Friday
June 19, 1998
Part IV
Environmental
Protection Agency
40 CFR Parts 63, 261, and 270
Hazardous Waste Combustors; Revised
Standards; Final Rule
3378
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Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 63,261, and 270
[EPA F-98-RCSF-FFFFF; FRL-6110-3]
RIN 2050-AE01
Hazardous Waste Combustors;
Revised Standards; Final Rule—Part 1:
RCRA Comparable Fuel Exclusion;
Permit Modifications for Hazardous
Waste Combustion Units; Notification
of intent To Comply; Waste
Minimization and Pollution Prevention
Criteria for Compliance Extensions
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: On April 19, 1996, EPA
proposed revisions for air emission
standards for certain hazardous waste
combustion units. Today's rule finalizes
some elements of that proposal. These
elements include a conditional
exclusion from RCRA for fuels which
are produced from a hazardous waste,
but which are comparable to some
currently used fossil fuels; a new RCRA
permit modification provision which is
intended to make it easier for facilities
to make changes to their existing RCRA
permits when adding air pollution
control equipment or making other
changes in equipment or operation
needed to comply with the upcoming
air emission standards; notification
requirements for sources which intend
to comply with the final rule; and
allowances for extensions to the
compliance period to promote the
installation of cost effective pollution
prevention technologies to replace or
supplement emission control
technologies for meeting the emission
standards.
EFFECTIVE DATE: This rule is effective on
June 19,1998.
ADDRESSES: The public docket for this
rulemaking is available for public
inspection at EPA's RCRA Docket,
located at Crystal Gateway. First Floor,
1235 Jefferson Davis Highway,
Arlington. Virginia. The regulatory
docket for this final rule contains a
number of background materials. To
obtain a list of these items, contact the
RCRA Docket at 703-603-9230 and
request the list of references in EPA
Docket SF-98-RCSF-FFFFF.
FOR FURTHER INFORMATION CONTACT: The
RCRA Hotline between 9:00 a.m.-6:00
p.m. EST, at 800-424-9346 (toll-free);
703-412-9810 (from Government
phones or if in the Washington, D.C.
local calling area); or 800-553-7672 (for
the hearing impaired). For more detailed
information on specific aspects of the
rulemaking, contact Mary Jo Krolewski
on the comparable fuel exclusion at
(703) 308-7754, Tricia Buzzell on
permit modifications at (703) 308-8632,
James Lounsbury on waste
minimization and pollution prevention
at (703) 308-8463, David Hockey on the
notification of intent to comply at (703)
308-8846, or by writing, to U.S.
Environmental Protection Agency,
Office of Solid Waste, Permits and State
Programs Division, 401 M St., S.W.
(Mailcode 5303W), Washington, D.C.
20460.
SUPPLEMENTARY INFORMATION: This rule
is available on the Internet. Please
follow these instructions to access the
rule electronically:
From the World Wide Web (WWW),
type either
http://www.epa.gov/epaoswer/
hazwaste/combust/fastrack.
EPA's "Pollution Prevention Facility
Planning Guide" (May, 1992; NTIS
#PB92-213206) describes the series of
analytical steps that are often used by
companies to identify waste •
minimization measures. Additional EPA
references include: "Waste
Minimization Opportunity Assessment
Manual (EPA 625/7-88/003, July 1988),
Interim Final "Guidance to Hazardous
Waste Generators on the Elements of a
Waste Minimization Program In Place,"
(May 1993), "An Introduction to
Environmental Accounting As a
Business Management Tool" (EPA 742-
R-95-001, June 1995), the "P2/Finance
User's Manual: Pollution Prevention
Financial Analysis and Cost Evaluation
System for Lotus 1-2-3 (EPA 742-B-
94-003, January 1994), and
EnviroSense, an electronic library of
information on pollution prevention,
technical assistance, and environmental
compliance. Many of these and other
documents can be accessed by
contacting the RCRA Hotline toll-free at
1-800-424-9346. EnviroSense can be
accessed by contacting a system
operator at (703) 908-2007, or on the
Internet at http://wastenot.inel.gov/
enviro-sense. Information on State waste
minimization programs can be obtained
through EnviroSense, directly from the
State pollution prevention program
offices, or from the National Pollution
Prevention Roundtable at E-mail
address 75152.1416@compuserve.com,
by phone at 202-466-7272 in
Washington, D.C.
The official record for this action is
kept in a paper format. Accordingly,
EPA has transferred all electronic
comments received into paper form and
placed them into the official record,
with all the comments received in
writing. The official record is
maintained at the address in the
ADDRESSES section at the beginning of
this document.
EPA's responses to comments have
been incorporated in a "Response to
Comments" document, which has been
placed into the official record for this
rulemaking. The major comments and
responses are discussed in the Response
to Comment sections of this preamble.
The contents of today's preamble are
listed in the following outline:
I. Authority
II. Scope of Final Rule
III. Comparable Fuels Exclusion
A. EPA's Approach to Establishing
Benchmark Constituent Levels
1. The Benchmark Approach
2. Selection of the Benchmark Fuels
B. Options for the Benchmark Approach
1. Selection of Percentile Level
2. Composite v. Individual Specifications
C. Parameters for the Comparable Fuel
Specification
1. Physical Specifications
2. General Constituent Specifications
3. Individual Hazardous Constituent
Specifications
D. Parameters for the Synthesis Gas Fuel
Exclusion
1. Physical Specifications
2. General Constituent Specifications
3. Individual Hazardous Constituent
Specifications
E. Meeting the Comparable Fuel
Specifications
1. Potential Applicability of Today's Rule
to Specific Waste Codes
2. General
3. Blending
4. Treatment
F. Meeting the Syngas Fuel Specifications
G. Sampling and Analysis
1. Use of Process Knowledge
2. Waste Analysis Plan
3. Methods to Analyze Comparable Fuels
4. Syngas Waste Analysis Plan and
Analysis Methods
5. Non-detects
H. Notification, Certification, and
Documentation
1. Who Must Make the Exclusion
Notification
2. Notification Requirements
I. Exclusion Status
J. Recordkeeping
1. General
2. Off-site Shipment
K. Transportation and Storage
L. Comparable Fuels Exclusion and Waste
Minimization
1. Introduction
2. Major Concerns of Commenters
IV. RCRA Permit Modifications for
Hazardous Waste Combustion Units
A. Introduction
B. Overview
1. Background on RCRA Permit
Modification Procedures
2. Shortcomings of the Current Procedures
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3. How Today's Rule Impacts the
Procedures
C. Discussion of RCRA Permit Modification
Procedures for Facilities Coming Into
Compliance With MACT Requirements
1. Summary of Proposed Options
2. Summary of Public Comments
3. Response to Comments and Discussion
of Final Provisions
D. Summary of Public Comments
E. Response to Comments
F. RCRA Changes in Interim Status
Procedures
V. Notification of Intent to Comply and
Progress Report
A. Background
B. Summary of Final Provisions
C. Discussion of Public Comments and Final
NIC Provisions
1. General
2. Purpose of the NIC
3. Timing
4. NIC Meeting
5. Relation Between NIC and Other
Notification Requirements
D. Discussion of Public Comments and
Progress Report
1. Overview
2. Summary of Progress Report
Requirements
E. Certification
F. Extension of the Compliance Date
G. Sources Which Become Affected After the
Effective Date of This Subpart
VI. Waste Minimization and Pollution
Prevention
A. Overview
B. Background
C. Summary of Proposed Pollution
Prevention/Waste Minimization
Incentives and Comments Received
D. Waste Minimization Incentives Contained
in Today's Rule
VII. State Authority
A. RCRA State Authorization
B. Program Delegation under the Clean Air
Act
VIII. Administrative Requirements/
Compliance With Executive Order
A. Regulatory Impact Analysis Under
Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates
IX. Submission to Congress and the General
Accounting Office
X. Environmental Justice
A. Applicability of Executive Order 12898
B. Potential Effects
XI. Children's Health
XII. National Technology Transfer and
Advancement Act
I. Authority
These regulations are being finalized
under the authority of sections 1004,
1006, 2002, 3001, 3004, 3005, and 7004
of the Solid Waste Disposal Act of 1965,
as amended, including amendments by
the Resource Conservation and
Recovery Act.
II. Scope of the Final Rule
On April 19, 1996, EPA proposed
rules to control emissions of HAPs from
hazardous waste-burning incinerators,
cement kilns, and light weight aggregate
kilns. (61 FR 17358) After promulgation
of the proposal, the Agency issued the
following notices of data availability
(NODA): NODA 1 (Peer review and -
Comparable fuels)—August 23, 1996: 61
FR 43501; NODA 2 (Revised emissions
database)—January 7, 1997: 62 FR 960;
Continuous Emissions Monitoring
Systems (CF,MS) NODA—March 21,
1997: 62 FR 13775; NODA 3 (MACT
standards and implementation)—May 2,
1997: 62 FR 24212; and NODA 4
(Comparable fuels data)—September 9,
1997: 62 FR 47402.
Today's final rule addresses four
elements of the April 19, 1996 (61 FR
17358) proposal to revise the standards
for hazardous waste combustors. The
remaining issues of the proposal will be
addressed in final rules in the near
future.
III. Comparable Fuels Exclusion
Under this final rule, EPA is
excluding from the regulatory definition
of solid waste hazardous waste-derived
fuels that meet specification levels
comparable to fossil fuels for
concentrations of hazardous
constituents and for physical properties
that affect burning.1 The exclusion
would apply to the comparable fuel
from the point it is generated and would
be claimed by the person generating the
comparable fuel (which person can
include a hazardous waste treater). With
respect to the fuels, generators of the
comparable fuel would have to comply
with sampling and analysis, notification
and certification, and recordkeeping
requirements in order for their fuels to
be excluded. The exclusion potentially
applies to gaseous and liquid hazardous
waste-derived fuels. However, this
exclusion does not apply to solids or to
used oil, which is subject to special
standards under 40 CFR Part 279.
Today's rule is consistent with EPA's
goal to develop a comparable fuel
specification which is of use to the
regulated community but assures that an
excluded waste-derived fuel is similar
in composition to commercially
available fuel and therefore poses no
greater risk than burning fossil fuel.
Accordingly, EPA is using a
1 We note that DOW Chemical Company (Dow) in
a petition to the Administrator, dated August 10,
1995, specifically requested that the Agency
develop a generic exclusion for "materials that are
burned for energy recovery in on-site boilers which
do not exceed the levels of fossil fuel
constituents* * *." (Petition, at p.3). This final rule
also responds to that petition.
"benchmark approach" to identify a
specification that would ensure that
constituent concentrations and physical
properties of excluded waste-derived
fuel are comparable to those of fossil
fuels.
The rationale for the Agency's
approach is that if a hazardous waste-
derived fuel is comparable to a fossil
fuel in terms of hazardous and other key
constituents and has a heating value
indicative of a fuel, EPA has discretion
to classify such material as a fuel
product, not as a waste. Given that a
comparable fuel would have legitimate
energy value and the same hazardous
constituents in comparable
concentrations to those in fossil fuel
(and satisfies other parameters related to
comparability as well), classifying such
material as a fuel product and not as a
waste promotes RCRA's resource
recovery goals without creating any risk
greater than those posed by the
commonly used commercial fuels.
Under these circumstances, EPA can
permissibly classify a comparable fuel
as a non-waste. See 46 FR 44971
(Augusts, 1981) (exemptionfrom
Subtitle C regulation for spent pickle
liquor used as a wastewater treatment
agent in part because of its similarity in
composition to the commercial acids
that would be used in its place); 50 FR
49180, 49181, 49183 (November 29,
1985) (explanation of a similar type of
benchmark approach in establishing
used oil fuel specification); 53 FR at
31164 (August 18, 1988) (exemption for
certain hazardous waste-derived
fertilizers due to similarity to the
commercial fertilizers that would be
used in their place).
Put another way, EPA can reasonably
determine that a material which is a
legitimate fuel and which contains
hazardous constituents at levels
comparable to fossil fuels is not being
"discarded" within the meaning of
RCRA section 1004 (27). "Discarded"
itself is an ambiguous term, see
American Petroleum Inst. v. EPA, 906 F.
2d 729, 741 (D.C. Cir. 1990). EPA's
interpretation that hazardous waste-
derived fuels which are comparable to
fossil fuels need not be considered to be
"discarded" serves the statutory
objective of encouraging resource
recovery. RCRA section 1003 (a) (10). In
addition, burning of such fuels does not
present the element of discarding
hazardous constituents through
combustion that underlies the typical
classification of hazardous waste-
derived fuels as a solid waste. 50 Fed.
Reg. at 629-630 (Jan. 4, 1985). This is
because, as noted, hazardous
constituent concentration levels are
comparable to those in fossil fuels.
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The case law further makes clear that
EPA may classify secondary materials as
"discarded" based, at least in part, upon
whether such materials may be
considered part of the waste
management problem. American Mining
Congress v. EPA. 907 F. 2d 1179,1186
(D.C. Cir. 1990). Today's rule contains
conditions to assure that burning of
comparable fuels will not become part
of the waste management problem. The
chief condition is limitation on burning
to industrial furnaces (as defined in 260.
10), industrial and utility boilers, and
hazardous waste incinerators. Another
condition prevents specification limits
for hazardous constituents being
achieved by means of dilution, so that
the total volume of hazardous
constituents emitted from burning
comparable fuels would remain
comparable to those from burning fossil
fuels. The rule also contains notification
and record keeping conditions which
assure that the fuels meet the
specification and will be burned in the
requisite type of unit, and that this can
be verified objectively by third persons.
EPA notes that today's final rule is
consistent with the main approach
discussed in the Dow petition (see
footnote 1 above), which also points out
a number of benefits that would result
from promulgating this type of
exclusion: (1) Support for the statutory
goal of promoting beneficial energy
recovery and resource conservation; (2)
reduction of unnecessary regulatory
burden and allowing all parties to focus
resources on higher permitting and
regulatory priorities; and (3)
demonstration of a common-sense
approach to regulation. Dow's petition
contained data on the chemical and
physical aspects of the fuel for which
the petition was submitted. Based on
these data and additional data
submitted during the comment period,
it appears that the waste petitioned for
exclusion by Dow meets the individual
physical and chemical comparable fuel
specifications set forth in this rule.
Today's rule does not exclude Dow's
wastestreams or other wastestreams for
which commenters submitted data that
may meet the specifications of the final
rule. It remains the responsibility of the
generator to comply with the
specifications of the comparable fuel
exclusion stipulated by the State RCRA
implementing authority.
A. EPA's Approach to Establishing
Benchmark Constituent Levels
1. The Benchmark Approach
EPA considered using risk to human
health and the environment as the way
to determine the scope and levels of a
"clean fuels" specification. However,
the Agency encountered several
technical and implementation problems
using a purely risk-based approach to
develop a national rule. Specifically,
EPA has insufficient data relating to the
types of waste burned and the risks they
pose to develop a fully protective and
complete "clean fuels" exemption. EPA
also does not have sufficient data to
determine the relationship between the
amount of "clean fuel" burned and
emissions, especially of dioxins and
other non-dioxin PICs. EPA also does
not know how emissions (likely
uncontrolled) at the multitude of actual
facilities that would burn an excluded
fuel would compare to emissions from
the example facilities that EPA would
use to derive a "clean fuel"
specification. (Emissions and/or risks at
a given facility could be higher than
those of the example facilities given
site-specific considerations.) Without
considering all reasonable, possible
emission scenarios, which is not
feasible for the Agency .at this time, the
Agency is not prepared today to address
these potential risks2.
The Chemical Manufacturers
Association (CMA) submitted a proposal
to exempt certain "clean" liquid wastes
from RCRA regulation. (61 FR at 17469)
Unlike EPA's benchmark-based
comparable fuel approach, the CMA
approach would establish "clean fuel"
specifications for mercury, LVM, and
SVM metals based on the technology-
based MACT emissions standards
proposed for hazardous waste
combustors on April 19, 1996. As just
discussed above, EPA is concerned
about using risk to establish a "clean
fuel" specification. EPA does not have
data available documenting that
emissions from burning a "clean fuel"
would not pose a significant risk for the
potential combustion and management
scenarios in which the clean fuel
exclusion from RCRA might be used.
Therefore, EPA will not be adopting
CMA's proposal in today's rule, but may
address aspects of the CMA concept in
future actions if appropriate and
feasible.
The Agency instead developed a
comparable fuel specification, based on
the level of hazardous and other
constituents normally found in fossil
2 It is possible to determine on an individual basis
that particular waste-derived fuel should be
excluded from RCRA on risk-based grounds. See 63
FR at 18533 (April 15. 1998) where EPA finalized
such an exclusion for a waste fuel which could be
generated by the pulp and paper industry. However.
EPA cautions that making such a demonstration is
difficult (because of potential uncertainties
regarding combustion conditions and exposure
patterns) and resource-intensive for the Agency to
evaluate, and would still involve rulemaking.
fuels. EPA refers to this as the
benchmark approach. For this approach,
EPA set a comparable fuel specification
such that concentrations of hazardous
constituents in the comparable fuel
could be no greater than the
concentration of hazardous constituents
normally occurring in commercial fossil
fuels. Thus, EPA expects that the
comparable fuel would pose no greater
risk when burned than a fossil fuel and
would at the same time be physically
comparable to a fossil fuel, leading to
the conclusion that EPA may classify
these materials as products, not wastes.
See proposal for more details (61 FR
17460, April 19, 1996).
Some commenters argued that by
using a benchmark approach, EPA had
failed to assess potential risks to human
health and the environment resulting
from the exclusion. Commenters argued
that EPA cannot determine that there
are no adverse risks by the comparison
to fossil fuels. EPA disagrees with
commenters conclusions concerning the
need to determine absolute risk. In this
final rule, EPA is setting a comparable
fuel specification with concentrations of
hazardous constituents no greater than
the concentrations of hazardous
constituents occurring in fossil fuels.
Thus, EPA reasonably expects—based
on the methodology used to establish
the specification—that the comparable
fuel will pose no greater risk when
burned than a fossil fuel and
concomitant energy recovery benefits
will be realized from reusing the waste
to displace fossil fuels. The Agency
concludes it has discretion in exercising
jurisdiction over hazardous waste-
derived fuels that are essentially the
same as fossil fuel, since there would
likely not be environmental benefits
from regulating those hazardous waste-
derived fuels (i.e., burners would likely
just choose to burn fossil fuels). Indeed,
as explained below, many commercial
fuels could be less "clean" than the
comparable fuels, so that substitution of
some commercial fuels could be a net
deterrent. See 50 FR at 49186
(November 29, 1985) where EPA
discussed similar considerations when
developing a specification for used oil
fuel. See also discussion above as to
why such fuels need not be considered
to be "discarded". EPA has therefore
decided not to regulate comparable
hazardous waste-derived fuels meeting
the benchmark specifications as
hazardous waste under RCRA.
Furthermore, the Agency notes that
the comparable fuel exclusion
promulgated today is the first phase in
addressing the "clean fuels" issue.
Although EPA has identified problems
with commenters' alternatives, there is
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room for further expansion of the
comparable or clean fuel concept. EPA
will continue to work with the regulated
community to identify areas to expand
the approach taken in today's final
rulemaking.
2. Selection of the Benchmark Fuels
Since commercially available fossil
fuels are diverse, EPA considered a
range of fuels upon which to base its
benchmark fuel selection. Available
fuels ranged from gases, such as natural
gas and propane, to liquids (such as
gasoline and fuel oils) to solids (such as
coal, coke, and peat). The Agency
proposed a benchmark based on liquid
fossil fuels (gasoline, No.2 fuel oil, and
No.6 fuel oil). (61 FR at 17462)
Commenters argued that EPA should
consider solid fossil fuels in developing
the benchmark specifications.
Commenters believe that materials such
as coal are fuels that are widely used
throughout the U.S. and failing to
consider these materials ignores
legitimate fuels used by certain
industries. EPA disagrees with
commenters' requests to include solid
fossil fuels in its benchmark
specification. From an environmental
standpoint, the comparable fuel
specification, which would exclude a
hazardous waste-derived fuel from
RCRA subtitle C regulation, should not
be based on fossil fuels that have high
levels of toxic constituents that will not
be destroyed or detoxified by burning
(e.g., metals and halogens). Data show
that solid fossil fuels have
comparatively higher metal3 and
possibly halogen levels than liquid
fossil fuels4. Metals and halogens are
not destroyed in the combustion process
unlike organic constituents which are
commonly destroyed or detoxified
through combustion. Comparison with
this type of fuel could easily result in a
least common denominator approach
whereby a hazardous waste-derived fuel
would be "comparable" if it was no
more dangerous to burn than the most
contaminated fossil fuels. Such
"comparability" is not congruent with
the overall objective of RCRA to protect
human health and the environment and
is inconsistent with the specific
directive to regulate combustion of
hazardous waste-derived fuels where
necessary to protect human health and
3 A smaller fraction of metals in coal partitions to
emissions than for liquid fuels. Given that most
potentially comparable fuels are liquids, allowing
metals at the concentrations present in coal could
result in substantially higher metals emissions.
4 For further discussion see USEPA. "Final
Technical Support Document for HWC MACT
Standards. Development of Comparable Fuels
Specifications". May 1998.
the environment. (RCRA section
3004 (q)). Thus, while EPA has chosen to
use a benchmark rather than a risk-
based approach, the Agency has chosen
benchmark fuels that, in general, have
lower contaminant levels for
constituents that are not destroyed.
Therefore, in today's rule, EPA is not
using solid fossil fuels as part of the
comparative benchmark.
EPA also will not be using a gas fuels
as benchmarks. Basing the comparable
fuel specification on a gas fuel would be
overly conservative and have no utility
to the regulated industry. (The reader
should note that EPA is promulgating an
exclusion for a particular type of
hazardous waste-derived fuel, namely a
type of synthesis gas ("syngas") meeting
particular specifications (see Section D
below). This hazardous waste derived
gas can be used as a fuel and an
exclusion provides beneficial resource
recovery.) Liquid fuels, on the other
hand, are widely used by industry,
readily combusted, and do not present
the inconsistencies of solid or gaseous
fuels. Simply put, the Agency, in
assessing comparability, is not required
to base a specification on either the
most or least contaminated fossil fuels,
but may reasonably choose a median, in
this case, representative fuel oils. In this
final rule, EPA is selecting only liquid
fuels for its benchmark fuel
specification.
With regard to liquid fuels,
commenters argued that EPA should
consider as benchmark fuels non-
petroleum liquid based fuels such as
turpentine and tall oil. One commenter
recommended that EPA identify
turpentine as a benchmark fuel because
it has a very high Btu value and is used
as a fuel (and a manufacturing
feedstock) both within and outside the
forest products industry. Another
commenter pointed out that tall oil is
not only used in commerce as a
traditional fuel, but that EPA has
previously noted that tall oil is a
legitimate non-waste fuel under the BIF
rule low risk waiver exemption (LRWE)
and DRE trial burn exemptions (56 FR
7193, February 21, 1991).
While EPA is interested in
establishing a broad-based benchmark of
liquid fuels, EPA disagrees that
turpentine should be included in the
benchmark specification. Turpentine is
not a widely used commercial fuel.
There are no ASTM standards for
turpentine fuel which-specify the
minimum properties which must be met
for the product to be considered as a
commercial fuel. By contrast, there are
ASTM specifications for each of the
petroleum fossil fuels EPA is using as a
benchmark.
EPA does agree with the commenter
that tall oil is used in commerce as a
traditional fuel and could be used as a
benchmark fuel. At the time of the
proposal, EPA had no data on tall oil.
The commenter did submit one set of
data that EPA was unable to use because
it did not meet EPA data quality
standards. Therefore, at this time, EPA
will not include tall oil in its benchmark
fuels.
Finally, some commenters did not
support the use of gasoline for setting
comparable fuel specifications, because
it is not typically utilized in industrial
boilers and furnaces. Gasoline is
typically limited used in internal
combustion engines, and the commenter
did not anticipate that industry or
individuals will utilize hazardous
waste-derived fuels in automobiles,
trucks and buses. EPA disagrees that
gasoline should be excluded as one of
the benchmark fuels. The Agency notes
that gasoline is a widely used,
commercially available, liquid fuel and
EPA does not believe that our selection
is necessarily limited to fuel burned in
boilers or industrial furnaces. EPA has
chosen its benchmark fuels so that the
resulting comparable fuel when
substituted would have hazardous
constituents lower than the fuel it
replaces. However, because the
comparable fuel will not be substituted
for use in gasoline applications (the
exclusion is restricted to air regulated
stationary combustion units, see Section
H below), the rationale for the inclusion
of gasoline differs. The Agency believes
that gasoline provides a reasonable
upper boundary for volatile organics,
which are fuel-worthy constituents. The
Agency notes that unlike some solid
fuels, gasoline has low concentrations of
metals. When compared to lighter fuel
oils (e.g., No. 2 fuel oil), the gasoline
specification has higher specifications
for only the detected volatile organics,
which are readily burnable compounds.
B. Options for the Benchmark Approach
At proposal, EPA presented several
options for deciding what fossil fuel(s)
data to use as the benchmark. The
options range from developing a suite of
comparable fuel specifications based on
individual benchmark fuels (i.e.,
gasoline. No. 2, No. 4, No. 6) to basing
the specification on composite values
derived from the analysis of all
benchmark fuels. (61 FRat 17643).
EPA took comment on individual
benchmark fuel specifications based on
gasoline, No. 2, and No. 6 fuel oil, using
the 90th percentile values for the basis
of the individual specifications. Under
this approach, individual fuel
specification (s) could be implemented
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in one of two ways. First, a facility
could use any of the individual
benchmark specifications, without
regard to what fuel it currently burns.
The second approach is to link the
comparable fuel specification to the
type of fuel burned at the facility and
being displaced by the comparable fuel.
Under a composite fuel benchmark
approach, EPA took comment on using:
(1) The 90th percentile aggregate values
for the benchmark fuels; and (2) the
50th percentile aggregate values for the
benchmark fuels. (61 FR at 17643).
1. Selection of Percentile Level
To calculate benchmark
specifications, EPA obtained 27 fossil
fuel samples, comprised of eight
gasoline, eleven No. 2, one No. 4, and
seven No. 6 fuel oil samples. Due to the
small sample sizes of each fuel type,
EPA initially used a nonparametric rank
order statistical approach to analyze the
fuel data. Rank order involved ordering
the data for each constituent from
lowest to highest concentration,
assigning each data point a percentile
value from lowest to highest percentile,
respectively. Results were then
calculated from the data percentiles.
Because there were different numbers of
samples for each fuel type, EPA was
concerned that the fuel with the largest
number of samples would dominate the
composite database. To address this
issue, EPA's statistical analysis
"normalized" the number of samples,
i.e., treated each fuel type in the
composite equally without regard to the
number of samples taken.5 See
Kennecottv. EPA, 780 F.2d 445, 457
(4th Cir. 1985) (upholding this statistical
methodology). The fuel samples were
weighted equally because this weighting
reflects the fact that benchmark fuels
can be used interchangeably in
stationary combustion units. In
addition, as noted in the next section,
equal weighting prevented over-
estimation of either metals and semi-
volatiles in No. 6 fuel oil or volatiles in
the higher end fractions.
One commenter argued that EPA's
proposed constituent-by-constituent
i For the gasoline sample analysis, the resulting
detection limits for volatile organic compounds
were an order of magnitude higher than the other
fuel specifications. EPA believes analysis of
comparable fuels will more likely result in
detection limits much lower than gasoline and
similar to those associated with analysis of fuel oils.
To address this issue. EPA has performed an
analysis of a fuel oil-only composite (one which
docs not include gasoline in the composite) to use
is a surrogate for the volatile organic gasoline non-
dctect values. Therefore, the volatile organic
gasoline non-detect values used in the development
of the composite and individual gasoline
specification were based on this fuel oil-only
composite.
comparison approach is flawed because
it ignores the compounding effect of
joint probability. The commenter has
examined the rank order statistics
technique EPA used and has concluded
that the percentile values for the
individual constituents must be set
higher for all of them to meet the overall
percentile value simultaneously. For
example, a candidate comparable fuel
taken from the same reservoir as a
benchmark fuel would, because of
random variability in constituent
concentrations, have a 23 percent
chance of "failing" a comparison to a
benchmark (at the 90th percentile) that
has 14 constituents above the detection
limits. Thus the commenter argued that
the proposed constituent-by-constituent
comparison would have little utility to
the regulated community.
While EPA believes there is some
interdependence among individual
constituents and that the principle of
joint probability cannot be strictly
applied, EPA is inclined to agree with
the commenter. At the time of proposal,
EPA believed that a 50th percentile
analysis represented a midpoint of
potential benchmark fuels that were
studied. EPA also believed that a 90th
percentile analysis represented a
reasonable upper bound of what is
found in all fuels capturing variability
both with each fuel category and in the
case of the composite approach,
between categories. However, when the
individual fuel samples were compared
to the benchmark specifications, EPA
found that at the 50th percentile
composite none of the virgin fuel
samples met the specification and at the
90th percentile composite only 40
percent met the specification. This
appears to confirm the commenter's
concern over joint probability, and
reflects on the degree to which the
comparable fuels exclusion would
actually be useable. It was EPA's goal to
base the comparable fuel specifications
on the 99th percentile, a level near
which 90 percent of EPA's individual
fuel samples would meet the
specification. However, the size of the
data base precluded the calculating of a
99th percentile constituent
specification. Therefore, in this case, the
Agency used the largest measured value
to approximate an upper percentile. In
the future, EPA may choose alternative
methods of evaluating any new data that
may be submitted suggesting that these
specifications need to be modified. After
re-calculating the specification taking
joint probability into account, the
composite at the largest value more
closely represents what EPA intended to
propose with the 90th percentile, a
reasonable upper bound that is also
useable in practice. The 90th percentile
closely represents what EPA intended
with the proposed 50th percentile, i.e.,
a midpoint.
Some commenters did support the
50th percentile because they argued it
was more protective. The majority of
commenters supported the 90th
percentile and some commenters argued
for the use of a higher percentile, i.e.,
95th or 99th. Because none of EPA's
own fuel samples meet this
specification, the 50th percentile is
overly conservative. If EPA selected the
50th percentile, comparable fuels would
have to be "cleaner" than all
commercial liquid fuels (or at least all
of those in the Agency's current
database), which would greatly restrict
the utility of the provision. Also, with
such a strict approach, additional
quantities of virgin oils with higher
contaminant levels would be burned,
leading to greater emissions than if a
higher percentile was chosen. Therefore,
EPA agrees with commenters that a
higher percentile better reflects the
liquid fossil fuels burned nationally and
is a better benchmark.
After considering the issue of joint
probability, EPA has decided to
promulgate a composite specification
based on the largest measured value to
approximate what 90 percent of
individual benchmark fuels are likely to
meet. This approach has the virtue of
being representative of a range of fuels
that are burned nationally in
combustion devices.
Based on the proposal, EPA had the
option of choosing between an
individual fuel specification approach
and a composite approach. The majority
of commenters supported using the
composite specification plus the suite of
individual fuel specifications that could
be used irrespective of the fuel
displaced.
The composite approach has
advantages over the individual fuel
specification approach. One issue
associated with the single fuel
specification approach is that gasoline
has relatively higher levels of volatile
organic compounds while No. 6 fuel oil
has higher levels of semi-volatile
organic compounds and metals. If a
potential comparable fuel were to have
a volatile organic constituent
concentration below the gasoline
specification but higher than the others
and a particular metal concentration
lower than the No. 6 fuel oil
specification but higher than gasoline, it
would not be a comparable fuel since it
meets no single specification entirely.
Therefore, EPA is concerned that
establishing specifications under this
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33787
option would significantly limit the
utility of the exclusion without any
obvious advantage in terms of the
technical basis of the specifications
themselves.
Compositing all the fuels has the
advantage that it may better reflect the
range of fuel choices and potential for
fuel-switching available nationally to
burners. A facility would be allowed to
use the composite fuel specification
regardless of which fuel(s) it burns. In
addition, the composite well represents
the constituent makeup of liquid fossil
fuels currently burned nationally.
Because allowing individual
specifications would unnecessarily
complicate the Agency's
implementation oversight, EPA has
decided not to allow the individual
specifications as an alternative.
Furthermore, EPA notes that because it
has chosen to promulgate constituent
standards for comparable fuels based on
the largest measured value, the
composite approach will provide
industry with greater flexibility in using
the exclusion. A composite specification
provides a simpler regulatory
framework, which would facilitate
implementation of the exclusion.
Therefore, in this final rule, EPA is
promulgating a composite specification
for comparable fuels.
C. Parameters for the Comparable Fuel
Specification
Using the benchmark approach
discussed above, EPA is promulgating a
set of technical specifications. The
specifications address the following6:
(1) Physical specifications:
—Heating value (BTU/lb);
—Kinematic viscosity (centistokes, cs,
as-fired),
(2) General constituent specifications
for:
—Total Halogens (ppmw, expressed as
Cl)
—Nitrogen, total (ppmw), and
(3) Individual hazardous constituent
specifications, for:
—Individual Metals (ppmw),
—Individual Appendix VIII Toxic
Organics (ppmw)
The constituent specifications and
heating value would apply to both gases
and liquids. The kinematic viscosity
would not apply to gases. (See Section
D, below, which discusses synthesis
gases specifically.)
1. Physical Specifications
a. Heating Value. The Agency is
concerned with the acceptability of the
potential fuel and wants to ensure that
comparable fuels have a legitimate use
as a fuel. As discussed below, the
comparable fuels exclusion only applies
to waste fuels that are ultimately
burned. In addition, the Agency has
relied on a heating value of 5,000 Btu/
Ibm (11,500 J/g) as a reasonable heating
value specification for determining if a
waste is being burned for energy
recovery; that is, wastes with this Btu
value or higher are considered to be
burned for energy recovery. (See
§266.103(c)(2)(ii). 50 FR at 49173n.24
(November 29, 1985)).? This type of
minimum Btu value specification is
appropriate here as well as for the
overall fuel (note that this is a different
issue than finding the .appropriate Btu
value by which to correctly determine if
the individual constituent specifications
are being met, discussed below). EPA is
thus setting a 5,000 Btu/lbm limit today
as a minimum heating value for a
comparable fuel to ensure that
comparable fuels are in fact legitimate
fuels. See § 261.38(a)(l)(i).
b. Kinematic viscosity. Viscosity is an
important specification to help ensure
that a comparable fuel is as readily
burnable as the benchmark fuel.
Viscosity is important to the proper
atomization and feed to the burning
device and is an important design
specification of the burner assembly.
EPA proposed two options for setting a
viscosity specification: (1) Using a value
derived from the analyses EPA
conducted; or (2) using the ASTM
viscosity specification for fuel oil. (61
FR at 17465). Under the ASTM option
for the composite fuel viscosity
specification, EPA took comment on
using the second highest ASTM
viscosity specification. This would have
the effect of not considering the
extremes, viscosity of No. 6 fuel oil
(50.0 cs at 100°C) and using as the
specification the viscosity of No. 4 fuel
oil(24.0csat40°C).
Given the choice of EPA-derived
viscosity values and ASTM values, the
majority of commenters supported the
use of the ASTM physical specification
for viscosity. In addition, several
commenters argued that the viscosity
specification should apply at the point
(temperature) that the fuel is fired rather
than the point of generation.
Commenters pointed out that it is
common practice to reduce the as-fired
viscosity to promote good atomization
and combustion through blending with
less viscous fuels or by warming the fuel
6 Note that ppmw is an alternate way of
expressing the units mg/kg.
7 The 5.000 Btu/lb measure is not, however, an
unvarying measure of legitimate versus insufficient
energy recovery. See, e.g.. 48 FR at 1158 (March 16.
1983).
to above-ambient temperature before
firing. For example, while No. 6 fuel oil
has an elevated viscosity at ambient
conditions, it is typically stored and
fired at temperatures which promote
atomization and combustion.
EPA is persuaded by commenters that
basing our viscosity specification on No.
4 fuel oil would possibly limit
comparable fuels similar to No. 6 fuel
oil (one of the benchmark fuels) from
qualifying for the exclusion. EPA agrees
that the viscosity specification should
be based on ASTM standard for No. 6
fuel oil (50 cs at 100°C). The ASTM
standard represents the typical
temperature and viscosity at which No.6
fuel oil is fired. Thus, it is appropriate
for a comparable fuel, when fired, to
have the same viscosity as No. 6 fuel
when fired. This will allow for a
specification that is achievable for all
liquid fossil fuels.
Therefore, in this final rule, EPA is
promulgating a kinematic viscosity
specification of 50 cs, as-fired . The
specification for viscosity will only
pertain to non-gaseous fuels, because
gases are inherently less viscous than
liquids. See §261.38(a)(l)(ii).
c. Flashpoint (proposed, but not
promulgated). EPA proposed two
options for setting a minimum
flashpoint specification: (1) Using a
value derived from the analyses EPA
conducted; or (2) using the requirements
for flashpoint specified by ASTM.
Under the ASTM option for the
composite fuel flashpoint specification,
EPA took comment on using the second
lowest flash point as the specifications.
(61 FR at 17465). This would have the
effect of not considering the extremes,
flash point of gasoline (-42°C) and
using as the specification the flash point
of No. 2 fuel oil (38°C).
Several commenters opposed setting
specifications for flash point.
Commenters argued that DOT and
OSHA have developed and promulgated
regulations that control the hazards
such materials can pose. Commenters
also argued that the specification would
preclude burning materials that are
normally fuels such as methanol. EPA
agrees with commenters that DOT (49
CFR Parts 171 through 180) and OSHA
(29 CFR Part 1910) regulations
adequately address the transportation
and handing of low flashpoint material
and setting a flashpoint specification
under RCRA would be unnecessarily
redundant with no ostensible gain in
protectiveness. In addition, by limiting
the exclusion to units subject to
Federal/State/local air emission
requirements, comparable fuels will be
burned in units subject to OSHA
requirements. (See Section H, below,
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which discusses this requirement.)
Therefore, EPA is not establishing a
flashpoint specification for the final
rule.
2. General Constituent Specifications
In determining general constituent
specifications and in determining
individual hazardous constituent
specifications (see following
discussion), the Agency is concerned
with the overall environmental loading.
Comparable fuels could have lower
heating value than the fossil fuels they
would displace. In these situations,
more comparable fuel would be burned
to achieve the same heat input, with .the
result that more hazardous constituents
would be fired and emitted (e.g.,
halogenated organic compounds and
metals) than if fossil fuel were to be
burned. This would lead to greater
environmental loading of potentially
toxic substances, which is not in
keeping with the intent of the
comparable fuels exclusion nor with
RCRA's overall protectiveness goals.
To address environmental loading,
the approach used in this final rule is
to establish a minimum heating value
specification comparable to the BTU
content of the benchmark fossil fuel(s).
The Agency is establishing the
specification® for comparable fuels at a
heating value of 10,000 BTU/lb, which
is near to what liquid commercial fuels
contain.s EPA chose 10,000 BTU/lb
because it is typical of current
hazardous waste burned for energy
recovery.9 However, candidate
comparable fuels when generated
initially can have heating values very
different than 10,000 BTU/lb. Therefore,
under this final rule, when determining
whether a waste meets the comparable
fuel constituent specifications, a
generator must first correct the
constituent levels in the candidate
waste to a 10,000 BTU/lb heating value
basis prior to comparing them to the
comparable fuel specification tables. In
this way, a facility that burns a
comparable fuel would not be feeding
more total mass of hazardous
constituents than if it burned fossil
fuels.10
a. Specification Levels for
Halogenated Compounds. I. Summary.
For the final rule, EPA is using its
•Constituent levels presented In today's final rule
have been corrected from the fuel's heating value
(approximately 20.000 BTU/lb) to 10.000 BTU/lb.
"Consult USEPA. "Final Technical Support
Document for HWC MACT Standards. Development
of Comparable Fuels Specifications". May 1998.
'"Note that the heating value correction would
apply only to allowable constituent levels in fuels.
not to detection limits. Detection limits would not
be corrected for heating value.
composite benchmark approach to
establish a total halogen specification
and allowing compliance with a total
organic halogen limit in lieu of
complying with limits on individual
Appendix VIII halogenated compounds.
Therefore, a comparable fuels generator
would have the option of complying: (a)
with a total organic halogen
specification of 25 ppm plus the total
PCB specification or (b) with the all of
the individual Appendix VIII
specifications for halogen compounds.
In addition, in both cases, the generator
would also have to comply with the
total halogen limit (which includes both
organic and inorganic halogens) of 540
ppm and with a total PCB specification
(non-detect at a minimum required
detection limit of 1.4 ppm). See
§261.38(a)(2),Tablel.
Compliance with a total organic
halogen specification in lieu of limits on
individual halogenated compounds will
ensure that measurable levels of
halogenated compounds will be no
greater than in benchmark fuels. In
addition, the total organic halogen
specification will result in less sampling
and analysis costs. Finally, the total
halogen limit (both organic and
inorganic) will create a presumption
that halogenated products of incomplete
combustion (PICs) generated from
burning a comparable fuel will not be
emitted at higher levels than from
burning a benchmark fossil fuel.
ii. Total Halogen Rationale. Although
total halogens are not listed in
Appendix VIII, Part 261, EPA proposed
a total halogen specification to establish
a presumption that halogenated
products of incomplete combustion
(PICs) generated from burning a
comparable fuel would not be emitted at
higher levels than from burning a
benchmark fossil fuel. See proposal (61
FR at 17461) and subsequent notices of
data availability (61 FR 43502, August
23, 1996 and 61 FR 47402, September 9,
1997). PICs resulting from the burning
of halogenated organic compounds can
pose a particular hazard to human
health and the environment.1' Using the
benchmark approach, EPA proposed a
composite fuel total halogen limit of 25
ppm.
At the time of the proposal, EPA
intended to establish a total halogen
limit that included both organic and
inorganic halogens. However, the total
halogen data used by EPA in the
proposed rule for its No. 4 and No. 6
fuel oils were based on analytical
» For further discussion see USEPA. "Final
Technical Support Document for HWC MACT
Standards. Development of Comparable Fuels
Specifications". May 1998.
methods measuring only total organic
halogens, not both organic and
inorganic halogens. Commenters raised
concerns about including total halogen
data that did not include inorganic
halogens because it did not represent
typical halogen content found in
benchmark fuels. EPA was persuaded by
commenters' arguments and noticed
additional total halogen data gathered
from its own database (i.e.,
Certifications of Compliance (CoC)
required by the Boilers and Industrial
Furnace Rule) and data submitted by
one commenter. In addition, EPA will
continue to use its original gasoline and
No. 2 fuel oil halogen data, which
included both organic and inorganic
halogens. Using the additional data, the
total halogen specification would be 540
ppm for the composite benchmark data.
For further discussion, see NODA 61 FR
at 47402.
In response to EPA's NODA,
commenters argued that some of the
data should not be used to establish the
total halogen specification due to the
use of inappropriate analytic methods.
In particular, commenters believe that
CoC data from two facilities (Huntsman
Polypropylene Corporation and
American Cyanamid) should not be
included because the analytical method
used measured organic halogens only.
In addition, commenters believe that
CoC data from another facility (Dow
Chemical) should not be included
because the detection limit of the
method used to analyze for total
halogens (ASTM Standard D 808) is not
sensitive below 1000 ppm, and unless
some other, more sensitive analytical
method were followed afterward, the
method could not have been effective at
the levels reported. EPA is persuaded by
these commenters' arguments and has
excluded the data from these three
facilities from its halogen data set. Using
this revised data set, the total halogen
specification would be 540 ppm for the
composite benchmark data. For the final
rule, EPA is promulgating a total
halogen specification of 540 ppm.
In response to the initial proposal,
some commenters argued that EPA
should consider solid fuels like wood
and coal in the development of a total
halogen specification. As discussed
above, EPA has decided not to include
solid fuels in its benchmark
specification. Thus, EPA is not inclined
to consider using solid fuels to set one
of the specifications. Also, EPA is
concerned about the formation of
halogenated PICs from comparable fuels
containing halogens. At this time, EPA
has no data to support a conclusion that
the higher halogen levels in solid fuels
would not cause an increase in
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33789
halogenated PIC formation compared to
benchmark fuels.
The Agency also received comment
on an emissions-based equivalency
determination to qualify for the total
halogen specification. One commenter
argued that the Agency should consider
the commenter's candidate comparable
fuel as a comparable fuel even though
it cannot meet the comparable fuel
specification for total halogens. The
Agency considered the situation but, as
indicated in the September 9, 1997
NODA (62 FR at 47403), continues to
maintain that an emissions-based
equivalency determination to the
halogen specification on a national
regulatory basis would be inappropriate
and infeasible at this time.
In response to EPA's NODA, the
commenter argued that an equivalency
determination would not be
administratively complex and that it
could involve a demonstration by the
person applying for the equivalency
determination that the chemistry of the
fuel is such that it is incapable of
forming halogenated PICs. EPA is not
persuaded by the commenter's
arguments. For hydrocarbon-based
fuels, combustion conditions (such as
oxygen level, mixing, temperature, etc.)
will have an impact on non-chlorinated
and/or chlorinated PIC emissions.
Additionally, chlorine in both inorganic
and organic forms in the waste fuel can
contribute to chlorinated PIC emissions.
Dioxin/furans and other chlorinated
PICs have been detected from sources
burning both inorganic (e.g., salts) and/
or organic chloride (e.g., plastics)
containing wastes.12 Furthermore, if the
Agency were to develop an equivalency
determination for total halogens, the
implementation details needed in a
national regulation to ensure proper
combustion of halogenated wastes
would be numerous, including, for
example, provisions on burner operating
parameters, performance testing, and
monitoring. These details would almost
certainly result in a complicated
conditional exclusion from the
definition of solid waste that is viewed
as both potentially unworkable and very
difficult to implement on a national
basis.
Therefore, EPA is not inclined at this
time to consider developing any
national equivalency determination to
the total halogen specification. At some
future point, perhaps as the Agency's
understanding of cause-and-effect
relationships regarding emissions from a
12For further discussion see USEPA. "Final
Technical Support Document for HWC MACT
Standards. Development of Comparable Fuels
Specifications", May 1998.
wider variety of sources grows, EPA
may be able to address aspects of the
commenter's recommendations if
appropriate and feasible.
Hi. Total Organic Halogen Rationale.
As an additional part of its proposal,
EPA invited comment on whether a
total halogen specification could act as
a surrogate for limits on individual
halogenated compounds found in
Appendix VIII. In this case, EPA's
proposed limit of 25 ppm for total
organic halogens would act as the
surrogate for the individual halogenated
organics. Commenters supported the
surrogate approach and indicated that it
would reduce the testing and
recordkeeping costs on the regulated
community. EPA agrees that this
approach will simplify the comparable
fuels specification and possibly mean
fewer and less costly sampling and
analyses of comparable fuel streams for
generators.
However, some commenters raised
concerns that a total halogen analysis
will not be an effective screen for some
of the more hazardous halogenated
Appendix VIII constituents which could
constitute a potential risk at low
detection levels (e.g.,
tetrachlorodibenzo-p-dioxins). EPA
calculated the equivalent constituent
concentrations using the minimum
detection limit values for these
hazardous halogenated organics and
determined that the 25 ppm total
organic halogen limit will be an
effective screen for all of the chlorinated
dibenzofurans and chlorinated
dibenzodioxins (i.e., the tetra- through
octa-congeners). The minimum
detection limits calculated for these
congeners ranged from 30 to 150 ppm
and the 25 ppm organic halogen
specification will limit these congeners'
concentrations to below those minimum
detection limits. Additional factors in
this decision to use the 25 ppm halogen
limit as a screen for dioxins include the
following:
(1) In particular, waste codes F020,
F021, F022, F023, F026 and F028 have
been designated as "inherently waste-
like" under 40 CFR 261.2(d) and
therefore are not eligible for the
comparable fuel exclusion;
(2) Wastes listed because they contain
dioxins would also be expected to
contain significant levels of other
halogenated organics. (The reader
should note that the compounds in
question are typically formed from the
breakdown and reaction of other
halogenated organics.) The higher
concentrations of these other
halogenated organics would drive the
total organic halogen content of the
waste up and, thus, the contribution of
any chlorinated dibenzofurans and
dioxins would have to be significantly
less than the 25 ppm limit; and
(3) Waste codes expected to contain
significant levels of other halogenated
organics can be readily discerned from
their list descriptions in 40 CFR 261
Subpart D (e.g., F001 and F002 solvent
wastes are defined as halogenated
solvents; F024 includes waste from
production of halogenated organics.) In
addition. Appendix III to Part 268 lists
the halogenated organics typically
found in hazardous wastes and that are
subject to land disposal restrictions
under 40 CFR 268.32. By comparing
these, a person implementing today's
rule could easily determine the most
likely waste codes that could contain
halogenated organics in excess of the 25
ppm limit, and thus easily identify
wastes not eligible for the comparable
fuels exclusion. See also Section E
below for point of generation and
blending/treatment discussions.
Commenters are also concerned that
the use of a total organic halogen
surrogate will possibly mask illegal PCB
disposal. Since low analytical detection
limits for PCBs (i.e., 1.4 ppm) in the
benchmark fuel matrices have been
well-demonstrated, the 25 ppm total
organic halogen limit would not be a
sufficient screen. Since PCBs are
relatively common halogenated
contaminants in fuel-like wastes and the
probability of finding them is non-
trivial, EPA is keeping the limits on
PCBs to ensure levels no greater than
from benchmark fuels. EPA also points
out that there are several relatively
inexpensive analytical screening
methods that have been developed
specifically for the determination of
total PCBs.
With regard to analysis methodology,
commenters have indicated that the test
method (ASTM Method 4929) used by
EPA to analyze for organic halogens
may not be appropriate to analyze their
candidate comparable fuel. EPA
recognizes that the methods used in its
own analysis of the benchmark fuels
may not be appropriate for some
candidate comparable fuels. Thus, in
the final rule EPA is allowing the use of
alternate methods or modifications to
current methods that meet the
performance based criteria in section
§ 261.38(c)(7). It is the responsibility of
the generator to ensure that the
sampling and analysis is unbiased,
precise, and representative of the waste.
For further details, see Section G.
Sampling and Analysis, below.
b. Specification Levels for
Nitrogenated Compounds. Although
total nitrogen is not listed on Appendix
VIII, Part 261, EPA proposed a total
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nitrogen specification to ensure that
nitrogenated products of incomplete
combustion (PICs) from burning a
comparable fuel would not be emitted at
higher levels than from burning a
benchmark fossil fuel. See proposal (61
FR at 17462) and a subsequent notice of
data availability (61 FR 43502. August
23, 1996). PICs resulting from burning
nitrogenated organic compounds can
also pose a particular hazard to human
health and the environment.13
Commenters generally did not address
the issue of formation of nitrogenated
PICs. Instead, most commenters
disagreed with the need to establish a
specification for nitrogen under RCRA's
comparable fuel specification when this
pollutant (as NOx) is controlled under
the Clean Air Act (CAA). Commenters
argued that EPA has the authority under
the CAA to control certain criteria
pollutants, such as nitrogen oxides and,
in fact, has promulgated primary and
secondary National Ambient Air Quality
Standards (NAAQS) for oxides of
nitrogen. EPA believes that a total
nitrogen specification is necessary. The
counter-arguments advanced do not
address EPA's rationale for establishing
a total nitrogen limit. The CAA NAAQS
do not themselves ensure control of
individual combustion units in a
manner that prevents formation of
nitrogenated PICs, nor do they ensure
that a hazardous waste-derived fuel
would contain no greater amounts of
nitrogenated compounds than fossil
fuels. EPA is therefore establishing a
total nitrogen specification to ensure
that concentrations of nitrogenated PICs
in comparable fuels will be no greater
than in benchmark fuels.
As an additional part of its proposal,
similar to total halogens, EPA invited
comment on whether a total nitrogen
specification could act as a surrogate for
limits on individual nitrogenated
compounds found in Appendix VIE.
EPA believes that a surrogate approach
would simplify the comparable fuels
specification and possibly mean fewer
and less costly sampling and analyses of
comparable fuel streams for generators.
However, analysis of EPA's composite
data results in a total nitrogen
specification of 4,900 ppm. The
detection limits for EPA's analysis of
individual nitrogenated compounds in
its benchmark fuels ranged from 1 to
2200 ppm. Since detection limits for
nitrogenated compounds in the
benchmark fuels have been
demonstrated well below 4,900 ppm, a
"For further discussion see USEPA. "Final
Technical Support Document for HWC MACT
Standards. Development of Comparable Fuels
Specifications", May 1998.
total nitrogen specification would not be
a sufficient screen for individual
Appendix VIII nitrogenated compounds.
Therefore, for nitrogen compounds,
EPA is promulgating a total nitrogen
specification of 4,900 ppm with
individual Appendix VIII nitrogen
specifications. See §261.38(a)(2). Table
1. This approach ensures that levels of
individual nitrogenated compounds and
the total nitrogen concentration are no
greater than the benchmark fuels and
creates a presumption that
concentrations of nitrogenated PICs
from burning a comparable fuel are no
greater than burning a benchmark fuel.
3. Individual Hazardous Constituent
Specifications
To limit the Part 261, Appendix VIII
constituents in comparable fuels to
those found in benchmark fossil fuels,
the Agency calculated concentration
limits using the Agency's analysis of
individual benchmark fuel samples.
Where EPA did not detect a particular
Appendix VHI constituent in the
benchmark fuel, the Agency set the
constituent specification using one of
two approaches. For constituents that
the Agency did not detect and did not
have reason to believe would be present
in a benchmark fuel (e.g., halogenated
organics), the comparable fuel
specification is "non-detect" with an
associated, specified minimum required
detection limit for each compound. The
detection limit is a statistically-derived
level based on the quantification limit
determined for each sample. While
these constituents should not be
present, the Agency will allow non-
detects lower than the detection limits
that EPA was able to obtain. However,
EPA will not allow measured or
quantified results below the specified
minimum required detection limit
where "non-detect" is the comparable
fuel specification. For metals,
hydrocarbons, and oxygenates, the
Agency followed a different approach,
which is described below.
a. Individual CAA and Appendix VIII
Metals. EPA proposed concentration
levels or minimum required detection
limits for all CAA metals and RCRA
Appendix VIII metals (61 FR at 17460).
Commenters argued that the Agency
should modify its approach with respect
to non-detect levels and allow the
hazardous constituent to be present in
the comparable fuel up to the detection
limit. In particular, commenters argued
that metals are expected to be present in
petroleum products, resulting from the
formation process or the production
process, and, therefore, it is reasonable
to assume that non-detect metals in
EPA's benchmark analysis would be
present up to the detection limit. EPA
agrees that metals could be present in
fossil fuels but below EPA's detection
limits. Therefore, the final rule allows
metals to be present at any
concentration less than or equal to the
detection limits in EPA's analysis.
In addition, as proposed, EPA is
setting limits for two metals that are not
found on Part 261, Appendix VIII:
cobalt and manganese. EPA included
these metals in the analysis because
they are listed in the Clean Air Act as
hazardous air pollutants (HAPs). See
CAA, section 112(b) and proposal (61
FR at 17460). By including these metal
HAPs and the RCRA metals listed on
Appendix VIII, Part 261, the Agency
will ensure that the specification limits
all toxic metals of concern in hazardous
wastes to levels present in the
benchmark fossil fuels. Therefore, EPA
is promulgating constituent levels for
the all CAA metals and RCRA Appendix
VIII metals at the largest value
composite of EPA fossil fuel data. See
§261.38(a)(2),Tablel.
b. Individual Appendix VIII Toxic
Organics. EPA is promulgating
constituent levels or minimum required
detection limits for all Part 261,
Appendix VIII, toxic organic
constituents, unless otherwise noted.
See §261.38(a)(2). Table 1. Some
Appendix VIII compounds were not
analyzed because a routine analytical
method is not available. Because EPA
did not analyze for some compounds in
Appendix VIII, EPA will not be
promulgating standards for these
remaining Appendix VIII constituents.
These compounds are not listed in
today's specifications, and a comparable
fuel generator will not have to comply
with specifications for these
compounds. EPA believes it highly
unlikely that a hazardous waste-derived
fuel would contain only these
undetectable Appendix VIII
constituents.
i. Specification Levels for Undetected
Pure Hydrocarbons. EPA proposed
allowing pure hydrocarbons on
Appendix VIII to be present at any
concentration less than or equal to the
detection limits in EPA's analysis. Since
fossil fuels are comprised almost
entirely of pure hydrocarbons14 in
varying concentrations, it is possible
that many pure hydrocarbons in
Appendix VIII, Part 261, could be
present in fossil fuel but below
detection limits. These materials, which
include compounds such as
fluoranthene, might not even be
considered solid wastes when burned in
'^Excluding sulfur, carbon and hydrogen
comprise 99.6 to 100% of liquid fossil fuels.
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33791
their pure carbon form since they are
themselves products. See
§261.2(c)(2)(ii), and see proposal (61 FR
at 17461).
Some commenters argued that no
comparable fuels specifications should
be established for pure hydrocarbon
compounds because pure hydrocarbons
will burn cleanly. EPA disagrees for the
purpose of today's rule because
establishing no limits for Appendix VIII
hydrocarbons would depart from the
basic comparable benchmark approach
and even relatively clean-burning
compounds may produce some toxic
emissions. EPA's analysis confirms that
these compounds are not present in the
benchmark fuels above the minimum
detection limits. However, it is
reasonable to assume that the "non-
detect" pure hydrocarbons could in fact
be present in fossil fuels up to the
detection limit since fossil fuels are
comprised entirely of pure
hydrocarbons. Therefore, the final rule
allows hydrocarbons in Appendix VIII
to be present at any concentration less
than or equal to the detection limits in
EPA's analysis. See §261.38(a)(2). Table
Some commenters argued that
toluene, a typical fuel component,
should be allowed without limitation in
comparable fuels. As discussed above
for all hydrocarbons, EPA disagrees
with not establishing any limits on
toluene, or establishing a different
specification not based on fuel data,
because this would depart from the
comparable benchmark approach. EPA
has established the toluene specification
at the fuel data-based concentration
found in its benchmark fuel analysis.
However, because toluene can be a fuel
component, setting a different data-
based specification for toluene may be
warranted at some point in the future,
and therefore EPA will continue to
remain open to considering further
action.
if. Specification Levels for Undetected
Oxygenates. In addition to the pure
hydrocarbon compounds, EPA invited
comment on whether oxygenates should
be allowed up to the detection limits in
EPA's analysis and on what would be an
appropriate minimum oxygen-to-carbon
ratio to identify an oxygenate. (61 FR at
17461). Oxygenates are organic
compounds comprised solely of
hydrogen, carbon, and oxygen and can
serve as fuels or fuel additives.
Examples of oxygenates (not in
Appendix VIII and thus not RCRA
regulated) include alcohols such as
ethanol, and ethers such as methyl tert-
butyl ether (MTBE). Appendix VIII
oxygenates are not routinely found in
fossil fuels and only a few oxygenates
were detected in EPA's sampling and
analysis program.
Several commenters supported
allowing oxygenates at any
concentration less than or equal to the
detection limit but also argued that EPA
should go a step further and set no
specification limits for oxygenated
compounds. Commenters argued that
oxygenates (like isobutyl alcohol) burn
well and promote good combustion of
other constituents in a fuel. Again, for
the purpose of today's rule, EPA
disagrees with not establishing any
limits on oxygenates because this would
depart from the basic comparable
benchmark approach. EPA's analysis
confirms that these compounds are not
present in the benchmark fuel above the
minimum detection limits and
establishing a specification without fuel
data containing oxygenates would
depart from the comparable fuel
approach. Furthermore, oxygenates are
listed on Appendix VIII for their toxicily
and in particular, one group of organic
oxygenates, organic peroxides, can be
extremely hazardous to manage.
However, since most oxygenates burn
well and are not likely to produce
significant PICs, EPA will allow these
compounds at any concentration less
than or equal to the detection limits
found in EPA's analysis.
EPA notes that the Clean Air Act
provides for the use of some oxygenates
(like isobutyl alcohol) as additives in
unleaded gasoline and it may be
appropriate to consider their use in a
comparable fuel. However, at the time of
this final rulemaking, EPA had no fuel
data in which these oxygenates were
used as gasoline additives and thus was
not able to set a specification different
than in today's final rule. As discussed
above, any approach without using fuel
data would depart from the comparable
fuel approach. However, setting data-
based specifications for certain
oxygenates may be warranted at some
point in the future, and therefore EPA
will continue to remain open to
considering further action.
With regard to a minimum oxygen-to-
carbon ratio to define an oxygenate, one
commenter recommended defining
oxygenates simply as aliphatic
compounds comprised of carbon,
hydrogen, and oxygen. If EPA was
intent on defining an oxygen-to-carbon
ratio, other commenters recommended a
ratio of 0.266, which is the ratio for
MTBE. Defining an oxygenate with a
minimum oxygen-to-carbon ratio or
limiting the definition to only aliphatics
is more conservative than necessary.
Instead, EPA is defining an oxygenate as
any compound comprised solely of
hydrogen, carbon, and oxygen.
In summary, the final rule allows
oxygenates, defined as any compound
comprised solely of hydrogen, carbon,
and oxygen, at any concentration less
than or equal to the detection limits in
EPA's analysis. See §261.38(a)(2), Table
D. Parameters for the Synthesis Gas Fuel
Exclusion
In today's final rule, EPA is also
excluding from the regulatory definition
of solid waste (and, therefore regulation
as hazardous waste) a particular type of
hazardous waste-derived fuel, namely a
type of synthesis gas ("syngas") fuel
meeting particular specifications. The
exclusion applies to syngas that results
from the thermal reaction of hazardous
wastes by a process designed to generate
both hydrogen gas (H2) and carbon
monoxide (CO) as usable fuel. See
proposal (61 FR at 17465).
Some commenters stated that
synthesis gas fuels are beyond EPA's
regulatory authority because they are
uncontained gases. EPA has broad
statutory authority to regulate fuels
produced from hazardous wastes. RCRA
section 3004 (q) (1); see also Horsehead
Resource Development Co. v. Browner
16 F. 3d 1246, 1262 (D.C. Cir. 1994)
(broadly construing this authority). The
fact that syngas (by definition) is a gas,
rather than a solid or liquid, does not
appear to raise jurisdictional issues. It is
still produced from the hazardous
wastes that are being processed
thermally. See §261. 2 (c) (2) (A) and (B)
(defining such materials as solid
wastes). EPA believes its authority to be
clear under these provisions.
EPA also received a number of
comments from persons operating
synthetic gasification processes within
the petroleum industry. These '
comments also argued that the Agency
was without legal authority to regulate
the fuel output of these processes even
if the processes use hazardous waste as
a feed material. The Agency has in fact
adjudicated the status under existing
regulations of such a unit, indicating
that while both the process and the fuel
output are within RCRA subtitle C
jurisdiction, the process is a type of
exempt recycling unit under 40 CFR
261.6(c)(l) and the fuel is also exempt
under § 261.6 (a) (3). Letter of Michael
Shapiro (Director of Office of Solid
Waste) to William Spratlin (Director
RCRA Division EPA Region VII) (May
25,1995).
Upon reflection, it appears that these
petroleum gasification operations may
be similar to other within-petroleum
industry recycling activities that EPA
has proposed to exclude from Subtitle C
jurisdiction in the petroleum listing rule
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Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
proposed on November 20,1995. 60 FR
57747. It therefore appears more
appropriate to consider this overall
jurisdictional issue in the context of that
rulemaking. However. EPA is not at this
time limiting the synthetic gas fuel
exclusion insofar as it potentially
applies to the output of gasification
operations conducted as part of normal
petroleum refining (SIC Code 2911).
Thus, these syngas fuels can also be
eligible for the exclusion in today's rule.
To ensure that any excluded
hazardous waste-derived syngas
contains low levels of hazardous
compounds relative to levels in fossil
fuels, the Agency is setting a series of
syngas specifications addressing:
(1) physical specifications:
—Minimum Btu value (Btu/scf);
(2) general constituent specifications
for:
—Total halogen (ppmv)
—Total nitrogen (ppmv)
—Hydrogen Sulfide (ppmv)
(3) individual hazardous constituent
specifications, for:
—Individual Appendix Vm constituents
(ppmv)
1. Physical Specifications
a. Minimum Btu value. Like the
comparable fuel specification, EPA
proposed that syngas fuel have a
minimum Btu value of 5.000 Btu/lb.
Commenters had several concerns with
this specification. First, commenters
noted that the heating value of a gas is
almost universally measured in units of
Btu per unit volume ("scf). Second,
commenters argued that due to the
efficiencies of combustion, a gas can be
used as a fuel even though its heating
value, when expressed in terms of Btu
per pound, is less than 5000.
Commenters argued that using fuels
with significantly higher Btu per scf
could actually degrade efficiency of gas
turbine electric generation systems and
increase air emissions. For example,
syngas with a heating value of 5000 Btu
per pound would have to be diluted to
reduce its heating value to enable a
combustion turbine to meet NOx
emission limits. Furthermore,
commenters argued that in many
potential applications, syngas produced
from hazardous waste would be used as
a substitute for syngas produced from
fossil fuels or syngas produced from
non-hazardous secondary materials.
Syngas produced from coal, coke, and
certain types of secondary materials,
with heating values less than 5000 Btu
per pound (when expressed in these
terms), are currently used as fuels.
EPA agrees with commenters'
concerns with regard to the heating
value of syngas. To set an appropriate
heating value, EPA investigated the
heating values of syngas currently
manufactured for use as a fuel.15 For
fuel usage related purposes, syngas is
classified as either medium- or low-Btu
gases (medium-Btu generally being
produced with pure oxygen, low-Btu
generally with air). Medium-Btu syngas
generated from the gasification of fuels
(including coal, fuel oil, biomass,
municipal solid wastes, plastics, etc.)
with pure oxygen typically has heating
values from 200 to 400 Btu/scf.
Medium-Btu syngas can typically be
used as a fuel for power production in
a gas turbine. Low-Btu syngas generated
from the gasification of fuels with air
has heating values from about 100 to
200 Btu/scf. In most cases, low-Btu
syngas does not achieve temperature
and expansion ratios needed for
thermodynamically efficient power
generation. Low-Btu syngas is usually
mixed with higher energy sources and is
not generally desired for most
applications. However, EPA notes that
there are certain specifically designed
gas turbines (with very large "silo"
combustion chambers) that can handle
very low-Btu (100 Btu/scf) syngases for
power generation. Thus, a heating value
of 100 Btu/scf is reasonable for syngas
because it represents fuels used as
legitimate energy sources. Therefore,
EPA is establishing a minimum Btu
value of 100 Btu/scf for synthesis gas.
See§261.38(b)(l).
2. General Constituent Specifications
a. Total Halogen Specification. As
proposed, EPA is promulgating a total
halogen specification for synthesis gas
fuels of less than 1 ppmv. Like
comparable fuels, EPA is establishing a
total halogen specification to limit the
formation of halogenated PICs from the
burning of the hazardous waste-derived
syngas fuel. EPA has looked at syngas
manufactured from non-hazardous
waste sources, such as coal, and
concludes that 1 ppmv is a reasonable
specification for total halogen for a
synthesis gas fuel. See §261.38(b)(2).
b. Total Nitrogen Specification. EPA
proposed a total nitrogen specification
of less than 1 ppmv of total nitrogen,
other than diatomic nitrogen (N2). Like
comparable fuels, EPA was concerned
about the formation of nitrogenated PICs
from the nitrogen contained in the
hazardous waste-derived syngas fuel.
Commenters argued that regardless of
whether nitrogen is present in the
syngas, when syngas is burned, NO,
NO2 and NOx will always form, as
nitrogen present in the air combines
with oxygen in the syngas, the air or
both. In addition, commenters argued
that the Agency or authorized states
already regulate the emissions of these
air pollutants through the issuance of air
permits. Furthermore, commenters
argued that nitrogen in the syngas
would not lead to the formation of PICs.
EPA disagrees with the commenters
that a total nitrogen specification is
unnecessary and believes that the
comments did not address EPA's
rationale for a total nitrogen limit. EPA
is establishing a total nitrogen
specification to limit the formation of
nitrogenated PICs. Diatomic nitrogen is
not included in a total nitrogen
specification because only organic-
bound nitrogen compounds are
expected to form PICs. However, a total
nitrogen specification based on syngas
used as a fuel is a more appropriate
specification. EPA has looked at syngas
currently manufactured for use as a fuel
to establish a total nitrogen
specification. Nitrogen compounds in
syngas (other than N2) are mostly in the
form of HCN or NH3. Syngas
manufactured from coal can have HCN
and NH3 levels of 100 to 300 ppmv.'s A
total nitrogen specification of 300 ppmv
would ensure that concentrations of
nitrogenated PICs in waste-derived
syngas will be no greater than syngas
manufactured from coal. Therefore, in
today's final rule, EPA is promulgating
a total nitrogen specification of 300
ppmv, other than diatomic nitrogen (Nj)
for synthesis gas fuel. See §261.38(b)(3).
c. Hydrogen Sulfide Specification.
EPA proposed a hydrogen sulfide (PfeS)
specification of 10 ppmv for syngas
fuels. Commenters argued that the HzS
specification is not necessary because
the Clean Air Act has specifications that
restrict the amount of sulfur that can be
emitted by sources that would likely
burn syngas fuel (i.e., boilers,
combustion turbines). In addition,
commenters argued that the potential of
facilities that burn syngas as a fuel to
emit sulfur compounds is low in
comparison to facilities burning fossil
fuels. For example, facilities that
produce power by burning syngas
produced from the gasification of coal
emit approximately one-fifth of the level
of sulfur compounds emitted by similar
facilities burning coal.
EPA disagrees with the commenters
that no hydrogen sulfide specification
''For further discussion see USEPA, "Final
Technical Support Document for HWC MACT
Standards. Development of Comparable Fuels
Specifications", May 1998.
I'For further discussion see USEPA. "Final
Technical Support Document for HWC MACT Rule,
Development of Comparable Fuels Specifications".
May 1998.
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33793
should be promulgated. EPA is
establishing the syngas exclusion by
limiting Part 261 Appendix VIII
constituents, one of which is hydrogen
sulfide. However, a more appropriate
specification would be based on current
applications where syngas is used as a
fuel, rather than the proposed
specification of 10 ppmv. To set an
appropriate hydrogen sulfide
specification, EPA investigated the
hydrogen sulfide levels in syngases
currently manufactured from non-
hazardous waste sources for use as a
fuel.
The sulfur content of the material
used to produce the syngas is converted
to almost entirely H2S in the gasification
process, with smaller amounts of
carbonyl sulfide (COS). Syngas
produced from low sulfur content
material does not contain appreciable
H2S. The H2S content of high sulfur
coal-based syngas can be over 1000
ppmv. However, in these cases, HzS is
removed during the gasification process.
The amount of H2S removal is
dependent on how the syngas will be
used. In the case of syngas used for
chemical feedstock, the H2S removal
can be to a level under 1 ppmv. For the
case of syngas used for fuel, H2S
removal can range to levels between 50
and 200 ppmv (above 200 ppmv leads
to corrosion of down stream gas
handling equipment, such as turbine
blades.17 Thus, 200 ppmv represents the
level of H2S in gas currently used in
applications where syngas is used as a
fuel. Therefore, in this final rule, EPA is
promulgating a H2S specification of 200
ppmv for synthesis gas fuels. See
§ 261.38(b)(4). EPA further notes that
H2S removal is considered as part of the
gasification process and a syngas
generator is required to meet the H>S
specification after this removal process.
3. Individual Hazardous Constituent
Specifications
As proposed, EPA is promulgating
specifications of less than 1 ppmv for
each hazardous constituent listed in
Appendix VIII of part 261 (that could
reasonably be expected to be in the gas).
Having received no comments to the
contrary, this a reasonable specification
for Appendix VHI constituents in a
synthesis gas fuel. See §261.38(b)(5).
Since EPA is promulgating a total
halogen specification for syngas and
since this specification ensures that the
excluded syngas has less than 1 ppmv
of individual halogenated compounds, a
."For further discussion see USEPA. "Final
Technical Support Document for HWC MACT Rule,
Development of Comparable Fuels Specifications"
May 1998.
syngas generator would not be expected
to analyze for the individual
halogenated compounds in Appendix
VIII. However, a syngas generator would
be expected to analyze for the
individual nitrogenated compounds in
Appendix VIII since a total nitrogen
specification of 300 ppmv would not
ensure that individual nitrogenated
compounds would be limited to 1
ppmv. In addition, a syngas generator
would be expected to analyze for the
Appendix VIII constituents identified in
the comparable fuels specification. See
§ 261.38 (a) (2) Table 1.
E. Meeting the Comparable Fuel
Specifications
1. Potential Applicability of Today's
Rule to Specific Waste Codes
The probability of today's rule being
applicable to any specific hazardous
waste is highly dependent upon the
waste codes assigned to that waste as
well as the industry generating the
waste. In developing the Land Disposal
Restrictions (40 CFR part 268) and in
developing the listings of hazardous
wastes (40 CFR part 261), the majority
of the listed hazardous wastes were
analyzed for concentrations of specific
hazardous constituents. .EPA has already
determined that the majority of listed
hazardous wastes (i.e., those having
codes beginning with "F", "K", "U" or
"P") are known to contain at least one
of the hazardous constituents that are
restricted by today's rule to "non-
detect" levels. Appendix VII to Part 261
provides a partial list of hazardous
constituents that are known to be
present in each Listed Waste code, and
the Treatment Standards for Hazardous
Wastes (40 CFR 268.40) indicate
constituents (and concentrations) that
are specifically regulated for land
disposal for each waste code. The
majority of these constituents and waste
codes are restricted to "non-detect"
levels in today's rule and so a potential
comparable fuel containing these
constituents either could not be used, or
would have to be treated so that the
hazardous constituents are removed or
destroyed to non-detect levels. See
treatment discussion below. Section E.4.
It is possible, however, that an organic
solvent or oil could carry one of these
codes, based on the derived-from rule
only, and could comply with the limits
in today's rule. As such, EPA did not
restrict the application of today's rule to
any waste code, except in the case of
wastes listed for the presence of dioxins
or furans. See 261.38(c)(12). However,
EPA does not expect that corrosive or
reactive wastes would be candidate
comparable fuels because of the
detrimental impacts on the burning unit
that would occur.
At the same time, there are specific
listed waste codes that EPA expects to
contain only those constituents for
which today's rule sets maximum
allowable concentrations. As such, some
wastes with these codes would be likely
candidates for compliance with the
corresponding constituent limits. These
applicable wastes are primarily
expected to be: ignitable solvent wastes
(F003 and F005), wastes from petroleum
production (F037, F038, and K048-51),
and wastes from coking operations
(K060, K087, K141-145, K147 and
K148). Table 1 also lists a set of U waste
codes and their corresponding
constituents that may be applicable
depending upon their concentrations.
It is expected that today's rule will
primarily be applied to wastes that are
classified as hazardous only because
they exhibit the hazardous characteristic
of ignitability (D001) and/or corrosivity
(D002). In comparing the regulatory
levels for characteristic metal wastes
(D004-D011) and the corresponding
allowable limits for these metals in
today's rule, there is an extremely small
window of applicability for some wastes
identified as D006 (cadmium) or D009
(mercury) and likewise a relatively
small window of applicability for some
D008 wastes (lead). All other
characteristic metal wastes fail the limit
restrictions for metals. D003 wastes that .
are classified as hazardous due to their
cyanide (CN) content are expected, for
the most part, to fail to meet the
specification for total nitrogen. Except
for DO 18 wastes (benzene), wastes that
are characteristic for organics (DO 12-
D043) are also expected to be unable to
comply with either the limits or the
"non-detect" requirements.
All wastes consisting primarily of
alcohols (e.g., ethanol or isopropanol),
petroleum distillates, oils, or other
ignitable organic liquids) are the most
likely candidates for applying today's
rule. This is quite logical in that these
chemicals tend to have good fuel value
when compared to the fuels examined
for today's rule. The most probable
listed wastes that are expected to be able
to comply with today's rule are F003
and F005 solvents (except those F005
wastes containing carbon disulfide,
pyridine, or nitrobenzene). There are an
additional number of "U" wastes
identified in Table 2 that are also good
candidates for compliance with today's •
rule. These chemicals are either
hydrocarbons or oxygenated
hydrocarbons for which today's rule
does not establish any limits.
Because of the potential for cross-
contamination, wastes from facilities
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(e.g., pesticide manufacturers and
halogenated solvent manufacturers)
known to manufacture concentrated
forms of the chemicals restricted by
today's rule, are the most likely to
require closer scrutiny and testing.
However, wastes generated by these
facilities that are not expected to be
cross-contaminated would include non-
contact solvents, hydraulic or
lubricating oils, and solvent-based
wastes from the production of
unregulated constituents.
TABLE 1.—LISTED "U" WASTES WITH
CORRESPONDING CONSTITUENT LIMITS
TABLE 2.—LISTED "U" WASTES WITH
No CORRESPONDING CONSTITUENT
LIMITS—Continued
Constituent for which the code was
listed
Acetophenone
Benz[a]anthacene
Benzene
Benzo(a)pyrene
Bis(2-ethylhexyl) phthalate
Chrysene
Creosote
Creso) cresylic acid (total cresols)
Dibenz[a,h]anthracene
Di-n-butyl phthalate
Diethyl phthalate
7,12-Dimethylbenz[a]anthracene
Dl-n-octyl phthalate
Fluoranthene
lndeno(1,2,3-cd) pyrene
3-Methylcholanthrene
Naphthalene
Toluene
Acrdein
Ally! alcohol
Endothall
Propargyl alcohol
Ethyl methacrylate
Isobutyl alcohol
Isosafrole
Methyl ethyl ketone [2-Butanone]
[MEK].
Methyl methacrylate
1,4-Naphthoquinone
Phenol
Safrole
2-Ethoxyethano! [Ethylene glycol
monoethyl ether].
Waste
code
U004
U018
U019
U022
U028
U050
U051
U052
U063
U069
U088
U094
U107
U120
U137
U157
U165
U22Q
P003
POOS
P088
P102
U118
U140
U141
U159
U162
U166
U188
U203
U359
TABLE 2.—LISTED "U" WASTES WITH
No CORRESPONDING CONSTITUENT
LIMITS
Constituent for which the waste was
listed
AcetaWehyde [Ethanal]
Acetone [2-Propanonej
2-Acetylaminofluorene [2-AAF].
Acrylic acid
Benz[c]acridine
n-Butyl alcohol [n-Butanol]
Carbon oxyfluoride
Crotonaldehyde
Cumene [Isopropyl benzene] ..
Cyclohexane
Cyclohexanone
Waste
code
U001
U002
U005
U008
U016
U031
U033
U053
U055
U056
U057
Constituent for which the waste was
listed
Dibenzo[a,i]pyrene
1,2:3,4-Diepoxybutane [2,2'-Bioxirane]
oc.oc-Dimethyl benzyl hydroperoxide ...
2,4-Dimethylphenol
Dimethyl phthalate
1,4-Dioxane [1,4-Diethyleneoxide]
Ethyl acetate
Ethyl acrylate
Ethylene oxide
Ethyl ether :
Formaldehyde
Formic Acid
Furan
Furfural
Glycidylaldehyde
Maleic anhydride
Methanol
Methyl ethyl ketone peroxide
Methyl isobutyl ketone [4-Methyl-2-
pentanone].
Paraldehyde
1,3-Pentadiene
Phthalic anhydride
Quinone [p-Benzoquinone]
Resorcinol
Tetrahydrofuran
Xylenes, mixed isomers [Xyenes,
total].
Waste
code
U064
U085
U096
U101
U102
U108
U112
U113
U115
U117
U122
U123
U124
U125
U126
U147
U154
U160
U161
U182
U186
U190
U197
U201
U213
U239
2. General
The proposal provided several
methods by which a hazardous waste
could qualify as a comparable fuel. The
final rule retains these methods and
adds clarifying conditions to ensure that
the methods do not violate existing
policy with regard to blending and
treatment. The person claiming that a
hazardous waste meets the exclusion
criteria of this rule will be referred to as
the "comparable fuel generator," in the
case of excluded liquid fuel, or "syngas
fuel generator," in the case of excluded
syngas fuel. In today's final rule, a
hazardous waste can meet the
comparable fuel hazardous constituent,
heating value and viscosity
specifications of §261.38(a) in several
ways. However, in each case, the
generator claiming the exclusion is
responsible for demonstrating
eligibility. In addition, just meeting the
hazardous constituent, heating value
and viscosity specifications would not
qualify a hazardous waste for the
exclusion. The implementation
requirements of § 261.38(c) (e.g.,
notification, certification, sampling and
analysis, recordkeeping) must also be
satisfied for a hazardous waste to be
excluded as a comparable fuel.
A waste can meet the §261.38 (a) (2)
hazardous constituent specification if
the hazardous waste "as generated," i.e.
without any processing, blending or
other alteration: (a) Meets the hazardous
constituent specification; or (b) does not
meet the hazardous constituent
specification, but undergoes treatment,
pursuant to §261.38 (c) (4), so that the
hazardous constituents of concern are
destroyed or removed to concentrations
that meet the exclusion specification.
A waste can meet the §261.38(l)(i)
heating value specification if the
hazardous waste as generated without
processing: (a) Meets the heating value
specification; or (b) does not meet the
hazardous constituent specification, but
undergoes treatment, pursuant to
§ 261.38(c) (4), that destroys or removes
material to increase the heating value to
meet the exclusion specification.
A waste can meet the §261.38(a)(l)(ii)
viscosity specification if the hazardous
waste as generated without processing:
(a) Meets the viscosity specification; (b)
does not meet the viscosity
specification, but through blending,
pursuant to §261.38 (c) (3) with fossil
fuel, another excluded comparable fuel,
or other non-waste changes the viscosity
to meet the exclusion specification; or
(c) does not meet the viscosity
specification, but undergoes treatment,
pursuant to §261.38(c)(4) that destroys
or removes material to decrease the
viscosity to meet the exclusion
specification.
3. Blending
Commenters supported allowing the
blending of a hazardous waste that
meets the constituent and heating value
specifications for the purpose of
decreasing viscosity. However,
commenters were concerned that
blending could dilute toxic constituents
and said that blending should only be
allowed if toxic constituents in the
hazardous waste would not be diluted.
In today's final rule, the Agency allows
an as-generated hazardous waste, which
meets the hazardous constituent and
heating value specifications, but does
not meet the viscosity specification, to
be blended to meet the viscosity
specification (see §261.38(a)). The
generator must document that the
hazardous waste, as generated without
processing, meets the hazardous
constituent and heating value
specifications prior to any blending. It is
also the responsibility of the generator
to document that the blending does not
violate the dilution prohibition of
§ 261.38(c)(6). This provision states that
the hazardous constituent and heating
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33795
value specifications cannot be met
through dilution; i.e. they can only be
met through treatment which destroys
or removes hazardous constituents, or
by the waste as-generated. See generally
61 FR at 15586-87 (April 8, 1996)
(extending dilution prohibition in
§ 268.3 to include combustion of
inorganic wastes). Allowing blending to
meet the hazardous constituent or
heating value specification simply
increases the amounts of hazardous
constituents emitted when the fuels are
burned, and would increase these
amounts above those emitted if fossil
fuels were burned instead. This is at
inconsistent with the whole premise of
comparable fuels, and also is
inconsistent with the section 3004 (m)
hazardous waste treatment provisions
(which, although not directly
applicable, articulate important overall
statutory objectives) which require
hazardous constituents to be removed or
destroyed by treatment, not diluted.
Chemical Waste Managements. EPA,
976 F. 2d 2, 16 (D.C. Cir. 1992). As
noted earlier, such burning can be
viewed as part of the waste management
problem, and EPA may validly
condition the exclusion to prevent that
result.
Blending of a hazardous waste
pursuant to § 261.38 (c) (3) to meets the
viscosity specification obviously may be
performed only in regulated units: at a
permitted RCRA treatment, storage
facility; a regulated interim status
treatment, storage-facility; or at a 90-day
generator unit meeting the requirements
of §262.34.
4. Treatment
Commenters also supported the
proposal to allow a hazardous waste to
be treated to meet the comparable fuel
specifications. Many of the same
commenters also expressed concerns
that any treatment allowed should
reduce emissions of hazardous
constituents, i.e. treatment must destroy
or remove the constituents or materials
of concern. The Agency agrees, and
§ 261.38(c) (4) specifically states that
only treatment which destroys or
removes hazardous constituents or
materials is permissible. Moreover, as
noted above, the waste remains subject
to subtitle C control during treatment
and thus treatment can only occur in
regulated units. (Treatment by blending
to meet the viscosity specification
likewise can only occur in regulated
units, for the same reason.)
It is the responsibility of the generator
claiming the exclusion to demonstrate
eligibility. See generally §261.2 (f). It
should be noted that just meeting the
hazardous constituent, heating value
and viscosity specifications would not
qualify a hazardous waste for the
exclusion; the implementatipn
requirements of § 261.38 (c) (e.g.,
notices, certification, sampling and
analysis, recordkeeping, etc.) also must
be satisfied for a hazardous waste to be
excluded as a comparable fuel. The
person that treats the hazardous'waste
to generate a comparable fuel must also
demonstrate that the treatment of the
hazardous waste destroys or removes
the hazardous constituents or materials
of concern from the waste. The treater
must: (1) Document that the unit that
will treat the hazardous waste has been
demonstrated to effectively remove or
destroy the hazardous constituents (at
the levels present in the waste) or
materials of concern from the type of
waste being treated; or (2) treat the
waste in a unit that removes or destroys
the constituents of concern, then
reanalyze the waste, in accordance with
the requirements of §261.38 (c) (8), to
document that the constituent
specifications have been satisfied.
If a hazardous waste is treated to
produce a comparable fuel, only the
waste-derived fuel would be excluded
from RCRA subtitle C regulation upon a
determination that it met the
specification. The hazardous waste
would be regulated under Subtitle C
from the point of generation until the
generation of a comparable fuel that
meets the exclusion specifications and
implementation requirements. This
means that the generation, transport,
storage, and treatment of the hazardous
waste, until exclusion as a comparable
fuel, remains subject to applicable
Subtitle C regulations.
In addition, residuals from the
treatment of a hazardous waste remain
solid waste and, if hazardous, are
subject to applicable Subtitle C
regulations. Thus, if comparable fuel is
produced from treatment of listed
hazardous waste, the wastes from that
process are automatically hazardous by
virtue of the derived from rule. (See the
derived-from rule in §261.2(d).)
F. Meeting the Syngas Specifications
Commenters felt the proposal was not
very specific in describing ways in
which a syngas fuel could be generated
from hazardous waste. The final rule
makes clear that a hazardous waste can
meet the syngas fuel constituent and
heating value specifications through the
treatment of the hazardous waste. As
with comparable fuels, it is the
responsibility of the generator claiming
the exclusion to demonstrate eligibility.
The .treatment of a hazardous waste to
generate a syngas fuel can occur in
either: (1) A unit subject to applicable
Subtitle C treatment, storage and
disposal requirements (i.e., Parts §264
§ 265 or § 262.34); or (2) a recycling unit
exempt under § 261.6 (c).
The generator of the syngas fuel must
demonstrate that the treatment of the
hazardous waste destroys or removes
the hazardous constituent of concern
from the waste. A generator of syngas
fuel from the treatment of hazardous
waste must: (1) Document that the unit
that will process the hazardous waste
has been demonstrated to effectively
remove or destroy the hazardous
constituents of concern from the type of
waste being treated; and (2) process the
hazardous waste in a unit that removes
or destroys the constituents of concern,
then analyze the waste in accordance
with the requirements of § 261.38 (c) (8)
to document that the exclusion
specifications have been satisfied. If a
hazardous waste is processed to
produce a syngas fuel that meets the
exclusion specifications, only the
syngas fuel would be excluded from
RCRA subtitle C regulation.
In addition, residuals from the
treatment of a hazardous waste to
generate an excluded syngas fuel remain
solid waste and are subject to applicable
Subtitle C regulations if they are also
hazardous wastes. Residuals from the
treatment of a listed hazardous waste to
generate a syngas fuel remain hazardous
wastes due to the derived-from rule: the
residuals are derived from treatment of
listed hazardous wastes.
G. Sampling and Analysis
Commenters expressed concern that
the Agency proposed: (1) To initially
require sampling and analysis for all
Appendix VIII constituents; (2) to
require the use of SW-846 methods to
conduct sampling and analysis of
Appendix VIII constituents; and (3) to
also require the use of the same methods
for syngas as for comparable fuels. In
response to commenters concerns, the
Agency is finalizing the following
approaches to sampling and analysis of
comparable fuel and syngas fuel.
1. Use of Process Knowledge
A majority of commenters believed
that EPA should allow the use of
process knowledge under limited
circumstances in determining which
constituents to test for in the initial scan
as well as any follow up testing. The
Agency agrees with commenters.
Generators of hazardous wastes should
have adequate knowledge of their waste
to allow the use of process knowledge
in determining which constituents may
and may not be present in their waste.
The use of process knowledge may
only be used by the original generator of
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the hazardous waste. If the generator of
the hazardous waste and generator of
the comparable/syngas fuel are
different, then the generator of the
comparable/syngas fuel may not use
process knowledge to determine that
constituents are not present in the
waste. The generator of the comparable/
syngas fuel, if not the original generator
of the hazardous waste, must test for all
of the constituents and properties in
§261.38(a)(2) Table 1 of the regulations.
This is because the Agency believes that
only the original generator may have
intimate knowledge of the constituents
in the waste to make such a
determination. See §268.7, where EPA
uses the same approach for analyzing
compliance with LDR treatment
standards: see also Hazardous Waste
Treatment Council v. EPA, 886 F. 2d
355,368-71 (D.C. Cir. 1989) (upholding
this approach).
Therefore, the final rule allows the
use of process knowledge under certain
circumstances. Today's rule requires
testing for all constituents except those
the initial generator of the hazardous
waste determines should not be present
in the waste. The following cannot be
determined to "not be present" in the
waste: (1) A hazardous constituent that
causes the waste to exhibit the toxicity
characteristic for the waste or hazardous
constituents that were the basis for the
listing of the waste: (2) a hazardous
constituent detected in previous
analysis of the waste; (3) a hazardous
constituent introduced into the process
that generates the waste; or (4) a
hazardous constituent that is a
byproduct or side reaction to the
process that generates the waste.
It is the responsibility of the original
generator/comparable fuel generator to
document their claim that specific
hazardous constituents meet the
exclusion specifications based on
process knowledge. Regardless of which
method a generator uses, testing or
process knowledge, the generator is
responsible for ensuring that the waste
meets all constituent specifications at
all times. If at any time the comparable
fuel fails to meet any of the
specifications, that fuel is in violation of
Subtitle C requirements.
2. Waste Analysis Plan
As in the proposal, the final rule
requires comparable fuel generators to
develop a waste analysis plan prior to
sampling and analysis of their
hazardous waste to determine if the
waste meets the exclusion
specifications. This is consistent with
the usual requirement throughout the
Subtitle C rules that persons generating
and treating hazardous waste must
prepare a waste analysis plan. See, e.g.
§ 264.13 (general waste analysis plans)
and§268.7(a)(4) (requiring even
generators using 90-day units for
treatment to prepare waste analysis
plans with respect to hazardous waste
prohibited from land disposal). To
ensure that the chemical/physical
measurements of the waste are
sufficient, accurate and precise, the
Agency is requiring comparable fuel
generators to develop a waste analysis
plan, and suggest doing so in
accordance with Agency guidance.
Chapter Nine of "Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods" (SW-846) addresses
the development and implementation of
a scientifically credible sampling plan.
Chapter One of SW-846 describes the
basic elements to be included in a
Quality Assurance Project Plan (QAPP),
as well as information describing basic
quality assurance (QA) and quality
control (QC) procedures. Chapter Two
of SW-846 aids the analyst in choosing
the appropriate methods for samples,
based upon sample matrix and the
analytes to be determined.
Comparable fuel generators may want
to follow the SW-846 guidance in
developing their waste analysis plans.
As specified in the recordkeeping
section of the rule (§261.38(c)(10)) the
generator also must have documentation
of the: (1) Sampling, analysis, and
statistical analysis protocols that were
employed; (2) sensitivity and bias of the
measurement process; (3) precision of
the analytical results for each batch of
waste tested; and (4) results of the
statistical analysis.
3. Methods To Analyze Comparable
Fuels
In the proposal, EPA required the use
of SW-846 methods for the sampling
and analysis of wastes to determine if
the waste meets the comparable fuel
exclusion constituent specifications.
Based on commenter response and the
Agency's overall increased use of
alternative methods to those specified in
SW-846, the final rule allows the use of
alternate methods that meet the
performance based criteria in section
§261.38(c)(8).
The approach allows comparable/
syngas fuel generators to use any
reliable analytical method to
demonstrate that no constituent of
concern is present at concentrations
above the specification levels. It is the
responsibility of the generator to ensure
that the sampling and analysis is
unbiased, precise, and representative of
the waste. For the waste to be eligible
for exclusion, a generator must
demonstrate that: (1) Each constituent of
concern is not present above the
specified specification level at the 95%
upper confidence limit around the
mean; and (2) the analysis could have
detected the presence of the constituent
at or below the specified specification
level at the 95% upper confidence limit
around the mean. (See Guidance for
Data Quality Assessment—Practical
Methods for Data Analysis, EPA QA/G-
9, January 1998, EPA/600/R-96/084).
The Agency will consider that the
exclusion level was achieved in the
waste matrix if an analysis in which the
constituent is spiked at the exclusion
level indicates that the analyte is
present at that level within analytical
method performance limits (e.g., bias
and precision). In order to determine the
performance limits for a method, EPA
recommends following the quality
control (QC) guidance provided in
Chapters One and Two of SW-846, and
the additional QC guidance provided in
the individual methods.
The Office of Solid Waste's (OSW)
standing policy on the Appropriate
Selection and Performance of Analytical
Methods for Waste Matrices Considered
to be "Difficult-to-Analyze" was stated
in a January 31, 1996 memorandum
from Barnes Johnson, Director of the
Economics, Methods, and Risk
Assessment Division, to James Berlow,
Director of the Hazardous Waste
Minimization and Management
Division. The following excerpts are
appropriate to this rulemaking.
Inadequate recovery of target analytes
from the RCRA-regulated waste matrices
of concern demonstrates that the
analytical conditions selected are
inappropriate for the intended
application. Proper selection of an
appropriate analytical method and
analytical conditions (as allowed by the
scope of that method) are demonstrated
by adequate recovery of spiked analytes
(or surrogate analytes) and reproducible
results. Quality control data obtained
must also reflect consistency with the
data quality objectives and intent of the
analysis.
(a) For extractable organics in
standard RCRA matrices, e.g.,
groundwater, aqueous leachates, soils,
OSW considers a sample preparation
method appropriate for use if it
generates an analyte recovery of 70% or
greater (Method 8270C, Sec. 1.1). For
extractable organics in "difficult
matrices", e.g., sludges, ash, stabilized
wastes, OSW considers a sample
preparation method appropriate for use
if it generates an analyte recovery of
50% or greater.
(b) For volatile organics, using relative
recoveries, i.e., standard curves
established by purge-and-trap, or other
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33797
techniques for the preparation of
standards, OSW considers a sample
preparation method appropriate if it
generates a relative analyte recovery of
80% or greater (Methods 8260B, 801 SB).
(c) For inorganic analytes in almost all
matrices, an absolute recovery and
precision of 80-120% can generally be
achieved with the proper choice of acid
digestion procedure and determinative
method for the analyte of interest."
4. Syngas Waste Analysis Plan and
Analysis Methods
a. General. EPA is concerned that
tested and generally accepted methods
may not exist for the sampling and
analysis of gases from pressurized
systems that will ensure an accurate,
unbiased, and precise representation of
the hazardous constituents present in
the gas.
Hazardous constituents present in a
gas at high pressure and high
temperature may be difficult to analyze
accurately due to possible physical and
chemical changes in the constituents
when a sample is drawn into a low
pressure and temperature environment
for analysis. For example, some
constituents, while present as a gas
under high pressure and temperature,
may solubilize into liquids that have
condensed or adhere to the sampling
components as the pressure and
temperature drops in the sampling
device. If this were to occur, the
analysis of the sampled gas would not
accurately represent the concentrations
of the constituents in the original gas.
The Agency also shares the general
concern stated in comments that
enforcement of the exclusion
specifications could be compromised
because of the difficulty in applying or
potential absence of accepted sampling
and analysis methods for these gases.
Therefore, the final rule requires syngas
generators to submit for approval, prior
to sampling and analysis, a waste ~
analysis plan to the appropriate
regulatory authority (see
§ 261.38(c)(7)(iii)). At a minimum, the
plan must specify: (1) The parameters
for which each hazardous waste will be
analyzed and the rationale for the
selection of those parameters; (2) the
test methods which will be used to test
for these parameters; (3) the sampling
method which will be used to obtain a
representative sample of the waste to be
analyzed; and (4) the frequency with
which the initial analysis of the waste
will be reviewed or repeated to ensure
that the analysis is accurate and up to
date; and (5) if process knowledge is
used in the waste determination, any
information prepared by the facility
owner or operator in making such
determination.
b. Analysis. A syngas^fuel generator
also may "use the performance-based
approach (§261.38(c)(8)) to demonstrate
that the performance of the methods
selected is appropriate to meet the
exclusion specifications (as described in
3 above). Guidance on demonstration of
appropriate method performance can be
found in Chapter One of SW-846 and
the Quality Control sections of the
individual methods.
5. Non-Detects
EPA proposed that for a waste to meet
a non-detect standard, the analysis must
achieve a detection limit equal to or less
than the EPA specified number and also
not detect the constituent of concern in
the waste (61 FR 17358). However, some
commenters believe that the Agency
should develop numerical levels for
each parameter in the benchmark where
results are "non-detect." They are
concerned that a potential comparable
fuel that has any measurable levels of
Appendix VIII constituents below the
Agency's detection limits would not
qualify as a comparable fuel.
The final rule maintains the proposed
approach for non-detect constituent
specifications, except in the case of
metals, hydrocarbons and oxygenates
(see Section C. above). The Agency
believes that allowing concentrations of
constituents not found in the
benchmark fuels to be present in the
comparable fuel is counter to the
comparable approach and could allow
higher emissions of toxic compounds
from burning excluded waste than from
benchmark fuels. Additionally,
commenters noted that the detection
limit, referenced as the "maximum"
detection limit, should more accurately
be referred to as the "minimum"
detection limit that must be achieved.
The Agency agrees and the final rule
requires that analysis for a constituent
with a specification of non-detect must:
(1) Meet a detection limit at or less than
the minimum required detection limit
listed for the constituent; and (2) not
detect the constituent of concern in the
waste (see §261.38(a) and (b)).
Commenters also indicated that it
may be difficult to achieve the detection
limits specified for the non-detect
specifications. The Agency continues to
believe that the detection limits can be
met. This is due in part to the fact that
the detection limits are primarily based
on the limits found for the No. 6 fuel oil
analysis. EPA believes that the matrix
for No. 6 fuel oil is a more difficult
matrix to analyze than what the Agency
believes will be the matrix for the
majority of comparable fuels—a light
solvent matrix. In addition, to assist
generators who may have difficult
matrices to analyze, the final rule
provides the latitude to use any method
that will ensure an unbiased and precise
analysis of the waste.
H. Notification, Certification, and
Documentation
1. Who Must Make the Exclusion
Notification
The person claiming that a hazardous
waste meets the exclusion criteria of
this rule is known as the "comparable
fuel generator" in the case of excluded
liquid fuel or "syngas fuel generator" in
the case of excluded syngas fuel. The
comparable/syngas fuel generator need
not be the person who originally
generates the hazardous waste. The
comparable/syngas fuel generator can be
the first person who documents and
certifies that a specific hazardous waste
meets the exclusion criteria.
2. Notification Requirements
Most commenters agreed with the
proposal that a one-time notification
was appropriate; however, some
commenters said that the exclusion
should not be self-implementing and
should require some type of review and
approval by the implementing authority.
The Agency continues to believe that a
one-time notification in combination
with the other requirements of this
section, gives sufficient notice to the
regulating officials (i.e., State RCRA and
CAA officials). Since this is a self-
implementing exclusion, in order to
ensure delivery, the notification must be
sent certified mail and until the
notification of exclusion is received the
waste is still a hazardous waste and
must be managed as such. Only after the
receipt of such notification that the
hazardous waste-derived fuel meets the
requirements of this rule is the waste
excluded and free to be managed in
accordance with the requirements for a
comparable or syngas fuel. If a
comparable/syngas fuel generator loses
its exclusion, the generator must
renotify for the exclusion, after coming
into compliance with the requirements
of this section. If necessary the generator
must also comply with any applicable
Subtitle C requirements for the waste.
a. EPA Regional or State Notification.
Prior to managing any waste as an
excluded comparable/syngas fuel under
this section, the generator must send to,
in States not authorized to implement
this Section, the EPA Regional RCRA
and CAA Directors, and, in authorized
States, to the State RCRA and CAA
Directors. The notification of the
exclusion claim should be sent via
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certified mail, or other mail service that
provides written confirmation of
delivery. Notification of the RCRA and
CAA Directors will provide notification
of the exclusion and appropriate
documentation to both the RCRA and
CAA implementing officials. The
Agency's intent is for copies of the
exclusion information to reach both the
RCRA and CAA implementing officials
because of the nature of this exclusion—
a RCRA excluded waste being burned in
CAA regulated units. If the comparable/
syngas is to be burned in a State other
than the generating State, then the
comparable/syngas fuel generator must
also provide notification to that State's
or Region's RCRA and CAA Directors.
The notification shall contain the
following items: (1) The name, address,
and RCRA ID number of the person/
facility claiming the exclusion; (2) the
applicable EPA Hazardous Waste Codes
for the hazardous waste; (3) the name
and address of the units, meeting the
requirements of §261.38(c)(2), that will
burn the comparable/syngas fuel; and
(4) the following statement signed and
submitted by the person claiming the
exclusion or his authorized
representative:
Under penalty of criminal and civil
prosecution for making or submitting
false statements, representations, or
omissions, I certify that the
requirements of 40 CFR 261.38 have
been met for all waste identified in this
notification. Copies of the records and
information required at 40 CFR
261.38(c)(10) are available at the
comparable/syngas fuel generator's
facility. Based on my inquiry of the
individuals immediately responsible for
obtaining the information, the
information is. to the best of my
knowledge and belief, true, accurate.
and complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of
fine and imprisonment for knowing
violations."
5. Public Notification. As a self-
Implementing exclusion effective upon
receipt of the notification by the
implementing authority, there is no
decision prior to exclusion being made
by the implementing authority regarding
the waste. The opportunity exists at all
times for the public to bring to the
implementing authority's attention any
circumstance that might aid that
authority in its monitoring and
enforcement efforts. The public,
furthermore, would have the ability to
bring a citizen suit for a claimant's
failure to comply with any requirement
of the exclusion. Based on comments
received on the proposal, the Agency
believes that requiring the comparable/
syngas fuel burner to provide a simple
public notification of an exclusion claim
would aid the public in its efforts. In
most cases, the Agency believes the
burner will also be the generator of the
fuel.
Therefore, under the final rule, the
comparable/syngas fuel burner must
submit for publication in a major
newspaper of general circulation local
to the site where the comparable/syngas
fuel will be burned, a notice entitled
"Notification of Burning of Comparable/
Syngas Fuel Excluded Under the
Resource Conservation and Recovery
Act" containing the following
information: (1) Name, address, and
RCRA ID number of the claimant's
facility; (2) name and address of the
unit(s) that will burn the comparable/
syngas fuel; (3) a brief, general
description of the manufacturing,
treatment, or other process generating
the comparable/syngas fuel; (4) an
estimate of the average and maximum
monthly and annual quantity of the
waste claimed to be excluded; (5) name
and mailing address of the State or
Regional Directors to whom the claim is
being submitted. This notification must
be published in the newspaper prior to
the burning of the comparable/syngas
fuel. Notification is only necessary once
for each waste stream excluded.
c. Burner Certification. As proposed,
the final rule requires comparable/
syngas fuel to be burned only in units
subject to Federal/State/local air
emission requirements. The Agency
believes that limiting the burning of
comparable/syngas fuels to industrial
furnaces or industrial boilers, or
hazardous waste incinerators, along
with a certification from the burner,
would ensure that the fuel was burned
in a unit subject to Federal/State/local
air emission regulations. Industrial
furnaces or industrial boilers, or
hazardous waste incinerators are
believed to be a universe of units that
are capable of handling comparable/
syngas fuels and that would be subject
to Federal/State/local air emission
requirements. In response to comments,
the Agency believes that these excluded
hazardous wastes are best handled and
burned in the types of units specified in
§ 261.38(c)(2). To ensure that
comparable/syngas fuels burned off-site
are burned in a unit specified in
§ 261.38(c)(2) (see discussion below),
the Agency is requiring the generator to
obtain from the burner a one-time
written, signed certification that: (1) The
comparable/syngas fuel will be burned
only in an industrial furnace or boiler,
or hazardous waste incinerator subject
to Federal, State, or local air emission
requirements; (2) identifies the name
and address of the units that will burn
the comparable/syngas fuel; and (3) the
state in which the burner is located is
authorized to exclude wastes as
comparable fuels (i.e., under the
provisions of § 261.38). This
requirement coupled with the
requirement to notify the State or
Regional Directors will enable
regulatory officials to take any measure
that may be appropriate to ensure that
excluded fuel is burned in conformance
with applicable regulations and so does
not become part of the waste
management problem.
If the generator or burner intends to
change the unit where the comparable/
syngas fuel is burned (i.e., burn a
comparable/syngas fuel in a unit that
has not previously been included in a
certification), then prior to burning, the
generator must again follow the
requirements for: (1) Obtaining a burner
certification; (2) notifying the public;
and (3) submitting a revised notification
to the State or Regional Directors. Once
the revised notification has been
received by the State or Regional
Directors and the notification has been
published in the newspaper, the
generator/burner may burn the fuel as
an excluded waste.
I. Exclusion Status
Some commenters requested
clarification of the regulatory status of
the comparable/syngas fuel if the
conditions of the exclusion were not
met. After the exclusion for a waste has
become effective, the conditions of the
exclusion must continue to be met in
order to maintain the exclusion.
Separate and distinct from any
requirement or condition established in
this final rule, all generators—including
comparable/syngas fuel generators
under this exclusion—have a continuing
obligation to identity whether they are
generating a hazardous waste and to
notify the appropriate government
official if they are generating a
hazardous waste. Section 3010; 40 CFR
262.11. If a comparable fuel claimed as
excluded under today's rule fails to
meet the exclusion requirements of
sections §261.38(a)-(c), that
comparable/syngas fuel and
subsequently generated comparable/
syngas fuel would be required to be
managed as a hazardous waste—
including compliance with all
notification requirements—until testing
demonstrated that the waste was below
the exclusion specifications.
A comparable/syngas fuel that is not
ultimately burned remains a hazardous
waste and is subject to all applicable
Subtitle C regulations (unless another
exclusion from RCRA applies). As stated
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33796
in the proposal, the only allowable
treatment or disposal method for a
comparable/syngas fuel is burning. Any
disposal method other than burning is a
RCRA violation, unless the comparable/
syngas fuel is properly managed as a
hazardous waste meeting applicable
Subtitle C regulations. The implications
of not burning are that any prior
management of the waste was subject to
Subtitle C requirements.
Excluded comparable/syngas fuel
generators, transporters and burners are
subject to the speculative accumulation
requirements under §261.2 (c) (4). Thus,
there must be turnover of a given
percentage of comparable fuel stock
each calendar year, and the persons
holding such fuels must be able to
demonstrate that such turnover is
occurring. See §261.2(f). Since ultimate
users are notified that they are receiving
comparable fuels, they may feasibly
comply with this requirement by
documenting how much such fuel is
received when it is burned.
If a generator knows or should have
known that a waste fails to meet the
constituent specifications, the exclusion
ends as of the point of determination
and the material must be managed as a
hazardous waste.
J. Recordkeeping
1. General
Some commenters believed that the
recordkeeping requirements in the
proposal were excessive, while others
felt they were too lenient. The Agency,
however, believes that because of the
self-implementing nature of this
exclusion, maintenance of the proper
information on-site is essential to the
proper implementation of the exclusion.
The final rule requires the
comparable/syngas fuel generator to
maintain the following files (see
§ 261.38(c) (10)) at the facility generating
the fuel: (1) All information required to
be submitted to the State RCRA and
CAA Directors as part of the notification
of the claim: (i) the name, address, and
RCRA ID number of the person claiming
the exclusion; (ii) the applicable EPA
Hazardous Waste Codes for the
hazardous waste; (2) a brief description
of the process that originally generated
the hazardous waste and process that
generated the excluded fuel; (3) an
estimate of the average and maximum
monthly and annual quantities of each
waste claimed to be excluded; (4)
documentation for any claim that a
constituent is not present in the
hazardous waste as required under
§261.38(8); (5) the results of all analyses
and all quantitation limits achieved for
the fuel; (6) documentation as required
for the treatment or blending of a waste
to meet the exclusion specifications; (7)
a certification from the.burner if the
waste is to be shipped off-site; and (8)
the certification signed by the person
claiming the exclusion or his authorized
representative.
The generator must also maintain
documentation of the waste analysis
plan and the results of the sampling and
analysis that includes the following: (1)
'the dates and times waste samples were
obtained, and the dates the samples
were analyzed; (2) the names and
qualifications of the person (s) who
obtained the samples; (3) a description
of the temporal and spatial locations of
the samples; (4) the name and address
of the laboratory facility at which
analyses of the samples were performed;
(5) a description of the analytical
methods used, including any clean-up
and sample preparation methods; (6) all
quantitation limits achieved and all
other quality control results for the
analysis (including method blanks,
duplicate analyses, matrix spikes, etc.),
laboratory quality assurance data, and
description of any deviations from
analytical methods written in the plan
or from any other activity written in the
plan which occurred; (7) all laboratory
analytical results demonstrating that the
exclusion specifications have been met
for the waste; and (8) all laboratory
documentation that support the
analytical results, unless a contract
between the claimant and the laboratory
provides for the documentation to be
maintained by the laboratory for the
period specified in §261.38(c)(ll) and
also provides for the availability of the
documentation to the generator upon
request. These records and those
required for off-site shipments must be
maintained for the period of three years.
A generator must maintain a current
waste analysis plan during that three
year period.
2. Off-Site Shipments
The final rule requires that for each
shipment of comparable/syngas fuel a
generator sends off-site for burning in an
industrial furnace or boiler, or
hazardous waste incinerator, a record of
the shipment must be kept by the
generator on-site. Because these fuels
are not required to be accompanied by
a manifest, it is the Agency's belief,
supported by commenters, that to
ensure that comparable/syngas fuels are
transported to and burned in only those
units approved for such burning some
type of tracking mechanism is
warranted. Therefore, the final rule
requires for off-site shipments the
following information be maintained by
the generator on-site: (1) The name and
address of the facility receiving the
comparable/syngas fuel for burning; (2)
the quantity of comparable/syngas fuel
delivered; (3) the date of shipment or
delivery; (4) ,a cross-reference to the
record of comparable/syngas fuel
analysis or other information used to
make the determination that the
comparable/syngas fuel meets the
specifications; and (5) the one-time
certification by the burner.
K. Transportation and Storage
Commenters concurred with the
Agency's belief that the Department of
Transportation (DOT) and the
Occupational Safety and Health Agency
(OSHA) requirements for the
transportation and handling of
comparable/syngas fuels will be
adequate to ensure the safe management
of these excluded fuels. The final rule
does not require comparable/syngas fuel
handlers to comply with the RCRA
storage and transportation requirements.
It should be noted that excluded
comparable/syngas fuel transporters are
required to comply with all applicable
requirements under the U.S. Department
of Transportation regulations in 49 CFR
parts 171 through 180.
Anyone who stores an excluded
comparable/syngas fuel (e.g., generator,
transporter, burner) is required to
comply with all applicable requirements
under the Occupational Safety and
Health Agency regulations in 29 CFR
part 1910. The occupational safety and
health standards for flammable and
combustible liquids can be found in
Subpart H—Hazardous Materials section
1910.106 and standards for compressed
gases in section 1910.101.
L. Comparable Fuels Exclusion and
Waste Minimization
1. Introduction
In its April 1996 NPRM (61 FR
17464), EPA solicited comment on the
effects of the comparable fuels provision
on facilities' efforts to promote pollution
prevention and waste minimization
measures (i.e., source reduction and
environmentally sound recycling). In
particular, EPA wanted to determine the
extent to which companies might: (1)
Shift from hazardous waste recycling
practices to burning wastes as fuel in
broader markets; (2) continue to recycle
these wastes for product recovery; (3)
undertake source reduction for those
wastes currently failing the comparable
fuel specifications; or (4) continue to
burn the excluded waste fuel in either
an hazardous waste incinerator, light
weight aggregate kiln, or cement kiln.
EPA received many comments on this
issue, most of which indicated there
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would probably be a shift from recycling
toward combustion, but the Agency
received very little quantitative
information that would allow the
Agency to assess the extent and impact
of potential shifts. Consequently, EPA
used data from the RCRA Biennial
Reporting System, which is a census of
waste stream information from all large
quantity hazardous waste generators,
and the National Hazardous Waste
Constituent Survey (NHWCS), which
contains data on the composition and
properties of waste streams for certain
industries, to develop two approaches
for assessing the impacts of the
comparable fuels provision on pollution
prevention and recycling. This approach
is described in the next section.
The results of EPA's analysis
conclude that about three-fourths of
hazardous wastes now meeting the
comparable fuels specifications are
already being combusted; the remainder
(about one-fourth) is recycled. The
70,000 tons of hazardous wastes, that
qualify for the comparable fuels
exclusion and are currently recycled
annually, could shift to the comparable
fuels market, if all generators responded
the same way, a possibility which seems
unlikely. This figure represents less
than a one percent annual increase in
the amount of hazardous waste
combusted, but it represents a decrease
of about 20% in the amount of
hazardous wastes recycled annually.
If the comparable fuels provision were
implemented alone, a 20% decrease in
recycling might appear to have a
negative effect on pollution prevention
and waste minimization. However, as
one commenter pointed out, some
generators will install pollution
prevention and waste minimization
measures (i.e., to prevent high levels of
constituents from becoming part of the
waste) in order to qualify for the
comparable fuels exclusion. This would
have the effect of increasing pollution
prevention. Furthermore, EPA fully
expects that the increased cost of
upcoming MACT standards will cause
the regulated community to seek cost
effective pollution prevention and waste
minimization solutions to offset the
higher costs (a response seen, for
example, in the RCRA land disposal
restrictions program). EPA is examining
this effect in the regulatory impact
analysis for the upcoming MACT
standards. On balance, the impact of the
comparable fuels provision on pollution
prevention and waste minimization in
the context of MACT standards appears
to be negligible.
2. Major Concerns of Commenters
EPA received comments generally
expressing either concerns or support
for the exclusion. There was some
concern that the comparable fuels
exclusion would lead to combustion of
spent solvents and other high-energy
wastes low in halogens and metals that
would otherwise be recovered as
product. Conversely, others supported
the exclusion pointing to incentives it
may create to source reduce and
conserve resources by replacing fossil
fuels with comparable fuels. In addition,
concerns were raised over the role of
energy recovery in the waste
management hierarchy, and the impact
of fuel blending on comparable fuels.
Impact on Source Reduction and
Recycling: Several commenters stated
that EPA failed to investigate whether
the comparable fuels exclusion would
encourage combustion of wastes now
being recycled. Some of these
commenters took positions on how the
comparable fuels exclusion would
impact the recycling-combustion
balance. One group claimed that the
comparable fuels exclusion would
encourage combustion at the expense of
recycling. A smaller group of
commenters stated that the comparable
fuels exclusion would offer an incentive
for generators to use more source
reduction to lower the levels of toxic
constituents to the specification levels.
The commenters provided little
quantitative information describing
these changes.
As noted above. EPA used data from
the RCRA Biennial Reporting System
(BRS), which is a census of waste stream
information from all large quantity
hazardous waste generators, and the
National Hazardous Waste Constituent
Survey (NHWCS), which contains data
on the composition and properties of
waste streams for certain industries, to
develop two approaches for assessing
the impacts of the comparable fuels
provision on pollution prevention and
recycling. Results from both analyses
indicate that about three-fourths of
wastes likely to meet the comparable
fuel specifications are already
combusted rather than recycled, and
that the remaining wastes could shift
from the current recycling market to the
comparable fuels depending on the
economics and individual company
preferences. The methodologies used
are summarized below. A full
discussion of these analyses is provided
in the docket.
Analysis #1: EPA searched the 1993
BRS data to identify waste streams that
would be most likely contain wastes
that could meet comparable fuel
specifications for energy value and low
levels of contaminants. EPA focused its
search on DOOl/ignitable wastes because
this waste typically contains spent
nonhalogenated solvents. EPA also used
the BRS data to determine how these
wastes were managed after generation,
and found that about three-fourths of
D001 wastes are combusted, while the
remaining one-fourth goes to recycling
for solvent recovery.
Analysis #2: Using waste stream
specific laboratory analysis data from
the NHWCS, EPA identified those waste
streams in the survey that meet the
comparable fuels specifications for
about half of the recycled wastes
reported in the BRS. Using this data,
EPA was able to estimate the total
amount of recycled wastes that could be
comparable fuels, and how much waste
currently sent to combustion meets the
comparable fuels specifications.
Analysis of these estimates indicates
that about 75% of waste streams
meeting the comparable fuels criteria is
combusted while the remainder is
recycled.
The "Economic Analysis Report for
the Combustion MACT Fast-Track
Rulemaking" (contained in the docket)
predicts savings to generators who can
begin to combust hazardous wastes as
comparable fuels rather than as
hazardous wastes. EPA believes this
offers generators incentives to achieve
the comparable fuels specifications
through source reduction. However,
since the costs of source reduction
initiatives vary widely from facility to
facility, EPA could not reliably estimate
net cost savings that facilities could
achieve by turning hazardous wastes
into comparable fuels through upstream
source reduction. Therefore we did not
attempt such an estimation.
In addition, many solvent recycling
facilities could begin to combust
streams meeting the comparable fuels
specifications instead of continuing to
recycle them. EPA's comparison of
recycling costs and revenues with costs
for combusting these streams as
comparable fuels indicate that in many
cases facilities may find the combustion
option more economical. Since solvent
recycling costs and revenues vary
considerably from facility to facility and
also fluctuate in time according to the
market values of virgin solvent (fuel
costs also fluctuate), EPA could not and
did not estimate the extent of this shift.
Individual facilities may continue to
recycle wastes rather than combust
them as comparable fuels.
Recycling and the Waste Management
Hierarchy: Some commenters stated that
letting wastes similar to fuels be burned
is evidence of an Agency preference for
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33801
combustion over recycling. EPA
disagrees: The comparable fuels
exclusion is based on the fact that some
hazardous waste fuels very closely
resemble fossil fuels and do not warrant
the full slate of RCRA Subtitle C
controls. This does not suggest that the
Agency has altered its commitment to
the hierarchy. The underpinning of the
comparable fuels exclusion is simply a
determination on the degree of
regulatory oversight needed for fuel-like
waste materials, which does not
translate to any change of view on the
waste management hierarchy.
Burning for Energy Recovery: Some
commenters claim that burning for
energy recovery is waste minimization.
While EPA is clearly providing greater
flexibility to burn wastes that closely
resemble virgin fuels, EPA distinguishes
this from waste minimization. Waste
minimization includes source reduction
and environmentally sound recycling,
but does not include any "method,
technique, or process, including
neutralization, designed to change the
physical, chemical or biological
character or composition of any
hazardous waste so as to neutralize such
waste, or so as to recover energy or
material resources from the waste, or so
as to render such waste non-hazardous,
or less hazardous; safer to transport,
store or dispose of; or amenable for
recovery, amenable for storage, or
reduced in volume." (40 CFR
260.10) (emphasis added).
Blenders and Third Parties: Some
commenters expressed concern that
EPA would allow blending of hazardous
wastes to meet the concentration
specifications for a comparable fuel,
thereby raising the issue of dilution to
avoid RCRA regulation. Similarly,
commenters objected to allowing third
parties, such as fuel blenders, to handle
and blend wastes between generation
and combustion. Commenters pointed
out that blending and third-party
involvement would constitute
impermissible dilution. It would also
undermine any incentive to minimize
the volume or toxicity of these wastes.
The Agency agrees that blending
hazardous wastes to bring them within
the comparable fuels concentration
specifications would constitute dilution
which is not only impermissible but
also would likely inhibit waste
minimization. Today's rule explicitly
prohibits any blending or other
"treatment" which does not remove or
destroy hazardous constituents.
Blending of two wastes already meeting
the comparable fuels specifications is,
however, allowed only to achieve the
viscosity specification. The rationale for
this limited use of blending is discussed
in that section of today's preamble.
Opportunities for Source Reduction:
One commenter commented that the
Standards for the Management of Used
Oil (40 CFR Part 279) offered generators
an incentive for keeping used oil
streams clean by requiring oil exceeding
certain concentration specifications for
metals and chlorine to be managed as
hazardous waste, and predicts that the
comparable fuels exclusion will result
in similar incentives for source
reductions to achieve the comparable
fuel exclusion criteria, particularly for
generators of D001 (ignitable) wastes.
EPA agrees with this view, but did not
receive industry-specific information
from commenters with which to
complete an analysis of this issue.
IV. RCRA Permit Modifications for
Hazardous Waste Combustion Units
A. Introduction
The Clean Air Act (CAA) sets a
maximum time frame of three years for
facility owners or operators to comply
with Maximum Achievable Control
Technology (MACT) emission standards
once final standards are published in
the Federal Register. EPA expects that
many facility owners or operators will
need to make changes to their
process (es) in order to come into
compliance with the new standards. For
facilities operating under a RCRA
permit, these changes may have to be
incorporated into the permit before they
may be put in place at the facility. To
facilitate meeting the three year
deadline, EPA is revising the RCRA
permit modification procedures to
explicitly address changes to a facility's
design or operations that are necessary
to comply with the new MACT emission
standards. The revised modification
process offers streamlined procedures
that will help facility owners and
operators meet two compliance
concerns—compliance with their RCRA
permits and compliance with the new
MACT standards.
EPA anticipates that a substantial
number of requests to modify facility
design or operations will be submitted
in a relatively short period of time
following promulgation of the final
MACT standards. Although the states
could always use their current
modification process, the revised
procedures offer a potentially more
viable way for states to handle the
anticipated volume of requests in a
more timely manner.
In most cases, state permitting
agencies have been authorized by EPA
to issue and modify RCRA permits.
Authorized states that wish to
implement the revised procedures may
have to modify their state procedures,
consistent with today's rule, before they
may use the streamlined procedures to
respond to MACT-related modification
requests from facility owners or
operators. Once the final MACT
standards are promulgated, facility
owners and operators have three years
to begin operating under the lower
emissions levels. The Agency believes
that these three years are better used for
processing modification requests, and
subsequently implementing the
necessary changes, than for modifying
state regulations and going through the
authorization process. By promulgating
the revised procedures on an expedited
schedule (i.e., before the final MACT
standards), EPA hopes to provide ample
time for states to develop comparable
standards and obtain EPA authorization
before they need to process MACT-
related modification requests from
facility owners or operators. It should be
noted that states which currently have
temporary authorization procedures
equivalent to the federal 40 CFR
270.42(e) procedures may also use
these, in many cases, to approve facility
changes needed to come into
compliance with MACT standards.
However, these procedures would allow
operation under the modified
conditions only up to 180 days (with a
possible extension of up to 180
additional days), followed by a full class
2 or 3 permit modification. Therefore,
EPA encourages states to adopt
procedures comparable to those in
today's rule.
Combining the streamlined
modification procedures with the
expedited schedule for promulgating
them sets up a procedural framework to
promote compliance with the MACT
standards. But even this combination
does not guarantee that other factors
will not ultimately interfere with a
facility's efforts to comply. As part of a
common sense approach to
implementing, and enforcing, its
programs, EPA would like to make sure
that the consequences of non-
compliance are commensurate with the
causes. With regard to the three-year
deadline for operating under the lower
emissions levels required by MACT,
EPA is further examining potential
consequences of non-compliance,
particularly if the causes are beyond the
facility's control (e.g., a permitting
agency's administrative procedures or
workload cause delays, necessary
equipment is back ordered, or testing
contractors are unavailable). For
example, the Agency is looking into the
possibility of using standard
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enforcement procedures under the
Clean Air Act (CAA), rather than
requiring more stringent consequences
through regulations (e.g., requiring a
facility to stop burning hazardous waste
until it receives a permit or revoking a
permit). The potential consequences of
non-compliance are discussed in more
detail in the Revised Technical
Standards for Hazardous Waste
Combustion Facilities; Proposed Rule,
Notice of Data Availability (62 FR
24212. May 2, 1997).
EPA is not going to pursue any of the
three companion implementation
options discussed in the proposed rule
(see 61 FR 17456, April 19, 1996). Those
options were intended to address
possible permit implementation
conflicts which may have occurred if a
State did not become authorized to cany
out the provisions of the proposed
MACT rule in time to handle necessary
modifications. By promulgating the
revised modification procedures prior to
the remainder of the proposed rule, EPA
anticipates that States will have
adequate time to receive authorization
to process the requisite modifications.
Thus, the need to put in place a separate
implementation mechanism no longer
exists. Today's rule does not address
any of the longer-term implementation
options discussed in the proposed rule
(e.g., placing the MACT standards in a
Clean Air Act permit, in a RCRA permit,
or in both permits). Implementation will
be discussed in the final rule
promulgating revised standards for
hazardous waste combustors.
B. Overview
1. Background on RCRA Permit
Modification Procedures
Section 3004 of RCRA requires
owners and operators of facilities that
treat, store, or dispose of hazardous
waste to comply with standards that are
"necessary to protect human health and
the environment." EPA, or EPA-
authorized States, implement these
standards by issuing RCRA permits to
these types of facilities. Once a permit
has been issued to a facility, the facility
must operate in compliance with the
conditions In the permit; any
subsequent changes to the facility's
design or operations are incorporated
into the permit in accordance with the
Agency's, or authorized State's, permit
modification procedures.
EPA's regulations concerning permit
modifications requested by facility
owners or operators are set forth in 40
CFR 270.42. The regulations break the
types of potential modifications into
three classes (see §270.42 Appendix I).
Class 1 modifications cover
administrative or routine changes,
including replacing equipment with
functionally equivalent equipment.
They are relatively straightforward and
in most cases do not require Agency
approval before being made. Class 2
modifications cover somewhat more
complex changes, for example, to
address common variations in the types
and quantities of wastes managed,
where the changes can be implemented
without substantially altering the design
specifications or management practices
prescribed by the permit. Class 3
modifications involve substantial
changes to facility operating conditions
or waste management practices and are
subject to principally the same review
and public participation procedures as
permit applications. Each class of
modification request requires varying
degrees of facility preparation. Agency
review time, and public involvement.
The various degrees have a significant
impact on the amount of time needed to
put the change into effect. For example,
Class 1 modifications typically can be
implemented in a very short time,
where Class 2 and 3 modifications may
take several years.
Prior to promulgating the Class 1,2,
3 procedures, modifications were
divided into two categories, major and
minor. States authorized to implement
the RCRA program were not required to
adopt the Class 1, 2, 3 procedures, since
they were considered less stringent than
the predecessor major/minor system. As
a result, both systems are in use today.
EPA would like to point out that, in
converting to the new system, many of
the modifications that had been
designated as minor were placed into
Class 1, or Class 1 with prior Agency
approval. EPA presumes that
modifications listed in Appendix I as
Class 1, or Class 1 requiring prior
Agency approval, are most likely
processed as minor modifications in
states that continue to use that system.
2. Shortcomings of the Current
Procedures
EPA did not consider, in developing
the modification classes and
procedures, that changes to RCRA
permit conditions might be necessary in
order to comply with other
environmental statutes. Similarly, the
Agency did not anticipate changes to
comply with upgrades to existing
regulations (although the process was
developed to include changes for new
regulations). EPA developed the Class 1
through 3 modification scheme within
the context of the RCRA program to
provide both incentives to facility
owners and operators to pursue facility
changes that lead to improved
management of hazardous wastes, and
greater flexibility for timely processing
of change requests, e.g., by tailoring the
level of review to the type of change (see
Permit Modifications for Hazardous
Waste Management Facilities; Final
Rule, 53 FR 37912, September 28, 1988).
EPA is now concerned, however, that
the RCRA permit modification
procedures, as a practical matter, will
not allow enough time to meet statutory
deadlines for implementing new
standards under the Clean Air Act.
3. How Today's Rule Impacts the
Procedures
EPA proposed several options for
amending RCRA permit modification
procedures to accommodate the Clean
Air Act requirement that facilities
comply with MACT standards within
three years of publishing a final rule in
the Federal Register (61 FR 17454, April
19, 1996). In all five of the proposed
options, the Agency tried to balance the
need to develop a process that would
enable facilities to comply with more
stringent emissions standards within the
allotted time with the need to provide
adequate opportunities for public
participation in the process. The level of
regulatory oversight that would take
place under each option was also
discussed. The Agency requested
comments on the proposed options, as
well as on any combinations thereof, or
any other feasible approaches.
EPA has decided to finalize, with
some adjustments, its originally
proposed recommended approach, i.e.,
to establish a new section in the permit
modification table for changes to
existing permit conditions necessary to
come into compliance with MACT
standards. This approach best meets the
Agency's objective of implementing a
process that enables facilities to meet
the three year statutory deadline. This
approach also allows for public
notification of the modification request.
Today's final rule establishes a new
section in Appendix I of 40 CFR 270.42
for technology changes that are
necessary for a facility to achieve
compliance with the MACT standards.
The new section is designated as Class
1 modifications, with prior Agency
approval. As such, the Agency will have
an opportunity to review the proposed
physical and operational changes to the
facility before they are implemented, in
order to ensure that these changes do
not have other undesirable
consequences. Agency experience
suggests that steps intended to reduce
emissions may not, in all cases, lead to
overall enhanced environmental
protection. For example, decreasing
combustion temperature as a way to
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33803
decrease air pollution control device
(ACPD) inlet temperature, in order to
reduce dioxin emissions could increase
organic emissions by allowing poor
combustion.
The new section in 40 CFR 270.42
Appendix I, specifically, section L(9)
"Technology Changes Needed to Meet
MACT Standards Under 40 CFR Part 63
Subpart EEE—National Emissions
Standards for Hazardous Air Pollutants
From Hazardous Waste Combustors," is
limited to technology changes to
existing permits to allow a facility to
come into compliance with the new Part
63 standards. General retrofitting
changes outside the framework of
meeting MACT-related technology, or
subsequent changes for maintaining
compliance with Part 63 standards, are
outside the scope of this category. The
permitting agency director will
determine whether the types of
modifications requested qualify as
"technology changes needed to meet
standards under 40 CFR part 63 Subpart
EEE." The Agency anticipates that the
distinction between technology changes
necessary to allow a facility to operate
under the lower emissions levels and
general retrofitting changes will be
clear. EPA expects that the same types
of changes to comply with the MACT
standards will be needed at most
facilities, thus the requests submitted
under section L(9) should be fairly
uniform.
EPA, in response to public comments,
is also incorporating a time default into
the modification procedures for changes
requested under section L(9) only.
Section 270.42 (a) is being amended to
add a paragraph specifying that the
permitting agency Director has 90 days,
with a possible one-time 30 day
extension, to make a decision about
modifications requested under section
L(9). If the Director does not make a
decision, then the permittee may
consider the request approved. EPA is
also requiring owners or operators to
comply with the requirements for the
Notification of Intent to Comply (NIC)
(see 40 CFR 63.1211) in order to benefit
from the streamlined modification
process.
C. Discussion ofRCRA Permit
Modifications Procedures for Facilities
Coming Into Compliance With MACT
requirements
1. Summary of Proposed Options
EPA is in the process of developing
final MACT standards imposing more
stringent (lower) emissions levels for
hazardous waste combustion activities;
facilities will have to operate in
compliance with these standards within
three years of their promulgation, with
a possible one year extension (for a total
of four years). The Ageijcy expects that
a large number of facilities will need to
modify their design or operations to
meet the more stringent emissions
standards required under MACT. For
example, incinerators that currently
operate above the MACT emissions
standard for particulate matter (PM)
might have to add electrostatic
precipitators (ESP) or baghouses to
reduce emissions; similarly, incinerators
that need to reduce dioxin emissions to
meet the MACT standards may need to
implement additional controls on
temperature or employ carbon injection;
or light weight aggregate kilns (LWAKs)
with high acid gas emissions may need
to add a control technology, such as wet
scrubbers.
For these facilities to remain in
compliance with their RCRA permits,
they will need to modify their permits
to allow any design or operational
changes needed to achieve compliance
with the MACT standards. The Agency
proposed five options for handling these
"MACT related" RCRA permit
modifications. The options, which
varied with regard to the level of
procedural requirements and
administrative review required, were:
(1) Provide facilities with "self-
implementing" authority to proceed
with necessary changes without Agency
review; (2) categorize the changes
needed to comply with MACT standards
as Class 1 modifications that do not
require prior Agency approval; (3)
categorize the changes as Class 1
modifications that do require prior
Agency approval (this option was
discussed in the proposal as the
recommended option); (4) categorize the
changes as Class 1 modifications
requiring prior Agency approval, but
give the Director authority to elevate
change requests to Class 2; and, (5)
retain the current scheme for modifying
the RCRA permits. Under the current
scheme, the MACT-related changes
would likely be categorized as Class 2
or 3 modifications.
2. Summary of Public Comments
In general, there were three recurring
themes in the comments received by the
Agency in this area. First, commenters
expressed concern about being able to
meet the three year time frame. They
cited, as reasons, (1) that three years are
insufficient to allow state agencies to
obtain authorization for the rule and to
subsequently process the anticipated
volume of modification requests, and (2)
that the modification procedures
themselves are too long. Secondly,
commenters emphasized the need to
allow sufficient public participation, but
with the caveat that the modification
process not be unduly delayed by public
participation activities (this being yet
another factor in potentially being
unable to meet the three year deadline).
Finally, commenters were concerned
that the consequences of non-
compliance are too severe (e.g., having
to stop burning), given that delays in
achieving compliance could be the
result of permitting agencies being
unable to process modification requests
in a timely manner (and not a
consequence of the facility's activities).
The Agency received a wide variety of
comments on the options themselves.
Each of the proposed options received
support, with most commenters favoring
the first three options for their more
streamlined procedures. A few
commenters suggested that
incorporating a time limit into the
modification review process would aid
in coming into compliance with the
MACT standards. Many commenters
expressed the importance of developing
a streamlined permit modification
process that would allow facilities to
make the necessary technology upgrades
in a timely fashion, while retaining
enough regulatory oversight to ensure
that the changes have a proper degree of
"buy-in" by the permitting agency.
Some commenters expressed concern
that options 4 and 5 would delay
implementation of MACT-related
changes beyond the three year deadline
mandated by Congress. A few
commenters preferred options 4 and 5
since they incorporate a greater degree
of public participation into the review
process. Additionally, some
commenters thought that options 4 and
5 might be more readily accepted by and
implemented in authorized States that
chose to remain with the original permit
modification structure composed of
minor and major changes. [Note: States
were not required to adopt the Class 1,
2, 3 structure since it was determined to
be less stringent than the major/minor
structure.]
Finally, some commenters requested
that the Agency consider as a possible
alternative that a Class 3 modification
could be reclassified as Class 2 for the
purposes of MACT compliance.
3. Response to Comments and
Discussion of Final Provisions
EPA agrees with commenters that
streamlined modification procedures for
MACT-related changes are essential.
The three year time frame for complying
with the MACT standards has been set
by Congress; it is the Agency's
responsibility to ensure that facilities
are able to comply with those
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requirements without violating other
areas of their environmental
responsibilities, like their RCRA permit.
As discussed earlier, EPA anticipates
that many facilities will need to make
some changes to meet the lower
emissions levels imposed by MACT,
and that these changes will have to be
incorporated into their RCRA permits.
EPA does not want the RCRA permit
modification procedures to hinder a
facility's ability to comply with MACT.
As discussed in the Section B.I.
Background on RCRA Permit
Modifications Procedures, Class 1
modifications may be done quickly,
whereas Class 2 or 3 modifications may
take several years to process. The
combination of the time normally
required to completely process Class 2
or 3 modification requests, and the
anticipated volume of requests from
facilities striving to meet MACT
emission levels, would make meeting
the three year deadline unrealistic.
Permitting agencies would not have the
resources to meet the workload demand.
This leads EPA to concur with
commenters on the need to embrace a
more streamlined approach than would
be provided by options 4 or 5. Similarly,
EPA chose not to pursue the option
suggested by some commenters to
reclassify changes from Class 3 to Class
2. A streamlined approach is consistent
with general efforts within the Agency
(e.g., through the Permits Improvement
Team) to improve the permitting
process by focusing on performance
standards rather than on a detailed
review of the technology requirements.
The Agency acknowledges the
validity of the concerns expressed by
some commenters that the options
offering the more streamlined
procedures offer fewer opportunities for
public participation. It is important to
strike an appropriate balance between
streamlined modification procedures
that promote coming into compliance
sooner with more stringent standards
and public participation. The Agency
has repeatedly emphasized its
commitment to a common-sense
approach to permitting—one that
minimizes regulatory burden and
provides flexibility to tailor activities to
specific situations. In carrying this
commitment to today's rule, EPA wants
to ensure^three things; (1) that the
permit modification process is not an
obstacle for complying with the MACT
standards; (2) that facilities are not
forced to operate outside of their
permitted conditions in order to comply
with MACT standards; and (3) that
public participation is not streamlined
out of the process.
EPA believes that Option 3, with
some modifications, provides the best
framework for meeting these objectives
and responding to public comments.
This option was supported by many
commenters, particularly because the
streamlined procedures will facilitate
meeting the three year deadline for
complying with the more stringent
emission levels. There has been a
precedent set in the past for
streamlining the modifications process.
To ensure that facilities implemented
timely changes necessary to meet land
disposal restriction (LDR) levels for
newly listed or newly identified
hazardous waste, the Agency designated
the modifications needed to meet the
LDR levels for newly identified wastes
as Class 1 modifications (see 54 FR
9596, March?. 1989).
The prior agency approval under
Option 3 provides the regulatory
oversight requested by commenters,
since the permitting agency will have
the opportunity to review the proposed
physical and operational changes to the
facility before they are implemented.
EPA concurs with commenters who
encouraged retaining some amount of
regulatory oversight in the
modifications. As discussed previously,
sometimes changes to one part of a
facility's design or operations that have
a positive effect, like reducing one type
of emissions, may cause detrimental
effects to other parts of the facility's
operations. It is important for permitting
agencies to have the opportunity to
review proposed changes to make sure
they do not lead to other undesirable
impacts.
Some commenters expressed concern,
however, that a facility's ability to begin
implementing the change(s) might be
delayed by requiring regulatory
oversight (i.e., if the Agency failed to
respond to the request in a timely
manner). EPA recognizes the validity of
this concern, given the anticipated
volume of requests from facilities
striving to meet the new emissions
standards; therefore, the Agency is
incorporating a time default for
reviewing the requests into the final
modification process. The time default
for review, codified in a new paragraph
270.42 (a) (4), specifies that if a
determination to approve or deny the
Class 1 permit modification request
submitted under item L(9) is not made
within 90 days (with the possibility of
a one-time extension for up to 30 days)
from the time the request was received
by the permitting agency, the request is
to be considered approved, and the
facility can proceed with the
modification(s). In some situations, the
Director of the permitting agency may
deny a request, for example, if the
request contained insufficient
information upon which to base a
decision. The permittee could revise its
request to address the shortfalls and
resubmit it to the permitting agency.
Such a resubmittal would initiate a new
90 day review period.
EPA anticipates that the incorporation
of the time default, coupled with the
fact that the revised modification
procedures are being promulgated on an
expedited schedule, will alleviate
commenters' concerns about non-
compliance. Although the consequences
of non-compliance are outside the scope
of this rule, this approach (streamlined
modification procedures coupled with
expedited promulgation) establishes a
procedural framework through which
there is a greater chance that permitting
agencies will not cause undue delays in
facilities' compliance with the MACT
standards. Under the new streamlined
process, permitting agencies should be
able to process the modification
requests with sufficient time remaining
for facility owners or operators to make
the changes within the three year time
frame.
Some commenters expressed concern
that option 3 does not provide the same
levels of public participation that would
be available through options 4 and 5.
Those options would require facilities to
request Class 2 or 3 permit
modifications for MACT-related
changes. The procedures for Class 2 and
3 modifications include public
meetings, notices, and comment
periods. Class 1 modifications, even
those requiring prior Agency approval,
only require that the facility owner or
operator send a notice of the change to
the facility mailing list within 90 days
of approval being given.
EPA is committed to enhancing
public participation in all of its
processes, and has established
additional requirements in today's rule
to provide opportunities, beyond the
public notice requirements associated
with Class 1 (with prior approval)
modifications, to involve the public in
permitting changes required to comply
with MACT standards. These
opportunities are being incorporated
into requirements for a Notification of
Intent to Comply (NIC), discussed in
more detail in Section V. One goal of the
NIC development process is to promote
interaction between the facility and its
host community, for example, by
requiring the facility to host an informal
meeting with the community before
submitting the final NIC to the
permitting agency. Since the NIC must
describe anticipated activities for
coming into compliance with the MACT
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33805
standards, the technology changes that
trigger the RCRA permit modification
would be a natural component of the
NIC and the public meeting. EPA
expects that the meeting will be similar
in style and intent to the pre-application
meetings required under 40 CFR 124.31.
The final rule requires facility owners
or operators to complete the NIC in
order to benefit from the streamlined
modification procedures. This
requirement means that owners or
operators will need to submit a final
NIC either before, or at the same time as,
they submit the modification request. If
they do not comply with the NIC
requirements, they will need to follow
the otherwise applicable modification
scheme, i.e., the permitting agency
Director will likely reclassify their
request to Class 2 or 3. EPA is not
requiring documentation in the
modification request that the permittee
completed the NIC. Since both items are
submitted to the permitting agency, EPA
assumes the permitting agency will be
aware of whether the permittee has
indeed complied with the NIC
requirements.
EPA expects that information about
anticipated changes to facility design or
operations to comply with the more
stringent standards will be included in
the NIC, and thus will be available for
public review and discussion during the
NIC public meeting. Through this
meeting, communities have an early
vehicle for learning, among other things,
about potential changes to facility
design and operations necessary to meet
the lower emission levels. Of course, in
accordance with the current
requirements concerning Class 1
modifications, the permittee must also
inform the public about the
modifications within 90 days of their
approval by the permitting agency (see
40CFR270.42(a)(l)(ii)).
EPA would like to point out that
although similar information about
facility design or operation changes may
be included in both the NIC and the
modification request, the Agency does
not believe it is redundant to have both
documents. The two have different
purposes, and the formats and levels of
detail may differ accordingly. The
modification request would most likely
differ from the NIC, since the request
has to tie directly to the permit itself.
For example, the NIC may talk in
general terms about adding baghouses to
reduce emissions, but the modification
request would have to specifically cite
the section(s) of the permit being
modified to include information on the
baghouses.
Today's requirements would not, of
course, preclude additional public
participation activities beyond the
regulations, where appropriate on a
facility-specific basis. At certain RCRA
facilities, in fact, permitting agencies
and facilities have implemented a
variety of public involvement activities,
such as additional fact sheets or
information availability sessions, that
have helped affected communities to
understand and participate in permit
decision-making. EPA has published a
practical how-to guidance manual
designed to help all stakeholders in the
permitting process (permit writers,
industry, and communities) determine
what types of public participation
activities might be helpful. The RCRA
Public Participation Manual (EPA530-R-
96-007, September 1996) also offers tips
on how to conduct a wide variety of
activities. Supplemental public
participation activities on a site-specific
level, geared for a particular facility's
operations and tailored to meet the host
community needs, could be used to
augment community understanding of
the changes taking place to comply with
MACT standards. In closing, EPA would
like to reiterate that facilities are making
changes to meet more stringent
standards. Requiring facilities to comply
with lower emissions levels in a
relatively short time frame does offer
significant benefits to public health and
the environment that the Agency
believes communities will generally
welcome.
In response to the comments that
options 4 and 5 might be more
compatible with permit modification
procedures in authorized states, EPA is
aware that States have to evaluate new
regulations in terms of their specific
structures. Promulgating the revised
modification procedures in today's rule,
however, will provide ample time for
states to obtain authorization before
they actually begin processing
modification requests following
promulgation of the final MACT
standards. EPA encourages states to
expedite their requests for authorization
to implement the provisions in today's
rule. EPA expects that States using the
Class 1, 2, 3 modification system would
incorporate the provisions by reference,
and that States using the major/minor
system would incorporate the
provisions as minor modifications. As
discussed in Section B.I. Background
on RCRA Permit Modification
Procedures, many changes that were
formerly classified as minor were
converted to Class 1, or Class 1
requiring prior Agency approval. Thus.
EPA believes it is consistent for states
using the major/minor system to
incorporate this category of changes into
the minor classification.
If the states cannot adopt an approach
that ensures expeditious
implementation of the MACT standards,
however, then the Agency expects that
changes necessary to comply with
MACT standards may well be
accomplished under a compliance
order, with a specified schedule to come
into compliance.
F. RCRA Changes in Interim Status
Procedures
RCRA facilities operating under
interim status are allowed to implement
certain facility changes in accordance
with requirements and procedures set
forth in 40 CFR 270.72(a). (Note: EPA
anticipates that the types of changes a
facility may need to make to comply
with the MACT standards would be
allowable under this section). Section
270.72(b) imposes a limit, however, by
stating that the changes cannot amount
to "reconstruction" (defined in the
regulation as "when the capital
investment in the changes to the facility
exceeds 50 percent of the capital cost of
a comparable entirely new hazardous
waste management facility"). As
discussed in the preamble to the
proposed rule, the Agency does not
anticipate that the costs to perform
facility changes necessary to come into
compliance with the MACT standards
would exceed the 50 percent
reconstruction limit. However, since the
limit is cumulative for all changes at the
interim status facility, there could
conceivably be situations where the cost
for MACT-related changes might push a
facility over the limit.
To ensure that the reconstruction
clause does not present an obstacle for
interim status facilities trying to
implement changes to meet the new
emissions levels, the Agency proposed
adding a new paragraph to §270.72(b)
exempting changes necessary to comply
with the MACT standards from the
reconstruction limit. The Agency did
not receive any adverse comments, and
so is finalizing this provision in today's
rule.
It is important to note that facilities
operating under interim status will, like
permitted facilities, be required to
comply with the NIC requirements.
Thus, the public will have the
opportunity to review planned changes
as part of the NIC and to participate in
the public meeting. EPA anticipates that
owners or operators of interim status
facilities will hold the meeting and
complete the NIC before proceeding
with any changes to facility design or
operations necessary to comply with the
MACT standards.
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V. Notification of Intent To Comply and
Progress Report
A. Background
In the proposed rule (61 FR 17358),
the Agency requested comments on
strategies to identify and encourage or
require affected sources to comply with
the final emission standards at the
earliest possible date. The Agency also
asked for views on how best to
determine when a source can
realistically conclude whether it will
comply with the final standards. A
number of commenters suggested that
the Agency require a submission from
affected sources that would identify
whether the facility intends to comply
with the final standards, and outline the
procedures the facility would employ to
achieve compliance. This primary
purpose of this submission (referred to
by the commenters as a "Notification of
Intent to Comply") would be to identify
the sources that will choose as a
compliance strategy to stop burning
hazardous waste, so that those sources
could be required to terminate waste
burning activities as soon as possible
following the effective date of the final
Hazardous Waste Combustor (HWC)
rule.
Other commenters suggested that EPA
require submission of a plan that
oudines the procedures a facility will
follow to comply with the final
standards. However, the purpose of this
submission would be to begin an early
process of communication between the
public and the facility through the
public disclosure of the facility's
compliance strategy to meet the final
HWC standards.
The Agency reviewed these comments
and found the suggestions for an early
notification persuasive. In the Notice of
Data Availability (NODA) published in
the Federal Register on May 2, 1997
(Revised Technical Standards for
Hazardous Waste Combustion Facilities;
Proposed Rule, 62 FR 24241). EPA
described its strategy to promote early
compliance planning through a Public
and Regulatory Notice of Intent to
Comply (PRNIC). The discussion laid
out a process by which an affected
source would be required to develop a
draft document including anticipated
plans for coming into compliance with
the new emissions standards, hold an
informal meeting with the public to
discuss the draft planning document,
and to subsequently provide a final
planning document to the permitting
agency. The information to be covered
in the document and during the meeting
would include such topics as a
description of waste minimization and
pollution control technique (s) being
considered and their effectiveness, a
description of emission monitoring
techniques being considered, and an
outline of key dates for activities the
source would need to accomplish in
order to operate within the MACT
standards.
The intended purpose of the PRNIC,
as described in the NODA, was twofold.
First, the PRNIC was intended to
provide for public involvement in a
source's compliance planning process.
EPA envisioned that this involvement
would also serve to offset public
participation opportunities that may be
"lost" if a source is able to take
advantage of the new streamlined RCRA
modification procedures for HWCs,
since modifications required under
RCRA would naturally be part of the
source's overall plan for achieving
compliance with the standards.
Secondly, the PRNIC would provide an
expeditious notice to the permitting
Agency as to whether sources would be
able to come into compliance with the
new standards. Having information
about plans for compliance might prove
helpful to permitting agencies in
planning the most efficient use of their
resources during the three year
compliance period.
B. Summary of Final Provisions
EPA is moving forward with an early
compliance planning requirement.
However, the final rule contains certain
changes from the PRNIC discussed in
the NODA; the Agency has revised the
requirements based on public comments
received following the NODA's
publication and based as well on the
original proposal. EPA is finalizing new
requirements in § 63.1211 for facility
owners and operators to develop and
submit a Notification of Intent to
Comply (NIC), and in §63.1212 to
develop and submit a Progress Report.
Section 63.9(h) "notification of
compliance status" requires facilities to
submit such notification when a source
becomes subject to a relevant CAA
standard. As such, today's requirement
is an enhancement of this requirement
to give notification of intent to comply
prior to the three year compliance date
of the emissions standards. The source
can use the NIC to notify either the
source's intent to come into compliance
with the new standards, or the source's
intent not to come into compliance with
the new standards. The NIC must be
submitted to the permitting agency
within a year of the final standards
being promulgated, and the Progress
Report within two years.
As proposed, the primary purpose of
the NIC is to serve as a planning and
outreach tool for achieving compliance
with the MACT standards. The contents
of the NIC, set forth in §63.1211 (a) (1),
are similar to those presented in the
NODA discussion on the PRNIC with
modifications based on comments
received on the NODA. Also as
discussed in the NODA, sources will
have to make a draft of the document
available to the public as part of the
process of developing the NIC. They
will also have to provide notice of and
conduct an informal meeting with the
public to discuss anticipated plans for
achieving compliance with the
standards. The purpose of the Progress
Report is to help permitting agencies
determine if sources are making
reasonable headway in their efforts to
come into compliance. In deciding on
this approach to compliance planning—
the NIC followed by the Progress
Report—EPA determined (1) that one
year is sufficient time for a source to
establish its general "plan of attack" for
achieving compliance, and (2) that
during the second year a source should
be well on its way to making necessary
modifications, if it plans to meet the
MACT limits, or to making alternate
arrangements for handling the
hazardous waste, if it does not intend to
meet the MACT limits.
The final rule does not contain
provisions for updates to the final NIC
following a significant change in the
facility's implementation strategy, as
considered in the NODA. Since the
Agency decided to implement a
requirement for a Progress Report at the
end of the second year, there is no
purpose served by having a revised NIC.
EPA anticipates that any significant
changes to a facility's compliance plan
would necessarily be reflected in the
Progress Report.
C. Discussion of Public Comments and
Final NIC Provisions
1. General.
The majority of commenters
supported the concept of early
compliance planning, particularly with
regard to the public involvement
component. Those advocating early
involvement indicated that the PRNIC
concept appears reasonable, not overly
burdensome, and represents a positive
step to ensure public involvement in the
MACT process. Many lauded the
Agency's effort to bring the spirit of the
recently promulgated RCRA enhanced
public participation requirements (see
69 FR 63417 (Dec. 11, 1995)) to the
MACT arena and the strong RCRA goal
of public participation for decisions
involving permitted hazardous waste
management facilities (RCRA section
7004 (b)). Commenters opposing the
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additional public involvement required
as part of the PRNIC development
process stated that the activities (e.g.,
the public meeting) would create more
controversy and impose additional
burdens on both sources and permitting
agencies at a time when they will be
faced with a substantial workload. Some
commenters expressed concern that the
additional activities would provide no
real benefit, since neither the permitting
agencies nor the public have authority
to disapprove of a source's chosen
control options, as long as the source
operates within the MACT limits. One
commenter noted that the concept of a
PRNIC was unprecedented for CAA
sources; they said a PRNIC was not
required under the CAA and it was
beyond EPA's authority to impose such
a requirement.
The Agency agrees with commenters
who recognize the value of early public
involvement. EPA has repeatedly
emphasized its commitment to
enhancing public participation in all of
its programs (see National Waste
Minimization and Combustion Strategy
and Enhanced Public Participation
Rule). Experience has shown that
hazardous waste combustors spark a
tremendous amount of legitimate public
interest; many communities have
expressed a desire to be involved at all
stages of combustor operations and
permitting activities. Given this
background, EPA fully expects the
promulgation of the final MACT
standards to receive significant and
. appropriate public scrutiny. As one
commenter points out, HWCs are
already subject to RCRA regulations,
and many of them operate under risk-
based permits that were subject to
extensive public review. EPA
anticipates that the fact that HWCs will
now be regulated under CAA is likely to
remain of vital interest. People will
know that new emissions limits are
being imposed, and will want to know
how the source plans on meeting them. .
The NIC provides this information, and
the NIC meeting opens the door for the
public to communicate directly with the
owners or operators.
EPA does not share the concern
expressed by commenters that the
public involvement activities impose a
substantial burden with no
commensurate benefit. The effort
associated with drafting a NIC and
holding the NIC meeting is not overly
burdensome. Facilities will most likely
need to compile the information for
their own uses, in order to effectively
decide which compliance option (s) they
will pursue. Making the information
available to the public and discussing it
during an informal meeting could
provide benefits in many areas, even if
the permitting agency and the public do
not have the authority to approve or
disapprove of the compliance method(s)
ultimately selected. For example, it
could save time and money at the end
of the permitting process. Talking to
people early on about what can and
cannot be accomplished in a given
situation, asking their input on
decisions that need to be made, and
explaining the rationale behind
decisions that have already been made,
can lead to fewer challenges on draft
permit conditions. EPA also believes the
public could provide useful information
to owners or operators that might
contribute to a quality plan for
achieving compliance with the MACT
standards. The level of knowledge on
environmental matters exhibited by the
public (at public meetings, in
correspondence, for example) appears to
be increasing. As the public's
knowledge base grows, so might the
quality of input they can provide into
technical decisions.
EPA disagrees also that there is no
precedent for the concepts inherent in
the NIC, and that EPA does not have
authority to impose such a requirement.
Since EPA has chosen to provide the
maximum amount of time for
compliance allowed under the CAA (3
years), requiring sources to identify
their compliance plans is particularly
appropriate. As stated before, EPA is
committed to enhancing public
involvement in environmental matters.
Providing the compliance plans to the
public is one of many ways the Agency
is implementing this policy. Precedent
for early public involvement has been
set both in the Agency's Hazardous
Waste Minimization and Combustion
Strategy and in the enhanced RCRA
public participation requirements
promulgated in December, 1995 (see 69
FR 63417, December 11, 1995).
2. Purpose of the NIC
As discussed in the background part
of this section, the original purpose of
the PRNIC was to promote public
involvement and to assist in compliance
planning. Commenters supported these
goals, which continue to be the
compelling motives for adopting the
NIC requirement. The primary purpose
of the NIC is thus to serve as a planning
tool for achieving compliance with the
MACT standards. In other words, the
NIC is designed to ensure that facility
owners or operators get an early start on
evaluating their options for meeting the
new standards, and to serve as a vehicle
for public involvement. EPA's intent is
to facilitate dialogue regarding a
facility's compliance strategy. The NIC
also serves the purpose of having
sources identify to the regulators and
the public their intent to comply or not
to comply with the applicable emission
control requirements of this Subpart.
The NIC and public meeting will foster
mutual understanding of the
compliance options, including
consideration of both technical (e.g.,
equipment changes to upgrade air
pollution control devices) and
operational (e.g. process changes to
minimize waste generation) alternatives.
Ideally, it will also result in the
selection of a method that will meet the
goals of both the facility and the
community.
The NIC will not serve as a basis for
requiring facilities to cease burning
hazardous waste if they intend to
comply with the emission standards of
this Subpart. If, however, a facility
indicates in its NIC that it does not
intend to meet the emission standards of
this Subpart, then the source must stop
burning hazardous waste within two
years of the standards being
promulgated. This requirement is
discussed in more detail in Section D.
Discussion of Public Comments and
Progress Report. EPA would like to
clarify that its intent has never been to
shut a source down completely. The
source might be required to cease
burning hazardous waste; however, it
would not be precluded from burning
non-hazardous waste or other
alternative fuels. However, those
sources who indicate in the NIC their
intent not to comply with the applicable
emission control requirements of this
Subpart will be required to stop burning
hazardous waste within two years of the
effective date of the emission control
requirements.
Although the NIC will not be used to
cause sources to stop burning, there are
enforceable requirements associated
with it. Sources must provide a draft
NIC for public review, advertise and
conduct an informal meeting, and
submit a final NIC to the permitting
agency. If these activities do not take
place within the time frames specified
in the regulations, sources will be in
violation of the requirements, and
subject to appropriate enforcement
action. The key milestone dates
contained in the schedule submitted
with the NIC are not enforceable,
however; the requirement to submit a
schedule containing key dates is the
enforceable requirement.
Finally, one commenter suggested
that the NIC be used to identify RCRA
permit conditions that would
"disappear" when MACT limits are set.
EPA is not using the NIC for this
purpose. EPA will address permitting
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schemes, and the process for
transitioning from a RCRA permit to a
Title V permit, in the final rule
promulgating MACT standards for
HWCs. The NIC is not the appropriate
vehicle for accomplishing this task.
3. Timing
In the PRNIC discussion in the May
2. 1997 NODA, EPA said that the final
PRNIC would be due to the permitting
agency within 270 days following the
effective date of the final MACT
standards. A draft of the document
would have to be available within 210
days, and at least 30 days before the
informal public meeting was to be held.
Although several of commenters
considered the time frame too long,
many others said it would be difficult to
prepare a quality compliance planning
document so quickly. They also
expressed concern about meeting with
the public at such an early stage. The
commenters' position was that any draft
plan put together within 7 months after
the standards are finalized would be
tentative only. They were reluctant to go
to the public with a tentative plan that
was likely to change significantly before
it was final.
EPA agrees with commenters that the
time frames are tight. In order to be
operating within the new limits by the
end of the compliance period, it is
imperative to start the planning process
immediately. In recognition of
commenters' concerns about preparing
the draft plan, EPA is extending the
time frames in the final rule. In
accordance with the provisions in
§ 63.1211, the final NIC will be due to
the permitting agency within one year of
promulgation of the final standards. The
NIC meeting must be held no later than
10 months following promulgation, and
the draft NIC made available at least 30
days before the meeting is held. So,
facilities basically have 2 extra months
to prepare a draft document, and 3 extra
months to submit a final NIC to the
permitting agency. The revised time
frames should provide sufficient time
not only to prepare the initial draft, but
also to revise it, as appropriate, to reflect
discussions from the public meeting and
final engineering decisions about the
source's operation.
The Agency understands the concerns
expressed by commenters about sharing
draft material with the public. However,
EPA does not expect, nor should
facilities or the public expect, the draft
NIC to describe all of the technical
aspects of the compliance options in
extensive detail. Similarly, discussion of
the options at the public meeting should
not focus on minute details. The
purpose of sharing the draft and
discussing the options at the public
meeting is to capture major ideas in a
planning document, to facilitate
dialogue regarding a facility's
compliance strategy, and to discuss
possible courses of action. The
information in the draft NIC should be
sufficient to stimulate this level of
discussion. The more in-depth technical
discussion can be incorporated into the
final document. Since all sources are
required to have the final NIC submitted
to the permitting agency one year after
the final standards are promulgated,
anyone may request a copy of it from
the permitting agency at that time.
4. NIC Meeting
EPA is requiring facilities to provide
notice of and host an informal meeting
with the community to discuss
anticipated plans for complying with
the MACT emissions standards (see
§ 63.121 l(b)). The meeting must take
place within 10 months of the final
standards being promulgated. At least
30 days before the meeting takes place,
the facility must provide public notice
of the meeting, and must make the draft
NIC available for public review.
Commenters were generally
supportive of EPA's intent to require a
public meeting to discuss compliance
planning. Some commenters had
specific concerns, ranging from the
timing issues addressed above, to the
methods for providing notice, and the
potential for being required to conduct
several redundant meetings to meet
various purposes.
EPA had listed three mechanisms in
the NODA for providing notice of the
public meeting: a display ad in a
newspaper, a sign at the facility, and a
broadcast announcement. These were
the same mechanisms used to provide
notice of the RCRA pre-application
meeting, and EPA believes they are
appropriate for the NIC meeting as well.
At least one commenter thought the
mechanisms were too broad, and that a
notice via newspaper and a sign at the
facility would be enough. Another
commenter suggested that a notice be
sent to the facility mailing list as well.
EPA decided not to limit the notice
methods for the NIC meeting, but did
add the facility mailing list to the
methods in § 63.1211 (b) (3). Each of
these notices must include the date,
time and location of the meeting, a brief
description of the purpose, a brief
description of the facility, a statement
asking people who need special access
to notify the facility in advance, the
name of a contact for the NIC, and a
statement describing how the draft NIC
can be obtained.
Commenters who were concerned
about redundant public meetings
described a few possible scenarios. For
example, in states that do not adopt the
streamlined RCRA modification
procedures a facility might be required
to conduct a public meeting as part of
a Class 2 or 3 RCRA modification, as
well as the NIC meeting. Federal
facilities might have public meeting
requirements under the National
Environmental Policy Act (NEPA).
Other facilities might be facing RCRA
pre-application meetings, either for
initial permits or those up for renewal.
Or, some facilities might have routine
meetings scheduled with communities
as part of Responsible Care or Good
Neighbor agreements.
It is not EPA's intent in imposing the
NIC meeting requirement to create
duplicative requirements for public
meetings. To do so would burden both
the facility and the public. Everyone's
time is valuable, and most people would
probably prefer not to go to several
meetings if one will do. EPA recognizes
this, and would like to clarify that
nothing in today's rule precludes a
facility from combining meetings as
long as the purposes of each are served.
EPA sees combining events, particularly
public involvement activities, as a first
step in moving towards a multi-media
approach to environmental
management. Thus, if a facility has to
complete a class 2 or 3 RCRA
modification because it is located in a
state that has not adopted the RCRA
streamlined modification process, EPA
would expect, and fully encourage, the
facility to set up one meeting that would
serve both the RCRA requirements and
the CAA NIC requirements. The same is
true for combining the NIC meeting with
a RCRA pre-application meeting, if the
facility has to host one for either an
initial RCRA permit or because its
permit is up for renewal, or with other
types of public meetings the facility may
have scheduled.
A few commenters expressed
concerns about responding to public
comments on the draft NIC, either
during or following the public meeting.
They cited time as the driving reason for
this concern; they suggested their time
would be better spent finalizing their
plans for complying than formally
responding to comments. One
commenter noted that it was unclear in
the NODA whether the draft NIC would
be available prior to the meeting. In
response, EPA would like to clarify that
facilities are not required to formally
respond to any comments, oral or
written. However, it is important to
keep in mind that the public may
request a copy of the final NIC, and will
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33809
be reviewing the facility's final plans for
coming into compliance. Facilities must
also submit a summary of the meeting
to the permitting agency as part of the
final NIC, so the permitting agency will
be apprised of the discussions that took
place. EPA believes that this provides
incentive for the facility to address any
significant issues raised by the public in
the NIC meeting.
EPA expects that the exchange
between the facility and the community
that takes place during the meeting will
be much like it is for RCRA pre-
application meetings. That is, the
Agency intends for the meeting to
provide an open, flexible and informal
occasion for the facility and the public
to discuss various aspects of the
facility's compliance strategy. The
Agency anticipates that the facility and
the public will share ideas, and build a
framework for a solid working
relationship. The final NIC should
reflect, to the extent appropriate, ideas
or suggestions raised by the public.
The final provisions in §63.1211
clarify that the draft NIC must be made
available to the public at least 30 days
before the meeting is to take place. This
will provide sufficient time for people
to review the facility's intended
strategy. EPA did not prescribe in the
regulations the manner in which the
draft NIC must be provided. There is not
a "one-size-fits-all" approach to getting
information out to the public. It is more
logical to allow the facility to make that
decision in the context of their
particular situations. For example, if a
facility has an information repository
established, the draft NIC may be made
available there. Or they could make it
available upon request, since the name,
phone number, and address of the NIC
contact must be in the meeting notice.
5. Relation Between NIC and Other
Notification Requirements
The requirements for the NIC are
being promulgated in a new subpart
applicable to HWCs in the Part 63 CAA
regulations. Several commenters did not
believe it necessary to add these new
requirements, arguing that existing
provisions under both the CAA and
RCRA would fulfill the purpose of the
NIC. They cited the initial notification
requirements in §63.9(b), the
notifications of compliance status in
§ 63.9(h), Title V permit application
requirements in §70.5(c), and RCRA
public involvement requirements in
§ 270.42 (permit modification
procedures).
EPA has reviewed the requirements in
each of these sections, and is not
persuaded that the information or the
timing of the submittals are sufficient to
meet the objectives of the NIC. In terms
of the information, the NIC actually
seems to fall between the initial
notification and the notification of
compliance status. The information
included in the NIC supplements the
initial notification requirements in 40
CFR Part 63,9(b). The initial notification
requirements in §63.9(b) address basic
information such as name and address
of the owner and the source, and a brief
description of the source. The focus is
on the source as it exists, not as it may
need to be modified to meet new
standards. The information in the NIC
provides this next step—it focuses on
what types of changes might have to
take place in order to achieve the
emission limits set by MACT. The types
of changes may be physical, such as
adding or replacing air pollution control
devices, or they may be operational, for
example, achieving lower emissions by
minimizing the waste generated
elsewhere that is subsequently used as
fuel for the combustor.
The information required in the NIC
will enable the public to engage in a
meaningful dialogue about the facility's
compliance strategy, including a
discussion of the various options under
consideration. For example, when a
facility identifies and describes the type
of control technique(s) being
considered, it would be ideal for the
facility to have examined all of the
waste minimization and/or pollution
control options available, including
emission control through process
modification, feed restriction, and
pollution control equipment, (e.g., Hg
control by production process changes,
recovery, segregation, feedrate
restriction, carbon injection, carbon bed,
wet scrubbing, etc.). The compliance
notification requirements in §63.9(h),
on the other hand, have a different
objective. They focus not on options for
coming into compliance, but rather on
how compliance will be demonstrated
and monitored.
EPA chose not to tie the NIC
requirements to the Title V permitting
process. In terms of timing, the Title V
process may not always be appropriate.
It is important to keep in mind that
MACT standards set forth in Part 63 are
self-implementing; activities associated
with them often take place outside of
the permitting process. When MACT
standards are promulgated, sources
must begin adhering to the regulations,
regardless of where they stand in the
Title V permit process. For example,
sources that already have Title V
permits do not have to reopen them
until renewal, if they are within 3 years
of the expiration date. This time frame
obviously is too long to meet the goals
of the NIC. In addition. Title V permits
contain all applicable requirements for
all sources at a facility. To use the Title
V process just for hazardous waste
combustors is not practical.
The Agency has also determined that
the information requirements for Title V
applications do not meet the spirit of
the NIC. Like the §63.9(h) compliance
notification requirements, the Title V
information does not address options for
achieving compliance, particularly with
regard to waste minimization and
pollution prevention techniques being
considered. Of course, the NIC is not
intended to be the primary vehicle for
waste minimization or pollution
prevention planning. EPA expects that
these are ongoing areas of exploration
for facilities. EPA does expect, however,
that to the extent these may be used to
achieve compliance with the MACT
standards, facilities will investigate
them as viable options and will discuss
them as such with the public.
Some commenters suggested that
facilities having to follow Class 2 or 3
RCRA permit modification procedures
(e.g., because they are located in states
that do not adopt the RCRA streamlined
modification procedures) not be
required to submit a NIC, since public
meetings are a required step in those
procedures. Another suggested that
RCRA interim status facilities not be
subject to NIC requirements, because
they are not "losing" any public
involvement in a modification process
(since they have no permit to modify).
EPA disagrees with these suggestions.
The NIC is broader in scope than just
facility modifications that may have to
be incorporated into a RCRA permit or
that may be accomplished by following
the procedures in 40 CFR 270.72(a) for
allowable changes under interim status.
The NIC is intended to lay out for
discussion the source's overall plan for
achieving compliance; this goal is
relevant regardless of whether the
facility is operating under a permit or
under interim status. Facility changes
under RCRA would just be one piece of
the overall document, and one segment
of the public discussion. As stated in
the previous section, however, there is
nothing in today's rule that precludes a
facility having to follow Class 2 or 3
permit modification procedures from
combining the public meeting required
as part of the modification process with
the public meeting required as part of
the NIC process. EPA would expect, and
fully encourage, a facility in this
situation to set up one meeting that
would serve both purposes.
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D, Discussion of Public Comments and
Progress Report
1. Overview
The Clean Air Act requires the
Administrator to establish a compliance
date or dates for each category or
subcategory of existing sources, which
shall provide for compliance as
expeditiously as practicable, but in no
event later than 3 years after the
effective date of such standard, except
as provided via a one year extension.
CAA section 112(i)(3). EPA believes that
compliance as expeditiously as
practicable will have numerous benefits
for human health and the environment.
In particular, for those sources that do
not intend to ultimately come into
compliance with the emission standards
of this Subpart, expeditious compliance
would be achieved by ceasing to burn
hazardous waste. The Agency
anticipates that numerous sources will
choose not to come into compliance
with the requirements of this rule, and
will cease burning hazardous waste
prior to issuance of the rule or at some
later date, but prior to the compliance
date. This section is intended to
expeditiously limit the burning of
hazardous waste by those sources who
do not intend to come into compliance
with the requirements of the emission
standards of this Subpart, but continue
to burn hazardous waste after the
effective date of the emission standards
of this Subpart. These sources are, quite
simply, able to meet the standards
earlier than the three years allowed for
sources which will continue to burn
hazardous waste. Thus, for this class of
facilities, EPA is creating a means of
compliance "as expeditiously as
practicable" (CAAsection 112(i)(3)).
In the April 1996 proposal, the
Agency invited comment on how
sources could be identified and
strategies that could be used to
encourage or require these types of
sources to comply at the earliest
possible date. Several commenters
suggested methods to require sources to
identify their intent to comply or not
comply with the emission standards
soon after the promulgation of the final
rule for these standards. They also
suggested that those sources that did not
intend to come into compliance would
be required to stop burning hazardous
waste.
2. Summary of Progress Report
Requirements
The Agency has adopted in the final
rule a variation of the concept
commenters suggested along the lines of
the April 1996 concept EPA proposed.
The final rule requires those sources
subject to the rule to signify in their NIC
an intent to comply or not to comply
with the requirements of the emission
standards of this Subpart. Sources who
make the decision not to comply with
the rule must stop burning hazardous
waste on or before two years after the
effective date of the emission standards
of this Subpart. The Agency believes
that two years is an adequate length of
time for these sources to arrange for
alternate management of their
hazardous waste through process
changes to minimize the waste, use of
alternate on-site management, or the use
of off-site management. Those sources
who intend to come into compliance
with the emission standards will have
the full three years to come into
compliance as intended by the statute.
The sources who do not intend to
comply with this rule must include in
their NIC a schedule that includes key
dates for the steps to be taken to stop
burning hazardous waste. Key dates
include the date for submittal of RCRA
closure documents. The types of closure
documents that would need to be
submitted will most likely vary
depending on the source's status. For
example, if a source is in interim status,
it may need to submit a closure plan. If
the source is permitted, it will probably
need to update its closure plan (that is
part of the permit); thus, the
"document" may be a permit
modification request.
a. Submittal. Commenters suggested
that sources submit progress reports to
track source's actions toward
compliance. The Agency also believes
that a progress report would be a useful
tool to evaluate a source's progress
toward compliance. In the final rule,
EPA requires those sources to submit to
the regulatory authority a progress
report on or before two years after the
effective date of the emission standards
of this Subpart. Any sources burning
waste on and/or after two years
following the effective date of the
emission standards of this Subpart will
be required to submit a progress report.
b. Demonstration. The Agency
believes that any source which intends
to come into compliance with the
emission standards of this Subpart,
except for those sources in compliance
on the effective date of the emission
standards of this Subpart, will be
required to make modifications to the
source to come into compliance. To
gauge the progress of these
modifications, the final rule requires
sources to submit with their progress
report information demonstrating that
the source has: (1) Completed
engineering design for any physical
modifications to the source needed to
comply with the emissions standards of
this Subpart; (2) Submitted applicable
construction applications to the
applicable regulatory authority; and (3)
Entered into a binding contractual
commitment to purchase, fabricate, and
install any equipment, devices, and
ancillary structures needed to comply
with the emission requirements of this
Subpart. Those sources which fail to
make this demonstration in their
progress report or who fail to submit a
progress report shall stop burning
hazardous waste on or before the date
two years after the effective date of this
Subpart.
Because the types of modifications
that sources will have to make are
anticipated to require the commitment
of substantial resources, sources are
required to demonstrate that they have
entered into a binding contractual
commitment to purchase the resources
necessary to make those modifications.
Some examples of binding contractual
commitments follow; however, EPA
may judge other demonstrations
adequate on a case-by-case basis. In
some cases, EPA will allow evidence of
an in-house construction plan to satisfy
the demonstration. If on-site labor by
facility personnel will be used, a
statement of commitment must be
provided by upper management, and
such other evidence of a commitment as
is available, such as company
memoranda or annual budgets
committing funds, purchase orders, or
copies of contracts with any suppliers of
equipment or materials. EPA expects
that, in most cases, sources will use off-
site resources in their modifications. To
demonstrate commitment in these cases,
sources must provide copies of binding
contracts with companies to perform
tasks or supply equipment that will
facilitate bringing the source into
compliance.
There may be a limited number of
sources who intend to come into
compliance, but will not need to
undertake any of the activities identified
in the demonstration criteria above to
do so. These sources are required to
submit instead documentation: (1)
Demonstrating that the source, at the
time of the progress report, is in
compliance with the emissions
requirements; or (2) specifying the steps
that will be taken to bring the source
into compliance, without undertaking
any of the activities identified in the
demonstration criteria. The Agency
anticipates that few if any sources will
not need to enter into binding contracts
in order to come into compliance with
the emission standards of this Subpart.
Those sources who indicated in the
NIC their intent not to comply with the
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33811
emission control requirements of this
Subpart must still submit a progress
report. These sources, however, must
only indicate that they have stopped
burning hazardous waste and have
submitted the required RCRA closure
documents.
c. Schedule. To determine that
facilities are undertaking the steps
necessary to come into compliance by
the compliance date, the progress report
shall contain a schedule. This schedule
must take into account the key dates
listed in 63.1211 (a) (l)(ii) for projects
that will bring the source into
compliance with the emission
standards. The schedule must cover the
time frame from the submittal of the
progress report through the compliance
date of the emission standards. EPA is
requiring that the following key dates,
as applicable to each source, be
contained in their schedule: (1) Bid and
award dates for construction contracts
and equipment supply contractors; (2)
milestones such as ground breaking,
completion of drawings and
specifications, equipment deliveries,
intermediate construction completions,
and testing; (3) the dates on which
applications were submitted for or '
obtained operating and construction
permits or licenses; (4) the dates by
which approvals of any permits or
licenses applied for are anticipated; and
(5) the projected date by which the
source will be in compliance with
emission standards. The Agency
anticipates that many sources will be
able to update the schedule included
with their NIC in submitting a schedule
for the progress report.
d. Sources That Do Not Intend To
Comply. The Agency anticipates that
some facilities, which intended to
comply at the time of their NIC
submittal, may make the determination
not to comply based on engineering
studies or evaluations by the time of
their progress report submittal. Those
sources that signify in their progress
report, submitted on or any time before
two years after the effective date of the
emission standards of this Subpart, their
intention not to comply with the
requirements of this Subpart must stop
burning hazardous waste on or before
the date two years after the effective
date of the emissions standards of this
Subpart. Sources who, at the time of
their NIC submittal, have any belief or
concern that they may decide not to
comply with the emission standards
should consider planning alternate
waste management alternatives well in
advance of the two year stop burning
deadline.
e. Facilities with Multiple Sources.
Commenters stated that some facilities
may have multiple units at the same site
subject to the MACT requirements.
These facilities may decide to bring a
portion of the sources into compliance
and cease burning hazardous waste in
the other portion of their sources. If a
facility did decide to upgrade one or
more units, it may be necessary to
utilize the remaining unit, in which it
intended to stop burning hazardous
waste prior to the compliance date, to
handle the capacity of the unit being
upgraded until the installation of
controls was complete. The commenters
believed that it was unjustified to close
a source at the two year deadline in the
case where a source: (1) Was designated
for closure at or before the three year
compliance date; and (2) was handling
the waste from another on-site source
being upgraded to comply with the
MACT standards or in order to install
source reduction modifications
eliminating the need for further
combustion of wastes.
The Agency agrees that the intent of
the requirement for sources that did not
intend to comply to stop burning
hazardous waste should not apply to
these types of sources. Therefore, the
requirement to stop burning hazardous
waste at the two year deadline does not
apply to a source if: (1) The source was
designated in the NIC as a source that
would stop burning hazardous waste on
or before the compliance date; and (2)
the source was shown in the NIC to be
necessary to handle the capacity of
another on-site source while that source
was unable to handle the waste and
undergoing modifications to come into
compliance with the emission standards
of this Subpart or in order to install
source reduction modifications
eliminating the need for further
combustion of wastes.
E. Certification
To ensure that information submitted
by a source is true and accurate, all NIC
and progress reports submitted shall
contain the following certification
signed and dated by an authorized
representative of the source: "I certify
under penalty of law that I have
personally examined and am familiar
with the information submitted in this
document and all attachments and that,
based on my inquiry of those
individuals immediately responsible for
obtaining the information, I believe that
the information is true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of
fine and imprisonment."
An authorized representative should
be a responsible corporate officer (for a
corporation), a general partner (for a
partnership), the proprietor (of a sole
proprietorship), or a principal executive
officer or ranking elected official (for a
municipality, State, Federal, or other
public agency).
F. Extension of the Compliance Date
The CAA provides sources that intend
to come into compliance, but because of
the need to install controls will not meet
the compliance date, the ability to
request an extension of the compliance
date for one year. The Agency believes
facilities that choose to install process
changes (which are essentially pollution
prevention or waste minimization
measures) and/or other controls that are
appropriate for meeting MACT
standards are eligible to request a one
year extension of the compliance date to
install these controls (CAA Section
112 (i) (3) (B)). Facilities that request an
extension to install pollution prevention
and/or waste minimization measures
may use part 63.1216 below, which
describes the pollution prevention
related information to be submitted.
Facilities that request an extension for
installing only end-of-pipe emission
controls may use part 63.6(i)(4)
requirements. In either case, the
extension request shall be filed at least
one year prior to the compliance date of
this Subpart.
G. Sources Which Become Affected
Sources After the Effective Date of This
Subpart
The Agency is concerned that there
may be sources who become subject to
the emission standards of this Subpart
after the effective date of the emission
standards of this Subpart. The following
is intended to clarify the requirements
and time frames that must be met by
such sources. A source which begins to
burn hazardous waste after the effective
date of the emission standards of this
Subpart, therefore becoming an affected
source, but prior to 9 months after the
effective date of the emission standards
of this Subpart, shall comply with all
the requirements of this section and
associated time frames for public
meetings and document submittals.
A source which intends to begin
burning hazardous waste after 9 months
after the effective date of the emission
standards of this Subpart, therefore
becoming an affected source, shall meet
all the requirements concerning the NIC
and progress report prior to burning
hazardous waste. Such sources shall
make a draft NIC available, notice their
public meeting, hold their public
meeting, and submit a final NIC prior to
burning hazardous waste. Such sources
also shall submit their progress report at
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the time of the submittal of their final
NIC.
VI. Waste Minimization and Pollution
Prevention
A. Overview
Pollution prevention is widely
recognized as the most preferable form
of environmental management. Indeed,
the Clean Air Act, the Pollution
Prevention Act, and the Resource
Conservation and Recovery Act
explicitly make pollution prevention the
preferred tool in our nation's
environmental management toolbox.
The States have been strong leaders as
well in moving pollution prevention to
the forefront. Over the past decade, 30
states have passed legislation that
promotes pollution prevention.18 Those
States have embarked on a variety of
programs that move pollution
prevention more into the mainstream of
their environmental management
strategies—ranging from pollution
prevention based permits and
inspections, to mandatory pollution
prevention planning programs, to
voluntary partnerships and technical
assistance. Nearly every State operates
some form of pollution prevention
technical assistance program to help
companies reduce as much waste as
possible at the source.
EPA has embarked on several
experimental programs, including, for
example. Project XL and the Common
Sense Initiative, to identify barriers in
Federal regulations that impede cleaner,
cheaper, smarter environmental
solutions, and to demonstrate ways of
redrafting regulations to provide greater
flexibility in solving environmental
problems.
In 1994, EPA began an extensive
outreach effort to begin identifying
pollution prevention barriers and
incentives affecting hazardous waste
combustion. Over the course of the past
four years. EPA has worked extensively
with the States, industry, environmental
groups, and citizens, in many dozens of
discussions and correspondences to
explore a broad range of approaches to
pollution prevention in the combustion
arena. Today's rulemaking puts in place
several incentive based pollution
prevention and waste minimization
incentives that derive from that long
term effort, and that will provide the
regulated community with additional
flexibility to use pollution prevention
technologies where it makes sense to do
so. Some barriers were identified that
are not easily solvable within the limits
i*Pollution Prevention 1997. A National Progress
Report Dune. 1997). U.S. Environmental Protection
Agency. EPA 742-R-97-00, Washington. D.C.
of the Clean Air Act, such as time limits
on compliance that sometimes force
companies to install end-of-pipe
emission controls, instead of pollution
prevention process changes, because
they are faster and less risky to install.
Nevertheless, today's rule suggests an
approach that can address even this
problem.
Today's rule contains incentives that
provides the regulated community:
—several months of planning time
before the MACT compliance period
begins to explore cost effective
pollution prevention alternatives that
might reduce the cost of hazardous
waste combustion,
—the opportunity to extend the
compliance period by one year where
the additional time is needed to
install pollution prevention controls
that reduce the amount of hazardous
waste entering combustion units, and
—the opportunity to engender public
support on pollution prevention
alternatives that reduce the amount of
waste that will be combusted.
The six pollution prevention
alternatives EPA published for
comment, the comments received and a
description of the incentives contained
in today's rule are discussed further
below.
B. Background
The goals of the Clean Air Act clearly
express Congress' intent to use pollution
prevention as a fundamental tool for
protecting our nation's air resources:
"A primary goal of this chapter is to
encourage or otherwise promote
reasonable Federal, State, and local
government actions, consistent with the
provisions of this chapter, for pollution
prevention." (Clean Air Act, Section 101
(c))-"
"Air pollution prevention (that is, the
reduction or elimination , through any
measures, of the amount of pollutants
produced or created at the source)
* * * is the primary responsibility of
States and local governments." (Clean
Air Act, Section 101 (a)(3))."
Congress' intent in the CAA is
consistent, if not identical, to the
policies set in the Pollution Prevention
Act of 1990 (PPA) and the Hazardous
and Solid Waste Amendments to RCRA
of 1984, RCRA Section 1003(b) and
Section 6602 (a).
More specifically, we note the
definition of pollution prevention as
used in the CAA is best captured in the
operational definition used in Section
112 (d)(2). This section requires EPA to
consider pollution prevention
techniques in addition to "end of pipe"
emission controls and other methods in
the setting of MACT standards.
Pollution prevention is used here to
include: "measures, processes, methods,
systems, or techniques including, but
not limited to, measures which * * *
(A) reduce the volume of, or eliminate
emissions of, such pollutants through
process changes, substitutions of
materials or other modifications, * * *
or (D) are design, equipment, work
practice, or operational standards
(including requirements for operator
training or certification) * * *"
To avoid some of the historical
confusion that has occurred over the
definitions of pollution prevention and
waste minimization, it is useful to
compare the CAA definition to those in
the PPA and in the Hazardous and Solid
Waste Amendments to RCRA of 1984.
The PPA (at Section 6603(5) (A))
defines pollution prevention as source
reduction activities, which includes any
practice that reduces the amount of
hazardous substance, pollutant or
contaminant entering a waste stream, or
otherwise prior to recycling, treatment
or disposal. It includes such activities
as: equipment or technology
modifications, reformulation or redesign
of products, substitution of raw
materials, improvements in work
practices, maintenance, training, and
inventory control. The meaning
contained in the PPA is essentially the
same meaning referred to in Section
112(d)(2) of the CAA. Both focus on
reducing waste generation at the source
by making changes in the way things are
manufactured.
The PPA excludes from pollution
prevention any practice which "alters
the physical, chemical, or biological
characteristics or the volume of a
hazardous substance, pollutant, or
contaminant through a process or
activity which itself is not integral to
and necessary for the production of a
product or the providing of a service."
(Section 6603(5)(B). In essence, this
definition excludes waste management,
recycling (except for closed loop
recycling that is integrated into
production processes), burning for
energy recovery, waste treatment, and
disposal.
Since many of the facilities affected
by today's rulemaking are
simultaneously regulated by RCRA, it is
important to also explain the use of the
term waste minimization, under RCRA.
Waste minimization includes
pollution prevention (or source
reduction) and environmentally sound
recycling, i.e., recycling that does not
constitute disposal (see 40 CFR
261.1(c)). It does not include
treatment—i.e. any "method, technique,
or process, including neutralization.
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33813
designed to change the physical,
chemical or biological character or
composition of any hazardous waste so
as to neutralize such waste, or so as to
recover energy or material resources
from the waste, or so as to render such
waste non-hazardous, or less hazardous;
safer to transport, store or dispose of; or
amenable for recovery, amenable for
storage, or reduced in volume." (40 CFR
260.10). RCRA also contains
requirements for hazardous waste
generators and permitted waste
management facilities to make routine
certifications that they have a "waste
minimization program in place," and
large generators must also report waste
minimization activities biennially.
The environmental literature and
public statements of many companies
provide strong evidence of the potential
benefits to industry and the
environment that result from using
pollution prevention over waste
generation and management. For
example, pollution prevention
techniques can help companies reduce
the amount of raw materials purchased
and the amount of waste generated.
These reductions can reduce the amount
spent on waste management and can
also reduce worker exposure to
hazardous substances. Pollution
prevention can help companies improve
product yield and find ways to recover
materials that might otherwise be
destroyed or landfilled.
The literature also points to barriers
that may impede a company's ability to
pursue pollution prevention. Barriers
may include, for example: little or no
access to technical information on
pollution prevention technologies,
concern over the impact of process
changes on product quality, a lack of
access to capital, requirements in
existing environmental regulations that
conflict with pollution prevention
objectives. •
Today's regulation focuses on
reducing several potential regulatory
barriers that could interfere with
pollution prevention solutions. The
incentive based approach contained in
today's rule is explained further below.
C. Summary of Proposed Pollution
Prevention/Waste Minimization
Incentives and Comments Received
EPA requested comment on six
alternatives for promoting pollution
prevention and waste minimization at
hazardous waste incinerators, cement
kilns and LWAKs. Three were proposed
in the Agency's April 1996 NPRM and
three were proposed in the Agency's
Notice of Data Availability (NODA)
published in the Federal Register on
May 2, 1997 (Revised Technical
Standards for Hazardous Waste
Combustion Facilities; Proposed Rule,
62 FR 24241). All six incentive based
alternatives were designed to promote
the identification and installation of
pollution prevention and waste
minimization techniques that reduce or
eliminate the amount and/or toxicity of
hazardous wastes entering combustion
feedstreams, either as an alternative to
end-of-pipe combustion measures, or in
combination with combustion measures,
to meet MACT standards.
Two of the six alternatives proposed
focused on using waste minimization
facility planning as a tool that would
cause regulated facilities to identify
pollution prevention/waste
minimization measures that could be
used to reduce the amount and/or the
toxicity of hazardous wastes entering
combustion feedstreams. Two
additional alternatives focused on
extending compliance deadlines to
allow additional time for companies to
fully explore pollution prevention/
waste minimization measures and
combustion measures that may be
necessary to meet MACT standards. A
fifth alternative requested comment on
. an approach that would harness the
power of public involvement during the
initial stage of corporate compliance
planning. The sixth alternative
proposed promulgating pollution
prevention and waste minimization
incentives several months before the
MACT standards are promulgated—
which would provide companies several
months of advance planning time before
the MACT compliance period begins.
The alternatives were not designed to be
exclusive. Today's rule promulgates a
combination of three of these options,
encourages States to adopt two others,
and recommends an alternative
voluntary approach for the sixth. The
options, comments received and EPA's
response to major comments are
discussed below. EPA's response to
each comment is contained in the
docket.
EPA received over 40 comments on
the options contained in the April 1996
NPRM and the NODA. Most of the
commenters addressed one or more of
the following topics:
—Time-based incentives, including the
opportunity to enter into enforcement
agreements beyond four years,
—The effectiveness of pollution
prevention planning and planning
criteria,
—Perceived effectiveness of pollution
prevention in the context of this
rulemaking,
—Setting MACT standards based on
. pollution prevention/waste
minimization.
—Public review of pollution prevention
and waste minimization,
—The role of pollution prevention and
waste minimization in waste
management,
—The definition of pollution prevention
and waste minimization, and
—Applicability of pollution prevention
incentives to commercial facilities.
EPA asked for comments on the
appropriateness of two options
requiring pollution prevention/waste
minimization facility planning. One
option would require facilities to
complete a waste minimization facility
plan that identifies alternatives for
reducing the amount of hazardous waste
managed by combustion. While this
approach would not require facilities to
select any particular pollution
prevention technology, it presumes that
going through the process of exploring
alternatives would cause a company to
consider more pollution prevention
options than they would have otherwise
and select any that are cost-effective.
In the second waste minimization
planning option, EPA proposed to allow
States and EPA Regions (in cases where
States are do not have an approved CAA
Title V program) to require pollution
prevention planning on a case-by-case
basis. Determining which facilities
should be required to complete a
pollution prevention/waste
minimization facility plan could take
into account several factors, including,
for example, whether an existing state
program had already accomplished this
objective, the extent to which this
requirement may be too burdensome for
some states, and the extent to which
facility specific conditions indicate
emissions could be controlled by feed
stream management and waste
minimization at the source.
A variety of commenters addressed
this issue. Four states and one state
association commented pollution
prevention/waste minimization should
be the highest priority waste
management approach, though they had
diverse and sometimes conflicting
opinions about the specific options
proposed. One State commented that
mandatory planning should be required
for all facilities that generate and
combust waste on-site, and that
planning should be required on a case-
by-case basis for commercial off-site
combustion facilities. One State and the
State association stated that the
mandatory planning requirement should
be expanded to include all facilities that
generate waste managed by combustion.
A fourth State said that no waste
minimization incentives should be
included in this rule because the
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regulated community has had many
years to reduce waste generation
through pollution prevention/ waste
minimization, and should have already
considered waste minimization as an
approach to compliance. One state did
not comment specifically on the
pollution prevention planning options
but was in favor of encouraging
pollution prevention incentives in this
rule.
This diversity of opinion among
States leads EPA to believe that the
pollution prevention/waste
minimization incentives contained in
this rule must allow broad flexibility for
State programs. EPA is also aware, from
discussions outside the context of this
rulemaking, that some states are
specifically opposed to mandatory
pollution prevention requirements, and
a few states have not yet established
pollution prevention programs.
Several dozen comments were
received from industry. Most of the
comments from companies who
generate and combust waste on-site
were in favor of pollution prevention/
waste minimization as the most
desirable form of waste management.
However, most were opposed or silent
regarding required pollution prevention
planning. Only one argued that
mandatory pollution prevention
planning is not appropriate, and that the
case by case option provides greater
flexibility and is therefore more
appropriate.
Commercial combustion facilities
generally oppose pollution prevention
planning requirements because they
have virtually no control over what
types or how much waste their
customers generate for combustion.
However, one company argued strongly
for the Agency to require mandatory
pollution prevention planning by all
regulated units to identify pollution
prevention alternatives that eliminate or
reduce the amount and toxicity of
combusted wastes. The commenter
further argued that pollution prevention
should be used to leverage the closing
of combustion units where wastes could
more effectively be eliminated or
reduced. Another commercial company
believes EPA should implement "good
actor" incentives for companies that
educate their customers regarding
available waste minimization resources.
Such incentives could include reduced
inspection frequencies, reduced
performance testing, and a recognition
program. This approach was not
suggested by any other commenters.
EPA believes this approach might be
appropriate for further exploration at a
later time. One Federal agency
commented in favor of a case-by-case
approach.
EPA considered several factors
regarding this approach. First, the CAA
clearly envisions States as the primary
implementers of the Title V program,
and the pollution prevention programs
operated by the States are clearly
diverse. While 15 States have enacted
mandatory pollution prevention
planning programs, the remaining States
continue to emphasize voluntary
pollution prevention programs and
technical assistance to encourage
pollution prevention.
Available data shows that mandatory
pollution prevention planning can be an
effective State tool. It is not clear how
effective this approach would be for a
broad array of states. In a review of
seven states that have chosen to
implement mandatory pollution
prevention planning programs, the
National Pollution Roundtable
concludes that mandatory pollution
prevention planning produces beneficial
results for the regulated community and
the environment, and encourages other
states to consider this direction.19
However, New Jersey (one of the seven
States reviewed) notes in a separate
report that its companies began making
significant reductions through pollution
prevention well before the State passed
legislation requiring mandatory
pollution prevention planning. In this
case, the State is not able to pinpoint
why this occurred.20
Of the 21 commercial hazardous
waste incinerators and the 141 on-site
hazardous waste incinerators (i.e.,
incinerators co-located with a company
manufacturing facilities), 58 percent are
located in states which have legislated
pollution prevention programs already
in place. Nearly all of the remaining
facilities are located in States that
provide pollution prevention technical
assistance. In addition, all of these
facilities are co-regulated by RCRA and
have been required since 1984 to certify
on an annual basis, that they have a
waste minimization program in place.
Therefore, it is not clear what additional
pollution prevention benefits would
result from a mandatory requirement.
Based on its analysis, EPA believes that
a federal requirement for pollution
prevention planning is not appropriate.
EPA also considered the impact
Federal pollution prevention planning
19 "Facility Pollution Prevention Planning
Requirements: An Overview of State Program
Evaluations." National Pollution Prevention Round
table (August 8. 1997). Washington, D.C. 20036.
IOAucott. M.. Wachspress, D.. & Herb J.. (May,
1996). "Industrial Pollution Prevention in New
Jersey." New Jersey Department of Environmental
Protection. Trenton. N.J.
requirements would have on the
Agency's paperwork reduction
commitments. EPA is committed to
decreasing its information collection
request budget. In light of the baseline
requirements and voluntary programs
States have already established in this
area, EPA concludes this requirement
would increase federal paperwork
without necessarily creating a
commensurate improvement in
environmental quality.
EPA has also expanded the
availability of voluntary pollution
prevention incentives available—which
in turn reduce the need for mandatory
federal pollution prevention
requirements. For example, EPA has
recently released the "Waste
Minimization Prioritization Tool."21
This tool is an easy-to-use computer
program that allows industrial,
government and public users to quickly
identify their highest hazard wastes as
targets for pollution prevention efforts.
The tool allows the user to enter
information on particular waste streams
and develop a screening-level
assessment of chemicals based on their
persistence, bioaccumulation potential,
and human and ecological toxicity. The
system ranks about 900 chemicals that
have "complete" data on chemical
persistence, bioaccumulation potential,
and human and ecological toxicity, and
it includes partial data for 3,800 others.
This tool has received much review and
is targeted for widespread distribution
in the regulated community.
EPA continues to provide $5-$8
million dollars per year in grant funds
to States that develop innovative
pollution prevention approaches, and
EPA is promoting pollution prevention
innovation in States through the
National Environmental Performance
Partnership System (NEPPS). NEPPS
agreements give the States flexibility to
combine individual program grants to
maximize achieve environmental goals,
including using funds for pollution
prevention that have historically been
used for end-of-pipe pollution controls.
Texas, New Jersey, and Ohio (which
oversee a total of 45 hazardous waste
incinerators) are among the states that
signed NEPPS agreements in 1996.
Thirty states were scheduled to
negotiate NEPPS agreements in 1997.
In addition, a variety of government-
industry partnerships are producing
pollution prevention results. For
example, 163 industry members of
Texas' Clean Industries 2000 program
21 "Waste Minimization Prioritization Tool,
Version 1.0: User's Guide and System
Documentation." (EPA 530-R-97-019. June. 1997).
U.S. Environmental Protection Agency,
Washington. D.C.
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33815
are committed to reducing emissions of
Toxic Release Inventory (TRI) chemicals
by 50 percent by the year 2000. A
twenty-nine percent reduction was
reached by the year 1994.
Balancing all of the above factors,
EPA believes mandatory and case-by-
case pollution prevention planning
approaches are not necessary to achieve
the pollution prevention goals of the
CAA. A combination of strong
incentives and broad flexibility for
States and the regulated community,
including some of the options discussed
below and contained in today's rule,
will accomplish the pollution
prevention goals of the CAA.
Two options were proposed that
would allow the MACT compliance
period to be extended for facilities that
demonstrate the need for extra time to
install pollution prevention measures.
One of these options would allow
facilities to apply for a one-year
compliance extension to the MACT
compliance period under Section
112(i)(3)(B) where additional time is
needed to install pollution prevention
or waste minimization measures that
reduce or eliminate hazardous wastes
entering the combustion feedstreams of
regulated facilities. Of course, such
applications must still be evaluated on
a case-by-case basis CAA 112(b)(3).
However, the following discussion
provides an indication of how EPA
might evaluate such applications based
on pollution prevention.
Facilities that apply for this one-year
extension would be required to provide
a description of the pollution
prevention/waste minimization
measures that would significantly
reduce or eliminate the volume and/or
toxicity of hazardous wastes entering
combustion feedstreams, a reduction
goal (i.e., how much waste will no
longer enter combustion feedstreams of
the regulated unit(s)), a discussion of
additional combustion or other
treatment technology that will be
installed to meet MACT standards, and
a schedule of milestones necessary to
achieve compliance. The pollution
prevention/waste minimization
measures installed could be used either
alone to meet MACT standards (e.g., in
cases where elimination of certain
combusted waste streams will either
achieve MACT standards for the
regulated unit(s), or will eliminate the
need for the regulated unit(s)), or in
combination with combustion or other
treatment technologies that enable the
facility to comply with MACT
standards. We emphasize that
identifying expected reductions in
combustion feedstreams is required, but
identifying reductions in emissions as a
result of installing pollution prevention
measures is not required. EPA
recognizes this would not be practical.
The compliance date for facilities that
are granted a one year extension by the
permitting agency would be four years
after the promulgation of MACT
standards, rather than three years after
the date of promulgation.
EPA recognized in its proposal that
States operate very diverse pollution
prevention programs. However, to
ensure some degree of consistency in
granting one year extensions, EPA
proposed four flexible factors to be
considered in approving or denying
requests for one-year compliance
extensions for hazardous waste burning
incinerators, LWAKs, and cement kilns.
These factors included: (1) The extent to
which the process changes (including
waste minimization measures) proposed
as a basis for the extension reduce or
eliminate hazardous wastes entering
combustion feed streams and are
technologically and economically
feasible, (2) whether the magnitude of
the reductions in hazardous wastes
entering combustion feed streams
through process changes are significant
enough to warrant granting an
extension, (3) a clear demonstration that
reductions of hazardous wastes entering
combustion feed streams are not shifted
as increases in pollutants emitted
through other regulated media, and (4)
a demonstration that the design and
installation of process changes, which
include waste minimization measures,
and other measures that are necessary
for compliance cannot otherwise be
installed within the three year
compliance period.
EPA received no adverse comments
on the four factors for ensuring
consistency. Companies that operate on-
site units (many of which are large
chemical plants which operate complex
production processes and which
generate diverse and complex waste
streams) commented that they prefer to
use pollution prevention and waste
minimization measures wherever they
are cost effective. However, in the
instant rulemaking, the dual tasks of
designing, testing and installing
pollution prevention process changes
and combustion or other treatment
equipment is not practical in a three
year compliance period plus a one-year
extension. Some commented that
meeting the compliance date may often
force companies to install combustion
controls at great expense and forego
exploration of pollution prevention
options.
The four states and one State
association that commented on the
compliance extension options had
diverse opinions. Two states
commented that pollution prevention/
waste minimization should be
encouraged in this rulemaking.
However, they believe three years plus
a one-year extension may not be enough
time for companies to identify and
install waste minimization measures. A
third State said that pollution
prevention/waste minimization
incentives should not be included in
this rule because companies have had
more than ample time to pursue
pollution prevention/waste
minimization as an approach to
compliance. A fourth State and State
association commented that facilities
have had ample time to identify and
install pollution prevention solutions—
however, one year compliance
extensions should be considered in
cases where it will promote further
pollution prevention.
Two commercial hazardous waste
treatment organizations commented that
a one-year extension for pollution
prevention/waste minimization
purposes is not appropriate since the
companies generating the waste have
had several years to consider pollution
prevention and waste minimization
measures as a waste management
alternative.
EPA believes that compliance
extensions provide a strong incentive
for pollution prevention, and provide
States additional flexibility. EPA agrees
that, in some cases, three years plus a
one-year extension may not be sufficient
time to identify and install waste
minimization measures that achieve
compliance. However, the one year
extension is the maximum allowable
under the CAA. EPA disagrees with the
commenters opposing the extension
because pollution prevention and waste
minimization should be viewed as an
on-going process that adopts new
pollution prevention technologies as
they become available. In some cases,
the economics of complying with new
MACT standards may make pollution
prevention more cost-effective than it
would have otherwise been.
In today's rule, EPA has chosen to
implement the one-year compliance
extension approach. In evaluating
extension requests, EPA urges
permitting agencies to give first
preference to facilities that request the
extra time to install pollution
prevention measures (either alone or in
addition to combustion controls) over
facilities that request an extension only
for installing combustion controls. EPA
has also simplified the factors that must
be considered by permitting agencies in
making determinations for one year
extensions by making them identical to
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the factors facilities must include in
requests for extensions.
In its 1997 NODA, EPA encouraged
facilities that wish to apply for a one-
year extension to coordinate the
development the application for
extension with the information
contained in Notice of Intent to Comply
(NIC), which is also described in today's
rulemaking. Based on the comments
received from industry and States
noting the need for extra time to
consider and then install pollution
prevention measures, EPA would expect
to see a reasonable degree of consistency
between pollution prevention
alternatives discussed in the NIC and
pollution prevention technologies
identified in a subsequent request for a
one year extension to install pollution
prevention technologies. Requests for a
one-year compliance extension from
facilities who did not address pollution
prevention in the NIC should be viewed
with caution to guard against last
minute attempts to delay compliance.
The second compliance extension
option, proposed in the 1997 NODA,
would allow certain facilities to enter
into a written consent agreement or
consent order in cases where pollution
prevention/waste minimization
technologies would significantly reduce
wastes entering combustion feed
streams, but would take more than four
years (i'.e.. three years plus a one-year
extension). EPA could use this
alternative using the principles
articulated in the Agency's "Policy on
Encouraging Self-Policing and
Voluntary Correction" (also known as
the "Audit Policy" 60 FR 66706,
December 22.1995).
Very few commenters addressed this
option. Some industry commenters
expressed limited interest in this
approach, since entering into a consent
agreement would provide no shield
against citizen suits.
EPA agrees that longer than four years
may be needed in some cases. However,
based on the comments received and
after further evaluation, the Agency has
decided not to pursue this proposal as
part of this rulemaking. Instead, EPA
believes its Project XL program provides
a better opportunity for EPA to work
with companies who are interested in
undertaking projects which hold the
promise of superior environmental
results in exchange for regulatory
flexibility. The XL program is also
designed to include public involvement
early in the process, which would
hopefully reduce the likelihood of
citizen suits. Project XL proposals
should be developed and submitted
well in advance of the deadline for
meeting this MACT standard, possibly
before the promulgation of MACT
standards. See the May 22, 1995 Federal
Register Notice [FRL-5197-9] for
further information on developing and
submitting a proposal.
EPA proposed a fifth pollution
prevention/waste minimization
incentive in the 1997 NODA which
focused on harnessing the power of
public involvement to encourage
companies to consider pollution
prevention alternatives. The NODA
proposed to require facilities to make
public, within ten months after
promulgation of the MACT standards, a
draft Notice of Intent to Comply (NIC)
that contains a description of
technologies that will be used to achieve
compliance with MACT standards,
including pollution prevention and
waste minimization technologies.
Regulated facilities would also be
required to hold a public meeting on its
compliance plan and to submit a final
NIC to the permitting agency no later
than one year after the promulgation of
standards. In this setting, the public
would be able to review a company's
draft compliance plan and make known
its concerns and views regarding the use
of pollution prevention, combustion or
other treatment methods.
Several commenters responded to the
pollution prevention/waste
minimization components of the NIC
proposal. One industry trade
organization commented that the NIC
requirements are unnecessary since its
members already participate in a
responsible care program that includes
pollution prevention and community
involvement. Another commenter
argued strongly that the public
involvement opportunity provided by
the NIC process is inadequate, and that
the point at which the public interacts
with the facility is too late to influence
decisions to encourage the installation
of pollution prevention technology that
may reduce or eliminate the need for
combustion.
It is crucial to provide the public with
information and a public meeting on the
pollution prevention/waste
minimization and combustion measures
that are planned at individual facilities.
The NIC process occurs early enough in
the compliance process to provide
meaningful public involvement, and the
NIC process provides a strong lever for
citizens to voice their opinions. The
pollution prevention aspects of the NIC
requirements are further discussed in
the NIC portion of today's preamble.
The sixth pollution prevention/waste
minimization option proposed involved
promulgating a "fast track" rule in
advance of MACT standards to provide
the regulated community time to
explore, plan and possibly begin
implementation of pollution prevention
and waste minimization measures
several months before the promulgation
of MACT standards.
One commenter strongly urged this
option because it provides facilities
with additional planning time to
identify pollution prevention options
before the MACT compliance period
begins. Although no other commenters
specifically addressed this option, EPA
believes it provides States additional
flexibility, and comports with the
variety of comments that expressed
general support for pollution prevention
as a top priority environmental
management strategy.
D. Waste Minimization Incentives
Contained in Today's Rule
Today's rulemaking provides three
incentives to encourage the use of
pollution prevention measures to reduce
or amount and/or toxicity of hazardous
wastes entering combustion
feedstreams. Wastes that cannot be
reduced at the source should be
recycled in an environmentally sound
manner, i.e., in a manner that does not
constitute disposal. Wastes that cannot
be reduced at the source or recycled
should be either burned for energy
recovery, treated, or disposed in
accordance with environmental
standards. Today's incentive based
approach encourages and rewards
facilities that significantly reduce the
amount of combusted hazardous waste
using pollution prevention measures as
a method for achieving MACT
standards, and it provides the flexibility
needed by the States to build on or
expand existing pollution prevention
programs.
Today's rule (at Section 63.1216)
allows owners/operators of hazardous
waste burning incinerators, cement
kilns and lightweight aggregate kilns to
request a one-year extension to the
MACT compliance period in cases
where additional time is needed to
install pollution prevention and waste
minimization measures that reduce the
amount of hazardous waste entering
combustion feedstreams. The
Administrator or State with an approved
Title V program is authorized to grant
one-year extensions for this purpose
under Section 112(i) (3) (B) of the CAA.
Pollution prevention and waste
minimization measures that can be
considered in this determination
include: process changes (including
closed loop recycling), raw material
substitutions, design changes,
equipment changes, work practice
changes, changes in operational
standards or other similar measures that
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EPA or State permitting agencies may
determine is pollution prevention or
waste minimization. Waste
minimization activities that may be
considered for an extension include
pollution prevention activities and
recycling measures, as defined in 40
CFR 261.1(c) and conducted in
accordance with RCRA regulations.
The term recycling, as defined in
defined in 40 CFR 260.10 does not
include burning for energy recovery or
treatment activities. Therefore, burning
for energy recovery will not be
considered for an extension. Companies
who burn for energy recovery are
presumed, in accordance with their
RCRA waste minimization program in
place certification (discussed above), to
have determined that wastes burned for
energy recovery could not be
economically source reduced or
recycled prior to burning. EPA believes
this approach is completely consistent
with past Agency policy and provides
the regulated community with greater
flexibility in managing its non-product
outputs.
Requests for a one-year extension
must reasonably document that the
waste minimization measures, and
whatever additional compliance
measures are necessary to achieve
compliance, could not otherwise be
installed in time to meet the three-year
compliance period. Stronger
consideration should be given to
requests that contain, for example: (1) A
schedule to redesign a production
process that eliminates the use of
solvents and the generation of spent
solvents (which are currently
combusted in an on-site hazardous
waste incinerator), (2) a commitment to
reduce by 25% the amount of hazardous
wastes entering the incinerator
feedstream (as a result of the waste
minimization process change), (3) a
description and schedule for designing
and installing combustion controls to
treat remaining wastes, and (4) evidence
that the extension reflects the reality
that the design specs and schedule for
the remaining combustion controls can
not be completed or installed without
first having information on waste
minimization related feedstream
changes. In contrast, requests that
propose to simply send wastes off-site
for recycling, for example, without first
exploring on-site process changes or
operating practices, should receive little
or no consideration for an extension
because there is nothing in this action
that would require extensive time.
Decisions to grant one-year extensions
will be made by EPA or state programs
that have delegated the authority to
implement and enforce the emission
standard for that source. In light of the
wide range of approaches States employ
regarding waste minimization planning,
it is appropriate to encourage some
degree of consistency in how these
decisions are made, without
superseding State approaches.
Therefore, EPA is requiring that
permitting agencies must consider all of
the information required in Section
63.1216 in approving or denying
requests for one-year compliance
extensions for hazardous waste burning
incinerators, LWAKs, and cement kilns.
EPA will also work with States to
develop separate guidance, with
examples, of how to review requests for
an extension, based on pollution
prevention/waste minimization efforts.
The second pollution prevention/
waste minimization incentive
promulgated in today's rule is the
requirement for regulated facilities to
include in their Notice of Intent to
Comply (NIC) a description of pollution
prevention and waste minimization
activities proposed to reduce the
amount and/or toxicity of hazardous
waste entering the facility's combustion
feedstream(s). This approach will
harness the power of public
involvement, through the NIC review
and public meeting process, to
encourage facilities to consider
pollution prevention measures in their
MACT compliance plan. The
requirements for the NIC process are
described in today's preamble.
It is important to note here that
companies should consider
coordinating the development of a NIC
process with any subsequent requests
for a one year extension. For example,
it would seem logical that pollution
prevention measures identified in the
NIC (prepared in the first year of the
compliance period), would also appear
in a subsequent request for a one year
extension (prepared in the second year
of the compliance period). In contrast,
requests for a one year extension from
companies that did not consider
pollution prevention in their NIC might
be looked at with more caution.
As a third pollution prevention
incentive, EPA is promulgating today's
rule several months in advance of
promulgating MACT standards to
provide companies with several
valuable months of advance planning
time to identify waste minimization
measures can be used to meet, or assist
in meeting MACT standards. The timing
of today's rule, therefore, serves as a
valuable pollution prevention incentive.
Taken together, the tailored incentives
contained in today's rule provide strong
encouragement for regulated companies
to pursue cost effective pollution
prevention and waste minimization
measures in their individual approaches
to meeting MACT standards.
As a final note, a substantial amount
of free technical information, assistance
and guidance on pollution prevention
and waste minimization is available
from the Federal government and States,
and from a variety of private sources.
EPA's "Pollution Prevention Facility
Planning Guide" (May, 1992; NTIS*
PB92-213206) describes the series of
analytical steps that are often used by
companies to identify waste
minimization measures. Additional EPA
references include: ."Waste
Minimization Opportunity Assessment
Manual (EPA 625/7-88/003, July 1988),
Interim Final "Guidance to Hazardous
Waste Generators on the Elements of a
Waste Minimization Program In
Place,"(May 1993), "An Introduction to
Environmental Accounting As a
Business Management Tool" (EPA 742-
R-95-001, June 1995), the "P2/Finance
User's Manual: Pollution Prevention
Financial Analysis and Cost Evaluation
System for Lotus 1-2-3 (EPA 742-B-
94-003, January 1994), and
EnviroSense, an electronic library of
information on pollution prevention,
technical assistance, and environmental
compliance. Many of these and other
documents can be accessed by
contacting the RCRA Hotline toll-free at
1-800-424-9346. EnviroSense can be
accessed by contacting a system
operator at (703) 908-2007, or on the
Internet at http://wastenot.inel.gov/
enviro-sense. Information on State waste
minimization programs can be obtained
through EnviroSense, directly from the
State pollution prevention program
offices, or from the National Pollution
Prevention Roundtable at E-mail
address75152.1416@compuserve.com,
by phone at 202-466-7272 in
Washington, D.C.
VH. State Authority
A. RCRA State Authorization
Under RCRA section 3006, EPA may
authorize a State to administer and
enforce the RCRA hazardous waste
program. See 40 CFR part 271. After
receiving authorization, the State
administers the program in lieu of the
Federal government, although EPA
retains enforcement authority under
RCRA sections 3008, 3013, and 7003.
Because the new Federal requirements
in today's final rule are promulgated
under non-HSWA authority, they are
not Federally enforceable in an
authorized State until the State has
adopted equivalent (or more stringent)
standards under its authorized laws and
regulations, and those changes have
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been approved by EPA. See RCRA
section 3006,42 U.S.C. 6926. Thus,
upon their effective date, these
requirements will be applicable only in
those States that do not have
authorization.
It should be noted that authorized
States are only required to modify their
programs when EPA promulgates
Federal standards that are more
stringent or broader in scope than
existing Federal standards. RCRA
section 3009 allows States to impose
standards that are more stringent than
those in the Federal program (see also
40 CFR 271.1(i)(l)). Thus, for those
Federal changes that are less stringent,
or reduce the scope of the Federal
program. States are not required to
modify their programs. The revisions to
the Federal RCRA Subtitle C program
that are promulgated today are
considered to be less stringent than the
existing Federal regulations. However,
EPA believes that their adoption by
States will greatly enhance the
implementation of the upcoming MACT
standards, and ease the permitting
burden on the States. Thus, EPA
strongly urges States to adopt all aspects
of today's final rule as quickly as their
legislative and regulatory processes will
allow.
B. Program Delegation Under the Clean
Air Act
Today's final rule adds notification
procedures for hazardous waste
combustors under Title III. Specifically,
today's rule requires sources to provide
to the permitting agency a Notification
of Intent to Comply (NIC) within a year
following promulgation of new
emissions standards in 40 CFR part 63
Subpart EEE, and a Progress Report
within two years. As part of the process
of developing a NIC, the source is also
required to conduct additional public
involvement activities, in particular an
informal meeting with the community.
Section 112(1) of the Clean Air Act
allows EPA to approve State rules or
programs for the implementation and
enforcement of emission standards and
other requirements for air pollutants
subject to section 112. Under this
authority, EPA has developed
delegation procedures and requirements
located at 40 CFR Part 63, Subpart E, for
NESHAPS under Title HI of the CAA
(See 57 FR 32250, July 21,1992).
Submission of rules or programs by
States under 40 CFR Part 63 is
voluntary. Once a State receives
approval from EPA for a standard under
section 112(1) of the CAA, the State is
delegated the authority to implement
and enforce the approved State rules or
programs in lieu of the otherwise
applicable federal rules (the approved
State standard would be federally
enforceable). States may also apply for
a partial Title III program, such that the
State is not required to adopt all rules
promulgated in 40 CFR Part 63. EPA
will administer any rules federally
promulgated under section 112 of the
CAA that have not been delegated to the
State.
VUI. Administrative Requirements/
Compliance With Executive Order
A. Regulatory Impact Analysis Under
Executive Order 12866
Under Executive Order No. 12866, (58
FR 51735 (October 4. 1993)) the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to formal review by the Office of
Management and Budget (OMB) and to
the requirements of the Executive Order,
which include assessing the costs and
benefits anticipated as a result of the
proposed regulatory action. The Order
defines "significant regulatory action"
as one that is likely to result in a rule
that may: (1) Have an annual effect on
the economy of S100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) create serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
EPA has determined that today's final
rule is not "significant" under points
one through three above. The Agency is
sensitive, however, to interpretations
that may define today's action as
"significant" under point number four
above, due to the nature of the policy
issues raised and recognizes today's
action as significant. The Agency has
examined economic impacts potentially
associated with the three key elements
of today's action: the comparable fuel
exclusion, waste minimization
incentives, and streamlined RCRA
permitting modifications. The
comparable fuels exclusion in today's
final rule will result in national annual
cost savings to generators ranging from
approximately $11 to $36 million, net of
the cost of gaining the exclusion.
Blending and combustion facilities,
however, are estimated to experience
reduced receipts for managing
hazardous wastes, coupled with the
costs of replacing these materials with
more expensive substitutes. The
combined impact is estimated to cost
these firms an additional $3 to $13
million per year. Today's action also
allows sources to apply for up to a one
year extension of the three-year
compliance period for implementation
of waste minimization procedures.
Overall, this extension is likely to
provide a greater incentive for facilities
with on-site combustion units to
implement waste minimization options
rather than to continue burning
hazardous wastes and implement
appropriate control technologies. The
degree to which this incentive will
change the waste burning behavior of
combustion facilities is undetermined.
EPA is also implementing streamlined
procedures for modifying RCRA permits
at hazardous waste combustion units.
Only those states that regulate
combustion units and choose to adopt
the streamlined modification system
would have to undergo rulemaking and
authorization for the streamlined
permitting process. The Agency
estimates that approximately half of the
states with MACT-regulated combustion
units will not alter their current
permitting system. Based on the average
cost to a state for rulemaking and
authorization, the Agency estimates
aggregate national costs for those states
that would modify their systems at a
one-time cost of no more than $685,000.
In addition to rulemaking and
authorization costs, the aggregate
national cost for permit review may be
as high as $3.8 million. For more
information on the cost impacts of
today's final rule, see the Economic
Analysis Report for the Combustion
MACT Fast-Track Rulemaking, March
1998, which is part of the docket for this
rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980 requires Federal agencies to
consider "small entities" throughout the
regulatory process. Section 603 of the
RFA requires an initial screening
analysis to be performed to determine
whether small entities will be adversely
affected by the regulation. If affected
small entities are identified, regulatory
alternatives must be considered to
mitigate the potential impacts. Small
entities as described in the Act are only
those "businesses, organizations and
governmental jurisdictions subject to
regulation."
EPA has determined that today's rule
will primarily affect large scale
facilities. Furthermore, since today's
final notice generally provides savings
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33819
over current requirements, EPA believes
that any small entities engaged in
activity covered by the rule will not be
adversely affected. Therefore, EPA
provides the following certification
under the Regulatory Flexibility Act, as
amended by the Small Business
Regulatory Enforcement Fairness Act.
Pursuant to the provision at 5 U.S.C., I
hereby certify that this rule will not
have a significant economic impact on
a substantial number of small entities. A
more detailed discussion of small entity
impacts is presented in the Economic
Analysis Report.
C. Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
this rule under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
3501 etseq. and has assigned OMB
control number 2050-0073.
The incremental annual public
reporting and record keeping burden for
this collection of information is
estimated to be 55,196 hours at a cost
of about $5,164,000. For those
generators applying for the comparable/
syngas fuel exclusion, the average
annual respondent reporting burden is
estimated to be 0.5 hours per facility
and the average annual record keeping
burden is estimated to be 47.3 hours per
facility. For burners of comparable/
syngas fuels, there is no reporting
burden and the annual record keeping
burden is 8.0 hours per facility. For
HWCs complying with the notification
of intent to comply regulations, the
average annual reporting burden is
300.5 hours per facility and the average
annual record keeping burden is 9.0
hours per facility.
This estimate includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems .for the purpose of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to
respond to collection of information;
search existing data sources; complete
and review the collection of
information; and transmit or otherwise
disclose the information.
During its review of the proposed rule
ICR, OMB offered comments concerning
the burdens associated with the
proposed testing requirements and
records retention for the comparable
fuel/syngas exclusion. In the final rule,
EPA is allowing generators to use
process knowledge and requiring testing
for only those constituents the generator
determines should be in the waste. The
frequency of the testing will be specified
by the generator in the waste analysis
plan. With regards to records retention,
the final rule will require the retention
of records of all comparable and syngas
fuel-related information for three years.
EPA also received several public
comments on the final rule ICR which
was noticed on January 28, 1998 at 63
FR 4249. EPA has responded to those
comments in the supporting statement
for the ICR.
EPA estimates that the addition of the
comparable fuels exclusion will cause
the BIF universe to decrease by 25
facilities. Although the burden
reduction is not reflected in the ICR,
EPA expects reporting and
recordkeeping requirements for BIFs to
decrease by 70,743 hours (18 percent)
and $7,493,221 (15 percent) annually.
EPA will revise the ICR to reflect this
burden reduction when it finalizes the
emissions standards for hazardous
waste combustors.
EPA is also amending the table of
currently approved ICR control numbers
issued by OMB for various regulations.
This amendment updates the table to
display accurately this final rule. This
display of the OMB control numbers
and their subsequent codification in the
Code of Federal Regulations (CFR) at 40
CFR Part 9 satisfies the requirements of
the Paperwork Reduction Act (44 U.S.C.
3501 etseq.) and OMB's implementing
regulations at 5 CFR Part 1320.
An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are
displayed in 40 CFR Part 9.
Send comments regarding the burden
estimates or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, OPPE Regulatory Information
Division; U.S. Environmental Protection
Agency (2136); 401 M Street, S.W.;
Washington, DC 20460; and to the
Office of Information and Regulatory-
Affairs, Office of Management and
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
Include the ICR number in any
correspondence.
D. Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, Tribal, and
local governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
When a written statement is needed for
an EPA rule, section 205 of the UMRA
generally requires EPA to identify and
consider a reasonable number of
regulatory alternatives and adopt the
least costly, most cost-effective, or least
burdensome alternative that achieves
the objectives of the rule. The
provisions of section 205 do not apply
when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, giving them
meaningful and timely input in the
development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising them
on compliance with the regulatory
requirements.
EPA has determined that this rule
does not contain a Federal mandate that
may result in expenditures of $ 100
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector in any one year. EPA
has estimated that the total potential
cost to State, local, and Tribal
governments would not exceed
approximately $4.5 million over ten
years. Thus, today's rule is not subject
to the requirements of sections 202 and
205 of the UMRA.
IX. Submission to Congress and the
General Accounting Office
Under 5 U.S.C. 801 (a) (1) (A) as added
by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA
submitted a report containing this rule
and other required information to the
U.S. Senate, the U.S. House of
Representatives and the Comptroller
General of the General Accounting
Office prior to publication of the rule in
today's Federal Register. This rule is
not a "major rule" as defined by 5
U.S.C. 804(2), therefore, the effective
date of the rule is not affected.
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X. Environmental Justice
A. Applicability of Executive Order
12898
EPA is committed to address
environmental justice concerns and is
assuming a leadership role in
environmental justice initiatives to
enhance environmental quality for all
residents of the United States. The
Agency's goals are to ensure that no
segment of the population, regardless of
race, color, national origin, or income
bears disproportionately high and
adverse human health and
environmental effects as a result of
EPA's policies, programs, and activities,
and all people live in clean and
sustainable communities.
B. Potential Effects
Today's final rule is not expected to
cause any disproportionate impacts to
minority or low income communities
versus affluent or non-minority
communities.
XL Children's Health
Executive Order 13045: The Executive
Order 13045 applies to any rule that
EPA determines (1) "economically
significant" as defined under Executive
Order 12866, and (2) the environmental
health or safety risk addressed by the
rule has a disproportionate effect on
children. If the regulatory action meets
both criteria, the Agency must evaluate
the environmental health or safety
effects of the planned rule on children;
and explain why the planned regulation
is preferable to other potentially
effective and reasonably feasible
alternatives considered by the Agency
This final rule is not subject to E.O.
13045, entitled "Protection of Children
from Environmental Health Risks and
safety Risks (62 FR 19885, April 23,
19910. because: (a) "This is not an
economically significant regulatory
action as defined by E.O. 12866."
XII. National Technology Transfer and
Advancement Act
Under section 12(d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
Standards (e.g., materials specifications,
test methods, sampling procedures,
business practices, etc.) that are
developed or adopted by voluntary
consensus standard bodies. Where
available and potentially applicable
voluntary consensus standards are not
used by EPA, the Act requires the
Agency to provide Congress, through
the Office of Management and Budget,
an explanation of the reasons for not
using such standards.
EPA is not finalizing any new test
methods or other technical standards as
part of today's final rule. Thus, the
Agency has no need to consider the use
of voluntary consensus standards in
developing this final rule.
List of Subjects
40 CFR Part 63
Administrative practice and
procedure, Air pollution control.
Hazardous substances,
Intergovernmental relations, Reporting
and recordkeeping requirements.
40 CFR Part 261
Hazardous waste, Recycling,
Reporting and record keeping
requirements.
40 CFR Pan 270
Administrative practice and
procedure. Confidential business
information, Emergency responses,
Hazardous materials transportation,
Hazardous waste, Permit application
requirements. Permit modifications,
Reporting and recordkeeping
requirements.
Dated: June 5, 1998.
Carol M. Browner,
Administrator.
For the reasons set forth in the
preamble, 40 CFR Parts 63, 261, and 270
are amended as follows:
PART 63—NATIONAL EMISSION
STANDARDS FOR HAZARDOUS AIR
POLLUTANTS FOR SOURCE
CATEGORIES
1. The authority citation for part 63
continues to read as follows:
Authority: 42 U.S.C. 7401 etseq.
2. Part 63 is amended by adding
Subpart EEE, to read as follows:
Subpart EEE—National Emission
Standards for Hazardous Air Pollutants
From Hazardous Waste Combustors
Sec.
63.1200-63.1210 [Reserved]
63.1211 Notification requirements.
63.1212 Progress reports.
63.1213 Certification.
63.1214 Extension of the compliance date.
63.1215 Sources that become affected
sources after the effective date of this
subpart.
63.1216 Extension of compliance date to
install pollution prevention or waste
minimization controls.
§63.1211 Notification requirements.
(a) Notification of Intent To Comply
(NIC). (I) All hazardous waste
combustors subject to this subpart shall
prepare a Notification of Intent to
Comply that includes the following
information:
(i) General information:
(A) The name and address of the
owner/operator and the source;
(B) Whether the source is a major or
an area source;
(C) Waste minimization and emission
control technique(s) being considered;
(D) Emission monitoring technique(s)
being considered;
(E) Waste minimization and emission
control technique(s) effectiveness;
(F) A description of the evaluation
criteria used or to be used to select
waste minimization and/or emission
control technique (s); and
(G) A statement that the source
intends to comply with this subpart by
controlling emissions from the
combustion of hazardous waste
pursuant to the standards of this
subpart.
(ii) Information on key activities and
estimated dates for these activities that
will bring the source into compliance
with emission control requirements of
this subpart. The submission of key
activities and dates is not intended to be
static and may be revised by the source
during the period the NIC is in effect.
Revisions shall be submitted to the
regulatory authority and be made
available to the public. The following
are the key activities and dates that shall
be included:
(A) The dates for beginning and
completion of engineering studies to
evaluate emission control systems or
process changes for emissions;
(B) The date by which contracts for
emission control systems or process
changes for emission control will be
awarded, or the date by which orders
will be issued for the purchase of
component parts to accomplish
emission control or process changes;
(C) The date by which construction
applications will be submitted;
(D) The date by which on-site
construction, installation of emission
control equipment, or process change is
to be initiated;
(E) The date by which on-site
construction, installation of emission
control equipment, or process change is
to be completed; and
(F) The date by which final
compliance is to be achieved. The
individual dates and milestones listed
in paragraphs (a)(l)(ii)(A) through (F) of
this section as part of the NIC are not
requirements and therefore are not
enforceable deadlines; the Agency is
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33821
requiring paragraphs (a)(l)(ii)(A)
through (F) of this section as part of the
NIC only to inform the public of the
source's intentions towards coming into
compliance.
(iii) A summary of the public meeting
required under paragraph (b) of this
section.
(iv) For any source that does not
intend to comply, but will not stop
burning hazardous waste as required
under paragraph (c) of this section, a
certification that the designated source
will:
(A) Stop burning hazardous waste on
or before the compliance date of the
emission standards of this Subpart; and
(B) Be necessary to combust the
hazardous waste from another on-site
source, during the year prior to the
compliance date of the emission
standards of this Subpart, because that
other source is:
(1) Installing equipment to come into
compliance with the emission standards
of this Subpart; or
(2) Installing source reduction
modifications to eliminate the need for
further combustion of wastes.
(2) A draft of the NIC must be made
available for public review no later than
30 days prior to the public meeting
required under paragraph (b)(l) of this
section.
(3) The final NIC must be submitted
to the permitting agency no later than
one year following the effective date of
the emission standards of this subpart.
(b) NIC Public Meeting and Notice. (1)
Prior to the submission of the NIC to the
permitting agency, and no later than 10
months after the effective date of the
emission standards of this subpart, the
source shall hold at least one informal
meeting with the public to discuss
anticipated activities described in the
draft NIC for achieving compliance with
the MACT standards promulgated in
this subpart. The source must post a
sign-in sheet or otherwise provide a
voluntary opportunity for attendees to
provide their names and addresses.
(2) The source shall submit a
summary of the meeting, along with the
list of attendees and their addresses
developed under paragraph (b)(l) of this
section, and copies of any written
comments or materials submitted at the
meeting, to the permitting agency as
part of the final NIC, in accordance with
paragraph (a)(l)(iii) of this section.
(3) The source must provide public
notice of the NIC meeting at least 30
days prior to the meeting. The source
shall provide public notice in all of the
following forms:
(i) Newspaper advertisement The
source shall publish a notice in a
newspaper of general circulation in the
county or equivalent jurisdiction of the
source. In addition, the source shall
publish the notice in newspapers of
general circulation in adjacent counties
or equivalent jurisdiction where such
publication would be necessary to
inform the affected public. The notice
must be published as a display
advertisement.
(ii) Visible and accessible sign. The
source shall post a notice on a clearly
marked sign at or near the source. If the
source places the sign on the source's
property, then the sign must be large
enough to be readable from the nearest
spot where the public would pass by the
source.
(iii) Broadcast media announcement.
The source shall broadcast a notice at
least once on at least one local radio
station or television station.
(iv) Notice to the facility mailing list.
The source shall provide a copy of the
notice to the facility mailing list in
accordance with § 124.10(c) (1) (ix) of
this chapter.
(4) The notices required under
paragraph (b)(3) of this section must
include:
(i) The date, time, and location of the
meeting;
(ii) A brief description of the purpose
of the meeting;
(iii) A brief description of the source
and proposed operations, including the
address or a map (e.g., a sketched or
copied street map) of the source
location;
(iv) A statement encouraging people
to contact the source at least 72 hours
before the meeting if they need special
access to participate in the meeting;
(v) A statement describing how the
draft NIC can be obtained; and
(vi) The name, address, and telephone
number of a contact person for the NIC.
(c) Sources that do not intend to
comply. Those sources subject to the
requirements of this subpart, except
those sources meeting the requirements
of paragraph (a)(l)(iv) of this section:
(1) Who signify in their NIC an intent
not to comply with the requirements of
this Subpart, must stop burning
hazardous waste on or before two years
after the effective date of the emmission
standards of this subpart;
(2) Who do not intend to comply with
this subpart must include in their NIC
a schedule that includes key dates for
the steps to be taken to stop burning
hazardous waste. Key dates include the
date for submittal of RCRA closure
documents.
§63.1212 Progress reports.
(a) General. Not later than two years
after the effective date of the emission
standards of this subpart, all sources
subject to this Subpart except those
hazardous waste combustion sources
that comply with paragraph (b)(2) of this
section shall:
(1) Complete engineering design for
any physical modifications to the source
needed to comply with the emissions
standards of this subpart;
(2) Submit applicable construction
applications to the applicable regulatory
authority; and
(3) Enter into a binding contractual
commitment to purchase, fabricate, and
install any equipment, devices, and
ancillary structures needed to comply
with the emission requirements of this
subpart.
(b) Demonstration (1) Hazardous
waste combustion sources shall submit
to the regulatory authority a progress
report on or before two years after the
effective date of the emission standards
of this subpart which contains
information demonstrating that the
source has met the requirements of
paragraph (a) of this section. This
information will be used by the
regulatory authority to determine if the
source has made adequate progress
towards compliance with the applicable
emission standards.
(2) Sources that intend to come into
compliance with the emissions
standards of this subpart, but can do so
without undertaking any of the
activities described in paragraph (a) of
this section, shall submit
documentation either:
. (i) Demonstrating that the source, at
the time of the progress report, is in
compliance with the emissions
requirements; or
(ii) Specifying the steps that will be
taken to bring the source into
compliance, without undertaking any of
the activities listed in paragraphs (a)(l)
through (3) of this section.
(3) Sources that fail to comply with
paragraph (a) above or paragraph (b)(2)
of this section shall stop burning
hazardous waste on or before the date
two years after the effective date of the
emission standards of this subpart.
(c) Schedule. (1) The progress report
shall contain a detailed schedule that
lists key dates for all projects that will
bring the source into compliance with
the requirements of this subpart (i.e.,
key dates for the activities required
under paragraphs (b)(l)(i) through (iii)
of this section). Dates shall cover the
time frame from the progress report
through the compliance date of the
emission standards of this subpart.
(2) The schedule shall contain the
following dates:
(i) Bid and award dates for
construction contracts and equipment
supply contractors;
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Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
(ii) Milestones such as ground
breaking, completion of drawings and
specifications, equipment deliveries,
intermediate construction completions,
and testing;
(iii) The dates on which applications
were submitted for or obtained
operating and construction permits or
licenses;
(iv) The dates by which approvals of
any permits or licenses are anticipated;
and
(v) The projected date by which the
source will be in compliance with the
requirements of this subpart.
(d) Notice of intent to comply.The
progress report shall contain a statement
that the source intends or does not
Intend to come into compliance with
the applicable emission control
requirements of this subpart.
(e) Sources that do not intend to
comply. (1) Sources that: indicated in
their NIC their intent not to comply
with this subpart and stop burning
hazardous waste prior to the submittal
of a progress report; or meet the
requirements of paragraph (a)(l)(iv) of
this section are not required to include
the requirements of paragraphs (b) and
(c) of this section to their progress
report, but shall include in their
progress report: the date on which the
source stopped burning hazardous
waste; and the date(s) on which RCRA
closure documents were submitted.
(2) Those sources that signify in the
progress report, submitted not later than
two years after the effective date of the
emission standards of this subpart, their
intention not to comply with the
requirements of this subpart must stop
burning hazardous waste on or before
the date two years after the effective
date of the emission standards of this
subpart.
§63.1213 Certification.
(a) The Notice of Intent to Comply
(NIC) and Progress Report submitted
shall contain the following certification
signed and dated by an authorized
representative of the source:
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document
and all attachments and that, based on my
inquiry of those individuals immediately
responsible for obtaining the information. I
believe that the information is true, accurate,
and complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment.
(b) An authorized representative
should be a responsible corporate officer
(for a corporation), a general partner (for
a partnership), the proprietor (of a sole
proprietorship), or a principal executive
officer or ranking elected official (for a
municipality, State, Federal, or other
public agency).
§63.1214 Extension of the compliance
date.
(a) A source that intends to come into
compliance with the requirements of
this subpart, but due to the installation
of controls will not meet the compliance
date, may request an extension of the
compliance date for one year.
(b) Sources subject to this subpart
shall follow the requirements of
§63.6(i)(4) or §63.1216 to request an
extension of the compliance date.
§ 63.1215 Sources that become affected
sources after the effective date of the
emission standards of this subpart.
(a) A source that begins to burn
hazardous waste after the effective date
of the emission standards of this
subpart, therefore becoming an affected
source, but prior to 9 months after the
effective date of the emission standards
of this subpart shall comply with all the
requirements of §§63.1211 through
63.1213 and associated time frames for
public meetings and document
submittals.
(b) A source that intends to begin
burning hazardous waste more than 9
months after the effective date of the
emission standards of this subpart,
therefore becoming an affected source,
shall meet all the requirements of
§§63.1211 through 63.1213 prior to
burning hazardous waste.
(1) Such sources shall make a draft
NIC available, notice their public
meeting, hold their public meeting, and
submit a final NIC prior to burning
hazardous waste.
(2) Such sources also shall submit
their progress report at the time of the
submittal of their final NIC.
§ 63.1216 Extension of the compliance
date to install pollution prevention or waste
minimization controls.
(a) Applicability. The owner or
operator of any source subject to the
requirements of this subpart may
request from the Administrator or State
with an approved Title V program an
extension of one year to comply with
the emission standards in this subpart,
if the owner or operator can reasonably
document that the installation of
pollution prevention or waste
minimization measures will
significantly reduce the amount and/or
toxicity of hazardous wastes entering
the feedstream(s) of the combustion
device(s) subject to this subpart, and
that the facility could not otherwise
install the necessary control measures
and comply within three years after the
effective date of the emission standards
of this subpart.
(b) Requirements for requesting an
extension. Requests for a one-year
extension must be in writing, must be
received not later than 12 months before
the affected source's compliance date,
and must contain the following
information:
(1) A description of pollution
prevention or waste minimization
controls that, when installed, will
significantly reduce the amount and/or
toxicity of hazardous wastes entering
the feedstream(s) of the combustion
device(s) subject to this subpart.
Pollution prevention or waste
minimization measures may include:
equipment or technology modifications,
reformulation or redesign of products,
substitution of raw materials,
improvements in work practices,
maintenance, training, inventory
control, or recycling practices
conducted as defined in 40 CFR
261.l(c);
(2) A description of other pollution
controls to be installed that are
necessary to comply with the emission
standards;
(3) A reduction goal or estimate of the
annual reductions in quantity and/or
toxicity of hazardous waste(s) entering
combustion feedstream(s) that will
occur by installing the proposed
pollution prevention or waste
minimization measures;
(4) A comparison of reductions in the
amounts and/or toxicity of hazardous
wastes combusted after installation of
pollution prevention or waste
minimization measures to the amounts
and/or toxicity of hazardous wastes
combusted prior to the installation of
these measures; and, if the difference is
less than a fifteen percent reduction, a
comparison to pollution prevention and
waste minimization reductions recorded
during the previous five years;
(5) Reasonable documentation that
installation of the pollution prevention
or waste minimization changes will not
result in a net increase (except for
documented increases in production) of
hazardous constituents released to the
environment through other emissions,
wastes or effluents;
(6) Reasonable documentation that the
design and installation of waste
minimization and other measures that
are necessary for compliance cannot
otherwise be installed within the three
year compliance period, and
(7) The information required in 40
CFR63.6(i)(6)(i)(B) through (D).
(8) Documentation prepared under an
existing State required pollution
prevention program that contains the
information may be enclosed with a
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33823
request for extension in lieu of
paragraphs (b)(l) through (7) of this
section.
(c) Approval of request for extension
of compliance. Based on the information
provided in any request made under
paragraph (a) of this section, the
Administrator or State with an approved
Title V program may grant an extension
of compliance with the emission
standards identified in paragraph (a) of
this section. The extension will be in
writing in accordance with
§§ 63.6(i) (10) (i) through
63.6(i)(10)(v)(A). EPA and States must
consider the information required in
paragraph (a) of this section in
approving or denying requests for one-
year compliance extensions.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.
2. Section 261.4 is amended by
adding paragraph (a) (16) to read as
follows:
§261.4 Exclusions.
(a) * * *
(16) Comparable fuels or comparable
syngas fuels (i.e., comparable/syngas
fuels) that meet the requirements of
§261.38.
*****
3, Section 261.38 is added to read as
follows:
§261.38 Comparable/Syngas Fuel
Exclusion.
Wastes that meet the following
comparable/syngas fuel requirements
are not solid wastes:
(a) Comparable fuel specifications.—
(1) Physical specifications.—(i) Heating
value. The heating value must exceed
5,000 BTU/lbs. (11,500 J/g).
(ii) Viscosity. The viscosity must not
exceed: 50 cs, as-fired.
(2) Constituent specifications. For
compounds listed in table 1 to this
section the specification levels and,
where non-detect is the specification,
minimum required detection limits are:
(see Table 1).
(b) Synthesis gas fuel specification.—
Synthesis gas fuel (i.e., syngas fuel) that
is generated from hazardous waste must:
(1) Have a minimum Btu value of 100
Btu/Scf;
(2) Contain less than 1 ppmv of total
halogen;
(3) Contain less than 300 ppmv of
total nitrogen other than diatomic
nitrogen (N2);
(4) Contain less than 200 ppmv of
hydrogen sulfide; and
(5) Contain less than 1 ppmv of each
hazardous constituent in the target list
of Appendix VIII constituents of this
part.
TABLE 1 TO §261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION
Chemical name
Total Nitrogen as N
Total Halogens as CI
Total Organic Halogens as CI
Polychlorinated biphenyls, total [Arocolors, total]*
Cyanide, total
Metals:
Antimony, total
Arsenic, total
Barium, total
Beryllium, total
Cadmium, total
Chromium, total
Cobalt
Lead, total
Manganese
Mercury, total
Nickel, total
Selenium, total
Silver, total
Thallium, total
Hydrocarbons:
Benzo[a]anthracene
Benzene
Benzo[b]fluoranthene '.
Benzo[k]fluoranthene
Benzo[a]pyrene
Chrysene
Dibenzo[a,h]anthracene
7,12-Dimethylbenz[a]anthracene
Fluoranthene
lndeno(1 ,2,3-cd)pyrene
3-Methylcholanthrene
Naphthalene
Toluene
Oxygetes:
CAS No.
na
na
na
1336-36-3
57 12 5
7440-36-0
7440-38—2
7440-39-3
7440-41 7
7440-43-9
7440-47-3
7440-48—4
7439-92—1
7439-96-5
7439-97-6
7440-02-0
7782-49-2
7440-22-4
7440-28-0
56-55-3
71—43-2
205-99-2
207-08-9
50-32-8
218-01-9
53-70-3
57-97-6
206-44—0
193-39-5
5g_49_5
91-20-3
108-88-3
Concentra-
tion limit
(mg/kg at
10,000 BTU/
Ib)
4900
540
ual halo-
genated
organics
listed
below.
79
023
23
1 2
1 2
23
46
31
1 2
024
58
0 15
23
23
1100
4100
960
1900
960
1400
960
1900
1900
960
1900
3200
36000
Minimum re-
quired detection
limit
(mg/kg)
1
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TABLE 1 TO §261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued
Chemical name
CAS No.
Concentra-
tion limit
(mg/kg at
10,000 BTU/
Ib)
Minimum re-
quired detection
limit
(mg/kg)
Acetophenone 98-86-2 1900
Acrdein 107-02-8 37
Ally! alcohol • 107-18-6 30
Bis(2-ethylhexyl)phthalate[Di-2-ethylhexyl phthalate] 117-81-7 1900
Butyl benzyl phthalate 85-68-7 1900
o-Cresol [2-Methyl phenol] 95-48-7 220
m-Cresol [3-MethyI phenol] 108-39-4 220
p-Creso! [4-Methyl phenol] 106-44-5 220
Di-n-butyl phthalate 84-74-2 1900
Diethyl phthalate 84-66-2 1900
2,4-Dimethylphenol 105-67-9 1900
Dimethyl phthalate 131-11-3 1900
Di-n-octyl phthalate 117-84-0 960
Endothall 145-73-3 100
Ethyl methacrylate 97-63-2 37
2-Ethoxyethanol [Ethylene glycol monoethyl ether] 110-80-5 100
Isobutyl alcohol 78-83-1 37
isosafrole 120-58-1 1900
Methyl ethyl ketone [2-Butanone] 78-93-3 37.
Methyl methacrylate 80-62-6 37.
1,4-Naphthoquinone 130-15-4 1900.
Phenol. 108-95-2 1900.
Propargyl alcohol [2-Propyn-l-ol] : 107-19-7 30.
Safrole 94-59-7 1900.
Sulfoted Organics:
Carbon disulfide 75-15-0 Non-detect .
Disulfolon 298-04-4 Non-detect .
Ethyl methanesulfonate 62-50-0 Non-detect .
Methyl methanesulfonate 66-27-3 Non-detect .
Phorate 298-02-2 Non-detect .
1,3-Propanesuitorie" : 1120-71-4 Non-detect .
Tetraethyldithiopyrophosphate [Sulfotepp] 3689-24-5 Non-detect .
Thiophenol [Benzenethiol] 108-98-5 Non-detect
O.O.O-Triethyl phosphorothioate 126-68-1 Non-detect
Nitrogenated Organics:
Acetonitrile [Methyl cyanide] 75-05-8 Non-detect
2-Acetylaminofluorene [2-AAF] 53-96-3 Non-detect
Acrylonitrile • 107-13-1 Non-detect
4-Aminobiphenyl 92-67-1 Non-detect
4-Aminopyridine 504-24-5 Non-detect
Aniline 62-53-3 Non-detect
Benzidine • 92-87-5 Non-detect
Dibenz[a,j]acridine 224-42-0 Non-detect
O.O-Diethyl O-pyrazinyl phophoro-thioate [Thionazin] 297-97-2 Non-detect
Dimethoate • 60-51-5 Non-detect
p-(Dimethylamino)azobenzene [4-Dimethylaminoazobenzene] 60-11-7 Non-detect
3,3'-Dimethylbenzidine 119-93-7 Non-detect
a,a-Dimethylphenethylamine 122-09-8 Non-detect
3,3'-Dimethoxybenzidine 119-90-4 Non-detect
1,3-Oinitrobenzene[m-Dinitrabenzene] 99-65-0 Non-detect
4,6-Dinitrc-o-cresol 534-52-1 Non-detect
2,4-Dinitrophenol 51-28-5 Non-detect
2,4-Dlnitrotoluene 121-14-2 Non-detect
2,6-Dinitrotoluene 606-20-2 Non-detect
Dlnoseb[2-sec-Butyl-4,6-dinitrophenol] 88-85-7 Non-detect
Diphenylamine 122-39-4 Non-detect
Ethyl carbamate [Urethane] 51-79-6 Non-detect
Ethyienethiourea(2-!midazolidinethione) 96-45-7 Non-detect
Famphur 52-85-7 Non-detect
Methacrylonitrile 126-98-7 Non-detect
Methapyrilene 91-80-5 Non-detect
Methomyl • 16752-77-5 Non-detect
2-Methyllactonitrile [Acetone cyanohydrin] 75-86-5 Non-detect
Methyl parathion 298-00-0 Non-detect
MNNG (N-Metyl-N-nitroso-N'-nitroguanidine) 70-25-7 Non-detect
1-Naphthylamine, [a-Naphthylamine] 134-32-7 Non-detect
2-Naphthylamine, IP-Naphthyiamine] 91-59-8 Non-detect
Nicotine 54~11~5 Non-detect
37
1900
1900
1900
1900
100
1900
30
1900
37
1900
37
1900
100
1900
1900
1900
1900
1900
1900
1900
1900
100
1900
1900
1900
1900
1900
1900
1900
100
110
1900
37
1900
57
100
1900
110
1900
1900
100
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33825
TABLE 1 TO §261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued
Chemical name
4-Nitroaniline, [p-Nitroaniline]
Nitrobenzene
p-Nitrophenol, [p-Nitrophenol] ;
5-Nitro-o-toluidine
N-Nitrosodi-n-butylamine
N-Nitrosodiethylamine
N-Nitrosodiphenylamine, [Diphenylnitrosamine]
N-Nitroso-N-methylethylamine *
N-Nitrosomorpholine
N-Nitrosopiperidine
N-Nitrosopyrrolidine
2-Nitropropane
Parathion
Phenacetin
1 ,4-Phenylene diamine, [p-Phenylenediamine]
N-Phenylthiourea
2-Picoline [alpha-Picoline]
Propythioracil [6-Propyl-2-thiouracil]
Pyridine
Strychnine
Thioacetamide
Thiofanox
Thiourea
ToIuene-2,4-diamine [2,4-Diaminotoluene]
Toluene-2,6-diamine [2,6-Diaminotoluene]
o-Toluidine
p-Toluidine
1 ,3,5-Trinitrobenzne, [sym-Trinitobenzene]
Halogenated Organicsb:
Allyl chloride
Aramite
Benzal chloride [Dichlorornethyl benzene]
Benzyl chloride
Bis(2-chloroethyl)ether [Dichloroethyl ether]
Bromoform [Tribromomethane]
Bromomethane [Methyl bromide]
4-Bromophenyl phenyl ether [p-Bromo diphenyl ether]
Carbon tetrachloride
Chlordane
p-Chloroaniline
Chlorobenzene .'.
Chlorobenzilate ;
p-Chloro-m-cresol
2-Chloroethyl vinyl ether
Chloroform
Chloromethane [Methyl chloride]
2-Chlorophthalene [beta-Chlorophthalene]
2-Chlorophenol [o-Chlorophenol] .':
Chloroprene [2-Chloro-1 ,3-butadiene]
2,4-D [2,4-Dichlorophenoxyacetic acid]
Diallate
1 ,2-Dibromo-3-chloropropane
1 ,2-Dichlorobenzene [o-Dichlorobenzene] ;
1 ,3-Dichlorobenzene [m-Dichlorobenzene]
1 ,4-DichIorobenzene [p-Dichlorobenzene]
3,3'-Dichlorobenzidine
Dichlorodifluoromethane [CFG— 12]
1 ,2-Dichloroethane [Ethylene dichloride]
1,1-Dichloroethylene [Vinylidene chloride]
Dichloromethoxy ethane [Bis(2-chloroethoxy)methane
2,4-Dichlorophenol
2,6-Dichlorophenol
1 ,2-DichIoropropane [Propylene dichloride]
cis-1 ,3-Dichloropropylene
trans-1 ,3-Dichloropropylene
1 ,3-Dichloro-2-propanol
Endosulfan I
Endosulfan II
CAS No.
100-01-6
, 98-95-3
100-02-7
99-55-8
924-1 6-3
55-18-5
86-30-6
10595-95-6
59_89_2
100-75-4
930-55-2
79_46_9
56-38-2
6°-'1'1-0
106-50-3
103-85-5
•(09-06-8
51-52-5
1 10-86-1
57 24-9
62-55-5
39196-18-4
62—56-6
95-80-7
823-40-5
95-53—4
106 40 0
99-35-4
1 07—05—1
104-57-8
98-87-3
100-44—77
111-44-4
75-25-2
74-83-9
101-55-3
56-23—5
57 74-9
106-47-8
108—90—7
510-15-6
59_50_7
110—75—8
67-65-3
74-87-3
91-58-7
95-57-8
1126-99-8
94—75_7
2303-1 6-4
95-12-8
95-50-1
541—73-1
106-46-7
91 94-1
75_71_8
107-06-2
75-35-4
1 1 1-91—1
120—83—2
87-65-0
78-87-5
10061-01 5
10061-02-6
96-23-1
959—98—8
33213-65-9
Concentra-
tion limit
(mg/kg at
10,000 BTU/
Ib)
Non-detect
Non-detect
Non-detect
Non-detect
Non-detect
Non-dstect
Non-dstect
Non-detect
Non-detect
Non-detsct
Non-detsct
Non-dstsct
Non-detect ..
Minimum re-
quired detection
limit
(mg/kg)
iQnn
1900
1900
iQnn
IQnn
1900
1900
iQnn
iQnn
1900
1900
on
-tqnn
1900
1900
C7
iQnn
100
iQnn
mn
57
mn
cy
*V7
57
ppnn
inn
2000
07
iQnn
100
100
IQnn
0/7
9.7
1900
07
-\A
•iQnn
07
iQnn
iQnn
0-7
O/7
07
1900
1900
*%7
-7
iqnn
07
1900
IQnn
1900
ionn
*V7
37
«y
iQnn
ionn
1900
37
07
17
on
1
1,
-------
33826
Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
TABLE 1 TO §261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued
Chemical name
Endrin aldehyde
Ethylidene dichloride [1 1-Dichloroethane]
2-Fiuoroacetamide
Heptschlor -
Hexachlorobenzene
Hexachloro-1 3-butadiene [Hexachlorobutadiene]
Undane [qarnma-Hexachlorocyclohexane] [gamma-BHC]
Methylene chloride [Dichloromethane]
Methyl iodide [lodomethane]
Pentachlorobenzene
Pentachloronitrobenzene [PCNB] [Quintobenzene] [Quintozene] ....
Pronamide
Silvex [2 4 5-Trichlorophenoxypropionic acid]
237 8-Tetrachlorodibenzo-p-dioxin [237 8-TCDD]
•j j 2 2-Tetrachloroethane
Tetrachloroethylene [Perchloroethylene]
•j 2 4-Trichlorobenzene
•j •] 2-Trichioroethane [Vinyl trichloride]
Trichlorofiuoromethane [TrichlonTionofluoromethane]
2 4 5-Trichlorophenol
2 4 6-Trichlorophenol
Vinyl Chloride
CAS No.
72-20-8
7421-93-4
53494-70-5
106-89-8
75-34-3
640-19-7
76-44-8
1024-57-3
118-74-1
87-68-3
77-47-4
67-72-1
70-30-4
1888-71-7
465-73-6
143-50-0
58-89-9
75-09-2
101-14-4
74-88-4
608-93-5
76-01-7
82-68-8
87-86-5
. 23950-58-5
93-72-1
1746-01-6
95-94-3
79-34-5
127-18-4
58-90-2
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
96-18-4
75-01-4
Concentra-
tion limit
(mg/kg at
10,000 BTU/
Ib)
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
Non-detect ..
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
non-detect ...
Minimum re-
quired detection
limit
(mg/kg)
1.
1.
1.
30
37
100
1.
2.
1900
1900
1900
1900
1000
1900
1900
3600
1.4
37
100
37
1900
37
1900
1900
1900
7.0
30
1900
37
37
1900
1900
37
37
37
37
1900
1900
37
37
'Absence of PCBs can also be demonstrated by using appropriate screening methods, e.g., immunoassay kit for PCB in oils (Method 4020) o
colorimetric analysis for PCBs in oil (Method 9079). . .
<>Some minimum required detection limits are above the total halogen limit of 540 ppm. The detection limits reflect what was achieved dunn
EPA testing and analysis and also analytical complexity associated with measuring all halogen compounds on Appendix VIII at low levels. EPA
recognizes that in practice the presence of these compounds will be functionally limited by the molecular weight and the total halogen limit of 540
ppm.
(c) Implementation.—Waste that
meets the comparable or syngas fuel
specifications provided by paragraphs
(a) or (b) of this section (these
constituent levels must be achieved by
the comparable fuel when generated, or
as a result of treatment or blending, as
provided in paragraphs (c)(3) or (4) of
this section) is excluded from the
definition of solid waste provided that
the following requirements are met:
(1) Notices—For purposes of this
section, the person claiming and
qualifying for the exclusion is called the
comparable/syngas fuel generator and
the person burning the comparable/
syngas fuel is called the comparable/
syngas burner. The person who
generates the comparable fuel or syngas
fuel must claim and certify to the
exclusion.
(i) State RCRA and CAA Directors in
Authorized States or Regional RCRA
and CAA Directors in Unauthorized
States.—
(A) The generator must submit a one-
time notice to the Regional or State
RCRA and CAA Directors, in whose
jurisdiction the exclusion is being
claimed and where the comparable/
syngas fuel will be burned, certifying
compliance with the conditions of the
exclusion and providing documentation
as required by paragraph (c) (1) (i) (C) of
this section;
(B) If the generator is a company that
generates comparable/syngas fuel at
more than one facility, the generator
shall specify at which sites the
comparable/syngas fuel will be
generated;
(C) A comparable/syngas fuel
generator's notification to the Directors
must contain the following items:
(1) The name, address, and RCRA ID
number of the person/facility claiming
the exclusion;
(2) The applicable EPA Hazardous
Waste Codes for the hazardous waste;
(3) Name and address of the units,
meeting the requirements of paragraph
(c)(2) of this section, that will burn the
comparable/syngas fuel; and
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Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
33827
(4) The following statement is signed
and submitted by the person claiming
the exclusion or his authorized
representative:
Under penalty of criminal and civil
prosecution for making or submitting false
statements, representations, or omissions, I
certify that the requirements of 40 CFR
261.38 have been met for all waste identified
in this notification. Copies of the records and
information required at 40 CFR 261.28(c)(10)
are available at the comparable/syngas fuel
generator's facility. Based on my inquiry of
the individuals immediately responsible for
obtaining the information, the information is,
to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there
are significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
(ii) Public notice.—Prior to burning an
excluded comparable/syngas fuel, the
burner must publish in a major
newspaper of general circulation local
to the site where the fuel will be burned,
a notice entitled "Notification of
Burning a Comparable/Syngas Fuel
Excluded Under the Resource
Conservation and Recovery Act"
containing the following information:
(A) Name, address, and RCRA ID
number of the generating facility;
(B) Name and address of the unit(s)
that will burn the comparable/syngas
fuel;
(C) A brief, general description of the
manufacturing, treatment, or other
process generating the comparable/
syngas fuel;
(D) An estimate of the average and
maximum monthly and annual quantity
of the waste claimed to be excluded;
and
(E) Name and mailing address of the
Regional or State Directors to whom the
claim was submitted.
(2) Burning.—The comparable/syngas
fuel exclusion for fuels meeting the
requirements of paragraphs (a) or (b)
and (c)(l) of this section applies only if
the fuel is burned in the following units
that also shall be subject to Federal/
State/local air emission requirements,
including all applicable CAA MACT
requirements:
(i) Industrial furnaces as defined in
§ 260.10 of this chapter;
(ii) BoUers, as defined in §260.10 of
this chapter, that are further defined as
follows:
(A) Industrial boilers located on the
site of a facility engaged in a
manufacturing process where
substances are transformed into new
products, including the component
parts of products, by mechanical or
chemical processes; or
(B) Utility boilers used to produce
electric power, steam, heated or cooled
air, or other gases or fluids for sale;
(iii) Hazardous waste incinerators
subject to regulation under subpart O of
parts 264 or 265 of this chapter or
applicable CAA MACT standards.
(3) Blending to meet the viscosity
specification.—A hazardous waste
blended to meet the viscosity
specification shall:
(i) As generated and prior to any
blending, manipulation, or processing
meet the constituent and heating value
specifications of paragraphs (a)(l)(i) and
(a) (2) of this section;
(ii) Be blended at a facility that is
subject to the applicable requirements of
parts 264 and 265, or §262.34 of this
chapter; and
(iii) Not violate the dilution
prohibition of paragraph (c)(6) of this
chapter.
(4) Treatment to meet the comparable
fuel exclusion specifications.—(i) A
hazardous waste may be treated to meet
the exclusion specifications of
paragraphs (a)(l) and (2) of this section
provided the treatment:
(A) Destroys or removes the
constituent listed in the specification or
raises the heating value by removing or
destroying hazardous constituents or
materials;
(B) Is performed at a facility that is
subject to the applicable requirements of
parts 264 and 265, or §262.34 of this
Chapter; and
(C) Does not violate the dilution
prohibition of paragraph (c)(6) of this
seciton.
(ii) Residuals resulting from the
treatment of a hazardous waste listed in
subpart D of this part to generate a
comparable fuel remain a hazardous
waste.
(5) Generation of a syngas fuel.—(i) A
syngas fuel can be generated from the
processing of hazardous wastes to meet
the exclusion specifications of
paragraph (b) of this section provided
the processing:
(A) Destroys or removes the
constituent listed in the specification or
raises the heating value by removing or
destroying constituents or materials;
(B) Is performed at a facility that is
subject to the applicable requirements of
parts 264 and 265, or §262.34 of this
chapter or is an exempt recycling unit
pursuant to §261.6 (c) of this chapter;
and
(C) Does not violate the dilution
prohibition of paragraph (c) (6) of this
chapter.
(ii) Residuals resulting from the
treatment of a hazardous waste listed in
subpart D of this part to generate a
syngas fuel remain a hazardous waste.
(6) Dilution prohibition for
comparable and syngas fuels.—No
generator, transporter, handler, or owner
or operator of a treatment, storage, or
disposal facility shall in any way dilute
a hazardous waste to meet the exclusion
specifications of paragraph (a) (1) (i),
(a) (2) or (b) of this section.
(7) Waste analysis plans. The
generator of a comparable/syngas fuel
shall develop and follow a written waste
analysis plan which describes the
procedures for sampling and analysis of
the hazardous waste to be excluded. The
waste analysis plan shall be developed
in accordance with the applicable
sections of the "Test Methods for
Evaluating Solid Waste, Physical/
Chemical Methods" (SW-846). The plan
shall be followed and retained at the
facility excluding the waste.
(i) At a minimum, the plan must
specify:
(A) The parameters for which each
hazardous waste will be analyzed and
the rationale for the selection of those
parameters;
(B) The test methods which will be
used to test for these parameters;
(C) The sampling method which will
be used to obtain a representative
sample of the waste to be analyzed;
(D) The frequency with which the
initial analysis of the waste will be
reviewed or repeated to ensure that the
analysis is accurate and up to date; and
(E) If process knowledge is used in the
waste determination, any information
prepared by the generator in making
such determination.
(ii) The waste analysis plan shall also
contain records of the following:
(A) The dates and times waste
samples were obtained, and the dates
the samples were analyzed;
(B) The names and qualifications of
the person (s) who obtained the samples;
(C) A description of the temporal and
spatial locations of the samples;
(D) The name and address of the
laboratory facility at which analyses of
the samples were performed;
(E) A description of the analytical
methods used, including any clean-up
and sample preparation methods;
(F) All quantitation limits achieved
and all other quality control results for
the analysis (including method blanks,
duplicate analyses, matrix spikes, etc.),
laboratory quality assurance data, and
description of any deviations from
analytical methods written in the plan
or from any other activity written in the
plan which occurred;
(G) All laboratory results
demonstrating that the exclusion
specifications have been met for the
waste; and
(H) All laboratory documentation that
support the analytical results, unless a
contract between the claimant and the
laboratory provides for the
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33828
Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
documentation to be maintained by the
laboratory for the period specified in
paragraph (c)(l 1) of this section and also
provides for the availability of the
documentation to the claimant upon
request.
(Hi) Syngas fuel generators shall
submit for approval, prior to performing
sampling, analysis, or any management
of a syngas fuel as an excluded waste,
a waste analysis plan containing the
elements of paragraph (c)(7)(i) of this
section to the appropriate regulatory
authority. The approval of waste
analysis plans must be stated in writing
and received by the facility prior to
sampling and analysis to demonstrate
the exclusion of a syngas. The approval
of the waste analysis plan may contain
such provisions and conditions as the
regulatory authority deems appropriate.
(8) Comparable fuel sampling and
analysis, (i) General. For each waste for
which an exclusion is claimed, the
generator of the hazardous waste must
test for all the constituents on appendix
VIII to this part, except those that the
generator determines, based on testing
or knowledge, should not be present in
the waste. The generator is required to
document the basis of each
determination that a constituent should
not be present. The generator may not
determine that any of the following
categories of constituents should not be
present:
(A) A constituent that triggered the
toxicity characteristic for the waste
constituents that were the basis of the
listing of the waste stream, or
constituents for which there is a
treatment standard for the waste code in
40 CFR 268.40;
(B) A constituent detected in previous
analysis of the waste;
(C) Constituents introduced into the
process that generates the waste; or
(D) Constituents that are byproducts
or side reactions to the process that
generates the waste.
Note to paragraph (c)(8): Any claim under
this section must be valid and accurate for all
hazardous constituents; a determination not
to test for a hazardous constituent will not
shield a generator from liability should that
constituent later be found in the waste above
the exclusion specifications.
(ii) For each waste for which the
exclusion is claimed where the
generator of the comparable/syngas fuel
is not the original generator of the
hazardous waste, the generator of the
comparable/syngas fuel may not use
process knowledge pursuant to
paragraph (c)(8)(i) of this section and
must test to determine that all of the
constituent specifications of paragraphs
(a) (2) and (b) of this section have been
met.
(iii) The comparable/syngas fuel
generator may use any reliable
analytical method to demonstrate that
no constituent of concern is present at
concentrations above the specification
levels. It is the responsibility of the
generator to ensure that the sampling
and analysis are unbiased, precise, and
representative of the waste. For the
waste to be eligible for exclusion, a
generator must demonstrate that:
(A) Each constituent of concern is not
present in the waste above the
specification level at the 95% upper
confidence limit around the mean; and
(B) The analysis could have detected
the presence of the constituent at or
below the specification level at the 95%
upper confidence limit around the
mean.
(iv) Nothing in this paragraph
preempts, overrides or otherwise
negates the provision in §262.11 of this
chapter, which requires any person who
generates a solid waste to determine if
that waste is a hazardous waste.
(v) In an enforcement action, the
burden of proof to establish
conformance with the exclusion
specification shall be on the generator
claiming the exclusion.
(vi) The generator must conduct
sampling and analysis in accordance
with their waste analysis plan
developed under paragraph (c) (7) of this
section.
(vii) Syngas fuel and comparable fuel
that has not been blended in order to
meet the kinematic viscosity
specifications shall be analyzed as
generated.
(viii) If a comparable fuel is blended
in order to meet the kinematic viscosity
specifications, the generator shall:
(A) Analyze the fuel as generated to
ensure that it meets the constituent and
heating value specifications; and
(B) After blending, analyze the fuel
again to ensure that the blended fuel
continues to meet all comparable/syngas
fuel specifications.
(ix) Excluded comparable/syngas fuel
must be re-tested, at a minimum,
annually and must be retested after a
process change that could change the
chemical or physical properties of the
waste.
(9) Speculative accumulation. Any
persons handling a comparable/syngas
fuel are subject to the speculative
accumulation test under §261.2(c)(4) of
this chapter.
(10) Records. The generator must
maintain records of the following
information on-site:
(i) All information required to be
submitted to the implementing
authority as part of the notification of
the claim:
(A) The owner/operator name,
address, and RCRA facility ID number of
the person claiming the exclusion;
(B) The applicable EPA Hazardous
Waste Codes for each hazardous waste
excluded as a fuel; and
(C) The certification signed by the
person claiming the exclusion or his
authorized representative.
(ii) A brief description of the process
that generated the hazardous waste and
process that generated the excluded
fuel, if not the same;
(iii) An estimate of the average and
maximum monthly and annual
quantities of each waste claimed to be
excluded;
(iv) Documentation for any claim that
a constituent is not present in the
hazardous waste as required under
paragraph (c)(8)(i) of this section;
(v) The results of all analyses and all
detection limits achieved as required
under paragraph (c) (8) of this section;
(vi) If the excluded waste was
generated through treatment or ,
blending, documentation as required
under paragraph (c) (3) or (4) of this
section;
(vii) If the waste is to be shipped off-
site, a certification from the burner as
required under paragraph (c)(12) of this
section;
(viii) A waste analysis plan and the
results of the sampling and analysis that
includes the following:
(A) The dates and times waste
samples were obtained, and the dates
the samples were analyzed;
(B) The names and qualifications of
the person(s) who obtained the samples;
(C) A description of the temporal and
spatial locations of the samples;
(D) The name and address of the
laboratory facility at which analyses of
the samples were performed;
(E) A description of the analytical
methods used, including any clean-up
and sample preparation methods;
(F) All quantitation limits achieved
and all other quality control results for
the analysis (including method blanks,
duplicate analyses, matrix spikes, etc.),
laboratory quality assurance data, and
description of any deviations from
analytical methods written in the plan
or from any other activity written in the
plan which occurred;
(G) All laboratory analytical results
demonstrating that the exclusion
specifications have been met for the
waste; and
(H) All laboratory documentation that
support the analytical results, unless a
contract between the claimant and the
laboratory provides for the
documentation to be maintained by the
laboratory for the period specified in
paragraph (c) (11) of this section and also
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Federal Register/Vol. 63, No. 118/Friday, June 19, 1998/Rules and Regulations
33829
provides for the availability of the
documentation to the claimant upon
request; and
(ix) If the generator ships comparable/
syngas fuel off-site for burning, the
generator must retain for each shipment
the following information on-site:
(A) The name and address of the
facility receiving the comparable/syngas
fuel for burning;
(B) The quantity of comparable/
syngas fuel shipped and delivered;
(C) The date of shipment or delivery;
(D) A cross-reference to the record of
comparable/syngas fuel analysis or
other information used to make the
determination that the comparable/
syngas fuel meets the specifications as
required under paragraph (c) (8) of this
section; and
(E) A one-time certification by the
burner as required under paragraph
(c) (12) of this section.
(11) Records retention. Records must
be maintained for the period of three
years. A generator must maintain a
current waste analysis plan during that
three year period.
(12) Burner certification. Prior to
submitting a notification to the State
and Regional Directors, a comparable/
syngas fuel generator who intends to
ship their fuel off-site for burning must
obtain a one-time written, signed
statement from the burner:
(i) Certifying that the comparable/
syngas fuel will only be burned in an
industrial furnace or boiler, utility
boiler, or hazardous waste incinerator,
as required under paragraph (c) (2) of
this section;
(ii) Identifying the name and address
of the units that will burn the
comparable/syngas fuel; and
(iii) Certifying that the state in which
the burner is located is authorized to
exclude wastes as comparable/syngas
fuel under the provisions of this section.
(13) Ineligible waste codes. Wastes
that are listed because of presence of
dioxins or furans, as set out in
Appendix VII of this part, are not
eligible for this exclusion, and any fuel
produced from or otherwise containing
these wastes remains a hazardous waste
subject to full RCRA hazardous waste
management requirements.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
1. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974."
Subpart 13—Changes to Permits
2. Section 270.42 is amended by
adding a new paragraph (j) to read as
follows:
§ 270.42 Permit modification at the request
of the permittee.
(j) Combustion facility changes to
meet part 63 MACT standards. The
following procedures apply to
hazardous waste combustion facility
permit modifications requested under
Appendix I of this section, section L(9).
(1) Facility owners or operators must
comply with the Notification of Intent to
Comply (NIC) requirements of 40 CFR
63.1211 before a permit modification
can be requested under this section.
(2) If the Director does not approve or
deny the request within 90 days of
receiving it, the request shall be deemed
approved. The Director may, at his or
her discretion, extend this 90 day
deadline one time for up to 30 days by
notifying the facility owner or operator.
3. In § 270.42 Appendix I is amended
by adding entry L(9) to read as follows:
Appendix I to § 270.42—Classification
of Permit Modification
Modification
Class
L. Incinerators, Boilers and Industrial Furnaces
11
9. Technology Changes Needed to meet Standards under 40 CFR part 63 (Subpart EEE—National Emission Standards for Hazardous Air
Pollutants From Hazardous Waste Combustors), provided the procedures of §270.42(i) are followed
1 Class 1 modifications requiring Agency prior approval.
Subpart G—Interim Status
4. Section 270.72 is amended by
adding paragraph (b) (8) to read as
follows:
§270.72 Changes during interim status.
* * * * . *
(b) * * *
(8) Changes necessary to comply with
standards under 40 CFR part 63,
Subpart EEE—National Emission
Standards for Hazardous Air Pollutants
From Hazardous Waste Combustors.
[FR Doc. 98-15843 Filed 6-18-98; 8:45 am]
BILLING CODE 6560-50-P
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