) and (q) of RCRA, which calls for 

EPA to promulgate standards ‘‘as may 

be necessary to protect human health 

and the environment.’’ We believe that 

the final MACT standards are generally 

protective of human health and the 

environment, and that separate RCRA 

emission standards are not needed to 

protect human health and the 

environment. See Part Seven, How Does 

the Final Rule Meet the RCRA 

Protectiveness Mandate? for a 

discussion of this topic. RCRA section 

1006(b) directs EPA to integrate the 

provisions of RCRA for purposes of 

administration and enforcement and to 

avoid duplication, to the maximum 

extent practicable, with the appropriate 

provisions of the Clean Air Act (and 

other federal statutes). This integration 

must be done in a way that is consistent 

with the goals and policies of these 

statutes. Therefore, based on its findings 

regarding the protectiveness of the 

MACT standards, and pursuant to 

section 1006(b), EPA is generally 

eliminating the existing RCRA stack 

emission standards to avoid duplication 

with the new MACT standards. The 

amendments made today to allow new 

combustion units to comply with the 

MACT standards upon start-up, versus 

the RCRA stack emissions national 

standards, are based on the principle of 

avoiding duplication between programs. 

We are not stating that RCRA permit 

conditions to control emissions from 

these sources will never be necessary, 

only that the national RCRA standards 

appear to be unnecessary. Under the 

authority of RCRA’s ‘‘omnibus’’ clause 

section 3005(c)(3); (see §§ 270.32(b)(2) 

and (b)(3)), RCRA permit authorities 

may impose additional terms and 

conditions on a site-specific basis as 

may be necessary to protect human 

health and the environment. Thus, if 

MACT standards are not protective in 

an individual instance, RCRA permit 

writers will establish permit limits that 

are protective. 

In RCRA, Congress gave EPA broad 

authority to provide for public 

participation in the RCRA permitting 

process. Section 7004(b) of RCRA 

requires EPA to provide for, encourage 

and assist public participation in the 

development, revision, implementation, 

and enforcement of any regulation, 

guideline, information, or program 

under the Act. 

B. Did Commenters Express any 

Concerns Regarding the Current 

Permitting Requirements? 

Generally speaking, commenters favor 

maintaining the permitting approach 

and requirements referred to above. This 

approach was finalized in the 1999 rule 

and has been implemented, and in a few 

cases is currently being implemented, 

for Phase 1 sources complying with the 

Interim Standards Rule. However, 

several commenters raised similar 

concerns regarding certain aspects of the 

transition process from RCRA to MACT 

and Title V permitting. 

1. Removal of Duplicative RCRA Permit 

Conditions 

One comment is in regard to Phase 1 

sources that have been fully transitioned 

(i.e., have had duplicative RCRA permit 

conditions and requirements removed 

or that have been ‘‘sunsetted’’) to 

compliance with the Interim Standards 

that may need to make upgrades to 

comply with the revised Phase 1 MACT 

Standards. The concern is that Phase 1 

sources needing to make upgrades for 

MACT should be able to do so without 

a RCRA permit modification (unless 

risk-based conditions are present). We 

agree with the commenters that as long 

as the technology upgrades (e.g., 

equipment changes to upgrade air 

pollution control equipment) do not 

affect any remaining conditions in the 

RCRA permit, the regulations do not 

require a permit modification. For those 

Phase 1 sources that need to make 

upgrades to comply with the revised 

standards, they should address the 

specific upgrades in their draft 

Notification of Intent to Comply (NIC) 

and during the informal NIC public 

meeting so that the regulatory authority 

and public are aware of the source’s 

activities and plans for compliance. We 

encourage early communication 

between the source and the RCRA 

permit writer to ensure a common 

understanding of whether a RCRA 

permit modification will be needed. 

Additionally, Phase 1 sources must 

comply with the provisions of 

§ 63.1206(b)(5) for changes in facility 

design. We do not anticipate that 

upgrades made to comply with the 

Replacement Standards will adversely 

affect a source’s compliance with the 

Interim Standards. Therefore, consistent 

with § 63.1206(b)(5)(ii), sources must 

document the change in their operating 

record, revise their NOC and resubmit it 

to the permitting authority (per 

§ 63.9(h)), and, as necessary, revise their 

start-up, shutdown, and malfunction 

plan.244

Several commenters felt that we 

should re-emphasize the importance of 

removing duplicative RCRA permit 

conditions and requirements. We agree 

with the commenters that this is an 

important action for regulatory agencies. 

In addition to comments received, we 

also have learned through the 

implementation process for the Interim 

Standards, that some state agencies are 

not removing duplicative requirements 

from the RCRA permit. We have clearly 

stated in several preambles and 

guidance documents that we believe it 

is appropriate to retain only the RCRA 

risk-based conditions that are more 

stringent than the applicable MACT 

limits (i.e., if the RCRA condition has 

been determined to limit risk to an 

acceptable level and is necessary to 

protect human health and the 

environment) in the RCRA permit after 

59518 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

245As an example, a RCRA permit could specify 

a higher minimum operating temperature than what 

is necessary for the facility to achieve compliance 

with MACT. The lower minimum operating 

temperature under MACT may be sufficient, unless 

the RCRA permit authority determines that the 

higher RCRA temperature is necessary to limit risk 

to an acceptable level for that facility. There should 

be a connection between the RCRA limit and 

protection of human health and the environment 

when retaining a RCRA limit. 

compliance with MACT.245 However, 

we also acknowledge that in certain 

cases it may not be clear which 

compliance requirement is more 

stringent. For example, standards under 

MACT are expressed as concentration 

based limits (micrograms/dry standard 

cubic meter) while certain RCRA 

standards are expressed as mass 

emission rate limits (grams/second). 

Also, averaging times between the two 

programs differ: MACT requires hourly 

rolling averages whereas RCRA requires 

instantaneous values. This is an 

unfortunate consequence of moving 

compliance from a risk-based program 

to a technology-based program. Because 

we cannot definitively say when a 

RCRA requirement is more stringent 

than a MACT requirement and 

consistently apply it to all sources, we 

are relying on sources and permitting 

agencies to work together to determine 

which requirement is more stringent. If 

the MACT requirement is determined to 

be more stringent, the permitting agency 

can remove the requirement from the 

RCRA permit. 

In adopting a permitting approach to 

place the MACT air emissions and 

related operating requirements in the 

CAA Title V permit and to keep all 

other aspects of the combustion unit 

and the facility in the RCRA permit, our 

intent was and still is, to minimize 

duplication to the extent practicable and 

to eliminate the potential for dual 

enforcement. We view it as an 

unnecessary duplication of effort 

between programs as well as an 

unnecessary expenditure of resources 

and costs for both facilities and 

regulatory authorities to maintain a 

RCRA permit and a Title V permit that 

contain duplicative requirements, when 

there are viable mechanisms (i.e., Class 

1 modification procedure at 270.42 

Appendix I, section A.8, or Class 2 or 

3 if a state has not adopted the Class 1 

procedure) in place to avoid doing so. 

Nevertheless, we believe that states 

should have the flexibility to decide 

how they will allocate their resources, 

which is why we did not include a 

single transition approach for 

implementing agencies to follow in the 

1999 rule or in today’s rule. So, in such 

cases where a state agency chooses not 

to adopt the transition language (i.e. the 

Class 1 modification procedure at 

270.42 Appendix I, section A.8) into 

their state requirements (e.g., because 

the state’s procedures are broader in 

scope or more stringent than the federal 

requirements) or is unable to reach an 

agreement between its RCRA and air 

programs regarding which standards are 

more stringent, the Title V permitting 

authority should document these issues, 

including any continuing RCRA permit 

requirements, in the title V permit’s 

statement of basis (40 CFR §§ 70.7(a)(5) 

and 71.7(a)(5)). This will help to ensure 

that the source is clear regarding its 

compliance obligations, which is a main 

goal of the Title V program. Further, for 

purposes of clarification and as a matter 

of courtesy, we urge regulatory 

authorities that choose to impose dual 

compliance requirements, to also 

provide a written justification to the 

source explaining the reasons for their 

decisions. 

2. Transition of Interim Status Phase 2 

Units From RCRA to CAA Permits 

In response to our discussion in the 

proposal regarding RCRA permitting for 

interim status Phase 2 units (69 FR 

21324), two commenters suggest that 

EPA establish policy and/or regulation 

that discourage further RCRA permitting 

work for interim status Phase 2 sources. 

Their comments are directed our 

statement in the proposal that the RCRA 

combustion permitting procedures in 40 

CFR part 270 also continue to apply 

until you demonstrate compliance. As 

noted in this statement, we intended for 

Phase 2 sources to continue to be 

subject to RCRA permitting 

requirements for air emissions standards 

and related operating parameters, 

including trial burn planning and 

testing, until they have demonstrated 

compliance with the MACT standards 

by conducting a comprehensive 

performance test and submitting an 

NOC to the Agency. However, we also 

provided several factors that should be 

taken into consideration when 

determining whether to proceed with 

the RCRA permit process such as: the 

facility’s permit status at the time the 

MACT rule becomes final, the facility’s 

anticipated schedule for MACT 

compliance, the priorities and schedule 

of the regulatory agency, and the level 

of environmental concern at a given site 

(69 FR 21324). 

To support their position, the 

commenters noted that time and 

resources would be conserved and 

duplicative and overlapping activities 

could be minimized if Phase 2 sources 

were permitted solely via Title V. Also, 

they argued that it would avoid 

expending resources to modify the 

RCRA permit once the source has 

demonstrated compliance with MACT. 

We agree with commenters that every 

effort should be made to conserve 

resources and avoid duplication to the 

extent possible. However, we do not 

believe it is appropriate to establish 

policy or regulation that permitting 

authorities must suspend the RCRA 

permit process (whether it pertains to 

interim status or renewals), especially in 

cases where considerable time and effort 

has been invested and the permit is 

close to final issuance. As before, we 

strongly encourage sources and 

regulatory authorities to work together 

to establish an approach that will 

provide for the most practical transition. 

For example, we strongly recommend 

that sunset provisions be included in a 

permit that will be issued well in 

advance of compliance with MACT to 

avoid duplication and a later 

modification to remove the duplicative 

RCRA conditions. Also, it would make 

more sense to transition a source to 

MACT compliance prior to issuing the 

RCRA permit if it will comply with 

MACT early. 

3. Transition From Compliance With the 

Interim Standards to the Replacement 

Standards 

A specific question that has been 

raised relates to the applicable 

standards and operating parameters that 

the source must comply with during the 

period between the rule’s effective date 

for the Phase 1 Replacement Standards 

and submission of their new NOC. Upon 

the publication date of the rule, the 

Replacement Standards (and Phase 2 

Standards) will become effective and 

sources will have 3 years to come into 

compliance. During this 3-year period, 

Phase I sources’ existing title V permits 

will either be reopened to include the 

Replacement Standards, or the 

permitting authority will have 

incorporated the Replacement 

Standards during permit renewal. In 

this example, a Phase 1 source’s Title V 

permit has been reopened, revised, or 

renewed and includes the Replacement 

Standards, the compliance date has not 

yet passed, no new documentation of 

compliance (DOC) for the replacement 

standards has been included in the 

operating record, and the source has not 

yet conducted a comprehensive 

performance test and submitted a new 

NOC (therefore it still has an NOC 

containing the operating parameters for 

compliance with the Interim Standards). 

In the above scenario, the question 

asked is whether the source should 

comply with the Interim Standards in 

the current NOC or the Replacement 

Standards in the Title V permit. The 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59519 

246 In all likelihood, we anticipate that the RCRA 

permit authority will have reviewed the 

modification request along with the test plans, 

worked with its Air counterparts and the source to 

resolve any concerns, and have prepared the permit 

Continued 

source should comply with the Interim 

Standards until the compliance date of 

the Replacement Standards. Although 

the Title V permit now includes the 

Replacement Standards, the permit will 

also include the Replacement 

Standards’ future compliance date. With 

regard to the transition from the Interim 

Standards NOC to the Replacement 

Standards DOC, we are revising the 

regulations at § 63.1211(c) to render the 

NOC, which documented compliance 

with the Interim Standards, inapplicable 

upon inclusion of the DOC for the 

Replacement Standards in the operating 

record by the compliance date. Thus, 

the source will not be placed in a 

situation where it must continue to 

ensure compliance with the operating 

parameters established in the NOC for 

the Interim Standards, while seeking to 

comply with the Replacement Standards 

and operating parameters in its DOC. 

Although it can be assumed that the 

source would still be able to comply 

with its Interim Standard-based NOC 

because the Replacement Standards are 

the same as or more stringent than the 

Interim Standards, we believe that the 

revision to render the previous NOC 

inapplicable provides a clearer and 

more sensible approach. 

4. Changes to Title V Permits 

Both the Replacement Standards and 

the Phase 2 Standards will necessitate 

permit reopenings or revisions to some 

existing title V permits; other permits 

will incorporate the requirements upon 

renewal. 40 CFR §§ 70.7 and 71.7 

include the requirements for Title V 

permit revisions, reopenings, and 

renewals. Also, approved Title V 

permitting authorities may have 

additional requirements. Please refer to 

the appropriate permitting authority and 

its individual Title V permits program 

to determine the necessary requirements 

and procedures. 

With respect to incorporating minor 

revisions into the Title V permit, one 

commenter had asked, for example, 

whether revisions made to the NOC to 

reflect minor operating changes could 

be incorporated into the permit by 

reference rather than through the 

reopening procedures. Determining the 

appropriate Title V permit reopening or 

revision requirements is based on the 

nature of the change and the source 

specific permit terms and conditions, 

and is therefore difficult to generalize. 

We recommend that sources work with 

their Title V permit authorities to 

determine the appropriate requirements 

and procedures that are applicable to 

any specific situation. However, we 

would like to note that, when 

incorporating requirements by reference 

into the Title V permit is appropriate, 

this does not necessarily obviate the 

need for permit revisions if the material 

incorporated by reference is 

subsequently revised. For more 

information on incorporation by 

reference, please refer to the Office of 

Air Quality Planning and Standards’

‘‘White Paper Number 2 for Improved 

Implementation of the Part 70 Operating 

Permits Program’’ (March 5, 1996), 

Section II.E.2.c. This paper can be found 

at: http://www.epa.gov/ttn/oarpg/t5/ 

memoranda/wtppr-2.pdf. 

C. Are There Any Changes to the 

Proposed Class 1 Permit Modification 

Procedure? 

In the NPRM, we proposed a new 

Class 1, with prior Agency approval, 

permit modification procedure to help 

further minimize potential conflicts 

between the RCRA permit requirements 

and MACT requirements. See 69 FR 

21384 and proposed § 270.42(k). During 

implementation of the Interim 

Standards for Phase 1 sources, it became 

evident that there are two significant 

instances where RCRA permit limits 

may overlap with MACT requirements: 

during initial (and future) performance 

testing and during the period between 

placement of the documentation of 

compliance (DOC) in the operating 

record and the final modification of the 

RCRA permit after receipt of the NOC. 

We discussed several existing 

approaches (e.g., a class 2 or 3 

modification, request for approval 

submitted via the RCRA trial burn plan 

or coordinated MACT/RCRA test plan, 

or through a temporary authorization) 

for addressing these instances, noting 

that none provided an optimal solution. 

All commenters agreed that the new 

Class 1 modification procedure is the 

appropriate and most efficient method 

to enable specific RCRA permit 

conditions to be waived during 

instances of overlap referred to above. 

However, a few commenters were 

concerned with the requirements in 

proposed § 270.42(k)(2)(ii) and (k)(3), 

that require sources to submit their 

permit modification request upon 

approval of the test plan and the 

requirement for the Director to approve 

or deny the request within 30 days, or 

within 60 days with an extension. This 

timeframe is feasible only for those 

sources that have received approval of 

their test plans at least 60 days prior to 

their scheduled date for commencing 

their performance test. We 

acknowledged the potential 

impracticality of this requirement in the 

proposal, but at the time believed that 

few sources, if any, would conduct their 

performance tests without an approved 

test plan. While this still may be true, 

we have learned that sources who 

received extensions for testing (so that 

they would have an approved plan), 

typically commenced their test shortly 

after approval. Consequently, this still 

would not allow enough time to review 

and approve the permit modification 

before the test begins. Thus, the new 

Class 1 modification would be of no 

benefit to facilities that conduct their 

tests without an approved test plan, or 

to facilities that received extensions and 

need to begin their tests upon or shortly 

after approval of the test plan. Also, we 

found one other circumstance where the 

timeframes could be problematic: If a 

permitting agency has allowed sources 

to begin pretesting/testing upon 

approval of the test plan. Again, a 

source would not be able to have RCRA 

permit requirements waived in time to 

begin its test. 

We agree with commenters that the 

proposed requirements in 

270.42(k)(2)(ii) and (iii) do not provide 

any flexibility to waive RCRA permit 

limits for sources that (1) do not have 

an approved test plan but choose to 

conduct their test; (2) are granted an 

extension to their test date because they 

do not yet have an approved test plan; 

and (3) may begin testing upon approval 

of their test plans. Our original intent to 

require prior Agency approval for the 

new Class 1 permit modification 

procedure was to ensure that the 

proposed test conditions would be 

sufficiently protective when specific 

RCRA requirements are waived and that 

a source has met the regulatory 

requirements for performance test plans. 

We still believe that review and 

approval is an important step; however, 

we also believe it should not be a barrier 

and therefore, should occur in advance 

of a source commencing its performance 

test. As a result, we have revised the 

proposed regulatory language in 

270.42(k)(2)(i) to specify that sources 

submit their permit modification 

requests with their test plans, to allow 

potentially up to one year for approval 

(i.e., the performance test plan is due 

one year before the test is to begin). 

Also, so that approval does not impede 

the commencement of the performance 

test, we have revised the proposed 

language in 270.42(k)(2)(ii) so that the 

Director can choose whether to issue 

approval of the permit modification 

request contingent upon approval of the 

performance test plan.246 In that respect, 

59520 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

modification approval prior to issuance of the test 

plan approval. 

247Units ‘‘newly’’ entering the RCRA permit 

process refers to a newly constructed facility, thus 

newly constructed hazardous waste combustion 

unit; an existing facility that constructs a new unit; 

or an existing facility that converts a non-hazardous 

fuel combustion unit to a hazardous waste fuel 

combustion unit. 

the RCRA permit authority would 

continue to have an extra measure of 

assurance in circumstances that may 

demand it. 

D. What Permitting Approach Is EPA 

Finalizing for New Units? 

1. Why Did EPA Propose a Separate 

Permitting Approach? 

As discussed in the proposal, the 

current RCRA regulations at §§ 264.340, 

265.340, 266.100, 270.19, 270.22, 

270.62, and 270.66 do not address how 

or when new combustion units will 

comply with the MACT standards. 

Consequently, the part 270 regulations 

imply that a new unit must obtain a 

complete RCRA permit before it can 

demonstrate compliance with the 

MACT standards. It was never our 

intent for new units to develop a trial 

burn plan and provide suggested 

conditions for the various phases of 

operation in the RCRA permit 

application, given that these conditions 

will become inactive or need to be 

removed from their permits upon 

demonstrating compliance with MACT. 

To rectify our previous omission, we 

suggested several options that would 

allow units newly entering the RCRA 

permit process 247 (and that will comply 

with the Subpart EEE requirement upon 

start-up) to forego certain RCRA permit 

requirements and performance 

standards. In developing the options 

that would enable new units to forego 

certain RCRA requirements, we noted 

the importance of public participation 

opportunities under the MACT/CAA 

framework equivalent to those provided 

under the RCRA framework. Thus, each 

option was constructed in such a way 

that would streamline the RCRA 

requirements, but continue to provide 

early and frequent public participation 

commensurate with the requirements of 

the RCRA Expanded Public 

Participation Rule (60 FR 63417, 

December 11, 1995). 

2. What Options Did EPA Propose for 

Permitting New Units? 

In our preferred approach, we 

proposed that new units not be required 

to develop a trial burn plan and provide 

suggested conditions for the various 

phases of operation in their RCRA 

permit application. Instead, new units 

would only be required to address the 

remaining RCRA activities at the facility 

in their permit application (or 

modification request) including 

corrective action, general facility 

standards, other combustor specific 

concerns such as materials handling, 

risk-based emission limits and operating 

requirements, and other hazardous 

waste management units. While this 

approach appears to be ideal from the 

standpoint of reducing the regulatory 

burden to sources and RCRA permit 

authorities, we noted that even though 

a new unit will be required to meet the 

RCRA public participation requirements 

as part of the permit application 

process, the operations and emission 

information specific to the combustor 

would no longer be provided. Thus, we 

focused on certain compliance activities 

under the MACT/CAA framework (i.e., 

the Notification of Intent to Comply 

requirements) that would allow for 

combustor-specific information to be 

made available to the public as it would 

have been under the full RCRA permit 

process. 

Regarding the three additional 

approaches or ‘‘options’’, each 

considered a different point in the 

RCRA permit process where a new unit 

could ‘‘transition’’ to compliance with 

the MACT standards (see 69 FR 21319). 

Under the first option, a new unit could 

transition to MACT compliance after it 

had submitted its RCRA Part B 

application. The Part B however, would 

not include the trial burn plan 

information. The new unit would only 

be required to discuss the compliance 

activities related to the combustor as 

part of the RCRA informal public 

meeting. In the second option, we 

proposed that a new unit would 

transition after its RCRA permit has 

been issued. Here, the new unit would 

be required to develop a trial burn plan 

which provided its proposed operations 

and emissions information and to 

discuss its compliance activities via the 

RCRA informal public meeting. Then, a 

permit would be issued, but it would 

not contain operating and emissions 

requirements in order to avoid a future 

modification to remove them. For the 

third option, the transition point would 

have been after the new unit places the 

DOC in its operating record, which is 

the compliance point for MACT. This 

option is more inclusive than the 

second because it requires the new unit 

to have a draft permit that covers the 

construction and shakedown period. 

3. Which Option Is EPA Finalizing? 

For today’s final rule, we are adopting 

our preferred, proposed approach: new 

units will not be required to follow the 

full RCRA permitting process for 

establishing combustor operations and 

emissions. Thus, new units are not 

subject to the combustor-specific RCRA 

permit requirements and performance 

standards (i.e., to develop a trial burn 

plan, provide suggested conditions for 

the various phases of operation in their 

permit application, and subsequently 

operate under those conditions). 

However, because these units remain 

hazardous waste treatment units, they 

are still required to obtain a RCRA 

permit, or to modify an existing RCRA 

permit to include a new unit, prior to 

construction. They need only address 

the remaining hazardous waste 

management activities at the facility in 

their permit application (or 

modification request) including 

corrective action, general facility 

standards, other combustor specific 

concerns such as materials handling, 

risk-based emission limits and operating 

requirements, and other hazardous 

waste management units. As we noted 

in the previous section and will discuss 

again more thoroughly in the next 

section, we are relying on the NIC 

process to provide the public with the 

combustor-specific information that 

previously would have been provided 

under the full RCRA permit process. 

Almost all commenters supported our 

preferred approach to not require that 

new units complete the full RCRA 

permit process and to rely on the NIC 

requirements and the MACT/CAA 

framework to provide a level of public 

participation that is commensurate with 

the requirements under RCRA. 

Commenters generally agreed that our 

preferred approach achieves this goal 

while streamlining the RCRA permit 

process for new units. One commenter 

felt that the Title V and New Source 

Review programs (NSR) provide 

sufficient requirements to regulate new 

combustion units. We disagree that 

either or both of those programs fully 

address the hazardous waste and public 

participation components 

commensurate with that provided by 

the approach we are finalizing today. 

For instance, a unit may be constructed 

and operating before a Title V permit is 

issued, which directly conflicts with 

RCRA’s early public participation 

requirements. Also, in some instances, 

public participation may not be a 

required component of state issued NSR 

permits (see footnote regarding public 

participation and SIPs below). However, 

we do believe that the NSR program will 

play an important role regarding the 

exchange of information, as we will 

discuss in the section below. With 

respect to the remaining three options 

presented in the proposal (69 FR 21319–

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59521 

248We believe that the majority of new units will 

be classified as major sources for NSR permitting 

(requiring either prevention of significant 

deterioration or nonattainment permits), however, 

those that do not, will likely be required to obtain 

a minor NSR permit. In few cases, new sources (e.g., 

newly constructed as opposed to modified) may not 

be required to obtain an NSR permit if its potential 

to emit does not exceed the NSR threshold level. 

249With respect to numbers 4 and 5, many States 

omitted the public participation steps in their 

federally approved SIPs. This was the reason why 

Sierra Club had been opposed to our efforts to 

simply rely on NSR permitting to provide public 

participation opportunities that would have been 

otherwise provided under the traditional RCRA 

permit process for new units. Today, however, 

many SIPs have been revised to address public 

participation requirements. 

250Comprehensive performance test plans are 

required to be submitted one year in advance of the 

scheduled test. The submittal date would be as late 

as 2.5 years after the effective date of the rule 

assuming no extensions are granted. 

21320) that suggested a transitional 

approach (i.e., each option explored 

progressive points in the RCRA permit 

process where facilities could transfer 

over to MACT without fully completing 

the RCRA process), nearly all 

commenters were in agreement that they 

would require more work to implement 

than is necessary and consequently 

oppose them. 

4. How Will Permitting for New Units 

Work? 

In the proposed rule, we created an 

approach that utilizes the NIC 

requirements and the MACT/CAA 

framework with the intent of ensuring 

that the requirements of the RCRA 

Expanded Public Participation Rule 

would continue to be fulfilled. The four 

requirements for public participation as 

they relate to hazardous waste 

combustion units are: (1) Permit 

applicants must hold an informal public 

meeting before applying for a permit; (2) 

permit agencies must announce the 

submission of a permit application 

which will tell community members 

where they can view the application 

while the agency reviews it; (3) 

permitting agencies may require a 

facility to set up an information 

repository at any point during the 

permitting process if warranted; and (4) 

permitting agencies must notify the 

public prior to a trial (or test) burn. 

As discussed in the preamble to the 

proposal (69 FR 21318), we believe that 

the NIC process addresses the first two 

RCRA public participation 

requirements. The NIC process requires 

a source to make its draft NIC, which 

discusses the source’s plan for coming 

into compliance with the MACT 

standards, available for public review 

and to hold an informal public meeting 

to discuss the activities contained in the 

NIC. While the NIC process gives the 

public an early opportunity to 

participate in the unit’s compliance 

planning process early on, a few 

components are still missing before we 

can consider the first 2 RCRA public 

participation requirements to be 

fulfilled under the MACT framework. 

One component is that there is no 

permit action associated with the NIC 

requirements. However, the NSR 

program can provide a permit 

mechanism that will determine whether 

or not a source may be constructed.248

The steps associated with obtaining an 

NSR permit, or a ‘‘pre-construction’’

permit, are similar, but not necessarily 

identical to that required under RCRA. 

They are: (1) Preparation of the permit 

application (sources must provide the 

location, design, construction, and 

operation information) and participation 

in pre-application meetings; (2) issuance 

of permit application completeness 

determination by the State; (3) 

development and negotiation of draft 

permit; (4) opportunity for public notice 

and comment on the draft permit; (5) 

response of permitting authority to 

public comments; (6) possible 

administrative and judicial appeals; and 

(7) permit issuance/denial.249

A second component is that the NIC 

does not provide the information on the 

proposed combustor operations or 

emissions information that would 

normally be available as part of the 

RCRA process. To address these gaps 

between RCRA and MACT, we are 

requiring an approach similar to that 

which was proposed. New sources 

must: (1) Prepare a draft NIC and make 

it available to the public at the same 

time as their RCRA pre-application 

meeting notice; (2) provide a draft of 

their comprehensive performance test 

(CPT) plan (to the public) to coincide 

with the draft NIC and RCRA preapplication meeting notices; and (3) 

hold their NIC public meeting with their 

RCRA informal public meeting. The first 

two requirements ensure that the public 

is provided with most of the same 

information that would have been 

available via the RCRA trial burn plan 

prior to the source burning hazardous 

waste. Other information not required 

by the NIC or CPT plan, such as the 

combustion unit’s design specifications 

will, in most cases, be available to the 

public through the NSR permit 

application. We recommend that 

sources submit a copy of their NSR 

permit application to the RCRA permit 

authority so that this information is 

readily available for development of the 

RCRA permit. The third requirement 

allows the public to inquire and 

comment on both the new unit’s 

proposed activities and operations. By 

requiring new sources to develop, 

notice, and hold a combined public 

meeting that encompasses the NIC, draft 

CPT plan, and RCRA pre-application 

notice information, the public will be 

provided with all information related to 

the combustor’s compliance plans as 

well as its operating plans and 

emissions estimates prior to burning 

hazardous waste. See new requirements 

in § 63.1212. 

With respect to the requirements we 

are finalizing today, we received only 

one comment that expressed concern. 

The concern is that the requirement to 

submit the CPT plan is too early in the 

compliance process. For example, the 

RCRA application is submitted 

approximately 2–3 years before start-up 

whereas the CPT plan is required 1.5 

years after the final NIC is due.250 The 

commenter feels that the facility would 

not have enough time to learn about the 

‘‘detailed nuances of the system’’. 

However, the commenter does note that 

it is possible to submit the CPT plan, 

but it will not be as complete or refined 

as it would be if it was submitted 

according to the deadline for existing 

units. We agree with the commenter that 

a considerable amount of planning is 

required of the source to be able to draft 

the CPT plan at such an early stage, but 

we are only requiring that a draft of the 

CPT plan be made available, with the 

final CPT plan due 6 months prior to the 

source’s compliance date. Moreover, at 

this early stage, we liken the 

development of the draft CPT plan to 

the development of the trial burn plan. 

Even though it may not be as complete 

or refined as it will be when the final 

CPT plan is due, we believe that it will 

still be of benefit to the public and the 

regulatory authority, but also to the 

source in terms of advance planning for 

the design of the unit through start-up 

of the unit. 

The components thus far, have 

satisfied the first (2) two RCRA public 

participation requirements. The third 

RCRA public participation requirement 

enables a regulatory authority to 

evaluate the need for and require a 

facility to establish and maintain an 

information repository. The 

establishment of an information 

repository is typically required only 

when there are concerns or unique 

information needs of a community. The 

purpose of the information repository is 

to make information regarding the 

facility (and combustion unit) available 

to the public during the permit issuance 

process and during the life of the 

permit. In the preamble, we noted that 

59522 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

251Because the information required for NSR 

permit is less comprehensive than a RCRA permit, 

it allows for a much shorter time period for 

issuance. The average time for issuing a PSD 

permit, for example, after receiving an application 

is slightly more than 7 months, but varies 

depending upon public involvement and 

negotiation of the application content. USEPA. 

Docket A–2001–19, Document II–A–01. NSR 90-Day 

Review Background Paper, June 22, 2001. 

although the Title V permit process 

contains a provision that any materials 

relevant to the permit decision be made 

available to interested persons (see 

§ 70.7(h)(2) and § 71.11(d)), the 

information may not be made available 

until well after the combustor is 

constructed and operating. 

Consequently, we have chosen to adopt 

additional provisions under the NIC 

requirements that parallel the 

requirements of § 124.33. 

We had proposed two options that 

would allow a regulatory authority to 

require, on a case-by-case basis, a source 

to establish an information repository 

specific to the combustor. The first 

option was to place such a provision in 

the NIC regulations and the second 

option was to amend the applicability 

language in § 124.33 to include 

combustion sources that will comply 

with Part 63, subpart EEE upon start-up. 

Two commenters felt that the second 

option would create problems as far as 

organization (i.e., by modifying the 

RCRA regulations to include a provision 

solely for new units complying with 

MACT). We agree that the second option 

could be confusing and that it would be 

more appropriate to keep all new 

requirements for new units in one set of 

regulations. Therefore, we are finalizing 

a provision that will allow for an 

information repository to be established 

specific to the combustor (recall that a 

repository established pursuant to the 

RCRA permit will include documents 

relevant to the facility only), if deemed 

appropriate, under the NIC regulations. 

See new § 63.1212(c). Under the NIC 

regulations, the repository could 

include the NIC, test plans, draft Title 

V permit and application, reports, et 

cetera. 

The fourth and final RCRA public 

participation requirement to be fulfilled 

is for the regulatory authority to notify 

the public of an impending trial burn or 

test burn. As discussed in the RCRA 

Expanded Public Participation Rule, the 

RCRA permit authority will typically 

provide the notice at least 30 days in 

advance of the test (60 FR 63426, 

December 11, 1995). Similarly, the 

MACT regulations require an existing or 

new unit to provide notice to the public 

that the CPT plan (and the continuous 

monitoring system performance 

evaluation test plan) is available for 

review. The regulations in 

§ 63.1207(e)(2) fulfill this requirement. 

Although the CPT plan may not be 

approved before the public is notified, 

the intent is to provide notice to the 

public of a future test. We believe that 

the MACT regulations provide public 

notice of the test plans that are 

commensurate with the RCRA 

regulations and thus, no additional 

regulatory revisions or amendments are 

needed. 

4.a. Process for New Units Seeking an 

Initial RCRA Permit 

We anticipate that the process for new 

units seeking an initial permit will work 

as follows. Any new unit would begin 

the process by developing and 

compiling the information necessary for 

the RCRA draft permit (e.g., information 

required for the part A application at 

§ 270.13, the relevant general 

information for the part B application 

according to Part 270) and the 

applicable NSR permit.251 The 

information needed to compile the draft 

NIC and draft CPT plan would be 

gathered simultaneously, as if the 

source were developing the trial burn 

plan. When the source has compiled its 

RCRA permit application, draft NIC and 

draft CPT plan, it would submit a RCRA 

pre-application meeting notice at least 

30 days prior to the date scheduled for 

the RCRA informal public meeting 

according to §§ 124.31(b) and (d). At the 

time of the RCRA pre-application 

meeting notice, the source would also 

issue notice of the NIC public meeting 

(at least 30 days prior to the NIC 

meeting) according to § 63.1210(c)(3), so 

that the two meetings can occur at the 

same time. In order for the public to be 

able to view all information relevant to 

the combustor before the combined 

RCRA pre-application and NIC public 

meeting, the source would make the 

draft NIC and draft CPT plan available 

to the public for review at the same time 

the notices for the meetings are issued. 

To aid the RCRA permit authority in its 

development of the draft RCRA permit 

(i.e., mainly for purposes of evaluating 

risk), we strongly recommend that the 

source also provide copies of the draft 

NIC, draft CPT plan, and NSR 

application (if applicable) to the RCRA 

permit authority. It is our hope that the 

availability of information will expedite 

the development of the draft permit. All 

notices should be presented to the 

public in sufficient time to allow for a 

combined RCRA informal public 

meeting and NIC public meeting. 

Following the combined public 

meeting, the source will submit its 

RCRA permit application and the RCRA 

regulatory authority will prepare and 

issue a draft permit. The public will 

then have an opportunity to comment 

on the draft permit and request a public 

hearing. Upon resolution of any issues 

surrounding the draft permit, a final 

RCRA permit will be issued. The RCRA 

process is the same as before, but should 

be reasonably shorter. Finally, the new 

unit may begin burning hazardous waste 

when it can assure it will operate in 

compliance with the MACT standards 

(i.e., by placing a documentation of 

compliance in its operating record on 

the day it begins burning hazardous 

waste). See new regulatory language at 

§ 63.1212(c). To aid readers in 

understanding the above process, we 

have included a pictorial timeline. 

Please see figure 2. 

Finally, it may also be feasible to 

combine an NSR pre-application 

meeting and public notice of the draft 

NSR permit with the process described 

above. Thus, we recommend that 

sources work closely with their Air and 

RCRA permit agencies so that the NSR 

public notices and meetings may be 

coordinated with the RCRA and NIC 

notices and meetings so time and 

resources are efficiently utilized. 

4.b. Process for New Units Modifying an 

Existing RCRA Permit 

The process of adding a new unit to 

an existing permit is accomplished 

through a Class 3 permit modification 

(see § 270.42 (c) for requirements). The 

requirements governing public notices 

of the draft NIC, draft CPT plan, and 

holding a combined public meeting are 

essentially the same as new units 

seeking an initial permit. The process is 

as follows. The source prepares and 

submits its RCRA permit modification 

request (and if applicable, NSR 

application). It must then publish a 

notice of the modification request seven 

days later, followed by a public meeting 

no earlier than 15 days after publication 

of the notice for the modification 

request, and no later than 15 days before 

the close of the 60-day comment period. 

As with new units that are submitting 

an initial RCRA permit application, it is 

also important for sources seeking to 

modify their permit to coordinate their 

NIC public meeting with their RCRA 

permit modification public meeting. 

This is made possible due to the 

flexibility of the NIC public meeting; it 

can be held any time prior to the 10 

month deadline. After the combined 

public meeting and the close of the 

comment period, the permit authority 

will either grant or deny the 

modification request. If approved, the 

source may then begin construction or 

modification of the unit. To aid readers 

in understanding the timing of the 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59523 

252As explained in the Comment Response 

Document vol. V, although § 502(a) allows EPA to 

exempt area sources from title V permitting 

requirements if EPA finds that those requirements 

would be (among other things) ‘‘unnecessarily 

burdensome’’, we believe that Title V requirements 

remain appropriate for these sources given the 

highly toxic nature of the HAP and the importance 

of affording opportunity for public participation as 

provided for in the Title V permit issuance process. 

above process, we have included a 

pictorial timeline. Please see figure 2. 

Again, it may be feasible to combine 

an NSR pre-application meeting and 

public notice of the draft NSR permit 

with the process described above. Thus, 

we recommend that sources work 

closely with their Air and RCRA permit 

agencies so that the NSR public notices 

and meetings may be coordinated with 

the RCRA and NIC notices and meetings 

so time and resources are efficiently 

utilized. 

E. What Other Permitting Requirements 

Were Discussed in the Proposal? 

At proposal, we discussed where most 

Phase 1 sources would be in terms of 

their transition from their RCRA permit 

requirements to compliance with the 

MACT Interim Standards (see 69 FR 

21321). The transition process was 

discussed with respect to both the 

RCRA permit and the Title V permit. 

However, when we discussed the Title 

V permit requirements in the proposal, 

we did not elaborate on the transition 

between the Interim Standards and 

Replacement Standards. Because we 

believe that such a discussion would be 

helpful to readers, we have included 

general information describing how the 

transition process would work for most 

sources in Section B. Did Commenters 

Express any Concerns Regarding the 

Current Permitting Requirements?, 

subsections 3 and 4. 

For Phase 2 sources, we proposed the 

same permitting approach as we did for 

Phase 1 sources. Today, we are 

finalizing as proposed, the following for 

Phase 2 sources: (1) the new Phase 2 

emissions standards will be placed only 

in the CAA regulations at 40 CFR part 

63, subpart EEE, and be implemented 

through the air program; (2) with few 

exceptions, the analogous standards in 

the RCRA regulations no longer apply 

once a facility demonstrates compliance 

with the MACT standards in subpart 

EEE and any duplicative requirements 

have been removed from the RCRA 

permit; and (3) the new standards will 

be incorporated into operating permits 

issued under Title V of the CAA rather 

than be incorporated into RCRA 

permits. Consequently, we are finalizing 

the proposed changes to §§ 270.22 and 

270.66 to implement the above. Also 

applicable to Phase 2 sources via today’s 

final rule are the changes and additions 

we finalized in the 1999 final rule for 

Phase 1 sources. These include a 

streamlined RCRA permit modification 

procedure to allow sources to make 

upgrades to comply with MACT 

(§§ 270.42(j) and 270.42 appendix I, 

section L.9), a second streamlined RCRA 

permit modification procedure to 

remove conditions from a permit that 

are no longer applicable (§ 270.42 

appendix I, section A.8), an addition to 

§ 270.235 to specify conditions for startup, shutdown, and malfunction plan 

and integrate them with the CAA 

program, and an amendment to the 

interim status regulations at § 270.72 to 

exempt interim status facilities from the 

reconstruction limitation when making 

upgrades to comply with MACT. 

Also, we are finalizing three new 

permitting changes that are applicable 

to both Phase 1 and 2 sources. Two have 

been discussed previously in this 

section and are: (1) A new streamlined 

RCRA permit modification procedure 

designed to reduce overlap during the 

transition from RCRA to MACT 

(§§ 270.42(k) and 270.42, appendix I, 

L.10); and (2) regulatory provisions 

stating that new units are no longer 

subject to the full array of RCRA 

combustion permitting requirements. 

The third change is discussed above in 

Section IX. Site-Specific Risk 

Assessment Under RCRA and finalizes 

our response to a petition for 

rulemaking with respect to site-specific 

risk assessments (SSRAs). As part of this 

change we have decided to adopt 

regulatory language that specifically 

provides clarification of authority for 

RCRA permit writers to evaluate the 

need for and, where appropriate, require 

SSRAs and to add conditions to RCRA 

permits that they determine, based on 

the results of an SSRA, are necessary to 

protect human health and the 

environment. 

Last, as explained in part four section 

II.A, we are finalizing our decision to 

regulate emissions of dioxin/furans, 

mercury, polycyclic organic matter, and 

polychlorinated biphenyls from Phase 2 

area sources under section 112(d).252

This means that Phase 2 area sources are 

subject to MACT standards only for 

these hazardous air pollutants (HAP) in 

the final rule. To reiterate, they are: 

Dioxin/furans, mercury, and polycyclic 

organic matter (controlled by the 

surrogates DRE and carbon monoxide/ 

hydrocarbon). For the remaining HAP 

(hydrogen chloride and chlorine gas and 

metals other than mercury), Phase 2 area 

sources may either comply with the 

MACT standards for Phase 2 major 

sources or continue complying with the 

RCRA standards and requirements of 

their RCRA permit. 

In the 2004 proposal, we stated that 

we were not making a positive area 

source finding for Phase 2 area sources 

as we have for Phase 1 area sources (69 

FR 21212 and 21325). Regardless of this, 

however, the Phase 2 area sources are 

still subject to the requirement to obtain 

a Title V permit because they are subject 

to section 112 standards under this 

subpart. See § 502(a) of the CAA and 40 

CFR §§ 70.3(b)(2) and 71.3(b)(2). 

It is important to note that the Title 

V applications for the Phase 2 area 

sources will need to contain emissions 

information relative to all regulated air 

pollutants (to determine applicable 

requirements, fees, etc.) that are being 

emitted from the units subject to the 

MACT standards, not just the specific 

HAP pollutants regulated by the MACT 

standards (see §§ 70.5(c)(3)(i) and 

71.5(c)(3)(i)). Although, the permit itself 

would contain standards only for the 

HAP subject to MACT standards (the 

§ 112(c)(6) HAP). A Phase 2 area source 

which chooses to control hydrogen 

chloride, chlorine gas, and metals other 

than mercury by continuing to comply 

with the relevant RCRA standards and 

the requirements of its RCRA permit 

should note this choice in its Title V 

application and cite to the relevant 

requirements of this subpart. This will 

help ensure that the permitting 

authority is aware that these 

requirements apply in lieu of the MACT 

standards for Phase 2 major sources. 

The permitting authority should also 

document this choice in the statement 

of basis for the source’s Title V permit. 

See §§ 70.7(a)(5) and 71.7(a)(5). Finally, 

for the units at a source which are 

subject to the subpart EEE MACT 

standards, all CAA applicable 

requirements to which these units are 

subject, e.g., State Implementation Plan 

requirements, not just the relevant 

Subpart EEE requirements, must be 

included in the Title V permits issued 

to these sources. See §§ 70.3(c)(2) and 

71.3(c)(2). For more information 

regarding § 112(c)(6) and how it relates 

to Phase 2 area sources, see Part Four, 

Section II.A., ‘‘Area Source Boilers and 

Hydrochloric Acid Production 

Furnaces’’. 

BILLING CODE 6560–50–P 

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ER12OC05.004</GPH>
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ER12OC05.005</GPH>
59526 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

254For example, the final rule included approval 

of alternatives to requirements in §§ 63.1200, 

63.1203, through 63.1205, and 63.1206(a); approval 

of major alternatives to test methods under 

§ 63.7(e)(2)(ii) and (f); approval of major alternatives 

to monitoring under § 63.8(f) and; approval of major 

alternatives to recordkeeping and reporting under 

§ 63.10(f). 

255For contact information, please visit 

www.epa.gov/ttn/emc/staffdir.html. 

Part Five: What Are the CAA 

Delegation Clarifications and RCRA 

State Authorization Requirements? 

I. Authority for This Rule 

Today’s rule amends the promulgated 

standards located at 40 CFR part 63, 

subpart EEE. It amends the standards for 

the Phase 1 source categories—

incinerators, cement kilns, and 

lightweight aggregate kilns that burn 

hazardous waste, and it also amends 

subpart EEE to establish MACT 

standards for the Phase 2 source 

categories—boilers and hydrochloric 

acid production furnaces that burn 

hazardous waste. Additionally, this rule 

amends several RCRA regulations 

located in 40 CFR part 270 to reflect 

changes in applicability, addition of a 

new permit modification procedure, and 

additions related to site-specific 

assessments and permitting. 

II. CAA Delegation Authority 

Before discussing the clarifications 

being finalized today, it is important to 

first highlight a few key aspects of 

delegation authority. Recall from the 

proposal that a state, local, or tribal (S/ 

L/T) agency must be delegated authority 

under CAA section 112(l) before it can 

exercise the delegable provisions’

authorities. The delegable authorities 

can be found in 40 CFR 63.91(g)(1)(i), 

also known as Category I Authorities. A 

S/L/T agency that has applied for and 

received delegation authority can 

approve: test plans, requests for minor 

and in most cases, intermediate changes 

to monitoring and test methods, 

performance test waivers, and several 

other Category I Authorities. Please note 

that even though a S/L/T agency may 

have an approved Title V permit 

program, it cannot exercise delegable 

authorities or be the primary 

enforcement authority if it has not 

received delegation authority under 

CAA section 112(l). Moreover, when a 

S/L/T agency has not taken delegation 

of a section 112 standard, the agency 

can only incorporate the section 112 

standard’s requirements into its Title V 

permits, (and then implement and 

enforce these requirements through its 

title V permits) when it has adequate 

authority under State, local, or tribal 

law which allows it to conduct the 

above actions without delegation. See, 

e.g., the proposed Federal Plan for 

Commercial and Industrial Solid Waste 

Incinerators, November 25, 2002 (67 FR 

70640, 70652). Please also refer to 69 FR 

21335 of the proposal and the fact sheet 

entitled, Clean Air Act Delegation for 

the HWC NESHAP at: http:// 

www.epa.gov/epaoswer/hazwaste/ 

combust/toolkit/factshts.htm to learn 

more about the advantages of receiving 

delegation authority. 

Also, we would like to point out that 

there are several delegation options that 

S/L/T agencies can receive. Regardless, 

many S/L/T agencies choose the 

‘‘straight delegation’’ option when 

applying for delegation approval. 

Straight delegation means that these 

agencies have agreed to implement and 

enforce federal MACT standards as they 

have been written in the promulgated 

requirements. As a result, many EPA 

Regions and states have established 

memoranda of agreement that 

essentially provide automatic delegation 

of each future MACT, as opposed to the 

state applying for delegation of each 

future MACT, which requires a 

rulemaking to implement. For more 

information related to the delegation 

options and procedures, please refer to 

the fact sheet, Clean Air Act Delegation 

for the HWC NESHAP at: http:// 

www.epa.gov/epaoswer/hazwaste/ 

combust/toolkit/factshts.htm and EPA’s 

delegation website at: http:// 

www.epa.gov/ttnatw01/112(l)/112- 

lpg.html. 

III. Clarifications to CAA Delegation 

Provisions for Subpart EEE 

In the proposal, we discussed the 

need to provide additional clarification 

for the delegable and non-delegable 

authorities within Subpart EEE based 

upon our implementation experience 

with the Phase 1 Interim Standards and 

the Clarifications to Existing National 

Emissions Standards for Hazardous Air 

Pollutants Delegation’ Provisions final 

rule published on June 23, 2003 (68 FR 

37334). Although the June 23, 2003 final 

rule provided clarification and 

streamlined the delegable provisions for 

each existing NESHAP, it overlooked 

several non-delegable and delegable 

authorities within Subpart EEE. It 

provided clarification on the nondelegable authorities of Subpart EEE as 

they relate to major alternatives to the 

standards themselves and to test 

methods, monitoring, or recordkeeping 

and reporting under the General 

Provisions.254 However, it omitted 

major alternatives specific to Subpart 

EEE such as: test methods under 

§§ 63.1208(b) and 63.1209(a)(1); 

monitoring under § 63.1209(a)(5) and; 

recordkeeping and reporting under 

§ 63.1211(a) through (d). Therefore, the 

following paragraphs will explain 

which authorities in Subpart EEE are 

delegable and are not delegable to 

S/L/T agencies that have been delegated 

authority and will provide some 

examples of or references to alternative 

requests associated with each delegable 

or non-delegable provisions authority. 

To review, the regulations at 40 CFR 

63.90 define three types of alternative 

requests. Alternative requests or 

‘‘changes’’ to a particular delegable or 

non-delegable provision are classified as 

major, intermediate, or minor 

depending upon the degree (i.e., 

potential to be nationally significance, 

potential to reduce the stringency of the 

standard, etc.) of change being 

requested. An alternative request that 

qualifies as a major change is not 

delegable to S/L/T agencies, even when 

they have delegation authority. These 

requests must be sent to the EPA Region 

or, if it concerns a test method under 

§§ 63.7(e)(2)(ii) and (f), 63.1208(b) and 

63.1209(a)(1) or a standard under 

§§ 63.1200, 63.1206(a), or 63.1216–

63.1221, then it must be sent to our 

Office of Air Quality Planning and 

Standards (OAPQS).255 An alternative 

request that qualifies as an intermediate 

or minor change is delegable. However, 

the EPA Region may choose whether or 

not they will delegate authority to 

S/L/T agencies to approve intermediate 

and, even some minor changes during 

the delegation approval process. In 

addition to the regulations, the guidance 

document entitled, How to Review and 

Issue Clean Air Act Applicability 

Determinations and Alternative 

Monitoring (EPA 305–B–99–004, 

February 1999) provides a listing of 

delegable and non-delegable authorities 

in Tables 1 and 2, as well as 

descriptions and examples of major, 

intermediate, and minor changes in 

Attachment 1. 

A. Alternatives to Requirements 

Any change to a promulgated 

standard is considered a major change 

and as noted above, must be sent to 

OAQPS (see contact information in 

footnote). The reason why a change to 

a standard must be sent to EPA 

Headquarters is because the change 

must be established through national 

rulemaking, regardless of the degree of 

change sought. Thus, only OAQPS can 

approve alternative requests for changes 

to standards. Additionally, any change 

to applicability requirements and 

compliance dates (e.g., requirements 

that ensure that the standards are 

achieved as EPA intended) are also 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59527 

256The alternative risk-based standard for total 

chlorine at § 63.1215 requires sources to submit 

their eligibility demonstration to both the delegated 

S/L/T agency and to the Risk and Exposure 

Assessment Group in Research Triangle Park, NC 

for review, even though the delegated S/L/T agency 

can grant or deny approval. 

257For contact information, please visit 

www.epa.gov/ttn/emc/staffdir.html. 

258Although performance specifications have 

been promulgated for mercury CEMS, there has not 

been as much experience in implementing these 

devices for hazardous waste combustion sources (or 

similar sources) as there has been for PM CEMS at 

this time. Therefore, we believe it appropriate to 

continue sending requests to use mercury CEMS in 

lieu of an operating parameter to the appropriate 

EPA Region for review and approval. 

considered major and also must be sent 

to OAQPS for approval. Specific to 

Subpart EEE, alternative requirement 

requests including those pursuant to 

§§ 63.1200, 63.1206(a), or 63.1216–

63.1221 are considered major changes 

and consequently are non-delegable. 

The regulations at § 63.1214(c) correctly 

identified the requirements in Subpart 

EEE, however we have revised them 

today (as we proposed) to reflect the 

new sections that house the Phase 1 

Replacement Standards and Phase 2 

Standards. 

There are a few exceptions to the 

above, however. Subpart EEE 

incorporates specific provisions for 

sources to request alternative standards 

which are delegable because they have 

been established through rulemaking. In 

fact, several alternative standards are 

self-implementing meaning that the 

source only need specify in their DOC 

which standard it will comply with. The 

alternative to the particulate matter 

standard in § 63.1206(b)(14) and the 

emissions averaging standards for 

cement kilns with in line kiln raw mills 

and preheater or preheater/precalciner 

kilns with dual stacks in § 63.1204(d) 

and (e) are three examples. There are 

also alternative standards that sources 

may petition to comply with. They 

include: Alternatives to the standards 

for existing and new LWAKs at 

§ 63.1206(9) and cement kilns at 

§ 63.1206(b)(10) and the alternative riskbased standard for total chlorine at 

§ 63.1215. Sources choosing to comply 

with these alternative standards must 

receive approval from their delegated S/ 

L/T agency prior to implementing 

them.256 With respect to changes to 

compliance dates, requests under 

§ 63.1213 specifically allow sources to 

request an extension to the compliance 

date for the installation of pollution 

prevention or waste minimization 

controls. Again, because this provision 

has been specified in subpart EEE, it is 

not considered a major change and is 

delegable. 

B. Alternatives to Test Methods 

With respect to test methods, we 

noted above that the final delegations 

rule stated that major alternatives to the 

test methods at §§ 63.7(e)(2)(ii) and (f) 

were not delegable. Therefore, as we 

proposed, it is necessary to add major 

alternatives to 63.1208(b), which 

specifies the test methods sources must 

use to determine compliance with 

subpart EEE. Also, we are adding the 

CEMS monitoring requirement under 

§ 63.1209(a)(1). It is regarded as a test 

method because it serves as a 

benchmark method for demonstrating 

compliance with the emission 

standards. Both sections are delegable to 

S/L/T agencies as long as they have 

been delegated authority and as long as 

the alternative requests comprise minor 

or intermediate changes. However, a 

major change to either of these test 

method sections must be sent to OAQPS 

for approval.257 Only OAQPS can 

approve major changes to test methods 

because they are designated in the 

standard as the means for determining 

compliance with an emission standard. 

The proposed revisions to § 63.1214 are 

finalized today to include major 

alternatives to test methods under 

§§ 63.1208(b) and 63.1209(a)(1) as nondelegable authorities. 

C. Alternatives to Monitoring 

For monitoring, the final delegations 

rule stated that major alternatives to 

monitoring at § 63.8(f) were not 

delegable, but did not reference 

monitoring specific to subpart EEE. In 

subpart EEE, the monitoring 

requirements are located in § 63.1209. 

This section also includes two 

provisions specific to alternative 

monitoring, thus removing some of the 

‘‘guesswork’’ when trying to discern 

whether a request for change is minor, 

intermediate, or major. One is located at 

§ 63.1209(a)(5), Petitions to use CEMS 

for other standards and the other is 

located at § 63.1209(g)(1), Alternative 

monitoring requirements other than 

continuous emissions monitoring 

systems. Each is discussed in the 

following paragraphs. 

In the proposal, we explained that a 

request to use other monitoring in lieu 

of a CEMS is always considered a major 

change due to CEMS generally being 

considered a more accurate measure of 

compliance. However, if a source 

requests to use a CEMS in lieu of a 

required operating parameter, it may be 

considered an intermediate change. 

Since publication of the proposal, 

performance specifications have been 

promulgated for PM CEMS (and 

mercury CEMS).258 Consequently, today 

we view requests per § 63.1209(a)(5) to 

use PM CEMS as intermediate changes 

to monitoring. Although the 

implementation of PM CEMS according 

to PS–11 (69 FR 1786 and 40 CFR part 

60, Appendix B; January 12, 2004) and 

Procedure 2 (see also 40 CFR part 60, 

Appendix F) is largely ‘‘selfimplementing,’’ sources wishing to 

apply to use of PM CEMS should 

develop and submit QA/QC plans 

specifying audit frequencies to account 

for site-specific stack conditions. We 

believe that other site-specific issues 

that may need to be addressed prior to 

use of the CEMS, such as a source’s 

request to deviate from PS–11 or a 

source’s selection of the correct 

correlation curve(s), are properly 

addressed under EPA’s established 

policies and procedures for alternative 

method requests. We believe that a 

petition to use PM CEMS under § 63.8(f) 

is still the appropriate mechanism, but 

that sources can submit their petitions 

to their delegated S/L/T agency for 

review and approval, and we 

recommend that EPA Regional offices 

work with these agencies to monitor 

implementation. Thus, with the 

exception of petitions to use PM CEMS 

in lieu of an operating parameter which 

is considered an intermediate change, 

we are finalizing our proposed revision 

to § 63.1214(c) to include major 

alternatives to monitoring under 

§ 63.1209(a)(5) as a non-delegable 

authority. 

Section 63.1209(g)(1), Alternative 

monitoring requirements other than 

continuous emissions monitoring 

systems, contains the other alternative 

monitoring provision. This provision 

allows sources to request alternative 

monitoring methods to monitor 

compliance, except for those standards 

that must be monitored with a CEMS 

(e.g., those in § 63.1209(a)(1)), and to 

request a waiver of an operating 

parameter limit. We provided several 

examples of alternative parameter 

monitoring for which a request may be 

submitted under this section in the 

proposal at 69 FR 21337. They include 

use of: a different detector, different 

monitoring location, a different method 

as recommended by the manufacturer, 

or a different averaging period that is 

more stringent than the applicable 

standard. In the proposal, we stated that 

we believe the majority of requests 

submitted pursuant to § 63.1209(g)(1) 

are not major and discussed in the 

preamble amending the language in 

§ 63.1209(g)(1) so that these types of 

changes could be reviewed and 

approved by the delegated S/L/T 

agency. However, when we added 

59528 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

259When new requirements and prohibitions 

(that are more stringent than the previous federal 

regulations) are imposed under non-HSWA 

authority, the new federal requirements do not take 

effect in an authorized state until the state adopts 

the federal requirements as law. Conversely, when 

imposed under HSWA authority, the new federal 

requirements are federally enforceable in an 

authorized state until the necessary changes to a 

state’s authorization are approved by EPA. 

language to § 63.1209(g)(1) to allow for 

the above, we inadvertently referred to 

an approved Title V program instead of 

a S/L/T agency which has taken 

delegation of subpart EEE. We have 

corrected and finalized the proposed 

language. Therefore, whether minor or 

intermediate, requests under 

§ 63.1209(g)(1) may be sent to your 

delegated S/L/T agency for review and 

approval. 

Please note that 63.1209(g)(1) cannot 

be used when requesting major changes 

to the monitoring required by the 

standard. Such changes typically 

involve new unproven monitoring 

methods. Unproven monitoring 

methods refer to those where the 

technology or procedures are not 

generally accepted by the scientific 

community (§ 63.90(a)). If you are 

uncertain whether your request 

constitutes a new unproven monitoring 

method, which is considered a major 

change, you should submit your request 

to your EPA Region. The regulatory 

language in 63.1209(g)(1) has been 

revised to reflect this clarification. 

D. Alternatives to Recordkeeping and 

Reporting. 

As with the others, the final 

delegation provisions’ rule only cited 

the waiver of recordkeeping and 

reporting requirements of § 63.10(f) as a 

non-delegable provision. Thus, it is 

necessary to add the relevant subpart 

EEE recordkeeping and reporting 

requirements of § 63.1211. Section 

63.1211 is delegable in its entirety to S/ 

L/T agencies unless an alternative 

request is determined to be a major 

change. An alternative request that is a 

major change, such as decreases in 

record retention for all records, must be 

sent to your EPA Region for review and 

approval. Similar to the monitoring 

section, § 63.1211 contains a specific 

alternative provision. Section 

63.1211(d) Data Compression, allows 

sources to request to use data 

compression techniques to record data 

from CMS and CEMS on a frequency 

less than that required by § 63.1209. We 

view the alternative request to be a 

minor change because available 

guidance provides criteria for defining 

fluctuation and data compression limits. 

See 64 FR 52961 and 52962, September 

30, 1999. Therefore, requests submitted 

under 63.1211(d) can be consistently 

evaluated by delegated S/L/T agencies. 

Section 63.1214(c) has been revised to 

specify that major alternatives to 

63.1211(a)—(c) are non-delegable 

authorities. 

E. Other Delegation Provisions 

Although not discussed in the 

proposal, it is important to note that 

issuing applicability determinations is 

another delegable authority. The EPA 

document How to Review and Issue 

Clean Air Act Applicability 

Determinations and Alternative 

Monitoring (EPA 305–B–99–004, 

February 1999) provides guidance 

regarding who has the lead for issuing 

applicability determinations. In general, 

Regions may delegate the authority to 

issue applicability determinations to S/ 

L/T agencies when the determinations 

are routine in nature. However, 

delegation of authority for certain 

applicability determinations should be 

retained by the Regions. These include 

applicability determinations that: (1) 

Are unusually controversial or complex; 

(2) have bearing on more than one state 

or district (are multi-Regional); (3) 

appear to create conflict with previous 

policy or determinations; (4) are a legal 

issue which has not previously been 

considered (a matter of first impression); 

or (5) raise new policy questions. It is 

recommended that Regional offices 

require notification when S/L/T 

agencies issue applicability 

determinations. 

IV. RCRA State Authorization and 

Amendments to the RCRA Regulations 

Under section 3006 of RCRA, EPA 

may authorize qualified states to 

administer their own hazardous waste 

programs in lieu of the federal program 

within the state. Following 

authorization, EPA retains enforcement 

authority under sections 3008, 3013, 

and 7003 of RCRA, although authorized 

states have primary enforcement 

responsibility. The standards and 

requirements for state authorization are 

found at 40 CFR Part 271. 

Prior to enactment of the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), a State with final RCRA 

authorization administered its 

hazardous waste program entirely in 

lieu of EPA administering the federal 

program in that state. The federal 

requirements no longer applied in the 

authorized state, and EPA could not 

issue permits for any facilities in that 

state, since only the state was 

authorized to issue RCRA permits. 

When new, more stringent federal 

requirements were promulgated, the 

state was obligated to enact equivalent 

authorities within specified time frames. 

However, the new federal requirements 

did not take effect in an authorized state 

until the state adopted the federal 

requirements as state law. 

In contrast, under RCRA section 

3006(g) (42 U.S.C. 6926(g)), which was 

added by HSWA, new requirements and 

prohibitions imposed under HSWA 

authority take effect in authorized states 

at the same time that they take effect in 

unauthorized states. EPA is directed by 

the statute to implement these 

requirements and prohibitions in 

authorized states, including the 

issuance of permits, until the state is 

granted authorization to do so. While 

states must still adopt HSWA related 

provisions as state law to retain final 

authorization, EPA implements the 

HSWA provisions in authorized states 

until the states do so. 

Authorized states are required to 

modify their programs only when EPA 

enacts federal requirements that are 

more stringent or broader in scope than 

existing federal requirements. RCRA 

section 3009 allows the states to impose 

standards more stringent than those in 

the federal program (see also 40 CFR 

271.1). Therefore, authorized states may, 

but are not required to, adopt federal 

regulations, both HSWA and nonHSWA, that are considered less 

stringent than previous federal 

regulations. 

We discussed in the proposal which 

RCRA regulations we intended to 

amend and their impact on state 

authorization procedures. Today, we are 

finalizing those amendments in 

§§ 270.10, 270.22, 270.32, 270.42, 

27062, 270.66, and 270.235. In addition, 

we are amending the regulations in 

§§ 264.340 and 266.100 to reflect 

changes that have been made based 

upon comments. Today’s amendments 

fall under both HSWA and non-HSWA 

authorities. That is, changes made to 

regulations applicable to boilers and 

industrial furnaces are promulgated 

under HSWA authority, whereas 

changes made to regulations applicable 

to incinerators are promulgated under 

non-HSWA authority. 259 All of the 

amendments made today are considered 

to be either less stringent or equivalent 

to the existing Federal program, which 

means that states are not required to 

adopt and seek authorization for these 

provisions regardless of whether they 

are finalized under non-HSWA or 

HSWA authorities. Nevertheless, we 

strongly encourage states to become 

authorized for today’s amendments. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59529 

260USEPA, ‘‘Final Technical Support Document 

for HWC MACT Standards, Volume V: Emission 

Estimates and Engineering Costs,’’ Section 3, July 

1999. 

Experience has shown that when states 

have been authorized for previous 

amendments (i.e., those finalized in the 

1999 rule) that were intended to 

facilitate the transition from the RCRA 

program to MACT and the CAA Title V 

program, the process has proven to be 

less cumbersome. For a more detailed 

discussion of non-HSWA and HSWA 

authorities with respect to how and 

when they take effect, please refer to the 

proposal’s preamble discussion at 69 FR 

21338. 

Several RCRA sections that have been 

enacted as part of HSWA apply to 

today’s rule: 3004(o), 3004(q), and 

3005(c)(3). Thus, if a state is not 

authorized for the boiler and industrial 

furnace regulations, these provisions are 

federally enforceable in an authorized 

state until the necessary changes to a 

state’s authorization are approved by us. 

See RCRA section 3006, 42 U.S.C. 6926. 

We are adding today’s requirements to 

Table 1 in 271.1(j) where rulemakings 

promulgated pursuant to HSWA 

authority are identified. 

Part Six: Impacts of the Final Rule 

I. What Are the Air Impacts? 

Table 1 below shows the emissions 

reductions achieved by the final rule for 

all existing hazardous waste 

combustors. For Phase I sources—

incinerators, cement kilns, and 

lightweight aggregate kilns—the 

emission reductions represent the 

difference in emissions between sources 

controlled to today’s standards and 

estimated emissions when complying 

with the interim MACT standards 

promulgated on February 13, 2002. 

Thus, the significant emissions 

reductions already achieved by the 

interim standards are not reflected in 

the estimates shown in Table 1.260 For 

Phase II sources—solid fuel boilers, 

liquid fuel boilers, and hydrochloric 

acid production furnaces—the 

reductions represent the difference in 

emissions between today’s standards 

and the current baseline of control 

provided by 40 CFR part 266, subpart H. 

Nationwide baseline HAP and 

particulate matter emissions from 

hazardous waste combustors are 

estimated to be approximately 12,650 

tons per year at the current baseline 

level of control. Depending on the 

number of facilities demonstrating 

compliance with health-based 

compliance alternatives for total 

chlorine, the total reduction of HAP and 

particulate matter for existing sources 

could be between approximately 2,260 

and 3,380 tons per year. A discussion of 

the emission estimates methodology and 

results are presented in ‘‘Technical 

Support Document for HWC MACT 

Replacement Standards, Volume V: 

Emission Estimates and Engineering 

Costs’’ that is available in the docket. 

TABLE 1.—NATIONWIDE ANNUAL EMISSIONS REDUCTIONS OF HAP AND

OTHER POLLUTANTS

Pollutant 

Estimated 

emission reductions 

(tons per year) 

Dioxin/furans1 ....................... 0.20 

All HAP metals ..................... 19.5 

Mercury ................................. 0.21 

Semivolatile metals (Cd, Pb) 2.9 

Low volatile metals (As, Be, 

Cr) ..................................... 6.5 

Other metals (Co, Mn, Ni, 

Sb, Se) .............................. 9.9 

HCl and chlorine gas2 .......... 1220 

Particulate matter ................. 2,140 

1 Dioxin/furan emission reductions are expressed as grams TEQ per year. 2We are promulgating health-based compliance alternatives for total chlorine for hazardous waste combustors other than hydrochloric acid production furnaces in lieu of the 

MACT technology-based emission standards 

(see Part Four, Section VII of the preamble for 

details). Given that a number of sources may 

elect to comply with the health-based compliance alternatives, the estimated reductions of 

total chlorine represent an upper bound 

estimate. 

II. What Are the Water and Solid Waste 

Impacts? 

We estimate that water usage for 

existing sources will increase between 

400 million and 1.6 billion gallons per 

year as a result of today’s rule. The 

upper range estimate represents the 

water usage assuming no sources elect 

to comply with the health-based 

compliance alternatives for total 

chlorine, while the lower range estimate 

represents water usage assuming all 

sources elect the alternative. Water 

usage increases are estimated for 

reducing combustion gas temperatures 

with evaporated spray coolers for 

dioxin/furan control as well as for new 

particulate matter and acid gas air 

pollution control equipment. The 

increased water usage will also result in 

an increase in wastewater generation. 

Depending on the number of sources 

that elect to comply with the healthbased compliance alternatives for total 

chlorine, we also estimate that up to 775 

million gallons of wastewater may be 

generated. 

We estimate that the generation of 

solid waste will increase between 

approximately 8,700 tons and 12,200 

tons per year depending on the number 

of sources that elect to comply with the 

health-based compliance alternatives for 

total chlorine. Of these totals, 

approximately 250 tons per year will be 

classified as hazardous waste subject to 

RCRA Subtitle C regulations. We 

estimate the remainder—between 8,450 

and 11,950 tons per year—will be 

classified and managed as a nonhazardous industrial waste subject to 

Subtitle D of RCRA. The costs 

associated with these disposal and 

water requirements are accounted for in 

the annualized compliance cost 

estimates. A discussion of the 

methodology used to estimate impacts is 

presented in ‘‘Technical Support 

Document for HWC MACT Replacement 

Standards, Volume V: Emission 

Estimates and Engineering Costs’’ that is 

available in the docket. We note that the 

nonair quality health and environmental 

impacts effects for both floor and 

beyond-the-floor options are discussed 

in the technical support document and 

are part of our consideration of such 

factors under section 112(d)(2). 

III. What Are the Energy Impacts? 

We estimate that the national annual 

energy usage as a result of this rule will 

increase between approximately 73 

million and 85 million kilowatt hours 

(kWh) depending on the number of 

sources that elect to comply with the 

health-based compliance alternatives for 

total chlorine. The increase results from 

the electricity required to operate air 

pollution control equipment installed to 

meet the standards. The increase energy 

usage costs are accounted for in the 

annualized compliance cost estimates. 

A discussion of the methodology used 

to estimate impacts is presented in 

‘‘Technical Support Document for HWC 

MACT Replacement Standards, Volume 

V: Emission Estimates and Engineering 

Costs.’’ We note that the energy effects 

for both floor and beyond-the-floor 

options are discussed in the technical 

support document and are part of our 

consideration of such factors under 

section 112(d)(2). 

IV. What Are the Control Costs? 

Control costs, as presented in this 

section, refer only to engineering, 

operation, and maintenance costs 

associated with unit/system upgrades 

necessary to meet the final standards. 

These costs do not incorporate any 

market-based adjustments. All costs 

presented in this section are annualized 

estimates in 2002 dollars. 

59530 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

261For purposes of this discussion, a source is 

defined as the air pollution control system 

associated with one or more hazardous waste 

combustion unit(s). A facility may operate one or 

more sources. Note that this total includes two 

LWAK units limited by system burn constraints. 

Exclusion of these two units results in a total of 265 

independent sources. 

262Not included here are total annual government 

costs. These costs, with or without chlorine control, 

are approximately $0.5 million/year. 

263We are finalizing the incorporation of section 

112(d)(4) of the Clean Air Act to establish riskbased standards for total chlorine for hazardous 

waste combustors (except for hydrochloric acid 

production furnaces). The low-end of this cost 

range assumes all facilities emit total chlorine levels 

below risk-based levels of concern. Under this 

scenario, no total chlorine controls are assumed to 

be necessary. The total engineering cost with 

chlorine control is estimated at $46.7 million/year.] 

264See Exhibit 4–3 in the economic assessment 

background document. 

265Beyond-the-Floor standards were assessed for 

all floors. These findings are available in Appendix 

F and G of the engineering background document: 

See: Final Technical Support Document for HWC 

MACT Standards, Volume V—Emissions Estimates 

and Engineering Costs. 

266Even though we are allowing sources (except 

hydrochloric acid production furnaces) to invoke 

§ 112(d)(4) in lieu of MACT chlorine control 

requirements, we have not attempted to estimate 

the following: (1) The total number of sources that 

may elect to implement this provision, and, (2) 

what level of control may be necessary following a 

§ 112(d)(4) risk-based determination, since this 

would vary on a site-by-site basis. 

We estimate there are a total of 267 

sources 261 that may be subject to 

requirements of this final rule. Of this 

total, there are 116 boilers (104 liquid 

fuel boilers plus 12 solid fuel boilers), 

92 on-site incinerators, 25 cement kilns, 

15 commercial incinerators, nine (or 

seven) lightweight aggregate kilns, and 

ten hydrochloric acid (HCl) production 

furnaces. 

Total national private sector 

engineering costs for the final standards 

are estimated at $40.2 million per 

year.262 This estimate reflects total non 

market adjusted upgrade costs 

(engineering, plus administrative and 

permitting), excluding chlorine control 

costs.263 All Phase II sources combined 

(liquid fuel boilers, coal fired boilers, 

and HCl production furnaces) represent 

86 percent of this total. The average 

private sector engineering cost, 

excluding permitting and 

administrative, is projected to be highest 

for liquid fuel boilers, at $256,300 per 

source. Coal fired boilers are second at 

approximately $170,246 per source. 

Total engineering costs to cement kilns 

and HCl production furnaces are 

estimated to average $113,600, and 

$16,645 per source, respectively. 

Commercial incinerators are projected 

to experience engineering costs 

averaging $12,300 per source. On-site 

incinerators and LWAKs will face the 

lowest engineering costs at $10,200 and 

$3,330, respectively. 

For all Phase I sources (141 sources; 

commercial incinerators, on-site 

incinerators, cement kilns, and 

lightweight aggregate kilns), total 

average annualized non market-adjusted 

compliance costs (including permitting 

and administrative 264) are estimated at 

$39,700 per source. The combined 

Phase II sources (126 sources; solid and 

liquid fuel-fired boilers and 

hydrochloric acid production furnaces) 

have total average annualized non 

market-adjusted compliance costs of 

approximately $274,500 per source. 

Across all sectors covered by today’s 

rule (Phase I and Phase II sources), total 

annualized compliance costs were 

found to average $150,500 per source. 

Private sector engineering costs 

(control) costs have also been assessed 

on a per ton (U.S.) basis. Captive energy 

recovery sources (solid and liquid fuelfired boilers, and hydrochloric acid 

production furnaces) burned a total of 

944,667 tons of hazardous waste in 

2003. These facilities are projected to 

experience the highest average 

incremental control costs, at 

approximately $37 per ton of waste 

burned. Commercial energy recovery 

sources (cement kilns and LWAKs), 

burning an estimated 999,076 tons in 

2003, are projected to experience 

average incremental control costs of 

approximately of $3.00 per ton. Captive 

(on-site) and commercial incinerators 

burn an estimated 925,828 tons and 

447,524 tons per year, respectively. 

These sources are estimated to 

experience average incremental 

engineering costs of $2.15 per ton and 

$0.80 per ton, respectively. 

The aggregate control costs presented 

in this section do not reflect the 

anticipated real world cost burden on 

the economy. Any market disruption, 

such as the requirements in this final 

rule, will cause a short-term 

disequilibrium in the hazardous waste 

burning market, resulting in a natural 

economic process designed to reach the 

new market equilibrium. Actual cost 

impacts to society are more accurately 

measured by taking into account market 

adjustments in the targeted industry, 

plus secondary (societal) costs. Total 

market-adjusted costs plus secondary 

costs are commonly termed Social 

Costs, and are generally less than total 

engineering costs due to efficiencies 

implemented during the market 

adjustment process. Social Costs 

theoretically represent the total real 

world costs of all goods and services 

society must give up in order to gain the 

added protection to human health and 

the environment. Social Costs are 

presented in Part VI of this Section.265

V. What Are the Economic Impacts? 

Economic impacts may be measured 

through several factors. This section 

presents estimated economic impacts 

relative to market exits, waste 

reallocations, and employment impacts. 

Economic impacts presented in this 

section are distinct from social costs, 

which correspond only to the estimated 

monetary value of market disturbances. 

A. Market Exit Estimates 

The hazardous waste combustion 

industry operates in a dynamic market, 

with systems entering and exiting the 

market on a routine basis. Our analysis 

defines ‘‘market exit’’ as ceasing to burn 

hazardous waste. We have projected 

post-rule hazardous waste combustion 

system market exits based on economic 

feasibility only. Social, liability, and 

informational issues are not 

incorporated into our market exit 

analysis. 

Market exit estimates are derived from 

a breakeven analysis designed to 

determine system viability. This 

analysis is subject to several 

assumptions, including: Cost 

assumptions concerning the per sector 

baseline cost of hazardous waste 

burning, cost estimates for necessary 

pollution control devices (including 

operation and maintenance), prices for 

combustion services, and estimated 

waste quantities burned at these 

facilities. It is important to note that, for 

most sectors, exiting the hazardous 

waste combustion market is not 

equivalent to closing a plant. (Actual 

plant closure may occur only in the case 

of a commercial incinerator closing all 

systems.) 

We estimate that 39 systems, 

representing about 15 percent of the 

total affected universe, may stop 

burning hazardous waste in response to 

the final standards. Approximately 

59,000 tons of hazardous waste may be 

diverted from these closed systems. 

These estimates assume no chlorine 

controls are put in place as a direct 

result of the rule.266 Of the estimated 39 

market exits, 26 are projected to be onsite incinerators and 8 are liquid fuel 

boilers. Three commercial incinerator 

systems may exit the market in response 

to the final rule. However, these systems 

are considered economically marginal 

in the baseline. Two coal-fired boiler 

systems are also projected to exit the 

market. No cement kilns, lightweight 

aggregate kilns, or HCl production 

furnaces are projected to exit the market 

as a result of the final rule. Market exit 

estimates were found to be identical 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59531 

267This analysis includes the cost of waste 

transport to alternative combustion sources, 

burning fees, and purchase of alternative fuels (if 

appropriate). 

268Manufacturers and distributors of air pollution 

control devices are projected to increase sales as a 

result of this action. 

when the cost of chlorine control is 

included in the model. 

B. Waste Reallocations 

Some on-site combustion systems 

(sources) may no longer be able to cover 

their hazardous waste burning costs as 

a result of final rule requirements. These 

sources are projected to divert or reroute 

their wastes to different hazardous 

waste combustion sources (usually some 

type of commercial unit).267 For 

multiple system facilities, this diversion 

may include on-site (non-commercial) 

waste consolidation among fewer 

systems at the same facility. Under 

current market conditions, noncombustion alternatives are generally 

not economically feasible, and in any 

case, would normally be unable to 

achieve the RCRA Land Disposal 

Restriction Treatment standards, which 

are based on the performance of 

combustion technology (which 

optimizes destruction of organic HAP). 

As mentioned above, our economic 

model indicates that approximately 

59,000 tons (U.S.) of hazardous waste 

may be reallocated. This figure 

represents approximately 1.8 percent of 

the total 2003 quantity of hazardous 

waste burned at all sources. On-site 

consolidations account for nearly 24 

percent (13,915 tons) of all diverted 

waste. Commercial incinerators are 

projected to receive the vast majority 

(42,722 tons, or 73 percent) of all off-site 

waste reallocations. Cement kilns and 

LWAKs are projected to receive the 

remaining reallocation (2,289 tons). 

Currently, there is more than adequate 

capacity to accommodate all off-site 

hazardous waste diversions. 

C. Employment Impacts 

Today’s rule is projected to induce 

employment shifts across all affected 

sectors. These shifts may occur as 

specific combustion facilities find it no 

longer economically feasible to keep all 

of their systems running, or to stay in 

the hazardous waste market at all. When 

this occurs, workers at these locations 

may lose their jobs or experience forced 

relocations. At the same time, the rule 

is projected to result in positive 

employment impacts, as new purchases 

of pollution control equipment 

stimulate additional hiring in the 

pollution control manufacturing sector, 

and as additional staff are required at 

selected combustion facilities to 

accommodate reallocated waste and/or 

various compliance activities. 

1. Employment Impacts—Dislocations 

(Losses) 

Employment dislocations in the 

combustion industry are projected to 

occur when facilities consolidate waste 

into fewer systems, or when a facility 

exits the hazardous waste combustion 

market altogether. Operation and 

maintenance labor hours are expected to 

be reduced for each system that stops 

burning hazardous waste. For each 

facility that completely exits the market, 

employment dislocations may also 

include supervisory and/or 

administrative personnel. 

Total employment dislocations 

resulting from implementation of the 

final standards are estimated at 310 fulltime-equivalent (FTE) jobs. On-site 

incinerators account for about 62 

percent of this total, followed by 

commercial incinerators (about 24 

percent), and liquid-fuel boilers (about 

12 percent). The large number of on-site 

incinerators drives the impacts within 

this sector. 

2. Employment Impacts—Positive 

In addition to employment 

dislocations, our analysis indicates that 

today’s rule may also result in positive 

employment impacts. These positive 

impacts are projected to occur to both 

the air pollution control industry and to 

combustion firms as they hire personnel 

to accommodate reallocated waste and/ 

or comply with the various 

requirements of the rule. Hazardous 

waste combustion sources are projected 

to need additional operation and 

maintenance personnel for the new 

pollution control equipment and other 

compliance activities, such as new 

reporting and record keeping 

requirements. 

The total annual positive employment 

impact associated with the final 

standards is estimated at 323 FTEs. 

Positive employment impacts to the air 

pollution control industry 268 are 

projected at 93 FTEs, or about 29 

percent of this total. At 183 jobs, liquidfuel boilers are projected to experience 

the greatest positive employment impact 

among all combustors. 

While it may appear that our analysis 

suggests overall net positive 

employment impacts, such a conclusion 

would be inappropriate. Because the 

positive employment impacts and 

employment dislocations occur in 

different sectors of the economy, they 

should not be added together. Doing so 

would mask important distributional 

effects of the rule. In addition, these 

employment estimates reflect within 

sector impacts only and therefore do not 

account for potential displacements 

across sectors. This may occur if 

investment funds are diverted from 

other areas of the larger economy. 

VI. What Are the Social Costs and 

Benefits of the Final Rule? 

The value of any regulatory action is 

traditionally measured by the net 

change in social welfare that it 

generates. Our economic assessment 

conducted in support of today’s final 

rule evaluated compliance (control) 

costs, and economic impacts, as 

discussed above. The Assessment also 

analyzed social costs, benefits, small 

entity impacts, and other impacts (e.g., 

children’s health, unfunded mandates). 

To conduct this analysis, we examined 

the current combustion market and 

practices, developed and implemented a 

methodology for examining compliance 

and social costs, applied an economic 

model to analyze industry economic 

impacts (discussed above), examined 

benefits, and followed appropriate 

guidelines and procedures for 

examining equity considerations, 

children’s health, and other impacts. 

The data applied in this analysis were 

the most recently available at the time 

of the analysis. Because our data were 

limited, the findings from these analyses 

should be more accurately viewed as 

national estimates. 

A. Combustion Market Overview 

The hazardous waste industry 

consists of three key segments: 

hazardous waste generators, fuel 

blenders/intermediaries, and hazardous 

waste burners. Hazardous waste is 

combusted at four main types of 

facilities: commercial incinerators, onsite incinerators, waste burning kilns 

(cement kilns and lightweight aggregate 

kilns), and industrial boilers. 

Commercial incinerators are generally 

larger in size and designed to manage 

virtually all types of solids, as well as 

liquid wastes. On-site incinerators are 

more often designed as liquid-injection 

systems that handle liquids and 

pumpable solids. Waste burning kilns 

and boilers generally burn hazardous 

wastes to generate heat and power for 

their manufacturing processes. 

As discussed above, we have 

identified a total of 267 hazardous waste 

burning sources (systems) currently in 

operation in the United States. Liquid 

fuel-boilers account for 104 sources, 

followed by on-site incinerators at 92 

sources. Cement kilns, hydrochloric 

acid production furnaces, and 

commercial incinerators account for 25, 

10, and 15 sources, respectively. Solid 

59532 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

269Many cement kilns are also able to burn a 

certain level of non liquid waste. 

270We are finalizing alternative risk-based total 

chlorine standards for hazardous waste combustors 

(ecept for hydrochloric acid production furnaces). 

The net private sector costs of $22.1 million/year 

may be considered a lower-bound estimate that 

assumes facilities emit total chlorine (TCI) below 

risk-based levels of concern (i.e., no TCI controls 

are assumed to be necessary). Total net private 

sector market-adjusted costs would increase to 

approximately $28.1 million per year if we were to 

assume all sources were to comply with technologybased TCI standards (as opposed to the risk-based 

standards). 

fuel boilers and lightweight aggregate 

kilns make up the remainder, at 12 and 

nine systems, respectively. These 267 

sources are operated at a total of 145 

different facilities. A single facility may 

have one or more combustion systems. 

Facilities with multiple systems may 

have different types of hazardous waste 

burning units. Combustion systems 

operating at chemical manufacturing 

facilities (NAICS 325) were found to 

account for about 70 percent of the total 

number of facilities and manage about 

58 percent of all hazardous waste 

burned in 2003. 

The EPA Biennial Reporting System 

(BRS) reports a total demand for all 

combusted hazardous waste, across all 

facilities, at 3.32 million tons (U.S. ton) 

in 2003. Commercial energy recovery 

(cement kilns and lightweight aggregate 

kilns) burned about 30 percent of this 

total. Hazardous waste destruction at 

on-site incinerators and commercial 

incinerators accounted for 28 percent 

and 13 percent, respectively. Captive 

energy recovery accounted for the 

remainder, at 29 percent of the total. 

About 65 percent of all hazardous 

waste burned in 2003 was organic 

liquids. This is followed by solids (14 

percent), inorganic liquids (11 percent), 

and sludges (10 percent). Hazardous 

gases were found to represent a 

negligible portion, at about 0.08 percent 

of the total quantity burned in 2003. In 

terms of hazardous waste generating 

sources, the Basic Organic Chemical 

Manufacturing e sector (NAICS 325) 

generated approximately 32 percent of 

all hazardous waste burned in 2001, 

followed by pesticides and agricultural 

chemicals, business services, organic 

fibers, medicinal chemicals, 

pharmaceuticals, plastics materials and 

resins, petroleum, and miscellaneous. 

Companies that generate large 

quantities of uniform hazardous wastes 

generally find it more economical and 

efficient to combust these wastes on-site 

using their own noncommercial 

systems. Commercial incineration 

facilities manage a wide range of 

hazardous waste streams generated in 

small to medium quantities by diverse 

industries. Cement kilns, lightweight 

aggregate kilns, and boilers derive heat 

and energy by burning high-Btu 

(solvents and organics) liquid hazardous 

wastes.269 Sometimes these wastes are 

blended with fossil fuels where system 

operators choose to not derive all of 

their energy input from hazardous 

waste. 

Regulatory requirements, liability 

concerns, and economics influence the 

demand for hazardous waste 

combustion services. Regulatory forces 

influence the demand for combustion by 

mandating certain hazardous waste 

treatment standards (land disposal 

restriction requirements, etc.). Liability 

concerns of waste generators affect 

combustion demand because 

combustion, by destroying organic 

wastes, greatly reduces the risk of future 

environmental problems. Finally, if 

alternative waste management options 

are more expensive, hazardous waste 

generators will likely choose to send 

their wastes to combustion facilities in 

order to increase overall profitability. 

Throughout much of the 1980s, 

hazardous waste combustors enjoyed a 

strong competitive position and 

generally maintained a high level of 

profitability. During this period, EPA 

regulations helped stimulate a greatly 

expanded market. In addition, federal 

permitting requirements, as well as 

powerful local opposition to siting of 

new incinerators, constrained the entry 

of new combustion systems. As a result, 

combustion prices rose steadily, 

ultimately reaching record levels in 

1987. The high profits of the late 1980s 

induced many firms to enter the market, 

in spite of the difficulties and delays 

anticipated in the permitting and siting 

process. 

Hazardous waste markets have 

changed significantly since the late 

1980s. In the early 1990s, substantial 

overcapacity resulted in fierce 

competition, declining prices, poor 

financial performance, numerous 

project cancellations, system 

consolidations, and facility closures. 

Since the mid 1990s, several additional 

combustion facilities have closed, while 

many of those that have remained open 

have consolidated their operations. 

Available (prior to this final rule) excess 

commercial capacity is currently 

estimated at about 21 percent of the 

total 2003 quantity combusted. 

B. Baseline Specification 

Proper and consistent baseline 

specification is vital to the accurate 

assessment of incremental costs, 

benefits, and other economic impacts 

associated with today’s rule. The 

baseline essentially describes the world 

absent the rule. The incremental 

impacts of today’s rule are evaluated by 

predicting post MACT compliance 

responses with respect to the baseline. 

The baseline, as applied in this analysis, 

is the point at which today’s rule is 

promulgated. Thus, incremental cost 

and economic impacts are projected 

beyond the standards established in the 

February 13, 2002 Interim Standards 

Final Rule. 

C. Analytical Methodology and 

Findings—Social Cost Analysis 

Total social costs include the value of 

resources used to comply with the 

standards by the private sector, the 

value of resources used to administer 

the regulation by the government, and 

the value of output lost due to shifts of 

resources away from the current market 

equilibrium. To evaluate these shifts in 

resources and changes in output 

requires predicting changes in behavior 

by all affected parties in response to the 

regulation, including responses of 

directly-affected entities, as well as 

indirectly-affected private parties. 

For this analysis, social costs are 

grouped into two categories: Economic 

welfare (changes in consumer and 

producer surplus), and government 

administrative costs. The economic 

welfare analysis conducted for today’s 

rule uses a simplified partial 

equilibrium approach. In this analysis, 

changes in economic welfare are 

measured by summing the changes in 

consumer and producer surplus. This 

simplified approach bounds potential 

economic welfare losses associated with 

the rule by considering two scenarios: 

Compliance costs assuming no market 

adjustments, and market adjusted 

compliance costs. 

The annualized private sector 

compliance (engineering) costs of $40.2 

million, as presented in Section IV, 

assume no market adjustments. Our best 

estimate of total social costs 

incorporates rational market 

adjustments and all government costs. 

Under this scenario, increased 

compliance (engineering) costs are 

examined in the context of likely 

incentives hazardous waste combustion 

facilities have to continue burning, and 

the competitive balance in the market. 

Total annualized market-adjusted net 

private-sector costs are estimated at 

$22.1 million. 270 In addition to the net 

private sector costs, total annual 

government costs are approximately 

$0.50 million. Thus, our best estimate of 

total social costs of this final rule is 

$22.6 million per year. 

The $22.1 million figure incorporates 

a net gain to selected Phase I sources 

and an estimated $3.6 million cost 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59533 

271Monetized benefits associated with avoided 

premature mortality reflect a VSL range of $1.1 

million to $11.4 million, with a central VSL 

estimate of $6.2 million. These values are derived 

from willingness-to-pay based VSL estimates 

presented in U.S. EPA, Regulatory Impact Analysis 

for the Final Clean Air Interstate Rule, March 2005. 

272 Inferential Risk Analysis in Support of 

Standards for Emissions of Hazardous Air 

Pollutants from Hazardous Waste Combustors. 

273Assessment of the Potential Costs, Benefits, 

and Other Impacts of the Hazardous Waste 

Combustion MACT Replacement Standards: 

Proposed Rule, March 2004 (Chapter 6), and 

Addendum to the Assessment. 

274See: U.S. EPA. March 2005. Regulatory Impact 

Analysis for the Final Interstate Air Quality Rule. 

275USEPA, 1985. Health Assessment Document 

for Polychlorinated Dibenzo-p-Dioxins. EPA/600/8- 

84/014F. Final Report. Office of Health and 

Environmental Assessment. Washington, DC. 

September, 1985. 

276U.S.EPA. Exposure and Human Health 

Reassessment of 2,3,7,8-Tetrachlorodibenzo-pDioxin (TCDD) and Related Compounds National 

Academy Sciences (NAS) Review Draft, December 

2003. [Note: Toxicity risk factors presented in this 

document should not be considered EPA’s official 

estimate of dioxin toxicity, but rather reflect EPA’s 

ongoing effort to reevaluate dioxin toxicity]. 

(price) increase to pre-existing 

customers of commercial hazardous 

waste combustion facilities. On-site 

incinerators are projected to experience 

total market-adjusted cost increases of 

approximately $1.5 million/year. All 

phase II sources account for 

approximately $31.9 million in 

increased costs. Our economic model 

indicates that, of the Phase I source 

categories, commercial incinerators, 

cement kilns, and LWAKs would 

experience net gains following all 

market adjustments. The total net gain 

for these three source categories is 

estimated at $14.8 million per year. 

Commercial incinerators would receive 

about 98 percent of the total gain ($14.5 

million/year). Gains to commercial 

facilities occur due to marginally higher 

prices, increased waste receipts, and 

relatively low upgrade costs, when 

compared to the other sources. 

D. Analytical Methodology and 

Findings—Benefits Assessment 

This section discusses the monetized 

and non monetized benefits to human 

health and the environment potentially 

associated with today’s final rule. 

Monetized human health benefits are 

derived from reductions in particulate 

matter (PM) and dioxin/furan exposure, 

and are based on a Value of Statistical 

Life (VSL) estimate of $6.2 million. 271

Non monetized benefits are associated 

with human health, ecological, and 

waste minimization factors. 

1. Monetized Benefits 

Total monetized human health 

benefits for the final standards are 

estimated to range from $5.61 million/ 

year to $6.31 million/year. This estimate 

includes human health benefits 

associated with avoided PM and dioxin/ 

furans exposure. The range is driven by 

alternative discount rate assumptions 

(no discount rate, 3 percent, or 7 

percent) for mortality valuation. PM 

benefits represent 99 percent of the total 

monetized human health benefits. 

Particulate Matter 

Results from our risk assessment 

extrapolation procedure 272 are used to 

evaluate incremental human health 

benefits potentially associated with 

particulate matter emission reductions 

from hazardous waste combustion 

facilities. This analysis applied avoided 

human health benefits factors from the 

March 2004 Assessment document,273

combined with more recent emissions 

estimates for particulate matter. 

Reduced PM emissions are estimated 

to result in monetized human health 

benefits of approximately $6.29 million 

per year. This is an undiscounted figure. 

Avoided PM morbidity cases account 

for $3.42 million of this total, and 

include: respiratory illness, 

cardiovascular disease, chronic 

bronchitis, work loss days, and minor 

restricted activity. Chronic bronchitis 

accounts for approximately 89 percent 

of the total value of avoided PM 

morbidity cases. All morbidity cases are 

assumed to be avoided within the first 

year following reduced PM emissions 

and are not discounted under any 

scenario. 

Avoided premature deaths (mortality) 

are valued at $2.87 million per year, 

undiscounted. Assuming a discount rate 

of three and seven percent, PM 

mortality benefits would be $2.52 

million and $2.19 million, respectively. 

Our discounted analysis of PM mortality 

benefits assumes that 30 percent of 

premature mortalities occur during the 

first year, 50 percent occur evenly from 

the second through the fifth years, and 

the remaining 20 percent occur evenly 

from the sixth through the twentieth 

years.274 Due to limitations in the risk 

analysis, this assessment of PM benefits 

does not consider corresponding health 

benefits associated with the reduction of 

HAP metals carried by the PM. 

Dioxin/furan—Dioxin/furan 

emissions are projected to be reduced by 

a total of 0.2 grams per year under the 

final standards. In the July 23, 1999 

Addendum to the Assessment, cancer 

risk reductions linked to consumption 

of dioxin-contaminated agricultural 

products accounted for the vast majority 

of the 0.36 cancer cases per year that 

were expected to be avoided due to the 

1999 standards. Cancer risk reductions 

associated with the final standards are 

expected to be less than 0.36 cases per 

year, but greater than zero. 

At this time, the Agency is still using 

a cancer risk slope factor of 1.56 × 105

[mg/kg/day]¥1 for dioxin. This cancer 

slope factor is derived from the 

Agency’s 1985 health assessment 

document for polychlorinated dibenzop-dioxins 275 and represents an upper 

bound 95th percentile confidence limit 

of the excess cancer risk from a lifetime 

exposure. For the past several years the 

Agency has been conducting a 

reassessment of the human health risks 

associated with dioxin and dioxin-like 

compounds. In October of 2004 this 

reassessment 276 was delivered to the 

National Academy of Sciences (NAS) for 

review. 

Evidence compiled from this draft 

reassessment indicates that the 

carcinogenic effects of dioxin/furans 

may be six times as great as believed in 

1985, reflecting an upper bound cancer 

risk slope factor of 1 × 106 [mg/kg/ 

day]¥1 for some individuals. Agency 

scientists’ more likely (central tendency) 

estimates (derived from the ED01 rather 

than the LED01) result in slope factors 

and risk estimates that are within 2–3 

times of the upper bound estimates (i.e., 

between 3 × 105 [mg/kg/day]¥1 and 5 × 

105 [mg/kg/day]¥1) based on the 

available epidemiological and animal 

cancer data. However, risks could be as 

low as zero for some individuals. Use of 

the alternative upper bound cancer risk 

slope factor could result in a higher 

human health monetized health benefit 

associated with premature cancer deaths 

avoided in response to the final 

standard for dioxin/furans. The 

assessment of upper bound cancer risk 

using this alternative slope factor 

should not be considered current 

Agency policy. The standards for dioxin 

in today’s final rule were not based on 

this draft reassessment. 

Total non-discounted human health 

benefits associated with projected 

dioxin reductions are estimated at $0.02 

million/year. These benefits may range 

from $0.01 million/year to nearly zero, 

applying a discount rate of 3 percent 

and 7 percent, respectively. Our 

discounted estimates incorporate an 

assumed latency period of 21 and 34 

years from exposure to death. 

2. Non-Monetized Benefits 

We examined, but did not monetize 

human health benefits potentially 

associated with reduced exposure to 

lead, mercury, and total chlorine. Non 

monetized ecological benefits 

59534 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

277 Grandjean, P., K. Murata, E. Budtz-Jorgensen, 

and P. Weihe. 2004. ‘‘Autonomic Activity in 

Methylmercury Neurotoxicity: 14–Year Follow-Up 

of a Faroese Birth Cohort.’’ Journal of 

Pediatrics.144:169–76; Kjellstrom, T., P. Kennedy, 

S. Wallis, A. Stewart, L. Friberg, B. Lind, P. 

Witherspoon, and C. Mantell. 1989. Physical and 

mental development of children with prenatal 

exposure to mercury from fish. Stage 2: Interviews 

and psychological tests at age 6. National Swedish 

Environmental Protection Board Report No. 3642; 

Crump, K.S., T. Kjellstrom, A.M. Shipp, A. Silvers, 

and A. Stewart. 1998. ‘‘Influence of prenatal 

mercury exposure upon scholastic and 

psychological test performance: benchmark analysis 

of a New Zealand cohort.’’ Risk Analysis. 

18(6):701–713; Davidson, P.W., G.J. Myers, C. Cox, 

C. Axtell, C. Shamlaye, J. Sloane-Reeves, E. 

Cernichiari, L. Needham, A. Choi, Y. Wang, M. 

Berlin, and T.W. Clarkson. 1998. ‘‘Effects of 

prenatal and postnatal methylmercury exposure 

from fish consumption on neurodevelopment: 

outcomes at 66 months of age in the Seychelles 

Child Development Study.’’ Journal of the 

American Medical Association. 280(8):701–707; 

and Myers, G.J., P.W. Davidson, C. Cox, C.F. 

Shamlaye, D. Palumbo, E. Cernichiari, J. SloaneReeves, G.E. Wilding, J. Kost, L.S. Huang, and T.W. 

Clarkson. 2003. ‘‘Prenatal methylmercury exposure 

from ocean fish consumption in the Seychelles 

child development study.’’ Lancet. 361(9370):1686–

92. 

278National Research Council of the National 

Academy of Sciences, Toxicological Effects of 

Methylmercury. 2000, p. 299. 

279Ryan, L.M. Effects of Prenatal Methylmercury 

on Childhood IQ: A Synthesis of Three Studies. 

Report to the U.S. Environmental Protection 

Agency, 2005; U.S. EPA. Regulatory Impact 

Analysis of the Clean Air Mercury Rule: Final 

Report. March 2005. 

280U.S. EPA. Regulatory Impact Analysis of the 

Clean Air Mercury Rule: Final Report. March 2005. 

281This is a lower bound estimate that assumes 

all other sources will implement 112(d)(4) and will 

not move to reduce TCl emissions from current 

baseline levels. 

potentially associated with reductions 

in dioxin/furan; selected metals, total 

chlorine, and particulate matter were 

also examined. Finally, waste 

minimization is examined as a nonmonetized benefit. 

Lead—The final standards are 

expected to reduce lead emissions by 

approximately 2.5 tons per year. In 

comparison, the 1999 standards were 

expected to reduce lead emissions by 89 

tons per year, and were expected to 

reduce cumulative lead exposures for 

two children, ages zero to five, to less 

than 10 μg/dL. The lead benefits 

associated with these final standards are 

therefore expected to be modest. The 

final standards will also result in 

reduced lead levels for children of subpopulations with especially high levels 

of exposure. Children of subsistence 

fishermen, commercial beef farmers, 

and commercial dairy farmers who face 

the greatest levels of cumulative lead 

exposure may also experience 

comparable reductions in overall 

exposure as a result of the MACT 

standards. 

Mercury—The HWC MACT final 

standards are expected to reduce 

mercury emissions by approximately 

0.21 tons per year, approximately 93 

percent less than the four-ton reduction 

expected under the 1999 Standards. We 

do not attempt to quantify the mercuryrelated benefits associated with today’s 

final standards. However, because the 

reduction in mercury emissions 

represents a fraction of the reduction 

expected under the 1999 Standards, the 

mercury-related benefits of the final 

standards are likely to be less than the 

corresponding benefits under the 1999 

Standards. 

To characterize the benefits associated 

with reduced mercury emissions, the 

1999 Assessment measured changes in 

hazard quotients for populations living 

near hazardous waste combustion 

facilities. For any given population, the 

hazard quotient is the ratio of the actual 

level of exposure to a safe level of 

exposure. A hazard quotient greater 

than one implies that a population is 

potentially at risk. The exposure 

quotient analysis in the 1999 

Assessment found that the measurable 

benefits of reduced mercury emissions 

under the 1999 Standards were likely to 

be small because baseline exposures 

were relatively low. In addition, many 

of the studies examining the adverse 

health effects of mercury are 

inconclusive. Over the past several 

years, however, scientists have 

conducted three large-scale studies of 

individuals in the Faroe Islands, New 

Zealand, and the Seychelles Islands 

examining the relationship between 

mercury exposure in women and the 

neuro-development of their unborn 

children.277 The New Zealand and 

Faroe Islands studies both found a 

statistically significant relationship 

between maternal methylmercury 

exposure and IQ decrements in the 

unborn children of these women. In its 

2000 report on the toxicological effects 

of methylmercury, the National 

Research Council suggested that 

integrating the results of all three 

studies could be useful for risk 

assessment purposes.278 Such an 

integrative risk assessment, later 

published by Ryan et al. in 2005, served 

as the basis of the Agency’s health 

effects analysis for the Clean Air 

Mercury Rule (CAMR).279 The 

regulatory impact analysis for CAMR 

summarizes several of the adverse 

health effects that may be linked to 

mercury and reviews the 

epidemiological literature examining 

the link between these effects and 

exposure to mercury.280

Total Chlorine—We were not able to 

quantify the benefits associated with 

reductions in total chlorine emissions. 

Total chlorine is a combination of 

hydrogen chloride and chlorine gas. The 

final standards are projected to reduce 

total annual chlorine emissions by about 

107 tons per year 281 (HCl production 

furnaces only). Hydrogen chloride is 

corrosive to the eyes, skin, and mucous 

membranes. Acute inhalation can cause 

eye, nose, and respiratory tract irritation 

and inflammation, and pulmonary 

edema. Chronic occupational inhalation 

has been reported to cause gastritis, 

bronchitis, and dermatitis in workers. 

Long term exposure can also cause 

dental discoloration and erosion. 

Chlorine gas inhalation can cause 

bronchitis, asthma and swelling of the 

lungs, headaches, heart disease, and 

meningitis. Acute exposure causes more 

severe respiratory and lung effects, and 

can result in fatalities in extreme cases. 

The exposure levels established under 

112(d)(4) are expected to reduce 

chlorine exposure for people in close 

proximity to hazardous waste 

combustion facilities, and are therefore 

likely to reduce the risk of all associated 

health effects. 

Ecological Benefits—We examined 

ecological benefits through a 

comparison of the 1999 Assessment and 

today’s final standards. Ecological 

benefits in the 1999 Assessment were 

based on reductions of approximately 

100 tons per year in dioxin/furans and 

selected metals. Lead was the only 

pollutant of concern for aquatic 

ecosystems, while mercury appeared to 

be of greatest concern for terrestrial 

ecosystems. Dioxin/furan and lead 

emission reductions also provided some 

potential benefits for terrestrial 

ecosystems. The final standards are 

expected to reduce dioxin/furan and 

selected metal emissions by about 12 

percent to 13 percent of the 1999 

estimate, resulting in fewer incremental 

benefits than those estimated for the 

1999 Assessment (and later, for the 2002 

Interim Standards). However, the 1999 

Assessment did not estimate the 

ecological benefits of MACT standards 

for hazardous waste burning industrial 

boilers and HCl production furnaces. 

These systems were excluded from the 

universe in 1999 but are part of the 

universe addressed by today’s final 

standards. As a result, while the total 

ecological benefits of the final rule are 

likely to be modest, areas near facilities 

with boilers may enjoy more significant 

ecological benefits under the final 

standards than areas near facilities that 

have already complied with the 2002 

Interim standards. 

Mercury, lead, and chlorides are 

among the HAPs that can cause damage 

to the health and visual appearance of 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59535 

282Although the primary pollutants which are 

detrimental to vegetation aesthetics and growth are 

tropospheric ozone, sulfur dioxide, and hydrogen 

fluoride (three pollutants which are not regulated 

in the MACT standards), some literature exists on 

the relationship between metal deposition and 

vegetation health. (Mercury Study Report to 

Congress Volume VI, 1997) (Several studies are 

cited in this report.) 

283See, for example, Brown, T.C. et al. 1989, 

Scenic Beauty and Recreation Value: Assessing the 

Relationship, In J. Vining, ed., Social Science and 

Natural Resources Recreation Management, 

Westview Press, Boulder, Colorado; this work 

studies the relationship between forest 

characteristics and the value of recreational 

participation. Also see Peterson, D.G. et al. 1987, 

Improving Accuracy and Reducing Cost of 

Environmental Benefit Assessments. Draft Report to 

the U.S. EPA, by Energy and Resource Consultants, 

Boulder, Colorado; Walsh et al. 1990, Estimating the 

public benefits of protecting forest quality, Journal 

of Forest Management, 30:175–189., and Homes et 

al. 1992, Economic Valuation of Spruce-Fir Decline 

in the Southern Appalachian Mountains: A 

comparison of Value Elicitation Methods. Presented 

at the Forestry and the Environment: Economic 

Perspectives Conference, March 1, 1992 Jasper, 

Alberta, Canada for estimates of the WTP of visitors 

and residents to avoid forest damage. 

284MacKenzie, James J., and Mohamed T. ElAshry, Air Pollution’s Toll on Forests and Crops 

(New Haven, Yale University Press, 1989). 

285Note that this rule does, in fact, consider 

hazardous waste feed control. Feed control can be 

implemented by each source through waste 

minimization procedures. See: Final Technical 

Support Document for HWC MACT Standards, 

Volume V–Emissions Estimates and Engineering 

Costs. 

286Assessment of the Potential Costs, Benefits, 

and Other Impacts of the Hazardous Waste 

Combustion MACT Final Rule Standards. 

September 2005. 

plants.282 While the total value of forest 

health is difficult to estimate, visible 

deterioration in the health of forests and 

plants can cause a measurable change in 

recreation behavior. Several studies that 

measure the change in outdoor 

recreation behavior according to forest 

health have attempted to place a value 

on aesthetic degradation of forests.283

Although these studies are available, 

additional research is needed to fully 

understand the effects of these Haps on 

the forest ecosystem. Thus, these 

benefits are not quantified in this 

analysis. 

Emissions that are sufficient to cause 

structural and aesthetic damage to 

vegetation are likely to affect growth as 

well. Little research has been done on 

the effects of compounds such as 

chlorine, heavy metals (as air 

pollutants), and PM on agricultural 

productivity.284 Even though the 

potential for visible damage and 

production decline from metals and 

other pollutants suggests the final 

standards could increase agricultural 

productivity, we have not monetized the 

benefits of these changes. 

3. Waste Minimization Benefits 

Facilities that burn hazardous waste 

and remain in operation following 

implementation of the final standards 

are expected to experience marginally 

increased costs as a result of these 

standards. This will result in an 

incentive to pass these increased costs 

on to their customers in the form of 

higher combustion prices. In the 1999 

Assessment we conducted a waste 

minimization analysis to inform the 

expected price change. The analysis 

concluded that the demand for 

hazardous waste combustion is 

relatively inelastic. While a variety of 

waste minimization alternatives are 

available for managing hazardous waste 

streams that are currently combusted, 

the costs of these alternatives generally 

exceed the cost of combustion. When 

the additional costs of compliance with 

the MACT standards are taken into 

account, waste minimization 

alternatives still tend to exceed the 

higher combustion costs. This relative 

inelasticity suggests that, in the short 

term, large reductions in the amount of 

hazardous waste requiring combustion 

are not likely to occur. However, over 

the longer term (i.e. as production 

systems are updated), companies may 

continue to seek alternatives to 

expensive hazardous wastemanagement. This may include process 

adjustments that result, to some degree 

in source reduction of hazardous waste 

and the increased generation of non 

hazardous waste. To the extent that 

increases in combustion prices provide 

additional incentive to adopt more 

efficient processes, the final standards 

may contribute to longer term processbased hazardous waste minimization 

efforts. 

No hazardous waste minimization 

impacts are captured in our quantitative 

analysis of costs and benefits.285 A 

quantitative assessment of the benefits 

associated with waste minimization 

may result in double-counting of some 

of the benefits described earlier. For 

example, waste minimization may 

reduce emissions of hazardous air 

pollutants and therefore have a positive 

effect on public health. Furthermore, 

emission reductions beyond those 

necessary for compliance with the final 

standards are not addressed in the 

benefits assessment. In addition, waste 

minimization is likely to result in 

specific types of benefits not captured in 

this Assessment. For example, waste 

generators that engage in waste 

minimization may experience a 

reduction in their waste handling costs 

and could also reduce the risk related to 

waste spills and waste management. 

Finally, waste minimization procedures 

potentially stimulated by today’s action 

may result in additional costs to 

facilities that implement these 

technologies. These factors have not 

been assessed in our analysis but are 

likely to at least partially offset 

corresponding benefits. 

4. Conclusion 

Total non-discounted monetized 

human health benefits associated with 

the final standards are estimated at 

$6.31 million/year. Annualized 

discounted benefits were found to range 

from $5.61 million to $5.95 million/ 

year. The range reflects an alternative 

discount rate of 3 percent and 7 percent 

for mortality benefits. 

It is important to emphasize that 

monetized benefits represent only a 

portion of the total benefits associated 

with this rule. A significant portion of 

the benefits are not monetized, as 

discussed above, due to data and 

analytical limitations. Specifically, 

ecological benefits, and human health 

benefits associated with reductions in 

chlorine, mercury, and lead are not 

quantified or monetized. In some 

regions these benefits may be 

significant. In addition, specific subpopulations near combustion facilities, 

including children and minority 

populations, may be disproportionately 

affected by environmental risks and may 

therefore enjoy more significant 

benefits. Visibility benefits associated 

with reduced PM are also expected from 

this final rule. For a complete 

discussion of the methodology, data, 

findings, and limitations associated 

with our benefits analysis the reader is 

encouraged to review the Assessment 

document,286 and the Addendum to the 

Assessment. 

Part Seven: How Does the Final Rule 

Meet the RCRA Protectiveness 

Mandate? 

As discussed in more detail below, we 

believe today’s final standards are 

generally protective of human health 

and the environment. We therefore 

finalize and apply these standards, in 

most instances, in lieu of the RCRA air 

emission standards applicable to these 

sources. 

I. Background 

Section 3004(a) of RCRA requires the 

Agency to promulgate standards for 

hazardous waste treatment, storage, and 

disposal facilities as necessary to protect 

human health and the environment. The 

standards for hazardous waste 

incinerators generally rest on this 

authority. In addition, § 3004(q) requires 

the Agency to promulgate standards for 

emissions from facilities that burn 

59536 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

hazardous waste fuels (e.g., cement and 

lightweight aggregate kilns, boilers, and 

hydrochloric acid production furnaces) 

as necessary to protect human health 

and the environment. Using RCRA 

authority, the Agency has established 

emission (and other) standards for 

hazardous waste combustors that are 

either entirely risk-based (e.g., sitespecific standards for metals under the 

Boiler and Industrial Furnace rule), or 

are technology-based but determined by 

a generic risk assessment to be 

protective (e.g., the DRE standard for 

incinerators and BIFs). 

The MACT standards finalized today 

implement the technology-based regime 

of CAA § 112(d). There is, however, a 

residual risk component to air toxics 

standards. Section 112(f) of the Clean 

Air Act requires the Agency to impose, 

within eight years after promulgation of 

the technology-based standards 

promulgated under § 112(d) (i.e., the 

authority for today’s final standards), 

additional controls if needed to protect 

public health with an ample margin of 

safety or to prevent adverse 

environmental effect. 

RCRA § 1006(b) directs that EPA 

‘‘integrate all provisions of [RCRA] for 

purposes of administration and 

enforcement and * * * avoid 

duplication, to the maximum extent 

possible, with the appropriate 

provisions of the Clean Air Act * * * ’’

Thus, although considerations of risk 

are not ordinarily part of the MACT 

process, in order to avoid duplicative 

standards where possible, we have 

evaluated the protectiveness of the 

standards finalized today. 

As noted above, under RCRA, EPA 

must promulgate standards ‘‘as may be 

necessary to protect human health and 

the environment.’’ RCRA § 3004(a) and 

(q). Technology-based standards 

developed under CAA § 112 do not 

automatically satisfy this requirement, 

but may do so in fact. See 59 FR at 

29776 (June 6, 1994) and 60 FR at 32593 

(June 23, 1995) (RCRA regulation of 

secondary lead smelter emissions 

unnecessary at this time given 

stringency of technology-based standard 

and pendency of § 112(f) 

determination). If the MACT standards, 

as a factual matter, are sufficiently 

protective to also satisfy the RCRA 

mandate, then no independent RCRA 

standards are required. Conversely, if 

MACT standards are inadequate, the 

RCRA authorities would have to be used 

to fill the gap. 

II. Evaluation of Protectiveness 

For the purpose of satisfying the 

RCRA statutory mandates, the Agency 

has conducted an evaluation of the 

degree of protection afforded by the 

MACT standards being finalized today. 

We have not conducted a 

comprehensive risk assessment for this 

rulemaking as was done for incinerators, 

cement kilns, and lightweight aggregate 

kilns in the 1999 MACT rule where we 

concluded that the promulgated 

standards were generally protective and 

therefore, the RCRA standards need not 

be retained. However, we noted that in 

certain instances, permit authorities 

may invoke the omnibus authority 

(RCRA § 3005(c)(3) and its 

implementing regulations at § 270.10(k)) 

if there is some reason to believe that 

additional controls beyond those 

required pursuant to 40 CFR parts 63, 

264, 265, and 266 may be needed to 

ensure protection of human health and 

the environment under RCRA. 

For this final rule, we instead 

compared the risk-related characteristics 

of the sources covered by the 1999 rule 

to the sources covered by today’s rule 

(e.g., estimated emissions, stack 

characteristics, meteorology, and 

population). For a description of the 

methodology and technical discussion 

of its application, see ‘‘Inferential Risk 

Analysis in Support of Standards for 

Emissions of Hazardous Air Pollutants 

from Hazardous Waste Combustors,’’ in 

the docket for today’s rule. We 

performed a large array of statistical 

comparisons and from these we 

attempted to make inferences about 

whether risks would be expected to be 

about the same, less than, or greater 

than the risks estimated for 1999 rule. 

We think the comparative analysis lends 

additional support to our view that 

today’s final standards are generally 

protective. We received no comments 

either in support of or in opposition to 

our use of the comparative analysis to 

evaluate the protectiveness of the 

standards being finalized today or our 

view that the standards are generally 

protective. 

While we regard the final standards as 

generally protective, the comparative 

analysis suggests some concern for solid 

fuel-fired boilers (SFBs) with regard to 

the particulate matter standard (and 

certain metals such as antimony and 

thallium), mercury, and total chlorine 

standards (other than the alternative 

risk-based chlorine standards). The 

analysis also suggests some concern for 

hydrochloric acid (HCl) production 

furnaces with regard to the dioxin/furan 

standard, where carbon monoxide and 

total hydrocarbon serve as surrogate 

control. However, because both SFBs 

and HCl production furnaces comprise 

such small source categories (4 SFB 

facilities and 8 HCl production 

facilities), it is difficult to reach firm 

conclusions. For example, for SFBs it 

was not possible to conduct hypothesis 

tests that could be considered valid 

involving correlations among variables 

for a number of variables in the analysis 

because of the small number of data 

points and the power of the tests to 

detect differences for those that were 

conducted was very low, which greatly 

diminishes the value of the results. 

(Indeed, no differences in correlations 

were found for SFBs at the 0.1 

significance level—the level of 

significance that was used in the 

analysis.) Similarly, for HCl production 

furnaces the power of the tests to detect 

differences in correlations was quite 

low. It must be noted that the 

comparative analysis methodology was 

not intended for comparisons that 

involve relatively few facilities because 

it is grounded in tests of hypotheses and 

levels of statistical significance which 

generally require substantial amounts of 

data to produce firm conclusions. 

Nevertheless, in consideration of the 

indications of possible risks for the 

aforementioned standards, permit 

authorities may want to consider sitespecific factors in determining whether 

or not the MACT standards are 

sufficiently protective for facilities that 

fall into these categories. 

The comparative analysis may also 

raise possible concerns for lightweight 

aggregate kilns (LWAKs) and liquid 

fuel-fired boilers (LFBs) with dry APCDs 

with regard to the dioxin/furan 

standards, in view of the ongoing 

uncertainty in cancer and other health 

effects levels for chlorinated dioxins 

and furans. In particular, some recent 

estimates of the carcinogenicity of these 

compounds that consider both human 

and animal data, are higher than earlier 

estimates derived from animal data 

alone. However, like SFBs and HCl 

production furnaces, LWAKs and LFBs 

with dry APCDs both comprise small 

source categories (3 LWAK facilities and 

7 dry APCD LFB facilities). This makes 

it very difficult to reach firm 

conclusions and suggests the need to 

consider site-specific factors in 

determining whether the MACT 

standards are sufficiently protective in 

these instances. 

Except as noted, we believe today’s 

final standards provide a substantial 

degree of protection to human health 

and the environment. We therefore do 

not believe that we need to retain the 

existing RCRA standards for boilers and 

hydrochloric acid production furnaces 

(just as we found that existing RCRA 

standards for incinerators, cement kilns, 

and lightweight aggregate kilns were no 

longer needed after the 1999 rule). 

However, as previously discussed in 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59537 

287This figure includes approximately $0.5 

million/year in total government costs. Total social 

costs would increase to approximately $28.6 

million per year if we were to assume all sources 

were to comply with technology-based TC1 

standards. 

more detail in Part Four, Section IX, 

site-specific risk assessments may be 

warranted on an individual source basis 

to ensure that the MACT standards 

provide adequate protection in 

accordance with RCRA. 

Part Eight: Statutory and Executive 

Order Reviews 

I. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 [58 FR 

51735 (October 4, 1993)] the Agency, in 

conjunction with OMB’s Office of 

Information and Regulatory Affairs 

(OIRA), must determine whether a 

regulatory action is ‘‘significant’’ and 

therefore subject to OMB review and the 

full requirements of the Executive 

Order. 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 a 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. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this rule is a ‘‘significant regulatory 

action’’ because this action may raise 

novel legal or policy issues due to the 

methodology applied in development of 

the final standards. As such, this action 

was submitted to OMB for review. 

Changes made in response to OMB 

suggestions or recommendations are 

documented in the public record. 

The total social costs for this rule are 

estimated at $22.6 million per year 287. 

This figure is significantly below the 

$100 million threshold established 

under point number one above. Thus, 

this rule is not considered to be an 

economically significant action. 

However, in an effort to comply with 

the spirit of the Order, we have 

prepared an economic assessment in 

support of today’s final rule. This 

document is entitled: Assessment of the 

Potential Costs, Benefits, and Other 

Impacts of the Hazardous Waste 

Combustion MACT Final Rule 

Standards, September 2005. We have 

also prepared an Addendum to this 

Assessment entitled: Addendum to the 

Assessment of the Potential Costs, 

Benefits, and Other Impacts of the 

Hazardous Waste Combustion MACT 

Final Rule Standards, September 2005. 

This Addendum captures changes made 

to the rulemaking following completion 

of the full Assessment document. The 

Assessment and Addendum were 

designed to adhere to analytical 

requirements established under 

Executive Order 12866, and 

corresponding Agency and OMB 

guidance; subject to data, analytical, and 

resource limitations. Findings presented 

under Part Six of this Preamble were 

developed in accordance with this 

guidance. The RCRA docket established 

for today’s rulemaking maintains a copy 

of the Assessment and Addendum for 

public review. Interested persons are 

encouraged to read both documents to 

gain a full understanding of the 

analytical methodology, findings, and 

limitations associated with this report. 

II. Paperwork Reduction Act 

We have prepared an Information 

Collection Request (ICR) document (ICR 

No. 1773.08) listing the information 

collection requirements of this final 

rule, and have submitted it for approval 

to the Office of Management and Budget 

(OMB) under the provisions of the 

Paperwork Reduction Act, U.S.C. 3501 

et seq. OMB has assigned a control 

number 2050–0171 for this ICR. This 

ICR is available for public viewing in 

the EPA Docket Center, Room B102, 

1301 Constitution Avenue NW., 

Washington, DC. Copy may also be 

obtained from the EDOCKET on the EPA 

Web site, or by calling (202) 566–1744. 

The information collection requirements 

are not enforceable until OMB approves 

them. 

The public burden associated with 

this final rule is projected to affect 238 

HWC units and is estimated to average 

211 hours per respondent annually. The 

reporting and recordkeeping cost 

burden is estimated to average $5,640 

per respondent annually. 

Burden means total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, disclose, or 

provide information to or for a Federal 

agency. That includes the time needed 

to review instructions; develop, acquire, 

install, and utilize technology and 

systems for the purposes 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 be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

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 listed 

in 40 CFR part 9. When this ICR is 

approved by OMB, the Agency will 

publish a technical amendment to 40 

CFR part 9 in the Federal Register to 

display the OMB control number for the 

approved information collection 

requirements contained in this final 

rule. 

The EPA requested comments (see 70 

FR 20748, Apr. 21, 2005) on the need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, including through 

the use of automated collection 

techniques. 

III. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

as amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq., 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act, or any 

other statute. This analysis must be 

completed unless the agency is able to 

certify that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

The RFA provides default definitions 

for each type of small entity. Small 

entities are defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

59538 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

have a significant economic impact on 

a substantial number of small entities. 

We have determined that hazardous 

waste combustion facilities are not 

owned by small governmental 

jurisdiction or nonprofit organizations. 

Therefore, only small businesses were 

analyzed for small entity impacts. For 

the purposes of the impact analyses, 

small entity is defined either by the 

number of employees or by the dollar 

amount of sales. The level at which a 

business is considered small is 

determined for each North American 

Industrial Classification System 

(NAICS) code by the Small Business 

Administration. 

Affected individual waste combustors 

(incinerators, cement kilns, lightweight 

aggregate kilns, solid and liquid fuelboilers, and hydrochloric acid 

production furnaces) will bear the 

impacts of today’s rule. These units will 

incur direct economic impacts (positive 

or negative) as a result of today’s rule. 

Few of the hazardous waste combustion 

facilities affected by this rule were 

found to be owned by small businesses, 

as defined by the Small Business 

Administration (SBA). From our 

universe of 145 facilities, we identified 

eight facilities that are currently owned 

by small businesses. Four of these 

facilities are liquid boilers, two are onsite incinerators, one is a cement kiln, 

and one is a lightweight aggregate kiln 

(LWAK). Our analysis indicates that 

none of these facilities are likely to 

incur annualized compliance costs 

greater than one percent of gross annual 

corporate revenues. Cost impacts of the 

final standards were found to range 

from less than 0.01 percent to 0.46 

percent of annual gross corporate 

revenues. 

The reader is encouraged to review 

our regulatory flexibility screening 

analysis prepared in support of this 

determination. This analysis is 

incorporated as Appendix H of the 

Assessment document, and updated in 

the Addendum. 

IV. Unfunded Mandates Reform Act of 

1995 

Signed into law on March 22, 1995, 

the Unfunded Mandates Reform Act 

(UMRA) calls on all federal agencies to 

provide a statement supporting the need 

to issue any regulation containing an 

unfunded federal mandate and 

describing prior consultation with 

representatives of affected state, local, 

and tribal governments. 

Today’s final rule is not subject to the 

requirements of sections 202, 204 and 

205 of UMRA. In general, a rule is 

subject to the requirements of these 

sections if it contains ‘‘Federal 

mandates’’ that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. Today’s final rule does 

not result in $100 million or more in 

expenditures for any of these categories. 

The aggregate annualized social cost for 

today’s rule is estimated at $22.6 

million. 

V. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Under Executive Order 13132, EPA 

may not issue a regulation that has 

federalism implications, that imposes 

substantial direct compliance costs, and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing the regulation. 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in the 

Order. The rule focuses on requirements 

for facilities burning hazardous waste, 

without affecting the relationships 

between Federal and State governments. 

Thus, Executive Order 13132 does not 

apply to this rule. Although section 6 of 

Executive Order 13132 does not apply 

to this rule, EPA did include various 

State representatives on our Agency 

workgroup. These representatives 

participated in the development of this 

rule. 

VI. Executive Order 13175: 

Consultation and Coordination With 

Indian Tribal Governments 

Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments (65 FR 67249, November 

9, 2000), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ Our Agency workgroup 

for this rule included Tribal 

representation. We have determined 

that this final rule does not have tribal 

implications, as specified in the Order. 

No Tribal governments are known to 

own or operate hazardous waste 

combustors subject to the requirements 

of this final rule. Furthermore, this rule 

focuses on requirements for all 

regulated sources without affecting the 

relationships between tribal 

governments in its implementation, and 

applies to all regulated sources, without 

distinction of the surrounding 

populations affected. Thus, Executive 

Order 13175 does not apply to this rule. 

VII. Executive Order 13045: Protection 

of Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR. 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have 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. Today’s final 

rule is not subject to the Executive 

Order because it is not economically 

significant as defined under point one of 

the Order, and because the Agency does 

not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

VIII. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

Fed. Reg. 28355 (May 22, 2001)). This 

rule, as finalized, will not seriously 

disrupt energy supply, distribution 

patterns, prices, imports or exports. 

Furthermore, this rule is not an 

economically significant action under 

Executive Order 12866. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59539 

IX. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA 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, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rulemaking involves 

environmental monitoring or 

measurement. Both Performance Based 

Measurement System (PBMS) and 

specific measurement methods are 

finalized under this rule. The PBMS 

approach is intended to be more flexible 

and cost-effective for the regulated 

community; it is also intended to 

encourage innovation in analytical 

technology and improved data quality. 

Where allowed, EPA is not precluding 

the use of any method, whether it 

constitutes a voluntary consensus 

standard or not, as long as it meets the 

performance criteria specified. 

X. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’ (February 11, 

1994) requires us to complete an 

analysis of today’s rule with regard to 

equity considerations. The Order is 

designed to address the environmental 

and human health conditions of 

minority and low-income populations. 

This section briefly discusses potential 

impacts (direct or disproportional) 

today’s rule may have in the area of 

environmental justice. 

We have recently analyzed 

demographic data from the U.S. Census, 

and have previously examined data 

from two other reports: ‘‘Race, Ethnicity, 

and Poverty Status of the Populations 

Living Near Cement Plants in the United 

States’’ (EPA, August 1994) and ‘‘Race, 

Ethnicity, and Poverty Status of the 

Populations Living Near Hazardous 

Waste Incinerators in the United States’’

(EPA, October 1994). These reports 

examine the number of low-income and 

minority individuals living near a 

relatively large sample of cement kilns 

and hazardous waste incinerators and 

provide county, state, and national 

population percentages for various subpopulations. The demographic data in 

these reports provide several important 

findings when examined in conjunction 

with the risk reductions projected from 

today’s rule. 

We find that combustion facilities, in 

general, are not located in areas with 

disproportionately high minority and 

low-income populations. However, 

there is evidence that hazardous waste 

burning cement kilns are somewhat 

more likely to be located in areas that 

have relatively higher low-income 

populations. Furthermore, there are a 

small number of commercial hazardous 

waste incinerators located in highly 

urbanized areas where there is a 

disproportionately high concentration of 

minorities and low-income populations 

within one and five mile radii. The 

reduced emissions at these facilities due 

to today’s rule could represent 

meaningful environmental and health 

improvements for these populations. 

Overall, today’s rule should not result in 

any adverse or disproportional health or 

safety effects on minority or low-income 

populations. Any impacts on these 

populations are likely to be positive due 

to the reduction in emissions from 

combustion facilities near minority and 

low-income population groups. The 

Assessment document available in the 

RCRA docket established for today’s 

rule discusses our Environmental 

Justice analysis. 

XI. Congressional Review 

The Congressional Review Act (CRA), 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Prior to publication 

of the final rule in the Federal Register, 

we will submit all necessary 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. Under the CRA, a major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

List of Subjects 

40 CFR Part 9 

Environmental protection, Reporting 

and recordkeeping requirements. 

40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Incorporation by reference, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 260 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Reporting and 

recordkeeping requirements. 

40 CFR Part 264 

Environmental protection, Air 

pollution control, Hazardous waste, 

Insurance, Packaging and containers, 

Reporting and recordkeeping 

requirements, Security measures, Surety 

bonds. 

40 CFR Part 265 

Environmental protection, Air 

pollution control, Hazardous waste, 

Insurance, Packaging and containers, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 266 

Environmental protection, Energy, 

Hazardous waste, Recycling, Reporting 

and recordkeeping requirements. 

40 CFR Part 270 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous materials transportation, 

Hazardous waste, Reporting and 

recordkeeping requirements. 

40 CFR Part 271 

Administrative practice and 

procedure, Hazardous materials 

transportation, Hazardous waste, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: September 14, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 9—OMB APPROVALS UNDER 

THE PAPERWORK REDUCTION ACT 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 7 U.S.C. 135 et seq., 136–136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345 (d) and 

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 

1971–1975 Comp. p. 973; 42 U.S.C. 241, 

242b, 243, 246, 300f, 300g, 300g–1, 300g–2, 

59540 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

300g–3, 300g–4, 300g–5, 300g–6, 300j–1, 

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., 

6901–6992k, 7401–7671q, 7542, 9601–9657, 

11023, 11048. 

■ 2. Section 9.1 is amended in the table 

under center heading ‘‘National 

Emission Standards for Hazardous Air 

Pollutants for Source Categories’’ by 

adding entry ‘‘63.1200–63.1221’’ in 

numerical order to read as follows: 

§ 9.1 OMB approvals under the Paperwork 

Reduction Act. 

* * * * * 

40 CFR citation OMB control No. 

* * * * * * * 

National Emission Standards for Hazardous Air Pollutants for Source Categories 3

* * * * * * * 

63.1200–63.1221 ...................................................................................... 2050–0171 

3The ICRs referenced in this section of the table encompass the applicable general provisions contained in 40 CFR part 63, subpart A, which 

are not independent information collection requirements. 

* * * * * 

PART 63—NATIONAL EMISSION 

STANDARDS FOR HAZARDOUS AIR 

POLLUTANTS FOR SOURCE 

CATEGORIES 

■ 1. The authority citation for part 63 

continues to read as follows: 

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

■ 2. Section 63.14 is amended by: 

■ a. Removing paragraphs (i)(1) and 

(i)(2). 

■ b. Redesignating paragraph (i)(3) as 

(i)(1). 

■ c. Adding and reserving new 

paragraph (i)(2). 

■ d. Revising paragraph (k). 

The revisions and additions read as 

follows: 

§ 63.14 Incorporations by reference. 

* * * * * 

(i) * * * 

(2) [Reserved] 

* * * * * 

(k) The following materials are 

available for purchase from the National 

Technical Information Service (NTIS), 

5285 Port Royal Road, Springfield, VA 

22161, (703) 605–6000 or (800) 553–

6847; or for purchase from the 

Superintendent of Documents, U.S. 

Government Printing Office, 

Washington, DC 20402, (202) 512–1800: 

(1) The following methods as 

published in the test methods 

compendium known as ‘‘Test Methods 

for Evaluating Solid Waste, Physical/ 

Chemical Methods,’’ EPA Publication 

SW–846, Third Edition. A suffix of ‘‘A’’

in the method number indicates 

revision one (the method has been 

revised once). A suffix of ‘‘B’’ in the 

method number indicates revision two 

(the method has been revised twice). 

(i) Method 0023A, ‘‘Sampling Method 

for Polychlorinated Dibenzo-p-Dioxins 

and Polychlorinated Dibenzofuran 

Emissions from Stationary Sources,’’

dated December 1996 and in Update III, 

IBR approved for § 63.1208(b)(1) of 

Subpart EEE of this part. 

(ii) Method 9071B, ‘‘n-Hexane 

Extractable Material (HEM) for Sludge, 

Sediment, and Solid Samples,’’ dated 

April 1998 and in Update IIIA, IBR 

approved for § 63.7824(e) of Subpart 

FFFFF of this part. 

(iii) Method 9095A, ‘‘Paint Filter 

Liquids Test,’’ dated December 1996 

and in Update III, IBR approved for 

§§ 63.7700(b) and 63.7765 of Subpart 

EEEEE of this part. 

(2) [Reserved] 

■ 3. Section 63.1200 is amended by: 

■ a. Revising the introductory text. 

■ b. Revising paragraph (a)(2). 

■ c. Adding entry (4) in Table 1 in 

paragraph (b). 

The revisions and additions read as 

follows: 

§ 63.1200 Who is subject to these 

regulations? 

The provisions of this subpart apply 

to all hazardous waste combustors: 

hazardous waste incinerators, hazardous 

waste cement kilns, hazardous waste 

lightweight aggregate kilns, hazardous 

waste solid fuel boilers, hazardous 

waste liquid fuel boilers, and hazardous 

waste hydrochloric acid production 

furnaces. Hazardous waste combustors 

are also subject to applicable 

requirements under parts 260 through 

270 of this chapter. 

(a) * * * 

(2) Both area sources and major 

sources subject to this subpart, but not 

previously subject to title V, are 

immediately subject to the requirement 

to apply for and obtain a title V permit 

in all States, and in areas covered by 

part 71 of this chapter. 

(b) * * * 

TABLE 1 TO § 63.1200.—HAZARDOUS WASTE COMBUSTORS EXEMPT FROM SUBPART EEE 

If And If Then 

* * * * * * * 

(4) You meet the definition of a small quantity burner under § 266.108 of this chapter ............................................................. You are not subject to the requirements of this 

subpart (Subpart EEE). 

* * * * * 

■ 4. Section 63.1201 is amended in 

paragraph (a) by revising the definitions 

of ‘‘Hazardous waste combustor’’, ‘‘New 

source’’, and ‘‘TEQ’’, and adding 

definitions for ‘‘Btu’’, ‘‘Hazardous waste 

hydrochloric acid production furnace’’, 

‘‘Hazardous waste liquid fuel boiler’’, 

‘‘Hazardous waste solid fuel boiler’’, 

and ‘‘System removal efficiency’’ in 

alphabetical order to read as follows: 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59541 

§ 63.1201 Definitions and acronyms used 

in this subpart. 

(a) * * * 

Btu means British Thermal Units. 

* * * * * 

Hazardous waste combustor means a 

hazardous waste incinerator, hazardous 

waste burning cement kiln, hazardous 

waste burning lightweight aggregate 

kiln, hazardous waste liquid fuel boiler, 

hazardous waste solid fuel boiler, or 

hazardous waste hydrochloric acid 

production furnace. 

* * * * * 

Hazardous waste hydrochloric acid 

production furnace and Hazardous 

Waste HCl production furnace mean a 

halogen acid furnace defined under 

§ 260.10 of this chapter that produces 

aqueous hydrochloric acid (HCl) 

product and that burns hazardous waste 

at any time. 

* * * * * 

Hazardous waste liquid fuel boiler 

means a boiler defined under § 260.10 of 

this chapter that does not burn solid 

fuels and that burns hazardous waste at 

any time. Liquid fuel boiler includes 

boilers that only burn gaseous fuel. 

* * * * * 

Hazardous waste solid fuel boiler 

means a boiler defined under § 260.10 of 

this chapter that burns a solid fuel and 

that burns hazardous waste at any time. 

* * * * * 

New source means any affected source 

the construction or reconstruction of 

which is commenced after the dates 

specified under §§ 63.1206(a)(1)(i)(B), 

(a)(1)(ii)(B), and (a)(2)(ii). 

* * * * * 

System removal efficiency means [1 ¥ 

Emission Rate (mass/time) / Feedrate 

(mass/time)] X 100. 

* * * * * 

TEQ means the international method 

of expressing toxicity equivalents for 

dioxins and furans as defined in U.S. 

EPA, Interim Procedures for Estimating 

Risks Associated with Exposures to 

Mixtures of Chlorinated Dibenzo-pdioxins and -dibenzofurans (CDDs and 

CDFs) and 1989 Update, March 1989. 

* * * * * 

■ 5. Section 63.1203 is amended by: 

■ a. Revising an undesignated center 

heading above the section heading. 

■ b. Revising the section heading. 

■ c. Revising paragraph (c)(3)(2). 

The revisions and additions read as 

follows: 

Interim Emissions Standards and 

Operating Limits For Incinerators, 

Cement Kilns, and Lightweight 

Aggregate Kilns 

§ 63.1203 What are the standards for 

hazardous waste incinerators that are 

effective until compliance with the 

standards under § 63.1219? 

* * * * * 

(c) * * * 

(3) * * * 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

* * * * * 

■ 6. The section heading to § 63.1204 

and paragraph (c)(3)(ii) are revised to 

read as follows: 

§ 63.1204 What are the standards for 

hazardous waste burning cement kilns that 

are effective until compliance with the 

standards under § 63.1220? 

* * * * * 

(c) * * * 

(3) * * * 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

* * * * * 

■ 7. The section heading to § 63.1205 

and paragraph (c)(3)(ii) are revised to 

read as follows: 

§ 63.1205 What are the standards for 

hazardous waste burning lightweight 

aggregate kilns that are effective until 

compliance with the standards under 

§ 63.1221? 

* * * * * 

(c) * * * 

(3) * * * 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

* * * * * 

■ 8. Section 63.1206 is amended by: 

■ a. Revising paragraph (a). 

■ b. Revising paragraphs (b)(1)(ii), (b)(6) 

introductory text, (b)(7)(i)(A), (b)(7)(ii), 

(b)(9)(i) introductory text, (b)(9)(i)(A), 

(b)(9)(iv)(A), (b)(9)(vi), (b)(9)(vii) 

introductory text, (b)(9)(viii)(D), 

(b)(9)(ix)(D), (b)(10)(i) introductory text, 

(b)(10)(i)(A), (b)(10)(vi), (b)(10)(vii) 

introductory text, (b)(10)(viii)(D), 

(b)(10)(ix)(D), (b)(11), (b)(13)(i) 

introductory text, (b)(13)(ii), and (b)(14). 

■ c. Adding paragraph (b)(16). 

■ d. Revising paragraphs (c)(1)(i) 

introductory text, (c)(3)(iv), (c)(6)(iii)(B) 

introductory text, (c)(6)(iv) introductory 

text, and (c)(7). 

■ e. Adding paragraphs (c)(8) and (c)(9). 

The revisions and additions read as 

follows: 

§ 63.1206 When and how must you comply 

with the standards and operating 

requirements? 

(a) Compliance dates. (1) Compliance 

dates for incinerators, cement kilns, and 

lightweight aggregate kilns that burn 

hazardous waste. (i) Compliance date 

for standards under §§ 63.1203, 

63.1204, and 63.1205. (A) Compliance 

dates for existing sources. You must 

comply with the emission standards 

under §§ 63.1203, 63.1204, and 63.1205 

and the other requirements of this 

subpart no later than the compliance 

date, September 30, 2003, unless the 

Administrator grants you an extension 

of time under § 63.6(i) or § 63.1213. 

(B) New or reconstructed sources. (1) 

If you commenced construction or 

reconstruction of your hazardous waste 

combustor after April 19, 1996, you 

must comply with the emission 

standards under §§ 63.1203, 63.1204, 

and 63.1205 and the other requirements 

of this subpart by the later of September 

30, 1999 or the date the source starts 

operations, except as provided by 

paragraph (a)(1)(i)(B)(2) of this section. 

The costs of retrofitting and replacement 

of equipment that is installed 

specifically to comply with this subpart, 

between April 19, 1996 and a source’s 

compliance date, are not considered to 

be reconstruction costs. 

(2) For a standard under §§ 63.1203, 

63.1204, and 63.1205 that is more 

stringent than the standard proposed on 

April 19, 1996, you may achieve 

compliance no later than September 30, 

2003 if you comply with the standard 

proposed on April 19, 1996 after 

September 30, 1999. This exception 

does not apply, however, to new or 

59542 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

reconstructed area source hazardous 

waste combustors that become major 

sources after September 30, 1999. As 

provided by § 63.6(b)(7), such sources 

must comply with the standards under 

§§ 63.1203, 63.1204, and 63.1205 at 

startup. 

(ii) Compliance date for standards 

under §§ 63.1219, 63.1220, and 63.1221. 

(A) Compliance dates for existing 

sources. You must comply with the 

emission standards under §§ 63.1219, 

63.1220, and 63.1221 and the other 

requirements of this subpart no later 

than the compliance date, October 14, 

2008, unless the Administrator grants 

you an extension of time under § 63.6(i) 

or § 63.1213. 

(B) New or reconstructed sources. (1) 

If you commenced construction or 

reconstruction of your hazardous waste 

combustor after April 20, 2004, you 

must comply with the new source 

emission standards under §§ 63.1219, 

63.1220, and 63.1221 and the other 

requirements of this subpart by the later 

of October 12, 2005 or the date the 

source starts operations, except as 

provided by paragraph (a)(1)(ii)(B)(2) of 

this section. The costs of retrofitting and 

replacement of equipment that is 

installed specifically to comply with 

this subpart, between April 20, 2004, 

and a source’s compliance date, are not 

considered to be reconstruction costs. 

(2) For a standard under §§ 63.1219, 

63.1220, and 63.1221 that is more 

stringent than the standard proposed on 

April 20, 2004, you may achieve 

compliance no later than October 14, 

2008, if you comply with the standard 

proposed on April 20, 2004, after 

October 12, 2005. This exception does 

not apply, however, to new or 

reconstructed area source hazardous 

waste combustors that become major 

sources after October 14, 2008. As 

provided by § 63.6(b)(7), such sources 

must comply with the standards under 

§§ 63.1219, 63.1220, and 63.1221 at 

startup. 

(2) Compliance dates for solid fuel 

boilers, liquid fuel boilers, and hydrogen 

chloride production furnaces that burn 

hazardous waste for standards under 

§§ 63.1216, 63.1217, and 63.1218. (i) 

Compliance date for existing sources. 

You must comply with the standards of 

this subpart no later than the 

compliance date, October 14, 2008, 

unless the Administrator grants you an 

extension of time under § 63.6(i) or 

§ 63.1213. 

(ii) New or reconstructed sources. (A) 

If you commenced construction or 

reconstruction of your hazardous waste 

combustor after October 12, 2005, you 

must comply with the new source 

emission standards of this subpart by 

the later of October 12, 2005, or the date 

the source starts operations, except as 

provided by paragraph (a)(2)(ii)(B) of 

this section. The costs of retrofitting and 

replacement of equipment that is 

installed specifically to comply with 

this subpart, between April 20, 2004, 

and a source’s compliance date, are not 

considered to be reconstruction costs. 

(B) For a standard in the subpart that 

is more stringent than the standard 

proposed on April 20, 2004, you may 

achieve compliance no later than 

October 14, 2008, if you comply with 

the standard proposed on April 20, 

2004, after October 12, 2005. This 

exception does not apply, however, to 

new or reconstructed area source 

hazardous waste combustors that 

become major sources after October 14, 

2008. As provided by § 63.6(b)(7), such 

sources must comply with this subpart 

at startup. 

(3) Early compliance. If you choose to 

comply with the emission standards of 

this subpart prior to the dates specified 

in paragraphs (a)(1) and (a)(2) of this 

section, your compliance date is the 

earlier of the date you postmark the 

Notification of Compliance under 

§ 63.1207(j)(1) or the dates specified in 

paragraphs (a)(1) and (a)(2) of this 

section. 

(b) * * * 

(1) * * * 

(ii) When hazardous waste is not in 

the combustion chamber (i.e., the 

hazardous waste feed to the combustor 

has been cut off for a period of time not 

less than the hazardous waste residence 

time) and you have documented in the 

operating record that you are complying 

with all otherwise applicable 

requirements and standards 

promulgated under authority of sections 

112 (e.g., 40 CFR part 63, subparts LLL, 

DDDDD, and NNNNN) or 129 of the 

Clean Air Act in lieu of the emission 

standards under §§ 63.1203, 63.1204, 

63.1205, 63.1215, 63.1216, 63.1217, 

63.1218, 63.1219, 63.1220, and 63.1221; 

the monitoring and compliance 

standards of this section and §§ 63.1207 

through 63.1209, except the modes of 

operation requirements of § 63.1209(q); 

and the notification, reporting, and 

recordkeeping requirements of 

§§ 63.1210 through 63.1212. 

* * * * * 

(6) Compliance with the carbon 

monoxide and hydrocarbon emission 

standards. This paragraph applies to 

sources that elect to comply with the 

carbon monoxide and hydrocarbon 

emissions standards of this subpart by 

documenting continuous compliance 

with the carbon monoxide standard 

using a continuous emissions 

monitoring system and documenting 

compliance with the hydrocarbon 

standard during the destruction and 

removal efficiency (DRE) performance 

test or its equivalent. 

* * * * * 

(7) * * * (i) * * * 

(A) You must document compliance 

with the Destruction and Removal 

Efficiency (DRE) standard under this 

subpart only once provided that you do 

not modify the source after the DRE test 

in a manner that could affect the ability 

of the source to achieve the DRE 

standard. 

* * * * * 

(ii) Sources that feed hazardous waste 

at locations other than the normal flame 

zone. (A) Except as provided by 

paragraph (b)(7)(ii)(B) of this section, if 

you feed hazardous waste at a location 

in the combustion system other than the 

normal flame zone, then you must 

demonstrate compliance with the DRE 

standard during each comprehensive 

performance test; 

(B)(1) A cement kiln that feeds 

hazardous waste at a location other than 

the normal flame zone need only 

demonstrate compliance with the DRE 

standard during three consecutive 

comprehensive performance tests 

provided that: 

(i) All three tests achieve the DRE 

standard in this subpart; and 

(ii) The design, operation, and 

maintenance features of each of the 

three tests are similar; 

(iii) The data in lieu restriction of 

§ 63.1207(c)(2)(iv) does not apply when 

complying with the provisions of 

paragraph (b)(7)(ii)(B) of this section; 

(2) If at any time you change your 

design, operation, and maintenance 

features in a manner that could 

reasonably be expected to affect your 

ability to meet the DRE standard, then 

you must comply with the requirements 

of paragraph (b)(7)(ii)(A) of this section. 

* * * * * 

(9) * * * (i) You may petition the 

Administrator to request alternative 

standards to the mercury or hydrogen 

chloride/chlorine gas emission 

standards of this subpart, to the 

semivolatile metals emission standards 

under §§ 63.1205, 63.1221(a)(3)(ii), or 

63.1221(b)(3)(ii), or to the low volatile 

metals emissions standards under 

§§ 63.1205, 63.1221(a)(4)(ii), or 

63.1221(b)(4)(ii) if: 

(A) You cannot achieve one or more 

of these standards while using 

maximum achievable control 

technology (MACT) because of raw 

material contributions to emissions of 

mercury, semivolatile metals, low 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59543 

volatile metals, or hydrogen chloride/ 

chlorine gas; or 

* * * * * 

(iv) * * * (A) The alternative 

standard petition you submit under 

paragraph (b)(9)(i)(A) of this section 

must include data or information 

documenting that raw material 

contributions to emissions prevent you 

from complying with the emission 

standard even though the source is 

using MACT, as defined under 

paragraphs (b)(9)(viii) and (ix) of this 

section, for the standard for which you 

are seeking relief. 

* * * * * 

(vi) You must include data or 

information with semivolatile metals, 

low volatile metals, and hydrogen 

chloride/chlorine gas alternative 

standard petitions that you submit 

under paragraph (b)(9)(i)(A) of this 

section documenting that semivolatile 

metals, low volatile metals, and 

hydrogen chloride/chlorine gas 

emissions attributable to the hazardous 

waste only will not exceed the emission 

standards of this subpart. 

(vii) You must not operate pursuant to 

your recommended alternative 

standards in lieu of emission standards 

specified in this subpart: 

* * * * * 

(viii) * * * 

(D) For hydrogen chloride/chlorine 

gas, a hazardous waste chlorine feedrate 

corresponding to an MTEC of 2,000,000 

μg/dscm or less, and use of an air 

pollution control device with a 

hydrogen chloride/chlorine gas removal 

efficiency of 85 percent or greater. 

(ix) * * * 

(D) For hydrogen chloride/chlorine 

gas, a hazardous waste chlorine feedrate 

corresponding to an MTEC of 

14,000,000 μg/dscm or less, and use of 

an air pollution control device with a 

hydrogen chloride/chlorine gas removal 

efficiency of 99.6 percent or greater. 

(10) * * * (i) You may petition the 

Administrator to request alternative 

standards to the mercury or hydrogen 

chloride/chlorine gas emission 

standards of this subpart, to the 

semivolatile metals emission standards 

under §§ 63.1204, 63.1220(a)(3)(ii), or 

63.1220(b)(3)(ii), or to the low volatile 

metals emissions standards under 

§§ 63.1204, 63.1220(a)(4)(ii), or 

63.1220(b)(4)(ii) if: 

(A) You cannot achieve one or more 

of these standards while using 

maximum achievable control 

technology (MACT) because of raw 

material contributions to emissions of 

mercury, semivolatile metals, low 

volatile metals, or hydrogen chloride/ 

chlorine gas; or 

* * * * * 

(vi) You must include data or 

information with semivolatile metals, 

low volatile metals, and hydrogen 

chloride/chlorine gas alternative 

standard petitions that you submit 

under paragraph (b)(10)(i)(A) of this 

section documenting that emissions of 

the regulated metals and hydrogen 

chloride/chlorine gas attributable to the 

hazardous waste only will not exceed 

the emission standards in this subpart. 

(vii) You must not operate pursuant to 

your recommended alternative 

standards in lieu of emission standards 

specified in this subpart: 

* * * * * 

(viii) * * * 

(D) For hydrogen chloride/chlorine 

gas, a hazardous waste chlorine feedrate 

corresponding to an MTEC of 720,000 

μg/dscm or less. 

(ix) * * * 

(D) For hydrogen chloride/chlorine 

gas, a hazardous waste chlorine feedrate 

corresponding to an MTEC of 420,000 

μg/dscm or less. 

(11) Calculation of hazardous waste 

residence time. You must calculate the 

hazardous waste residence time and 

include the calculation in the 

performance test plan under § 63.1207(f) 

and the operating record. You must also 

provide the hazardous waste residence 

time in the Documentation of 

Compliance under § 63.1211(c) and the 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d). 

* * * * * 

(13) * * * 

(i) Cement kilns that feed hazardous 

waste at a location other than the end 

where products are normally discharged 

and where fuels are normally fired must 

comply with the carbon monoxide and 

hydrocarbon standards of this subpart as 

follows: 

* * * * * 

(ii) Lightweight aggregate kilns that 

feed hazardous waste at a location other 

than the end where products are 

normally discharged and where fuels 

are normally fired must comply with the 

hydrocarbon standards of this subpart as 

follows: 

(A) Existing sources must comply 

with the 20 parts per million by volume 

hydrocarbon standard of this subpart; 

(B) New sources must comply with 

the 20 parts per million by volume 

hydrocarbon standard of this subpart. 

(14) Alternative to the particulate 

matter standard for incinerators. (i). 

General. In lieu of complying with the 

particulate matter standards under 

§ 63.1203, you may elect to comply with 

the following alternative metal emission 

control requirements: 

(ii) Alternative metal emission control 

requirements for existing incinerators. 

(A) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium in excess of 240 μg/dscm, 

combined emissions, corrected to 7 

percent oxygen; and, 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 97 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(iii) Alternative metal emission 

control requirements for new 

incinerators. (A) You must not discharge 

or cause combustion gases to be emitted 

into the atmosphere that contain 

cadmium, lead, and selenium in excess 

of 24 μg/dscm, combined emissions, 

corrected to 7 percent oxygen; and, 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 97 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(iv) Operating limits. Semivolatile and 

low volatile metal operating parameter 

limits must be established to ensure 

compliance with the alternative 

emission limitations described in 

paragraphs (e)(2) and (e)(3) of this 

section pursuant to § 63.1209(n), except 

that semivolatile metal feedrate limits 

apply to lead, cadmium, and selenium, 

combined, and low volatile metal 

feedrate limits apply to arsenic, 

beryllium, chromium, antimony, cobalt, 

manganese, and nickel, combined. 

* * * * * 

(16) Compliance with subcategory 

standards for liquid fuel boilers. You 

must comply with the mercury, 

semivolatile, low volatile metal, and 

total chlorine standards for liquid fuel 

boilers under § 63.1217 as follows: 

(i) You must determine the as-fired 

heating value of each batch of hazardous 

waste fired by each firing system of the 

boiler so that you know the massweighted heating value of the hazardous 

waste fired at all times. 

(ii) If the as-fired heating value of the 

hazardous waste is 10,000 Btu per 

pound or greater, you are subject to the 

thermal emission concentration 

standards (lb/million Btu) under 

§ 63.1217. 

(iii) If the as-fired heating value of the 

hazardous waste is less than 10,000 Btu/ 

lb, you are subject to the mass or 

volume emission concentration 

59544 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

standards (μg/dscm or ppmv) under 

§ 63.1217. 

(iv) If the as-fired heating value of 

hazardous wastes varies above and 

below 10,000 Btu/lb over time, you are 

subject to the thermal concentration 

standards when the heating value is 

10,000 Btu/lb or greater and the mass 

concentration standards when the 

heating value is less than 10,000 Btu/lb. 

You may elect to comply at all times 

with the more stringent operating 

requirements that ensure compliance 

with both the thermal emission 

concentration standards and the mass or 

volume emission concentration 

standards. 

* * * * * 

(c) * * * (1) * * * (i) You must 

operate only under the operating 

requirements specified in the 

Documentation of Compliance under 

§ 63.1211(c) or the Notification of 

Compliance under §§ 63.1207(j) and 

63.1210(d), except: 

* * * * * 

(3) * * * 

(iv) Failure of the AWFCO system. If 

the AWFCO system fails to 

automatically and immediately cutoff 

the flow of hazardous waste upon 

exceedance of a parameter required to 

be interlocked with the AWFCO system 

under paragraph (c)(3)(i) of this section, 

you have failed to comply with the 

AWFCO requirements of paragraph 

(c)(3) of this section. If an equipment or 

other failure prevents immediate and 

automatic cutoff of the hazardous waste 

feed, however, you must cease feeding 

hazardous waste as quickly as possible. 

* * * * * 

(6) * * * 

(iii) * * * 

(B) Be trained under the requirements 

of, and certified under, one of the 

following American Society of 

Mechanical Engineers (ASME) 

standards: QHO–1–1994, QHO–1a–

1996, or QHO–1–2004 (Standard for the 

Qualification and Certification of 

Hazardous Waste Incinerator Operators). 

If you elect to use the ASME program: 

* * * * * 

(iv) Control room operators of cement 

kilns, lightweight aggregate kilns, solid 

fuel boilers, liquid fuel boilers, and 

hydrochloric acid production furnaces 

must be trained and certified under: 

* * * * * 

(7) Operation and maintenance 

plan—(i) You must prepare and at all 

times operate according to an operation 

and maintenance plan that describes in 

detail procedures for operation, 

inspection, maintenance, and corrective 

measures for all components of the 

combustor, including associated 

pollution control equipment, that could 

affect emissions of regulated hazardous 

air pollutants. 

(ii) The plan must prescribe how you 

will operate and maintain the 

combustor in a manner consistent with 

good air pollution control practices for 

minimizing emissions at least to the 

levels achieved during the 

comprehensive performance test. 

(iii) This plan ensures compliance 

with the operation and maintenance 

requirements of § 63.6(e) and minimizes 

emissions of pollutants, automatic waste 

feed cutoffs, and malfunctions. 

(iv) You must record the plan in the 

operating record. 

(8) Bag leak detection system 

requirements. (i) If your combustor is 

equipped with a baghouse (fabric filter), 

you must continuously operate either: 

(A) A bag leak detection system that 

meets the specifications and 

requirements of paragraph (c)(8)(ii) of 

this section and you must comply with 

the corrective measures and notification 

requirements of paragraphs (c)(8)(iii) 

and (iv) of this section; or 

(B) A particulate matter detection 

system under paragraph (c)(9) of this 

section. 

(ii) Bag leak detection system 

specification and requirements. (A) The 

bag leak detection system must be 

certified by the manufacturer to be 

capable of continuously detecting and 

recording particulate matter emissions 

at concentrations of 1.0 milligrams per 

actual cubic meter unless you 

demonstrate, under § 63.1209(g)(1), that 

a higher detection limit would routinely 

detect particulate matter loadings 

during normal operations; 

(B) The bag leak detection system 

shall provide output of relative or 

absolute particulate matter loadings; 

(C) The bag leak detection system 

shall be equipped with an alarm system 

that will sound an audible alarm when 

an increase in relative particulate 

loadings is detected over a preset level; 

(D) The bag leak detection system 

shall be installed and operated in a 

manner consistent with available 

written guidance from the U.S. 

Environmental Protection Agency or, in 

the absence of such written guidance, 

the manufacturer’s written 

specifications and recommendations for 

installation, operation, and adjustment 

of the system; 

(E) The initial adjustment of the 

system shall, at a minimum, consist of 

establishing the baseline output by 

adjusting the sensitivity (range) and the 

averaging period of the device, and 

establishing the alarm set points and the 

alarm delay time; 

(F) Following initial adjustment, you 

must not adjust the sensitivity or range, 

averaging period, alarm set points, or 

alarm delay time, except as detailed in 

the operation and maintenance plan 

required under paragraph (c)(7) of this 

section. You must not increase the 

sensitivity by more than 100 percent or 

decrease the sensitivity by more than 50 

percent over a 365 day period unless 

such adjustment follows a complete 

baghouse inspection which 

demonstrates the baghouse is in good 

operating condition; 

(G) For negative pressure or induced 

air baghouses, and positive pressure 

baghouses that are discharged to the 

atmosphere through a stack, the bag leak 

detector shall be installed downstream 

of the baghouse and upstream of any 

wet acid gas scrubber; and 

(H) Where multiple detectors are 

required, the system’s instrumentation 

and alarm system may be shared among 

the detectors. 

(iii) Bag leak detection system 

corrective measures requirements. The 

operating and maintenance plan 

required by paragraph (c)(7) of this 

section must include a corrective 

measures plan that specifies the 

procedures you will follow in the case 

of a bag leak detection system alarm. 

The corrective measures plan must 

include, at a minimum, the procedures 

used to determine and record the time 

and cause of the alarm as well as the 

corrective measures taken to correct the 

control device malfunction or minimize 

emissions as specified below. Failure to 

initiate the corrective measures required 

by this paragraph is failure to ensure 

compliance with the emission standards 

in this subpart. 

(A) You must initiate the procedures 

used to determine the cause of the alarm 

within 30 minutes of the time the alarm 

first sounds; and 

(B) You must alleviate the cause of the 

alarm by taking the necessary corrective 

measure(s) which may include, but are 

not to be limited to, the following: 

(1) Inspecting the baghouse for air 

leaks, torn or broken filter elements, or 

any other malfunction that may cause 

an increase in emissions; 

(2) Sealing off defective bags or filter 

media; 

(3) Replacing defective bags or filter 

media, or otherwise repairing the 

control device; 

(4) Sealing off a defective baghouse 

compartment; 

(5) Cleaning the bag leak detection 

system probe, or otherwise repairing the 

bag leak detection system; or 

(6) Shutting down the combustor. 

(iv) Excessive exceedances 

notification. If you operate the 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59545 

combustor when the detector response 

exceeds the alarm set-point more than 5 

percent of the time during any 6-month 

block time period, you must submit a 

notification to the Administrator within 

30 days of the end of the 6-month block 

time period that describes the causes of 

the exceedances and the revisions to the 

design, operation, or maintenance of the 

combustor or baghouse you are taking to 

minimize exceedances. To document 

compliance with this requirement: 

(A) You must keep records of the date, 

time, and duration of each alarm, the 

time corrective action was initiated and 

completed, and a brief description of the 

cause of the alarm and the corrective 

action taken; 

(B) You must record the percent of the 

operating time during each 6-month 

period that the alarm sounds; 

(C) In calculating the operating time 

percentage, if inspection of the fabric 

filter demonstrates that no corrective 

action is required, no alarm time is 

counted; and 

(D) If corrective action is required, 

each alarm shall be counted as a 

minimum of 1 hour. 

(9) Particulate matter detection 

system requirements for electrostatic 

precipitators and ionizing wet 

scrubbers. If your combustor is 

equipped with an electrostatic 

precipitator or ionizing wet scrubber, 

and you elect not to establish under 

§ 63.1209(m)(1)(iv) site-specific control 

device operating parameter limits that 

are linked to the automatic waste feed 

cutoff system under paragraph (c)(3) of 

this section, you must continuously 

operate a particulate matter detection 

system that meets the specifications and 

requirements of paragraph (c)(9)(i) 

through (iii) of this section and you 

must comply with the corrective 

measures and notification requirements 

of paragraphs (c)(9)(iv) through (v) of 

this section. 

(i) Particulate matter detection system 

requirements.—(A) The particulate 

matter detection system must be 

certified by the manufacturer to be 

capable of continuously detecting and 

recording particulate matter emissions 

at concentrations of 1.0 milligrams per 

actual cubic meter unless you 

demonstrate, under § 63.1209(g)(1), that 

a higher detection limit would routinely 

detect particulate matter loadings 

during normal operations; 

(B) The particulate matter detector 

shall provide output of relative or 

absolute particulate matter loadings; 

(C) The particulate matter detection 

system shall be equipped with an alarm 

system that will sound an audible alarm 

when an increase in relative or absolute 

particulate loadings is detected over the 

set-point 

(D) You must install, operate, and 

maintain the particulate matter 

detection system in a manner consistent 

with the provisions of paragraph (c)(9) 

of this section and available written 

guidance from the U.S. Environmental 

Protection Agency or, in the absence of 

such written guidance, the 

manufacturer’s written specifications 

and recommendations for installation, 

operation, maintenance and quality 

assurance of the system; 

(E) You must include procedures for 

installation, operation, maintenance, 

and quality assurance of the particulate 

matter detection system in the sitespecific continuous monitoring system 

test plan required under § 63.8(e)(3) of 

this chapter. 

(F) Where multiple detectors are 

required to monitor multiple control 

devices, the system’s instrumentation 

and alarm system may be shared among 

the detectors. 

(G) You must establish the alarm setpoint as provided by either paragraph 

(c)(9)(ii) or paragraph (c)(9)(iii) of this 

section. 

(ii) Establishing the alarm set-point 

without extrapolation. (A) The alarm 

set-point is the average of the test run 

averages of the detector response 

achieved during the comprehensive 

performance test demonstrating 

compliance with the particulate matter 

emission standard. 

(B) During the comprehensive 

performance test, you may simulate 

emission concentrations at the upper 

end of the range of normal operations by 

means including feeding high levels of 

ash and detuning the emission control 

equipment. 

(C) You must comply with the alarm 

set-point on a 6-hour rolling average, 

updated each hour with a one-hour 

block average that is the average of the 

detector responses over each 15-minute 

block; 

(iii) Establishing the alarm set-point 

with extrapolation. You may extrapolate 

the average of the test run averages of 

the detector response achieved during 

the comprehensive performance test as 

provided by paragraph (c)(9)(iii)(A) of 

this section to establish an alarm level 

after you approximate the correlation of 

the detector response to particulate 

matter concentration as prescribed by 

paragraph (c)(9)(iii)(B) of this section. 

You must comply with the extrapolated 

alarm set-point on a 6-hour rolling 

average, updated each hour with a onehour block average that is the average of 

the detector responses over each 15- 

minute block. 

(A) You may extrapolate the detector 

response up to a particulate matter 

concentration that is 50% of the 

particulate matter emission standard or 

125% of the highest particulate matter 

concentration used to develop the 

correlation under paragraph (c)(9)(iii)(B) 

of this section, whichever is greater. The 

extrapolated emission concentration 

must not exceed the particulate matter 

emission standard. 

(B) To establish an approximate 

correlation of the detector response to 

particulate matter emission 

concentrations, you should use as 

guidance Performance Specification-11 

for PM CEMS (40 CFR Part 60, 

Appendix B), except that you need only 

conduct 5 runs to establish the initial 

correlation under Section 8.6 of 

Performance Specification 11. 

(C) For quality assurance, you should 

use as guidance Procedure 2 of 

Appendix F to Part 60 of this chapter 

and the detector manufacturer’s 

recommended procedures for periodic 

quality assurance checks and tests, 

except that: 

(1) You must conduct annual Relative 

Response Audits as prescribed by 

Procedure 2 of Appendix F to Part 60 of 

this chapter (Section 10.3(6)); 

(2) You need only conduct Relative 

Response Audits on a 3-year interval 

after passing two sequential annual 

Relative Response Audits. 

(D) An exceedance of the particulate 

matter emission standard by a 

particulate matter detection system for 

which particulate emission 

concentrations have been approximately 

correlated with the detector response 

under paragraph (c)(9)(iii) of this section 

is not evidence that the standard has 

been exceeded. The approximate 

correlation is used for compliance 

assurance to determine when corrective 

measures must be taken rather than for 

compliance monitoring. 

(iv) Particulate matter detection 

system corrective measures 

requirements. The operating and 

maintenance plan required by paragraph 

(c)(7) of this section must include a 

corrective measures plan that specifies 

the procedures you will follow in the 

case of a particulate matter detection 

system alarm. The corrective measures 

plan must include, at a minimum, the 

procedures used to determine and 

record the time and cause of the alarm 

as well as the corrective measures taken 

to correct the control device 

malfunction or minimize emissions as 

specified below. Failure to initiate the 

corrective measures required by this 

paragraph is failure to ensure 

compliance with the emission standards 

in this subpart. 

59546 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(A) You must initiate the procedures 

used to determine the cause of the alarm 

within 30 minutes of the time the alarm 

first sounds; and 

(B) You must alleviate the cause of the 

alarm by taking the necessary corrective 

measure(s) which may include shutting 

down the combustor. 

(v) Excessive exceedances 

notification. If you operate the 

combustor when the detector response 

exceeds the alarm set-point more than 5 

percent of the time during any 6-month 

block time period, you must submit a 

notification to the Administrator within 

30 days of the end of the 6-month block 

time period that describes the causes of 

the exceedances and the revisions to the 

design, operation, or maintenance of the 

combustor or emission control device 

you are taking to minimize exceedances. 

To document compliance with this 

requirement: 

(A) You must keep records of the date, 

time, and duration of each alarm, the 

time corrective action was initiated and 

completed, and a brief description of the 

cause of the alarm and the corrective 

action taken; 

(B) You must record the percent of the 

operating time during each 6-month 

period that the alarm sounds; 

(C) In calculating the operating time 

percentage, if inspection of the emission 

control device demonstrates that no 

corrective action is required, no alarm 

time is counted; and 

(D) If corrective action is required, 

each alarm shall be counted as a 

minimum of 1 hour. 

■ 9. Section 63.1207 is amended by: 

■ a. Revising paragraph (b)(1). 

■ b. Adding paragraph (b)(3). 

■ c. Revising paragraphs (c)(1) and 

(c)(2)(iii). 

■ d. Adding paragraph (c)(3). 

■ e. Revising paragraph (d)(4)(i). 

■ f. Revising paragraphs (e)(2) and 

(e)(3)(iv). 

■ g. Revising paragraphs (f)(1)(ii)(D), 

(f)(1)(x) introductory text, (f)(1)(xiii), 

(f)(1)(xiv), (f)(1)(xvi), and (f)(1)(xxv). 

■ h. Adding paragraph (f)(1)(xv). 

■ i. Revising paragraph (h)(2)(i). 

■ j. Revising paragraph (j)(3). 

■ k. Revising paragraph (l)(1) 

introductory text. 

■ l. Revising paragraph (m)(2) 

introductory text. 

The revisions and additions read as 

follows: 

§ 63.1207 What are the performance 

testing requirements? 

* * * * * 

(b) * * * 

(1) Comprehensive performance test. 

You must conduct comprehensive 

performance tests to demonstrate 

compliance with the emission standards 

provided by this subpart, establish 

limits for the operating parameters 

provided by § 63.1209, and demonstrate 

compliance with the performance 

specifications for continuous 

monitoring systems. 

* * * * * 

(3) One-Time Dioxin/Furan Test for 

Sources Not Subject to a Numerical 

Dioxin/Furan Standard. For solid fuel 

boilers and hydrochloric acid 

production furnaces, for lightweight 

aggregate kilns that are not subject to a 

numerical dioxin/furan emission 

standard under § 63.1221, and liquid 

fuel boilers that are not subject to a 

numerical dioxin/furan emission 

standard under § 63.1217, you must 

conduct a one-time emission test for 

dioxin/furan under feed and operating 

conditions that are most likely to reflect 

daily maximum operating variability, 

similar to a dioxin/furan comprehensive 

performance test. 

(i) You must conduct the dioxin/furan 

emissions test no later than the deadline 

for conducting the initial 

comprehensive performance test. 

(ii) You may use dioxin/furan 

emissions data from previous testing to 

meet this requirement, provided that: 

(A) The testing was conducted under 

feed and operating conditions that are 

most likely to reflect daily maximum 

operating variability, similar to a 

dioxin/furan compliance test; 

(B) You have not changed the design 

or operation of the source in a manner 

that could significantly affect stack gas 

dioxin/furan emission concentrations; 

and 

(C) The data meet quality assurance 

objectives that may be determined on a 

site-specific basis. 

(iii) You may use dioxin/furan 

emissions data from a source to 

represent emissions from another onsite source in lieu of testing (i.e., data in 

lieu of testing) if the design and 

operation, including hazardous waste 

feed and other feedstreams, of the 

sources are identical. 

(iv) You must include the results of 

the one-time dioxin/furan emissions test 

with the results of the initial 

comprehensive performance test in the 

Notification of Compliance. 

(v) You must repeat the dioxin/furan 

emissions test if you change the design 

or operation of the source in a manner 

that may increase dioxin/furan 

emissions. 

(c) * * * (1) Test date. Except as 

provided by paragraphs (c)(2) and (c)(3) 

of this section, you must commence the 

initial comprehensive performance test 

not later than six months after the 

compliance date. 

(2) * * * (iii) The data in lieu test age 

restriction provided in paragraph 

(c)(2)(i)(A) of this section does not apply 

for the duration of the interim standards 

(i.e., the standards published in the 

Federal Register on February 13, 2002, 

67 FR 6792). See 40 CFR parts 63, 264, 

265, 266, 270, and 271 revised as of July 

1, 2002. Paragraph (c)(2)(i)(A) of this 

section does not apply until EPA 

promulgates permanent replacement 

standards pursuant to the Settlement 

Agreement noticed in the Federal 

Register on November 16, 2001 (66 FR 

57715). 

* * * * * 

(3) For incinerators, cement kilns, and 

lightweight aggregate kilns, you must 

commence the initial comprehensive 

performance test to demonstrate 

compliance with the standards under 

§§ 63.1219, 63.1220, and 63.1221 not 

later than 12 months after the 

compliance date. 

(d) * * * 

(4) * * * (i) Waiver of periodic 

comprehensive performance tests. 

Except as provided in paragraph (c)(2) 

of this section, you must conduct only 

an initial comprehensive performance 

test under the interim standards (i.e., 

the standards published in the Federal 

Register on February 13, 2002); all 

subsequent comprehensive performance 

testing requirements are waived under 

the interim standards. The provisions in 

the introductory text to paragraph (d) 

and in paragraph (d)(1) of this section 

do not apply until EPA promulgates 

permanent replacement standards 

pursuant to the Settlement Agreement 

noticed in the Federal Register on 

November 16, 2001. 

* * * * * 

(e) * * * 

(2) You must make your site-specific 

test plan and CMS performance 

evaluation test plan available to the 

public for review no later than 60 

calendar days before initiation of the 

test. You must issue a public notice to 

all persons on your facility/public 

mailing list (developed pursuant to 40 

CFR 70.7(h), 71.11(d)(3)(i)(E) and 

124.10(c)(1)(ix)) announcing the 

availability of the test plans and the 

location where the test plans are 

available for review. The test plans must 

be accessible to the public for 60 

calendar days, beginning on the date 

that you issue your public notice. The 

location must be unrestricted and 

provide access to the public during 

reasonable hours and provide a means 

for the public to obtain copies. The 

notification must include the following 

information at a minimum: 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59547 

(i) The name and telephone number of 

the source’s contact person; 

(ii) The name and telephone number 

of the regulatory agency’s contact 

person; 

(iii) The location where the test plans 

and any necessary supporting 

documentation can be reviewed and 

copied; 

(iv) The time period for which the test 

plans will be available for public 

review; and 

(v) An expected time period for 

commencement and completion of the 

performance test and CMS performance 

evaluation test. 

(3) * * * 

(iv) Public notice. At the same time 

that you submit your petition to the 

Administrator, you must notify the 

public (e.g., distribute a notice to the 

facility/public mailing list developed 

pursuant to 40 CFR 70.7(h), 

71.11(d)(3)(i)(E) and 124.10(c)(1)(ix)) of 

your petition to waive a performance 

test. The notification must include all of 

the following information at a 

minimum: 

(A) The name and telephone number 

of the source’s contact person; 

(B) The name and telephone number 

of the regulatory agency’s contact 

person; 

(C) The date the source submitted its 

site-specific performance test plan and 

CMS performance evaluation test plans; 

and 

(D) The length of time requested for 

the waiver. 

(f) * * * 

(1) * * * 

(ii) * * * 

(D) The Administrator may approve 

on a case-by-case basis a hazardous 

waste feedstream analysis for organic 

hazardous air pollutants in lieu of the 

analysis required under paragraph 

(f)(1)(ii)(A) of this section if the reduced 

analysis is sufficient to ensure that the 

POHCs used to demonstrate compliance 

with the applicable DRE standards of 

this subpart continue to be 

representative of the most difficult to 

destroy organic compounds in your 

hazardous waste feedstreams; 

* * * * * 

(x) If you are requesting to extrapolate 

metal feedrate limits from 

comprehensive performance test levels 

under §§ 63.1209(l)(1)(v) or 

63.1209(n)(2)(vii): 

* * * * * 

(xiii) For cement kilns with in-line 

raw mills, if you elect to use the 

emissions averaging provision of this 

subpart, you must notify the 

Administrator of your intent in the 

initial (and subsequent) comprehensive 

performance test plan, and provide the 

information required by the emission 

averaging provision; 

(xiv) For preheater or preheater/ 

precalciner cement kilns with dual 

stacks, if you elect to use the emissions 

averaging provision of this subpart, you 

must notify the Administrator of your 

intent in the initial (and subsequent) 

comprehensive performance test plan, 

and provide the information required by 

the emission averaging provision; 

(xv) If you request to use Method 23 

for dioxin/furan you must provide the 

information required under 

§ 63.1208(b)(1)(i)(B); 

(xvi) If you are not required to 

conduct performance testing to 

document compliance with the 

mercury, semivolatile metals, low 

volatile metals, or hydrogen chloride/ 

chlorine gas emission standards under 

paragraph (m) of this section, you must 

include with the comprehensive 

performance test plan documentation of 

compliance with the provisions of that 

section. 

* * * * * 

(xxv) If your source is equipped with 

a dry scrubber to control hydrogen 

chloride and chlorine gas, you must 

document in the comprehensive 

performance test plan key parameters 

that affect adsorption, and the limits 

you establish for those parameters based 

on the sorbent used during the 

performance test, if you elect not to 

specify and use the brand and type of 

sorbent used during the comprehensive 

performance test, as required by 

§ 63.1209(o)(4)(iii)(A); and 

* * * * * 

(h) * * * 

(2) * * * 

(i) Operations when stack emissions 

testing for dioxin/furan, mercury, 

semivolatile metals, low volatile metals, 

particulate matter, or hydrogen 

chloride/chlorine gas is being 

performed; and 

* * * * * 

(j) * * * 

(3) See §§ 63.7(g), 63.9(h), and 

63.1210(d) for additional requirements 

pertaining to the Notification of 

Compliance (e.g., you must include 

results of performance tests in the 

Notification of Compliance). 

* * * * * 

(l) Failure of performance test—(1) 

Comprehensive performance test. The 

provisions of this paragraph do not 

apply to the initial comprehensive 

performance test if you conduct the test 

prior to your compliance date. 

* * * * * 

(m) * * * 

(2) You are not required to conduct 

performance tests to document 

compliance with the mercury, 

semivolatile metals, low volatile metals, 

or hydrogen chloride/chlorine gas 

emission standards under the 

conditions specified in this paragraph 

(m)(2). You are deemed to be in 

compliance with an emission standard 

if the twelve-hour rolling average 

maximum theoretical emission 

concentration (MTEC) does not exceed 

the emission standard: 

* * * * * 

■ 10. Section 63.1208 is amended by 

removing and reserving paragraph (a) 

and revising paragraphs (b)(1)(i) and 

(b)(5) to read as follows: 

§ 63.1208 What are the test methods? 

(a) [Reserved] 

(b) * * * 

(1) * * * (i) To determine compliance 

with the emission standard for dioxins 

and furans, you must use: 

(A) Method 0023A, Sampling Method 

for Polychlorinated Dibenzo-p-Dioxins 

and Polychlorinated Dibenzofurans 

emissions from Stationary Sources, EPA 

Publication SW–846 (incorporated by 

reference— see § 63.14); or 

(B) Method 23, provided in appendix 

A, part 60 of this chapter, after approval 

by the Administrator. 

(1) You may request approval to use 

Method 23 in the performance test plan 

required under § 63.1207(e)(i) and (ii). 

(2) In determining whether to grant 

approval to use Method 23, the 

Administrator may consider factors 

including whether dioxin/furan were 

detected at levels substantially below 

the emission standard in previous 

testing, and whether previous Method 

0023 analyses detected low levels of 

dioxin/furan in the front half of the 

sampling train. 

(3) Sources that emit carbonaceous 

particulate matter, such as coal-fired 

boilers, and sources equipped with 

activated carbon injection, will be 

deemed not suitable for use of Method 

23 unless you document that there 

would not be a significant improvement 

in quality assurance with Method 

0023A. 

* * * * * 

(5) Hydrogen chloride and chlorine 

gas—(i) Compliance with MACT 

standards. To determine compliance 

with the emission standard for hydrogen 

chloride and chlorine gas (combined), 

you must use: 

(A) Method 26/26A as provided in 

appendix A, part 60 of this chapter; or 

(B) Methods 320 or 321 as provided 

in appendix A, part 63 of this chapter, 

or 

59548 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(C) ASTM D 6735–01, Standard Test 

Method for Measurement of Gaseous 

Chlorides and Fluorides from Mineral 

Calcining Exhaust Sources—Impinger 

Method to measure emissions of 

hydrogen chloride, and Method 26/26A 

to measure emissions of chlorine gas, 

provided that you follow the provisions 

in paragraphs (b)(5)(C)(1) through (6) of 

this section. ASTM D 6735–01 is 

available for purchase from at least one 

of the following addresses: American 

Society for Testing and Materials 

(ASTM), 100 Barr Harbor Drive, Post 

Office Box C700, West Conshohocken, 

PA 19428–2959; or ProQuest, 300 North 

Zeeb Road, Ann Arbor, MI 48106. 

(1) A test must include three or more 

runs in which a pair of samples is 

obtained simultaneously for each run 

according to section 11.2.6 of ASTM 

Method D6735–01. 

(2) You must calculate the test run 

standard deviation of each set of paired 

samples to quantify data precision, 

according to Equation 1 of this section: 

RSD AbsoluteValue C C

C C Eq a

a a

a a

= ( ) −

+





 



100  1 2

1 2 ( . 1)

Where: 

RSDa = The test run relative standard 

deviation of sample pair a, percent. 

C1a and C2a = The HCl concentrations, 

milligram/dry standard cubic meter 

(mg/dscm), from the paired 

samples. 

(3) You must calculate the test average 

relative standard deviation according to 

Equation 2 of this section: 

RSD

RSD

p

Eq TA

a

p

= ( ) =

∑ a

 2 1 .

Where: 

RSDTA = The test average relative 

standard deviation, percent. 

RSDa = The test run relative standard 

deviation for sample pair a. 

p = The number of test runs, ≥3. 

(4) If RSDTA is greater than 20 

percent, the data are invalid and the test 

must be repeated. 

(5) The post-test analyte spike 

procedure of section 11.2.7 of ASTM 

Method D6735–01 is conducted, and the 

percent recovery is calculated according 

to section 12.6 of ASTM Method 

D6735–01. 

(6) If the percent recovery is between 

70 percent and 130 percent, inclusive, 

the test is valid. If the percent recovery 

is outside of this range, the data are 

considered invalid, and the test must be 

repeated. 

(ii) Compliance with risk-based limits 

under § 63.1215. To demonstrate 

compliance with emission limits 

established under § 63.1215, you must 

use Method 26/26A as provided in 

appendix A, part 60 of this chapter, 

Method 320 as provided in appendix A, 

part 63 of this chapter, Method 321 as 

provided in appendix A, part 63 of this 

chapter, or ASTM D 6735–01, Standard 

Test Method for Measurement of 

Gaseous Chlorides and Fluorides from 

Mineral Calcining Exhaust Sources—

Impinger Method (following the 

provisions of paragraphs (b)(5)(C)(1) 

through (6) of this section), except: 

(A) For cement kilns and sources 

equipped with a dry acid gas scrubber, 

you must use Methods 320 or 321 as 

provided in appendix A, part 63 of this 

chapter, or ASTM D 6735–01 to measure 

hydrogen chloride, and the back-half, 

caustic impingers of Method 26/26A as 

provided in appendix A, part 60 of this 

chapter to measure chlorine gas; and 

(B) For incinerators, boilers, and 

lightweight aggregate kilns, you must 

use Methods 320 or 321 as provided in 

appendix A, part 63 of this chapter, or 

ASTM D 6735–01 to measure hydrogen 

chloride, and Method 26/26A as 

provided in appendix A, part 60 of this 

chapter to measure total chlorine, and 

calculate chlorine gas by difference if: 

(1) The bromine/chlorine ratio in 

feedstreams is greater than 5 percent; or 

(2) The sulfur/chlorine ratio in 

feedstreams is greater than 50 percent. 

* * * * * 

■ 11. Section 63.1209 is amended by: 

■ a. Revising paragraphs (a)(1)(ii), 

(a)(1)(iv)(D), (a)(1)(v)(D), and (a)(5). 

■ b. Revising paragraph (b)(2)(ii). 

■ c. Revising the heading of paragraph 

(g)(1) introductory text and paragraph 

(g)(1)(i). 

■ d. Adding paragraph (g)(1)(iv). 

■ e. Revising paragraphs (k)(1)(i) and 

(k)(2)(i). 

■ f. Revising paragraph (l)(1). 

■ g. Revising paragraphs (m)(1)(iv) 

introductory text and (m)(3). 

■ h. Revising paragraph (n)(2). 

■ i. Revising the heading of paragraph 

(o) introductory text and paragraph 

(o)(1). 

■ j. Adding paragraph (r). 

The revisions read as follows: 

§ 63.1209 What are the monitoring 

requirements? 

(a) * * * 

(1) * * * 

(ii) (A) Cement kilns under 

§ 63.1204—Except as provided by 

paragraphs (a)(1)(iv) and (a)(1)(v) of the 

section, you must use a COMS to 

demonstrate and monitor compliance 

with the opacity standard under 

§§ 63.1204(a)(7) and (b)(7) at each point 

where emissions are vented from these 

affected sources including the bypass 

stack of a preheater or preheater/ 

precalciner kiln with dual stacks. 

(B) Cement kilns under § 63.1220—

Except as provided by paragraphs 

(a)(1)(iv) and (a)(1)(v) of the section and 

unless your source is equipped with a 

bag leak detection system under 

§ 63.1206(c)(8) or a particulate matter 

detection system under § 63.1206(c)(9), 

you must use a COMS to demonstrate 

and monitor compliance with the 

opacity standard under §§ 63.1220(a)(7) 

and (b)(7) at each point where emissions 

are vented from these affected sources 

including the bypass stack of a 

preheater or preheater/precalciner kiln 

with dual stacks. 

(C) You must maintain and operate 

each COMS in accordance with the 

requirements of § 63.8(c) except for the 

requirements under § 63.8(c)(3). The 

requirements of § 63.1211(c) shall be 

complied with instead of § 63.8(c)(3); 

and 

(D) Compliance is based on a sixminute block average. 

* * * * * 

(iv) * * * 

(D) To remain in compliance, all sixminute block averages must not exceed 

the opacity standard. 

(v) * * * 

(D) To remain in compliance, all sixminute block averages must not exceed 

the opacity standard. 

* * * * * 

(5) Petitions to use CEMS for other 

standards. You may petition the 

Administrator to use CEMS for 

compliance monitoring for particulate 

matter, mercury, semivolatile metals, 

low volatile metals, and hydrogen 

chloride and chlorine gas under § 63.8(f) 

in lieu of compliance with the 

corresponding operating parameter 

limits under this section. 

* * * * * 

(b) * * * 

(2) * * * 


ER12OC05.001</MATH> ER12OC05.002</MATH>
Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59549 

(ii) Accuracy and calibration of 

weight measurement devices for 

activated carbon injection systems. If 

you operate a carbon injection system, 

the accuracy of the weight measurement 

device must be ± 1 percent of the weight 

being measured. The calibration of the 

device must be verified at least once 

each calendar quarter at a frequency of 

approximately 120 days. 

* * * * * 

(g) * * * 

(1) Requests to use alternatives to 

operating parameter monitoring 

requirements. (i) You may submit an 

application to the Administrator under 

this paragraph for approval of 

alternative operating parameter 

monitoring requirements to document 

compliance with the emission standards 

of this subpart. For requests to use 

additional CEMS, however, you must 

use paragraph (a)(5) of this section and 

§ 63.8(f). Alternative requests to 

operating parameter monitoring 

requirements that include unproven 

monitoring methods may not be made 

under this paragraph and must be made 

under § 63.8(f). 

* * * * * 

(iv) Dual Standards that incorporate 

the Interim Standards for HAP metals. 

(A) Semivolatile and Low Volatile 

Metals. You may petition the 

Administrator to waive a feedrate 

operating parameter limit under 

paragraph (n)(2) of this section for either 

the emission standards expressed in a 

thermal emissions format or the interim 

standards based on documentation that 

the feedrate operating parameter limit is 

not needed to ensure compliance with 

the relevant standard on a continuous 

basis. 

(B) Mercury. You may petition the 

Administrator to waive a feedrate 

operating parameter limit under 

paragraph (l)(1) of this section for either 

the feed concentration standard under 

§§ 63.1220(a)(2)(i) and (b)(2)(i) or the 

interim standards based on 

documentation that the feedrate 

operating parameter limit is not needed 

to ensure compliance with the relevant 

standard on a continuous basis. 

* * * * * 

(k) * * * 

(1) * * * (i) For sources other than a 

lightweight aggregate kiln, if the 

combustor is equipped with an 

electrostatic precipitator, baghouse 

(fabric filter), or other dry emissions 

control device where particulate matter 

is suspended in contact with 

combustion gas, you must establish a 

limit on the maximum temperature of 

the gas at the inlet to the device on an 

hourly rolling average. You must 

establish the hourly rolling average limit 

as the average of the test run averages. 

* * * * * 

(2) * * * (i) For sources other than 

cement kilns, you must measure the 

temperature of each combustion 

chamber at a location that best 

represents, as practicable, the bulk gas 

temperature in the combustion zone. 

You must document the temperature 

measurement location in the test plan 

you submit under §§ 63.1207(e) and (f); 

* * * * * 

(l) Mercury. * * * 

(1) Feedrate of mercury. (i) For 

incinerators and solid fuel boilers, when 

complying with the mercury emission 

standards under §§ 63.1203, 63.1216 

and 63.1219, you must establish a 12- 

hour rolling average limit for the total 

feedrate of mercury in all feedstreams as 

the average of the test run averages. 

(ii) For liquid fuel boilers, when 

complying with the mercury emission 

standards of § 63.1217, you must 

establish a rolling average limit for the 

mercury feedrate as follows on an 

averaging period not to exceed an 

annual rolling average: 

(A) You must calculate a mercury 

system removal efficiency for each test 

run and calculate the average system 

removal efficiency of the test run 

averages. If emissions exceed the 

mercury emission standard during the 

comprehensive performance test, it is 

not a violation because the averaging 

period for the mercury emission 

standard is (not-to-exceed) one year and 

compliance is based on compliance 

with the mercury feedrate limit with an 

averaging period not-to-exceed one year. 

(B) If you burn hazardous waste with 

a heating value of 10,000 Btu/lb or 

greater, you must calculate the mercury 

feedrate limit as follows: 

(1) The mercury feedrate limit is the 

emission standard divided by [1 ¥ 

system removal efficiency]. 

(2) The mercury feedrate limit is a 

hazardous waste thermal concentration 

limit expressed as pounds of mercury in 

hazardous waste feedstreams per 

million Btu of hazardous waste fired. 

(3) You must comply with the 

hazardous waste mercury thermal 

concentration limit by determining the 

feedrate of mercury in all hazardous 

waste feedstreams (lb/hr) at least once a 

minute and the hazardous waste 

thermal feedrate (MM Btu/hr) at least 

once a minute to calculate a 60-minute 

average thermal emission concentration 

as [hazardous waste mercury feedrate 

(lb/hr) / hazardous waste thermal 

feedrate (MM Btu/hr)]. 

(4) You must calculate a rolling 

average hazardous waste mercury 

thermal concentration that is updated 

each hour. 

(5) If you select an averaging period 

for the feedrate limit that is greater than 

a 12-hour rolling average, you must 

calculate the initial rolling average as 

though you had selected a 12-hour 

rolling average, as provided by 

paragraph (b)(5)(i) of this section. You 

must calculate rolling averages 

thereafter as the average of the available 

one-minute values until enough oneminute values are available to calculate 

the rolling average period you select. At 

that time and thereafter, you update the 

rolling average feedrate each hour with 

a 60-minute average feedrate. 

(C) If you burn hazardous waste with 

a heating value of less than 10,000 Btu/ 

lb, you must calculate the mercury 

feedrate limit as follows: 

(1) You must calculate the mercury 

feedrate limit as the mercury emission 

standard divided by [1 ¥ System 

Removal Efficiency]. 

(2) The feedrate limit is expressed as 

a mass concentration per unit volume of 

stack gas (μg/dscm) and is converted to 

a mass feedrate (lb/hr) by multiplying it 

by the average stack gas flowrate of the 

test run averages. 

(3) You must comply with the 

feedrate limit by determining the 

mercury feedrate (lb/hr) at least once a 

minute to calculate a 60-minute average 

feedrate. 

(4) You must update the rolling 

average feedrate each hour with this 60- 

minute feedrate measurement. 

(5) If you select an averaging period 

for the feedrate limit that is greater than 

a 12-hour rolling average, you must 

calculate the initial rolling average as 

though you had selected a 12-hour 

rolling average, as provided by 

paragraph (b)(5)(i) of this section. You 

must calculate rolling averages 

thereafter as the average of the available 

one-minute values until enough oneminute values are available to calculate 

the rolling average period you select. At 

that time and thereafter, you update the 

rolling average feedrate each hour with 

a 60-minute average feedrate. 

(D) If your boiler is equipped with a 

wet scrubber, you must comply with the 

following unless you document in the 

performance test plan that you do not 

feed chlorine at rates that may 

substantially affect the system removal 

efficiency of mercury for purposes of 

establishing a mercury feedrate limit 

based on the system removal efficiency 

during the test: 

(1) Scrubber blowdown must be 

minimized during a pretest conditioning 

period and during the performance test: 

(2) Scrubber water must be 

preconditioned so that mercury in the 

59550 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

water is at equilibrium with stack gas at 

the mercury feedrate level of the 

performance test; and 

(3) You must establish an operating 

limit on minimum pH of scrubber water 

as the average of the test run averages 

and comply with the limit on an hourly 

rolling average. 

(iii) For cement kilns: 

(A) When complying with the 

emission standards under 

§§ 63.1220(a)(2)(i) and (b)(2)(i), you 

must: 

(1) Comply with the mercury 

hazardous waste feed concentration 

operating requirement on a twelve-hour 

rolling average; 

(2) Monitor and record in the 

operating record the as-fired mercury 

concentration in the hazardous waste 

(or the weighted-average mercury 

concentration for multiple hazardous 

waste feedstreams); 

(3) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when the as-fired mercury 

concentration operating requirement is 

exceeded; 

(B) When complying with the 

emission standards under §§ 63.1204, 

63.1220(a)(2)(ii) and (b)(2)(ii), you must 

establish a 12-hour rolling average limit 

for the total feedrate of mercury in all 

feedstreams as the average of the test 

run averages; 

(C) Except as provided by paragraph 

(l)(1)(iii)(D) of this section, when 

complying with the hazardous waste 

feedrate corresponding to a maximum 

theoretical emission concentration 

(MTEC) under §§ 63.1220(a)(2)(iii) and 

(b)(2)(iii), you must: 

(1) Comply with the MTEC operating 

requirement on a twelve-hour rolling 

average; 

(2) Monitor and record the feedrate of 

mercury for each hazardous waste 

feedstream according to § 63.1209(c); 

(3) Monitor with a CMS and record in 

the operating record the gas flowrate 

(either directly or by monitoring a 

surrogate parameter that you have 

correlated to gas flowrate); 

(4) Continuously calculate and record 

in the operating record a MTEC 

assuming mercury from all hazardous 

waste feedstreams is emitted; 

(5) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when the MTEC operating 

requirement is exceeded; 

(D) In lieu of complying with 

paragraph (l)(1)(iii)(C) of this section, 

you may: 

(1) Identify in the Notification of 

Compliance a minimum gas flowrate 

limit and a maximum feedrate limit of 

mercury from all hazardous waste 

feedstreams that ensures the MTEC 

calculated in paragraph (l)(1)(iii)(B)(4) 

of this section is below the operating 

requirement under paragraphs 

§§ 63.1220(a)(2)(iii) and (b)(2)(iii); and 

(2) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when either the gas flowrate 

or mercury feedrate exceeds the limits 

identified in paragraph (l)(1)(iv)(D)(1) of 

this section. 

(iv) For lightweight aggregate kilns: 

(A) When complying with the 

emission standards under §§ 63.1205, 

63.1221(a)(2)(i) and (b)(2)(i), you must 

establish a 12-hour rolling average limit 

for the total feedrate of mercury in all 

feedstreams as the average of the test 

run averages; 

(B) Except as provided by paragraph 

(l)(1)(iv)(C) of this section, when 

complying with the hazardous waste 

feedrate corresponding to a maximum 

theoretical emission concentration 

(MTEC) under §§ 63.1221(a)(2)(ii) and 

(b)(2)(ii), you must: 

(1) Comply with the MTEC operating 

requirement on a twelve-hour rolling 

average; 

(2) Monitor and record the feedrate of 

mercury for each hazardous waste 

feedstream according to § 63.1209(c); 

(3) Monitor with a CMS and record in 

the operating record the gas flowrate 

(either directly or by monitoring a 

surrogate parameter that you have 

correlated to gas flowrate); 

(4) Continuously calculate and record 

in the operating record a MTEC 

assuming mercury from all hazardous 

waste feedstreams is emitted; 

(5) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when the MTEC operating 

requirement is exceeded; 

(C) In lieu of complying with 

paragraph (l)(1)(iv)(B) of this section, 

you may: 

(1) Identify in the Notification of 

Compliance a minimum gas flowrate 

limit and a maximum feedrate limit of 

mercury from all hazardous waste 

feedstreams that ensures the MTEC 

calculated in paragraph (l)(1)(iv)(B)(4) of 

this section is below the operating 

requirement under paragraphs 

§§ 63.1221(a)(2)(ii) and (b)(2)(ii); and 

(2) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when either the gas flowrate 

or mercury feedrate exceeds the limits 

identified in paragraph (l)(1)(iv)(C)(1) of 

this section. 

(v) Extrapolation of feedrate levels. In 

lieu of establishing mercury feedrate 

limits as specified in paragraphs (l)(1)(i) 

through (iv) of this section, you may 

request as part of the performance test 

plan under §§ 63.7(b) and (c) and 

§§ 63.1207 (e) and (f) to use the mercury 

feedrates and associated emission rates 

during the comprehensive performance 

test to extrapolate to higher allowable 

feedrate limits and emission rates. The 

extrapolation methodology will be 

reviewed and approved, as warranted, 

by the Administrator. The review will 

consider in particular whether: 

(A) Performance test metal feedrates 

are appropriate (i.e., whether feedrates 

are at least at normal levels; depending 

on the heterogeneity of the waste, 

whether some level of spiking would be 

appropriate; and whether the physical 

form and species of spiked material is 

appropriate); and 

(B) Whether the extrapolated feedrates 

you request are warranted considering 

historical metal feedrate data. 

* * * * * 

(m) * * * 

(1) * * * 

(iv) Other particulate matter control 

devices. For each particulate matter 

control device that is not a fabric filter 

or high energy wet scrubber, or is not an 

electrostatic precipitator or ionizing wet 

scrubber for which you elect to monitor 

particulate matter loadings under 

§ 63.1206(c)(9) of this chapter for 

process control, you must ensure that 

the control device is properly operated 

and maintained as required by 

§ 63.1206(c)(7) and by monitoring the 

operation of the control device as 

follows: 

* * * * * 

(3) Maximum ash feedrate. Owners 

and operators of hazardous waste 

incinerators, solid fuel boilers, and 

liquid fuel boilers must establish a 

maximum ash feedrate limit as a 12- 

hour rolling average based on the 

average of the test run averages. This 

requirement is waived, however, if you 

comply with the particulate matter 

detection system requirements under 

§ 63.1206(c)(9). 

(n) * * * 

(2) Maximum feedrate of semivolatile 

and low volatile metals. (i) General. You 

must establish feedrate limits for 

semivolatile metals (cadmium and lead) 

and low volatile metals (arsenic, 

beryllium, and chromium) as follows, 

except as provided by paragraph 

(n)(2)(vii) of this section. 

(ii) For incinerators, cement kilns, and 

lightweight aggregate kilns, when 

complying with the emission standards 

under §§ 63.1203, 63.1204, 63.1205, and 

63.1219, and for solid fuel boilers when 

complying with the emission standards 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59551 

under § 63.1216, you must establish 12- 

hour rolling average limits for the total 

feedrate of semivolatile and low volatile 

metals in all feedstreams as the average 

of the test run averages. 

(iii) Cement kilns under § 63.1220—

(A) When complying with the emission 

standards under §§ 63.1220(a)(3)(i), 

(a)(4)(i), (b)(3)(i), and (b)(4)(i), you must 

establish 12-hour rolling average 

feedrate limits for semivolatile and low 

volatile metals as the thermal 

concentration of semivolatile metals or 

low volatile metals in all hazardous 

waste feedstreams. You must calculate 

hazardous waste thermal concentrations 

for semivolatile metals and low volatile 

metals for each run as the total mass 

feedrate of semivolatile metals or low 

volatile metals for all hazardous waste 

feedstreams divided by the total heat 

input rate for all hazardous waste 

feedstreams. The 12-hour rolling 

average feedrate limits for semivolatile 

metals and low volatile metals are the 

average of the hazardous waste thermal 

concentrations for the runs. 

(B) When complying with the 

emission standards under 

§§ 63.1220(a)(3)(ii), (a)(4)(ii), (b)(3)(ii), 

and (b)(4)(ii), you must establish 12- 

hour rolling average limits for the total 

feedrate of semivolatile and low volatile 

metals in all feedstreams as the average 

of the test run averages. 

(iv) Lightweight aggregate kilns under 

§ 63.1221—(A) When complying with 

the emission standards under 

§§ 63.1221(a)(3)(i), (a)(4)(i), (b)(3)(i), and 

(b)(4)(i), you must establish 12-hour 

rolling average feedrate limits for 

semivolatile and low volatile metals as 

the thermal concentration of 

semivolatile metals or low volatile 

metals in all hazardous waste 

feedstreams as specified in paragraphs 

(n)(2)(iii)(A) of this section. 

(B) When complying with the 

emission standards under 

§§ 63.1221(a)(3)(ii), (a)(4)(ii), (b)(3)(ii), 

and (b)(4)(ii), you must establish 12- 

hour rolling average limits for the total 

feedrate of semivolatile and low volatile 

metals in all feedstreams as the average 

of the test run averages. 

(v) Liquid fuel boilers under 

§ 63.1217. (A) Semivolatile metals. You 

must establish a rolling average limit for 

the semivolatile metal feedrate as 

follows on an averaging period not to 

exceed an annual rolling average. 

(1) System removal efficiency. You 

must calculate a semivolatile metal 

system removal efficiency for each test 

run and calculate the average system 

removal efficiency of the test run 

averages. If emissions exceed the 

semivolatile metal emission standard 

during the comprehensive performance 

test, it is not a violation because the 

averaging period for the semivolatile 

metal emission standard is one year and 

compliance is based on compliance 

with the semivolatile metal feedrate 

limit that has an averaging period not to 

exceed an annual rolling average. 

(2) Boilers that feed hazardous waste 

with a heating value of 10,000 Btu/lb or 

greater. You must calculate the 

semivolatile metal feedrate limit as the 

semivolatile metal emission standard 

divided by [1 ¥ System Removal 

Efficiency]. 

(i) The feedrate limit is a hazardous 

waste thermal concentration limit 

expressed as pounds of semivolatile 

metals in all hazardous waste 

feedstreams per million Btu of 

hazardous waste fed to the boiler. 

(ii) You must comply with the 

hazardous waste semivolatile metal 

thermal concentration limit by 

determining the feedrate of semivolatile 

metal in all hazardous waste 

feedstreams (lb/hr) and the hazardous 

waste thermal feedrate (MM Btu/hr) at 

least once a minute to calculate a 60- 

minute average thermal emission 

concentration as [hazardous waste 

semivolatile metal feedrate (lb/hr) / 

hazardous waste thermal feedrate (MM 

Btu/hr)]. 

(iii) You must calculate a rolling 

average hazardous waste semivolatile 

metal thermal concentration that is 

updated each hour. 

(iv) If you select an averaging period 

for the feedrate limit that is greater than 

a 12-hour rolling average, you must 

calculate the initial rolling average as 

though you had selected a 12-hour 

rolling average, as provided by 

paragraph (b)(5)(i) of this section. You 

must calculate rolling averages 

thereafter as the average of the available 

one-minute values until enough oneminute values are available to calculate 

the rolling average period you select. At 

that time and thereafter, you update the 

rolling average feedrate each hour with 

a 60-minute average feedrate. 

(3) Boilers that feed hazardous waste 

with a heating value less than 10,000 

Btu/lb. (i) You must calculate the 

semivolatile metal feedrate limit as the 

semivolatile metal emission standard 

divided by [1 ¥ System Removal 

Efficiency]. 

(ii) The feedrate limit is expressed as 

a mass concentration per unit volume of 

stack gas (μg/dscm) and is converted to 

a mass feedrate (lb/hr) by multiplying it 

by the average stack gas flowrate (dscm/ 

hr) of the test run averages. 

(iii) You must comply with the 

feedrate limit by determining the 

semivolatile metal feedrate (lb/hr) at 

least once a minute to calculate a 60- 

minute average feedrate. 

(iv) You must update the rolling 

average feedrate each hour with this 60- 

minute feedrate measurement. 

(v) If you select an averaging period 

for the feedrate limit that is greater than 

a 12-hour rolling average, you must 

calculate the initial rolling average as 

though you had selected a 12-hour 

rolling average, as provided by 

paragraph (b)(5)(i) of this section. You 

must calculate rolling averages 

thereafter as the average of the available 

one-minute values until enough oneminute values are available to calculate 

the rolling average period you select. At 

that time and thereafter, you update the 

rolling average feedrate each hour with 

a 60-minute average feedrate. 

(B) Chromium. (1) Boilers that feed 

hazardous waste with a heating value of 

10,000 Btu/lb or greater. (i) The feedrate 

limit is a hazardous waste thermal 

concentration limit expressed as pounds 

of chromium in all hazardous waste 

feedstreams per million Btu of 

hazardous waste fed to the boiler. 

(ii) You must comply with the 

hazardous waste chromium thermal 

concentration limit by determining the 

feedrate of chromium in all hazardous 

waste feedstreams (lb/hr) and the 

hazardous waste thermal feedrate (MM 

Btu/hr) at least once a minute to 

calculate a 60-minute average thermal 

emission concentration as [hazardous 

waste chromium feedrate (lb/hr) / 

hazardous waste thermal feedrate (MM 

Btu/hr)]. You must update the rolling 

average feedrate each hour with this 60- 

minute average feedrate measurement. 

(2) Boilers that feed hazardous waste 

with a heating value less than 10,000 

Btu/lb. You must establish a 12-hour 

rolling average limit for the total 

feedrate (lb/hr) of chromium in all 

feedstreams as the average of the test 

run averages. You must update the 

rolling average feedrate each hour with 

a 60-minute average feedrate 

measurement. 

(vi) LVM limits for pumpable wastes. 

You must establish separate feedrate 

limits for low volatile metals in 

pumpable feedstreams using the 

procedures prescribed above for total 

low volatile metals. Dual feedrate limits 

for both pumpable and total feedstreams 

are not required, however, if you base 

the total feedrate limit solely on the 

feedrate of pumpable feedstreams. 

(vii) Extrapolation of feedrate levels. 

In lieu of establishing feedrate limits as 

specified in paragraphs (l)(1)(i) through 

(iii) of this section, you may request as 

part of the performance test plan under 

§§ 63.7(b) and (c) and §§ 63.1207(e) and 

(f) to use the semivolatile metal and low 

59552 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

volatile metal feedrates and associated 

emission rates during the 

comprehensive performance test to 

extrapolate to higher allowable feedrate 

limits and emission rates. The 

extrapolation methodology will be 

reviewed and approved, as warranted, 

by the Administrator. The review will 

consider in particular whether: 

(A) Performance test metal feedrates 

are appropriate (i.e., whether feedrates 

are at least at normal levels; depending 

on the heterogeneity of the waste, 

whether some level of spiking would be 

appropriate; and whether the physical 

form and species of spiked material is 

appropriate); and 

(B) Whether the extrapolated feedrates 

you request are warranted considering 

historical metal feedrate data. 

* * * * * 

(o) Hydrogen chloride and chlorine 

gas. * * * 

(1) Feedrate of total chlorine and 

chloride. (i) Incinerators, cement kilns, 

lightweight aggregate kilns, solid fuel 

boilers, and hydrochloric acid 

production furnaces. You must establish 

a 12-hour rolling average limit for the 

total feedrate of chlorine (organic and 

inorganic) in all feedstreams as the 

average of the test run averages. 

(ii) Liquid fuel boilers. (A) Boilers that 

feed hazardous waste with a heating 

value not less than 10,000 Btu/lb. (1) 

The feedrate limit is a hazardous waste 

thermal concentration limit expressed 

as pounds of chlorine (organic and 

inorganic) in all hazardous waste 

feedstreams per million Btu of 

hazardous waste fed to the boiler. 

(2) You must establish a 12-hour 

rolling average feedrate limit as the 

average of the test run averages. 

(3) You must comply with the 

feedrate limit by determining the mass 

feedrate of hazardous waste feedstreams 

(lb/hr) at least once a minute and by 

knowing the chlorine (organic and 

inorganic) content and heating value 

(million Btu/lb) of hazardous waste 

feedstreams at all times to calculate a 

60-minute average feedrate 

measurement as [hazardous waste 

chlorine feedrate (lb/hr) / hazardous 

waste thermal feedrate (million Btu/hr)]. 

You must update the rolling average 

feedrate each hour with this 60-minute 

average feedrate measurement. 

(B) Boilers that feed hazardous waste 

with a heating value less than 10,000 

Btu/lb. You must establish a 12-hour 

rolling average limit for the total 

feedrate of chlorine (organic and 

inorganic) in all feedstreams as the 

average of the test run averages. You 

must update the rolling average feedrate 

each hour with a 60-minute average 

feedrate measurement. 

* * * * * 

(r) Averaging periods. The averaging 

periods specified in this section for 

operating parameters are not-to-exceed 

averaging periods. You may elect to use 

shorter averaging periods. For example, 

you may elect to use a 1-hour rolling 

average rather than the 12-hour rolling 

average specified in paragraph (l)(1)(i) of 

this section for mercury. 

■ 12. Section 63.1210 is amended by: 

■ a. Revising the table in paragraph 

(a)(1) and the table in paragraph (a)(2). 

■ b. Redesignating paragraph (b) as (d). 

■ c. Adding new paragraph (b). 

■ d. Adding new paragraph (c). 

The revisions and additions read as 

follows: 

§ 63.1210 What are the notification 

requirements? 

(a) * * * 

(1) * * * 

Reference Notification 

63.9(b) ................................................................. Initial notifications that you are subject to Subpart EEE of this Part. 

63.9(d) ................................................................. Notification that you are subject to special compliance requirements. 

63.9(j) .................................................................. Notification and documentation of any change in information already provided under § 63.9. 

63.1206(b)(5)(i) ................................................... Notification of changes in design, operation, or maintenance. 

63.1206(c)(7)(ii)(C) ............................................. Notification of excessive bag leak detection system exceedances. 

63.1207(e), 63.9(e) 63.9(g)(1) and (3) ............... Notification of performance test and continuous monitoring system evaluation, including the 

performance test plan and CMS performance evaluation plan.1

63.1210(b) ........................................................... Notification of intent to comply. 

63.1210(d), 63.1207(j), 63.1207(k), 63.1207(l), 

63.9(h), 63.10(d)(2), 63.10(e)(2).

Notification of compliance, including results of performance tests and continuous monitoring 

system performance evaluations. 

1You may also be required on a case-by-case basis to submit a feedstream analysis plan under § 63.1209(c)(3). 

(2) * * * 

Reference Notification, request, petition, or application 6 

63.9(i) .................................................................. You may request an adjustment to time periods or postmark deadlines for submittal and review of required information. 

63.10(e)(3)(ii) ...................................................... You may request to reduce the frequency of excess emissions and CMS performance reports. 

63.10(f) ................................................................ You may request to waive recordkeeping or reporting requirements. 

63.1204(d)(2)(iii), 63.1220(d)(2)(iii) ..................... Notification that you elect to comply with the emission averaging requirements for cement kilns 

with in-line raw mills. 

63.1204(e)(2)(iii), 63.1220(e)(2)(iii) ..................... Notification that you elect to comply with the emission averaging requirements for preheater or 

preheater/precalciner kilns with dual stacks. 

63.1206(b)(4), 63.1213, 63.6(i), 63.9(c) ............. You may request an extension of the compliance date for up to one year. 

63.1206(b)(5)(i)(C) .............................................. You may request to burn hazardous waste for more than 720 hours and for purposes other 

than testing or pretesting after making a change in the design or operation that could affect 

compliance with emission standards and prior to submitting a revised Notification of Compliance. 

63.1206(b)(8)(iii)(B) ............................................. If you elect to conduct particulate matter CEMS correlation testing and wish to have federal 

particulate matter and opacity standards and associated operating limits waived during the 

testing, you must notify the Administrator by submitting the correlation test plan for review 

and approval. 

63.1206(b)(8)(v) .................................................. You may request approval to have the particulate matter and opacity standards and associated operating limits and conditions waived for more than 96 hours for a correlation test. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59553 

Reference Notification, request, petition, or application 6 

63.1206(b)(9) ...................................................... Owners and operators of lightweight aggregate kilns may request approval of alternative emission standards for mercury, semivolatile metal, low volatile metal, and hydrogen chloride/ 

chlorine gas under certain conditions. 

63.1206(b)(10) .................................................... Owners and operators of cement kilns may request approval of alternative emission standards 

for mercury, semivolatile metal, low volatile metal, and hydrogen chloride/chlorine gas under 

certain conditions. 

63.1206(b)(14) .................................................... Owners and operators of incinerators may elect to comply with an alternative to the particulate 

matter standard. 

63.1206(b)(15) .................................................... Owners and operators of cement and lightweight aggregate kilns may request to comply with 

the alternative to the interim standards for mercury. 

63.1206(c)(2)(ii)(C) ............................................. You may request to make changes to the startup, shutdown, and malfunction plan. 

63.1206(c)(5)(i)(C) .............................................. You may request an alternative means of control to provide control of combustion system 

leaks. 

63.1206(c)(5)(i)(D) .............................................. You may request other techniques to prevent fugitive emissions without use of instantaneous 

pressure limits. 

63.1207(c)(2) ...................................................... You may request to base initial compliance on data in lieu of a comprehensive performance 

test. 

63.1207(d)(3) ...................................................... You may request more than 60 days to complete a performance test if additional time is needed for reasons beyond your control. 

63.1207(e)(3), 63.7(h) ......................................... You may request a time extension if the Administrator fails to approve or deny your test plan. 

63.1207(h)(2) ...................................................... You may request to waive current operating parameter limits during pretesting for more than 

720 hours. 

63.1207(f)(1)(ii)(D) .............................................. You may request a reduced hazardous waste feedstream analysis for organic hazardous air 

pollutants if the reduced analysis continues to be representative of organic hazardous air 

pollutants in your hazardous waste feedstreams. 

63.1207(g)(2)(v) .................................................. You may request to operate under a wider operating range for a parameter during confirmatory performance testing. 

63.1207(i) ............................................................ You may request up to a one-year time extension for conducting a performance test (other 

than the initial comprehensive performance test) to consolidate testing with other state or 

federally-required testing. 

63.1207(j)(4) ....................................................... You may request more than 90 days to submit a Notification of Compliance after completing a 

performance test if additional time is needed for reasons beyond your control. 

63.1207(l)(3) ....................................................... After failure of a performance test, you may request to burn hazardous waste for more than 

720 hours and for purposes other than testing or pretesting. 

63.1209(a)(5), 63.8(f) .......................................... You may request: (1) Approval of alternative monitoring methods for compliance with standards that are monitored with a CEMS; and (2) approval to use a CEMS in lieu of operating 

parameter limits. 

63.1209(g)(1) ...................................................... You may request approval of: (1) Alternatives to operating parameter monitoring requirements, 

except for standards that you must monitor with a continuous emission monitoring system 

(CEMS) and except for requests to use a CEMS in lieu of operating parameter limits; or (2) 

a waiver of an operating parameter limit. 

63.1209(l)(1) ....................................................... You may request to extrapolate mercury feedrate limits. 

63.1209(n)(2) ...................................................... You may request to extrapolate semivolatile and low volatile metal feedrate limits. 

63.1211(d) ........................................................... You may request to use data compression techniques to record data on a less frequent basis 

than required by § 63.1209. 

(b) Notification of intent to comply 

(NIC). These procedures apply to 

sources that have not previously 

complied with the requirements of 

paragraph (b) of this section, and to 

sources that previously complied with 

the NIC requirements of § 63.1210, 

which were in effect prior to October 11, 

2000, that must make a technology 

change requiring a Class 1 permit 

modification to meet the standards of 

§§ 63.1219, 63.1220, and 63.1221. 

(1) You must prepare a Notification of 

Intent to Comply that includes all of 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) 

you are considering; 

(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 general description of how you 

intend to comply with the emission 

standards of this subpart. 

(ii) As applicable to each source, 

information on key activities and 

estimated dates for these activities that 

will bring the source into compliance 

with emission control requirements of 

this subpart. You must include all of the 

following key activities and dates in 

your NIC: 

(A) The dates by which you anticipate 

you will develop engineering designs 

for emission control systems or process 

changes for emissions; 

(B) The date by which you anticipate 

you will commit internal or external 

resources for installing emission control 

systems or making process changes for 

emission control, or the date by which 

you will issue orders for the purchase of 

component parts to accomplish 

emission control or process changes. 

(C) The date by which you anticipate 

you will submit construction 

applications; 

(D) The date by which you anticipate 

you will initiate on-site construction, 

installation of emission control 

equipment, or process change; 

(E) The date by which you anticipate 

you will complete on-site construction, 

installation of emission control 

equipment, or process change; and 

(F) The date by which you anticipate 

you will achieve final compliance. The 

individual dates and milestones listed 

in paragraphs (b)(1)(ii)(A) through (F) of 

this section as part of the NIC are not 

requirements and therefore are not 

59554 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

enforceable deadlines; the requirements 

of paragraphs (b)(1)(ii)(A) through (F) of 

this section must be included as part of 

the NIC only to inform the public of 

how you intend to comply with the 

emission standards of this subpart. 

(iii) A summary of the public meeting 

required under paragraph (c) of this 

section; 

(iv) If you intend to cease burning 

hazardous waste prior to or on the 

compliance date, the requirements of 

paragraphs (b)(1)(ii) and (b)(1)(iii) of this 

section do not apply. You must include 

in your NIC a schedule of key dates for 

the steps to be taken to stop hazardous 

waste activity at your combustion unit. 

Key dates include the date for submittal 

of RCRA closure documents required 

under subpart G, part 264 or subpart G, 

part 265 of this chapter. 

(2) You must make a draft of the NIC 

available for public review no later than 

30 days prior to the public meeting 

required under paragraph (c)(1) of this 

section or no later than 9 months after 

the effective date of the rule if you 

intend to cease burning hazardous waste 

prior to or on the compliance date. 

(3) You must submit the final NIC to 

the Administrator no later than one year 

following the effective date of the 

emission standards of this subpart. 

(c) 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, you 

must hold at least one informal meeting 

with the public to discuss anticipated 

activities described in the draft NIC for 

achieving compliance with the emission 

standards of this subpart. You must post 

a sign-in sheet or otherwise provide a 

voluntary opportunity for attendees to 

provide their names and addresses; 

(2) You must 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 Administrator as part of the final 

NIC, in accordance with paragraph 

(b)(1)(iii) of this section; 

(3) You must provide public notice of 

the NIC meeting at least 30 days prior 

to the meeting and you must maintain, 

and provide to the Administrator upon 

request, documentation of the notice. 

You must provide public notice in all of 

the following forms: 

(i) Newspaper advertisement. You 

must publish a notice in a newspaper of 

general circulation in the county or 

equivalent jurisdiction of your facility. 

In addition, you must 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. You must publish the 

notice as a display advertisement. 

(ii) Visible and accessible sign. You 

must post a notice on a clearly marked 

sign at or near the source. If you place 

the sign on the site of the hazardous 

waste combustor, the sign must be large 

enough to be readable from the nearest 

spot where the public would pass by the 

site. 

(iii) Broadcast media announcement. 

You must broadcast a notice at least 

once on at least one local radio station 

or television station. 

(iv) Notice to the facility mailing list. 

You must provide a copy of the notice 

to the facility mailing list in accordance 

with § 124.10(c)(1)(ix) of this chapter. 

(4) You must include all of the 

following in the notices required under 

paragraph (c)(3) of this section: 

(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 (and final NIC, if requested) 

can be obtained; and 

(vi) The name, address, and telephone 

number of a contact person for the NIC. 

(5) The requirements of this paragraph 

do not apply to sources that intend to 

cease burning hazardous waste prior to 

or on the compliance date. 

■ 13. Section 63.1211 is amended by: 

■ a. Revising the table in paragraph (b). 

■ b. Revising paragraph (c)(1). 

The revisions read as follows: 

§ 63.1211 What are the recordkeeping and 

reporting requirements? 

* * * * * 

(b) * * * 

Reference Document, Data, or Information 

63.1200, 63.10(b) and (c) ................................... General. Information required to document and maintain compliance with the regulations of 

Subpart EEE, including data recorded by continuous monitoring systems (CMS), and copies 

of all notifications, reports, plans, and other documents submitted to the Administrator. 

63.1204(d)(1)(ii), 63.1220(d)(1)(ii) ...................... Documentation of mode of operation changes for cement kilns with in-line raw mills. 

63.1204(d)(2)(ii), 63.1220(d)(2)(ii) ...................... Documentation of compliance with the emission averaging requirements for cement kilns with 

in-line raw mills. 

63.1204(e)(2)(ii), 63.1220(e)(2)(ii) ...................... Documentation of compliance with the emission averaging requirements for preheater or preheater/precalciner kilns with dual stacks. 

63.1206(b)(1)(ii) .................................................. If you elect to comply with all applicable requirements and standards promulgated under authority of the Clean Air Act, including Sections 112 and 129, in lieu of the requirements of 

Subpart EEE when not burning hazardous waste, you must document in the operating 

record that you are in compliance with those requirements. 

63.1206(b)(5)(ii) .................................................. Documentation that a change will not adversely affect compliance with the emission standards 

or operating requirements. 

63.1206(b)(11) .................................................... Calculation of hazardous waste residence time. 

63.1206(c)(2) ...................................................... Startup, shutdown, and malfunction plan. 

63.1206(c)(2)(v)(A) ............................................. Documentation of your investigation and evaluation of excessive exceedances during malfunctions. 

63.1206(c)(3)(v) .................................................. Corrective measures for any automatic waste feed cutoff that results in an exceedance of an 

emission standard or operating parameter limit. 

63.1206(c)(3)(vii) ................................................. Documentation and results of the automatic waste feed cutoff operability testing. 

63.1206(c)(4)(ii) .................................................. Emergency safety vent operating plan. 

63.1206(c)(4)(iii) .................................................. Corrective measures for any emergency safety vent opening. 

63.1206(c)(5)(ii) .................................................. Method used for control of combustion system leaks. 

63.1206(c)(6) ...................................................... Operator training and certification program. 

63.1206(c)(7)(i)(D) .............................................. Operation and maintenance plan. 

63.1209(c)(2) ...................................................... Feedstream analysis plan. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59555 

Reference Document, Data, or Information 

63.1209(k)(6)(iii), 63.1209(k)(7)(ii), 

63.1209(k)(9)(ii), 63.1209(o)(4)(iii).

Documentation that a substitute activated carbon, dioxin/furan formation reaction inhibitor, or 

dry scrubber sorbent will provide the same level of control as the original material. 

63.1209(k)(7)(i)(C) .............................................. Results of carbon bed performance monitoring. 

63.1209(q) ........................................................... Documentation of changes in modes of operation. 

63.1211(c) ........................................................... Documentation of compliance. 

(c) * * * 

(1) By the compliance date, you must 

develop and include in the operating 

record a Documentation of Compliance. 

You are not subject to this requirement, 

however, if you submit a Notification of 

Compliance under § 63.1207(j) prior to 

the compliance date. Upon inclusion of 

the Documentation of Compliance in the 

operating record, hazardous waste 

burning incinerators, cement kilns, and 

lightweight aggregate kilns regulated 

under the interim standards of 

§§ 63.1203, 63.1204, and 63.1205 are no 

longer subject to compliance with the 

previously applicable Notification of 

Compliance. 

* * * * * 

■ 14. Section 63.1212 is added to 

subpart EEE to read as follows: 

§ 63.1212 What are the other requirements 

pertaining to the NIC? 

(a) Certification of intent to comply. 

The Notice of Intent to Comply (NIC) 

must contain the following certification 

signed and dated by a responsible 

official as defined under § 63.2 of this 

chapter: 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) New units. Any source that files a 

RCRA permit application or permit 

modification request for construction of 

a hazardous waste combustion unit after 

October 12, 2005 must: 

(1) Prepare a draft NIC according to 

§ 63.1210(b) and make it available to the 

public upon issuance of the notice of 

NIC public meeting per § 63.1210(c)(3); 

(2) Prepare a draft comprehensive 

performance test plan pursuant to the 

requirements of § 63.1207 and make it 

available for public review upon 

issuance of the notice of NIC public 

meeting; 

(3) Provide notice to the public of a 

pre-application meeting pursuant to 

§ 124.30 or notice to the public of a 

permit modification request pursuant to 

§ 270.42 and; 

(4) Hold an informal public meeting 

30 days following notice of NIC public 

meeting and notice of the preapplication meeting or notice of the 

permit modification request. 

(c) Information Repository specific to 

new combustion units. (1) Any source 

that files a RCRA permit application or 

modification request for construction of 

a new hazardous waste combustion unit 

after October 12, 2005 may be required 

to establish an information repository if 

deemed appropriate. 

(2) The Administrator may assess the 

need, on a case-by-case basis for an 

information repository. When assessing 

the need for a repository, the 

Administrator shall consider the level of 

public interest, the presence of an 

existing repository, and any information 

available via the New Source Review 

and Title V permit processes. If the 

Administrator determines a need for a 

repository, then the Administrator shall 

notify the facility that it must establish 

and maintain an information repository. 

(3) The information repository shall 

contain all documents, reports, data, 

and information deemed necessary by 

the Administrator. The Administrator 

shall have the discretion to limit the 

contents of the repository. 

(4) The information repository shall 

be located and maintained at a site 

chosen by the source. If the 

Administrator finds the site unsuitable 

for the purposes and persons for which 

it was established, due to problems with 

location, hours of availability, access, or 

other relevant considerations, then the 

Administrator shall specify a more 

appropriate site. 

(5) The Administrator shall require 

the source to provide a written notice 

about the information repository to all 

individuals on the source mailing list. 

(6) The source shall be responsible for 

maintaining and updating the repository 

with appropriate information 

throughout a period specified by the 

Administrator. The Administrator may 

close the repository at his or her 

discretion based on the considerations 

in paragraph (c)(2) of this section. 

■ 15. Section 63.1214 is amended by 

revising paragraphs (c)(1), (c)(2), (c)(3), 

and (c)(4) to read as follows: 

§ 63.1214 Implementation and 

enforcement. 

* * * * * 

(c) * * * 

(1) Approval of alternatives to 

requirements in §§ 63.1200, 63.1203, 

63.1204, 63.1205, 63.1206(a), 63.1215, 

63.1216, 63.1217, 63.1218, 63.1219, 

63.1220, and 63.1221. 

(2) Approval of major alternatives to 

test methods under §§ 63.7(e)(2)(ii) and 

(f), 63.1208(b), and 63.1209(a)(1), as 

defined under § 63.90, and as required 

in this subpart. 

(3) Approval of major alternatives to 

monitoring under §§ 63.8(f) and 

63.1209(a)(5), as defined under § 63.90, 

and as required in this subpart. 

(4) Approval of major alternatives to 

recordkeeping and reporting under 

§§ 63.10(f) and 63.1211(a) through (c), as 

defined under § 63.90, and as required 

in this subpart. 

■ 16. Section § 63.1215 is added to 

subpart EEE to read as follows: 

§ 63.1215 What are the health-based 

compliance alternatives for total chlorine? 

(a) General. (1) Overview. You may 

establish and comply with health-based 

compliance alternatives for total 

chlorine under the procedures 

prescribed in this section for your 

hazardous waste combustors other than 

hydrochloric acid production furnaces. 

You may comply with these healthbased compliance alternatives in lieu of 

the emission standards for total chlorine 

provided under §§ 63.1216, 63.1217, 

63.1219, 63.1220, and 63.1221. To 

identify and comply with the limits, you 

must: 

(i) Identify a total chlorine emission 

concentration (ppmv) expressed as 

chloride (Cl(-)

) equivalent for each onsite hazardous waste combustor. You 

may select total chlorine emission 

concentrations as you choose to 

demonstrate eligibility for the risk-based 

limits under this section, except as 

provided by paragraph (b)(4) of this 

section; 

(ii) Apportion the total chlorine 

emission concentration between HCl 

and Cl2 according to paragraph (b)(6)(i) 

of this section, and calculate HCl and 

Cl2 emission rates (lb/hr) using the gas 

flowrate and other parameters from the 

most recent regulatory compliance test. 

59556 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(iii) Calculate the annual average HClequivalent emission rate as prescribed 

in paragraph (b)(2) of this section. 

(iv) Perform an eligibility 

demonstration to determine if your HClequivalent emission rate meets the 

national exposure standard and thus is 

below the annual average HClequivalent emission rate limit, as 

prescribed by paragraph (c) of this 

section; 

(v) Submit your eligibility 

demonstration for review and approval, 

as prescribed by paragraph (e) of this 

section, which must include 

information to ensure that the 1-hour 

average HCl-equivalent emission rate 

limit is not exceeded, as prescribed by 

paragraph (d) of this section; 

(vi) Demonstrate compliance with the 

annual average HCl-equivalent emission 

rate limit during the comprehensive 

performance test, as prescribed by the 

testing and monitoring requirements 

under paragraph (e) of this section; 

(vii) Comply with compliance 

monitoring requirements, including 

establishing feedrate limits on total 

chlorine and chloride, and operating 

parameter limits on emission control 

equipment, as prescribed by paragraph 

(f) of this section; and 

(viii) Comply with the requirements 

for changes, as prescribed by paragraph 

(h) of this section. 

(2) Definitions. In addition to the 

definitions under § 63.1201, the 

following definitions apply to this 

section: 

1-Hour Average HCl-Equivalent 

Emission Rate means the HCl-equivalent 

emission rate (lb/hr) determined by 

equating the toxicity of chlorine to HCl 

using 1-hour RELs as the health risk 

metric for acute exposure. 

1-Hour Average HCl-Equivalent 

Emission Rate Limit means the HClequivalent emission rate (lb/hr) 

determined by equating the toxicity of 

chlorine to HCl using 1-hour RELs as 

the health risk metric for acute exposure 

and which ensures that maximum 1- 

hour average ambient concentrations of 

HCl-equivalents do not exceed a Hazard 

Index of 1.0, rounded to the nearest 

tenths decimal place (0.1), at an off-site 

receptor location. 

Acute Reference Exposure Level 

(aREL) means health thresholds below 

which there would be no adverse health 

effects for greater than once in a lifetime 

exposures of one hour. ARELs are 

developed by the California Office of 

Health Hazard Assessment and are 

available at http://www.oehha.ca.gov/ 

air/acute_rels/acuterel.html. 

Annual Average HCl-Equivalent 

Emission Rate means the HCl-equivalent 

emission rate (lb/hr) determined by 

equating the toxicity of chlorine to HCl 

using RfCs as the health risk metric for 

long-term exposure. 

Annual Average HCl-Equivalent 

Emission Rate Limit means the HClequivalent emission rate (lb/hr) 

determined by equating the toxicity of 

chlorine to HCl using RfCs as the health 

risk metric for long-term exposure and 

which ensures that maximum annual 

average ambient concentrations of HCl 

equivalents do not exceed a Hazard 

Index of 1.0, rounded to the nearest 

tenths decimal place (0.1), at an off-site 

receptor location. 

Hazard Index (HI) means the sum of 

more than one Hazard Quotient for 

multiple substances and/or multiple 

exposure pathways. In this section, the 

Hazard Index is the sum of the Hazard 

Quotients for HCl and chlorine. 

Hazard Quotient (HQ) means the ratio 

of the predicted media concentration of 

a pollutant to the media concentration 

at which no adverse effects are 

expected. For chronic inhalation 

exposures, the HQ is calculated under 

this section as the air concentration 

divided by the RfC. For acute inhalation 

exposures, the HQ is calculated under 

this section as the air concentration 

divided by the aREL. 

Look-up table analysis means a risk 

screening analysis based on comparing 

the HCl-equivalent emission rate from 

the affected source to the appropriate 

HCl-equivalent emission rate limit 

specified in Tables 1 through 4 of this 

section. 

Reference Concentration (RfC) means 

an estimate (with uncertainty spanning 

perhaps an order of magnitude) of a 

continuous inhalation exposure to the 

human population (including sensitive 

subgroups) that is likely to be without 

an appreciable risk of deleterious effects 

during a lifetime. It can be derived from 

various types of human or animal data, 

with uncertainty factors generally 

applied to reflect limitations of the data 

used. 

(b) HCl-equivalent emission rates. (1) 

You must express total chlorine 

emission rates for each hazardous waste 

combustor as HCl-equivalent emission 

rates. 

(2) Annual average rates. You must 

calculate annual average toxicityweighted HCl-equivalent emission rates 

for each combustor as follows: 

ERtw = ERHCl + ERCl2 × (RfCHCl/RfCCl2) 

Where: 

ERLTtw is the annual average HCl 

toxicity-weighted emission rate 

(HCl-equivalent emission rate) 

considering long-term exposures, 

lb/hr 

ERHCl is the emission rate of HCl in 

lbs/hr 

ERCl2 is the emission rate of chlorine in 

lbs/hr 

RfCHCl is the reference concentration of 

HCl 

RfCCl2 is the reference concentration of 

chlorine 

(3) 1-hour average rates. You must 

calculate 1-hour average toxicityweighted HCl-equivalent emission rates 

for each combustor as follows: 

ERSTtw = ERHCl + ERCl2 × (aRELHCl/ 

aRELCl2) 

Where: 

ERSTtw is the 1-hour average HCl 

toxicity-weighted emission rate 

(HCl-equivalent emission rate) 

considering 1-hour (short-term) 

exposures, lb/hr 

ERHCl is the emission rate of HCl in lbs/ 

hr 

ERCl2 is the emission rate of chlorine in 

lbs/hr 

aRELHCl is the 1-hour Reference 

Exposure Level of HCl 

aRELCl2 is the 1-hour Reference 

Exposure Level of chlorine 

(4) You must use the RfC values for 

hydrogen chloride and chlorine found at 

http://epa.gov/ttn/atw/toxsource/ 

summary.html. 

(5) You must use the aREL values for 

hydrogen chloride and chlorine found at 

http://www.oehha.ca.gov/air/ 

acute_rels/acuterel.html. 

(6) Cl2HCl ratios—(i) Ratio for 

calculating annual average HClequivalent emission rates. (A) To 

calculate the annual average HClequivalent emission rate (lb/hr) for each 

combustor, you must apportion the total 

chlorine emission concentration (ppmv 

chloride (Cl(-)

) equivalent) between HCl 

and chlorine according to the historical 

average Cl2/HCl volumetric ratio for all 

regulatory compliance tests. 

(B) You must calculate HCl and Cl2

emission rates (lb/hr) using the 

apportioned emission concentrations 

and the gas flowrate and other 

parameters from the most recent 

regulatory compliance test. 

(C) You must calculate the annual 

average HCl-equivalent emission rate 

using these HCl and Cl2 emission rates 

and the equation in paragraph (b)(2) of 

this section. 

(ii) Ratio for calculating 1-hour 

average HCl-equivalent emission rates. 

(A) To calculate the 1-hour average HClequivalent emission rate for each 

combustor as a criterion for you to 

determine under paragraph (d) of this 

section if an hourly rolling average 

feedrate limit on total chlorine and 

chloride may be waived, you must 

apportion the total chlorine emission 

concentration (ppmv chloride (Cl(-)

) 

equivalent) between HCl and chlorine 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59557 

according to the historical highest Cl2/ 

HCl volumetric ratio for all regulatory 

compliance tests. 

(B) You must calculate HCl and Cl2

emission rates (lb/hr) using the 

apportioned emission concentrations 

and the gas flowrate and other 

parameters from the most recent 

regulatory compliance test. 

(C) You must calculate the 1-hour 

average HCl-equivalent emission rate 

using the se HCl and Cl2 emission rates 

and the equation in paragraph (b)(3) of 

this section. 

(iii) Ratios for new sources. (A) You 

must use engineering information to 

estimate the Cl2/HCl volumetric ratio for 

a new source for the initial eligibility 

demonstration. 

(B) You must use the Cl2/HCl 

volumetric ratio demonstrated during 

the initial comprehensive performance 

test to demonstrate in the Notification of 

Compliance that your HCl-equivalent 

emission rate does not exceed your HClequivalent emission rate limit. 

(C) When approving the test plan for 

the initial comprehensive performance 

test, the permitting authority will 

establish a periodic testing requirement, 

such as every 3 months for 1 year, to 

establish a record of representative Cl2/ 

HCl volumetric ratios. 

(1) You must revise your HClequivalent emission rates and HClequivalent emission rate limits after 

each such test using the procedures 

prescribed in paragraphs (b)(6)(i) and 

(ii) of this section. 

(2) If you no longer are eligible for the 

health-based compliance alternative, 

you must notify the permitting authority 

immediately and either: 

(i) Submit a revised eligibility 

demonstration requesting lower HClequivalent emission rate limits, 

establishing lower HCl-equivalent 

emission rates, and establishing by 

downward extrapolation lower feedrate 

limits for total chlorine and chloride; or 

(ii) Request a compliance schedule of 

up to three years to demonstrate 

compliance with the emission standards 

under §§ 63.1216, 63.1217, 63.1219, 

63.1220, and 63.1221. 

(iv) Unrepresentative or inadequate 

historical Cl2/HCl volumetric ratios. (A) 

If you believe that the Cl2/HCl 

volumetric ratio for one or more 

historical regulatory compliance tests is 

not representative of the current ratio, 

you may request that the permitting 

authority allow you to screen those 

ratios from the analysis of historical 

ratios. 

(B) If the permitting authority believes 

that too few historical ratios are 

available to calculate a representative 

average ratio or establish a maximum 

ratio, the permitting authority may 

require you to conduct periodic testing 

to establish representative ratios. 

(v) Updating Cl2/HCl ratios. You must 

include the Cl2/HCl volumetric ratio 

demonstrated during each performance 

test in your data base of historical Cl2/ 

HCl ratios to update the ratios you 

establish under paragraphs (b)(6)(i) and 

(ii) of this section for subsequent 

calculations of the annual average and 

1-hour average HCl-equivalent emission 

rates. 

(7) Emission rates are capped. The 

hydrogen chloride and chlorine 

emission rates you use to calculate the 

HCl-equivalent emission rate limit for 

incinerators, cement kilns, and 

lightweight aggregate kilns must not 

result in total chlorine emission 

concentrations exceeding: 

(i) For incinerators that were existing 

sources on April 19, 1996: 77 parts per 

million by volume, combined 

emissions, expressed as chloride (Cl(-)

) 

equivalent, dry basis and corrected to 7 

percent oxygen; 

(ii) For incinerators that are new or 

reconstructed sources after April 19, 

1996: 21 parts per million by volume, 

combined emissions, expressed as 

chloride (Cl(-)

) equivalent, dry basis and 

corrected to 7 percent oxygen; 

(iii) For cement kilns that were 

existing sources on April 19, 1996: 130 

parts per million by volume, combined 

emissions, expressed as chloride (Cl(-)

) 

equivalent, dry basis and corrected to 7 

percent oxygen; 

(iv) For cement kilns that are new or 

reconstructed sources after April 19, 

1996: 86 parts per million by volume, 

combined emissions, expressed as 

chloride (Cl(-)

) equivalent, dry basis and 

corrected to 7 percent oxygen; 

(v) For lightweight aggregate kilns that 

were existing sources on April 19, 1996: 

600 parts per million by volume, 

combined emissions, expressed as 

chloride (Cl(-)

) equivalent, dry basis and 

corrected to 7 percent oxygen; 

(vi) For lightweight aggregate kilns 

that are new or reconstructed sources 

after April 19, 1996: 600 parts per 

million by volume, combined 

emissions, expressed as chloride (Cl(-)

) 

equivalent, dry basis and corrected to 7 

percent oxygen. 

(c) Eligibility demonstration—(1) 

General. (i) You must perform an 

eligibility demonstration to determine 

whether the total chlorine emission 

rates you select for each on-site 

hazardous waste combustor meet the 

national exposure standards using either 

a look-up table analysis prescribed by 

paragraph (c)(3) of this section, or a sitespecific compliance demonstration 

prescribed by paragraph (c)(4) of this 

section. 

(ii) You must also determine in your 

eligibility demonstration whether each 

combustor may exceed the 1-hour HClequivalent emission rate limit absent an 

hourly rolling average limit on the 

feedrate of total chlorine and chloride, 

as provided by paragraph (d) of this 

section. 

(2) Definition of eligibility. (i) 

Eligibility for the risk-based total 

chlorine standard is determined by 

comparing the annual average HClequivalent emission rate for the total 

chlorine emission rate you select for 

each combustor to the annual average 

HCl-equivalent emission rate limit. 

(ii) The annual average HClequivalent emission rate limit ensures 

that the Hazard Index for chronic 

exposure from HCl and chlorine 

emissions from all on-site hazardous 

waste combustors is less than or equal 

to 1.0, rounded to the nearest tenths 

decimal place (0.1), for the actual 

individual most exposed to the facility’s 

emissions, considering off-site locations 

where people reside and where people 

congregate for work, school, or 

recreation. 

(iii) Your facility is eligible for the 

health-based compliance alternative for 

total chlorine if either: 

(A) The annual average HClequivalent emission rate for each on-site 

hazardous waste combustor is below the 

appropriate value in the look-up table 

determined under paragraph (c)(3) of 

this section; or 

(B) The annual average HClequivalent emission rate for each on-site 

hazardous waste combustor is below the 

annual average HCl-equivalent emission 

rate limit you calculate based on a sitespecific compliance demonstration 

under paragraph (c)(4) of this section. 

(3) Look-up table analysis. Look-up 

tables for the eligibility demonstration 

are provided as Tables 1 and 2 to this 

section. 

(i) Table 1 presents annual average 

HCl-equivalent emission rate limits for 

sources located in flat terrain. For 

purposes of this analysis, flat terrain is 

terrain that rises to a level not exceeding 

one half the stack height within a 

distance of 50 stack heights. 

(ii) Table 2 presents annual average 

HCl-equivalent emission rate limits for 

sources located in simple elevated 

terrain. For purposes of this analysis, 

simple elevated terrain is terrain that 

rises to a level exceeding one half the 

stack height, but that does not exceed 

the stack height, within a distance of 50 

stack heights. 

(iii) To determine the annual average 

HCl-equivalent emission rate limit for a 

59558 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

source from the look-up table, you must 

use the stack height and stack diameter 

for your hazardous waste combustors 

and the distance between the stack and 

the property boundary. 

(iv) If any of these values for stack 

height, stack diameter, and distance to 

nearest property boundary do not match 

the exact values in the look-up table, 

you must use the next lowest table 

value. 

(v) Adjusted HCl-equivalent emission 

rate limit for multiple on-site 

combustors. (A) If you have more than 

one hazardous waste combustor on site, 

the sum across all hazardous waste 

combustors of the ratio of the adjusted 

HCl-equivalent emission rate limit to 

the HCl-equivalent emission rate limit 

provided by Tables 1 or 2 cannot exceed 

1.0, according to the following equation: 

HC Equivalent Emission Rate Limit Adjusted

HCI Equivalent

i 1- 

- Emission Rate Limit Tablei i

n

=

∑ ≤ 1

1 0.

Where: 

i = number of on-site hazardous waste 

combustors; 

HCl-Equivalent Emission Rate Limit 

Adjustedi means the apportioned, 

allowable HCl-equivalent emission 

rate limit for combustor i, and 

HCl-Equivalent Emission Rate Limit 

Tablei means the HCl-equivalent 

emission rate limit from Table 1 or 

2 to § 63.1215 for combustor i. 

(B) The adjusted HCl-equivalent 

emission rate limit becomes the HClequivalent emission rate limit. 

(4) Site-specific compliance 

demonstration. (i) You may use any 

scientifically-accepted peer-reviewed 

risk assessment methodology for your 

site-specific compliance demonstration 

to calculate an annual average HClequivalent emission rate limit for each 

on-site hazardous waste combustor. An 

example of one approach for performing 

the demonstration for air toxics can be 

found in the EPA’s ‘‘Air Toxics Risk 

Assessment Reference Library, Volume 

2, Site-Specific Risk Assessment 

Technical Resource Document,’’ which 

may be obtained through the EPA’s Air 

Toxics Web site at http://www.epa.gov/ 

ttn/fera/risk_atra_main.html. 

(ii) The annual average HClequivalent emission rate limit is the 

HCl-equivalent emission rate that 

ensures that the Hazard Index 

associated with maximum annual 

average exposures is not greater than 1.0 

rounded to the nearest tenths decimal 

place (0.1). 

(iii) To determine the annual average 

HCl-equivalent emission rate limit, your 

site-specific compliance demonstration 

must, at a minimum: 

(A) Estimate long-term inhalation 

exposures through the estimation of 

annual or multi-year average ambient 

concentrations; 

(B) Estimate the inhalation exposure 

for the actual individual most exposed 

to the facility’s emissions from 

hazardous waste combustors, 

considering off-site locations where 

people reside and where people 

congregate for work, school, or 

recreation; 

(C) Use site-specific, quality-assured 

data wherever possible; 

(D) Use health-protective default 

assumptions wherever site-specific data 

are not available, and: 

(E) Contain adequate documentation 

of the data and methods used for the 

assessment so that it is transparent and 

can be reproduced by an experienced 

risk assessor and emissions 

measurement expert. 

(iv) Your site-specific compliance 

demonstration need not: 

(A) Assume any attenuation of 

exposure concentrations due to the 

penetration of outdoor pollutants into 

indoor exposure areas; 

(B) Assume any reaction or deposition 

of the emitted pollutants during 

transport from the emission point to the 

point of exposure. 

(d) Assurance that the 1-hour HClequivalent emission rate limit will not 

be exceeded. To ensure that the 1-hour 

HCl-equivalent emission rate limit will 

not be exceeded when complying with 

the annual average HCl-equivalent 

emission rate limit, you must establish 

a 1-hour average HCl-equivalent 

emission rate for each combustor, 

establish a 1-hour average HClequivalent emission rate limit for each 

combustor, and consider site-specific 

factors including prescribed criteria to 

determine if the 1-hour average HClequivalent emission rate limit may be 

exceeded absent an hourly rolling 

average limit on the feedrate of total 

chlorine and chloride. If the 1-hour 

average HCl-equivalent emission rate 

limit may be exceeded, you must 

establish an hourly rolling average 

feedrate limit on total chlorine as 

provided by paragraph (f)(3) of this 

section. 

(1) 1-hour average HCl-equivalent 

emission rate. You must calculate the 1- 

hour average HCl-equivalent emission 

rate from the total chlorine emission 

concentration you select for each source 

as prescribed in paragraph (b)(6)(ii)(C) 

of this section. 

(2) 1-hour average HCl-equivalent 

emission rate limit. You must establish 

the 1-hour average HCl-equivalent 

emission rate limit for each affected 

source using either a look-up table 

analysis or site-specific analysis: 

(i) Look-up table analysis. Look-up 

tables are provided for 1-hour average 

HCl-equivalent emission rate limits as 

Table 3 and Table 4 to this section. 

Table 3 provides limits for facilities 

located in flat terrain. Table 4 provides 

limits for facilities located in simple 

elevated terrain. You must use the 

Tables to establish 1-hour average HClequivalent emission rate limits as 

prescribed in paragraphs (c)(3)(iii) 

through (c)(3)(v) of this section for 

annual average HCl-equivalent emission 

rate limits. 

(ii) Site-specific analysis. The 1-hour 

average HCl-equivalent emission rate 

limit is the HCl-equivalent emission rate 

that ensures that the Hazard Index 

associated with maximum 1-hour 

average exposures is not greater than 1.0 

rounded to the nearest tenths decimal 

place (0.1). You must follow the risk 

assessment procedures under paragraph 

(c)(4) of this section to estimate shortterm inhalation exposures through the 

estimation of maximum 1-hour average 

ambient concentrations. 

(3) Criteria for determining whether 

the 1-hour HCl-equivalent emission rate 

may be exceeded absent an hourly 

rolling average limit on the feedrate of 

total chlorine and chloride. An hourly 

rolling average feedrate limit on total 

chlorine and chloride is waived if you 

determine considering the criteria listed 

below that the long-term feedrate limit 

(and averaging period) established 

under paragraph (c)(4)(i) of this section 

will also ensure that the 1-hour average 

HCl-equivalent emission rate will not 

exceed the 1-hour average HClequivalent emission rate limit you 

calculate for each combustor. 

(i) The ratio of the 1-hour average 

HCl-equivalent emission rate based on 

the total chlorine emission rate you 

select for each hazardous waste 

combustor to the 1-hour average HClequivalent emission rate limit for the 

combustor; and 

(ii) The potential for the source to 

vary total chlorine and chloride 


ER12OC05.003</GPH>
Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59559 

feedrates substantially over the 

averaging period for the feedrate limit 

established under paragraph (c)(4)(i) of 

this section. 

(e) Review and approval of eligibility 

demonstrations—(1) Content of the 

eligibility demonstration—(i) General. 

The eligibility demonstration must 

include the following information, at a 

minimum: 

(A) Identification of each hazardous 

waste combustor combustion gas 

emission point (e.g., generally, the flue 

gas stack); 

(B) The maximum and average 

capacity at which each combustor will 

operate, and the maximum rated 

capacity for each combustor, using the 

metric of stack gas volume (under both 

actual and standard conditions) emitted 

per unit of time, as well as any other 

metric that is appropriate for the 

combustor (e.g., million Btu/hr heat 

input for boilers; tons of dry raw 

material feed/hour for cement kilns); 

(C) Stack parameters for each 

combustor, including, but not limited to 

stack height, stack diameter, stack gas 

temperature, and stack gas exit velocity; 

(D) Plot plan showing all stack 

emission points, nearby residences and 

property boundary line; 

(E) Identification of any stack gas 

control devices used to reduce 

emissions from each combustor; 

(F) Identification of the RfC values 

used to calculate annual average HClequivalent emission rates and the aREL 

values used to calculate 1-hour average 

HCl-equivalent emission rates; 

(G) Calculations used to determine the 

annual average and 1-hour average HClequivalent emission rates and rate 

limits, including calculation of the Cl2/ 

HCl ratios as prescribed by paragraph 

(b)(6) of this section; 

(ii) Additional content to implement 

the annual average HCl-equivalent 

emission rate limit. You must include 

the following in your eligibility 

demonstration to implement the annual 

average HCl-equivalent emission rate 

limit: 

(A) For incinerators, cement kilns, 

and lightweight aggregate kilns, 

calculations to confirm that the annual 

average HCl-equivalent emission rate 

that you calculate from the total 

chlorine emission rate you select for 

each combustor does not exceed the 

limits provided by paragraph (b)(7) of 

this section; 

(B) Comparison of the annual average 

HCl-equivalent emission rate limit for 

each combustor to the annual average 

HCl-equivalent emission rate for the 

total chlorine emission rate you select 

for each combustor; 

(C) The annual average HClequivalent emission rate limit for each 

hazardous waste combustor, and the 

limits on operating parameters required 

under paragraph (g)(1) of this section; 

(D) Determination of the long-term 

chlorine feedrate limit, including the 

total chlorine system removal efficiency 

for sources that establish an (up to) 

annual rolling average feedrate limit 

under paragraph (g)(2)(ii) of this section; 

(iii) Additional content to implement 

the 1-hour average HCl-equivalent 

emission rate limit. You must include 

the following in your eligibility 

demonstration to implement the 1-hour 

average HCl-equivalent emission rate 

limit: 

(A) Determination of whether the 

combustor may exceed the 1-hour HClequivalent emission rate limit absent an 

hourly rolling average chlorine feedrate 

limit, including: 

(1) Determination of the 1-hour 

average HCl-equivalent emission rate 

from the total chlorine emission rate 

you select for the combustor; 

(2) Determination of the 1-hour 

average HCl-equivalent emission rate 

limit using either look-up Tables 3 and 

4 to this section or site-specific risk 

analysis; 

(3) Determination of the ratio of the 1- 

hour average HCl-equivalent emission 

rate to the 1-hour average HClequivalent emission rate limit for the 

combustor; and 

(4) The potential for the source to vary 

total chlorine and chloride feedrates 

substantially over the averaging period 

for the long-term feedrate limit 

established under paragraphs (g)(2)(i) 

and (g)(2)(ii) of this section; and 

(B) Determination of the hourly 

rolling average chlorine feedrate limit, 

including the total chlorine system 

removal efficiency. 

(iv) Additional content of a look-up 

table demonstration. If you use the lookup table analysis to establish HClequivalent emission rate limits, your 

eligibility demonstration must also 

contain, at a minimum, the following: 

(A) Documentation that the facility is 

located in either flat or simple elevated 

terrain; and 

(B) For facilities with more than one 

on-site hazardous waste combustor, 

documentation that the sum of the ratios 

for all such combustors of the HClequivalent emission rate to the HClequivalent emission rate limit does not 

exceed 1.0. 

(v) Additional content of a sitespecific compliance demonstration. If 

you use a site-specific compliance 

demonstration, your eligibility 

demonstration must also contain, at a 

minimum, the following information to 

support your determination of the 

annual average HCl-equivalent emission 

rate limit for each combustor: 

(A) Identification of the risk 

assessment methodology used; 

(B) Documentation of the fate and 

transport model used; 

(C) Documentation of the fate and 

transport model inputs, including the 

stack parameters listed in paragraph 

(d)(1)(i)(C) of this section converted to 

the dimensions required for the model; 

(D) As applicable: 

(1) Meteorological data; 

(2) Building, land use, and terrain 

data; 

(3) Receptor locations and population 

data, including areas where people 

congregate for work, school, or 

recreation; and 

(4) Other facility-specific parameters 

input into the model; 

(E) Documentation of the fate and 

transport model outputs; and 

(F) Documentation of any exposure 

assessment and risk characterization 

calculations. 

(2) Review and approval—(i) Existing 

sources. (A) If you operate an existing 

source, you must submit the eligibility 

demonstration to your permitting 

authority for review and approval not 

later than 12 months prior to the 

compliance date. You must also submit 

a separate copy of the eligibility 

demonstration to: U.S. EPA, Risk and 

Exposure Assessment Group, Emission 

Standards Division (C404–01), Attn: 

Group Leader, Research Triangle Park, 

North Carolina 27711, electronic mail 

address REAG@epa.gov. 

(B) Your permitting authority should 

notify you of approval or intent to 

disapprove your eligibility 

demonstration within 6 months after 

receipt of the original demonstration, 

and within 3 months after receipt of any 

supplemental information that you 

submit. A notice of intent to disapprove 

your eligibility demonstration, whether 

before or after the compliance date, will 

identify incomplete or inaccurate 

information or noncompliance with 

prescribed procedures and specify how 

much time you will have to submit 

additional information or to achieve the 

MACT standards for total chlorine 

under §§ 63.1216, 63.1217, 63.1219, 

63.1220, and 63.1221. If your eligibility 

demonstration is disapproved, the 

permitting authority may extend the 

compliance date of the total chlorine 

standards to allow you to make changes 

to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the MACT total 

chlorine standards. 

59560 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(C) If your permitting authority has 

not approved your eligibility 

demonstration by the compliance date, 

and has not issued a notice of intent to 

disapprove your demonstration, you 

may nonetheless begin complying, on 

the compliance date, with the HClequivalent emission rate limits you 

present in your eligibility 

demonstration. 

(D) If your permitting authority issues 

a notice of intent to disapprove your 

eligibility demonstration after the 

compliance date, the authority will 

identify the basis for that notice and 

specify how much time you will have to 

submit additional information or to 

comply with the MACT standards for 

total chlorine under §§ 63.1216, 

63.1217, 63.1219, 63.1220, and 63.1221. 

The permitting authority may extend 

the compliance date of the total chlorine 

standards to allow you to make changes 

to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the MACT standards 

for total chlorine. 

(ii) New or reconstructed sources. (A) 

General. The procedures for review and 

approval of eligibility demonstrations 

applicable to existing sources under 

paragraph (e)(2)(i) of this section also 

apply to new or reconstructed sources, 

except that the date you must submit 

the eligibility demonstration is as 

prescribed in this paragraph (e)(2)(ii). 

(B) If you operate a new or 

reconstructed source that starts up 

before April 12, 2007, or a solid fuel 

boiler or liquid fuel boiler that is an area 

source that increases its emissions or its 

potential to emit such that it becomes a 

major source of HAP before April 12, 

2007, you must either: 

(1) Comply with the final total 

chlorine emission standards under 

§§ 63.1216, 63.1217, 63.1219, 63.1220, 

and 63.1221, by October 12, 2005, or 

upon startup, whichever is later, except 

for a standard that is more stringent 

than the standard proposed on April 20, 

2004 for your source. If a final standard 

is more stringent than the proposed 

standard, you may comply with the 

proposed standard until October 14, 

2008, after which you must comply with 

the final standard; or 

(2) Submit an eligibility 

demonstration for review and approval 

under this section by April 12, 2006, 

and comply with the HCl-equivalent 

emission rate limits and operating 

requirements you establish in the 

eligibility demonstration. 

(C) If you operate a new or 

reconstructed source that starts up on or 

after April 12, 2007, or a solid fuel 

boiler or liquid fuel boiler that is an area 

source that increases its emissions or its 

potential to emit such that it becomes a 

major source of HAP on or after April 

12, 2007, you must either: 

(1) Comply with the final total 

chlorine emission standards under 

§§ 63.1216, 63.1217, 63.1219, 63.1220, 

and 63.1221 upon startup. If the final 

standard is more stringent than the 

standard proposed for your source on 

April 20, 2004, however, and if you start 

operations before October 14, 2008, you 

may comply with the proposed standard 

until October 14, 2008, after which you 

must comply with the final standard; or 

(2) Submit an eligibility 

demonstration for review and approval 

under this section 12 months prior to 

startup. 

(f) Testing requirements—(1) General. 

You must comply with the requirements 

for comprehensive performance testing 

under § 63.1207. 

(2) System removal efficiency. (i) You 

must calculate the total chlorine 

removal efficiency of the combustor 

during each run of the comprehensive 

performance test. 

(ii) You must calculate the average 

system removal efficiency as the average 

of the test run averages. 

(iii) If your source does not control 

emissions of total chlorine, you must 

assume zero system removal efficiency. 

(3) Annual average HCl-equivalent 

emission rate limit. If emissions during 

the comprehensive performance test 

exceed the annual average HClequivalent emission rate limit, 

eligibility for emission limits under this 

section is not affected. This emission 

rate limit is an annual average limit 

even though compliance is based on a 

12-hour or (up to) an annual rolling 

average feedrate limit on total chlorine 

and chloride because the feedrate limit 

is also used for compliance assurance 

for the semivolatile metal emission 

standard 

(4) 1-hour average HCl-equivalent 

emission rate limit. Total chlorine 

emissions during each run of the 

comprehensive performance test cannot 

exceed the 1-hour average HClequivalent emission rate limit. 

(5) Test methods. (i) If you operate a 

cement kiln or a combustor equipped 

with a dry acid gas scrubber, you must 

use EPA Method 320/321 or ASTM D 

6735–01, or an equivalent method, to 

measure hydrogen chloride, and the 

back-half (caustic impingers) of Method 

26/26A, or an equivalent method, to 

measure chlorine gas. 

(ii) Bromine and sulfur 

considerations. If you operate an 

incinerator, boiler, or lightweight 

aggregate kiln and your feedstreams 

contain bromine or sulfur during the 

comprehensive performance test at 

levels specified under paragraph 

(e)(2)(ii)(B) of this section, you must use 

EPA Method 320/321 or ASTM D 6735–

01, or an equivalent method, to measure 

hydrogen chloride, and Method 26/26A, 

or an equivalent method, to measure 

chlorine and hydrogen chloride, and 

determine your chlorine emissions as 

follows: 

(A) You must determine you chlorine 

emissions to be the higher of the value 

measured by Method 26/26A, or an 

equivalent method, or the value 

calculated by difference between the 

combined hydrogen chloride and 

chlorine levels measured by Method 26/ 

26a, or an equivalent method, and the 

hydrogen chloride measurement from 

EPA Method 320/321 or ASTM D 6735–

01, or an equivalent method. 

(B) The procedures under paragraph 

(f)(2)(ii) of this section for determining 

hydrogen chloride and chlorine 

emissions apply if you feed bromine or 

sulfur during the performance test at the 

levels specified in this paragraph 

(f)(5)(ii)(B): 

(1) If the bromine/chlorine ratio in 

feedstreams is greater than 5 percent by 

mass; or 

(2) If the sulfur/chlorine ratio in 

feedstreams is greater than 50 percent 

by mass. 

(g) Monitoring requirements. (1) 

General. You must establish and comply 

with limits on the same operating 

parameters that apply to sources 

complying with the MACT standard for 

total chlorine under § 63.1209(o), except 

that feedrate limits on total chlorine and 

chloride must be established according 

to paragraphs (g)(2) and (g)(3) of this 

section: 

(2) Feedrate limit to ensure 

compliance with the annual average 

HCl-equivalent emission rate limit. (i) 

For sources subject to the feedrate limit 

for total chlorine and chloride under 

§ 63.1209(n)(4) to ensure compliance 

with the semivolatile metals standard: 

(A) The feedrate limit (and averaging 

period) for total chlorine and chloride to 

ensure compliance with the annual 

average HCl-equivalent emission rate 

limit is the same as required by 

§ 63.1209(n)(4), except as provided by 

paragraph (g)(2)(i)(B) of this section. 

(B) The numerical value of the total 

chlorine and chloride feedrate limit (i.e., 

not considering the averaging period) 

you establish under § 63.1209(n)(4) 

must not exceed the value you calculate 

as the annual average HCl-equivalent 

emission rate limit (lb/hr) divided by [1 

¥ system removal efficiency], where the 

system removal efficiency is calculated 

as prescribed by paragraph (f)(2) of this 

section. 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59561 

(ii) For sources exempt from the 

feedrate limit for total chlorine and 

chloride under § 63.1209(n)(4) because 

they comply with § 63.1207(m)(2), the 

feedrate limit for total chlorine and 

chloride to ensure compliance with the 

annual average HCl-equivalent emission 

rate must be established as follows: 

(A) You must establish an average 

period for the feedrate limit that does 

not exceed an annual rolling average; 

(B) The numerical value of the total 

chlorine and chloride feedrate limit (i.e., 

not considering the averaging period) 

must not exceed the value you calculate 

as the annual average HCl-equivalent 

emission rate limit (lb/hr) divided by [1 

¥ system removal efficiency], where the 

system removal efficiency is calculated 

as prescribed by paragraph (f)(2) of this 

section. 

(C) You must calculate the initial 

rolling average as though you had 

selected a 12-hour rolling average, as 

provided by paragraph (b)(5)(i) of this 

section. You must calculate rolling 

averages thereafter as the average of the 

available one-minute values until 

enough one-minute values are available 

to calculate the rolling average period 

you select. At that time and thereafter, 

you update the rolling average feedrate 

each hour with a 60-minute average 

feedrate. 

(3) Feedrate limit to ensure 

compliance with the 1-hour average 

HCl-equivalent emission rate limit. (i) 

You must establish an hourly rolling 

average feedrate limit on total chlorine 

and chloride to ensure compliance with 

the 1-hour average HCl-equivalent 

emission rate limit unless you 

determine that the hourly rolling 

average feedrate limit is waived under 

paragraph (d) of this section. 

(ii) You must calculate the hourly 

rolling average feedrate limit for total 

chlorine and chloride as the 1-hour 

average HCl-equivalent emission rate 

limit (lb/hr) divided by [1 ¥ system 

removal efficiency], where the system 

removal efficiency is calculated as 

prescribed by paragraph (f)(2)(ii) of this 

section. 

(h) Changes—(1) Changes over which 

you have control. (i) Changes that would 

affect the HCl-equivalent emission rate 

limit. (A) If you plan to change the 

design, operation, or maintenance of the 

facility in a manner than would 

decrease the annual average or 1-hour 

average HCl-equivalent emission rate 

limit, you must submit to the permitting 

authority prior to the change a revised 

eligibility demonstration documenting 

the lower emission rate limits and 

calculations of reduced total chlorine 

and chloride feedrate limits. 

(B) If you plan to change the design, 

operation, or maintenance of the facility 

in a manner than would increase the 

annual average or 1-hour average HClequivalent emission rate limit, and you 

elect to increase your total chlorine and 

chloride feedrate limits. You must also 

submit to the permitting authority prior 

to the change a revised eligibility 

demonstration documenting the 

increased emission rate limits and 

calculations of the increased feedrate 

limits prior to the change. 

(ii) Changes that could affect system 

removal efficiency. (A) If you plan to 

change the design, operation, or 

maintenance of the combustor in a 

manner than could decrease the system 

removal efficiency, you are subject to 

the requirements of § 63.1206(b)(5) for 

conducting a performance test to 

reestablish the combustor’s system 

removal efficiency and you must submit 

a revised eligibility demonstration 

documenting the lower system removal 

efficiency and the reduced feedrate 

limits on total chlorine and chloride. 

(B) If you plan to change the design, 

operation, or maintenance of the 

combustor in a manner than could 

increase the system removal efficiency, 

and you elect to document the increased 

system removal efficiency to establish 

higher feedrate limits on total chlorine 

and chloride, you are subject to the 

requirements of § 63.1206(b)(5) for 

conducting a performance test to 

reestablish the combustor’s system 

removal efficiency. You must also 

submit to the permitting authority a 

revised eligibility demonstration 

documenting the higher system removal 

efficiency and the increased feedrate 

limits on total chlorine and chloride. 

(2) Changes over which you do not 

have control that may decrease the HClequivalent emission rate limits. These 

requirements apply if you use a sitespecific risk assessment under 

paragraph (c)(4) of this section to 

demonstrate eligibility for the healthbased limits. 

(i) Proactive review. You must review 

the documentation you use in your 

eligibility demonstration every five 

years from the date of the 

comprehensive performance test and 

submit for review and approval with the 

comprehensive performance test plan 

either a certification that the 

information used in your eligibility 

demonstration has not changed in a 

manner that would decrease the annual 

average or 1-hour average HClequivalent emission rate limit, or a 

revised eligibility demonstration. 

(ii) Reactive review. If in the interim 

between your comprehensive 

performance tests you have reason to 

know of changes that would decrease 

the annual average or 1-hour average 

HCl-equivalent emission rate limit, you 

must submit a revised eligibility 

demonstration as soon as practicable but 

not more frequently than annually. 

(iii) Compliance schedule. If you 

determine that you cannot demonstrate 

compliance with a lower annual average 

HCl-equivalent emission rate limit 

during the comprehensive performance 

test because you need additional time to 

complete changes to the design or 

operation of the source, you may request 

that the permitting authority grant you 

additional time to make those changes 

as quickly as practicable. 

BILLING CODE 6560–50–P 

59562 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 


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■ 17. Section 63.1216 and an 

undesignated center heading are added 

to subpart EEE to read as follows: 

Emissions Standards and Operating 

Limits for Solid Fuel Boilers, Liquid 

Fuel Boilers, and Hydrochloric Acid 

Production Furnaces 

§ 63.1216 What are the standards for solid 

fuel boilers that burn hazardous waste? 

(a) Emission limits for existing 

sources. You must not discharge or 

cause combustion gases to be emitted 

into the atmosphere that contain: 

(1) For dioxins and furans, either 

carbon monoxide or hydrocarbon 

emissions in excess of the limits 

provided by paragraph (a)(5) of this 

section; 

(2) Mercury in excess of 11 μg/dscm 

corrected to 7 percent oxygen; 

(3) For cadmium and lead combined, 

except for an area source as defined 

under § 63.2, emissions in excess of 180 

μg/dscm, corrected to 7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium combined, except for an area 

source as defined under § 63.2, 

emissions in excess of 380 μg/dscm, 

corrected to 7 percent oxygen; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 


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59566 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(a)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine combined, except for an area 

source as defined under § 63.2, 

emissions in excess of 440 parts per 

million by volume, expressed as a 

chloride (Cl(-)

) equivalent, dry basis and 

corrected to 7 percent oxygen; and 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 68 mg/ 

dscm corrected to 7 percent oxygen. 

(b) Emission limits for new sources. 

You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain: 

(1) For dioxins and furans, either 

carbon monoxide or hydrocarbon 

emissions in excess of the limits 

provided by paragraph (b)(5) of this 

section; 

(2) Mercury in excess of 11 μg/dscm 

corrected to 7 percent oxygen; 

(3) For cadmium and lead combined, 

except for an area source as defined 

under § 63.2, emissions in excess of 180 

μg/dscm, corrected to 7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium combined, except for an area 

source as defined under § 63.2, 

emissions in excess of 190 μg/dscm, 

corrected to 7 percent oxygen; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(b)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine combined, except for an area 

source as defined under § 63.2, 

emissions in excess of 73 parts per 

million by volume, expressed as a 

chloride (Cl(-)

) equivalent, dry basis and 

corrected to 7 percent oxygen; and 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 34 mg/ 

dscm corrected to 7 percent oxygen. 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a DRE of 

99.99% for each principle organic 

hazardous constituent (POHC) 

designated under paragraph (c)(3) of this 

section. You must calculate DRE for 

each POHC from the following equation: 

DRE = [1 ¥ (Wout ÷ Win)] × 100% 

Where: 

Win = mass feedrate of one POHC in 

a waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a DRE of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-p-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to 

incinerate hazardous wastes F020, F021, 

F022, F023, F026, or F027. 

(3) Principal organic hazardous 

constituents (POHCs). (i) You must treat 

the POHCs in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

(e) Alternative to the particulate 

matter standard. (1) General. In lieu of 

complying with the particulate matter 

standards of this section, you may elect 

to comply with the following alternative 

metal emission control requirement: 

(2) Alternative metal emission control 

requirements for existing solid fuel 

boilers. (i) You must not discharge or 

cause combustion gases to be emitted 

into the atmosphere that contain 

cadmium, lead, and selenium in excess 

of 180 μg/dscm, combined emissions, 

corrected to 7 percent oxygen; and, 

(ii) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 380 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(3) Alternative metal emission control 

requirements for new solid fuel boilers. 

(i) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium in excess of 180 μg/dscm, 

combined emissions, corrected to 7 

percent oxygen; and, 

(ii) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 190 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(4) Operating limits. Semivolatile and 

low volatile metal operating parameter 

limits must be established to ensure 

compliance with the alternative 

emission limitations described in 

paragraphs (e)(2) and (e)(3) of this 

section pursuant to § 63.1209(n), except 

that semivolatile metal feedrate limits 

apply to lead, cadmium, and selenium, 

combined, and low volatile metal 

feedrate limits apply to arsenic, 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59567 

beryllium, chromium, antimony, cobalt, 

manganese, and nickel, combined. 

(f) Elective standards for area sources. 

Area sources as defined under § 63.2 are 

subject to the standards for cadmium 

and lead, the standards for arsenic, 

beryllium, and chromium, the standards 

for hydrogen chloride and chlorine, and 

the standards for particulate matter 

under this section if they elect under 

§ 266.100(b)(3) of this chapter to comply 

with those standards in lieu of the 

standards under 40 CFR 266.105, 

266.106, and 266.107 to control those 

pollutants. 

■ 18. Section 63.1217 is added to read 

as follows: 

§ 63.1217 What are the standards for liquid 

fuel boilers that burn hazardous waste? 

(a) Emission limits for existing 

sources. You must not discharge or 

cause combustion gases to be emitted 

into the atmosphere that contain: 

(1)(i) Dioxins and furans in excess of 

0.40 ng TEQ/dscm, corrected to 7 

percent oxygen, for liquid fuel boilers 

equipped with a dry air pollution 

control system; or 

(ii) Either carbon monoxide or 

hydrocarbon emissions in excess of the 

limits provided by paragraph (a)(5) of 

this section for sources not equipped 

with a dry air pollution control system; 

(iii) A source equipped with a wet air 

pollution control system followed by a 

dry air pollution control system is not 

considered to be a dry air pollution 

control system, and a source equipped 

with a dry air pollution control system 

followed by a wet air pollution control 

system is considered to be a dry air 

pollution control system for purposes of 

this emission limit; 

(2) For mercury, except as provided 

for in paragraph (a)(2)(iii) of this 

section: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 19 

μg/dscm, corrected to 7 percent oxygen, 

on an (not-to-exceed) annual averaging 

period; 

(ii) When you burn hazardous waste 

with an as-fired heating value 10,000 

Btu/lb or greater, emissions in excess of 

4.2 × 10¥5 lbs mercury attributable to 

the hazardous waste per million Btu 

heat input from the hazardous waste on 

an (not-to-exceed) annual averaging 

period; 

(iii) The boiler operated by Diversified 

Scientific Services, Inc. with EPA 

identification number TND982109142, 

and which burns radioactive waste 

mixed with hazardous waste, must 

comply with the mercury emission 

standard under § 63.1219(a)(2); 

(3) For cadmium and lead combined, 

except for an area source as defined 

under § 63.2, 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 

150 μg/dscm, corrected to 7 percent 

oxygen, on an (not-to-exceed) annual 

averaging period; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

8.2 × 10¥5 lbs combined cadmium and 

lead emissions attributable to the 

hazardous waste per million Btu heat 

input from the hazardous waste on an 

(not-to-exceed) annual averaging period; 

(4) For chromium, except for an area 

source as defined under § 63.2: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 

370 μg/dscm, corrected to 7 percent 

oxygen; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

1.3 × 10¥4 lbs chromium emissions 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(a)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine, except for an area source as 

defined under § 63.2: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 31 

parts per million by volume, combined 

emissions, expressed as a chloride (Cl(-)

) 

equivalent, dry basis and corrected to 7 

percent oxygen; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

5.08 × 10¥2 lbs combined emissions of 

hydrogen chloride and chlorine gas 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 80 mg/ 

dscm corrected to 7 percent oxygen. 

(b) Emission limits for new sources. 

You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain: 

(1)(i) Dioxins and furans in excess of 

0.40 ng TEQ/dscm, corrected to 7 

percent oxygen, for liquid fuel boilers 

equipped with a dry air pollution 

control system; or 

(ii) Either carbon monoxide or 

hydrocarbon emissions in excess of the 

limits provided by paragraph (b)(5) of 

this section for sources not equipped 

with a dry air pollution control system; 

(iii) A source equipped with a wet air 

pollution control system followed by a 

dry air pollution control system is not 

considered to be a dry air pollution 

control system, and a source equipped 

with a dry air pollution control system 

followed by a wet air pollution control 

system is considered to be a dry air 

pollution control system for purposes of 

this emission limit; 

(2) For mercury: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 6.8 

μg/dscm, corrected to 7 percent oxygen, 

on an (not-to-exceed) annual averaging 

period; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

1.2 × 10¥6 lbs mercury emissions 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste on an (not-to-exceed) 

annual averaging period; 

(3) For cadmium and lead combined, 

except for an area source as defined 

under § 63.2: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 78 

μg/dscm, corrected to 7 percent oxygen, 

on an (not-to-exceed) annual averaging 

period; 

(ii) When you burn hazardous waste 

with an as-fired heating value greater 

than or equal to 10,000 Btu/lb, 

emissions in excess of 6.2 × 10¥6 lbs 

combined cadmium and lead emissions 

attributable to the hazardous waste per 

59568 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

million Btu heat input from the 

hazardous waste on an (not-to-exceed) 

annual averaging period; 

(4) For chromium, except for an area 

source as defined under § 63.2: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 12 

μg/dscm, corrected to 7 percent oxygen; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

1.4 × 10¥5 lbs chromium emissions 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(b)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine, except for an area source as 

defined under § 63.2: 

(i) When you burn hazardous waste 

with an as-fired heating value less than 

10,000 Btu/lb, emissions in excess of 31 

parts per million by volume, combined 

emissions, expressed as a chloride (Cl(-)

) 

equivalent, dry basis and corrected to 7 

percent oxygen; 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

5.08 × 10¥2 lbs combined emissions of 

hydrogen chloride and chlorine gas 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 20 mg/ 

dscm corrected to 7 percent oxygen. 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a DRE of 

99.99% for each principle organic 

hazardous constituent (POHC) 

designated under paragraph (c)(3) of this 

section. You must calculate DRE for 

each POHC from the following equation: 

DRE = [1 ¥ (Wout ÷ Win)] × 100% 

Where: 

Win = mass feedrate of one POHC in a 

waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a DRE of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-p-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to 

incinerate hazardous wastes F020, F021, 

F022, F023, F026, or F027. 

(3) Principal organic hazardous 

constituents (POHCs). (i) You must treat 

the POHCs in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

(e) Alternative to the particulate 

matter standard. (1) General. In lieu of 

complying with the particulate matter 

standards of this section, you may elect 

to comply with the following alternative 

metal emission control requirement: 

(2) Alternative metal emission control 

requirements for existing liquid fuel 

boilers. (i) When you burn hazardous 

waste with a heating value less than 

10,000 Btu/lb: 

(A) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium, combined, in excess of 

150 μg/dscm, corrected to 7 percent 

oxygen; and 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel, combined, in 

excess of 370 μg/dscm, corrected to 

7 percent oxygen; 

(ii) When you burn hazardous waste 

with a heating value of 10,000 Btu/lb or 

greater: 

(A) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain in excess of 

8.2 × 10¥5 lbs combined emissions of 

cadmium, lead, and selenium 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; and 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain either in excess 

of 1.3 × 10¥4 lbs combined emissions of 

antimony, arsenic, beryllium, 

chromium, cobalt, manganese, and 

nickel attributable to the hazardous 

waste per million Btu heat input from 

the hazardous waste; 

(3) Alternative metal emission control 

requirements for new liquid fuel boilers. 

(i) When you burn hazardous waste 

with a heating value less than 10,000 

Btu/lb: 

(A) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium, combined, in excess of 78 

μg/dscm, corrected to 7 percent oxygen; 

and 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel, combined, in 

excess of 12 μg/dscm, corrected to 

7 percent oxygen; 

(ii) When you burn hazardous waste 

with a heating value greater than or 

equal to 10,000 Btu/lb: 

(A) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain in excess of 

6.2 × 10¥6 lbs combined emissions of 

cadmium, lead, and selenium 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; and 

(B) You must not discharge or cause 

combustion gases to be emitted into the 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59569 

atmosphere that contain either in excess 

of 1.4 × 10¥5 lbs combined emissions of 

antimony, arsenic, beryllium, 

chromium, cobalt, manganese, and 

nickel attributable to the hazardous 

waste per million Btu heat input from 

the hazardous waste; 

(4) Operating limits. Semivolatile and 

low volatile metal operating parameter 

limits must be established to ensure 

compliance with the alternative 

emission limitations described in 

paragraphs (e)(2) and (e)(3) of this 

section pursuant to § 63.1209(n), except 

that semivolatile metal feedrate limits 

apply to lead, cadmium, and selenium, 

combined, and low volatile metal 

feedrate limits apply to arsenic, 

beryllium, chromium, antimony, cobalt, 

manganese, and nickel, combined. 

(f) Elective standards for area sources. 

Area sources as defined under § 63.2 are 

subject to the standards for cadmium 

and lead, the standards for chromium, 

the standards for hydrogen chloride and 

chlorine, and the standards for 

particulate matter under this section if 

they elect under § 266.100(b)(3) of this 

chapter to comply with those standards 

in lieu of the standards under 40 CFR 

266.105, 266.106, and 266.107 to control 

those pollutants. 

■ 19. Section 63.1218 is added to read 

as follows: 

§ 63.1218 What are the standards for 

hydrochloric acid production furnaces that 

burn hazardous waste? 

(a) Emission limits for existing 

sources. You must not discharge or 

cause combustion gases to be emitted 

into the atmosphere that contain: 

(1) For dioxins and furans, either 

carbon monoxide or hydrocarbon 

emissions in excess of the limits 

provided by paragraph (a)(5) of this 

section; 

(2) For mercury, hydrogen chloride 

and chlorine gas emissions in excess of 

the levels provided by paragraph (a)(6) 

of this section; 

(3) For lead and cadmium, except for 

an area source as defined under § 63.2, 

hydrogen chloride and chlorine gas 

emissions in excess of the levels 

provided by paragraph (a)(6) of this 

section; 

(4) For arsenic, beryllium, and 

chromium, except for an area source as 

defined under § 63.2, hydrogen chloride 

and chlorine gas emissions in excess of 

the levels provided by paragraph (a)(6) 

of this section; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 

7 percent oxygen. If you elect to comply 

with this carbon monoxide standard 

rather than the hydrocarbon standard 

under paragraph (a)(5)(ii) of this section, 

you must also document that, during the 

destruction and removal efficiency 

(DRE) test runs or their equivalent as 

provided by § 63.1206(b)(7), 

hydrocarbons do not exceed 10 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine gas, either: 

(i) Emission in excess of 150 parts per 

million by volume, combined 

emissions, expressed as a chloride (Cl(¥)

equivalent, dry basis and corrected to 7 

percent oxygen; or 

(ii) Emissions greater than the levels 

that would be emitted if the source is 

achieving a system removal efficiency 

(SRE) of less than 99.923 percent for 

total chlorine and chloride fed to the 

combustor. You must calculate SRE 

from the following equation: 

SRE = [1 ¥ (Cl out / Cl in)] × 100% 

Where: 

Cl in = mass feedrate of total chlorine 

or chloride in all feedstreams, 

reported as chloride; and 

Cl out = mass emission rate of hydrogen 

chloride and chlorine gas, reported 

as chloride, in exhaust emissions 

prior to release to the atmosphere. 

(7) For particulate matter, except for 

an area source as defined under § 63.2, 

hydrogen chloride and chlorine gas 

emissions in excess of the levels 

provided by paragraph (a)(6) of this 

section. 

(b) Emission limits for new sources. 

You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain: 

(1) For dioxins and furans, either 

carbon monoxide or hydrocarbon 

emissions in excess of the limits 

provided by paragraph (b)(5) of this 

section; 

(2) For mercury, hydrogen chloride 

and chlorine gas emissions in excess of 

the levels provided by paragraph (b)(6) 

of this section; 

(3) For lead and cadmium, except for 

an area source as defined under § 63.2, 

hydrogen chloride and chlorine gas 

emissions in excess of the levels 

provided by paragraph (b)(6) of this 

section; 

(4) For arsenic, beryllium, and 

chromium, except for an area source as 

defined under § 63.2, hydrogen chloride 

and chlorine gas emissions in excess of 

the levels provided by paragraph (b)(6) 

of this section; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(b)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) For hydrogen chloride and 

chlorine gas, either: 

(i) Emission in excess of 25 parts per 

million by volume, combined 

emissions, expressed as a chloride (Cl(¥)

equivalent, dry basis and corrected to 7 

percent oxygen; or 

(ii) Emissions greater than the levels 

that would be emitted if the source is 

achieving a system removal efficiency 

(SRE) of less than 99.987 percent for 

total chlorine and chloride fed to the 

combustor. You must calculate SRE 

from the following equation: 

SRE = [1 ¥ (Cl out / Cl in)] × 100% 

Where: 

Cl in = mass feedrate of total chlorine 

or chloride in all feedstreams, 

reported as chloride; and 

Cl out = mass emission rate of hydrogen 

chloride and chlorine gas, reported 

as chloride, in exhaust emissions 

prior to release to the atmosphere. 

(7) For particulate matter, except for 

an area source as defined under § 63.2, 

hydrogen chloride and chlorine gas 

59570 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

emissions in excess of the levels 

provided by paragraph (b)(6) of this 

section. 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a DRE of 

99.99% for each principle organic 

hazardous constituent (POHC) 

designated under paragraph (c)(3) of this 

section. You must calculate DRE for 

each POHC from the following equation: 

DRE = [1 ¥ (W out / W in)] × 100% 

Where: 

Win = mass feedrate of one POHC in a 

waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a DRE of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-p-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to 

incinerate hazardous wastes F020, F021, 

F022, F023, F026, or F027. 

(3) Principal organic hazardous 

constituents (POHCs). (i) You must treat 

the POHCs in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

(e) Elective standards for area 

sources. Area sources as defined under 

§ 63.2 are subject to the standards for 

cadmium and lead, the standards for 

arsenic, beryllium, and chromium, the 

standards for hydrogen chloride and 

chlorine, and the standards for 

particulate matter under this section if 

they elect under § 266.100(b)(3) of this 

chapter to comply with those standards 

in lieu of the standards under 40 CFR 

266.105, 266.106, and 266.107 to control 

those pollutants. 

■ 20. Section 63.1219 and a new 

undesignated center heading are added 

to subpart EEE to read as follows: 

Replacement Emissions Standards and 

Operating Limits for Incinerators, 

Cement Kilns, and Lightweight 

Aggregate Kilns 

§ 63.1219 What are the replacement 

standards for hazardous waste 

incinerators? 

(a) Emission limits for existing 

sources. You must not discharge or 

cause combustion gases to be emitted 

into the atmosphere that contain: 

(1) For dioxins and furans: 

(i) For incinerators equipped with 

either a waste heat boiler or dry air 

pollution control system, either: 

(A) Emissions in excess of 0.20 ng 

TEQ/dscm, corrected to 7 percent 

oxygen; or 

(B) Emissions in excess of 0.40 ng 

TEQ/dscm, corrected to 7 percent 

oxygen, provided that the combustion 

gas temperature at the inlet to the initial 

particulate matter control device is 

400°F or lower based on the average of 

the test run average temperatures. (For 

purposes of compliance, operation of a 

wet particulate matter control device is 

presumed to meet the 400°F or lower 

requirement); 

(ii) Emissions in excess of 0.40 ng 

TEQ/dscm, corrected to 7 percent 

oxygen, for incinerators not equipped 

with either a waste heat boiler or dry air 

pollution control system; 

(iii) A source equipped with a wet air 

pollution control system followed by a 

dry air pollution control system is not 

considered to be a dry air pollution 

control system, and a source equipped 

with a dry air pollution control system 

followed by a wet air pollution control 

system is considered to be a dry air 

pollution control system for purposes of 

this standard; 

(2) Mercury in excess of 130 μg/dscm, 

corrected to 7 percent oxygen; 

(3) Cadmium and lead in excess of 

230 μg/dscm, combined emissions, 

corrected to 7 percent oxygen; 

(4) Arsenic, beryllium, and chromium 

in excess of 92 μg/dscm, combined 

emissions, corrected to 7 percent 

oxygen; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(a)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) Hydrogen chloride and chlorine 

gas (total chlorine) in excess of 32 parts 

per million by volume, combined 

emissions, expressed as a chloride 

(Cl(¥)

) equivalent, dry basis and 

corrected to 7 percent oxygen; and 

(7) Except as provided by paragraph 

(e) of this section, particulate matter in 

excess of 0.013 gr/dscf corrected to 7 

percent oxygen. 

(b) Emission limits for new sources. 

You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain: 

(1)(i) Dioxins and furans in excess of 

0.11 ng TEQ/dscm corrected to 7 

percent oxygen for incinerators 

equipped with either a waste heat boiler 

or dry air pollution control system; or 

(ii) Dioxins and furans in excess of 

0.20 ng TEQ/dscm corrected to 7 

percent oxygen for sources not equipped 

with either a waste heat boiler or dry air 

pollution control system; 

(iii) A source equipped with a wet air 

pollution control system followed by a 

dry air pollution control system is not 

considered to be a dry air pollution 

control system, and a source equipped 

with a dry air pollution control system 

followed by a wet air pollution control 

system is considered to be a dry air 

pollution control system for purposes of 

this standard; 

(2) Mercury in excess of 8.1 μg/dscm, 

corrected to 7 percent oxygen; 

(3) Cadmium and lead in excess of 10 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen; 

(4) Arsenic, beryllium, and chromium 

in excess of 23 μg/dscm, combined 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59571 

emissions, corrected to 7 percent 

oxygen; 

(5) For carbon monoxide and 

hydrocarbons, either: 

(i) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(b)(5)(ii) of this section, you must also 

document that, during the destruction 

and removal efficiency (DRE) test runs 

or their equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons do not 

exceed 10 parts per million by volume 

during those runs, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 10 parts 

per million by volume, over an hourly 

rolling average (monitored continuously 

with a continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) Hydrogen chloride and chlorine 

gas in excess of 21 parts per million by 

volume, combined emissions, expressed 

as a chloride (Cl(-)

) equivalent, dry basis 

and corrected to 7 percent oxygen; and 

(7) Except as provided by paragraph 

(e) of this section, particulate matter in 

excess of 0.0015 gr/dscf, corrected to 7 

percent oxygen. 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a destruction 

and removal efficiency (DRE) of 99.99% 

for each principle organic hazardous 

constituent (POHC) designated under 

paragraph (c)(3) of this section. You 

must calculate DRE for each POHC from 

the following equation: 

DRE = [1 ¥ (Wout / Win)] × 100% 

Where: 

Win = mass feedrate of one POHC in a 

waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a DRE of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-p-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to 

incinerate hazardous wastes F020, F021, 

F022, F023, F026, or F027. 

(3) Principal organic hazardous 

constituent (POHC). (i) You must treat 

each POHC in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

(e) Alternative to the particulate 

matter standard. (1). General. In lieu of 

complying with the particulate matter 

standards of this section, you may elect 

to comply with the following alternative 

metal emission control requirement: 

(2) Alternative metal emission control 

requirements for existing incinerators. 

(i) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium in excess of 230 μg/dscm, 

combined emissions, corrected to 7 

percent oxygen; and, 

(ii) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 92 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(3) Alternative metal emission control 

requirements for new incinerators. (i) 

You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain cadmium, lead, 

and selenium in excess of 10 μg/dscm, 

combined emissions, corrected to 7 

percent oxygen; and, 

(ii) You must not discharge or cause 

combustion gases to be emitted into the 

atmosphere that contain antimony, 

arsenic, beryllium, chromium, cobalt, 

manganese, and nickel in excess of 23 

μg/dscm, combined emissions, 

corrected to 7 percent oxygen. 

(4) Operating limits. Semivolatile and 

low volatile metal operating parameter 

limits must be established to ensure 

compliance with the alternative 

emission limitations described in 

paragraphs (e)(2) and (e)(3) of this 

section pursuant to § 63.1209(n), except 

that semivolatile metal feedrate limits 

apply to lead, cadmium, and selenium, 

combined, and low volatile metal 

feedrate limits apply to arsenic, 

beryllium, chromium, antimony, cobalt, 

manganese, and nickel, combined. 

■ 21. Section 63.1220 is added to 

subpart EEE to read as follows: 

§ 63.1220 What are the replacement 

standards for hazardous waste burning 

cement kilns? 

(a) Emission and hazardous waste 

feed limits for existing sources. You 

must not discharge or cause combustion 

gases to be emitted into the atmosphere 

or feed hazardous waste that contain: 

(1) For dioxins and furans, either: 

(i) Emissions in excess of 0.20 ng 

TEQ/dscm corrected to 7 percent 

oxygen; or 

(ii) Emissions in excess of 0.40 ng 

TEQ/dscm corrected to 7 percent 

oxygen provided that the combustion 

gas temperature at the inlet to the initial 

dry particulate matter control device is 

400 °F or lower based on the average of 

the test run average temperatures; 

(2) For mercury, both: 

(i) An average as-fired concentration 

of mercury in all hazardous waste 

feedstreams in excess of 3.0 parts per 

million by weight; and 

(ii) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen; or 

(iii) A hazardous waste feedrate 

corresponding to a maximum theoretical 

emission concentration (MTEC) in 

excess of 120 μg/dscm; 

(3) For cadmium and lead, both: 

(i) Emissions in excess of 7.6 × 10¥4

lbs combined emissions of cadmium 

and lead attributable to the hazardous 

waste per million Btu heat input from 

the hazardous waste; and 

(ii) Emissions in excess of 330 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium, both: 

(i) Emissions in excess of 2.1 × 10¥5

lbs combined emissions of arsenic, 

beryllium, and chromium attributable to 

the hazardous waste per million Btu 

heat input from the hazardous waste; 

and 

(ii) Emissions in excess of 56 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

59572 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(5) Carbon monoxide and 

hydrocarbons. (i) For kilns equipped 

with a by-pass duct or midkiln gas 

sampling system, either: 

(A) Carbon monoxide in the by-pass 

duct or mid-kiln gas sampling system in 

excess of 100 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis and corrected to 7 

percent oxygen. If you elect to comply 

with this carbon monoxide standard 

rather than the hydrocarbon standard 

under paragraph (a)(5)(i)(B) of this 

section, you must also document that, 

during the destruction and removal 

efficiency (DRE) test runs or their 

equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons in the bypass duct or mid-kiln gas sampling 

system do not exceed 10 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(B) Hydrocarbons in the by-pass duct 

or midkiln gas sampling system in 

excess of 10 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(ii) For kilns not equipped with a bypass duct or midkiln gas sampling 

system, either: 

(A) Hydrocarbons in the main stack in 

excess of 20 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(B) Carbon monoxide in the main 

stack in excess of 100 parts per million 

by volume, over an hourly rolling 

average (monitored continuously with a 

continuous emissions monitoring 

system), dry basis and corrected to 7 

percent oxygen. If you elect to comply 

with this carbon monoxide standard 

rather than the hydrocarbon standard 

under paragraph (a)(5)(ii)(A) of this 

section, you also must document that, 

during the destruction and removal 

efficiency (DRE) test runs or their 

equivalent as provided by 

§ 63.1206(b)(7), hydrocarbons in the 

main stack do not exceed 20 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane. 

(6) Hydrogen chloride and chlorine 

gas in excess of 120 parts per million by 

volume, combined emissions, expressed 

as a chloride (Cl(-)

) equivalent, dry basis, 

corrected to 7 percent oxygen; and 

(7) For particulate matter, both: 

(i) Emissions in excess of 0.028 gr/ 

dscf corrected to 7 percent oxygen; and 

(ii) Opacity greater than 20 percent, 

unless your source is equipped with a 

bag leak detection system under 

§ 63.1206(c)(8) or a particulate matter 

detection system under § 63.1206(c)(9). 

(b) Emission and hazardous waste 

feed limits for new sources. You must 

not discharge or cause combustion gases 

to be emitted into the atmosphere or 

feed hazardous waste that contain: 

(1) For dioxins and furans, either: 

(i) Emissions in excess of 0.20 ng 

TEQ/dscm corrected to 7 percent 

oxygen; or 

(ii) Emissions in excess of 0.40 ng 

TEQ/dscm corrected to 7 percent 

oxygen provided that the combustion 

gas temperature at the inlet to the initial 

dry particulate matter control device is 

400 °F or lower based on the average of 

the test run average temperatures; 

(2) For mercury, both: 

(i) An average as-fired concentration 

of mercury in all hazardous waste 

feedstreams in excess of 1.9 parts per 

million by weight; and 

(ii) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen; or 

(iii) A hazardous waste feedrate 

corresponding to a maximum theoretical 

emission concentration (MTEC) in 

excess of 120 μg/dscm; 

(3) For cadmium and lead, both: 

(i) Emissions in excess of 6.2 x 10-5 lbs 

combined emissions of cadmium and 

lead attributable to the hazardous waste 

per million Btu heat input from the 

hazardous waste; and 

(ii) Emissions in excess of 180 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium, both: 

(i) Emissions in excess of 1.5 x 10-5 lbs 

combined emissions of arsenic, 

beryllium, and chromium attributable to 

the hazardous waste per million Btu 

heat input from the hazardous waste; 

and 

(ii) Emissions in excess of 54 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(5) Carbon monoxide and 

hydrocarbons. (i) For kilns equipped 

with a by-pass duct or midkiln gas 

sampling system, carbon monoxide and 

hydrocarbons emissions are limited in 

both the bypass duct or midkiln gas 

sampling system and the main stack as 

follows: 

(A) Emissions in the by-pass or 

midkiln gas sampling system are limited 

to either: 

(1) Carbon monoxide in excess of 100 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis 

and corrected to 7 percent oxygen. If 

you elect to comply with this carbon 

monoxide standard rather than the 

hydrocarbon standard under paragraph 

(b)(5)(i)(A)(2) of this section, you also 

must document that, during the 

destruction and removal efficiency 

(DRE) test runs or their equivalent as 

provided by § 63.1206(b)(7), 

hydrocarbons do not exceed 10 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(2) Hydrocarbons in the by-pass duct 

or midkiln gas sampling system in 

excess of 10 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; and 

(B) Hydrocarbons in the main stack 

are limited, if construction of the kiln 

commenced after April 19, 1996 at a 

plant site where a cement kiln (whether 

burning hazardous waste or not) did not 

previously exist, to 50 parts per million 

by volume, over a 30-day block average 

(monitored continuously with a 

continuous monitoring system), dry 

basis, corrected to 7 percent oxygen, and 

reported as propane. 

(ii) For kilns not equipped with a bypass duct or midkiln gas sampling 

system, hydrocarbons and carbon 

monoxide are limited in the main stack 

to either: 

(A) Hydrocarbons not exceeding 20 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis, 

corrected to 7 percent oxygen, and 

reported as propane; or 

(B)(1) Carbon monoxide not exceeding 

100 parts per million by volume, over 

an hourly rolling average (monitored 

continuously with a continuous 

emissions monitoring system), dry basis, 

corrected to 7 percent oxygen; and 

(2) Hydrocarbons not exceeding 20 

parts per million by volume, over an 

hourly rolling average (monitored 

continuously with a continuous 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59573 

monitoring system), dry basis, corrected 

to 7 percent oxygen, and reported as 

propane at any time during the 

destruction and removal efficiency 

(DRE) test runs or their equivalent as 

provided by § 63.1206(b)(7); and 

(3) If construction of the kiln 

commenced after April 19, 1996 at a 

plant site where a cement kiln (whether 

burning hazardous waste or not) did not 

previously exist, hydrocarbons are 

limited to 50 parts per million by 

volume, over a 30-day block average 

(monitored continuously with a 

continuous monitoring system), dry 

basis, corrected to 7 percent oxygen, and 

reported as propane. 

(6) Hydrogen chloride and chlorine 

gas in excess of 86 parts per million by 

volume, combined emissions, expressed 

as a chloride (Cl(-)

) equivalent, dry basis 

and corrected to 7 percent oxygen; and 

(7) For particulate matter, both: 

(i) Emissions in excess of 0.0023 gr/ 

dscf corrected to 7 percent oxygen; and 

(ii) Opacity greater than 20 percent, 

unless your source is equipped with a 

bag leak detection system under 

§ 63.1206(c)(8) or a particulate matter 

detection system under § 63.1206(c)(9). 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a destruction 

and removal efficiency (DRE) of 99.99% 

for each principle organic hazardous 

constituent (POHC) designated under 

paragraph (c)(3) of this section. You 

must calculate DRE for each POHC from 

the following equation: 

DRE = [1 ¥ (Wout/ Win)] × 100% 

Where: 

Win = mass feedrate of one POHC in a 

waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a DRE of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-p-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to 

incinerate hazardous wastes F020, F021, 

F022, F023, F026, or F027. 

(3) Principal organic hazardous 

constituent (POHC). (i) You must treat 

each POHC in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Cement kilns with in-line kiln raw 

mills. (1) General. (i) You must conduct 

performance testing when the raw mill 

is on-line and when the mill is off-line 

to demonstrate compliance with the 

emission standards, and you must 

establish separate operating parameter 

limits under § 63.1209 for each mode of 

operation, except as provided by 

paragraphs (d)(1)(iv) and (d)(1)(v) of this 

section. 

(ii) You must document in the 

operating record each time you change 

from one mode of operation to the 

alternate mode and begin complying 

with the operating parameter limits for 

that alternate mode of operation. 

(iii) You must calculate rolling 

averages for operating parameter limits 

as provided by § 63.1209(q)(2). 

(iv) If your in-line kiln raw mill has 

dual stacks, you may assume that the 

dioxin/furan emission levels in the bypass stack and the operating parameter 

limits determined during performance 

testing of the by-pass stack when the 

raw mill is off-line are the same as when 

the mill is on-line. 

(v) In lieu of conducting a 

performance test to demonstrate 

compliance with the dioxin/furan 

emission standards for the mode of 

operation when the raw mill is on-line, 

you may specify in the performance test 

workplan and Notification of 

Compliance the same operating 

parameter limits required under 

§ 63.1209(k) for the mode of operation 

when the raw mill is on-line as you 

establish during performance testing for 

the mode of operation when the raw 

mill is off-line. 

(2) Emissions averaging. You may 

comply with the mercury, semivolatile 

metal, low volatile metal, and hydrogen 

chloride/chlorine gas emission 

standards on a time-weighted average 

basis under the following procedures: 

(i) Averaging methodology. You must 

calculate the time-weighted average 

emission concentration with the 

following equation: 

Ctotal = {Cmill-off × (Tmill-off/ (Tmill-off + 

Tmill-on))} + {Cmill-on × (Tmill-on / 

(Tmill-off + Tmill-on))} 

Where: 

Ctotal = time-weighted average 

concentration of a regulated constituent 

considering both raw mill on time and 

off time; 

Cmill-off = average performance test 

concentration of regulated constituent 

with the raw mill off-line; 

Cmill-on = average performance test 

concentration of regulated 

constituent with the raw mill online; 

Tmill-off = time when kiln gases are not 

routed through the raw mill; and 

Tmill-on = time when kiln gases are 

routed through the raw mill. 

(ii) Compliance. (A) If you use this 

emission averaging provision, you must 

document in the operating record 

compliance with the emission standards 

on an annual basis by using the 

equation provided by paragraph (d)(2) of 

this section. 

(B) Compliance is based on one-year 

block averages beginning on the day you 

submit the initial notification of 

compliance. 

(iii) Notification. (A) If you elect to 

document compliance with one or more 

emission standards using this emission 

averaging provision, you must notify the 

Administrator in the initial 

comprehensive performance test plan 

submitted under § 63.1207(e). 

(B) You must include historical raw 

mill operation data in the performance 

test plan to estimate future raw mill 

down-time and document in the 

performance test plan that estimated 

emissions and estimated raw mill downtime will not result in an exceedance of 

an emission standard on an annual 

basis. 

(C) You must document in the 

notification of compliance submitted 

under § 63.1207(j) that an emission 

standard will not be exceeded based on 

the documented emissions from the 

performance test and predicted raw mill 

down-time. 

(e) Preheater or preheater/precalciner 

kilns with dual stacks. (1) General. You 

must conduct performance testing on 

each stack to demonstrate compliance 

with the emission standards, and you 

must establish operating parameter 

limits under § 63.1209 for each stack, 

except as provided by paragraph 

(d)(1)(iv) of this section for dioxin/furan 

emissions testing and operating 

parameter limits for the by-pass stack of 

in-line raw mills. 

(2) Emissions averaging. You may 

comply with the mercury, semivolatile 

metal, low volatile metal, and hydrogen 

59574 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

chloride/chlorine gas emission 

standards specified in this section on a 

gas flowrate-weighted average basis 

under the following procedures: 

(i) Averaging methodology. You must 

calculate the gas flowrate-weighted 

average emission concentration using 

the following equation: 

Ctot = {Cmain × (Qmain / (Qmain + Qbypass))} 

+ {Cbypass × (Qbypass / (Qmain + 

Qbypass))} 

Where: 

Ctot = gas flowrate-weighted average 

concentration of the regulated 

constituent; 

Cmain = average performance test 

concentration demonstrated in the 

main stack; 

Cbypass = average performance test 

concentration demonstrated in the 

bypass stack; 

Qmain = volumetric flowrate of main 

stack effluent gas; and 

Qbypass = volumetric flowrate of bypass 

effluent gas. 

(ii) Compliance. (A) You must 

demonstrate compliance with the 

emission standard(s) using the emission 

concentrations determined from the 

performance tests and the equation 

provided by paragraph (e)(1) of this 

section; and 

(B) You must develop operating 

parameter limits for bypass stack and 

main stack flowrates that ensure the 

emission concentrations calculated with 

the equation in paragraph (e)(1) of this 

section do not exceed the emission 

standards on a 12-hour rolling average 

basis. You must include these flowrate 

limits in the Notification of Compliance. 

(iii) Notification. If you elect to 

document compliance under this 

emissions averaging provision, you 

must: 

(A) Notify the Administrator in the 

initial comprehensive performance test 

plan submitted under § 63.1207(e). The 

performance test plan must include, at 

a minimum, information describing the 

flowrate limits established under 

paragraph (e)(2)(ii)(B) of this section; 

and 

(B) Document in the Notification of 

Compliance submitted under 

§ 63.1207(j) the demonstrated gas 

flowrate-weighted average emissions 

that you calculate with the equation 

provided by paragraph (e)(2) of this 

section. 

(f) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

(g) [Reserved]. 

(h) When you comply with the 

particulate matter requirements of 

paragraphs (a)(7) or (b)(7) of this section, 

you are exempt from the New Source 

Performance Standard for particulate 

matter and opacity under § 60.60 of this 

chapter. 

■ 22. Section 63.1221 is added to 

subpart EEE to read as follows: 

§ 63.1221 What are the replacement 

standards for hazardous waste burning 

lightweight aggregate kilns? 

(a) Emission and hazardous waste 

feed limits for existing sources. You 

must not discharge or cause combustion 

gases to be emitted into the atmosphere 

or feed hazardous waste that contain: 

(1) For dioxins and furans, either: 

(i) Emissions in excess of 0.20 ng 

TEQ/dscm corrected to 7 percent 

oxygen; or 

(ii) Rapid quench of the combustion 

gas temperature at the exit of the (last) 

combustion chamber (or exit of any 

waste heat recovery system that 

immediately follows the last 

combustion chamber) to 400°F or lower 

based on the average of the test run 

average temperatures. You must also 

notify in writing the RCRA authority 

that you are complying with this option; 

(2) For mercury, either: 

(i) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen; or 

(ii) A hazardous waste feedrate 

corresponding to a maximum theoretical 

emission concentration (MTEC) in 

excess of 120 μg/dscm; 

(3) For cadmium and lead, both: 

(i) Emissions in excess of 3.0 × 10¥4

lbs combined emissions of cadmium 

and lead attributable to the hazardous 

waste per million Btu heat input from 

the hazardous waste; and 

(ii) Emissions in excess of 250 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium, both: 

(i) In excess of 9.5 × 10¥5 lbs 

combined emissions of arsenic, 

beryllium, and chromium attributable to 

the hazardous waste per million Btu 

heat input from the hazardous waste; 

(ii) Emissions in excess of 110 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(5) Carbon monoxide and 

hydrocarbons. (i) Carbon monoxide in 

excess of 100 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis and corrected to 7 

percent oxygen. If you elect to comply 

with this carbon monoxide standard 

rather than the hydrocarbon standard 

under paragraph (a)(5)(ii) of this section, 

you also must document that, during the 

destruction and removal efficiency 

(DRE) test runs or their equivalent as 

provided by § 63.1206(b)(7), 

hydrocarbons do not exceed 20 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 20 parts 

per million by volume, over an hourly 

rolling average, dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) Hydrogen chloride and chlorine 

gas in excess of 600 parts per million by 

volume, combined emissions, expressed 

as a chloride (Cl(-)

) equivalent, dry basis 

and corrected to 7 percent oxygen; and 

(7) Particulate matter emissions in 

excess of 0.025 gr/dscf, corrected to 7 

percent oxygen. 

(b) Emission and hazardous waste 

feed limits for new sources. You must 

not discharge or cause combustion gases 

to be emitted into the atmosphere or 

feed hazardous waste that contain: 

(1) For dioxins and furans, either: 

(i) Emissions in excess of 0.20 ng 

TEQ/dscm corrected to 7 percent 

oxygen; or 

(ii) Rapid quench of the combustion 

gas temperature at the exit of the (last) 

combustion chamber (or exit of any 

waste heat recovery system that 

immediately follows the last 

combustion chamber) to 400°F or lower 

based on the average of the test run 

average temperatures. You must also 

notify in writing the RCRA authority 

that you are complying with this option; 

(2) For mercury, either: 

(i) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen; or 

(ii) A hazardous waste feedrate 

corresponding to a maximum theoretical 

emission concentration (MTEC) in 

excess of 120 μg/dscm; 

(3) For cadmium and lead, both: 

(i) Emissions in excess of 3.7 × 10¥5

lbs combined emissions of cadmium 

and lead attributable to the hazardous 

waste per million Btu heat input from 

the hazardous waste; and 

(ii) Emissions in excess of 43 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(4) For arsenic, beryllium, and 

chromium, both: 

(i) In excess of 3.3 × 10¥5 lbs 

combined emissions of arsenic, 

beryllium, and chromium attributable to 

the hazardous waste per million Btu 

heat input from the hazardous waste; 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59575 

(ii) Emissions in excess of 110 μg/ 

dscm, combined emissions, corrected to 

7 percent oxygen; 

(5) Carbon monoxide and 

hydrocarbons. (i) Carbon monoxide in 

excess of 100 parts per million by 

volume, over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis and corrected to 7 

percent oxygen. If you elect to comply 

with this carbon monoxide standard 

rather than the hydrocarbon standard 

under paragraph (b)(5)(ii) of this section, 

you also must document that, during the 

destruction and removal efficiency 

(DRE) test runs or their equivalent as 

provided by § 63.1206(b)(7), 

hydrocarbons do not exceed 20 parts per 

million by volume during those runs, 

over an hourly rolling average 

(monitored continuously with a 

continuous emissions monitoring 

system), dry basis, corrected to 7 

percent oxygen, and reported as 

propane; or 

(ii) Hydrocarbons in excess of 20 parts 

per million by volume, over an hourly 

rolling average, dry basis, corrected to 7 

percent oxygen, and reported as 

propane; 

(6) Hydrogen chloride and chlorine 

gas in excess of 600 parts per million by 

volume, combined emissions, expressed 

as a chloride (Cl(-)

) equivalent, dry basis 

and corrected to 7 percent oxygen; and 

(7) Particulate matter emissions in 

excess of 0.0098 gr/dscf corrected to 7 

percent oxygen. 

(c) Destruction and removal efficiency 

(DRE) standard. (1) 99.99% DRE. Except 

as provided in paragraph (c)(2) of this 

section, you must achieve a destruction 

and removal efficiency (DRE) of 99.99% 

for each principal organic hazardous 

constituent (POHC) designated under 

paragraph (c)(3) of this section. You 

must calculate DRE for each POHC from 

the following equation: 

DRE = [1 ¥ (Wout / Win)] × 100% 

Where: 

Win = mass feedrate of one POHC in 

a waste feedstream; and 

Wout = mass emission rate of the same 

POHC present in exhaust emissions 

prior to release to the atmosphere. 

(2) 99.9999% DRE. If you burn the 

dioxin-listed hazardous wastes F020, 

F021, F022, F023, F026, or F027 (see 

§ 261.31 of this chapter), you must 

achieve a destruction and removal 

efficiency (DRE) of 99.9999% for each 

POHC that you designate under 

paragraph (c)(3) of this section. You 

must demonstrate this DRE performance 

on POHCs that are more difficult to 

incinerate than tetra-, penta-, and 

hexachlorodibenzo-dioxins and 

dibenzofurans. You must use the 

equation in paragraph (c)(1) of this 

section to calculate DRE for each POHC. 

In addition, you must notify the 

Administrator of your intent to burn 

hazardous wastes F020, F021, F022, 

F023, F026, or F027. 

(3) Principal organic hazardous 

constituents (POHCs). (i) You must treat 

each POHC in the waste feed that you 

specify under paragraph (c)(3)(ii) of this 

section to the extent required by 

paragraphs (c)(1) and (c)(2) of this 

section. 

(ii) You must specify one or more 

POHCs that are representative of the 

most difficult to destroy organic 

compounds in your hazardous waste 

feedstream. You must base this 

specification on the degree of difficulty 

of incineration of the organic 

constituents in the hazardous waste and 

on their concentration or mass in the 

hazardous waste feed, considering the 

results of hazardous waste analyses or 

other data and information. 

(d) Significant figures. The emission 

limits provided by paragraphs (a) and 

(b) of this section are presented with 

two significant figures. Although you 

must perform intermediate calculations 

using at least three significant figures, 

you may round the resultant emission 

levels to two significant figures to 

document compliance. 

PART 260—HAZARDOUS WASTE 

MANAGEMENT SYSTEM: GENERAL 

■ 1. The authority citation for part 260 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921–

6927, 6930, 6934, 6935, 6937, 6938, 6939, 

and 6974. 

■ 2. Section 260.11 is amended by 

■ a. Revising the first sentence in 

paragraph (a). 

■ b. Revising paragraph (c)(1). 

The revisions and additions read as 

follows: 

§ 260.11 References. 

(a) When used in parts 260 through 

268 of this chapter, the following 

publications are incorporated by 

reference. * * * 

* * * * * 

(c) * * * 

(1) ‘‘APTI Course 415: Control of 

Gaseous Emissions,’’ EPA Publication 

EPA–450/2–81–005, December 1981, 

IBR approved for §§ 264.1035 and 

265.1035. 

* * * * * 

PART 264—STANDARDS FOR 

OWNERS AND OPERATORS OF 

HAZARDOUS WASTE TREATMENT, 

STORAGE, AND DISPOSAL 

FACILITIES 

■ 1. The authority citation for part 264 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6924, 

6925, 6927, 6928(h), and 6974. 

■ 2. Section 264.340 is amended by 

revising the first sentence of paragraph 

(b)(1) and adding paragraph (b)(5) to 

read as follows: 

§ 264.340 Applicability. 

* * * * * 

(b) * * * (1) Except as provided by 

paragraphs (b)(2) through (b)(5) of this 

section, the standards of this part do not 

apply to a new hazardous waste 

incineration unit that becomes subject 

to RCRA permit requirements after 

October 12, 2005; or no longer apply 

when an owner or operator of an 

existing hazardous waste incineration 

unit demonstrates compliance with the 

maximum achievable control 

technology (MACT) requirements of part 

63, subpart EEE, of this chapter by 

conducting a comprehensive 

performance test and submitting to the 

Administrator a Notification of 

Compliance under §§ 63.1207(j) and 

63.1210(d) of this chapter documenting 

compliance with the requirements of 

part 63, subpart EEE, of this chapter. 

* * * 

* * * * * 

(5) The particulate matter standard of 

§ 264.343(c) remains in effect for 

incinerators that elect to comply with 

the alternative to the particulate matter 

standard of §§ 63.1206(b)(14) and 

63.1219(e) of this chapter. 

* * * * * 

PART 265—INTERIM STATUS 

STANDARDS FOR OWNERS AND 

OPERATORS OF HAZARDOUS WASTE 

TREATMENT, STORAGE, AND 

DISPOSAL FACILITIES 

■ 1. The authority citation for part 265 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6906, 6912, 

6922, 6923, 6924, 6925, 6935, 6936, and 

6937. 

■ 2. Section 265.340 is amended by 

revising paragraph (b)(1) to read as 

follows: 

§ 265.340 Applicability. 

* * * * * 

(b) * * * (1) Except as provided by 

paragraphs (b)(2) and (b)(3) of this 

section, the standards of this part no 

longer apply when an owner or operator 

59576 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

demonstrates compliance with the 

maximum achievable control 

technology (MACT) requirements of part 

63, subpart EEE, of this chapter by 

conducting a comprehensive 

performance test and submitting to the 

Administrator a Notification of 

Compliance under §§ 63.1207(j) and 

63.1210(d) of this chapter documenting 

compliance with the requirements of 

part 63, subpart EEE, of this chapter. 

* * * * * 

PART 266—STANDARDS FOR THE 

MANAGEMENT OF SPECIFIC 

HAZARDOUS WASTES AND SPECIFIC 

TYPES OF HAZARDOUS WASTE 

MANAGEMENT FACILITIES 

■ 1. The authority citation for part 266 

continues to read as follows: 

Authority: 42 U.S.C. 1006, 2002(a), 3001–

3009, 3014, 6905, 6906, 6912, 6921, 6922, 

6924–6927, 6934, and 6937. 

■ 2. Section 266.100 is amended by 

revising the first sentence of paragraph 

(b)(1) and adding paragraphs (b)(3) and 

(b)(4) to read as follows: 

§ 266.100 Applicability. 

* * * * * 

(b) * * * (1) Except as provided by 

paragraphs (b)(2), (b)(3), and (b)(4) of 

this section, the standards of this part 

do not apply to a new hazardous waste 

boiler or industrial furnace unit that 

becomes subject to RCRA permit 

requirements after October 12, 2005; or 

no longer apply when an owner or 

operator of an existing hazardous waste 

boiler or industrial furnace unit 

demonstrates compliance with the 

maximum achievable control 

technology (MACT) requirements of part 

63, subpart EEE, of this chapter by 

conducting a comprehensive 

performance test and submitting to the 

Administrator a Notification of 

Compliance under §§ 63.1207(j) and 

63.1210(d) of this chapter documenting 

compliance with the requirements of 

part 63, subpart EEE, of this chapter. 

* * * 

* * * * * 

(3) If you own or operate a boiler or 

hydrochloric acid production furnace 

that is an area source under § 63.2 of 

this chapter and you elect not to comply 

with the emission standards under 

§§ 63.1216, 63.1217, and 63.1218 of this 

chapter for particulate matter, 

semivolatile and low volatile metals, 

and total chlorine, you also remain 

subject to: 

(i) Section 266.105—Standards to 

control particulate matter; 

(ii) Section 266.106—Standards to 

control metals emissions, except for 

mercury; and 

(ii) Section 266.107—Standards to 

control hydrogen chloride and chlorine 

gas. 

(4) The particulate matter standard of 

§ 266.105 remains in effect for boilers 

that elect to comply with the alternative 

to the particulate matter standard under 

§§ 63.1216(e) and 63.1217(e) of this 

chapter. 

* * * * * 

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. 

■ 2. Section 270.6 is revised to read as 

follows: 

§ 270.6 References. 

(a) When used in part 270 of this 

chapter, the following publications are 

incorporated by reference. These 

incorporations by reference were 

approved by the Director of the Federal 

Register pursuant to 5 U.S.C. 552(a) and 

1 CFR part 51. These materials are 

incorporated as they exist on the date of 

approval and a notice of any change in 

these materials will be published in the 

Federal Register. Copies may be 

inspected at the Library, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., (3403T), 

Washington, DC 20460, 

libraryhq@epa.gov; or at the National 

Archives and Records Administration 

(NARA). For information on the 

availability of this material at NARA, 

call 202–741–6030, or go to: http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(b) The following materials are 

available for purchase from the National 

Technical Information Service (NTIS), 

5285 Port Royal Road, Springfield, VA 

22161, (703) 605–6000 or (800) 553–

6847; or for purchase from the 

Superintendent of Documents, U.S. 

Government Printing Office, 

Washington, DC 20402, (202) 512–1800: 

(1) ‘‘APTI Course 415: Control of 

Gaseous Emissions,’’ EPA Publication 

EPA–450/2–81–005, December 1981, 

IBR approved for §§ 270.24 and 270.25. 

(2) [Reserved]. 

■ 3. Section 270.10 is amended by 

adding paragraph (l) to read as follows: 

§ 270.10 General application requirements. 

* * * * * 

(l) If the Director concludes, based on 

one or more of the factors listed in 

paragraph (l)(1) of this section that 

compliance with the standards of 40 

CFR part 63, subpart EEE alone may not 

be protective of human health or the 

environment, the Director shall require 

the additional information or 

assessment(s) necessary to determine 

whether additional controls are 

necessary to ensure protection of human 

health and the environment. This 

includes information necessary to 

evaluate the potential risk to human 

health and/or the environment resulting 

from both direct and indirect exposure 

pathways. The Director may also require 

a permittee or applicant to provide 

information necessary to determine 

whether such an assessment(s) should 

be required. 

(1) The Director shall base the 

evaluation of whether compliance with 

the standards of 40 CFR part 63, subpart 

EEE alone is protective of human health 

or the environment on factors relevant 

to the potential risk from a hazardous 

waste combustion unit, including, as 

appropriate, any of the following 

factors: 

(i) Particular site-specific 

considerations such as proximity to 

receptors (such as schools, hospitals, 

nursing homes, day care centers, parks, 

community activity centers, or other 

potentially sensitive receptors), unique 

dispersion patterns, etc.; 

(ii) Identities and quantities of 

emissions of persistent, bioaccumulative 

or toxic pollutants considering 

enforceable controls in place to limit 

those pollutants; 

(iii) Identities and quantities of 

nondioxin products of incomplete 

combustion most likely to be emitted 

and to pose significant risk based on 

known toxicities (confirmation of which 

should be made through emissions 

testing); 

(iv) Identities and quantities of other 

off-site sources of pollutants in 

proximity of the facility that 

significantly influence interpretation of 

a facility-specific risk assessment; 

(v) Presence of significant ecological 

considerations, such as the proximity of 

a particularly sensitive ecological area; 

(vi) Volume and types of wastes, for 

example wastes containing highly toxic 

constituents; 

(vii) Other on-site sources of 

hazardous air pollutants that 

significantly influence interpretation of 

the risk posed by the operation of the 

source in question; 

(viii) Adequacy of any previously 

conducted risk assessment, given any 

subsequent changes in conditions likely 

to affect risk; and 

(ix) Such other factors as may be 

appropriate. 

(2) [Reserved] 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59577 

■ 4. Section 270.19 is amended by 

revising paragraph (e) to reads as 

follows: 

§ 270.19 Specific part B information 

requirements for incinerators. 

* * * * * 

(e) When an owner or operator of a 

hazardous waste incineration unit 

becomes subject to RCRA permit 

requirements after October 12, 2005, or 

when an owner or operator of an 

existing hazardous waste incineration 

unit demonstrates compliance with the 

air emission standards and limitations 

in part 63, subpart EEE, of this chapter 

(i.e., by conducting a comprehensive 

performance test and submitting a 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d) of this 

chapter documenting compliance with 

all applicable requirements of part 63, 

subpart EEE, of this chapter), the 

requirements of this section do not 

apply, except those provisions the 

Director determines are necessary to 

ensure compliance with §§ 264.345(a) 

and 264.345(c) of this chapter if you 

elect to comply with § 270.235(a)(1)(i) to 

minimize emissions of toxic compounds 

from startup, shutdown, and 

malfunction events. Nevertheless, the 

Director may apply the provisions of 

this section, on a case-by-case basis, for 

purposes of information collection in 

accordance with §§ 270.10(k), 270.10(l), 

270.32(b)(2), and 270.32(b)(3). 

■ 5. Section 270.22 is amended by 

revising the introductory text to read as 

follows: 

§ 270.22 Specific part B information 

requirements for boilers and industrial 

furnaces burning hazardous waste. 

When an owner or operator of a 

cement kiln, lightweight aggregate kiln, 

solid fuel boiler, liquid fuel boiler, or 

hydrochloric acid production furnace 

becomes subject to RCRA permit 

requirements after October 12, 2005, or 

when an owner or operator of an 

existing cement kiln, lightweight 

aggregate kiln, solid fuel boiler, liquid 

fuel boiler, or hydrochloric acid 

production furnace demonstrates 

compliance with the air emission 

standards and limitations in part 63, 

subpart EEE, of this chapter (i.e., by 

conducting a comprehensive 

performance test and submitting a 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d) of this 

chapter documenting compliance with 

all applicable requirements of part 63, 

subpart EEE, of this chapter), the 

requirements of this section do not 

apply. The requirements of this section 

do apply, however, if the Director 

determines certain provisions are 

necessary to ensure compliance with 

§§ 266.102(e)(1) and 266.102(e)(2)(iii) of 

this chapter if you elect to comply with 

§ 270.235(a)(1)(i) to minimize emissions 

of toxic compounds from startup, 

shutdown, and malfunction events; or if 

you are an area source and elect to 

comply with the §§ 266.105, 266.106, 

and 266.107 standards and associated 

requirements for particulate matter, 

hydrogen chloride and chlorine gas, and 

non-mercury metals; or the Director 

determines certain provisions apply, on 

a case-by-case basis, for purposes of 

information collection in accordance 

with §§ 270.10(k), 270.10(l), 

270.32(b)(2), and 270.32(b)(3). 

* * * * * 

■ 6. Section 270.24 is amended by 

revising paragraph (d)(3) to read as 

follows: 

§ 270.24 Specific part B information 

requirements for process vents. 

* * * * * 

(d) * * * 

(3) A design analysis, specifications, 

drawings, schematics, and piping and 

instrumentation diagrams based on the 

appropriate sections of ‘‘APTI Course 

415: Control of Gaseous Emissions’’

(incorporated by reference as specified 

in § 270.6) or other engineering texts 

acceptable to the Regional 

Administrator that present basic control 

device information. The design analysis 

shall address the vent stream 

characteristics and control device 

operation parameters as specified in 

§ 264.1035(b)(4)(iii). 

* * * * * 

■ 7. Section 270.25 is amended by 

revising paragraph (e)(3) to read as 

follows: 

§ 270.25 Specific part B information 

requirements for equipment. 

* * * * * 

(e) * * * 

(3) A design analysis, specifications, 

drawings, schematics, and piping and 

instrumentation diagrams based on the 

appropriate sections of ‘‘APTI Course 

415: Control of Gaseous Emissions’’

(incorporated by reference as specified 

in § 270.6) or other engineering texts 

acceptable to the Regional 

Administrator that present basic control 

device information. The design analysis 

shall address the vent stream 

characteristics and control device 

operation parameters as specified in 

§ 264.1035(b)(4)(iii). 

* * * * * 

■ 8. Section 270.32 is amended by 

adding paragraph (b)(3) to read as 

follows: 

§ 270.32 Establishing permit conditions. 

* * * * * 

(b) * * * 

(3) If, as the result of an assessment(s) 

or other information, the Administrator 

or Director determines that conditions 

are necessary in addition to those 

required under 40 CFR parts 63, subpart 

EEE, 264 or 266 to ensure protection of 

human health and the environment, he 

shall include those terms and 

conditions in a RCRA permit for a 

hazardous waste combustion unit. 

* * * * * 

■ 9. Section 270.42 is amended by: 

■ a. Revising paragraph (j)(1). 

■ b. Redesignating paragraph (j)(2) as 

(j)(3). 

■ c. Adding new paragraph (j)(2). 

■ d. Adding new paragraph (k); and 

■ e. Adding a new entry 10 in numerical 

order in the table under section L of 

Appendix I. 

The revisions and additions read as 

follows: 

§ 270.42 Permit modification at the request 

of the permittee. 

* * * * * 

(j) * * * 

(1) Facility owners or operators must 

have complied with the Notification of 

Intent to Comply (NIC) requirements of 

40 CFR 63.1210 that were in effect prior 

to October 11, 2000, (See 40 CFR part 

63 §§ 63.1200–63.1499 revised as of July 

1, 2000) in order to request a permit 

modification under this section for the 

purpose of technology changes needed 

to meet the standards under 40 CFR 

63.1203, 63.1204, and 63.1205. 

(2) Facility owners or operators must 

comply with the Notification of Intent to 

Comply (NIC) requirements of 40 CFR 

63.1210(b) and 63.1212(a) before a 

permit modification can be requested 

under this section for the purpose of 

technology changes needed to meet the 

40 CFR 63.1215, 63.1216, 63.1217, 

63.1218, 63.1219, 63.1220, and 63.1221 

standards promulgated on October 12, 

2005. 

* * * * * 

(k) Waiver of RCRA permit conditions 

in support of transition to the part 63 

MACT standards. (1) You may request 

to have specific RCRA operating and 

emissions limits waived by submitting a 

Class 1 permit modification request 

under Appendix I of this section, 

section L(10). You must: 

(i) Identify the specific RCRA permit 

operating and emissions limits which 

you are requesting to waive; 

(ii) Provide an explanation of why the 

changes are necessary in order to 

minimize or eliminate conflicts between 

the RCRA permit and MACT 

compliance; and 

59578 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 

(iii) Discuss how the revised 

provisions will be sufficiently 

protective. 

(iv) The Director shall approve or 

deny the request within 30 days of 

receipt of the request. The Director may, 

as his or her discretion, extend this 30 

day deadline one time for up to 30 days 

by notifying the facility owner or 

operator. 

(2) To request this modification in 

conjunction with MACT performance 

testing where permit limits may only be 

waived during actual test events and 

pretesting, as defined under 40 CFR 

63.1207(h)(2)(i) and (ii), for an aggregate 

time not to exceed 720 hours of 

operation (renewable at the discretion of 

the Administrator) you must: 

(i) Submit your modification request 

to the Director at the same time you 

submit your test plans to the 

Administrator; and 

(ii) The Director may elect to approve 

or deny the request continent upon 

approval of the test plans. 

* * * * * 

Appendix I to § 270.42—Classification 

of Permit Modification 

Modifications Class 

* * * * * * * 

L. * * * ................................................................................................................................................................................................................ 1 1 

10. Changes to RCRA permit provisions needed to support transition to 40 CFR part 63 (Subpart EEE—National Emission Standards for 

Hazardous Air Pollutants From Hazardous Waste Combustors), provided the procedures of § 270.42(k) are followed..

* * * * * * * 

1 Class 1 modifications requiring prior Agency approval. 

* * * * * 

■ 10. Section 270.62 is amended by 

revising the introductory text to read as 

follows: 

§ 270.62 Hazardous waste incinerator 

permits. 

When an owner or operator of a 

hazardous waste incineration unit 

becomes subject to RCRA permit 

requirements after October 12, 2005, or 

when an owner or operator of an 

existing hazardous waste incineration 

unit demonstrates compliance with the 

air emission standards and limitations 

in part 63, subpart EEE, of this chapter 

(i.e., by conducting a comprehensive 

performance test and submitting a 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d) of this 

chapter documenting compliance with 

all applicable requirements of part 63, 

subpart EEE, of this chapter), the 

requirements of this section do not 

apply, except those provisions the 

Director determines are necessary to 

ensure compliance with §§ 264.345(a) 

and 264.345(c) of this chapter if you 

elect to comply with § 270.235(a)(1)(i) to 

minimize emissions of toxic compounds 

from startup, shutdown, and 

malfunction events. Nevertheless, the 

Director may apply the provisions of 

this section, on a case-by-case basis, for 

purposes of information collection in 

accordance with §§ 270.10(k), 270.10(l), 

270.32(b)(2), and 270.32(b)(3). 

* * * * * 

■ 11. Section 270.66 is amended by 

revising the introductory text to read as 

follows: 

§ 270.66 Permits for boilers and industrial 

furnaces burning hazardous waste. 

When an owner or operator of a 

cement kiln, lightweight aggregate kiln, 

solid fuel boiler, liquid fuel boiler, or 

hydrochloric acid production furnace 

becomes subject to RCRA permit 

requirements after October 12, 2005 or 

when an owner or operator of an 

existing cement kiln, lightweight 

aggregate kiln, solid fuel boiler, liquid 

fuel boiler, or hydrochloric acid 

production furnace demonstrates 

compliance with the air emission 

standards and limitations in part 63, 

subpart EEE, of this chapter (i.e., by 

conducting a comprehensive 

performance test and submitting a 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d) of this 

chapter documenting compliance with 

all applicable requirements of part 63, 

subpart EEE, of this chapter), the 

requirements of this section do not 

apply. The requirements of this section 

do apply, however, if the Director 

determines certain provisions are 

necessary to ensure compliance with 

§§ 266.102(e)(1) and 266.102(e)(2)(iii) of 

this chapter if you elect to comply with 

§ 270.235(a)(1)(i) to minimize emissions 

of toxic compounds from startup, 

shutdown, and malfunction events; or if 

you are an area source and elect to 

comply with the §§ 266.105, 266.106, 

and 266.107 standards and associated 

requirements for particulate matter, 

hydrogen chloride and chlorine gas, and 

non-mercury metals; or the Director 

determines certain provisions apply, on 

a case-by-case basis, for purposes of 

information collection in accordance 

with §§ 270.10(k), 270.10(l), 

270.32(b)(2), and 270.32(b)(3). 

* * * * * 

■ 12. Section 270.235 is amended by: 

■ a. Revising the section heading and 

paragraphs (a)(1) introductory text and 

(a)(2) introductory text. 

■ b. Revising paragraphs (b)(1) 

introductory text and (b)(2). 

■ c. Adding new paragraph (c). 

The revisions read as follows: 

* * * * * 

§ 270.235 Options for incinerators, cement 

kilns, lightweight aggregate kilns, solid fuel 

boilers, liquid fuel boilers and hydrochloric 

acid production furnaces to minimize 

emissions from startup, shutdown, and 

malfunction events. 

(a) * * * (1) Revisions to permit 

conditions after documenting 

compliance with MACT. The owner or 

operator of a RCRA-permitted 

incinerator, cement kiln, lightweight 

aggregate kiln, solid fuel boiler, liquid 

fuel boiler, or hydrochloric acid 

production furnace may request that the 

Director address permit conditions that 

minimize emissions from startup, 

shutdown, and malfunction events 

under any of the following options 

when requesting removal of permit 

conditions that are no longer applicable 

according to §§ 264.340(b) and 

266.100(b) of this chapter: 

* * * * * 

(2) Addressing permit conditions 

upon permit reissuance. The owner or 

operator of an incinerator, cement kiln, 

lightweight aggregate kiln, solid fuel 

boiler, liquid fuel boiler, or 

hydrochloric acid production furnace 

that has conducted a comprehensive 

performance test and submitted to the 

Administrator a Notification of 

Compliance documenting compliance 

with the standards of part 63, subpart 

EEE, of this chapter may request in the 

application to reissue the permit for the 

combustion unit that the Director 

control emissions from startup, 

Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Rules and Regulations 59579 

shutdown, and malfunction events 

under any of the following options: 

* * * * * 

(b) * * * (1) Interim status 

operations. In compliance with 

§§ 265.340 and 266.100(b), the owner or 

operator of an incinerator, cement kiln, 

lightweight aggregate kiln, solid fuel 

boiler, liquid fuel boiler, or 

hydrochloric acid production furnace 

that is operating under the interim 

status standards of part 265 or 266 of 

this chapter may control emissions of 

toxic compounds during startup, 

shutdown, and malfunction events 

under either of the following options 

after conducting a comprehensive 

performance test and submitting to the 

Administrator a Notification of 

Compliance documenting compliance 

with the standards of part 63, subpart 

EEE, of this chapter. 

* * * * * 

(2) Operations under a subsequent 

RCRA permit. When an owner or 

operator of an incinerator, cement kiln, 

lightweight aggregate kiln, solid fuel 

boiler, liquid fuel boiler, or 

hydrochloric acid production furnace 

that is operating under the interim 

status standards of parts 265 or 266 of 

this chapter submits a RCRA permit 

application, the owner or operator may 

request that the Director control 

emissions from startup, shutdown, and 

malfunction events under any of the 

options provided by paragraphs (a)(2)(i), 

(a)(2)(ii), or (a)(2)(iii) of this section. 

(c) New units. Hazardous waste 

incinerator, cement kiln, lightweight 

aggregate kiln, solid fuel boiler, liquid 

fuel boiler, or hydrochloric acid 

production furnace units that become 

subject to RCRA permit requirements 

after October 12, 2005 must control 

emissions of toxic compounds during 

startup, shutdown, and malfunction 

events under either of the following 

options: 

(1) Comply with the requirements 

specified in § 63.1206(c)(2) of this 

chapter; or 

(2) Request to include in the RCRA 

permit, conditions that ensure 

emissions of toxic compounds are 

minimized from startup, shutdown, and 

malfunction events, including releases 

from emergency safety vents, based on 

review of information including the 

source’s startup, shutdown, and 

malfunction plan and design. The 

director will specify that these permit 

conditions apply only when the facility 

is operating under its startup, 

shutdown, and malfunction plan. 

PART 271—REQUIREMENTS FOR 

AUTHORIZATION OF STATE 

HAZARDOUS WASTE PROGRAMS 

■ 1. The authority citation for part 271 

continues to read as follows: 

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

6926. 

■ 2. Section 271.1(j) is amended by 

adding the following entries to Table 1 

in chronological order by date of 

publication in the Federal Register, to 

read as follows: 

§ 271.1 Purpose and scope. 

* * * * * 

(j) * * * 

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 

Promulgation date Title of Reglation Federal Register reference Effective date 

* * * * * * * 

Oct. 12, 2005 ................................ Standards for Hazardous Air Pollutants for Hazardous Waste 

Combustors.

[Insert FR page numbers] ............. Oct. 12, 2005. 

[FR Doc. 05–18824 Filed 10–11–05; 8:45 am] 

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