ADDRESSES - US EPA

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

ENVIRONMENTAL PROTECTIONAGENCY

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 HazardousWaste Combustion Units; Notificationof Intent To Comply; WasteMinimization and Pollution PreventionCriteria for Compliance Extensions

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: On April 19, 1996, EPAproposed revisions for air emissionstandards for certain hazardous wastecombustion units. Today’s rule finalizessome elements of that proposal. Theseelements include a conditionalexclusion from RCRA for fuels whichare produced from a hazardous waste,but which are comparable to somecurrently used fossil fuels; a new RCRApermit modification provision which isintended to make it easier for facilitiesto make changes to their existing RCRApermits when adding air pollutioncontrol equipment or making otherchanges in equipment or operationneeded to comply with the upcomingair emission standards; notificationrequirements for sources which intendto comply with the final rule; andallowances for extensions to thecompliance period to promote theinstallation of cost effective pollutionprevention technologies to replace orsupplement emission controltechnologies for meeting the emissionstandards.EFFECTIVE DATE: This rule is effective onJune 19, 1998.ADDRESSES: The public docket for thisrulemaking is available for publicinspection at EPA’s RCRA Docket,located at Crystal Gateway, First Floor,1235 Jefferson Davis Highway,Arlington, Virginia. The regulatorydocket for this final rule contains anumber of background materials. Toobtain a list of these items, contact theRCRA Docket at 703–603–9230 andrequest the list of references in EPADocket #F–98–RCSF–FFFFF.FOR FURTHER INFORMATION CONTACT: TheRCRA Hotline between 9:00 a.m.–6:00p.m. EST, at 800–424–9346 (toll-free);703–412–9810 (from Governmentphones or if in the Washington, D.C.local calling area); or 800–553–7672 (for

the hearing impaired). For more detailedinformation on specific aspects of therulemaking, contact Mary Jo Krolewskion the comparable fuel exclusion at(703) 308–7754, Tricia Buzzell onpermit modifications at (703) 308–8632,James Lounsbury on wasteminimization and pollution preventionat (703) 308–8463, David Hockey on thenotification of intent to comply at (703)308–8846, or by writing, to U.S.Environmental Protection Agency,Office of Solid Waste, Permits and StatePrograms Division, 401 M St., S.W.(Mailcode 5303W), Washington, D.C.20460.SUPPLEMENTARY INFORMATION: This ruleis available on the Internet. Pleasefollow these instructions to access therule electronically:From the World Wide Web (WWW),

type eitherhttp://www.epa.gov/epaoswer/

hazwaste/combust/fastrack.EPA’s ‘‘Pollution Prevention Facility

Planning Guide’’ (May, 1992; NTIS#PB92–213206) describes the series ofanalytical steps that are often used bycompanies to identify wasteminimization measures. Additional EPAreferences include: ‘‘WasteMinimization Opportunity AssessmentManual (EPA 625/7–88/003, July 1988),Interim Final ‘‘Guidance to HazardousWaste Generators on the Elements of aWaste Minimization Program In Place,’’(May 1993), ‘‘An Introduction toEnvironmental Accounting As aBusiness Management Tool’’ (EPA 742–R–95–001, June 1995), the ‘‘P2/FinanceUser’s Manual: Pollution PreventionFinancial Analysis and Cost EvaluationSystem for Lotus 1–2–3 (EPA 742–B–94–003, January 1994), andEnviro$ense, an electronic library ofinformation on pollution prevention,technical assistance, and environmentalcompliance. Many of these and otherdocuments can be accessed bycontacting the RCRA Hotline toll-free at1–800–424–9346. Enviro$ense can beaccessed by contacting a systemoperator at (703) 908–2007, or on theInternet at http://wastenot.inel.gov/enviro-sense. Information on State wasteminimization programs can be obtainedthrough Enviro$ense, directly from theState pollution prevention programoffices, or from the National PollutionPrevention Roundtable at E-mailaddress [email protected],by phone at 202–466–7272 inWashington, D.C.

The official record for this action iskept in a paper format. Accordingly,EPA has transferred all electroniccomments received into paper form andplaced them into the official record,

with all the comments received inwriting. The official record ismaintained at the address in theADDRESSES section at the beginning ofthis document.

EPA’s responses to comments havebeen incorporated in a ‘‘Response toComments’’ document, which has beenplaced into the official record for thisrulemaking. The major comments andresponses are discussed in the Responseto Comment sections of this preamble.

The contents of today’s preamble arelisted in the following outline:I. Authority

II. Scope of Final Rule

III. Comparable Fuels Exclusion

A. EPA’s Approach to EstablishingBenchmark Constituent Levels

1. The Benchmark Approach2. Selection of the Benchmark Fuels

B. Options for the Benchmark Approach1. Selection of Percentile Level2. Composite v. Individual Specifications

C. Parameters for the Comparable FuelSpecification

1. Physical Specifications2. General Constituent Specifications3. Individual Hazardous Constituent

SpecificationsD. Parameters for the Synthesis Gas Fuel

Exclusion1. Physical Specifications2. General Constituent Specifications3. Individual Hazardous Constituent

SpecificationsE. Meeting the Comparable Fuel

Specifications1. Potential Applicability of Today’s Rule

to Specific Waste Codes2. General3. Blending4. Treatment

F. Meeting the Syngas Fuel SpecificationsG. Sampling and Analysis

1. Use of Process Knowledge2. Waste Analysis Plan3. Methods to Analyze Comparable Fuels4. Syngas Waste Analysis Plan and

Analysis Methods5. Non-detects

H. Notification, Certification, andDocumentation

1. Who Must Make the ExclusionNotification

2. Notification RequirementsI. Exclusion StatusJ. Recordkeeping

1. General2. Off-site Shipment

K. Transportation and StorageL. Comparable Fuels Exclusion and Waste

Minimization1. Introduction2. Major Concerns of Commenters

IV. RCRA Permit Modifications forHazardous Waste Combustion Units

A. IntroductionB. Overview

1. Background on RCRA PermitModification Procedures

2. Shortcomings of the Current Procedures

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

1 We note that DOW Chemical Company (Dow) ina petition to the Administrator, dated August 10,1995, specifically requested that the Agencydevelop a generic exclusion for ‘‘materials that areburned for energy recovery in on-site boilers whichdo not exceed the levels of fossil fuelconstituents* * *.’’ (Petition, at p.3). This final rulealso responds to that petition.

3. How Today’s Rule Impacts theProcedures

C. Discussion of RCRA Permit ModificationProcedures for Facilities Coming IntoCompliance With MACT Requirements

1. Summary of Proposed Options2. Summary of Public Comments3. Response to Comments and Discussion

of Final ProvisionsD. Summary of Public CommentsE. Response to CommentsF. RCRA Changes in Interim Status

Procedures

V. Notification of Intent to Comply andProgress Report

A. BackgroundB. Summary of Final ProvisionsC. Discussion of Public Comments and Final

NIC Provisions1. General2. Purpose of the NIC3. Timing4. NIC Meeting5. Relation Between NIC and Other

Notification RequirementsD. Discussion of Public Comments and

Progress Report1. Overview2. Summary of Progress Report

RequirementsE. CertificationF. Extension of the Compliance DateG. Sources Which Become Affected After the

Effective Date of This Subpart

VI. Waste Minimization and PollutionPrevention

A. OverviewB. BackgroundC. Summary of Proposed Pollution

Prevention/Waste MinimizationIncentives and Comments Received

D. Waste Minimization Incentives Containedin Today’s Rule

VII. State Authority

A. RCRA State AuthorizationB. Program Delegation under the Clean Air

Act

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis UnderExecutive Order 12866

B. Regulatory Flexibility ActC. Paperwork Reduction ActD. Unfunded Mandates

IX. Submission to Congress and the GeneralAccounting Office

X. Environmental Justice

A. Applicability of Executive Order 12898B. Potential Effects

XI. Children’s Health

XII. National Technology Transfer andAdvancement Act

I. AuthorityThese regulations are being finalized

under the authority of sections 1004,1006, 2002, 3001, 3004, 3005, and 7004of the Solid Waste Disposal Act of 1965,as amended, including amendments bythe Resource Conservation andRecovery Act.

II. Scope of the Final RuleOn April 19, 1996, EPA proposed

rules to control emissions of HAPs fromhazardous waste-burning incinerators,cement kilns, and light weight aggregatekilns. (61 FR 17358) After promulgationof the proposal, the Agency issued thefollowing notices of data availability(NODA): NODA 1 (Peer review andComparable fuels)—August 23, 1996: 61FR 43501; NODA 2 (Revised emissionsdatabase)—January 7, 1997: 62 FR 960;Continuous Emissions MonitoringSystems (CEMS) NODA—March 21,1997: 62 FR 13775; NODA 3 (MACTstandards 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 fourelements of the April 19, 1996 (61 FR17358) proposal to revise the standardsfor hazardous waste combustors. Theremaining issues of the proposal will beaddressed in final rules in the nearfuture.

III. Comparable Fuels ExclusionUnder this final rule, EPA is

excluding from the regulatory definitionof solid waste hazardous waste-derivedfuels that meet specification levelscomparable to fossil fuels forconcentrations of hazardousconstituents and for physical propertiesthat affect burning.1 The exclusionwould apply to the comparable fuelfrom the point it is generated and wouldbe claimed by the person generating thecomparable fuel (which person caninclude a hazardous waste treater). Withrespect to the fuels, generators of thecomparable fuel would have to complywith sampling and analysis, notificationand certification, and recordkeepingrequirements in order for their fuels tobe excluded. The exclusion potentiallyapplies to gaseous and liquid hazardouswaste-derived fuels. However, thisexclusion does not apply to solids or toused oil, which is subject to specialstandards under 40 CFR Part 279.

Today’s rule is consistent with EPA’sgoal to develop a comparable fuelspecification which is of use to theregulated community but assures that anexcluded waste-derived fuel is similarin composition to commerciallyavailable fuel and therefore poses nogreater risk than burning fossil fuel.Accordingly, EPA is using a

‘‘benchmark approach’’ to identify aspecification that would ensure thatconstituent concentrations and physicalproperties of excluded waste-derivedfuel are comparable to those of fossilfuels.

The rationale for the Agency’sapproach is that if a hazardous waste-derived fuel is comparable to a fossilfuel in terms of hazardous and other keyconstituents and has a heating valueindicative of a fuel, EPA has discretionto classify such material as a fuelproduct, not as a waste. Given that acomparable fuel would have legitimateenergy value and the same hazardousconstituents in comparableconcentrations to those in fossil fuel(and satisfies other parameters related tocomparability as well), classifying suchmaterial as a fuel product and not as awaste promotes RCRA’s resourcerecovery goals without creating any riskgreater than those posed by thecommonly used commercial fuels.Under these circumstances, EPA canpermissibly classify a comparable fuelas a non-waste. See 46 FR 44971(August 8, 1981) (exemption fromSubtitle C regulation for spent pickleliquor used as a wastewater treatmentagent in part because of its similarity incomposition to the commercial acidsthat would be used in its place); 50 FR49180, 49181, 49183 (November 29,1985) (explanation of a similar type ofbenchmark approach in establishingused oil fuel specification); 53 FR at31164 (August 18, 1988) (exemption forcertain hazardous waste-derivedfertilizers due to similarity to thecommercial fertilizers that would beused in their place).

Put another way, EPA can reasonablydetermine that a material which is alegitimate fuel and which containshazardous constituents at levelscomparable to fossil fuels is not being‘‘discarded’’ within the meaning ofRCRA section 1004 (27). ‘‘Discarded’’itself is an ambiguous term, seeAmerican Petroleum Inst. v. EPA, 906 F.2d 729, 741 (D.C. Cir. 1990). EPA’sinterpretation that hazardous waste-derived fuels which are comparable tofossil fuels need not be considered to be‘‘discarded’’ serves the statutoryobjective of encouraging resourcerecovery. RCRA section 1003 (a) (10). Inaddition, burning of such fuels does notpresent the element of discardinghazardous constituents throughcombustion that underlies the typicalclassification of hazardous waste-derived fuels as a solid waste. 50 Fed.Reg. at 629–630 (Jan. 4, 1985). This isbecause, as noted, hazardousconstituent concentration levels arecomparable to those in fossil fuels.


2 It is possible to determine on an individual basisthat particular waste-derived fuel should beexcluded from RCRA on risk-based grounds. See 63FR at 18533 (April 15, 1998) where EPA finalizedsuch an exclusion for a waste fuel which could begenerated by the pulp and paper industry. However,EPA cautions that making such a demonstration isdifficult (because of potential uncertaintiesregarding combustion conditions and exposurepatterns) and resource-intensive for the Agency toevaluate, and would still involve rulemaking.

The case law further makes clear thatEPA may classify secondary materials as‘‘discarded’’ based, at least in part, uponwhether such materials may beconsidered part of the wastemanagement problem. American MiningCongress v. EPA, 907 F. 2d 1179, 1186(D.C. Cir. 1990). Today’s rule containsconditions to assure that burning ofcomparable fuels will not become partof the waste management problem. Thechief condition is limitation on burningto industrial furnaces (as defined in 260.10), industrial and utility boilers, andhazardous waste incinerators. Anothercondition prevents specification limitsfor hazardous constituents beingachieved by means of dilution, so thatthe total volume of hazardousconstituents emitted from burningcomparable fuels would remaincomparable to those from burning fossilfuels. The rule also contains notificationand record keeping conditions whichassure that the fuels meet thespecification and will be burned in therequisite type of unit, and that this canbe verified objectively by third persons.

EPA notes that today’s final rule isconsistent with the main approachdiscussed in the Dow petition (seefootnote 1 above), which also points outa number of benefits that would resultfrom promulgating this type ofexclusion: (1) Support for the statutorygoal of promoting beneficial energyrecovery and resource conservation; (2)reduction of unnecessary regulatoryburden and allowing all parties to focusresources on higher permitting andregulatory priorities; and (3)demonstration of a common-senseapproach to regulation. Dow’s petitioncontained data on the chemical andphysical aspects of the fuel for whichthe petition was submitted. Based onthese data and additional datasubmitted during the comment period,it appears that the waste petitioned forexclusion by Dow meets the individualphysical and chemical comparable fuelspecifications set forth in this rule.Today’s rule does not exclude Dow’swastestreams or other wastestreams forwhich commenters submitted data thatmay meet the specifications of the finalrule. It remains the responsibility of thegenerator to comply with thespecifications of the comparable fuelexclusion stipulated by the State RCRAimplementing authority.

A. EPA’s Approach to EstablishingBenchmark Constituent Levels

1. The Benchmark ApproachEPA considered using risk to human

health and the environment as the wayto determine the scope and levels of a

‘‘clean fuels’’ specification. However,the Agency encountered severaltechnical and implementation problemsusing a purely risk-based approach todevelop a national rule. Specifically,EPA has insufficient data relating to thetypes of waste burned and the risks theypose to develop a fully protective andcomplete ‘‘clean fuels’’ exemption. EPAalso does not have sufficient data todetermine the relationship between theamount of ‘‘clean fuel’’ burned andemissions, especially of dioxins andother non-dioxin PICs. EPA also doesnot know how emissions (likelyuncontrolled) at the multitude of actualfacilities that would burn an excludedfuel would compare to emissions fromthe example facilities that EPA woulduse to derive a ‘‘clean fuel’’specification. (Emissions and/or risks ata given facility could be higher thanthose of the example facilities givensite-specific considerations.) Withoutconsidering all reasonable, possibleemission scenarios, which is notfeasible for the Agency at this time, theAgency is not prepared today to addressthese potential risks 2.

The Chemical ManufacturersAssociation (CMA) submitted a proposalto exempt certain ‘‘clean’’ liquid wastesfrom RCRA regulation. (61 FR at 17469)Unlike EPA’s benchmark-basedcomparable fuel approach, the CMAapproach would establish ‘‘clean fuel’’specifications for mercury, LVM, andSVM metals based on the technology-based MACT emissions standardsproposed for hazardous wastecombustors on April 19, 1996. As justdiscussed above, EPA is concernedabout using risk to establish a ‘‘cleanfuel’’ specification. EPA does not havedata available documenting thatemissions from burning a ‘‘clean fuel’’would not pose a significant risk for thepotential combustion and managementscenarios in which the clean fuelexclusion from RCRA might be used.Therefore, EPA will not be adoptingCMA’s proposal in today’s rule, but mayaddress aspects of the CMA concept infuture actions if appropriate andfeasible.

The Agency instead developed acomparable fuel specification, based onthe level of hazardous and otherconstituents normally found in fossil

fuels. EPA refers to this as thebenchmark approach. For this approach,EPA set a comparable fuel specificationsuch that concentrations of hazardousconstituents in the comparable fuelcould be no greater than theconcentration of hazardous constituentsnormally occurring in commercial fossilfuels. Thus, EPA expects that thecomparable fuel would pose no greaterrisk when burned than a fossil fuel andwould at the same time be physicallycomparable to a fossil fuel, leading tothe conclusion that EPA may classifythese materials as products, not wastes.See proposal for more details (61 FR17460, April 19, 1996).

Some commenters argued that byusing a benchmark approach, EPA hadfailed to assess potential risks to humanhealth and the environment resultingfrom the exclusion. Commenters arguedthat EPA cannot determine that thereare no adverse risks by the comparisonto fossil fuels. EPA disagrees withcommenters conclusions concerning theneed to determine absolute risk. In thisfinal rule, EPA is setting a comparablefuel specification with concentrations ofhazardous constituents no greater thanthe concentrations of hazardousconstituents occurring in fossil fuels.Thus, EPA reasonably expects—basedon the methodology used to establishthe specification—that the comparablefuel will pose no greater risk whenburned than a fossil fuel andconcomitant energy recovery benefitswill be realized from reusing the wasteto displace fossil fuels. The Agencyconcludes it has discretion in exercisingjurisdiction over hazardous waste-derived fuels that are essentially thesame as fossil fuel, since there wouldlikely not be environmental benefitsfrom regulating those hazardous waste-derived fuels (i.e., burners would likelyjust choose to burn fossil fuels). Indeed,as explained below, many commercialfuels could be less ‘‘clean’’ than thecomparable fuels, so that substitution ofsome commercial fuels could be a netdeterrent. See 50 FR at 49186(November 29, 1985) where EPAdiscussed similar considerations whendeveloping a specification for used oilfuel. See also discussion above as towhy such fuels need not be consideredto be ‘‘discarded’’. EPA has thereforedecided not to regulate comparablehazardous waste-derived fuels meetingthe benchmark specifications ashazardous waste under RCRA.

Furthermore, the Agency notes thatthe comparable fuel exclusionpromulgated today is the first phase inaddressing the ‘‘clean fuels’’ issue.Although EPA has identified problemswith commenters’ alternatives, there is


3 A smaller fraction of metals in coal partitions toemissions than for liquid fuels. Given that mostpotentially comparable fuels are liquids, allowingmetals at the concentrations present in coal couldresult in substantially higher metals emissions.

4 For further discussion see USEPA, ‘‘FinalTechnical Support Document for HWC MACTStandards, Development of Comparable FuelsSpecifications’’, May 1998.

room for further expansion of thecomparable or clean fuel concept. EPAwill continue to work with the regulatedcommunity to identify areas to expandthe approach taken in today’s finalrulemaking.

2. Selection of the Benchmark FuelsSince commercially available fossil

fuels are diverse, EPA considered arange of fuels upon which to base itsbenchmark fuel selection. Availablefuels ranged from gases, such as naturalgas and propane, to liquids (such asgasoline and fuel oils) to solids (such ascoal, coke, and peat). The Agencyproposed a benchmark based on liquidfossil fuels (gasoline, No.2 fuel oil, andNo.6 fuel oil). (61 FR at 17462)

Commenters argued that EPA shouldconsider solid fossil fuels in developingthe benchmark specifications.Commenters believe that materials suchas coal are fuels that are widely usedthroughout the U.S. and failing toconsider these materials ignoreslegitimate fuels used by certainindustries. EPA disagrees withcommenters’ requests to include solidfossil fuels in its benchmarkspecification. From an environmentalstandpoint, the comparable fuelspecification, which would exclude ahazardous waste-derived fuel fromRCRA subtitle C regulation, should notbe based on fossil fuels that have highlevels of toxic constituents that will notbe destroyed or detoxified by burning(e.g., metals and halogens). Data showthat solid fossil fuels havecomparatively higher metal 3 andpossibly halogen levels than liquidfossil fuels 4. Metals and halogens arenot destroyed in the combustion processunlike organic constituents which arecommonly destroyed or detoxifiedthrough combustion. Comparison withthis type of fuel could easily result in aleast common denominator approachwhereby a hazardous waste-derived fuelwould be ‘‘comparable’’ if it was nomore dangerous to burn than the mostcontaminated fossil fuels. Such‘‘comparability’’ is not congruent withthe overall objective of RCRA to protecthuman health and the environment andis inconsistent with the specificdirective to regulate combustion ofhazardous waste-derived fuels wherenecessary to protect human health and

the environment. (RCRA section3004(q)). Thus, while EPA has chosen touse a benchmark rather than a risk-based approach, the Agency has chosenbenchmark fuels that, in general, havelower contaminant levels forconstituents that are not destroyed.Therefore, in today’s rule, EPA is notusing solid fossil fuels as part of thecomparative benchmark.

EPA also will not be using a gas fuelsas benchmarks. Basing the comparablefuel specification on a gas fuel would beoverly conservative and have no utilityto the regulated industry. (The readershould note that EPA is promulgating anexclusion for a particular type ofhazardous waste-derived fuel, namely atype of synthesis gas (‘‘syngas’’) meetingparticular specifications (see Section Dbelow). This hazardous waste derivedgas can be used as a fuel and anexclusion provides beneficial resourcerecovery.) Liquid fuels, on the otherhand, are widely used by industry,readily combusted, and do not presentthe inconsistencies of solid or gaseousfuels. Simply put, the Agency, inassessing comparability, is not requiredto base a specification on either themost or least contaminated fossil fuels,but may reasonably choose a median, inthis case, representative fuel oils. In thisfinal rule, EPA is selecting only liquidfuels for its benchmark fuelspecification.

With regard to liquid fuels,commenters argued that EPA shouldconsider as benchmark fuels non-petroleum liquid based fuels such asturpentine and tall oil. One commenterrecommended that EPA identifyturpentine as a benchmark fuel becauseit has a very high Btu value and is usedas a fuel (and a manufacturingfeedstock) both within and outside theforest products industry. Anothercommenter pointed out that tall oil isnot only used in commerce as atraditional fuel, but that EPA haspreviously noted that tall oil is alegitimate non-waste fuel under the BIFrule low risk waiver exemption (LRWE)and DRE trial burn exemptions (56 FR7193, February 21, 1991).

While EPA is interested inestablishing a broad-based benchmark ofliquid fuels, EPA disagrees thatturpentine should be included in thebenchmark specification. Turpentine isnot a widely used commercial fuel.There are no ASTM standards forturpentine fuel which specify theminimum properties which must be metfor the product to be considered as acommercial fuel. By contrast, there areASTM specifications for each of thepetroleum fossil fuels EPA is using as abenchmark.

EPA does agree with the commenterthat tall oil is used in commerce as atraditional fuel and could be used as abenchmark fuel. At the time of theproposal, EPA had no data on tall oil.The commenter did submit one set ofdata that EPA was unable to use becauseit did not meet EPA data qualitystandards. Therefore, at this time, EPAwill not include tall oil in its benchmarkfuels.

Finally, some commenters did notsupport the use of gasoline for settingcomparable fuel specifications, becauseit is not typically utilized in industrialboilers and furnaces. Gasoline istypically limited used in internalcombustion engines, and the commenterdid not anticipate that industry orindividuals will utilize hazardouswaste-derived fuels in automobiles,trucks and buses. EPA disagrees thatgasoline should be excluded as one ofthe benchmark fuels. The Agency notesthat gasoline is a widely used,commercially available, liquid fuel andEPA does not believe that our selectionis necessarily limited to fuel burned inboilers or industrial furnaces. EPA haschosen its benchmark fuels so that theresulting comparable fuel whensubstituted would have hazardousconstituents lower than the fuel itreplaces. However, because thecomparable fuel will not be substitutedfor use in gasoline applications (theexclusion is restricted to air regulatedstationary combustion units, see SectionH below), the rationale for the inclusionof gasoline differs. The Agency believesthat gasoline provides a reasonableupper boundary for volatile organics,which are fuel-worthy constituents. TheAgency notes that unlike some solidfuels, gasoline has low concentrations ofmetals. When compared to lighter fueloils (e.g., No. 2 fuel oil), the gasolinespecification has higher specificationsfor only the detected volatile organics,which are readily burnable compounds.

B. Options for the Benchmark ApproachAt proposal, EPA presented several

options for deciding what fossil fuel(s)data to use as the benchmark. Theoptions range from developing a suite ofcomparable fuel specifications based onindividual benchmark fuels (i.e.,gasoline, No. 2, No. 4, No. 6) to basingthe specification on composite valuesderived from the analysis of allbenchmark fuels. (61 FR at 17643).

EPA took comment on individualbenchmark fuel specifications based ongasoline, No. 2, and No. 6 fuel oil, usingthe 90th percentile values for the basisof the individual specifications. Underthis approach, individual fuelspecification(s) could be implemented


5 For the gasoline sample analysis, the resultingdetection limits for volatile organic compoundswere an order of magnitude higher than the otherfuel specifications. EPA believes analysis ofcomparable fuels will more likely result indetection limits much lower than gasoline andsimilar to those associated with analysis of fuel oils.To address this issue, EPA has performed ananalysis of a fuel oil-only composite (one whichdoes not include gasoline in the composite) to useas a surrogate for the volatile organic gasoline non-detect values. Therefore, the volatile organicgasoline non-detect values used in the developmentof the composite and individual gasolinespecification were based on this fuel oil-onlycomposite.

in one of two ways. First, a facilitycould use any of the individualbenchmark specifications, withoutregard to what fuel it currently burns.The second approach is to link thecomparable fuel specification to thetype of fuel burned at the facility andbeing displaced by the comparable fuel.Under a composite fuel benchmarkapproach, EPA took comment on using:(1) The 90th percentile aggregate valuesfor the benchmark fuels; and (2) the50th percentile aggregate values for thebenchmark fuels. (61 FR at 17643).

1. Selection of Percentile LevelTo calculate benchmark

specifications, EPA obtained 27 fossilfuel samples, comprised of eightgasoline, eleven No. 2, one No. 4, andseven No. 6 fuel oil samples. Due to thesmall sample sizes of each fuel type,EPA initially used a nonparametric rankorder statistical approach to analyze thefuel data. Rank order involved orderingthe data for each constituent fromlowest to highest concentration,assigning each data point a percentilevalue from lowest to highest percentile,respectively. Results were thencalculated from the data percentiles.Because there were different numbers ofsamples for each fuel type, EPA wasconcerned that the fuel with the largestnumber of samples would dominate thecomposite database. To address thisissue, EPA’s statistical analysis‘‘normalized’’ the number of samples,i.e., treated each fuel type in thecomposite equally without regard to thenumber of samples taken.5 SeeKennecott v. EPA, 780 F.2d 445, 457(4th Cir. 1985) (upholding this statisticalmethodology). The fuel samples wereweighted equally because this weightingreflects the fact that benchmark fuelscan be used interchangeably instationary combustion units. Inaddition, as noted in the next section,equal weighting prevented over-estimation of either metals and semi-volatiles in No. 6 fuel oil or volatiles inthe higher end fractions.

One commenter argued that EPA’sproposed constituent-by-constituent

comparison approach is flawed becauseit ignores the compounding effect ofjoint probability. The commenter hasexamined the rank order statisticstechnique EPA used and has concludedthat the percentile values for theindividual constituents must be sethigher for all of them to meet the overallpercentile value simultaneously. Forexample, a candidate comparable fueltaken from the same reservoir as abenchmark fuel would, because ofrandom variability in constituentconcentrations, have a 23 percentchance of ‘‘failing’’ a comparison to abenchmark (at the 90th percentile) thathas 14 constituents above the detectionlimits. Thus the commenter argued thatthe proposed constituent-by-constituentcomparison would have little utility tothe regulated community.

While EPA believes there is someinterdependence among individualconstituents and that the principle ofjoint probability cannot be strictlyapplied, EPA is inclined to agree withthe commenter. At the time of proposal,EPA believed that a 50th percentileanalysis represented a midpoint ofpotential benchmark fuels that werestudied. EPA also believed that a 90thpercentile analysis represented areasonable upper bound of what isfound in all fuels capturing variabilityboth with each fuel category and in thecase of the composite approach,between categories. However, when theindividual fuel samples were comparedto the benchmark specifications, EPAfound that at the 50th percentilecomposite none of the virgin fuelsamples met the specification and at the90th percentile composite only 40percent met the specification. Thisappears to confirm the commenter’sconcern over joint probability, andreflects on the degree to which thecomparable fuels exclusion wouldactually be useable. It was EPA’s goal tobase the comparable fuel specificationson the 99th percentile, a level nearwhich 90 percent of EPA’s individualfuel samples would meet thespecification. However, the size of thedata base precluded the calculating of a99th percentile constituentspecification. Therefore, in this case, theAgency used the largest measured valueto approximate an upper percentile. Inthe future, EPA may choose alternativemethods of evaluating any new data thatmay be submitted suggesting that thesespecifications need to be modified. Afterre-calculating the specification takingjoint probability into account, thecomposite at the largest value moreclosely represents what EPA intended topropose with the 90th percentile, a

reasonable upper bound that is alsouseable in practice. The 90th percentileclosely represents what EPA intendedwith the proposed 50th percentile, i.e.,a midpoint.

Some commenters did support the50th percentile because they argued itwas more protective. The majority ofcommenters supported the 90thpercentile and some commenters arguedfor the use of a higher percentile, i.e.,95th or 99th. Because none of EPA’sown fuel samples meet thisspecification, the 50th percentile isoverly conservative. If EPA selected the50th percentile, comparable fuels wouldhave to be ‘‘cleaner’’ than allcommercial liquid fuels (or at least allof those in the Agency’s currentdatabase), which would greatly restrictthe utility of the provision. Also, withsuch a strict approach, additionalquantities of virgin oils with highercontaminant levels would be burned,leading to greater emissions than if ahigher percentile was chosen. Therefore,EPA agrees with commenters that ahigher percentile better reflects theliquid fossil fuels burned nationally andis a better benchmark.

After considering the issue of jointprobability, EPA has decided topromulgate a composite specificationbased on the largest measured value toapproximate what 90 percent ofindividual benchmark fuels are likely tomeet. This approach has the virtue ofbeing representative of a range of fuelsthat are burned nationally incombustion devices.

Based on the proposal, EPA had theoption of choosing between anindividual fuel specification approachand a composite approach. The majorityof commenters supported using thecomposite specification plus the suite ofindividual fuel specifications that couldbe used irrespective of the fueldisplaced.

The composite approach hasadvantages over the individual fuelspecification approach. One issueassociated with the single fuelspecification approach is that gasolinehas relatively higher levels of volatileorganic compounds while No. 6 fuel oilhas higher levels of semi-volatileorganic compounds and metals. If apotential comparable fuel were to havea volatile organic constituentconcentration below the gasolinespecification but higher than the othersand a particular metal concentrationlower than the No. 6 fuel oilspecification but higher than gasoline, itwould not be a comparable fuel since itmeets no single specification entirely.Therefore, EPA is concerned thatestablishing specifications under this


6 Note that ppmw is an alternate way ofexpressing the units mg/kg.

7 The 5,000 Btu/lb measure is not, however, anunvarying measure of legitimate versus insufficientenergy recovery. See, e.g., 48 FR at 1158 (March 16,1983).

option would significantly limit theutility of the exclusion without anyobvious advantage in terms of thetechnical basis of the specificationsthemselves.

Compositing all the fuels has theadvantage that it may better reflect therange of fuel choices and potential forfuel-switching available nationally toburners. A facility would be allowed touse the composite fuel specificationregardless of which fuel(s) it burns. Inaddition, the composite well representsthe constituent makeup of liquid fossilfuels currently burned nationally.Because allowing individualspecifications would unnecessarilycomplicate the Agency’simplementation oversight, EPA hasdecided not to allow the individualspecifications as an alternative.Furthermore, EPA notes that because ithas chosen to promulgate constituentstandards for comparable fuels based onthe largest measured value, thecomposite approach will provideindustry with greater flexibility in usingthe exclusion. A composite specificationprovides a simpler regulatoryframework, which would facilitateimplementation of the exclusion.Therefore, in this final rule, EPA ispromulgating a composite specificationfor comparable fuels.

C. Parameters for the Comparable FuelSpecification

Using the benchmark approachdiscussed above, EPA is promulgating aset of technical specifications. Thespecifications address the following 6:(1) Physical specifications:—Heating value (BTU/lb);—Kinematic viscosity (centistokes, cs,

as-fired),(2) General constituent specificationsfor:—Total Halogens (ppmw, expressed as

Cl)—Nitrogen, total (ppmw), and(3) Individual hazardous constituentspecifications, for:—Individual Metals (ppmw),—Individual Appendix VIII Toxic

Organics (ppmw)The constituent specifications andheating value would apply to both gasesand liquids. The kinematic viscositywould not apply to gases. (See SectionD, below, which discusses synthesisgases specifically.)

1. Physical Specifications

a. Heating Value. The Agency isconcerned with the acceptability of the

potential fuel and wants to ensure thatcomparable fuels have a legitimate useas a fuel. As discussed below, thecomparable fuels exclusion only appliesto waste fuels that are ultimatelyburned. In addition, the Agency hasrelied on a heating value of 5,000 Btu/lbm (11,500 J/g) as a reasonable heatingvalue specification for determining if awaste is being burned for energyrecovery; that is, wastes with this Btuvalue or higher are considered to beburned for energy recovery. (See§ 266.103(c)(2)(ii). 50 FR at 49173n.24(November 29, 1985)). 7 This type ofminimum Btu value specification isappropriate here as well as for theoverall fuel (note that this is a differentissue than finding the appropriate Btuvalue by which to correctly determine ifthe individual constituent specificationsare being met, discussed below). EPA isthus setting a 5,000 Btu/lbm limit todayas a minimum heating value for acomparable fuel to ensure thatcomparable fuels are in fact legitimatefuels. See § 261.38(a)(1)(i).

b. Kinematic viscosity. Viscosity is animportant specification to help ensurethat a comparable fuel is as readilyburnable as the benchmark fuel.Viscosity is important to the properatomization and feed to the burningdevice and is an important designspecification of the burner assembly.EPA proposed two options for setting aviscosity specification: (1) Using a valuederived from the analyses EPAconducted; or (2) using the ASTMviscosity specification for fuel oil. (61FR at 17465). Under the ASTM optionfor the composite fuel viscosityspecification, EPA took comment onusing the second highest ASTMviscosity specification. This would havethe effect of not considering theextremes, viscosity of No. 6 fuel oil(50.0 cs at 100°C) and using as thespecification the viscosity of No. 4 fueloil (24.0 cs at 40°C).

Given the choice of EPA-derivedviscosity values and ASTM values, themajority of commenters supported theuse of the ASTM physical specificationfor viscosity. In addition, severalcommenters argued that the viscosityspecification should apply at the point(temperature) that the fuel is fired ratherthan the point of generation.Commenters pointed out that it iscommon practice to reduce the as-firedviscosity to promote good atomizationand combustion through blending withless viscous fuels or by warming the fuel

to above-ambient temperature beforefiring. For example, while No. 6 fuel oilhas an elevated viscosity at ambientconditions, it is typically stored andfired at temperatures which promoteatomization and combustion.

EPA is persuaded by commenters thatbasing our viscosity specification on No.4 fuel oil would possibly limitcomparable fuels similar to No. 6 fueloil (one of the benchmark fuels) fromqualifying for the exclusion. EPA agreesthat the viscosity specification shouldbe based on ASTM standard for No. 6fuel oil (50 cs at 100°C). The ASTMstandard represents the typicaltemperature and viscosity at which No.6fuel oil is fired. Thus, it is appropriatefor a comparable fuel, when fired, tohave the same viscosity as No. 6 fuelwhen fired. This will allow for aspecification that is achievable for allliquid fossil fuels.

Therefore, in this final rule, EPA ispromulgating a kinematic viscosityspecification of 50 cs, as-fired . Thespecification for viscosity will onlypertain to non-gaseous fuels, becausegases are inherently less viscous thanliquids. See § 261.38(a)(1)(ii).

c. Flashpoint (proposed, but notpromulgated). EPA proposed twooptions for setting a minimumflashpoint specification: (1) Using avalue derived from the analyses EPAconducted; or (2) using the requirementsfor flashpoint specified by ASTM.Under the ASTM option for thecomposite fuel flashpoint specification,EPA took comment on using the secondlowest flash point as the specifications.(61 FR at 17465). This would have theeffect of not considering the extremes,flash point of gasoline (¥42°C) andusing as the specification the flash pointof No. 2 fuel oil (38°C).

Several commenters opposed settingspecifications for flash point.Commenters argued that DOT andOSHA have developed and promulgatedregulations that control the hazardssuch materials can pose. Commentersalso argued that the specification wouldpreclude burning materials that arenormally fuels such as methanol. EPAagrees with commenters that DOT (49CFR Parts 171 through 180) and OSHA(29 CFR Part 1910) regulationsadequately address the transportationand handing of low flashpoint materialand setting a flashpoint specificationunder RCRA would be unnecessarilyredundant with no ostensible gain inprotectiveness. In addition, by limitingthe exclusion to units subject toFederal/State/local air emissionrequirements, comparable fuels will beburned in units subject to OSHArequirements. (See Section H, below,


8 Constituent levels presented in today’s final rulehave been corrected from the fuel’s heating value(approximately 20,000 BTU/lb) to 10,000 BTU/lb.

9 Consult USEPA, ‘‘Final Technical SupportDocument for HWC MACT Standards, Developmentof Comparable Fuels Specifications’’, May 1998.

10 Note that the heating value correction wouldapply only to allowable constituent levels in fuels,not to detection limits. Detection limits would notbe corrected for heating value.


which discusses this requirement.)Therefore, EPA is not establishing aflashpoint specification for the finalrule.

2. General Constituent Specifications

In determining general constituentspecifications and in determiningindividual hazardous constituentspecifications (see followingdiscussion), the Agency is concernedwith the overall environmental loading.Comparable fuels could have lowerheating value than the fossil fuels theywould displace. In these situations,more comparable fuel would be burnedto achieve the same heat input, with theresult that more hazardous constituentswould be fired and emitted (e.g.,halogenated organic compounds andmetals) than if fossil fuel were to beburned. This would lead to greaterenvironmental loading of potentiallytoxic substances, which is not inkeeping with the intent of thecomparable fuels exclusion nor withRCRA’s overall protectiveness goals.

To address environmental loading,the approach used in this final rule isto establish a minimum heating valuespecification comparable to the BTUcontent of the benchmark fossil fuel(s).The Agency is establishing thespecification(s) for comparable fuels at aheating value of 10,000 BTU/lb, whichis near to what liquid commercial fuelscontain.8 EPA chose 10,000 BTU/lbbecause it is typical of currenthazardous waste burned for energyrecovery.9 However, candidatecomparable fuels when generatedinitially can have heating values verydifferent than 10,000 BTU/lb. Therefore,under this final rule, when determiningwhether a waste meets the comparablefuel constituent specifications, agenerator must first correct theconstituent levels in the candidatewaste to a 10,000 BTU/lb heating valuebasis prior to comparing them to thecomparable fuel specification tables. Inthis way, a facility that burns acomparable fuel would not be feedingmore total mass of hazardousconstituents than if it burned fossilfuels.10

a. Specification Levels forHalogenated Compounds. I. Summary.For the final rule, EPA is using its

composite benchmark approach toestablish a total halogen specificationand allowing compliance with a totalorganic halogen limit in lieu ofcomplying with limits on individualAppendix VIII halogenated compounds.Therefore, a comparable fuels generatorwould have the option of complying: (a)with a total organic halogenspecification of 25 ppm plus the totalPCB specification or (b) with the all ofthe individual Appendix VIIIspecifications for halogen compounds.In addition, in both cases, the generatorwould also have to comply with thetotal halogen limit (which includes bothorganic and inorganic halogens) of 540ppm and with a total PCB specification(non-detect at a minimum requireddetection limit of 1.4 ppm). See§ 261.38(a)(2), Table 1.

Compliance with a total organichalogen specification in lieu of limits onindividual halogenated compounds willensure that measurable levels ofhalogenated compounds will be nogreater than in benchmark fuels. Inaddition, the total organic halogenspecification will result in less samplingand analysis costs. Finally, the totalhalogen limit (both organic andinorganic) will create a presumptionthat halogenated products of incompletecombustion (PICs) generated fromburning a comparable fuel will not beemitted at higher levels than fromburning a benchmark fossil fuel.

ii. Total Halogen Rationale. Althoughtotal halogens are not listed inAppendix VIII, Part 261, EPA proposeda total halogen specification to establisha presumption that halogenatedproducts of incomplete combustion(PICs) generated from burning acomparable fuel would not be emitted athigher levels than from burning abenchmark fossil fuel. See proposal (61FR at 17461) and subsequent notices ofdata availability (61 FR 43502, August23, 1996 and 61 FR 47402, September 9,1997). PICs resulting from the burningof halogenated organic compounds canpose a particular hazard to humanhealth and the environment.11 Using thebenchmark approach, EPA proposed acomposite fuel total halogen limit of 25ppm.

At the time of the proposal, EPAintended to establish a total halogenlimit that included both organic andinorganic halogens. However, the totalhalogen data used by EPA in theproposed rule for its No. 4 and No. 6fuel oils were based on analytical

methods measuring only total organichalogens, not both organic andinorganic halogens. Commenters raisedconcerns about including total halogendata that did not include inorganichalogens because it did not representtypical halogen content found inbenchmark fuels. EPA was persuaded bycommenters’ arguments and noticedadditional total halogen data gatheredfrom its own database (i.e.,Certifications of Compliance (CoC)required by the Boilers and IndustrialFurnace Rule) and data submitted byone commenter. In addition, EPA willcontinue to use its original gasoline andNo. 2 fuel oil halogen data, whichincluded both organic and inorganichalogens. Using the additional data, thetotal halogen specification would be 540ppm for the composite benchmark data.For further discussion, see NODA 61 FRat 47402.

In response to EPA’s NODA,commenters argued that some of thedata should not be used to establish thetotal halogen specification due to theuse of inappropriate analytic methods.In particular, commenters believe thatCoC data from two facilities (HuntsmanPolypropylene Corporation andAmerican Cyanamid) should not beincluded because the analytical methodused measured organic halogens only.In addition, commenters believe thatCoC data from another facility (DowChemical) should not be includedbecause the detection limit of themethod used to analyze for totalhalogens (ASTM Standard D 808) is notsensitive below 1000 ppm, and unlesssome other, more sensitive analyticalmethod were followed afterward, themethod could not have been effective atthe levels reported. EPA is persuaded bythese commenters’ arguments and hasexcluded the data from these threefacilities from its halogen data set. Usingthis revised data set, the total halogenspecification would be 540 ppm for thecomposite benchmark data. For the finalrule, EPA is promulgating a totalhalogen specification of 540 ppm.

In response to the initial proposal,some commenters argued that EPAshould consider solid fuels like woodand coal in the development of a totalhalogen specification. As discussedabove, EPA has decided not to includesolid fuels in its benchmarkspecification. Thus, EPA is not inclinedto consider using solid fuels to set oneof the specifications. Also, EPA isconcerned about the formation ofhalogenated PICs from comparable fuelscontaining halogens. At this time, EPAhas no data to support a conclusion thatthe higher halogen levels in solid fuelswould not cause an increase in



halogenated PIC formation compared tobenchmark fuels.

The Agency also received commenton an emissions-based equivalencydetermination to qualify for the totalhalogen specification. One commenterargued that the Agency should considerthe commenter’s candidate comparablefuel as a comparable fuel even thoughit cannot meet the comparable fuelspecification for total halogens. TheAgency considered the situation but, asindicated in the September 9, 1997NODA (62 FR at 47403), continues tomaintain that an emissions-basedequivalency determination to thehalogen specification on a nationalregulatory basis would be inappropriateand infeasible at this time.

In response to EPA’s NODA, thecommenter argued that an equivalencydetermination would not beadministratively complex and that itcould involve a demonstration by theperson applying for the equivalencydetermination that the chemistry of thefuel is such that it is incapable offorming halogenated PICs. EPA is notpersuaded by the commenter’sarguments. For hydrocarbon-basedfuels, combustion conditions (such asoxygen level, mixing, temperature, etc.)will have an impact on non-chlorinatedand/or chlorinated PIC emissions.Additionally, chlorine in both inorganicand organic forms in the waste fuel cancontribute to chlorinated PIC emissions.Dioxin/furans and other chlorinatedPICs have been detected from sourcesburning both inorganic (e.g., salts) and/or organic chloride (e.g., plastics)containing wastes.12 Furthermore, if theAgency were to develop an equivalencydetermination for total halogens, theimplementation details needed in anational regulation to ensure propercombustion of halogenated wasteswould be numerous, including, forexample, provisions on burner operatingparameters, performance testing, andmonitoring. These details would almostcertainly result in a complicatedconditional exclusion from thedefinition of solid waste that is viewedas both potentially unworkable and verydifficult to implement on a nationalbasis.

Therefore, EPA is not inclined at thistime to consider developing anynational equivalency determination tothe total halogen specification. At somefuture point, perhaps as the Agency’sunderstanding of cause-and-effectrelationships regarding emissions from a

wider variety of sources grows, EPAmay be able to address aspects of thecommenter’s recommendations ifappropriate and feasible.

iii. Total Organic Halogen Rationale.As an additional part of its proposal,EPA invited comment on whether atotal halogen specification could act asa surrogate for limits on individualhalogenated compounds found inAppendix VIII. In this case, EPA’sproposed limit of 25 ppm for totalorganic halogens would act as thesurrogate for the individual halogenatedorganics. Commenters supported thesurrogate approach and indicated that itwould reduce the testing andrecordkeeping costs on the regulatedcommunity. EPA agrees that thisapproach will simplify the comparablefuels specification and possibly meanfewer and less costly sampling andanalyses of comparable fuel streams forgenerators.

However, some commenters raisedconcerns that a total halogen analysiswill not be an effective screen for someof the more hazardous halogenatedAppendix VIII constituents which couldconstitute a potential risk at lowdetection levels (e.g.,tetrachlorodibenzo-p-dioxins). EPAcalculated the equivalent constituentconcentrations using the minimumdetection limit values for thesehazardous halogenated organics anddetermined that the 25 ppm totalorganic halogen limit will be aneffective screen for all of the chlorinateddibenzofurans and chlorinateddibenzodioxins (i.e., the tetra- throughocta-congeners). The minimumdetection limits calculated for thesecongeners ranged from 30 to 150 ppmand the 25 ppm organic halogenspecification will limit these congeners’concentrations to below those minimumdetection limits. Additional factors inthis decision to use the 25 ppm halogenlimit as a screen for dioxins include thefollowing:

(1) In particular, waste codes F020,F021, F022, F023, F026 and F028 havebeen designated as ‘‘inherently waste-like’’ under 40 CFR 261.2(d) andtherefore are not eligible for thecomparable fuel exclusion;

(2) Wastes listed because they containdioxins would also be expected tocontain significant levels of otherhalogenated organics. (The readershould note that the compounds inquestion are typically formed from thebreakdown and reaction of otherhalogenated organics.) The higherconcentrations of these otherhalogenated organics would drive thetotal organic halogen content of thewaste up and, thus, the contribution of

any chlorinated dibenzofurans anddioxins would have to be significantlyless than the 25 ppm limit; and

(3) Waste codes expected to containsignificant levels of other halogenatedorganics can be readily discerned fromtheir list descriptions in 40 CFR 261Subpart D (e.g., F001 and F002 solventwastes are defined as halogenatedsolvents; F024 includes waste fromproduction of halogenated organics.) Inaddition, Appendix III to Part 268 liststhe halogenated organics typicallyfound in hazardous wastes and that aresubject to land disposal restrictionsunder 40 CFR 268.32. By comparingthese, a person implementing today’srule could easily determine the mostlikely waste codes that could containhalogenated organics in excess of the 25ppm limit, and thus easily identifywastes not eligible for the comparablefuels exclusion. See also Section Ebelow for point of generation andblending/treatment discussions.

Commenters are also concerned thatthe use of a total organic halogensurrogate will possibly mask illegal PCBdisposal. Since low analytical detectionlimits for PCBs (i.e., 1.4 ppm) in thebenchmark fuel matrices have beenwell-demonstrated, the 25 ppm totalorganic halogen limit would not be asufficient screen. Since PCBs arerelatively common halogenatedcontaminants in fuel-like wastes and theprobability of finding them is non-trivial, EPA is keeping the limits onPCBs to ensure levels no greater thanfrom benchmark fuels. EPA also pointsout that there are several relativelyinexpensive analytical screeningmethods that have been developedspecifically for the determination oftotal PCBs.

With regard to analysis methodology,commenters have indicated that the testmethod (ASTM Method 4929) used byEPA to analyze for organic halogensmay not be appropriate to analyze theircandidate comparable fuel. EPArecognizes that the methods used in itsown analysis of the benchmark fuelsmay not be appropriate for somecandidate comparable fuels. Thus, inthe final rule EPA is allowing the use ofalternate methods or modifications tocurrent methods that meet theperformance based criteria in section§ 261.38(c)(7). It is the responsibility ofthe generator to ensure that thesampling and analysis is unbiased,precise, and representative of the waste.For further details, see Section G.Sampling and Analysis, below.

b. Specification Levels forNitrogenated Compounds. Althoughtotal nitrogen is not listed on AppendixVIII, Part 261, EPA proposed a total



14 Excluding sulfur, carbon and hydrogencomprise 99.6 to 100% of liquid fossil fuels.

nitrogen specification to ensure thatnitrogenated products of incompletecombustion (PICs) from burning acomparable fuel would not be emitted athigher levels than from burning abenchmark fossil fuel. See proposal (61FR at 17462) and a subsequent notice ofdata availability (61 FR 43502, August23, 1996). PICs resulting from burningnitrogenated organic compounds canalso pose a particular hazard to humanhealth and the environment.13

Commenters generally did not addressthe issue of formation of nitrogenatedPICs. Instead, most commentersdisagreed with the need to establish aspecification for nitrogen under RCRA’scomparable fuel specification when thispollutant (as NOx) is controlled underthe Clean Air Act (CAA). Commentersargued that EPA has the authority underthe CAA to control certain criteriapollutants, such as nitrogen oxides and,in fact, has promulgated primary andsecondary National Ambient Air QualityStandards (NAAQS) for oxides ofnitrogen. EPA believes that a totalnitrogen specification is necessary. Thecounter-arguments advanced do notaddress EPA’s rationale for establishinga total nitrogen limit. The CAA NAAQSdo not themselves ensure control ofindividual combustion units in amanner that prevents formation ofnitrogenated PICs, nor do they ensurethat a hazardous waste-derived fuelwould contain no greater amounts ofnitrogenated compounds than fossilfuels. EPA is therefore establishing atotal nitrogen specification to ensurethat concentrations of nitrogenated PICsin comparable fuels will be no greaterthan in benchmark fuels.

As an additional part of its proposal,similar to total halogens, EPA invitedcomment on whether a total nitrogenspecification could act as a surrogate forlimits on individual nitrogenatedcompounds found in Appendix VIII.EPA believes that a surrogate approachwould simplify the comparable fuelsspecification and possibly mean fewerand less costly sampling and analyses ofcomparable fuel streams for generators.However, analysis of EPA’s compositedata results in a total nitrogenspecification of 4,900 ppm. Thedetection limits for EPA’s analysis ofindividual nitrogenated compounds inits benchmark fuels ranged from 1 to2200 ppm. Since detection limits fornitrogenated compounds in thebenchmark fuels have beendemonstrated well below 4,900 ppm, a

total nitrogen specification would not bea sufficient screen for individualAppendix VIII nitrogenated compounds.

Therefore, for nitrogen compounds,EPA is promulgating a total nitrogenspecification of 4,900 ppm withindividual Appendix VIII nitrogenspecifications. See § 261.38(a)(2), Table1. This approach ensures that levels ofindividual nitrogenated compounds andthe total nitrogen concentration are nogreater than the benchmark fuels andcreates a presumption thatconcentrations of nitrogenated PICsfrom burning a comparable fuel are nogreater than burning a benchmark fuel.

3. Individual Hazardous ConstituentSpecifications

To limit the Part 261, Appendix VIIIconstituents in comparable fuels tothose found in benchmark fossil fuels,the Agency calculated concentrationlimits using the Agency’s analysis ofindividual benchmark fuel samples.Where EPA did not detect a particularAppendix VIII constituent in thebenchmark fuel, the Agency set theconstituent specification using one oftwo approaches. For constituents thatthe Agency did not detect and did nothave reason to believe would be presentin a benchmark fuel (e.g., halogenatedorganics), the comparable fuelspecification is ‘‘non-detect’’ with anassociated, specified minimum requireddetection limit for each compound. Thedetection limit is a statistically-derivedlevel based on the quantification limitdetermined for each sample. Whilethese constituents should not bepresent, the Agency will allow non-detects lower than the detection limitsthat EPA was able to obtain. However,EPA will not allow measured orquantified results below the specifiedminimum required detection limitwhere ‘‘non-detect’’ is the comparablefuel specification. For metals,hydrocarbons, and oxygenates, theAgency followed a different approach,which is described below.

a. Individual CAA and Appendix VIIIMetals. EPA proposed concentrationlevels or minimum required detectionlimits for all CAA metals and RCRAAppendix VIII metals (61 FR at 17460).Commenters argued that the Agencyshould modify its approach with respectto non-detect levels and allow thehazardous constituent to be present inthe comparable fuel up to the detectionlimit. In particular, commenters arguedthat metals are expected to be present inpetroleum products, resulting from theformation process or the productionprocess, and, therefore, it is reasonableto assume that non-detect metals inEPA’s benchmark analysis would be

present up to the detection limit. EPAagrees that metals could be present infossil fuels but below EPA’s detectionlimits. Therefore, the final rule allowsmetals to be present at anyconcentration less than or equal to thedetection limits in EPA’s analysis.

In addition, as proposed, EPA issetting limits for two metals that are notfound on Part 261, Appendix VIII:cobalt and manganese. EPA includedthese metals in the analysis becausethey are listed in the Clean Air Act ashazardous air pollutants (HAPs). SeeCAA, section 112(b) and proposal (61FR at 17460). By including these metalHAPs and the RCRA metals listed onAppendix VIII, Part 261, the Agencywill ensure that the specification limitsall toxic metals of concern in hazardouswastes to levels present in thebenchmark fossil fuels. Therefore, EPAis promulgating constituent levels forthe all CAA metals and RCRA AppendixVIII metals at the largest valuecomposite of EPA fossil fuel data. See§ 261.38(a)(2), Table 1.

b. Individual Appendix VIII ToxicOrganics. EPA is promulgatingconstituent levels or minimum requireddetection limits for all Part 261,Appendix VIII, toxic organicconstituents, unless otherwise noted.See § 261.38(a)(2), Table 1. SomeAppendix VIII compounds were notanalyzed because a routine analyticalmethod is not available. Because EPAdid not analyze for some compounds inAppendix VIII, EPA will not bepromulgating standards for theseremaining Appendix VIII constituents.These compounds are not listed intoday’s specifications, and a comparablefuel generator will not have to complywith specifications for thesecompounds. EPA believes it highlyunlikely that a hazardous waste-derivedfuel would contain only theseundetectable Appendix VIIIconstituents.

i. Specification Levels for UndetectedPure Hydrocarbons. EPA proposedallowing pure hydrocarbons onAppendix VIII to be present at anyconcentration less than or equal to thedetection limits in EPA’s analysis. Sincefossil fuels are comprised almostentirely of pure hydrocarbons 14 invarying concentrations, it is possiblethat many pure hydrocarbons inAppendix VIII, Part 261, could bepresent in fossil fuel but belowdetection limits. These materials, whichinclude compounds such asfluoranthene, might not even beconsidered solid wastes when burned in


their pure carbon form since they arethemselves products. See§ 261.2(c)(2)(ii), and see proposal (61 FRat 17461).

Some commenters argued that nocomparable fuels specifications shouldbe established for pure hydrocarboncompounds because pure hydrocarbonswill burn cleanly. EPA disagrees for thepurpose of today’s rule becauseestablishing no limits for Appendix VIIIhydrocarbons would depart from thebasic comparable benchmark approachand even relatively clean-burningcompounds may produce some toxicemissions. EPA’s analysis confirms thatthese compounds are not present in thebenchmark fuels above the minimumdetection limits. However, it isreasonable to assume that the ‘‘non-detect’’ pure hydrocarbons could in factbe present in fossil fuels up to thedetection limit since fossil fuels arecomprised entirely of purehydrocarbons. Therefore, the final ruleallows hydrocarbons in Appendix VIIIto be present at any concentration lessthan or equal to the detection limits inEPA’s analysis. See § 261.38(a)(2), Table1.

Some commenters argued thattoluene, a typical fuel component,should be allowed without limitation incomparable fuels. As discussed abovefor all hydrocarbons, EPA disagreeswith not establishing any limits ontoluene, or establishing a differentspecification not based on fuel data,because this would depart from thecomparable benchmark approach. EPAhas established the toluene specificationat the fuel data-based concentrationfound in its benchmark fuel analysis.However, because toluene can be a fuelcomponent, setting a different data-based specification for toluene may bewarranted at some point in the future,and therefore EPA will continue toremain open to considering furtheraction.

ii. Specification Levels for UndetectedOxygenates. In addition to the purehydrocarbon compounds, EPA invitedcomment on whether oxygenates shouldbe allowed up to the detection limits inEPA’s analysis and on what would be anappropriate minimum oxygen-to-carbonratio to identify an oxygenate. (61 FR at17461). Oxygenates are organiccompounds comprised solely ofhydrogen, carbon, and oxygen and canserve as fuels or fuel additives.Examples of oxygenates (not inAppendix VIII and thus not RCRAregulated) include alcohols such asethanol, and ethers such as methyl tert-butyl ether (MTBE). Appendix VIIIoxygenates are not routinely found infossil fuels and only a few oxygenates

were detected in EPA’s sampling andanalysis program.

Several commenters supportedallowing oxygenates at anyconcentration less than or equal to thedetection limit but also argued that EPAshould go a step further and set nospecification limits for oxygenatedcompounds. Commenters argued thatoxygenates (like isobutyl alcohol) burnwell and promote good combustion ofother constituents in a fuel. Again, forthe purpose of today’s rule, EPAdisagrees with not establishing anylimits on oxygenates because this woulddepart from the basic comparablebenchmark approach. EPA’s analysisconfirms that these compounds are notpresent in the benchmark fuel above theminimum detection limits andestablishing a specification without fueldata containing oxygenates woulddepart from the comparable fuelapproach. Furthermore, oxygenates arelisted on Appendix VIII for their toxicityand in particular, one group of organicoxygenates, organic peroxides, can beextremely hazardous to manage.However, since most oxygenates burnwell and are not likely to producesignificant PICs, EPA will allow thesecompounds at any concentration lessthan or equal to the detection limitsfound in EPA’s analysis.

EPA notes that the Clean Air Actprovides for the use of some oxygenates(like isobutyl alcohol) as additives inunleaded gasoline and it may beappropriate to consider their use in acomparable fuel. However, at the time ofthis final rulemaking, EPA had no fueldata in which these oxygenates wereused as gasoline additives and thus wasnot able to set a specification differentthan in today’s final rule. As discussedabove, any approach without using fueldata would depart from the comparablefuel approach. However, setting data-based specifications for certainoxygenates may be warranted at somepoint in the future, and therefore EPAwill continue to remain open toconsidering further action.

With regard to a minimum oxygen-to-carbon ratio to define an oxygenate, onecommenter recommended definingoxygenates simply as aliphaticcompounds comprised of carbon,hydrogen, and oxygen. If EPA wasintent on defining an oxygen-to-carbonratio, other commenters recommended aratio of 0.266, which is the ratio forMTBE. Defining an oxygenate with aminimum oxygen-to-carbon ratio orlimiting the definition to only aliphaticsis more conservative than necessary.Instead, EPA is defining an oxygenate asany compound comprised solely ofhydrogen, carbon, and oxygen.

In summary, the final rule allowsoxygenates, defined as any compoundcomprised solely of hydrogen, carbon,and oxygen, at any concentration lessthan or equal to the detection limits inEPA’s analysis. See § 261.38(a)(2), Table1.

D. Parameters for the Synthesis Gas FuelExclusion

In today’s final rule, EPA is alsoexcluding from the regulatory definitionof solid waste (and, therefore regulationas hazardous waste) a particular type ofhazardous waste-derived fuel, namely atype of synthesis gas (‘‘syngas’’) fuelmeeting particular specifications. Theexclusion applies to syngas that resultsfrom the thermal reaction of hazardouswastes by a process designed to generateboth hydrogen gas (H2) and carbonmonoxide (CO) as usable fuel. Seeproposal (61 FR at 17465).

Some commenters stated thatsynthesis gas fuels are beyond EPA’sregulatory authority because they areuncontained gases. EPA has broadstatutory authority to regulate fuelsproduced from hazardous wastes. RCRAsection 3004 (q) (1); see also HorseheadResource Development Co. v. Browner,16 F. 3d 1246, 1262 (D.C. Cir. 1994)(broadly construing this authority). Thefact that syngas (by definition) is a gas,rather than a solid or liquid, does notappear to raise jurisdictional issues. It isstill produced from the hazardouswastes that are being processedthermally. See § 261. 2 (c) (2) (A) and (B)(defining such materials as solidwastes). EPA believes its authority to beclear under these provisions.

EPA also received a number ofcomments from persons operatingsynthetic gasification processes withinthe petroleum industry. Thesecomments also argued that the Agencywas without legal authority to regulatethe fuel output of these processes evenif the processes use hazardous waste asa feed material. The Agency has in factadjudicated the status under existingregulations of such a unit, indicatingthat while both the process and the fueloutput are within RCRA subtitle Cjurisdiction, the process is a type ofexempt recycling unit under 40 CFR261.6(c)(1) and the fuel is also exemptunder § 261.6(a)(3). Letter of MichaelShapiro (Director of Office of SolidWaste) to William Spratlin (DirectorRCRA Division EPA Region VII) (May25, 1995).

Upon reflection, it appears that thesepetroleum gasification operations maybe similar to other within-petroleumindustry recycling activities that EPAhas proposed to exclude from Subtitle Cjurisdiction in the petroleum listing rule



16 For further discussion see USEPA, ‘‘FinalTechnical Support Document for HWC MACT Rule,Development of Comparable Fuels Specifications’’,May 1998.

proposed on November 20, 1995. 60 FR57747. It therefore appears moreappropriate to consider this overalljurisdictional issue in the context of thatrulemaking. However, EPA is not at thistime limiting the synthetic gas fuelexclusion insofar as it potentiallyapplies to the output of gasificationoperations conducted as part of normalpetroleum refining (SIC Code 2911).Thus, these syngas fuels can also beeligible for the exclusion in today’s rule.

To ensure that any excludedhazardous waste-derived syngascontains low levels of hazardouscompounds relative to levels in fossilfuels, the Agency is setting a series ofsyngas specifications addressing:(1) physical specifications:—Minimum Btu value (Btu/scf);(2) general constituent specificationsfor:—Total halogen (ppmv)—Total nitrogen (ppmv)—Hydrogen Sulfide (ppmv)(3) individual hazardous constituentspecifications, for:—Individual Appendix VIII constituents

(ppmv)

1. Physical Specifications

a. Minimum Btu value. Like thecomparable fuel specification, EPAproposed that syngas fuel have aminimum Btu value of 5,000 Btu/lb.Commenters had several concerns withthis specification. First, commentersnoted that the heating value of a gas isalmost universally measured in units ofBtu per unit volume (‘‘scf’’). Second,commenters argued that due to theefficiencies of combustion, a gas can beused as a fuel even though its heatingvalue, when expressed in terms of Btuper pound, is less than 5000.Commenters argued that using fuelswith significantly higher Btu per scfcould actually degrade efficiency of gasturbine electric generation systems andincrease air emissions. For example,syngas with a heating value of 5000 Btuper pound would have to be diluted toreduce its heating value to enable acombustion turbine to meet NOX

emission limits. Furthermore,commenters argued that in manypotential applications, syngas producedfrom hazardous waste would be used asa substitute for syngas produced fromfossil fuels or syngas produced fromnon-hazardous secondary materials.Syngas produced from coal, coke, andcertain types of secondary materials,with heating values less than 5000 Btuper pound (when expressed in theseterms), are currently used as fuels.

EPA agrees with commenters’concerns with regard to the heating

value of syngas. To set an appropriateheating value, EPA investigated theheating values of syngas currentlymanufactured for use as a fuel.15 Forfuel usage related purposes, syngas isclassified as either medium- or low-Btugases (medium-Btu generally beingproduced with pure oxygen, low-Btugenerally with air). Medium-Btu syngasgenerated from the gasification of fuels(including coal, fuel oil, biomass,municipal solid wastes, plastics, etc.)with pure oxygen typically has heatingvalues from 200 to 400 Btu/scf.Medium-Btu syngas can typically beused as a fuel for power production ina gas turbine. Low-Btu syngas generatedfrom the gasification of fuels with airhas heating values from about 100 to200 Btu/scf. In most cases, low-Btusyngas does not achieve temperatureand expansion ratios needed forthermodynamically efficient powergeneration. Low-Btu syngas is usuallymixed with higher energy sources and isnot generally desired for mostapplications. However, EPA notes thatthere are certain specifically designedgas turbines (with very large ‘‘silo’’combustion chambers) that can handlevery low-Btu (100 Btu/scf) syngases forpower generation. Thus, a heating valueof 100 Btu/scf is reasonable for syngasbecause it represents fuels used aslegitimate energy sources. Therefore,EPA is establishing a minimum Btuvalue of 100 Btu/scf for synthesis gas.See § 261.38(b)(1).

2. General Constituent Specifications

a. Total Halogen Specification. Asproposed, EPA is promulgating a totalhalogen specification for synthesis gasfuels of less than 1 ppmv. Likecomparable fuels, EPA is establishing atotal halogen specification to limit theformation of halogenated PICs from theburning of the hazardous waste-derivedsyngas fuel. EPA has looked at syngasmanufactured from non-hazardouswaste sources, such as coal, andconcludes that 1 ppmv is a reasonablespecification for total halogen for asynthesis gas fuel. See § 261.38(b)(2).

b. Total Nitrogen Specification. EPAproposed a total nitrogen specificationof less than 1 ppmv of total nitrogen,other than diatomic nitrogen (N2). Likecomparable fuels, EPA was concernedabout the formation of nitrogenated PICsfrom the nitrogen contained in thehazardous waste-derived syngas fuel.Commenters argued that regardless ofwhether nitrogen is present in the

syngas, when syngas is burned, NO,NO2 and NOX will always form, asnitrogen present in the air combineswith oxygen in the syngas, the air orboth. In addition, commenters arguedthat the Agency or authorized statesalready regulate the emissions of theseair pollutants through the issuance of airpermits. Furthermore, commentersargued that nitrogen in the syngaswould not lead to the formation of PICs.

EPA disagrees with the commentersthat a total nitrogen specification isunnecessary and believes that thecomments did not address EPA’srationale for a total nitrogen limit. EPAis establishing a total nitrogenspecification to limit the formation ofnitrogenated PICs. Diatomic nitrogen isnot included in a total nitrogenspecification because only organic-bound nitrogen compounds areexpected to form PICs. However, a totalnitrogen specification based on syngasused as a fuel is a more appropriatespecification. EPA has looked at syngascurrently manufactured for use as a fuelto establish a total nitrogenspecification. Nitrogen compounds insyngas (other than N2) are mostly in theform of HCN or NH3. Syngasmanufactured from coal can have HCNand NH3 levels of 100 to 300 ppmv.16 Atotal nitrogen specification of 300 ppmvwould ensure that concentrations ofnitrogenated PICs in waste-derivedsyngas will be no greater than syngasmanufactured from coal. Therefore, intoday’s final rule, EPA is promulgatinga total nitrogen specification of 300ppmv, other than diatomic nitrogen (N2)for synthesis gas fuel. See § 261.38(b)(3).

c. Hydrogen Sulfide Specification.EPA proposed a hydrogen sulfide (H2S)specification of 10 ppmv for syngasfuels. Commenters argued that the H2Sspecification is not necessary becausethe Clean Air Act has specifications thatrestrict the amount of sulfur that can beemitted by sources that would likelyburn syngas fuel (i.e., boilers,combustion turbines). In addition,commenters argued that the potential offacilities that burn syngas as a fuel toemit sulfur compounds is low incomparison to facilities burning fossilfuels. For example, facilities thatproduce power by burning syngasproduced from the gasification of coalemit approximately one-fifth of the levelof sulfur compounds emitted by similarfacilities burning coal.

EPA disagrees with the commentersthat no hydrogen sulfide specification


17 For further discussion see USEPA, ‘‘FinalTechnical Support Document for HWC MACT Rule,Development of Comparable Fuels Specifications’’,May 1998.

should be promulgated. EPA isestablishing the syngas exclusion bylimiting Part 261 Appendix VIIIconstituents, one of which is hydrogensulfide. However, a more appropriatespecification would be based on currentapplications where syngas is used as afuel, rather than the proposedspecification of 10 ppmv. To set anappropriate hydrogen sulfidespecification, EPA investigated thehydrogen sulfide levels in syngasescurrently manufactured from non-hazardous waste sources for use as afuel.

The sulfur content of the materialused to produce the syngas is convertedto almost entirely H2S in the gasificationprocess, with smaller amounts ofcarbonyl sulfide (COS). Syngasproduced from low sulfur contentmaterial does not contain appreciableH2S. The H2S content of high sulfurcoal-based syngas can be over 1000ppmv. However, in these cases, H2S isremoved during the gasification process.The amount of H2S removal isdependent on how the syngas will beused. In the case of syngas used forchemical feedstock, the H2S removalcan be to a level under 1 ppmv. For thecase of syngas used for fuel, H2Sremoval can range to levels between 50and 200 ppmv (above 200 ppmv leadsto corrosion of down stream gashandling equipment, such as turbineblades.17 Thus, 200 ppmv represents thelevel of H2S in gas currently used inapplications where syngas is used as afuel. Therefore, in this final rule, EPA ispromulgating a H2S specification of 200ppmv for synthesis gas fuels. See§ 261.38(b)(4). EPA further notes thatH2S removal is considered as part of thegasification process and a syngasgenerator is required to meet the H2Sspecification after this removal process.

3. Individual Hazardous ConstituentSpecifications

As proposed, EPA is promulgatingspecifications of less than 1 ppmv foreach hazardous constituent listed inAppendix VIII of part 261 (that couldreasonably be expected to be in the gas).Having received no comments to thecontrary, this a reasonable specificationfor Appendix VIII constituents in asynthesis gas fuel. See § 261.38(b)(5).Since EPA is promulgating a totalhalogen specification for syngas andsince this specification ensures that theexcluded syngas has less than 1 ppmvof individual halogenated compounds, a

syngas generator would not be expectedto analyze for the individualhalogenated compounds in AppendixVIII. However, a syngas generator wouldbe expected to analyze for theindividual nitrogenated compounds inAppendix VIII since a total nitrogenspecification of 300 ppmv would notensure that individual nitrogenatedcompounds would be limited to 1ppmv. In addition, a syngas generatorwould be expected to analyze for theAppendix VIII constituents identified inthe comparable fuels specification. See§ 261.38(a)(2) Table 1.

E. Meeting the Comparable FuelSpecifications

1. Potential Applicability of Today’sRule to Specific Waste Codes

The probability of today’s rule beingapplicable to any specific hazardouswaste is highly dependent upon thewaste codes assigned to that waste aswell as the industry generating thewaste. In developing the Land DisposalRestrictions (40 CFR part 268) and indeveloping the listings of hazardouswastes (40 CFR part 261), the majorityof the listed hazardous wastes wereanalyzed for concentrations of specifichazardous constituents. EPA has alreadydetermined that the majority of listedhazardous wastes (i.e., those havingcodes beginning with ‘‘F’’, ‘‘K’’, ‘‘U’’ or‘‘P’’) are known to contain at least oneof the hazardous constituents that arerestricted by today’s rule to ‘‘non-detect’’ levels. Appendix VII to Part 261provides a partial list of hazardousconstituents that are known to bepresent in each Listed Waste code, andthe Treatment Standards for HazardousWastes (40 CFR 268.40) indicateconstituents (and concentrations) thatare specifically regulated for landdisposal for each waste code. Themajority of these constituents and wastecodes are restricted to ‘‘non-detect’’levels in today’s rule and so a potentialcomparable fuel containing theseconstituents either could not be used, orwould have to be treated so that thehazardous constituents are removed ordestroyed to non-detect levels. Seetreatment discussion below, Section E.4.It is possible, however, that an organicsolvent or oil could carry one of thesecodes, based on the derived-from ruleonly, and could comply with the limitsin today’s rule. As such, EPA did notrestrict the application of today’s rule toany waste code, except in the case ofwastes listed for the presence of dioxinsor furans. See 261.38(c)(12). However,EPA does not expect that corrosive orreactive wastes would be candidatecomparable fuels because of the

detrimental impacts on the burning unitthat would occur.

At the same time, there are specificlisted waste codes that EPA expects tocontain only those constituents forwhich today’s rule sets maximumallowable concentrations. As such, somewastes with these codes would be likelycandidates for compliance with thecorresponding constituent limits. Theseapplicable wastes are primarilyexpected to be: ignitable solvent wastes(F003 and F005), wastes from petroleumproduction (F037, F038, and K048–51),and wastes from coking operations(K060, K087, K141–145, K147 andK148). Table 1 also lists a set of U wastecodes and their correspondingconstituents that may be applicabledepending upon their concentrations.

It is expected that today’s rule willprimarily be applied to wastes that areclassified as hazardous only becausethey exhibit the hazardous characteristicof ignitability (D001) and/or corrosivity(D002). In comparing the regulatorylevels for characteristic metal wastes(D004–D011) and the correspondingallowable limits for these metals intoday’s rule, there is an extremely smallwindow of applicability for some wastesidentified as D006 (cadmium) or D009(mercury) and likewise a relativelysmall window of applicability for someD008 wastes (lead). All othercharacteristic metal wastes fail the limitrestrictions for metals. D003 wastes thatare classified as hazardous due to theircyanide (CN) content are expected, forthe most part, to fail to meet thespecification for total nitrogen. Exceptfor D018 wastes (benzene), wastes thatare characteristic for organics (D012–D043) are also expected to be unable tocomply with either the limits or the‘‘non-detect’’ requirements.

All wastes consisting primarily ofalcohols (e.g., ethanol or isopropanol),petroleum distillates, oils, or otherignitable organic liquids) are the mostlikely candidates for applying today’srule. This is quite logical in that thesechemicals tend to have good fuel valuewhen compared to the fuels examinedfor today’s rule. The most probablelisted wastes that are expected to be ableto comply with today’s rule are F003and F005 solvents (except those F005wastes containing carbon disulfide,pyridine, or nitrobenzene). There are anadditional number of ‘‘U’’ wastesidentified in Table 2 that are also goodcandidates for compliance with today’srule. These chemicals are eitherhydrocarbons or oxygenatedhydrocarbons for which today’s ruledoes not establish any limits.

Because of the potential for cross-contamination, wastes from facilities


(e.g., pesticide manufacturers andhalogenated solvent manufacturers)known to manufacture concentratedforms of the chemicals restricted bytoday’s rule, are the most likely torequire closer scrutiny and testing.However, wastes generated by thesefacilities that are not expected to becross-contaminated would include non-contact solvents, hydraulic orlubricating oils, and solvent-basedwastes from the production ofunregulated constituents.

TABLE 1.—LISTED ‘‘U’’ WASTES WITHCORRESPONDING CONSTITUENT LIMITS

Constituent for which the code waslisted

Wastecode

Acetophenone ..................................... U004Benz[a]anthacene ............................... U018Benzene .............................................. U019Benzo(a)pyrene .................................. U022Bis(2-ethylhexyl) phthalate ................. U028Chrysene ............................................ U050Creosote ............................................. U051Cresol cresylic acid (total cresols) ..... U052Dibenz[a,h]anthracene ........................ U063Di-n-butyl phthalate ............................ U069Diethyl phthalate ................................. U0887,12-Dimethylbenz[a]anthracene ........ U094Di-n-octyl phthalate ............................. U107Fluoranthene ....................................... U120Indeno(1,2,3-cd) pyrene ..................... U1373-Methylcholanthrene ......................... U157Naphthalene ....................................... U165Toluene ............................................... U220Acrolein ............................................... P003Allyl alcohol ......................................... P005Endothall ............................................. P088Propargyl alcohol ................................ P102Ethyl methacrylate .............................. U118Isobutyl alcohol ................................... U140Isosafrole ............................................ U141Methyl ethyl ketone [2-Butanone]

[MEK].U159

Methyl methacrylate ........................... U1621,4-Naphthoquinone ........................... U166Phenol ................................................. U188Safrole ................................................ U2032-Ethoxyethanol [Ethylene glycol

monoethyl ether].U359

TABLE 2.—LISTED ‘‘U’’ WASTES WITHNO CORRESPONDING CONSTITUENTLIMITS

Constituent for which the waste waslisted

Wastecode

Acetaldehyde [Ethanal] ....................... U001Acetone [2-Propanone] ....................... U0022-Acetylaminofluorene [2-AAF] ........... U005Acrylic acid ......................................... U008Benz[c]acridine ................................... U016n-Butyl alcohol [n-Butanol] ................. U031Carbon oxyfluoride ............................. U033Crotonaldehyde .................................. U053Cumene [Isopropyl benzene] ............. U055Cyclohexane ....................................... U056Cyclohexanone ................................... U057

TABLE 2.—LISTED ‘‘U’’ WASTES WITHNO CORRESPONDING CONSTITUENTLIMITS—Continued

Constituent for which the waste waslisted

Wastecode

Dibenzo[a,i]pyrene .............................. U0641,2:3,4-Diepoxybutane [2,2’-Bioxirane] U085∝,∝-Dimethyl benzyl hydroperoxide ... U0962,4-Dimethylphenol ............................. U101Dimethyl phthalate .............................. U1021,4-Dioxane [1,4-Diethyleneoxide] ..... U108Ethyl acetate ....................................... U112Ethyl acrylate ...................................... U113Ethylene oxide .................................... U115Ethyl ether .......................................... U117Formaldehyde ..................................... U122Formic Acid ......................................... U123Furan .................................................. U124Furfural ............................................... U125Glycidylaldehyde ................................. U126Maleic anhydride ................................ U147Methanol ............................................. U154Methyl ethyl ketone peroxide ............. U160Methyl isobutyl ketone [4-Methyl-2-

pentanone].U161

Paraldehyde ........................................ U1821,3-Pentadiene ................................... U186Phthalic anhydride .............................. U190Quinone [p-Benzoquinone] ................. U197Resorcinol ........................................... U201Tetrahydrofuran .................................. U213Xylenes, mixed isomers [Xyenes,

total].U239

2. General

The proposal provided severalmethods by which a hazardous wastecould qualify as a comparable fuel. Thefinal rule retains these methods andadds clarifying conditions to ensure thatthe methods do not violate existingpolicy with regard to blending andtreatment. The person claiming that ahazardous waste meets the exclusioncriteria of this rule will be referred to asthe ‘‘comparable fuel generator,’’ in thecase of excluded liquid fuel, or ‘‘syngasfuel generator,’’ in the case of excludedsyngas fuel. In today’s final rule, ahazardous waste can meet thecomparable fuel hazardous constituent,heating value and viscosityspecifications of § 261.38(a) in severalways. However, in each case, thegenerator claiming the exclusion isresponsible for demonstratingeligibility. In addition, just meeting thehazardous constituent, heating valueand viscosity specifications would notqualify a hazardous waste for theexclusion. The implementationrequirements of § 261.38(c) (e.g.,notification, certification, sampling andanalysis, recordkeeping) must also besatisfied for a hazardous waste to beexcluded 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 orother alteration: (a) Meets the hazardousconstituent specification; or (b) does notmeet the hazardous constituentspecification, but undergoes treatment,pursuant to § 261.38(c)(4), so that thehazardous constituents of concern aredestroyed or removed to concentrationsthat meet the exclusion specification.

A waste can meet the § 261.38(1)(i)heating value specification if thehazardous waste as generated withoutprocessing: (a) Meets the heating valuespecification; or (b) does not meet thehazardous constituent specification, butundergoes treatment, pursuant to§ 261.38(c)(4), that destroys or removesmaterial to increase the heating value tomeet the exclusion specification.

A waste can meet the § 261.38(a)(1)(ii)viscosity specification if the hazardouswaste as generated without processing:(a) Meets the viscosity specification; (b)does not meet the viscosityspecification, but through blending,pursuant to § 261.38(c)(3) with fossilfuel, another excluded comparable fuel,or other non-waste changes the viscosityto meet the exclusion specification; or(c) does not meet the viscosityspecification, but undergoes treatment,pursuant to § 261.38(c)(4) that destroysor removes material to decrease theviscosity to meet the exclusionspecification.

3. Blending

Commenters supported allowing theblending of a hazardous waste thatmeets the constituent and heating valuespecifications for the purpose ofdecreasing viscosity. However,commenters were concerned thatblending could dilute toxic constituentsand said that blending should only beallowed if toxic constituents in thehazardous waste would not be diluted.In today’s final rule, the Agency allowsan as-generated hazardous waste, whichmeets the hazardous constituent andheating value specifications, but doesnot meet the viscosity specification, tobe blended to meet the viscosityspecification (see § 261.38(a)). Thegenerator must document that thehazardous waste, as generated withoutprocessing, meets the hazardousconstituent and heating valuespecifications prior to any blending. It isalso the responsibility of the generatorto document that the blending does notviolate the dilution prohibition of§ 261.38(c)(6). This provision states thatthe hazardous constituent and heating


value specifications cannot be metthrough dilution; i.e. they can only bemet through treatment which destroysor removes hazardous constituents, orby the waste as-generated. See generally61 FR at 15586–87 (April 8, 1996)(extending dilution prohibition in§ 268.3 to include combustion ofinorganic wastes). Allowing blending tomeet the hazardous constituent orheating value specification simplyincreases the amounts of hazardousconstituents emitted when the fuels areburned, and would increase theseamounts above those emitted if fossilfuels were burned instead. This is atinconsistent with the whole premise ofcomparable fuels, and also isinconsistent with the section 3004(m)hazardous waste treatment provisions(which, although not directlyapplicable, articulate important overallstatutory objectives) which requirehazardous constituents to be removed ordestroyed by treatment, not diluted.Chemical Waste Management v. EPA,976 F. 2d 2, 16 (D.C. Cir. 1992). Asnoted earlier, such burning can beviewed as part of the waste managementproblem, and EPA may validlycondition the exclusion to prevent thatresult.

Blending of a hazardous wastepursuant to § 261.38(c)(3) to meets theviscosity specification obviously may beperformed only in regulated units: at apermitted RCRA treatment, storagefacility; a regulated interim statustreatment, storage facility; or at a 90-daygenerator unit meeting the requirementsof § 262.34.

4. TreatmentCommenters also supported the

proposal to allow a hazardous waste tobe treated to meet the comparable fuelspecifications. Many of the samecommenters also expressed concernsthat any treatment allowed shouldreduce emissions of hazardousconstituents, i.e. treatment must destroyor remove the constituents or materialsof concern. The Agency agrees, and§ 261.38(c)(4) specifically states thatonly treatment which destroys orremoves hazardous constituents ormaterials is permissible. Moreover, asnoted above, the waste remains subjectto subtitle C control during treatmentand thus treatment can only occur inregulated units. (Treatment by blendingto meet the viscosity specificationlikewise can only occur in regulatedunits, for the same reason.)

It is the responsibility of the generatorclaiming the exclusion to demonstrateeligibility. See generally § 261.2(f). Itshould be noted that just meeting thehazardous constituent, heating value

and viscosity specifications would notqualify a hazardous waste for theexclusion; the implementationrequirements of § 261.38(c) (e.g.,notices, certification, sampling andanalysis, recordkeeping, etc.) also mustbe satisfied for a hazardous waste to beexcluded as a comparable fuel. Theperson that treats the hazardous wasteto generate a comparable fuel must alsodemonstrate that the treatment of thehazardous waste destroys or removesthe hazardous constituents or materialsof concern from the waste. The treatermust: (1) Document that the unit thatwill treat the hazardous waste has beendemonstrated to effectively remove ordestroy the hazardous constituents (atthe levels present in the waste) ormaterials of concern from the type ofwaste being treated; or (2) treat thewaste in a unit that removes or destroysthe constituents of concern, thenreanalyze the waste, in accordance withthe requirements of § 261.38(c)(8), todocument that the constituentspecifications have been satisfied.

If a hazardous waste is treated toproduce a comparable fuel, only thewaste-derived fuel would be excludedfrom RCRA subtitle C regulation upon adetermination that it met thespecification. The hazardous wastewould be regulated under Subtitle Cfrom the point of generation until thegeneration of a comparable fuel thatmeets the exclusion specifications andimplementation requirements. Thismeans that the generation, transport,storage, and treatment of the hazardouswaste, until exclusion as a comparablefuel, remains subject to applicableSubtitle C regulations.

In addition, residuals from thetreatment of a hazardous waste remainsolid waste and, if hazardous, aresubject to applicable Subtitle Cregulations. Thus, if comparable fuel isproduced from treatment of listedhazardous waste, the wastes from thatprocess are automatically hazardous byvirtue of the derived from rule. (See thederived-from rule in § 261.2(d).)

F. Meeting the Syngas SpecificationsCommenters felt the proposal was not

very specific in describing ways inwhich a syngas fuel could be generatedfrom hazardous waste. The final rulemakes clear that a hazardous waste canmeet the syngas fuel constituent andheating value specifications through thetreatment of the hazardous waste. Aswith comparable fuels, it is theresponsibility of the generator claimingthe exclusion to demonstrate eligibility.The treatment of a hazardous waste togenerate a syngas fuel can occur ineither: (1) A unit subject to applicable

Subtitle C treatment, storage anddisposal requirements (i.e., Parts § 264,§ 265 or § 262.34); or (2) a recycling unitexempt under § 261.6(c).

The generator of the syngas fuel mustdemonstrate that the treatment of thehazardous waste destroys or removesthe hazardous constituent of concernfrom the waste. A generator of syngasfuel from the treatment of hazardouswaste must: (1) Document that the unitthat will process the hazardous wastehas been demonstrated to effectivelyremove or destroy the hazardousconstituents of concern from the type ofwaste being treated; and (2) process thehazardous waste in a unit that removesor destroys the constituents of concern,then analyze the waste in accordancewith the requirements of § 261.38(c)(8)to document that the exclusionspecifications have been satisfied. If ahazardous waste is processed toproduce a syngas fuel that meets theexclusion specifications, only thesyngas fuel would be excluded fromRCRA subtitle C regulation.

In addition, residuals from thetreatment of a hazardous waste togenerate an excluded syngas fuel remainsolid waste and are subject to applicableSubtitle C regulations if they are alsohazardous wastes. Residuals from thetreatment of a listed hazardous waste togenerate a syngas fuel remain hazardouswastes due to the derived-from rule: theresiduals are derived from treatment oflisted hazardous wastes.

G. Sampling and AnalysisCommenters expressed concern that

the Agency proposed: (1) To initiallyrequire sampling and analysis for allAppendix VIII constituents; (2) torequire the use of SW–846 methods toconduct sampling and analysis ofAppendix VIII constituents; and (3) toalso require the use of the same methodsfor syngas as for comparable fuels. Inresponse to commenters concerns, theAgency is finalizing the followingapproaches to sampling and analysis ofcomparable fuel and syngas fuel.

1. Use of Process KnowledgeA majority of commenters believed

that EPA should allow the use ofprocess knowledge under limitedcircumstances in determining whichconstituents to test for in the initial scanas well as any follow up testing. TheAgency agrees with commenters.Generators of hazardous wastes shouldhave adequate knowledge of their wasteto allow the use of process knowledgein determining which constituents mayand may not be present in their waste.

The use of process knowledge mayonly be used by the original generator of


the hazardous waste. If the generator ofthe hazardous waste and generator ofthe comparable/syngas fuel aredifferent, then the generator of thecomparable/syngas fuel may not useprocess knowledge to determine thatconstituents are not present in thewaste. The generator of the comparable/syngas fuel, if not the original generatorof the hazardous waste, must test for allof the constituents and properties in§ 261.38(a)(2) Table 1 of the regulations.This is because the Agency believes thatonly the original generator may haveintimate knowledge of the constituentsin the waste to make such adetermination. See § 268.7, where EPAuses the same approach for analyzingcompliance with LDR treatmentstandards; see also Hazardous WasteTreatment Council v. EPA, 886 F. 2d355, 368–71 (D.C. Cir. 1989) (upholdingthis approach).

Therefore, the final rule allows theuse of process knowledge under certaincircumstances. Today’s rule requirestesting for all constituents except thosethe initial generator of the hazardouswaste determines should not be presentin the waste. The following cannot bedetermined to ‘‘not be present’’ in thewaste: (1) A hazardous constituent thatcauses the waste to exhibit the toxicitycharacteristic for the waste or hazardousconstituents that were the basis for thelisting of the waste; (2) a hazardousconstituent detected in previousanalysis of the waste; (3) a hazardousconstituent introduced into the processthat generates the waste; or (4) ahazardous constituent that is abyproduct or side reaction to theprocess that generates the waste.

It is the responsibility of the originalgenerator/comparable fuel generator todocument their claim that specifichazardous constituents meet theexclusion specifications based onprocess knowledge. Regardless of whichmethod a generator uses, testing orprocess knowledge, the generator isresponsible for ensuring that the wastemeets all constituent specifications atall times. If at any time the comparablefuel fails to meet any of thespecifications, that fuel is in violation ofSubtitle C requirements.

2. Waste Analysis PlanAs in the proposal, the final rule

requires comparable fuel generators todevelop a waste analysis plan prior tosampling and analysis of theirhazardous waste to determine if thewaste meets the exclusionspecifications. This is consistent withthe usual requirement throughout theSubtitle C rules that persons generatingand treating hazardous waste must

prepare a waste analysis plan. See, e.g.§ 264.13 (general waste analysis plans)and § 268.7(a)(4) (requiring evengenerators using 90-day units fortreatment to prepare waste analysisplans with respect to hazardous wasteprohibited from land disposal). Toensure that the chemical/physicalmeasurements of the waste aresufficient, accurate and precise, theAgency is requiring comparable fuelgenerators to develop a waste analysisplan, and suggest doing so inaccordance with Agency guidance.Chapter Nine of ‘‘Test Methods forEvaluating Solid Waste, Physical/Chemical Methods’’ (SW–846) addressesthe development and implementation ofa scientifically credible sampling plan.Chapter One of SW–846 describes thebasic elements to be included in aQuality Assurance Project Plan (QAPP),as well as information describing basicquality assurance (QA) and qualitycontrol (QC) procedures. Chapter Twoof SW–846 aids the analyst in choosingthe appropriate methods for samples,based upon sample matrix and theanalytes to be determined.

Comparable fuel generators may wantto follow the SW–846 guidance indeveloping their waste analysis plans.As specified in the recordkeepingsection of the rule (§ 261.38(c)(10)) thegenerator also must have documentationof the: (1) Sampling, analysis, andstatistical analysis protocols that wereemployed; (2) sensitivity and bias of themeasurement process; (3) precision ofthe analytical results for each batch ofwaste tested; and (4) results of thestatistical analysis.

3. Methods To Analyze ComparableFuels

In the proposal, EPA required the useof SW–846 methods for the samplingand analysis of wastes to determine ifthe waste meets the comparable fuelexclusion constituent specifications.Based on commenter response and theAgency’s overall increased use ofalternative methods to those specified inSW–846, the final rule allows the use ofalternate methods that meet theperformance based criteria in section§ 261.38(c)(8).

The approach allows comparable/syngas fuel generators to use anyreliable analytical method todemonstrate that no constituent ofconcern is present at concentrationsabove the specification levels. It is theresponsibility of the generator to ensurethat the sampling and analysis isunbiased, precise, and representative ofthe waste. For the waste to be eligiblefor exclusion, a generator mustdemonstrate that: (1) Each constituent of

concern is not present above thespecified specification level at the 95%upper confidence limit around themean; and (2) the analysis could havedetected the presence of the constituentat or below the specified specificationlevel at the 95% upper confidence limitaround the mean. (See Guidance forData Quality Assessment—PracticalMethods for Data Analysis, EPA QA/G–9, January 1998, EPA/600/R–96/084).

The Agency will consider that theexclusion level was achieved in thewaste matrix if an analysis in which theconstituent is spiked at the exclusionlevel indicates that the analyte ispresent at that level within analyticalmethod performance limits (e.g., biasand precision). In order to determine theperformance limits for a method, EPArecommends following the qualitycontrol (QC) guidance provided inChapters One and Two of SW–846, andthe additional QC guidance provided inthe individual methods.

The Office of Solid Waste’s (OSW)standing policy on the AppropriateSelection and Performance of AnalyticalMethods for Waste Matrices Consideredto be ‘‘Difficult-to-Analyze’’ was statedin a January 31, 1996 memorandumfrom Barnes Johnson, Director of theEconomics, Methods, and RiskAssessment Division, to James Berlow,Director of the Hazardous WasteMinimization and ManagementDivision. The following excerpts areappropriate to this rulemaking.

Inadequate recovery of target analytesfrom the RCRA-regulated waste matricesof concern demonstrates that theanalytical conditions selected areinappropriate for the intendedapplication. Proper selection of anappropriate analytical method andanalytical conditions (as allowed by thescope of that method) are demonstratedby adequate recovery of spiked analytes(or surrogate analytes) and reproducibleresults. Quality control data obtainedmust also reflect consistency with thedata quality objectives and intent of theanalysis.

(a) For extractable organics instandard RCRA matrices, e.g.,groundwater, aqueous leachates, soils,OSW considers a sample preparationmethod appropriate for use if itgenerates an analyte recovery of 70% orgreater (Method 8270C, Sec. 1.1). Forextractable organics in ‘‘difficultmatrices’’, e.g., sludges, ash, stabilizedwastes, OSW considers a samplepreparation method appropriate for useif it generates an analyte recovery of50% or greater.

(b) For volatile organics, using relativerecoveries, i.e., standard curvesestablished by purge-and-trap, or other


techniques for the preparation ofstandards, OSW considers a samplepreparation method appropriate if itgenerates a relative analyte recovery of80% or greater (Methods 8260B, 8015B).

(c) For inorganic analytes in almost allmatrices, an absolute recovery andprecision of 80–120% can generally beachieved with the proper choice of aciddigestion procedure and determinativemethod for the analyte of interest.’’

4. Syngas Waste Analysis Plan andAnalysis Methods

a. General. EPA is concerned thattested and generally accepted methodsmay not exist for the sampling andanalysis of gases from pressurizedsystems that will ensure an accurate,unbiased, and precise representation ofthe hazardous constituents present inthe gas.

Hazardous constituents present in agas at high pressure and hightemperature may be difficult to analyzeaccurately due to possible physical andchemical changes in the constituentswhen a sample is drawn into a lowpressure and temperature environmentfor analysis. For example, someconstituents, while present as a gasunder high pressure and temperature,may solubilize into liquids that havecondensed or adhere to the samplingcomponents as the pressure andtemperature drops in the samplingdevice. If this were to occur, theanalysis of the sampled gas would notaccurately represent the concentrationsof the constituents in the original gas.

The Agency also shares the generalconcern stated in comments thatenforcement of the exclusionspecifications could be compromisedbecause of the difficulty in applying orpotential absence of accepted samplingand analysis methods for these gases.Therefore, the final rule requires syngasgenerators to submit for approval, priorto sampling and analysis, a wasteanalysis plan to the appropriateregulatory authority (see§ 261.38(c)(7)(iii)). At a minimum, theplan must specify: (1) The parametersfor which each hazardous waste will beanalyzed and the rationale for theselection of those parameters; (2) thetest methods which will be used to testfor these parameters; (3) the samplingmethod which will be used to obtain arepresentative sample of the waste to beanalyzed; and (4) the frequency withwhich the initial analysis of the wastewill be reviewed or repeated to ensurethat the analysis is accurate and up todate; and (5) if process knowledge isused in the waste determination, anyinformation prepared by the facility

owner or operator in making suchdetermination.

b. Analysis. A syngas fuel generatoralso may use the performance-basedapproach (§ 261.38(c)(8)) to demonstratethat the performance of the methodsselected is appropriate to meet theexclusion specifications (as described in3 above). Guidance on demonstration ofappropriate method performance can befound in Chapter One of SW–846 andthe Quality Control sections of theindividual methods.

5. Non-DetectsEPA proposed that for a waste to meet

a non-detect standard, the analysis mustachieve a detection limit equal to or lessthan the EPA specified number and alsonot detect the constituent of concern inthe waste (61 FR 17358). However, somecommenters believe that the Agencyshould develop numerical levels foreach parameter in the benchmark whereresults are ‘‘non-detect.’’ They areconcerned that a potential comparablefuel that has any measurable levels ofAppendix VIII constituents below theAgency’s detection limits would notqualify as a comparable fuel.

The final rule maintains the proposedapproach for non-detect constituentspecifications, except in the case ofmetals, hydrocarbons and oxygenates(see Section C. above). The Agencybelieves that allowing concentrations ofconstituents not found in thebenchmark fuels to be present in thecomparable fuel is counter to thecomparable approach and could allowhigher emissions of toxic compoundsfrom burning excluded waste than frombenchmark fuels. Additionally,commenters noted that the detectionlimit, referenced as the ‘‘maximum’’detection limit, should more accuratelybe referred to as the ‘‘minimum’’detection limit that must be achieved.The Agency agrees and the final rulerequires that analysis for a constituentwith a specification of non-detect must:(1) Meet a detection limit at or less thanthe minimum required detection limitlisted for the constituent; and (2) notdetect the constituent of concern in thewaste (see § 261.38(a) and (b)).

Commenters also indicated that itmay be difficult to achieve the detectionlimits specified for the non-detectspecifications. The Agency continues tobelieve that the detection limits can bemet. This is due in part to the fact thatthe detection limits are primarily basedon the limits found for the No. 6 fuel oilanalysis. EPA believes that the matrixfor No. 6 fuel oil is a more difficultmatrix to analyze than what the Agencybelieves will be the matrix for themajority of comparable fuels—a light

solvent matrix. In addition, to assistgenerators who may have difficultmatrices to analyze, the final ruleprovides the latitude to use any methodthat will ensure an unbiased and preciseanalysis of the waste.

H. Notification, Certification, andDocumentation

1. Who Must Make the ExclusionNotification

The person claiming that a hazardouswaste meets the exclusion criteria ofthis rule is known as the ‘‘comparablefuel generator’’ in the case of excludedliquid fuel or ‘‘syngas fuel generator’’ inthe case of excluded syngas fuel. Thecomparable/syngas fuel generator neednot be the person who originallygenerates the hazardous waste. Thecomparable/syngas fuel generator can bethe first person who documents andcertifies that a specific hazardous wastemeets the exclusion criteria.

2. Notification Requirements

Most commenters agreed with theproposal that a one-time notificationwas appropriate; however, somecommenters said that the exclusionshould not be self-implementing andshould require some type of review andapproval by the implementing authority.The Agency continues to believe that aone-time notification in combinationwith the other requirements of thissection, gives sufficient notice to theregulating officials (i.e., State RCRA andCAA officials). Since this is a self-implementing exclusion, in order toensure delivery, the notification must besent certified mail and until thenotification of exclusion is received thewaste is still a hazardous waste andmust be managed as such. Only after thereceipt of such notification that thehazardous waste-derived fuel meets therequirements of this rule is the wasteexcluded and free to be managed inaccordance with the requirements for acomparable or syngas fuel. If acomparable/syngas fuel generator losesits exclusion, the generator mustrenotify for the exclusion, after cominginto compliance with the requirementsof this section. If necessary the generatormust also comply with any applicableSubtitle C requirements for the waste.

a. EPA Regional or State Notification.Prior to managing any waste as anexcluded comparable/syngas fuel underthis section, the generator must send to,in States not authorized to implementthis Section, the EPA Regional RCRAand CAA Directors, and, in authorizedStates, to the State RCRA and CAADirectors. The notification of theexclusion claim should be sent via


certified mail, or other mail service thatprovides written confirmation ofdelivery. Notification of the RCRA andCAA Directors will provide notificationof the exclusion and appropriatedocumentation to both the RCRA andCAA implementing officials. TheAgency’s intent is for copies of theexclusion information to reach both theRCRA and CAA implementing officialsbecause of the nature of this exclusion—a RCRA excluded waste being burned inCAA regulated units. If the comparable/syngas is to be burned in a State otherthan the generating State, then thecomparable/syngas fuel generator mustalso provide notification to that State’sor Region’s RCRA and CAA Directors.

The notification shall contain thefollowing items: (1) The name, address,and RCRA ID number of the person/facility claiming the exclusion; (2) theapplicable EPA Hazardous Waste Codesfor the hazardous waste; (3) the nameand address of the units, meeting therequirements of § 261.38(c)(2), that willburn the comparable/syngas fuel; and(4) the following statement signed andsubmitted by the person claiming theexclusion or his authorizedrepresentative:

‘‘Under penalty of criminal and civilprosecution for making or submittingfalse statements, representations, oromissions, I certify that therequirements of 40 CFR 261.38 havebeen met for all waste identified in thisnotification. Copies of the records andinformation required at 40 CFR261.38(c)(10) are available at thecomparable/syngas fuel generator’sfacility. Based on my inquiry of theindividuals immediately responsible forobtaining the information, theinformation is, to the best of myknowledge and belief, true, accurate,and complete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility offine and imprisonment for knowingviolations.’’

b. Public Notification. As a self-implementing exclusion effective uponreceipt of the notification by theimplementing authority, there is nodecision prior to exclusion being madeby the implementing authority regardingthe waste. The opportunity exists at alltimes for the public to bring to theimplementing authority’s attention anycircumstance that might aid thatauthority in its monitoring andenforcement efforts. The public,furthermore, would have the ability tobring a citizen suit for a claimant’sfailure to comply with any requirementof the exclusion. Based on commentsreceived on the proposal, the Agencybelieves that requiring the comparable/

syngas fuel burner to provide a simplepublic notification of an exclusion claimwould aid the public in its efforts. Inmost cases, the Agency believes theburner will also be the generator of thefuel.

Therefore, under the final rule, thecomparable/syngas fuel burner mustsubmit for publication in a majornewspaper of general circulation localto the site where the comparable/syngasfuel will be burned, a notice entitled‘‘Notification of Burning of Comparable/Syngas Fuel Excluded Under theResource Conservation and RecoveryAct’’ containing the followinginformation: (1) Name, address, andRCRA ID number of the claimant’sfacility; (2) name and address of theunit(s) that will burn the comparable/syngas fuel; (3) a brief, generaldescription of the manufacturing,treatment, or other process generatingthe comparable/syngas fuel; (4) anestimate of the average and maximummonthly and annual quantity of thewaste claimed to be excluded; (5) nameand mailing address of the State orRegional Directors to whom the claim isbeing submitted. This notification mustbe published in the newspaper prior tothe burning of the comparable/syngasfuel. Notification is only necessary oncefor each waste stream excluded.

c. Burner Certification. As proposed,the final rule requires comparable/syngas fuel to be burned only in unitssubject to Federal/State/local airemission requirements. The Agencybelieves that limiting the burning ofcomparable/syngas fuels to industrialfurnaces or industrial boilers, orhazardous waste incinerators, alongwith a certification from the burner,would ensure that the fuel was burnedin a unit subject to Federal/State/localair emission regulations. Industrialfurnaces or industrial boilers, orhazardous waste incinerators arebelieved to be a universe of units thatare capable of handling comparable/syngas fuels and that would be subjectto Federal/State/local air emissionrequirements. In response to comments,the Agency believes that these excludedhazardous wastes are best handled andburned in the types of units specified in§ 261.38(c)(2). To ensure thatcomparable/syngas fuels burned off-siteare burned in a unit specified in§ 261.38(c)(2) (see discussion below),the Agency is requiring the generator toobtain from the burner a one-timewritten, signed certification that: (1) Thecomparable/syngas fuel will be burnedonly in an industrial furnace or boiler,or hazardous waste incinerator subjectto Federal, State, or local air emissionrequirements; (2) identifies the name

and address of the units that will burnthe comparable/syngas fuel; and (3) thestate in which the burner is located isauthorized to exclude wastes ascomparable fuels (i.e., under theprovisions of § 261.38). Thisrequirement coupled with therequirement to notify the State orRegional Directors will enableregulatory officials to take any measurethat may be appropriate to ensure thatexcluded fuel is burned in conformancewith applicable regulations and so doesnot become part of the wastemanagement problem.

If the generator or burner intends tochange the unit where the comparable/syngas fuel is burned (i.e., burn acomparable/syngas fuel in a unit thathas not previously been included in acertification), then prior to burning, thegenerator must again follow therequirements for: (1) Obtaining a burnercertification; (2) notifying the public;and (3) submitting a revised notificationto the State or Regional Directors. Oncethe revised notification has beenreceived by the State or RegionalDirectors and the notification has beenpublished in the newspaper, thegenerator/burner may burn the fuel asan excluded waste.

I. Exclusion StatusSome commenters requested

clarification of the regulatory status ofthe comparable/syngas fuel if theconditions of the exclusion were notmet. After the exclusion for a waste hasbecome effective, the conditions of theexclusion must continue to be met inorder to maintain the exclusion.

Separate and distinct from anyrequirement or condition established inthis final rule, all generators—includingcomparable/syngas fuel generatorsunder this exclusion—have a continuingobligation to identify whether they aregenerating a hazardous waste and tonotify the appropriate governmentofficial if they are generating ahazardous waste. Section 3010; 40 CFR262.11. If a comparable fuel claimed asexcluded under today’s rule fails tomeet the exclusion requirements ofsections § 261.38(a)–(c), thatcomparable/syngas fuel andsubsequently generated comparable/syngas fuel would be required to bemanaged as a hazardous waste—including compliance with allnotification requirements—until testingdemonstrated that the waste was belowthe exclusion specifications.

A comparable/syngas fuel that is notultimately burned remains a hazardouswaste and is subject to all applicableSubtitle C regulations (unless anotherexclusion from RCRA applies). As stated


in the proposal, the only allowabletreatment or disposal method for acomparable/syngas fuel is burning. Anydisposal method other than burning is aRCRA violation, unless the comparable/syngas fuel is properly managed as ahazardous waste meeting applicableSubtitle C regulations. The implicationsof not burning are that any priormanagement of the waste was subject toSubtitle C requirements.

Excluded comparable/syngas fuelgenerators, transporters and burners aresubject to the speculative accumulationrequirements under § 261.2(c)(4). Thus,there must be turnover of a givenpercentage of comparable fuel stockeach calendar year, and the personsholding such fuels must be able todemonstrate that such turnover isoccurring. See § 261.2(f). Since ultimateusers are notified that they are receivingcomparable fuels, they may feasiblycomply with this requirement bydocumenting how much such fuel isreceived when it is burned.

If a generator knows or should haveknown that a waste fails to meet theconstituent specifications, the exclusionends as of the point of determinationand the material must be managed as ahazardous waste.

J. Recordkeeping

1. General

Some commenters believed that therecordkeeping requirements in theproposal were excessive, while othersfelt they were too lenient. The Agency,however, believes that because of theself-implementing nature of thisexclusion, maintenance of the properinformation on-site is essential to theproper implementation of the exclusion.

The final rule requires thecomparable/syngas fuel generator tomaintain the following files (see§ 261.38(c)(10)) at the facility generatingthe fuel: (1) All information required tobe submitted to the State RCRA andCAA Directors as part of the notificationof the claim: (i) the name, address, andRCRA ID number of the person claimingthe exclusion; (ii) the applicable EPAHazardous Waste Codes for thehazardous waste; (2) a brief descriptionof the process that originally generatedthe hazardous waste and process thatgenerated the excluded fuel; (3) anestimate of the average and maximummonthly and annual quantities of eachwaste claimed to be excluded; (4)documentation for any claim that aconstituent is not present in thehazardous waste as required under§ 261.38(8); (5) the results of all analysesand all quantitation limits achieved forthe fuel; (6) documentation as required

for the treatment or blending of a wasteto meet the exclusion specifications; (7)a certification from the burner if thewaste is to be shipped off-site; and (8)the certification signed by the personclaiming the exclusion or his authorizedrepresentative.

The generator must also maintaindocumentation of the waste analysisplan and the results of the sampling andanalysis that includes the following: (1)the dates and times waste samples wereobtained, and the dates the sampleswere analyzed; (2) the names andqualifications of the person(s) whoobtained the samples; (3) a descriptionof the temporal and spatial locations ofthe samples; (4) the name and addressof the laboratory facility at whichanalyses of the samples were performed;(5) a description of the analyticalmethods used, including any clean-upand sample preparation methods; (6) allquantitation limits achieved and allother quality control results for theanalysis (including method blanks,duplicate analyses, matrix spikes, etc.),laboratory quality assurance data, anddescription of any deviations fromanalytical methods written in the planor from any other activity written in theplan which occurred; (7) all laboratoryanalytical results demonstrating that theexclusion specifications have been metfor the waste; and (8) all laboratorydocumentation that support theanalytical results, unless a contractbetween the claimant and the laboratoryprovides for the documentation to bemaintained by the laboratory for theperiod specified in § 261.38(c)(11) andalso provides for the availability of thedocumentation to the generator uponrequest. These records and thoserequired for off-site shipments must bemaintained for the period of three years.A generator must maintain a currentwaste analysis plan during that threeyear period.

2. Off-Site ShipmentsThe final rule requires that for each

shipment of comparable/syngas fuel agenerator sends off-site for burning in anindustrial furnace or boiler, orhazardous waste incinerator, a record ofthe shipment must be kept by thegenerator on-site. Because these fuelsare not required to be accompanied bya manifest, it is the Agency’s belief,supported by commenters, that toensure that comparable/syngas fuels aretransported to and burned in only thoseunits approved for such burning sometype of tracking mechanism iswarranted. Therefore, the final rulerequires for off-site shipments thefollowing information be maintained bythe generator on-site: (1) The name and

address of the facility receiving thecomparable/syngas fuel for burning; (2)the quantity of comparable/syngas fueldelivered; (3) the date of shipment ordelivery; (4) a cross-reference to therecord of comparable/syngas fuelanalysis or other information used tomake the determination that thecomparable/syngas fuel meets thespecifications; and (5) the one-timecertification by the burner.

K. Transportation and Storage

Commenters concurred with theAgency’s belief that the Department ofTransportation (DOT) and theOccupational Safety and Health Agency(OSHA) requirements for thetransportation and handling ofcomparable/syngas fuels will beadequate to ensure the safe managementof these excluded fuels. The final ruledoes not require comparable/syngas fuelhandlers to comply with the RCRAstorage and transportation requirements.It should be noted that excludedcomparable/syngas fuel transporters arerequired to comply with all applicablerequirements under the U.S. Departmentof Transportation regulations in 49 CFRparts 171 through 180.

Anyone who stores an excludedcomparable/syngas fuel (e.g., generator,transporter, burner) is required tocomply with all applicable requirementsunder the Occupational Safety andHealth Agency regulations in 29 CFRpart 1910. The occupational safety andhealth standards for flammable andcombustible liquids can be found inSubpart H—Hazardous Materials section1910.106 and standards for compressedgases in section 1910.101.

L. Comparable Fuels Exclusion andWaste Minimization

1. Introduction

In its April 1996 NPRM (61 FR17464), EPA solicited comment on theeffects of the comparable fuels provisionon facilities’ efforts to promote pollutionprevention and waste minimizationmeasures (i.e., source reduction andenvironmentally sound recycling). Inparticular, EPA wanted to determine theextent to which companies might: (1)Shift from hazardous waste recyclingpractices to burning wastes as fuel inbroader markets; (2) continue to recyclethese wastes for product recovery; (3)undertake source reduction for thosewastes currently failing the comparablefuel specifications; or (4) continue toburn the excluded waste fuel in eitheran hazardous waste incinerator, lightweight aggregate kiln, or cement kiln.

EPA received many comments on thisissue, most of which indicated there


would probably be a shift from recyclingtoward combustion, but the Agencyreceived very little quantitativeinformation that would allow theAgency to assess the extent and impactof potential shifts. Consequently, EPAused data from the RCRA BiennialReporting System, which is a census ofwaste stream information from all largequantity hazardous waste generators,and the National Hazardous WasteConstituent Survey (NHWCS), whichcontains data on the composition andproperties of waste streams for certainindustries, to develop two approachesfor assessing the impacts of thecomparable fuels provision on pollutionprevention and recycling. This approachis described in the next section.

The results of EPA’s analysisconclude that about three-fourths ofhazardous wastes now meeting thecomparable fuels specifications arealready being combusted; the remainder(about one-fourth) is recycled. The70,000 tons of hazardous wastes, thatqualify for the comparable fuelsexclusion and are currently recycledannually, could shift to the comparablefuels market, if all generators respondedthe same way, a possibility which seemsunlikely. This figure represents lessthan a one percent annual increase inthe amount of hazardous wastecombusted, but it represents a decreaseof about 20% in the amount ofhazardous wastes recycled annually.

If the comparable fuels provision wereimplemented alone, a 20% decrease inrecycling might appear to have anegative effect on pollution preventionand waste minimization. However, asone commenter pointed out, somegenerators will install pollutionprevention and waste minimizationmeasures (i.e., to prevent high levels ofconstituents from becoming part of thewaste) in order to qualify for thecomparable fuels exclusion. This wouldhave the effect of increasing pollutionprevention. Furthermore, EPA fullyexpects that the increased cost ofupcoming MACT standards will causethe regulated community to seek costeffective pollution prevention and wasteminimization solutions to offset thehigher costs (a response seen, forexample, in the RCRA land disposalrestrictions program). EPA is examiningthis effect in the regulatory impactanalysis for the upcoming MACTstandards. On balance, the impact of thecomparable fuels provision on pollutionprevention and waste minimization inthe context of MACT standards appearsto be negligible.

2. Major Concerns of Commenters

EPA received comments generallyexpressing either concerns or supportfor the exclusion. There was someconcern that the comparable fuelsexclusion would lead to combustion ofspent solvents and other high-energywastes low in halogens and metals thatwould otherwise be recovered asproduct. Conversely, others supportedthe exclusion pointing to incentives itmay create to source reduce andconserve resources by replacing fossilfuels with comparable fuels. In addition,concerns were raised over the role ofenergy recovery in the wastemanagement hierarchy, and the impactof fuel blending on comparable fuels.

Impact on Source Reduction andRecycling: Several commenters statedthat EPA failed to investigate whetherthe comparable fuels exclusion wouldencourage combustion of wastes nowbeing recycled. Some of thesecommenters took positions on how thecomparable fuels exclusion wouldimpact the recycling-combustionbalance. One group claimed that thecomparable fuels exclusion wouldencourage combustion at the expense ofrecycling. A smaller group ofcommenters stated that the comparablefuels exclusion would offer an incentivefor generators to use more sourcereduction to lower the levels of toxicconstituents to the specification levels.The commenters provided littlequantitative information describingthese changes.

As noted above, EPA used data fromthe RCRA Biennial Reporting System(BRS), which is a census of waste streaminformation from all large quantityhazardous waste generators, and theNational Hazardous Waste ConstituentSurvey (NHWCS), which contains dataon the composition and properties ofwaste streams for certain industries, todevelop two approaches for assessingthe impacts of the comparable fuelsprovision on pollution prevention andrecycling. Results from both analysesindicate that about three-fourths ofwastes likely to meet the comparablefuel specifications are alreadycombusted rather than recycled, andthat the remaining wastes could shiftfrom the current recycling market to thecomparable fuels depending on theeconomics and individual companypreferences. The methodologies usedare summarized below. A fulldiscussion of these analyses is providedin the docket.

Analysis #1: EPA searched the 1993BRS data to identify waste streams thatwould be most likely contain wastesthat could meet comparable fuel

specifications for energy value and lowlevels of contaminants. EPA focused itssearch on D001/ignitable wastes becausethis waste typically contains spentnonhalogenated solvents. EPA also usedthe BRS data to determine how thesewastes were managed after generation,and found that about three-fourths ofD001 wastes are combusted, while theremaining one-fourth goes to recyclingfor solvent recovery.

Analysis #2: Using waste streamspecific laboratory analysis data fromthe NHWCS, EPA identified those wastestreams in the survey that meet thecomparable fuels specifications forabout half of the recycled wastesreported in the BRS. Using this data,EPA was able to estimate the totalamount of recycled wastes that could becomparable fuels, and how much wastecurrently sent to combustion meets thecomparable fuels specifications.Analysis of these estimates indicatesthat about 75% of waste streamsmeeting the comparable fuels criteria iscombusted while the remainder isrecycled.

The ‘‘Economic Analysis Report forthe Combustion MACT Fast-TrackRulemaking’’ (contained in the docket)predicts savings to generators who canbegin to combust hazardous wastes ascomparable fuels rather than ashazardous wastes. EPA believes thisoffers generators incentives to achievethe comparable fuels specificationsthrough source reduction. However,since the costs of source reductioninitiatives vary widely from facility tofacility, EPA could not reliably estimatenet cost savings that facilities couldachieve by turning hazardous wastesinto comparable fuels through upstreamsource reduction. Therefore we did notattempt such an estimation.

In addition, many solvent recyclingfacilities could begin to combuststreams meeting the comparable fuelsspecifications instead of continuing torecycle them. EPA’s comparison ofrecycling costs and revenues with costsfor combusting these streams ascomparable fuels indicate that in manycases facilities may find the combustionoption more economical. Since solventrecycling costs and revenues varyconsiderably from facility to facility andalso fluctuate in time according to themarket values of virgin solvent (fuelcosts also fluctuate), EPA could not anddid not estimate the extent of this shift.Individual facilities may continue torecycle wastes rather than combustthem as comparable fuels.

Recycling and the Waste ManagementHierarchy: Some commenters stated thatletting wastes similar to fuels be burnedis evidence of an Agency preference for


combustion over recycling. EPAdisagrees: The comparable fuelsexclusion is based on the fact that somehazardous waste fuels very closelyresemble fossil fuels and do not warrantthe full slate of RCRA Subtitle Ccontrols. This does not suggest that theAgency has altered its commitment tothe hierarchy. The underpinning of thecomparable fuels exclusion is simply adetermination on the degree ofregulatory oversight needed for fuel-likewaste materials, which does nottranslate to any change of view on thewaste management hierarchy.

Burning for Energy Recovery: Somecommenters claim that burning forenergy recovery is waste minimization.While EPA is clearly providing greaterflexibility to burn wastes that closelyresemble virgin fuels, EPA distinguishesthis from waste minimization. Wasteminimization includes source reductionand environmentally sound recycling,but does not include any ‘‘method,technique, or process, includingneutralization, designed to change thephysical, chemical or biologicalcharacter or composition of anyhazardous waste so as to neutralize suchwaste, or so as to recover energy ormaterial resources from the waste, or soas to render such waste non-hazardous,or less hazardous; safer to transport,store or dispose of; or amenable forrecovery, amenable for storage, orreduced in volume.’’ (40 CFR260.10)(emphasis added).

Blenders and Third Parties: Somecommenters expressed concern thatEPA would allow blending of hazardouswastes to meet the concentrationspecifications for a comparable fuel,thereby raising the issue of dilution toavoid RCRA regulation. Similarly,commenters objected to allowing thirdparties, such as fuel blenders, to handleand blend wastes between generationand combustion. Commenters pointedout that blending and third-partyinvolvement would constituteimpermissible dilution. It would alsoundermine any incentive to minimizethe volume or toxicity of these wastes.The Agency agrees that blendinghazardous wastes to bring them withinthe comparable fuels concentrationspecifications would constitute dilutionwhich is not only impermissible butalso would likely inhibit wasteminimization. Today’s rule explicitlyprohibits any blending or other‘‘treatment’’ which does not remove ordestroy hazardous constituents.Blending of two wastes already meetingthe comparable fuels specifications is,however, allowed only to achieve theviscosity specification. The rationale for

this limited use of blending is discussedin that section of today’s preamble.

Opportunities for Source Reduction:One commenter commented that theStandards for the Management of UsedOil (40 CFR Part 279) offered generatorsan incentive for keeping used oilstreams clean by requiring oil exceedingcertain concentration specifications formetals and chlorine to be managed ashazardous waste, and predicts that thecomparable fuels exclusion will resultin similar incentives for sourcereductions to achieve the comparablefuel exclusion criteria, particularly forgenerators of D001 (ignitable) wastes.EPA agrees with this view, but did notreceive industry-specific informationfrom commenters with which tocomplete an analysis of this issue.

IV. RCRA Permit Modifications forHazardous Waste Combustion Units

A. Introduction

The Clean Air Act (CAA) sets amaximum time frame of three years forfacility owners or operators to complywith Maximum Achievable ControlTechnology (MACT) emission standardsonce final standards are published inthe Federal Register. EPA expects thatmany facility owners or operators willneed to make changes to theirprocess(es) in order to come intocompliance with the new standards. Forfacilities operating under a RCRApermit, these changes may have to beincorporated into the permit before theymay be put in place at the facility. Tofacilitate meeting the three yeardeadline, EPA is revising the RCRApermit modification procedures toexplicitly address changes to a facility’sdesign or operations that are necessaryto comply with the new MACT emissionstandards. The revised modificationprocess offers streamlined proceduresthat will help facility owners andoperators meet two complianceconcerns—compliance with their RCRApermits and compliance with the newMACT standards.

EPA anticipates that a substantialnumber of requests to modify facilitydesign or operations will be submittedin a relatively short period of timefollowing promulgation of the finalMACT standards. Although the statescould always use their currentmodification process, the revisedprocedures offer a potentially moreviable way for states to handle theanticipated volume of requests in amore timely manner.

In most cases, state permittingagencies have been authorized by EPAto issue and modify RCRA permits.Authorized states that wish to

implement the revised procedures mayhave to modify their state procedures,consistent with today’s rule, before theymay use the streamlined procedures torespond to MACT-related modificationrequests from facility owners oroperators. Once the final MACTstandards are promulgated, facilityowners and operators have three yearsto begin operating under the loweremissions levels. The Agency believesthat these three years are better used forprocessing modification requests, andsubsequently implementing thenecessary changes, than for modifyingstate regulations and going through theauthorization process. By promulgatingthe revised procedures on an expeditedschedule (i.e., before the final MACTstandards), EPA hopes to provide ampletime for states to develop comparablestandards and obtain EPA authorizationbefore they need to process MACT-related modification requests fromfacility owners or operators. It should benoted that states which currently havetemporary authorization proceduresequivalent to the federal 40 CFR270.42(e) procedures may also usethese, in many cases, to approve facilitychanges needed to come intocompliance with MACT standards.However, these procedures would allowoperation under the modifiedconditions only up to 180 days (with apossible extension of up to 180additional days), followed by a full class2 or 3 permit modification. Therefore,EPA encourages states to adoptprocedures comparable to those intoday’s rule.

Combining the streamlinedmodification procedures with theexpedited schedule for promulgatingthem sets up a procedural framework topromote compliance with the MACTstandards. But even this combinationdoes not guarantee that other factorswill not ultimately interfere with afacility’s efforts to comply. As part of acommon sense approach toimplementing, and enforcing, itsprograms, EPA would like to make surethat the consequences of non-compliance are commensurate with thecauses. With regard to the three-yeardeadline for operating under the loweremissions levels required by MACT,EPA is further examining potentialconsequences of non-compliance,particularly if the causes are beyond thefacility’s control (e.g., a permittingagency’s administrative procedures orworkload cause delays, necessaryequipment is back ordered, or testingcontractors are unavailable). Forexample, the Agency is looking into thepossibility of using standard


enforcement procedures under theClean Air Act (CAA), rather thanrequiring more stringent consequencesthrough regulations (e.g., requiring afacility to stop burning hazardous wasteuntil it receives a permit or revoking apermit). The potential consequences ofnon-compliance are discussed in moredetail in the Revised TechnicalStandards for Hazardous WasteCombustion Facilities; Proposed Rule,Notice of Data Availability (62 FR24212, May 2, 1997).

EPA is not going to pursue any of thethree companion implementationoptions discussed in the proposed rule(see 61 FR 17456, April 19, 1996). Thoseoptions were intended to addresspossible permit implementationconflicts which may have occurred if aState did not become authorized to carryout the provisions of the proposedMACT rule in time to handle necessarymodifications. By promulgating therevised modification procedures prior tothe remainder of the proposed rule, EPAanticipates that States will haveadequate time to receive authorizationto process the requisite modifications.Thus, the need to put in place a separateimplementation mechanism no longerexists. Today’s rule does not addressany of the longer-term implementationoptions discussed in the proposed rule(e.g., placing the MACT standards in aClean Air Act permit, in a RCRA permit,or in both permits). Implementation willbe discussed in the final rulepromulgating revised standards forhazardous waste combustors.

B. Overview

1. Background on RCRA PermitModification Procedures

Section 3004 of RCRA requiresowners and operators of facilities thattreat, store, or dispose of hazardouswaste to comply with standards that are‘‘necessary to protect human health andthe environment.’’ EPA, or EPA-authorized States, implement thesestandards by issuing RCRA permits tothese types of facilities. Once a permithas been issued to a facility, the facilitymust operate in compliance with theconditions in the permit; anysubsequent changes to the facility’sdesign or operations are incorporatedinto the permit in accordance with theAgency’s, or authorized State’s, permitmodification procedures.

EPA’s regulations concerning permitmodifications requested by facilityowners or operators are set forth in 40CFR 270.42. The regulations break thetypes of potential modifications intothree classes (see § 270.42 Appendix I).Class 1 modifications cover

administrative or routine changes,including replacing equipment withfunctionally equivalent equipment.They are relatively straightforward andin most cases do not require Agencyapproval before being made. Class 2modifications cover somewhat morecomplex changes, for example, toaddress common variations in the typesand quantities of wastes managed,where the changes can be implementedwithout substantially altering the designspecifications or management practicesprescribed by the permit. Class 3modifications involve substantialchanges to facility operating conditionsor waste management practices and aresubject to principally the same reviewand public participation procedures aspermit applications. Each class ofmodification request requires varyingdegrees of facility preparation, Agencyreview time, and public involvement.The various degrees have a significantimpact on the amount of time needed toput the change into effect. For example,Class 1 modifications typically can beimplemented in a very short time,where Class 2 and 3 modifications maytake several years.

Prior to promulgating the Class 1, 2,3 procedures, modifications weredivided into two categories, major andminor. States authorized to implementthe RCRA program were not required toadopt the Class 1, 2, 3 procedures, sincethey were considered less stringent thanthe predecessor major/minor system. Asa result, both systems are in use today.EPA would like to point out that, inconverting to the new system, many ofthe modifications that had beendesignated as minor were placed intoClass 1, or Class 1 with prior Agencyapproval. EPA presumes thatmodifications listed in Appendix I asClass 1, or Class 1 requiring priorAgency approval, are most likelyprocessed as minor modifications instates that continue to use that system.

2. Shortcomings of the CurrentProcedures

EPA did not consider, in developingthe modification classes andprocedures, that changes to RCRApermit conditions might be necessary inorder to comply with otherenvironmental statutes. Similarly, theAgency did not anticipate changes tocomply with upgrades to existingregulations (although the process wasdeveloped to include changes for newregulations). EPA developed the Class 1through 3 modification scheme withinthe context of the RCRA program toprovide both incentives to facilityowners and operators to pursue facilitychanges that lead to improved

management of hazardous wastes, andgreater flexibility for timely processingof change requests, e.g., by tailoring thelevel of review to the type of change (seePermit Modifications for HazardousWaste Management Facilities; FinalRule, 53 FR 37912, September 28, 1988).EPA is now concerned, however, thatthe RCRA permit modificationprocedures, as a practical matter, willnot allow enough time to meet statutorydeadlines for implementing newstandards under the Clean Air Act.

3. How Today’s Rule Impacts theProcedures

EPA proposed several options foramending RCRA permit modificationprocedures to accommodate the CleanAir Act requirement that facilitiescomply with MACT standards withinthree years of publishing a final rule inthe Federal Register (61 FR 17454, April19, 1996). In all five of the proposedoptions, the Agency tried to balance theneed to develop a process that wouldenable facilities to comply with morestringent emissions standards within theallotted time with the need to provideadequate opportunities for publicparticipation in the process. The level ofregulatory oversight that would takeplace under each option was alsodiscussed. The Agency requestedcomments on the proposed options, aswell as on any combinations thereof, orany other feasible approaches.

EPA has decided to finalize, withsome adjustments, its originallyproposed recommended approach, i.e.,to establish a new section in the permitmodification table for changes toexisting permit conditions necessary tocome into compliance with MACTstandards. This approach best meets theAgency’s objective of implementing aprocess that enables facilities to meetthe three year statutory deadline. Thisapproach also allows for publicnotification of the modification request.

Today’s final rule establishes a newsection in Appendix I of 40 CFR 270.42for technology changes that arenecessary for a facility to achievecompliance with the MACT standards.The new section is designated as Class1 modifications, with prior Agencyapproval. As such, the Agency will havean opportunity to review the proposedphysical and operational changes to thefacility before they are implemented, inorder to ensure that these changes donot have other undesirableconsequences. Agency experiencesuggests that steps intended to reduceemissions may not, in all cases, lead tooverall enhanced environmentalprotection. For example, decreasingcombustion temperature as a way to


decrease air pollution control device(ACPD) inlet temperature, in order toreduce dioxin emissions could increaseorganic emissions by allowing poorcombustion.

The new section in 40 CFR 270.42Appendix I, specifically, section L(9)‘‘Technology Changes Needed to MeetMACT Standards Under 40 CFR Part 63Subpart EEE—National EmissionsStandards for Hazardous Air PollutantsFrom Hazardous Waste Combustors,’’ islimited to technology changes toexisting permits to allow a facility tocome into compliance with the new Part63 standards. General retrofittingchanges outside the framework ofmeeting MACT-related technology, orsubsequent changes for maintainingcompliance with Part 63 standards, areoutside the scope of this category. Thepermitting agency director willdetermine whether the types ofmodifications requested qualify as‘‘technology changes needed to meetstandards under 40 CFR part 63 SubpartEEE.’’ The Agency anticipates that thedistinction between technology changesnecessary to allow a facility to operateunder the lower emissions levels andgeneral retrofitting changes will beclear. EPA expects that the same typesof changes to comply with the MACTstandards will be needed at mostfacilities, thus the requests submittedunder section L(9) should be fairlyuniform.

EPA, in response to public comments,is also incorporating a time default intothe modification procedures for changesrequested under section L(9) only.Section 270.42(a) is being amended toadd a paragraph specifying that thepermitting agency Director has 90 days,with a possible one-time 30 dayextension, to make a decision aboutmodifications requested under sectionL(9). If the Director does not make adecision, then the permittee mayconsider the request approved. EPA isalso requiring owners or operators tocomply with the requirements for theNotification of Intent to Comply (NIC)(see 40 CFR 63.1211) in order to benefitfrom the streamlined modificationprocess.

C. Discussion of RCRA PermitModifications Procedures for FacilitiesComing Into Compliance With MACTrequirements

1. Summary of Proposed Options

EPA is in the process of developingfinal MACT standards imposing morestringent (lower) emissions levels forhazardous waste combustion activities;facilities will have to operate incompliance with these standards within

three years of their promulgation, witha possible one year extension (for a totalof four years). The Agency expects thata large number of facilities will need tomodify their design or operations tomeet the more stringent emissionsstandards required under MACT. Forexample, incinerators that currentlyoperate above the MACT emissionsstandard for particulate matter (PM)might have to add electrostaticprecipitators (ESP) or baghouses toreduce emissions; similarly, incineratorsthat need to reduce dioxin emissions tomeet the MACT standards may need toimplement additional controls ontemperature or employ carbon injection;or light weight aggregate kilns (LWAKs)with high acid gas emissions may needto add a control technology, such as wetscrubbers.

For these facilities to remain incompliance with their RCRA permits,they will need to modify their permitsto allow any design or operationalchanges needed to achieve compliancewith the MACT standards. The Agencyproposed five options for handling these‘‘MACT related’’ RCRA permitmodifications. The options, whichvaried with regard to the level ofprocedural requirements andadministrative review required, were:(1) Provide facilities with ‘‘self-implementing’’ authority to proceedwith necessary changes without Agencyreview; (2) categorize the changesneeded to comply with MACT standardsas Class 1 modifications that do notrequire prior Agency approval; (3)categorize the changes as Class 1modifications that do require priorAgency approval (this option wasdiscussed in the proposal as therecommended option); (4) categorize thechanges as Class 1 modificationsrequiring prior Agency approval, butgive the Director authority to elevatechange requests to Class 2; and, (5)retain the current scheme for modifyingthe RCRA permits. Under the currentscheme, the MACT-related changeswould likely be categorized as Class 2or 3 modifications.

2. Summary of Public CommentsIn general, there were three recurring

themes in the comments received by theAgency in this area. First, commentersexpressed concern about being able tomeet the three year time frame. Theycited, as reasons, (1) that three years areinsufficient to allow state agencies toobtain authorization for the rule and tosubsequently process the anticipatedvolume of modification requests, and (2)that the modification proceduresthemselves are too long. Secondly,commenters emphasized the need to

allow sufficient public participation, butwith the caveat that the modificationprocess not be unduly delayed by publicparticipation activities (this being yetanother factor in potentially beingunable to meet the three year deadline).Finally, commenters were concernedthat the consequences of non-compliance are too severe (e.g., havingto stop burning), given that delays inachieving compliance could be theresult of permitting agencies beingunable to process modification requestsin a timely manner (and not aconsequence of the facility’s activities).

The Agency received a wide variety ofcomments on the options themselves.Each of the proposed options receivedsupport, with most commenters favoringthe first three options for their morestreamlined procedures. A fewcommenters suggested thatincorporating a time limit into themodification review process would aidin coming into compliance with theMACT standards. Many commentersexpressed the importance of developinga streamlined permit modificationprocess that would allow facilities tomake the necessary technology upgradesin a timely fashion, while retainingenough regulatory oversight to ensurethat the changes have a proper degree of‘‘buy-in’’ by the permitting agency.Some commenters expressed concernthat options 4 and 5 would delayimplementation of MACT-relatedchanges beyond the three year deadlinemandated by Congress. A fewcommenters preferred options 4 and 5since they incorporate a greater degreeof public participation into the reviewprocess. Additionally, somecommenters thought that options 4 and5 might be more readily accepted by andimplemented in authorized States thatchose to remain with the original permitmodification structure composed ofminor and major changes. [Note: Stateswere not required to adopt the Class 1,2, 3 structure since it was determined tobe less stringent than the major/minorstructure.]

Finally, some commenters requestedthat the Agency consider as a possiblealternative that a Class 3 modificationcould be reclassified as Class 2 for thepurposes of MACT compliance.

3. Response to Comments andDiscussion of Final Provisions

EPA agrees with commenters thatstreamlined modification procedures forMACT-related changes are essential.The three year time frame for complyingwith the MACT standards has been setby Congress; it is the Agency’sresponsibility to ensure that facilitiesare able to comply with those


requirements without violating otherareas of their environmentalresponsibilities, like their RCRA permit.As discussed earlier, EPA anticipatesthat many facilities will need to makesome changes to meet the loweremissions levels imposed by MACT,and that these changes will have to beincorporated into their RCRA permits.EPA does not want the RCRA permitmodification procedures to hinder afacility’s ability to comply with MACT.

As discussed in the Section B.1.Background on RCRA PermitModifications Procedures, Class 1modifications may be done quickly,whereas Class 2 or 3 modifications maytake several years to process. Thecombination of the time normallyrequired to completely process Class 2or 3 modification requests, and theanticipated volume of requests fromfacilities striving to meet MACTemission levels, would make meetingthe three year deadline unrealistic.Permitting agencies would not have theresources to meet the workload demand.This leads EPA to concur withcommenters on the need to embrace amore streamlined approach than wouldbe provided by options 4 or 5. Similarly,EPA chose not to pursue the optionsuggested by some commenters toreclassify changes from Class 3 to Class2. A streamlined approach is consistentwith general efforts within the Agency(e.g., through the Permits ImprovementTeam) to improve the permittingprocess by focusing on performancestandards rather than on a detailedreview of the technology requirements.

The Agency acknowledges thevalidity of the concerns expressed bysome commenters that the optionsoffering the more streamlinedprocedures offer fewer opportunities forpublic participation. It is important tostrike an appropriate balance betweenstreamlined modification proceduresthat promote coming into compliancesooner with more stringent standardsand public participation. The Agencyhas repeatedly emphasized itscommitment to a common-senseapproach to permitting—one thatminimizes regulatory burden andprovides flexibility to tailor activities tospecific situations. In carrying thiscommitment to today’s rule, EPA wantsto ensure three things; (1) that thepermit modification process is not anobstacle for complying with the MACTstandards; (2) that facilities are notforced to operate outside of theirpermitted conditions in order to complywith MACT standards; and (3) thatpublic participation is not streamlinedout of the process.

EPA believes that Option 3, withsome modifications, provides the bestframework for meeting these objectivesand responding to public comments.This option was supported by manycommenters, particularly because thestreamlined procedures will facilitatemeeting the three year deadline forcomplying with the more stringentemission levels. There has been aprecedent set in the past forstreamlining the modifications process.To ensure that facilities implementedtimely changes necessary to meet landdisposal restriction (LDR) levels fornewly listed or newly identifiedhazardous waste, the Agency designatedthe modifications needed to meet theLDR levels for newly identified wastesas Class 1 modifications (see 54 FR9596, March 7, 1989).

The prior agency approval underOption 3 provides the regulatoryoversight requested by commenters,since the permitting agency will havethe opportunity to review the proposedphysical and operational changes to thefacility before they are implemented.EPA concurs with commenters whoencouraged retaining some amount ofregulatory oversight in themodifications. As discussed previously,sometimes changes to one part of afacility’s design or operations that havea positive effect, like reducing one typeof emissions, may cause detrimentaleffects to other parts of the facility’soperations. It is important for permittingagencies to have the opportunity toreview proposed changes to make surethey do not lead to other undesirableimpacts.

Some commenters expressed concern,however, that a facility’s ability to beginimplementing the change(s) might bedelayed by requiring regulatoryoversight (i.e., if the Agency failed torespond to the request in a timelymanner). EPA recognizes the validity ofthis concern, given the anticipatedvolume of requests from facilitiesstriving to meet the new emissionsstandards; therefore, the Agency isincorporating a time default forreviewing the requests into the finalmodification process. The time defaultfor review, codified in a new paragraph270.42(a)(4), specifies that if adetermination to approve or deny theClass 1 permit modification requestsubmitted under item L(9) is not madewithin 90 days (with the possibility ofa one-time extension for up to 30 days)from the time the request was receivedby the permitting agency, the request isto be considered approved, and thefacility can proceed with themodification(s). In some situations, theDirector of the permitting agency may

deny a request, for example, if therequest contained insufficientinformation upon which to base adecision. The permittee could revise itsrequest to address the shortfalls andresubmit it to the permitting agency.Such a resubmittal would initiate a new90 day review period.

EPA anticipates that the incorporationof the time default, coupled with thefact that the revised modificationprocedures are being promulgated on anexpedited schedule, will alleviatecommenters’ concerns about non-compliance. Although the consequencesof non-compliance are outside the scopeof this rule, this approach (streamlinedmodification procedures coupled withexpedited promulgation) establishes aprocedural framework through whichthere is a greater chance that permittingagencies will not cause undue delays infacilities’ compliance with the MACTstandards. Under the new streamlinedprocess, permitting agencies should beable to process the modificationrequests with sufficient time remainingfor facility owners or operators to makethe changes within the three year timeframe.

Some commenters expressed concernthat option 3 does not provide the samelevels of public participation that wouldbe available through options 4 and 5.Those options would require facilities torequest Class 2 or 3 permitmodifications for MACT-relatedchanges. The procedures for Class 2 and3 modifications include publicmeetings, notices, and commentperiods. Class 1 modifications, eventhose requiring prior Agency approval,only require that the facility owner oroperator send a notice of the change tothe facility mailing list within 90 daysof approval being given.

EPA is committed to enhancingpublic participation in all of itsprocesses, and has establishedadditional requirements in today’s ruleto provide opportunities, beyond thepublic notice requirements associatedwith Class 1 (with prior approval)modifications, to involve the public inpermitting changes required to complywith MACT standards. Theseopportunities are being incorporatedinto requirements for a Notification ofIntent to Comply (NIC), discussed inmore detail in Section V. One goal of theNIC development process is to promoteinteraction between the facility and itshost community, for example, byrequiring the facility to host an informalmeeting with the community beforesubmitting the final NIC to thepermitting agency. Since the NIC mustdescribe anticipated activities forcoming into compliance with the MACT


standards, the technology changes thattrigger the RCRA permit modificationwould be a natural component of theNIC and the public meeting. EPAexpects that the meeting will be similarin style and intent to the pre-applicationmeetings required under 40 CFR 124.31.

The final rule requires facility ownersor operators to complete the NIC inorder to benefit from the streamlinedmodification procedures. Thisrequirement means that owners oroperators will need to submit a finalNIC either before, or at the same time as,they submit the modification request. Ifthey do not comply with the NICrequirements, they will need to followthe otherwise applicable modificationscheme, i.e., the permitting agencyDirector will likely reclassify theirrequest to Class 2 or 3. EPA is notrequiring documentation in themodification request that the permitteecompleted the NIC. Since both items aresubmitted to the permitting agency, EPAassumes the permitting agency will beaware of whether the permittee hasindeed complied with the NICrequirements.

EPA expects that information aboutanticipated changes to facility design oroperations to comply with the morestringent standards will be included inthe NIC, and thus will be available forpublic review and discussion during theNIC public meeting. Through thismeeting, communities have an earlyvehicle for learning, among other things,about potential changes to facilitydesign and operations necessary to meetthe lower emission levels. Of course, inaccordance with the currentrequirements concerning Class 1modifications, the permittee must alsoinform the public about themodifications within 90 days of theirapproval by the permitting agency (see40 CFR 270.42(a)(1)(ii)).

EPA would like to point out thatalthough similar information aboutfacility design or operation changes maybe included in both the NIC and themodification request, the Agency doesnot believe it is redundant to have bothdocuments. The two have differentpurposes, and the formats and levels ofdetail may differ accordingly. Themodification request would most likelydiffer from the NIC, since the requesthas to tie directly to the permit itself.For example, the NIC may talk ingeneral terms about adding baghouses toreduce emissions, but the modificationrequest would have to specifically citethe section(s) of the permit beingmodified to include information on thebaghouses.

Today’s requirements would not, ofcourse, preclude additional public

participation activities beyond theregulations, where appropriate on afacility-specific basis. At certain RCRAfacilities, in fact, permitting agenciesand facilities have implemented avariety of public involvement activities,such as additional fact sheets orinformation availability sessions, thathave helped affected communities tounderstand and participate in permitdecision-making. EPA has published apractical how-to guidance manualdesigned to help all stakeholders in thepermitting process (permit writers,industry, and communities) determinewhat types of public participationactivities might be helpful. The RCRAPublic Participation Manual (EPA530-R-96–007, September 1996) also offers tipson how to conduct a wide variety ofactivities. Supplemental publicparticipation activities on a site-specificlevel, geared for a particular facility’soperations and tailored to meet the hostcommunity needs, could be used toaugment community understanding ofthe changes taking place to comply withMACT standards. In closing, EPA wouldlike to reiterate that facilities are makingchanges to meet more stringentstandards. Requiring facilities to complywith lower emissions levels in arelatively short time frame does offersignificant benefits to public health andthe environment that the Agencybelieves communities will generallywelcome.

In response to the comments thatoptions 4 and 5 might be morecompatible with permit modificationprocedures in authorized states, EPA isaware that States have to evaluate newregulations in terms of their specificstructures. Promulgating the revisedmodification procedures in today’s rule,however, will provide ample time forstates to obtain authorization beforethey actually begin processingmodification requests followingpromulgation of the final MACTstandards. EPA encourages states toexpedite their requests for authorizationto implement the provisions in today’srule. EPA expects that States using theClass 1, 2, 3 modification system wouldincorporate the provisions by reference,and that States using the major/minorsystem would incorporate theprovisions as minor modifications. Asdiscussed in Section B.1. Backgroundon RCRA Permit ModificationProcedures, many changes that wereformerly classified as minor wereconverted to Class 1, or Class 1requiring prior Agency approval. Thus,EPA believes it is consistent for statesusing the major/minor system to

incorporate this category of changes intothe minor classification.

If the states cannot adopt an approachthat ensures expeditiousimplementation of the MACT standards,however, then the Agency expects thatchanges necessary to comply withMACT standards may well beaccomplished under a complianceorder, with a specified schedule to comeinto compliance.

F. RCRA Changes in Interim StatusProcedures

RCRA facilities operating underinterim status are allowed to implementcertain facility changes in accordancewith requirements and procedures setforth in 40 CFR 270.72(a). (Note: EPAanticipates that the types of changes afacility may need to make to complywith the MACT standards would beallowable under this section). Section270.72(b) imposes a limit, however, bystating that the changes cannot amountto ‘‘reconstruction’’ (defined in theregulation as ‘‘when the capitalinvestment in the changes to the facilityexceeds 50 percent of the capital cost ofa comparable entirely new hazardouswaste management facility’’). Asdiscussed in the preamble to theproposed rule, the Agency does notanticipate that the costs to performfacility changes necessary to come intocompliance with the MACT standardswould exceed the 50 percentreconstruction limit. However, since thelimit is cumulative for all changes at theinterim status facility, there couldconceivably be situations where the costfor MACT-related changes might push afacility over the limit.

To ensure that the reconstructionclause does not present an obstacle forinterim status facilities trying toimplement changes to meet the newemissions levels, the Agency proposedadding a new paragraph to § 270.72(b)exempting changes necessary to complywith the MACT standards from thereconstruction limit. The Agency didnot receive any adverse comments, andso is finalizing this provision in today’srule.

It is important to note that facilitiesoperating under interim status will, likepermitted facilities, be required tocomply with the NIC requirements.Thus, the public will have theopportunity to review planned changesas part of the NIC and to participate inthe public meeting. EPA anticipates thatowners or operators of interim statusfacilities will hold the meeting andcomplete the NIC before proceedingwith any changes to facility design oroperations necessary to comply with theMACT standards.


V. Notification of Intent To Comply andProgress Report

A. BackgroundIn the proposed rule (61 FR 17358),

the Agency requested comments onstrategies to identify and encourage orrequire affected sources to comply withthe final emission standards at theearliest possible date. The Agency alsoasked for views on how best todetermine when a source canrealistically conclude whether it willcomply with the final standards. Anumber of commenters suggested thatthe Agency require a submission fromaffected sources that would identifywhether the facility intends to complywith the final standards, and outline theprocedures the facility would employ toachieve compliance. This primarypurpose of this submission (referred toby the commenters as a ‘‘Notification ofIntent to Comply’’) would be to identifythe sources that will choose as acompliance strategy to stop burninghazardous waste, so that those sourcescould be required to terminate wasteburning activities as soon as possiblefollowing the effective date of the finalHazardous Waste Combustor (HWC)rule.

Other commenters suggested that EPArequire submission of a plan thatoutlines the procedures a facility willfollow to comply with the finalstandards. However, the purpose of thissubmission would be to begin an earlyprocess of communication between thepublic and the facility through thepublic disclosure of the facility’scompliance strategy to meet the finalHWC standards.

The Agency reviewed these commentsand found the suggestions for an earlynotification persuasive. In the Notice ofData Availability (NODA) published inthe Federal Register on May 2, 1997(Revised Technical Standards forHazardous Waste Combustion Facilities;Proposed Rule, 62 FR 24241), EPAdescribed its strategy to promote earlycompliance planning through a Publicand Regulatory Notice of Intent toComply (PRNIC). The discussion laidout a process by which an affectedsource would be required to develop adraft document including anticipatedplans for coming into compliance withthe new emissions standards, hold aninformal meeting with the public todiscuss the draft planning document,and to subsequently provide a finalplanning document to the permittingagency. The information to be coveredin the document and during the meetingwould include such topics as adescription of waste minimization andpollution control technique(s) being

considered and their effectiveness, adescription of emission monitoringtechniques being considered, and anoutline of key dates for activities thesource would need to accomplish inorder to operate within the MACTstandards.

The intended purpose of the PRNIC,as described in the NODA, was twofold.First, the PRNIC was intended toprovide for public involvement in asource’s compliance planning process.EPA envisioned that this involvementwould also serve to offset publicparticipation opportunities that may be‘‘lost’’ if a source is able to takeadvantage of the new streamlined RCRAmodification procedures for HWCs,since modifications required underRCRA would naturally be part of thesource’s overall plan for achievingcompliance with the standards.Secondly, the PRNIC would provide anexpeditious notice to the permittingAgency as to whether sources would beable to come into compliance with thenew standards. Having informationabout plans for compliance might provehelpful to permitting agencies inplanning the most efficient use of theirresources during the three yearcompliance period.

B. Summary of Final ProvisionsEPA is moving forward with an early

compliance planning requirement.However, the final rule contains certainchanges from the PRNIC discussed inthe NODA; the Agency has revised therequirements based on public commentsreceived following the NODA’spublication and based as well on theoriginal proposal. EPA is finalizing newrequirements in § 63.1211 for facilityowners and operators to develop andsubmit a Notification of Intent toComply (NIC), and in § 63.1212 todevelop and submit a Progress Report.Section 63.9(h) ‘‘notification ofcompliance status’’ requires facilities tosubmit such notification when a sourcebecomes subject to a relevant CAAstandard. As such, today’s requirementis an enhancement of this requirementto give notification of intent to complyprior to the three year compliance dateof the emissions standards. The sourcecan use the NIC to notify either thesource’s intent to come into compliancewith the new standards, or the source’sintent not to come into compliance withthe new standards. The NIC must besubmitted to the permitting agencywithin a year of the final standardsbeing promulgated, and the ProgressReport within two years.

As proposed, the primary purpose ofthe NIC is to serve as a planning andoutreach tool for achieving compliance

with the MACT standards. The contentsof the NIC, set forth in § 63.1211(a)(1),are similar to those presented in theNODA discussion on the PRNIC withmodifications based on commentsreceived on the NODA. Also asdiscussed in the NODA, sources willhave to make a draft of the documentavailable to the public as part of theprocess of developing the NIC. Theywill also have to provide notice of andconduct an informal meeting with thepublic to discuss anticipated plans forachieving compliance with thestandards. The purpose of the ProgressReport is to help permitting agenciesdetermine if sources are makingreasonable headway in their efforts tocome into compliance. In deciding onthis approach to compliance planning—the NIC followed by the ProgressReport—EPA determined (1) that oneyear is sufficient time for a source toestablish its general ‘‘plan of attack’’ forachieving compliance, and (2) thatduring the second year a source shouldbe well on its way to making necessarymodifications, if it plans to meet theMACT limits, or to making alternatearrangements for handling thehazardous waste, if it does not intend tomeet the MACT limits.

The final rule does not containprovisions for updates to the final NICfollowing a significant change in thefacility’s implementation strategy, asconsidered in the NODA. Since theAgency decided to implement arequirement for a Progress Report at theend of the second year, there is nopurpose served by having a revised NIC.EPA anticipates that any significantchanges to a facility’s compliance planwould necessarily be reflected in theProgress Report.

C. Discussion of Public Comments andFinal NIC Provisions

1. General.The majority of commenters

supported the concept of earlycompliance planning, particularly withregard to the public involvementcomponent. Those advocating earlyinvolvement indicated that the PRNICconcept appears reasonable, not overlyburdensome, and represents a positivestep to ensure public involvement in theMACT process. Many lauded theAgency’s effort to bring the spirit of therecently promulgated RCRA enhancedpublic participation requirements (see69 FR 63417 (Dec. 11, 1995)) to theMACT arena and the strong RCRA goalof public participation for decisionsinvolving permitted hazardous wastemanagement facilities (RCRA section7004(b)). Commenters opposing the


additional public involvement requiredas part of the PRNIC developmentprocess stated that the activities (e.g.,the public meeting) would create morecontroversy and impose additionalburdens on both sources and permittingagencies at a time when they will befaced with a substantial workload. Somecommenters expressed concern that theadditional activities would provide noreal benefit, since neither the permittingagencies nor the public have authorityto disapprove of a source’s chosencontrol options, as long as the sourceoperates within the MACT limits. Onecommenter noted that the concept of aPRNIC was unprecedented for CAAsources; they said a PRNIC was notrequired under the CAA and it wasbeyond EPA’s authority to impose sucha requirement.

The Agency agrees with commenterswho recognize the value of early publicinvolvement. EPA has repeatedlyemphasized its commitment toenhancing public participation in all ofits programs (see National WasteMinimization and Combustion Strategyand Enhanced Public ParticipationRule). Experience has shown thathazardous waste combustors spark atremendous amount of legitimate publicinterest; many communities haveexpressed a desire to be involved at allstages of combustor operations andpermitting activities. Given thisbackground, EPA fully expects thepromulgation of the final MACTstandards to receive significant andappropriate public scrutiny. As onecommenter points out, HWCs arealready subject to RCRA regulations,and many of them operate under risk-based permits that were subject toextensive public review. EPAanticipates that the fact that HWCs willnow be regulated under CAA is likely toremain of vital interest. People willknow that new emissions limits arebeing imposed, and will want to knowhow the source plans on meeting them.The NIC provides this information, andthe NIC meeting opens the door for thepublic to communicate directly with theowners or operators.

EPA does not share the concernexpressed by commenters that thepublic involvement activities impose asubstantial burden with nocommensurate benefit. The effortassociated with drafting a NIC andholding the NIC meeting is not overlyburdensome. Facilities will most likelyneed to compile the information fortheir own uses, in order to effectivelydecide which compliance option(s) theywill pursue. Making the informationavailable to the public and discussing itduring an informal meeting could

provide benefits in many areas, even ifthe permitting agency and the public donot have the authority to approve ordisapprove of the compliance method(s)ultimately selected. For example, itcould save time and money at the endof the permitting process. Talking topeople early on about what can andcannot be accomplished in a givensituation, asking their input ondecisions that need to be made, andexplaining the rationale behinddecisions that have already been made,can lead to fewer challenges on draftpermit conditions. EPA also believes thepublic could provide useful informationto owners or operators that mightcontribute to a quality plan forachieving compliance with the MACTstandards. The level of knowledge onenvironmental matters exhibited by thepublic (at public meetings, incorrespondence, for example) appears tobe increasing. As the public’sknowledge base grows, so might thequality of input they can provide intotechnical decisions.

EPA disagrees also that there is noprecedent for the concepts inherent inthe NIC, and that EPA does not haveauthority to impose such a requirement.Since EPA has chosen to provide themaximum amount of time forcompliance allowed under the CAA (3years), requiring sources to identifytheir compliance plans is particularlyappropriate. As stated before, EPA iscommitted to enhancing publicinvolvement in environmental matters.Providing the compliance plans to thepublic is one of many ways the Agencyis implementing this policy. Precedentfor early public involvement has beenset both in the Agency’s HazardousWaste Minimization and CombustionStrategy and in the enhanced RCRApublic participation requirementspromulgated in December, 1995 (see 69FR 63417, December 11, 1995).

2. Purpose of the NICAs discussed in the background part

of this section, the original purpose ofthe PRNIC was to promote publicinvolvement and to assist in complianceplanning. Commenters supported thesegoals, which continue to be thecompelling motives for adopting theNIC requirement. The primary purposeof the NIC is thus to serve as a planningtool for achieving compliance with theMACT standards. In other words, theNIC is designed to ensure that facilityowners or operators get an early start onevaluating their options for meeting thenew standards, and to serve as a vehiclefor public involvement. EPA’s intent isto facilitate dialogue regarding afacility’s compliance strategy. The NIC

also serves the purpose of havingsources identify to the regulators andthe public their intent to comply or notto comply with the applicable emissioncontrol requirements of this Subpart.The NIC and public meeting will fostermutual understanding of thecompliance options, includingconsideration of both technical (e.g.,equipment changes to upgrade airpollution control devices) andoperational (e.g, process changes tominimize waste generation) alternatives.Ideally, it will also result in theselection of a method that will meet thegoals of both the facility and thecommunity.

The NIC will not serve as a basis forrequiring facilities to cease burninghazardous waste if they intend tocomply with the emission standards ofthis Subpart. If, however, a facilityindicates in its NIC that it does notintend to meet the emission standards ofthis Subpart, then the source must stopburning hazardous waste within twoyears of the standards beingpromulgated. This requirement isdiscussed in more detail in Section D.Discussion of Public Comments andProgress Report. EPA would like toclarify that its intent has never been toshut a source down completely. Thesource might be required to ceaseburning hazardous waste; however, itwould not be precluded from burningnon-hazardous waste or otheralternative fuels. However, thosesources who indicate in the NIC theirintent not to comply with the applicableemission control requirements of thisSubpart will be required to stop burninghazardous waste within two years of theeffective date of the emission controlrequirements.

Although the NIC will not be used tocause sources to stop burning, there areenforceable requirements associatedwith it. Sources must provide a draftNIC for public review, advertise andconduct an informal meeting, andsubmit a final NIC to the permittingagency. If these activities do not takeplace within the time frames specifiedin the regulations, sources will be inviolation of the requirements, andsubject to appropriate enforcementaction. The key milestone datescontained in the schedule submittedwith the NIC are not enforceable,however; the requirement to submit aschedule containing key dates is theenforceable requirement.

Finally, one commenter suggestedthat the NIC be used to identify RCRApermit conditions that would‘‘disappear’’ when MACT limits are set.EPA is not using the NIC for thispurpose. EPA will address permitting


schemes, and the process fortransitioning from a RCRA permit to aTitle V permit, in the final rulepromulgating MACT standards forHWCs. The NIC is not the appropriatevehicle for accomplishing this task.

3. TimingIn the PRNIC discussion in the May

2, 1997 NODA, EPA said that the finalPRNIC would be due to the permittingagency within 270 days following theeffective date of the final MACTstandards. A draft of the documentwould have to be available within 210days, and at least 30 days before theinformal public meeting was to be held.

Although several of commentersconsidered the time frame too long,many others said it would be difficult toprepare a quality compliance planningdocument so quickly. They alsoexpressed concern about meeting withthe public at such an early stage. Thecommenters’ position was that any draftplan put together within 7 months afterthe standards are finalized would betentative only. They were reluctant to goto the public with a tentative plan thatwas likely to change significantly beforeit was final.

EPA agrees with commenters that thetime frames are tight. In order to beoperating within the new limits by theend of the compliance period, it isimperative to start the planning processimmediately. In recognition ofcommenters’ concerns about preparingthe draft plan, EPA is extending thetime frames in the final rule. Inaccordance with the provisions in§ 63.1211, the final NIC will be due tothe permitting agency within one year ofpromulgation of the final standards. TheNIC meeting must be held no later than10 months following promulgation, andthe draft NIC made available at least 30days before the meeting is held. So,facilities basically have 2 extra monthsto prepare a draft document, and 3 extramonths to submit a final NIC to thepermitting agency. The revised timeframes should provide sufficient timenot only to prepare the initial draft, butalso to revise it, as appropriate, to reflectdiscussions from the public meeting andfinal engineering decisions about thesource’s operation.

The Agency understands the concernsexpressed by commenters about sharingdraft material with the public. However,EPA does not expect, nor shouldfacilities or the public expect, the draftNIC to describe all of the technicalaspects of the compliance options inextensive detail. Similarly, discussion ofthe options at the public meeting shouldnot focus on minute details. Thepurpose of sharing the draft and

discussing the options at the publicmeeting is to capture major ideas in aplanning document, to facilitatedialogue regarding a facility’scompliance strategy, and to discusspossible courses of action. Theinformation in the draft NIC should besufficient to stimulate this level ofdiscussion. The more in-depth technicaldiscussion can be incorporated into thefinal document. Since all sources arerequired to have the final NIC submittedto the permitting agency one year afterthe final standards are promulgated,anyone may request a copy of it fromthe permitting agency at that time.

4. NIC Meeting

EPA is requiring facilities to providenotice of and host an informal meetingwith the community to discussanticipated plans for complying withthe MACT emissions standards (see§ 63.1211(b)). The meeting must takeplace within 10 months of the finalstandards being promulgated. At least30 days before the meeting takes place,the facility must provide public noticeof the meeting, and must make the draftNIC available for public review.

Commenters were generallysupportive of EPA’s intent to require apublic meeting to discuss complianceplanning. Some commenters hadspecific concerns, ranging from thetiming issues addressed above, to themethods for providing notice, and thepotential for being required to conductseveral redundant meetings to meetvarious purposes.

EPA had listed three mechanisms inthe NODA for providing notice of thepublic meeting: a display ad in anewspaper, a sign at the facility, and abroadcast announcement. These werethe same mechanisms used to providenotice of the RCRA pre-applicationmeeting, and EPA believes they areappropriate for the NIC meeting as well.At least one commenter thought themechanisms were too broad, and that anotice via newspaper and a sign at thefacility would be enough. Anothercommenter suggested that a notice besent to the facility mailing list as well.EPA decided not to limit the noticemethods for the NIC meeting, but didadd the facility mailing list to themethods in § 63.1211(b)(3). Each ofthese notices must include the date,time and location of the meeting, a briefdescription of the purpose, a briefdescription of the facility, a statementasking people who need special accessto notify the facility in advance, thename of a contact for the NIC, and astatement describing how the draft NICcan be obtained.

Commenters who were concernedabout redundant public meetingsdescribed a few possible scenarios. Forexample, in states that do not adopt thestreamlined RCRA modificationprocedures a facility might be requiredto conduct a public meeting as part ofa Class 2 or 3 RCRA modification, aswell as the NIC meeting. Federalfacilities might have public meetingrequirements under the NationalEnvironmental Policy Act (NEPA).Other facilities might be facing RCRApre-application meetings, either forinitial permits or those up for renewal.Or, some facilities might have routinemeetings scheduled with communitiesas part of Responsible Care or GoodNeighbor agreements.

It is not EPA’s intent in imposing theNIC meeting requirement to createduplicative requirements for publicmeetings. To do so would burden boththe facility and the public. Everyone’stime is valuable, and most people wouldprobably prefer not to go to severalmeetings if one will do. EPA recognizesthis, and would like to clarify thatnothing in today’s rule precludes afacility from combining meetings aslong as the purposes of each are served.EPA sees combining events, particularlypublic involvement activities, as a firststep in moving towards a multi-mediaapproach to environmentalmanagement. Thus, if a facility has tocomplete a class 2 or 3 RCRAmodification because it is located in astate that has not adopted the RCRAstreamlined modification process, EPAwould expect, and fully encourage, thefacility to set up one meeting that wouldserve both the RCRA requirements andthe CAA NIC requirements. The same istrue for combining the NIC meeting witha RCRA pre-application meeting, if thefacility has to host one for either aninitial RCRA permit or because itspermit is up for renewal, or with othertypes of public meetings the facility mayhave scheduled.

A few commenters expressedconcerns about responding to publiccomments on the draft NIC, eitherduring or following the public meeting.They cited time as the driving reason forthis concern; they suggested their timewould be better spent finalizing theirplans for complying than formallyresponding to comments. Onecommenter noted that it was unclear inthe NODA whether the draft NIC wouldbe available prior to the meeting. Inresponse, EPA would like to clarify thatfacilities are not required to formallyrespond to any comments, oral orwritten. However, it is important tokeep in mind that the public mayrequest a copy of the final NIC, and will


be reviewing the facility’s final plans forcoming into compliance. Facilities mustalso submit a summary of the meetingto the permitting agency as part of thefinal NIC, so the permitting agency willbe apprised of the discussions that tookplace. EPA believes that this providesincentive for the facility to address anysignificant issues raised by the public inthe NIC meeting.

EPA expects that the exchangebetween the facility and the communitythat takes place during the meeting willbe much like it is for RCRA pre-application meetings. That is, theAgency intends for the meeting toprovide an open, flexible and informaloccasion for the facility and the publicto discuss various aspects of thefacility’s compliance strategy. TheAgency anticipates that the facility andthe public will share ideas, and build aframework for a solid workingrelationship. The final NIC shouldreflect, to the extent appropriate, ideasor suggestions raised by the public.

The final provisions in § 63.1211clarify that the draft NIC must be madeavailable to the public at least 30 daysbefore the meeting is to take place. Thiswill provide sufficient time for peopleto review the facility’s intendedstrategy. EPA did not prescribe in theregulations the manner in which thedraft NIC must be provided. There is nota ‘‘one-size-fits-all’’ approach to gettinginformation out to the public. It is morelogical to allow the facility to make thatdecision in the context of theirparticular situations. For example, if afacility has an information repositoryestablished, the draft NIC may be madeavailable there. Or they could make itavailable upon request, since the name,phone number, and address of the NICcontact must be in the meeting notice.

5. Relation Between NIC and OtherNotification Requirements

The requirements for the NIC arebeing promulgated in a new subpartapplicable to HWCs in the Part 63 CAAregulations. Several commenters did notbelieve it necessary to add these newrequirements, arguing that existingprovisions under both the CAA andRCRA would fulfill the purpose of theNIC. They cited the initial notificationrequirements in § 63.9(b), thenotifications of compliance status in§ 63.9(h), Title V permit applicationrequirements in § 70.5(c), and RCRApublic involvement requirements in§ 270.42 (permit modificationprocedures).

EPA has reviewed the requirements ineach of these sections, and is notpersuaded that the information or thetiming of the submittals are sufficient to

meet the objectives of the NIC. In termsof the information, the NIC actuallyseems to fall between the initialnotification and the notification ofcompliance status. The informationincluded in the NIC supplements theinitial notification requirements in 40CFR Part 63.9(b). The initial notificationrequirements in § 63.9(b) address basicinformation such as name and addressof the owner and the source, and a briefdescription of the source. The focus ison the source as it exists, not as it mayneed to be modified to meet newstandards. The information in the NICprovides this next step—it focuses onwhat types of changes might have totake place in order to achieve theemission limits set by MACT. The typesof changes may be physical, such asadding or replacing air pollution controldevices, or they may be operational, forexample, achieving lower emissions byminimizing the waste generatedelsewhere that is subsequently used asfuel for the combustor.

The information required in the NICwill enable the public to engage in ameaningful dialogue about the facility’scompliance strategy, including adiscussion of the various options underconsideration. For example, when afacility identifies and describes the typeof control technique(s) beingconsidered, it would be ideal for thefacility to have examined all of thewaste minimization and/or pollutioncontrol options available, includingemission control through processmodification, feed restriction, andpollution control equipment, (e.g., Hgcontrol by production process changes,recovery, segregation, feedraterestriction, carbon injection, carbon bed,wet scrubbing, etc.). The compliancenotification requirements in § 63.9(h),on the other hand, have a differentobjective. They focus not on options forcoming into compliance, but rather onhow compliance will be demonstratedand monitored.

EPA chose not to tie the NICrequirements to the Title V permittingprocess. In terms of timing, the Title Vprocess may not always be appropriate.It is important to keep in mind thatMACT standards set forth in Part 63 areself-implementing; activities associatedwith them often take place outside ofthe permitting process. When MACTstandards are promulgated, sourcesmust begin adhering to the regulations,regardless of where they stand in theTitle V permit process. For example,sources that already have Title Vpermits do not have to reopen themuntil renewal, if they are within 3 yearsof the expiration date. This time frameobviously is too long to meet the goals

of the NIC. In addition, Title V permitscontain all applicable requirements forall sources at a facility. To use the TitleV process just for hazardous wastecombustors is not practical.

The Agency has also determined thatthe information requirements for Title Vapplications do not meet the spirit ofthe NIC. Like the § 63.9(h) compliancenotification requirements, the Title Vinformation does not address options forachieving compliance, particularly withregard to waste minimization andpollution prevention techniques beingconsidered. Of course, the NIC is notintended to be the primary vehicle forwaste minimization or pollutionprevention planning. EPA expects thatthese are ongoing areas of explorationfor facilities. EPA does expect, however,that to the extent these may be used toachieve compliance with the MACTstandards, facilities will investigatethem as viable options and will discussthem as such with the public.

Some commenters suggested thatfacilities having to follow Class 2 or 3RCRA permit modification procedures(e.g., because they are located in statesthat do not adopt the RCRA streamlinedmodification procedures) not berequired to submit a NIC, since publicmeetings are a required step in thoseprocedures. Another suggested thatRCRA interim status facilities not besubject to NIC requirements, becausethey are not ‘‘losing’’ any publicinvolvement in a modification process(since they have no permit to modify).EPA disagrees with these suggestions.The NIC is broader in scope than justfacility modifications that may have tobe incorporated into a RCRA permit orthat may be accomplished by followingthe procedures in 40 CFR 270.72(a) forallowable changes under interim status.The NIC is intended to lay out fordiscussion the source’s overall plan forachieving compliance; this goal isrelevant regardless of whether thefacility is operating under a permit orunder interim status. Facility changesunder RCRA would just be one piece ofthe overall document, and one segmentof the public discussion. As stated inthe previous section, however, there isnothing in today’s rule that precludes afacility having to follow Class 2 or 3permit modification procedures fromcombining the public meeting requiredas part of the modification process withthe public meeting required as part ofthe NIC process. EPA would expect, andfully encourage, a facility in thissituation to set up one meeting thatwould serve both purposes.


D. Discussion of Public Comments andProgress Report

1. OverviewThe Clean Air Act requires the

Administrator to establish a compliancedate or dates for each category orsubcategory of existing sources, whichshall provide for compliance asexpeditiously as practicable, but in noevent later than 3 years after theeffective date of such standard, exceptas provided via a one year extension.CAA section 112(i)(3). EPA believes thatcompliance as expeditiously aspracticable will have numerous benefitsfor human health and the environment.In particular, for those sources that donot intend to ultimately come intocompliance with the emission standardsof this Subpart, expeditious compliancewould be achieved by ceasing to burnhazardous waste. The Agencyanticipates that numerous sources willchoose not to come into compliancewith the requirements of this rule, andwill cease burning hazardous wasteprior to issuance of the rule or at somelater date, but prior to the compliancedate. This section is intended toexpeditiously limit the burning ofhazardous waste by those sources whodo not intend to come into compliancewith the requirements of the emissionstandards of this Subpart, but continueto burn hazardous waste after theeffective date of the emission standardsof this Subpart. These sources are, quitesimply, able to meet the standardsearlier than the three years allowed forsources which will continue to burnhazardous waste. Thus, for this class offacilities, EPA is creating a means ofcompliance ‘‘as expeditiously aspracticable’’ (CAA section 112(i)(3)).

In the April 1996 proposal, theAgency invited comment on howsources could be identified andstrategies that could be used toencourage or require these types ofsources to comply at the earliestpossible date. Several commenterssuggested methods to require sources toidentify their intent to comply or notcomply with the emission standardssoon after the promulgation of the finalrule for these standards. They alsosuggested that those sources that did notintend to come into compliance wouldbe required to stop burning hazardouswaste.

2. Summary of Progress ReportRequirements

The Agency has adopted in the finalrule a variation of the conceptcommenters suggested along the lines ofthe April 1996 concept EPA proposed.The final rule requires those sources

subject to the rule to signify in their NICan intent to comply or not to complywith the requirements of the emissionstandards of this Subpart. Sources whomake the decision not to comply withthe rule must stop burning hazardouswaste on or before two years after theeffective date of the emission standardsof this Subpart. The Agency believesthat two years is an adequate length oftime for these sources to arrange foralternate management of theirhazardous waste through processchanges to minimize the waste, use ofalternate on-site management, or the useof off-site management. Those sourceswho intend to come into compliancewith the emission standards will havethe full three years to come intocompliance as intended by the statute.

The sources who do not intend tocomply with this rule must include intheir NIC a schedule that includes keydates for the steps to be taken to stopburning hazardous waste. Key datesinclude the date for submittal of RCRAclosure documents. The types of closuredocuments that would need to besubmitted will most likely varydepending on the source’s status. Forexample, if a source is in interim status,it may need to submit a closure plan. Ifthe source is permitted, it will probablyneed to update its closure plan (that ispart of the permit); thus, the‘‘document’’ may be a permitmodification request.

a. Submittal. Commenters suggestedthat sources submit progress reports totrack source’s actions towardcompliance. The Agency also believesthat a progress report would be a usefultool to evaluate a source’s progresstoward compliance. In the final rule,EPA requires those sources to submit tothe regulatory authority a progressreport on or before two years after theeffective date of the emission standardsof this Subpart. Any sources burningwaste on and/or after two yearsfollowing the effective date of theemission standards of this Subpart willbe required to submit a progress report.

b. Demonstration. The Agencybelieves that any source which intendsto come into compliance with theemission standards of this Subpart,except for those sources in complianceon the effective date of the emissionstandards of this Subpart, will berequired to make modifications to thesource to come into compliance. Togauge the progress of thesemodifications, the final rule requiressources to submit with their progressreport information demonstrating thatthe source has: (1) Completedengineering design for any physicalmodifications to the source needed to

comply with the emissions standards ofthis Subpart; (2) Submitted applicableconstruction applications to theapplicable regulatory authority; and (3)Entered into a binding contractualcommitment to purchase, fabricate, andinstall any equipment, devices, andancillary structures needed to complywith the emission requirements of thisSubpart. Those sources which fail tomake this demonstration in theirprogress report or who fail to submit aprogress report shall stop burninghazardous waste on or before the datetwo years after the effective date of thisSubpart.

Because the types of modificationsthat sources will have to make areanticipated to require the commitmentof substantial resources, sources arerequired to demonstrate that they haveentered into a binding contractualcommitment to purchase the resourcesnecessary to make those modifications.Some examples of binding contractualcommitments follow; however, EPAmay judge other demonstrationsadequate on a case-by-case basis. Insome cases, EPA will allow evidence ofan in-house construction plan to satisfythe demonstration. If on-site labor byfacility personnel will be used, astatement of commitment must beprovided by upper management, andsuch other evidence of a commitment asis available, such as companymemoranda or annual budgetscommitting funds, purchase orders, orcopies of contracts with any suppliers ofequipment or materials. EPA expectsthat, in most cases, sources will use off-site resources in their modifications. Todemonstrate commitment in these cases,sources must provide copies of bindingcontracts with companies to performtasks or supply equipment that willfacilitate bringing the source intocompliance.

There may be a limited number ofsources who intend to come intocompliance, but will not need toundertake any of the activities identifiedin the demonstration criteria above todo so. These sources are required tosubmit instead documentation: (1)Demonstrating that the source, at thetime of the progress report, is incompliance with the emissionsrequirements; or (2) specifying the stepsthat will be taken to bring the sourceinto compliance, without undertakingany of the activities identified in thedemonstration criteria. The Agencyanticipates that few if any sources willnot need to enter into binding contractsin order to come into compliance withthe emission standards of this Subpart.

Those sources who indicated in theNIC their intent not to comply with the


emission control requirements of thisSubpart must still submit a progressreport. These sources, however, mustonly indicate that they have stoppedburning hazardous waste and havesubmitted the required RCRA closuredocuments.

c. Schedule. To determine thatfacilities are undertaking the stepsnecessary to come into compliance bythe compliance date, the progress reportshall contain a schedule. This schedulemust take into account the key dateslisted in 63.1211(a)(1)(ii) for projectsthat will bring the source intocompliance with the emissionstandards. The schedule must cover thetime frame from the submittal of theprogress report through the compliancedate of the emission standards. EPA isrequiring that the following key dates,as applicable to each source, becontained in their schedule: (1) Bid andaward dates for construction contractsand equipment supply contractors; (2)milestones such as ground breaking,completion of drawings andspecifications, equipment deliveries,intermediate construction completions,and testing; (3) the dates on whichapplications were submitted for orobtained operating and constructionpermits or licenses; (4) the dates bywhich approvals of any permits orlicenses applied for are anticipated; and(5) the projected date by which thesource will be in compliance withemission standards. The Agencyanticipates that many sources will beable to update the schedule includedwith their NIC in submitting a schedulefor the progress report.

d. Sources That Do Not Intend ToComply. The Agency anticipates thatsome facilities, which intended tocomply at the time of their NICsubmittal, may make the determinationnot to comply based on engineeringstudies or evaluations by the time oftheir progress report submittal. Thosesources that signify in their progressreport, submitted on or any time beforetwo years after the effective date of theemission standards of this Subpart, theirintention not to comply with therequirements of this Subpart must stopburning hazardous waste on or beforethe date two years after the effectivedate of the emissions standards of thisSubpart. Sources who, at the time oftheir NIC submittal, have any belief orconcern that they may decide not tocomply with the emission standardsshould consider planning alternatewaste management alternatives well inadvance of the two year stop burningdeadline.

e. Facilities with Multiple Sources.Commenters stated that some facilities

may have multiple units at the same sitesubject to the MACT requirements.These facilities may decide to bring aportion of the sources into complianceand cease burning hazardous waste inthe other portion of their sources. If afacility did decide to upgrade one ormore units, it may be necessary toutilize the remaining unit, in which itintended to stop burning hazardouswaste prior to the compliance date, tohandle the capacity of the unit beingupgraded until the installation ofcontrols was complete. The commentersbelieved that it was unjustified to closea source at the two year deadline in thecase where a source: (1) Was designatedfor closure at or before the three yearcompliance date; and (2) was handlingthe waste from another on-site sourcebeing upgraded to comply with theMACT standards or in order to installsource reduction modificationseliminating the need for furthercombustion of wastes.

The Agency agrees that the intent ofthe requirement for sources that did notintend to comply to stop burninghazardous waste should not apply tothese types of sources. Therefore, therequirement to stop burning hazardouswaste at the two year deadline does notapply to a source if: (1) The source wasdesignated in the NIC as a source thatwould stop burning hazardous waste onor before the compliance date; and (2)the source was shown in the NIC to benecessary to handle the capacity ofanother on-site source while that sourcewas unable to handle the waste andundergoing modifications to come intocompliance with the emission standardsof this Subpart or in order to installsource reduction modificationseliminating the need for furthercombustion of wastes.

E. CertificationTo ensure that information submitted

by a source is true and accurate, all NICand progress reports submitted shallcontain the following certificationsigned and dated by an authorizedrepresentative of the source: ‘‘I certifyunder penalty of law that I havepersonally examined and am familiarwith the information submitted in thisdocument and all attachments and that,based on my inquiry of thoseindividuals immediately responsible forobtaining the information, I believe thatthe information is true, accurate, andcomplete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility offine and imprisonment.’’

An authorized representative shouldbe a responsible corporate officer (for acorporation), a general partner (for a

partnership), the proprietor (of a soleproprietorship), or a principal executiveofficer or ranking elected official (for amunicipality, State, Federal, or otherpublic agency).

F. Extension of the Compliance Date

The CAA provides sources that intendto come into compliance, but because ofthe need to install controls will not meetthe compliance date, the ability torequest an extension of the compliancedate for one year. The Agency believesfacilities that choose to install processchanges (which are essentially pollutionprevention or waste minimizationmeasures) and/or other controls that areappropriate for meeting MACTstandards are eligible to request a oneyear extension of the compliance date toinstall these controls (CAA Section112(i)(3)(B)). Facilities that request anextension to install pollution preventionand/or waste minimization measuresmay use part 63.1216 below, whichdescribes the pollution preventionrelated information to be submitted.Facilities that request an extension forinstalling only end-of-pipe emissioncontrols may use part 63.6(i)(4)requirements. In either case, theextension request shall be filed at leastone year prior to the compliance date ofthis Subpart.

G. Sources Which Become AffectedSources After the Effective Date of ThisSubpart

The Agency is concerned that theremay be sources who become subject tothe emission standards of this Subpartafter the effective date of the emissionstandards of this Subpart. The followingis intended to clarify the requirementsand time frames that must be met bysuch sources. A source which begins toburn hazardous waste after the effectivedate of the emission standards of thisSubpart, therefore becoming an affectedsource, but prior to 9 months after theeffective date of the emission standardsof this Subpart, shall comply with allthe requirements of this section andassociated time frames for publicmeetings and document submittals.

A source which intends to beginburning hazardous waste after 9 monthsafter the effective date of the emissionstandards of this Subpart, thereforebecoming an affected source, shall meetall the requirements concerning the NICand progress report prior to burninghazardous waste. Such sources shallmake a draft NIC available, notice theirpublic meeting, hold their publicmeeting, and submit a final NIC prior toburning hazardous waste. Such sourcesalso shall submit their progress report at


18 Pollution Prevention 1997, A National ProgressReport (June, 1997). U.S. Environmental ProtectionAgency, EPA 742–R–97–00, Washington, D.C.

the time of the submittal of their finalNIC.

VI. Waste Minimization and PollutionPrevention

A. OverviewPollution prevention is widely

recognized as the most preferable formof environmental management. Indeed,the Clean Air Act, the PollutionPrevention Act, and the ResourceConservation and Recovery Actexplicitly make pollution prevention thepreferred tool in our nation’senvironmental management toolbox.The States have been strong leaders aswell in moving pollution prevention tothe forefront. Over the past decade, 30states have passed legislation thatpromotes pollution prevention.18 ThoseStates have embarked on a variety ofprograms that move pollutionprevention more into the mainstream oftheir environmental managementstrategies—ranging from pollutionprevention based permits andinspections, to mandatory pollutionprevention planning programs, tovoluntary partnerships and technicalassistance. Nearly every State operatessome form of pollution preventiontechnical assistance program to helpcompanies reduce as much waste aspossible at the source.

EPA has embarked on severalexperimental programs, including, forexample, Project XL and the CommonSense Initiative, to identify barriers inFederal regulations that impede cleaner,cheaper, smarter environmentalsolutions, and to demonstrate ways ofredrafting regulations to provide greaterflexibility in solving environmentalproblems.

In 1994, EPA began an extensiveoutreach effort to begin identifyingpollution prevention barriers andincentives affecting hazardous wastecombustion. Over the course of the pastfour years, EPA has worked extensivelywith the States, industry, environmentalgroups, and citizens, in many dozens ofdiscussions and correspondences toexplore a broad range of approaches topollution prevention in the combustionarena. Today’s rulemaking puts in placeseveral incentive based pollutionprevention and waste minimizationincentives that derive from that longterm effort, and that will provide theregulated community with additionalflexibility to use pollution preventiontechnologies where it makes sense to doso. Some barriers were identified thatare not easily solvable within the limits

of the Clean Air Act, such as time limitson compliance that sometimes forcecompanies to install end-of-pipeemission controls, instead of pollutionprevention process changes, becausethey are faster and less risky to install.Nevertheless, today’s rule suggests anapproach that can address even thisproblem.

Today’s rule contains incentives thatprovides the regulated community:—several months of planning time

before the MACT compliance periodbegins to explore cost effectivepollution prevention alternatives thatmight reduce the cost of hazardouswaste combustion,

—the opportunity to extend thecompliance period by one year wherethe additional time is needed toinstall pollution prevention controlsthat reduce the amount of hazardouswaste entering combustion units, and

—the opportunity to engender publicsupport on pollution preventionalternatives that reduce the amount ofwaste that will be combusted.The six pollution prevention

alternatives EPA published forcomment, the comments received and adescription of the incentives containedin today’s rule are discussed furtherbelow.

B. Background

The goals of the Clean Air Act clearlyexpress Congress’ intent to use pollutionprevention as a fundamental tool forprotecting our nation’s air resources:

‘‘A primary goal of this chapter is toencourage or otherwise promotereasonable Federal, State, and localgovernment actions, consistent with theprovisions of this chapter, for pollutionprevention.’’ (Clean Air Act, Section 101(c)).’’

‘‘Air pollution prevention (that is, thereduction or elimination , through anymeasures, of the amount of pollutantsproduced or created at the source)* * * is the primary responsibility ofStates and local governments.’’ (CleanAir Act, Section 101 (a)(3)).’’

Congress’ intent in the CAA isconsistent, if not identical, to thepolicies set in the Pollution PreventionAct of 1990 (PPA) and the Hazardousand Solid Waste Amendments to RCRAof 1984, RCRA Section 1003(b) andSection 6602 (a).

More specifically, we note thedefinition of pollution prevention asused in the CAA is best captured in theoperational definition used in Section112 (d)(2). This section requires EPA toconsider pollution preventiontechniques in addition to ‘‘end of pipe’’emission controls and other methods in

the setting of MACT standards.Pollution prevention is used here toinclude: ‘‘measures, processes, methods,systems, or techniques including, butnot limited to, measures which * * *(A) reduce the volume of, or eliminateemissions of, such pollutants throughprocess changes, substitutions ofmaterials or other modifications, * * *or (D) are design, equipment, workpractice, or operational standards(including requirements for operatortraining or certification) * * *’’

To avoid some of the historicalconfusion that has occurred over thedefinitions of pollution prevention andwaste minimization, it is useful tocompare the CAA definition to those inthe PPA and in the Hazardous and SolidWaste Amendments to RCRA of 1984.

The PPA (at Section 6603(5)(A))defines pollution prevention as sourcereduction activities, which includes anypractice that reduces the amount ofhazardous substance, pollutant orcontaminant entering a waste stream, orotherwise prior to recycling, treatmentor disposal. It includes such activitiesas: equipment or technologymodifications, reformulation or redesignof products, substitution of rawmaterials, improvements in workpractices, maintenance, training, andinventory control. The meaningcontained in the PPA is essentially thesame meaning referred to in Section112(d)(2) of the CAA. Both focus onreducing waste generation at the sourceby making changes in the way things aremanufactured.

The PPA excludes from pollutionprevention any practice which ‘‘altersthe physical, chemical, or biologicalcharacteristics or the volume of ahazardous substance, pollutant, orcontaminant through a process oractivity which itself is not integral toand necessary for the production of aproduct or the providing of a service.’’(Section 6603(5)(B). In essence, thisdefinition excludes waste management,recycling (except for closed looprecycling that is integrated intoproduction processes), burning forenergy recovery, waste treatment, anddisposal.

Since many of the facilities affectedby today’s rulemaking aresimultaneously regulated by RCRA, it isimportant to also explain the use of theterm waste minimization, under RCRA.

Waste minimization includespollution prevention (or sourcereduction) and environmentally soundrecycling, i.e., recycling that does notconstitute disposal (see 40 CFR261.1(c)). It does not includetreatment—i.e, any ‘‘method, technique,or process, including neutralization,


designed to change the physical,chemical or biological character orcomposition of any hazardous waste soas to neutralize such waste, or so as torecover energy or material resourcesfrom the waste, or so as to render suchwaste non-hazardous, or less hazardous;safer to transport, store or dispose of; oramenable for recovery, amenable forstorage, or reduced in volume.’’ (40 CFR260.10). RCRA also containsrequirements for hazardous wastegenerators and permitted wastemanagement facilities to make routinecertifications that they have a ‘‘wasteminimization program in place,’’ andlarge generators must also report wasteminimization activities biennially.

The environmental literature andpublic statements of many companiesprovide strong evidence of the potentialbenefits to industry and theenvironment that result from usingpollution prevention over wastegeneration and management. Forexample, pollution preventiontechniques can help companies reducethe amount of raw materials purchasedand the amount of waste generated.These reductions can reduce the amountspent on waste management and canalso reduce worker exposure tohazardous substances. Pollutionprevention can help companies improveproduct yield and find ways to recovermaterials that might otherwise bedestroyed or landfilled.

The literature also points to barriersthat may impede a company’s ability topursue pollution prevention. Barriersmay include, for example: little or noaccess to technical information onpollution prevention technologies,concern over the impact of processchanges on product quality, a lack ofaccess to capital, requirements inexisting environmental regulations thatconflict with pollution preventionobjectives.

Today’s regulation focuses onreducing several potential regulatorybarriers that could interfere withpollution prevention solutions. Theincentive based approach contained intoday’s rule is explained further below.

C. Summary of Proposed PollutionPrevention/Waste MinimizationIncentives and Comments Received

EPA requested comment on sixalternatives for promoting pollutionprevention and waste minimization athazardous waste incinerators, cementkilns and LWAKs. Three were proposedin the Agency’s April 1996 NPRM andthree were proposed in the Agency’sNotice of Data Availability (NODA)published in the Federal Register onMay 2, 1997 (Revised Technical

Standards for Hazardous WasteCombustion Facilities; Proposed Rule,62 FR 24241). All six incentive basedalternatives were designed to promotethe identification and installation ofpollution prevention and wasteminimization techniques that reduce oreliminate the amount and/or toxicity ofhazardous wastes entering combustionfeedstreams, either as an alternative toend-of-pipe combustion measures, or incombination with combustion measures,to meet MACT standards.

Two of the six alternatives proposedfocused on using waste minimizationfacility planning as a tool that wouldcause regulated facilities to identifypollution prevention/wasteminimization measures that could beused to reduce the amount and/or thetoxicity of hazardous wastes enteringcombustion feedstreams. Twoadditional alternatives focused onextending compliance deadlines toallow additional time for companies tofully explore pollution prevention/waste minimization measures andcombustion measures that may benecessary to meet MACT standards. Afifth alternative requested comment onan approach that would harness thepower of public involvement during theinitial stage of corporate complianceplanning. The sixth alternativeproposed promulgating pollutionprevention and waste minimizationincentives several months before theMACT standards are promulgated—which would provide companies severalmonths of advance planning time beforethe MACT compliance period begins.The alternatives were not designed to beexclusive. Today’s rule promulgates acombination of three of these options,encourages States to adopt two others,and recommends an alternativevoluntary approach for the sixth. Theoptions, comments received and EPA’sresponse to major comments arediscussed below. EPA’s response toeach comment is contained in thedocket.

EPA received over 40 comments onthe options contained in the April 1996NPRM and the NODA. Most of thecommenters addressed one or more ofthe following topics:—Time-based incentives, including the

opportunity to enter into enforcementagreements beyond four years,

—The effectiveness of pollutionprevention planning and planningcriteria,

—Perceived effectiveness of pollutionprevention in the context of thisrulemaking,

—Setting MACT standards based onpollution prevention/wasteminimization,

—Public review of pollution preventionand waste minimization,

—The role of pollution prevention andwaste minimization in wastemanagement,

—The definition of pollution preventionand waste minimization, and

—Applicability of pollution preventionincentives to commercial facilities.EPA asked for comments on the

appropriateness of two optionsrequiring pollution prevention/wasteminimization facility planning. Oneoption would require facilities tocomplete a waste minimization facilityplan that identifies alternatives forreducing the amount of hazardous wastemanaged by combustion. While thisapproach would not require facilities toselect any particular pollutionprevention technology, it presumes thatgoing through the process of exploringalternatives would cause a company toconsider more pollution preventionoptions than they would have otherwiseand select any that are cost-effective.

In the second waste minimizationplanning option, EPA proposed to allowStates and EPA Regions (in cases whereStates are do not have an approved CAATitle V program) to require pollutionprevention planning on a case-by-casebasis. Determining which facilitiesshould be required to complete apollution prevention/wasteminimization facility plan could takeinto account several factors, including,for example, whether an existing stateprogram had already accomplished thisobjective, the extent to which thisrequirement may be too burdensome forsome states, and the extent to whichfacility specific conditions indicateemissions could be controlled by feedstream management and wasteminimization at the source.

A variety of commenters addressedthis issue. Four states and one stateassociation commented pollutionprevention/waste minimization shouldbe the highest priority wastemanagement approach, though they haddiverse and sometimes conflictingopinions about the specific optionsproposed. One State commented thatmandatory planning should be requiredfor all facilities that generate andcombust waste on-site, and thatplanning should be required on a case-by-case basis for commercial off-sitecombustion facilities. One State and theState association stated that themandatory planning requirement shouldbe expanded to include all facilities thatgenerate waste managed by combustion.A fourth State said that no wasteminimization incentives should beincluded in this rule because the


19 ‘‘Facility Pollution Prevention PlanningRequirements: An Overview of State ProgramEvaluations,’’ National Pollution Prevention Roundtable (August 8, 1997), Washington, D.C. 20036.

20 Aucott, M., Wachspress, D., & Herb J., (May,1996). ‘‘Industrial Pollution Prevention in NewJersey,’’ New Jersey Department of EnvironmentalProtection, Trenton, N.J.

21 ‘‘Waste Minimization Prioritization Tool,Version 1.0: User’s Guide and SystemDocumentation,’’ (EPA 530–R–97–019, June, 1997).U.S. Environmental Protection Agency,Washington, D.C.

regulated community has had manyyears to reduce waste generationthrough pollution prevention/ wasteminimization, and should have alreadyconsidered waste minimization as anapproach to compliance. One state didnot comment specifically on thepollution prevention planning optionsbut was in favor of encouragingpollution prevention incentives in thisrule.

This diversity of opinion amongStates leads EPA to believe that thepollution prevention/wasteminimization incentives contained inthis rule must allow broad flexibility forState programs. EPA is also aware, fromdiscussions outside the context of thisrulemaking, that some states arespecifically opposed to mandatorypollution prevention requirements, anda few states have not yet establishedpollution prevention programs.

Several dozen comments werereceived from industry. Most of thecomments from companies whogenerate and combust waste on-sitewere in favor of pollution prevention/waste minimization as the mostdesirable form of waste management.However, most were opposed or silentregarding required pollution preventionplanning. Only one argued thatmandatory pollution preventionplanning is not appropriate, and that thecase by case option provides greaterflexibility and is therefore moreappropriate.

Commercial combustion facilitiesgenerally oppose pollution preventionplanning requirements because theyhave virtually no control over whattypes or how much waste theircustomers generate for combustion.However, one company argued stronglyfor the Agency to require mandatorypollution prevention planning by allregulated units to identify pollutionprevention alternatives that eliminate orreduce the amount and toxicity ofcombusted wastes. The commenterfurther argued that pollution preventionshould be used to leverage the closingof combustion units where wastes couldmore effectively be eliminated orreduced. Another commercial companybelieves EPA should implement ‘‘goodactor’’ incentives for companies thateducate their customers regardingavailable waste minimization resources.Such incentives could include reducedinspection frequencies, reducedperformance testing, and a recognitionprogram. This approach was notsuggested by any other commenters.EPA believes this approach might beappropriate for further exploration at alater time. One Federal agency

commented in favor of a case-by-caseapproach.

EPA considered several factorsregarding this approach. First, the CAAclearly envisions States as the primaryimplementers of the Title V program,and the pollution prevention programsoperated by the States are clearlydiverse. While 15 States have enactedmandatory pollution preventionplanning programs, the remaining Statescontinue to emphasize voluntarypollution prevention programs andtechnical assistance to encouragepollution prevention.

Available data shows that mandatorypollution prevention planning can be aneffective State tool. It is not clear howeffective this approach would be for abroad array of states. In a review ofseven states that have chosen toimplement mandatory pollutionprevention planning programs, theNational Pollution Roundtableconcludes that mandatory pollutionprevention planning produces beneficialresults for the regulated community andthe environment, and encourages otherstates to consider this direction.19

However, New Jersey (one of the sevenStates reviewed) notes in a separatereport that its companies began makingsignificant reductions through pollutionprevention well before the State passedlegislation requiring mandatorypollution prevention planning. In thiscase, the State is not able to pinpointwhy this occurred.20

Of the 21 commercial hazardouswaste incinerators and the 141 on-sitehazardous waste incinerators (i.e.,incinerators co-located with a companymanufacturing facilities), 58 percent arelocated in states which have legislatedpollution prevention programs alreadyin place. Nearly all of the remainingfacilities are located in States thatprovide pollution prevention technicalassistance. In addition, all of thesefacilities are co-regulated by RCRA andhave been required since 1984 to certifyon an annual basis, that they have awaste minimization program in place.Therefore, it is not clear what additionalpollution prevention benefits wouldresult from a mandatory requirement.Based on its analysis, EPA believes thata federal requirement for pollutionprevention planning is not appropriate.

EPA also considered the impactFederal pollution prevention planning

requirements would have on theAgency’s paperwork reductioncommitments. EPA is committed todecreasing its information collectionrequest budget. In light of the baselinerequirements and voluntary programsStates have already established in thisarea, EPA concludes this requirementwould increase federal paperworkwithout necessarily creating acommensurate improvement inenvironmental quality.

EPA has also expanded theavailability of voluntary pollutionprevention incentives available—whichin turn reduce the need for mandatoryfederal pollution preventionrequirements. For example, EPA hasrecently released the ‘‘WasteMinimization Prioritization Tool.’’ 21

This tool is an easy-to-use computerprogram that allows industrial,government and public users to quicklyidentify their highest hazard wastes astargets for pollution prevention efforts.The tool allows the user to enterinformation on particular waste streamsand develop a screening-levelassessment of chemicals based on theirpersistence, bioaccumulation potential,and human and ecological toxicity. Thesystem ranks about 900 chemicals thathave ‘‘complete’’ data on chemicalpersistence, bioaccumulation potential,and human and ecological toxicity, andit includes partial data for 3,800 others.This tool has received much review andis targeted for widespread distributionin the regulated community.

EPA continues to provide $5–$8million dollars per year in grant fundsto States that develop innovativepollution prevention approaches, andEPA is promoting pollution preventioninnovation in States through theNational Environmental PerformancePartnership System (NEPPS). NEPPSagreements give the States flexibility tocombine individual program grants tomaximize achieve environmental goals,including using funds for pollutionprevention that have historically beenused for end-of-pipe pollution controls.Texas, New Jersey, and Ohio (whichoversee a total of 45 hazardous wasteincinerators) are among the states thatsigned NEPPS agreements in 1996.Thirty states were scheduled tonegotiate NEPPS agreements in 1997.

In addition, a variety of government-industry partnerships are producingpollution prevention results. Forexample, 163 industry members ofTexas’ Clean Industries 2000 program


are committed to reducing emissions ofToxic Release Inventory (TRI) chemicalsby 50 percent by the year 2000. Atwenty-nine percent reduction wasreached by the year 1994.

Balancing all of the above factors,EPA believes mandatory and case-by-case pollution prevention planningapproaches are not necessary to achievethe pollution prevention goals of theCAA. A combination of strongincentives and broad flexibility forStates and the regulated community,including some of the options discussedbelow and contained in today’s rule,will accomplish the pollutionprevention goals of the CAA.

Two options were proposed thatwould allow the MACT complianceperiod to be extended for facilities thatdemonstrate the need for extra time toinstall pollution prevention measures.One of these options would allowfacilities to apply for a one-yearcompliance extension to the MACTcompliance period under Section112(i)(3)(B) where additional time isneeded to install pollution preventionor waste minimization measures thatreduce or eliminate hazardous wastesentering the combustion feedstreams ofregulated facilities. Of course, suchapplications must still be evaluated ona case-by-case basis CAA 112(b)(3).However, the following discussionprovides an indication of how EPAmight evaluate such applications basedon pollution prevention.

Facilities that apply for this one-yearextension would be required to providea description of the pollutionprevention/waste minimizationmeasures that would significantlyreduce or eliminate the volume and/ortoxicity of hazardous wastes enteringcombustion feedstreams, a reductiongoal (i.e., how much waste will nolonger enter combustion feedstreams ofthe regulated unit(s)), a discussion ofadditional combustion or othertreatment technology that will beinstalled to meet MACT standards, anda schedule of milestones necessary toachieve compliance. The pollutionprevention/waste minimizationmeasures installed could be used eitheralone to meet MACT standards (e.g., incases where elimination of certaincombusted waste streams will eitherachieve MACT standards for theregulated unit(s), or will eliminate theneed for the regulated unit(s)), or incombination with combustion or othertreatment technologies that enable thefacility to comply with MACTstandards. We emphasize thatidentifying expected reductions incombustion feedstreams is required, butidentifying reductions in emissions as a

result of installing pollution preventionmeasures is not required. EPArecognizes this would not be practical.The compliance date for facilities thatare granted a one year extension by thepermitting agency would be four yearsafter the promulgation of MACTstandards, rather than three years afterthe date of promulgation.

EPA recognized in its proposal thatStates operate very diverse pollutionprevention programs. However, toensure some degree of consistency ingranting one year extensions, EPAproposed four flexible factors to beconsidered in approving or denyingrequests for one-year complianceextensions for hazardous waste burningincinerators, LWAKs, and cement kilns.These factors included: (1) The extent towhich the process changes (includingwaste minimization measures) proposedas a basis for the extension reduce oreliminate hazardous wastes enteringcombustion feed streams and aretechnologically and economicallyfeasible, (2) whether the magnitude ofthe reductions in hazardous wastesentering combustion feed streamsthrough process changes are significantenough to warrant granting anextension, (3) a clear demonstration thatreductions of hazardous wastes enteringcombustion feed streams are not shiftedas increases in pollutants emittedthrough other regulated media, and (4)a demonstration that the design andinstallation of process changes, whichinclude waste minimization measures,and other measures that are necessaryfor compliance cannot otherwise beinstalled within the three yearcompliance period.

EPA received no adverse commentson the four factors for ensuringconsistency. Companies that operate on-site units (many of which are largechemical plants which operate complexproduction processes and whichgenerate diverse and complex wastestreams) commented that they prefer touse pollution prevention and wasteminimization measures wherever theyare cost effective. However, in theinstant rulemaking, the dual tasks ofdesigning, testing and installingpollution prevention process changesand combustion or other treatmentequipment is not practical in a threeyear compliance period plus a one-yearextension. Some commented thatmeeting the compliance date may oftenforce companies to install combustioncontrols at great expense and foregoexploration of pollution preventionoptions.

The four states and one Stateassociation that commented on thecompliance extension options had

diverse opinions. Two statescommented that pollution prevention/waste minimization should beencouraged in this rulemaking.However, they believe three years plusa one-year extension may not be enoughtime for companies to identify andinstall waste minimization measures. Athird State said that pollutionprevention/waste minimizationincentives should not be included inthis rule because companies have hadmore than ample time to pursuepollution prevention/wasteminimization as an approach tocompliance. A fourth State and Stateassociation commented that facilitieshave had ample time to identify andinstall pollution prevention solutions—however, one year complianceextensions should be considered incases where it will promote furtherpollution prevention.

Two commercial hazardous wastetreatment organizations commented thata one-year extension for pollutionprevention/waste minimizationpurposes is not appropriate since thecompanies generating the waste havehad several years to consider pollutionprevention and waste minimizationmeasures as a waste managementalternative.

EPA believes that complianceextensions provide a strong incentivefor pollution prevention, and provideStates additional flexibility. EPA agreesthat, in some cases, three years plus aone-year extension may not be sufficienttime to identify and install wasteminimization measures that achievecompliance. However, the one yearextension is the maximum allowableunder the CAA. EPA disagrees with thecommenters opposing the extensionbecause pollution prevention and wasteminimization should be viewed as anon-going process that adopts newpollution prevention technologies asthey become available. In some cases,the economics of complying with newMACT standards may make pollutionprevention more cost-effective than itwould have otherwise been.

In today’s rule, EPA has chosen toimplement the one-year complianceextension approach. In evaluatingextension requests, EPA urgespermitting agencies to give firstpreference to facilities that request theextra time to install pollutionprevention measures (either alone or inaddition to combustion controls) overfacilities that request an extension onlyfor installing combustion controls. EPAhas also simplified the factors that mustbe considered by permitting agencies inmaking determinations for one yearextensions by making them identical to


the factors facilities must include inrequests for extensions.

In its 1997 NODA, EPA encouragedfacilities that wish to apply for a one-year extension to coordinate thedevelopment the application forextension with the informationcontained in Notice of Intent to Comply(NIC), which is also described in today’srulemaking. Based on the commentsreceived from industry and Statesnoting the need for extra time toconsider and then install pollutionprevention measures, EPA would expectto see a reasonable degree of consistencybetween pollution preventionalternatives discussed in the NIC andpollution prevention technologiesidentified in a subsequent request for aone year extension to install pollutionprevention technologies. Requests for aone-year compliance extension fromfacilities who did not address pollutionprevention in the NIC should be viewedwith caution to guard against lastminute attempts to delay compliance.

The second compliance extensionoption, proposed in the 1997 NODA,would allow certain facilities to enterinto a written consent agreement orconsent order in cases where pollutionprevention/waste minimizationtechnologies would significantly reducewastes entering combustion feedstreams, but would take more than fouryears (i.e., three years plus a one-yearextension). EPA could use thisalternative using the principlesarticulated in the Agency’s ‘‘Policy onEncouraging Self-Policing andVoluntary Correction’’ (also known asthe ‘‘Audit Policy’’ 60 FR 66706,December 22, 1995).

Very few commenters addressed thisoption. Some industry commentersexpressed limited interest in thisapproach, since entering into a consentagreement would provide no shieldagainst citizen suits.

EPA agrees that longer than four yearsmay be needed in some cases. However,based on the comments received andafter further evaluation, the Agency hasdecided not to pursue this proposal aspart of this rulemaking. Instead, EPAbelieves its Project XL program providesa better opportunity for EPA to workwith companies who are interested inundertaking projects which hold thepromise of superior environmentalresults in exchange for regulatoryflexibility. The XL program is alsodesigned to include public involvementearly in the process, which wouldhopefully reduce the likelihood ofcitizen suits. Project XL proposalsshould be developed and submittedwell in advance of the deadline formeeting this MACT standard, possibly

before the promulgation of MACTstandards. See the May 22, 1995 FederalRegister Notice [FRL–5197–9] forfurther information on developing andsubmitting a proposal.

EPA proposed a fifth pollutionprevention/waste minimizationincentive in the 1997 NODA whichfocused on harnessing the power ofpublic involvement to encouragecompanies to consider pollutionprevention alternatives. The NODAproposed to require facilities to makepublic, within ten months afterpromulgation of the MACT standards, adraft Notice of Intent to Comply (NIC)that contains a description oftechnologies that will be used to achievecompliance with MACT standards,including pollution prevention andwaste minimization technologies.Regulated facilities would also berequired to hold a public meeting on itscompliance plan and to submit a finalNIC to the permitting agency no laterthan one year after the promulgation ofstandards. In this setting, the publicwould be able to review a company’sdraft compliance plan and make knownits concerns and views regarding the useof pollution prevention, combustion orother treatment methods.

Several commenters responded to thepollution prevention/wasteminimization components of the NICproposal. One industry tradeorganization commented that the NICrequirements are unnecessary since itsmembers already participate in aresponsible care program that includespollution prevention and communityinvolvement. Another commenterargued strongly that the publicinvolvement opportunity provided bythe NIC process is inadequate, and thatthe point at which the public interactswith the facility is too late to influencedecisions to encourage the installationof pollution prevention technology thatmay reduce or eliminate the need forcombustion.

It is crucial to provide the public withinformation and a public meeting on thepollution prevention/wasteminimization and combustion measuresthat are planned at individual facilities.The NIC process occurs early enough inthe compliance process to providemeaningful public involvement, and theNIC process provides a strong lever forcitizens to voice their opinions. Thepollution prevention aspects of the NICrequirements are further discussed inthe NIC portion of today’s preamble.

The sixth pollution prevention/wasteminimization option proposed involvedpromulgating a ‘‘fast track’’ rule inadvance of MACT standards to providethe regulated community time to

explore, plan and possibly beginimplementation of pollution preventionand waste minimization measuresseveral months before the promulgationof MACT standards.

One commenter strongly urged thisoption because it provides facilitieswith additional planning time toidentify pollution prevention optionsbefore the MACT compliance periodbegins. Although no other commentersspecifically addressed this option, EPAbelieves it provides States additionalflexibility, and comports with thevariety of comments that expressedgeneral support for pollution preventionas a top priority environmentalmanagement strategy.

D. Waste Minimization IncentivesContained in Today’s Rule

Today’s rulemaking provides threeincentives to encourage the use ofpollution prevention measures to reduceor amount and/or toxicity of hazardouswastes entering combustionfeedstreams. Wastes that cannot bereduced at the source should berecycled in an environmentally soundmanner, i.e., in a manner that does notconstitute disposal. Wastes that cannotbe reduced at the source or recycledshould be either burned for energyrecovery, treated, or disposed inaccordance with environmentalstandards. Today’s incentive basedapproach encourages and rewardsfacilities that significantly reduce theamount of combusted hazardous wasteusing pollution prevention measures asa method for achieving MACTstandards, and it provides the flexibilityneeded by the States to build on orexpand existing pollution preventionprograms.

Today’s rule (at Section 63.1216)allows owners/operators of hazardouswaste burning incinerators, cementkilns and lightweight aggregate kilns torequest a one-year extension to theMACT compliance period in caseswhere additional time is needed toinstall pollution prevention and wasteminimization measures that reduce theamount of hazardous waste enteringcombustion feedstreams. TheAdministrator or State with an approvedTitle V program is authorized to grantone-year extensions for this purposeunder Section 112(i)(3)(B) of the CAA.Pollution prevention and wasteminimization measures that can beconsidered in this determinationinclude: process changes (includingclosed loop recycling), raw materialsubstitutions, design changes,equipment changes, work practicechanges, changes in operationalstandards or other similar measures that


EPA or State permitting agencies maydetermine is pollution prevention orwaste minimization. Wasteminimization activities that may beconsidered for an extension includepollution prevention activities andrecycling measures, as defined in 40CFR 261.1(c) and conducted inaccordance with RCRA regulations.

The term recycling, as defined indefined in 40 CFR 260.10 does notinclude burning for energy recovery ortreatment activities. Therefore, burningfor energy recovery will not beconsidered for an extension. Companieswho burn for energy recovery arepresumed, in accordance with theirRCRA waste minimization program inplace certification (discussed above), tohave determined that wastes burned forenergy recovery could not beeconomically source reduced orrecycled prior to burning. EPA believesthis approach is completely consistentwith past Agency policy and providesthe regulated community with greaterflexibility in managing its non-productoutputs.

Requests for a one-year extensionmust reasonably document that thewaste minimization measures, andwhatever additional compliancemeasures are necessary to achievecompliance, could not otherwise beinstalled in time to meet the three-yearcompliance period. Strongerconsideration should be given torequests that contain, for example: (1) Aschedule to redesign a productionprocess that eliminates the use ofsolvents and the generation of spentsolvents (which are currentlycombusted in an on-site hazardouswaste incinerator), (2) a commitment toreduce by 25% the amount of hazardouswastes entering the incineratorfeedstream (as a result of the wasteminimization process change), (3) adescription and schedule for designingand installing combustion controls totreat remaining wastes, and (4) evidencethat the extension reflects the realitythat the design specs and schedule forthe remaining combustion controls cannot be completed or installed withoutfirst having information on wasteminimization related feedstreamchanges. In contrast, requests thatpropose to simply send wastes off-sitefor recycling, for example, without firstexploring on-site process changes oroperating practices, should receive littleor no consideration for an extensionbecause there is nothing in this actionthat would require extensive time.

Decisions to grant one-year extensionswill be made by EPA or state programsthat have delegated the authority toimplement and enforce the emission

standard for that source. In light of thewide range of approaches States employregarding waste minimization planning,it is appropriate to encourage somedegree of consistency in how thesedecisions are made, withoutsuperseding State approaches.Therefore, EPA is requiring thatpermitting agencies must consider all ofthe information required in Section63.1216 in approving or denyingrequests for one-year complianceextensions for hazardous waste burningincinerators, LWAKs, and cement kilns.EPA will also work with States todevelop separate guidance, withexamples, of how to review requests foran extension, based on pollutionprevention/waste minimization efforts.

The second pollution prevention/waste minimization incentivepromulgated in today’s rule is therequirement for regulated facilities toinclude in their Notice of Intent toComply (NIC) a description of pollutionprevention and waste minimizationactivities proposed to reduce theamount and/or toxicity of hazardouswaste entering the facility’s combustionfeedstream(s). This approach willharness the power of publicinvolvement, through the NIC reviewand public meeting process, toencourage facilities to considerpollution prevention measures in theirMACT compliance plan. Therequirements for the NIC process aredescribed in today’s preamble.

It is important to note here thatcompanies should considercoordinating the development of a NICprocess with any subsequent requestsfor a one year extension. For example,it would seem logical that pollutionprevention measures identified in theNIC (prepared in the first year of thecompliance period), would also appearin a subsequent request for a one yearextension (prepared in the second yearof the compliance period). In contrast,requests for a one year extension fromcompanies that did not considerpollution prevention in their NIC mightbe looked at with more caution.

As a third pollution preventionincentive, EPA is promulgating today’srule several months in advance ofpromulgating MACT standards toprovide companies with severalvaluable months of advance planningtime to identify waste minimizationmeasures can be used to meet, or assistin meeting MACT standards. The timingof today’s rule, therefore, serves as avaluable pollution prevention incentive.

Taken together, the tailored incentivescontained in today’s rule provide strongencouragement for regulated companiesto pursue cost effective pollution

prevention and waste minimizationmeasures in their individual approachesto meeting MACT standards.

As a final note, a substantial amountof free technical information, assistanceand guidance on pollution preventionand waste minimization is availablefrom the Federal government and States,and from a variety of private sources.EPA’s ‘‘Pollution Prevention FacilityPlanning Guide’’ (May, 1992; NTIS #PB92–213206) describes the series ofanalytical steps that are often used bycompanies to identify wasteminimization measures. Additional EPAreferences include: ‘‘WasteMinimization Opportunity AssessmentManual (EPA 625/7–88/003, July 1988),Interim Final ‘‘Guidance to HazardousWaste Generators on the Elements of aWaste Minimization Program InPlace,’’(May 1993), ‘‘An Introduction toEnvironmental Accounting As aBusiness Management Tool’’ (EPA 742–R–95–001, June 1995), the ‘‘P2/FinanceUser’s Manual: Pollution PreventionFinancial Analysis and Cost EvaluationSystem for Lotus 1–2–3 (EPA 742–B–94–003, January 1994), andEnviro$ense, an electronic library ofinformation on pollution prevention,technical assistance, and environmentalcompliance. Many of these and otherdocuments can be accessed bycontacting the RCRA Hotline toll-free at1–800–424–9346. Enviro$ense can beaccessed by contacting a systemoperator at (703) 908–2007, or on theInternet at http://wastenot.inel.gov/enviro-sense. Information on State wasteminimization programs can be obtainedthrough Enviro$ense, directly from theState pollution prevention programoffices, or from the National PollutionPrevention Roundtable at E-mailaddress [email protected],by phone at 202–466–7272 inWashington, D.C.

VII. State Authority

A. RCRA State AuthorizationUnder RCRA section 3006, EPA may

authorize a State to administer andenforce the RCRA hazardous wasteprogram. See 40 CFR part 271. Afterreceiving authorization, the Stateadministers the program in lieu of theFederal government, although EPAretains enforcement authority underRCRA sections 3008, 3013, and 7003.Because the new Federal requirementsin today’s final rule are promulgatedunder non-HSWA authority, they arenot Federally enforceable in anauthorized State until the State hasadopted equivalent (or more stringent)standards under its authorized laws andregulations, and those changes have


been approved by EPA. See RCRAsection 3006, 42 U.S.C. 6926. Thus,upon their effective date, theserequirements will be applicable only inthose States that do not haveauthorization.

It should be noted that authorizedStates are only required to modify theirprograms when EPA promulgatesFederal standards that are morestringent or broader in scope thanexisting Federal standards. RCRAsection 3009 allows States to imposestandards that are more stringent thanthose in the Federal program (see also40 CFR 271.1(i)(1)). Thus, for thoseFederal changes that are less stringent,or reduce the scope of the Federalprogram, States are not required tomodify their programs. The revisions tothe Federal RCRA Subtitle C programthat are promulgated today areconsidered to be less stringent than theexisting Federal regulations. However,EPA believes that their adoption byStates will greatly enhance theimplementation of the upcoming MACTstandards, and ease the permittingburden on the States. Thus, EPAstrongly urges States to adopt all aspectsof today’s final rule as quickly as theirlegislative and regulatory processes willallow.

B. Program Delegation Under the CleanAir Act

Today’s final rule adds notificationprocedures for hazardous wastecombustors under Title III. Specifically,today’s rule requires sources to provideto the permitting agency a Notificationof Intent to Comply (NIC) within a yearfollowing promulgation of newemissions standards in 40 CFR part 63Subpart EEE, and a Progress Reportwithin two years. As part of the processof developing a NIC, the source is alsorequired to conduct additional publicinvolvement activities, in particular aninformal meeting with the community.Section 112(l) of the Clean Air Actallows EPA to approve State rules orprograms for the implementation andenforcement of emission standards andother requirements for air pollutantssubject to section 112. Under thisauthority, EPA has developeddelegation procedures and requirementslocated at 40 CFR Part 63, Subpart E, forNESHAPS under Title III of the CAA(See 57 FR 32250, July 21, 1992).

Submission of rules or programs byStates under 40 CFR Part 63 isvoluntary. Once a State receivesapproval from EPA for a standard undersection 112(l) of the CAA, the State isdelegated the authority to implementand enforce the approved State rules orprograms in lieu of the otherwise

applicable federal rules (the approvedState standard would be federallyenforceable). States may also apply fora partial Title III program, such that theState is not required to adopt all rulespromulgated in 40 CFR Part 63. EPAwill administer any rules federallypromulgated under section 112 of theCAA that have not been delegated to theState.

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis UnderExecutive Order 12866

Under Executive Order No. 12866, (58FR 51735 (October 4, 1993)) the Agencymust determine whether the regulatoryaction is ‘‘significant’’ and thereforesubject to formal review by the Office ofManagement and Budget (OMB) and tothe requirements of the Executive Order,which include assessing the costs andbenefits anticipated as a result of theproposed regulatory action. The Orderdefines ‘‘significant regulatory action’’as one that is likely to result in a rulethat may: (1) Have an annual effect onthe economy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities; (2) create seriousinconsistency or otherwise interferewith an action taken or planned byanother agency; (3) materially alter thebudgetary impact of entitlements,grants, user fees, or loan programs or therights and obligations of recipientsthereof; or (4) raise novel legal or policyissues arising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

EPA has determined that today’s finalrule is not ‘‘significant’’ under pointsone through three above. The Agency issensitive, however, to interpretationsthat may define today’s action as‘‘significant’’ under point number fourabove, due to the nature of the policyissues raised and recognizes today’saction as significant. The Agency hasexamined economic impacts potentiallyassociated with the three key elementsof today’s action: the comparable fuelexclusion, waste minimizationincentives, and streamlined RCRApermitting modifications. Thecomparable fuels exclusion in today’sfinal rule will result in national annualcost savings to generators ranging fromapproximately $11 to $36 million, net ofthe cost of gaining the exclusion.Blending and combustion facilities,however, are estimated to experiencereduced receipts for managing

hazardous wastes, coupled with thecosts of replacing these materials withmore expensive substitutes. Thecombined impact is estimated to costthese firms an additional $3 to $13million per year. Today’s action alsoallows sources to apply for up to a oneyear extension of the three-yearcompliance period for implementationof waste minimization procedures.Overall, this extension is likely toprovide a greater incentive for facilitieswith on-site combustion units toimplement waste minimization optionsrather than to continue burninghazardous wastes and implementappropriate control technologies. Thedegree to which this incentive willchange the waste burning behavior ofcombustion facilities is undetermined.EPA is also implementing streamlinedprocedures for modifying RCRA permitsat hazardous waste combustion units.Only those states that regulatecombustion units and choose to adoptthe streamlined modification systemwould have to undergo rulemaking andauthorization for the streamlinedpermitting process. The Agencyestimates that approximately half of thestates with MACT-regulated combustionunits will not alter their currentpermitting system. Based on the averagecost to a state for rulemaking andauthorization, the Agency estimatesaggregate national costs for those statesthat would modify their systems at aone-time cost of no more than $685,000.In addition to rulemaking andauthorization costs, the aggregatenational cost for permit review may beas high as $3.8 million. For moreinformation on the cost impacts oftoday’s final rule, see the EconomicAnalysis Report for the CombustionMACT Fast-Track Rulemaking, March1998, which is part of the docket for thisrule.

B. Regulatory Flexibility ActThe Regulatory Flexibility Act (RFA)

of 1980 requires Federal agencies toconsider ‘‘small entities’’ throughout theregulatory process. Section 603 of theRFA requires an initial screeninganalysis to be performed to determinewhether small entities will be adverselyaffected by the regulation. If affectedsmall entities are identified, regulatoryalternatives must be considered tomitigate the potential impacts. Smallentities as described in the Act are onlythose ‘‘businesses, organizations andgovernmental jurisdictions subject toregulation.’’

EPA has determined that today’s rulewill primarily affect large scalefacilities. Furthermore, since today’sfinal notice generally provides savings


over current requirements, EPA believesthat any small entities engaged inactivity covered by the rule will not beadversely affected. Therefore, EPAprovides the following certificationunder the Regulatory Flexibility Act, asamended by the Small BusinessRegulatory Enforcement Fairness Act.Pursuant to the provision at 5 U.S.C., Ihereby certify that this rule will nothave a significant economic impact ona substantial number of small entities. Amore detailed discussion of small entityimpacts is presented in the EconomicAnalysis Report.

C. Paperwork Reduction ActThe Office of Management and Budget

(OMB) has approved the informationcollection requirements contained inthis rule under the provisions of thePaperwork Reduction Act, 44 U.S.C.3501 et seq. and has assigned OMBcontrol number 2050–0073.

The incremental annual publicreporting and record keeping burden forthis collection of information isestimated to be 55,196 hours at a costof about $5,164,000. For thosegenerators applying for the comparable/syngas fuel exclusion, the averageannual respondent reporting burden isestimated to be 0.5 hours per facilityand the average annual record keepingburden is estimated to be 47.3 hours perfacility. For burners of comparable/syngas fuels, there is no reportingburden and the annual record keepingburden is 8.0 hours per facility. ForHWCs complying with the notificationof intent to comply regulations, theaverage annual reporting burden is300.5 hours per facility and the averageannual record keeping burden is 9.0hours per facility.

This estimate includes the timeneeded to review instructions; develop,acquire, install, and utilize technologyand systems for the purpose ofcollecting, validating, and verifyinginformation, processing andmaintaining information, and disclosingand providing information; adjust theexisting ways to comply with anypreviously applicable instructions andrequirements; train personnel torespond to collection of information;search existing data sources; completeand review the collection ofinformation; and transmit or otherwisedisclose the information.

During its review of the proposed ruleICR, OMB offered comments concerningthe burdens associated with theproposed testing requirements andrecords retention for the comparablefuel/syngas exclusion. In the final rule,EPA is allowing generators to useprocess knowledge and requiring testing

for only those constituents the generatordetermines should be in the waste. Thefrequency of the testing will be specifiedby the generator in the waste analysisplan. With regards to records retention,the final rule will require the retentionof records of all comparable and syngasfuel-related information for three years.EPA also received several publiccomments on the final rule ICR whichwas noticed on January 28, 1998 at 63FR 4249. EPA has responded to thosecomments in the supporting statementfor the ICR.

EPA estimates that the addition of thecomparable fuels exclusion will causethe BIF universe to decrease by 25facilities. Although the burdenreduction is not reflected in the ICR,EPA expects reporting andrecordkeeping requirements for BIFs todecrease by 70,743 hours (18 percent)and $7,493,221 (15 percent) annually.EPA will revise the ICR to reflect thisburden reduction when it finalizes theemissions standards for hazardouswaste combustors.

EPA is also amending the table ofcurrently approved ICR control numbersissued by OMB for various regulations.This amendment updates the table todisplay accurately this final rule. Thisdisplay of the OMB control numbersand their subsequent codification in theCode of Federal Regulations (CFR) at 40CFR Part 9 satisfies the requirements ofthe Paperwork Reduction Act (44 U.S.C.3501 et seq.) and OMB’s implementingregulations at 5 CFR Part 1320.

An Agency may not conduct orsponsor, and a person is not required torespond to a collection of informationunless it displays a currently valid OMBcontrol number. The OMB controlnumbers for EPA’s regulations aredisplayed in 40 CFR Part 9.

Send comments regarding the burdenestimates or any other aspect of thiscollection of information, includingsuggestions for reducing this burden toChief, OPPE Regulatory InformationDivision; U.S. Environmental ProtectionAgency (2136); 401 M Street, S.W.;Washington, DC 20460; and to theOffice of Information and RegulatoryAffairs, Office of Management andBudget, Washington, DC 20503, marked‘‘Attention: Desk Officer for EPA.’’Include the ICR number in anycorrespondence.

D. Unfunded MandatesTitle II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–4, establishes requirements for Federalagencies to assess the effects of theirregulatory actions on State, Tribal, andlocal governments and the privatesector. Under section 202 of the UMRA,

EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘Federal mandates’’ that mayresult in expenditures to State, local,and Tribal governments, in theaggregate, or to the private sector, of$100 million or more in any one year.When a written statement is needed foran EPA rule, section 205 of the UMRAgenerally requires EPA to identify andconsider a reasonable number ofregulatory alternatives and adopt theleast costly, most cost-effective, or leastburdensome alternative that achievesthe objectives of the rule. Theprovisions of section 205 do not applywhen they are inconsistent withapplicable law. Moreover, section 205allows EPA to adopt an alternative otherthan the least costly, most cost-effectiveor least burdensome alternative if theAdministrator publishes with the finalrule an explanation why that alternativewas not adopted. Before EPA establishesany regulatory requirements that maysignificantly or uniquely affect smallgovernments, including Tribalgovernments, it must have developedunder section 203 of the UMRA a smallgovernment agency plan. The plan mustprovide for notifying potentiallyaffected small governments, giving themmeaningful and timely input in thedevelopment of EPA regulatoryproposals with significant Federalintergovernmental mandates, andinforming, educating, and advising themon compliance with the regulatoryrequirements.

EPA has determined that this ruledoes not contain a Federal mandate thatmay result in expenditures of $100million or more for State, local, andTribal governments, in the aggregate, orthe private sector in any one year. EPAhas estimated that the total potentialcost to State, local, and Tribalgovernments would not exceedapproximately $4.5 million over tenyears. Thus, today’s rule is not subjectto the requirements of sections 202 and205 of the UMRA.

IX. Submission to Congress and theGeneral Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this ruleand other required information to theU.S. Senate, the U.S. House ofRepresentatives and the ComptrollerGeneral of the General AccountingOffice prior to publication of the rule intoday’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by 5U.S.C. 804(2), therefore, the effectivedate of the rule is not affected.


X. Environmental Justice

A. Applicability of Executive Order12898

EPA is committed to addressenvironmental justice concerns and isassuming a leadership role inenvironmental justice initiatives toenhance environmental quality for allresidents of the United States. TheAgency’s goals are to ensure that nosegment of the population, regardless ofrace, color, national origin, or incomebears disproportionately high andadverse human health andenvironmental effects as a result ofEPA’s policies, programs, and activities,and all people live in clean andsustainable communities.

B. Potential EffectsToday’s final rule is not expected to

cause any disproportionate impacts tominority or low income communitiesversus affluent or non-minoritycommunities.

XI. Children’s HealthExecutive Order 13045: The Executive

Order 13045 applies to any rule thatEPA determines (1) ‘‘economicallysignificant’’ as defined under ExecutiveOrder 12866, and (2) the environmentalhealth or safety risk addressed by therule has a disproportionate effect onchildren. If the regulatory action meetsboth criteria, the Agency must evaluatethe environmental health or safetyeffects of the planned rule on children;and explain why the planned regulationis preferable to other potentiallyeffective and reasonably feasiblealternatives considered by the Agency

This final rule is not subject to E.O.13045, entitled ‘‘Protection of Childrenfrom Environmental Health Risks andsafety Risks (62 FR 19885, April 23,1997), because: (a) ‘‘This is not aneconomically significant regulatoryaction as defined by E.O. 12866.’’

XII. National Technology Transfer andAdvancement Act

Under section 12(d) of the NationalTechnology Transfer and AdvancementAct, the Agency is directed to usevoluntary consensus standards in itsregulatory activities unless to do sowould be inconsistent with applicablelaw or otherwise impractical. Voluntaryconsensus standards are technicalstandards (e.g., materials specifications,test methods, sampling procedures,business practices, etc.) that aredeveloped or adopted by voluntaryconsensus standard bodies. Whereavailable and potentially applicablevoluntary consensus standards are notused by EPA, the Act requires the

Agency to provide Congress, throughthe Office of Management and Budget,an explanation of the reasons for notusing such standards.

EPA is not finalizing any new testmethods or other technical standards aspart of today’s final rule. Thus, theAgency has no need to consider the useof voluntary consensus standards indeveloping this final rule.

List of Subjects

40 CFR Part 63

Administrative practice andprocedure, Air pollution control,Hazardous substances,Intergovernmental relations, Reportingand recordkeeping requirements.

40 CFR Part 261

Hazardous waste, Recycling,Reporting and record keepingrequirements.

40 CFR Part 270

Administrative practice andprocedure, Confidential businessinformation, Emergency responses,Hazardous materials transportation,Hazardous waste, Permit applicationrequirements, Permit modifications,Reporting and recordkeepingrequirements.

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

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

PART 63—NATIONAL EMISSIONSTANDARDS FOR HAZARDOUS AIRPOLLUTANTS FOR SOURCECATEGORIES

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

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

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

Subpart EEE—National EmissionStandards for Hazardous Air PollutantsFrom 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 thissubpart.

63.1216 Extension of compliance date toinstall pollution prevention or wasteminimization controls.

§ 63.1211 Notification requirements.(a) Notification of Intent To Comply

(NIC). (1) All hazardous wastecombustors subject to this subpart shallprepare a Notification of Intent toComply that includes the followinginformation:

(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 selectwaste minimization and/or emissioncontrol technique(s); and

(G) A statement that the sourceintends to comply with this subpart bycontrolling emissions from thecombustion of hazardous wastepursuant to the standards of thissubpart.

(ii) Information on key activities andestimated dates for these activities thatwill bring the source into compliancewith emission control requirements ofthis subpart. The submission of keyactivities and dates is not intended to bestatic and may be revised by the sourceduring the period the NIC is in effect.Revisions shall be submitted to theregulatory authority and be madeavailable to the public. The followingare the key activities and dates that shallbe included:

(A) The dates for beginning andcompletion of engineering studies toevaluate emission control systems orprocess changes for emissions;

(B) The date by which contracts foremission control systems or processchanges for emission control will beawarded, or the date by which orderswill be issued for the purchase ofcomponent parts to accomplishemission control or process changes;

(C) The date by which constructionapplications will be submitted;

(D) The date by which on-siteconstruction, installation of emissioncontrol equipment, or process change isto be initiated;

(E) The date by which on-siteconstruction, installation of emissioncontrol equipment, or process change isto be completed; and

(F) The date by which finalcompliance is to be achieved. Theindividual dates and milestones listedin paragraphs (a)(1)(ii)(A) through (F) ofthis section as part of the NIC are notrequirements and therefore are notenforceable deadlines; the Agency is


requiring paragraphs (a)(1)(ii)(A)through (F) of this section as part of theNIC only to inform the public of thesource’s intentions towards coming intocompliance.

(iii) A summary of the public meetingrequired under paragraph (b) of thissection.

(iv) For any source that does notintend to comply, but will not stopburning hazardous waste as requiredunder paragraph (c) of this section, acertification that the designated sourcewill:

(A) Stop burning hazardous waste onor before the compliance date of theemission standards of this Subpart; and

(B) Be necessary to combust thehazardous waste from another on-sitesource, during the year prior to thecompliance date of the emissionstandards of this Subpart, because thatother source is:

(1) Installing equipment to come intocompliance with the emission standardsof this Subpart; or

(2) Installing source reductionmodifications to eliminate the need forfurther combustion of wastes.

(2) A draft of the NIC must be madeavailable for public review no later than30 days prior to the public meetingrequired under paragraph (b)(1) of thissection.

(3) The final NIC must be submittedto the permitting agency no later thanone year following the effective date ofthe emission standards of this subpart.

(b) NIC Public Meeting and Notice. (1)Prior to the submission of the NIC to thepermitting agency, and no later than 10months after the effective date of theemission standards of this subpart, thesource shall hold at least one informalmeeting with the public to discussanticipated activities described in thedraft NIC for achieving compliance withthe MACT standards promulgated inthis subpart. The source must post asign-in sheet or otherwise provide avoluntary opportunity for attendees toprovide their names and addresses.

(2) The source shall submit asummary of the meeting, along with thelist of attendees and their addressesdeveloped under paragraph (b)(1) of thissection, and copies of any writtencomments or materials submitted at themeeting, to the permitting agency aspart of the final NIC, in accordance withparagraph (a)(1)(iii) of this section.

(3) The source must provide publicnotice of the NIC meeting at least 30days prior to the meeting. The sourceshall provide public notice in all of thefollowing forms:

(i) Newspaper advertisement. Thesource shall publish a notice in anewspaper of general circulation in the

county or equivalent jurisdiction of thesource. In addition, the source shallpublish the notice in newspapers ofgeneral circulation in adjacent countiesor equivalent jurisdiction where suchpublication would be necessary toinform the affected public. The noticemust be published as a displayadvertisement.

(ii) Visible and accessible sign. Thesource shall post a notice on a clearlymarked sign at or near the source. If thesource places the sign on the source’sproperty, then the sign must be largeenough to be readable from the nearestspot where the public would pass by thesource.

(iii) Broadcast media announcement.The source shall broadcast a notice atleast once on at least one local radiostation or television station.

(iv) Notice to the facility mailing list.The source shall provide a copy of thenotice to the facility mailing list inaccordance with § 124.10(c)(1)(ix) ofthis chapter.

(4) The notices required underparagraph (b)(3) of this section mustinclude:

(i) The date, time, and location of themeeting;

(ii) A brief description of the purposeof the meeting;

(iii) A brief description of the sourceand proposed operations, including theaddress or a map (e.g., a sketched orcopied street map) of the sourcelocation;

(iv) A statement encouraging peopleto contact the source at least 72 hoursbefore the meeting if they need specialaccess to participate in the meeting;

(v) A statement describing how thedraft NIC can be obtained; and

(vi) The name, address, and telephonenumber of a contact person for the NIC.

(c) Sources that do not intend tocomply. Those sources subject to therequirements of this subpart, exceptthose sources meeting the requirementsof paragraph (a)(1)(iv) of this section:

(1) Who signify in their NIC an intentnot to comply with the requirements ofthis Subpart, must stop burninghazardous waste on or before two yearsafter the effective date of the emmissionstandards of this subpart;

(2) Who do not intend to comply withthis subpart must include in their NICa schedule that includes key dates forthe steps to be taken to stop burninghazardous waste. Key dates include thedate for submittal of RCRA closuredocuments.

§ 63.1212 Progress reports.(a) General. Not later than two years

after the effective date of the emissionstandards of this subpart, all sources

subject to this Subpart except thosehazardous waste combustion sourcesthat comply with paragraph (b)(2) of thissection shall:

(1) Complete engineering design forany physical modifications to the sourceneeded to comply with the emissionsstandards of this subpart;

(2) Submit applicable constructionapplications to the applicable regulatoryauthority; and

(3) Enter into a binding contractualcommitment to purchase, fabricate, andinstall any equipment, devices, andancillary structures needed to complywith the emission requirements of thissubpart.

(b) Demonstration (1) Hazardouswaste combustion sources shall submitto the regulatory authority a progressreport on or before two years after theeffective date of the emission standardsof this subpart which containsinformation demonstrating that thesource has met the requirements ofparagraph (a) of this section. Thisinformation will be used by theregulatory authority to determine if thesource has made adequate progresstowards compliance with the applicableemission standards.

(2) Sources that intend to come intocompliance with the emissionsstandards of this subpart, but can do sowithout undertaking any of theactivities described in paragraph (a) ofthis section, shall submitdocumentation either:

(i) Demonstrating that the source, atthe time of the progress report, is incompliance with the emissionsrequirements; or

(ii) Specifying the steps that will betaken to bring the source intocompliance, without undertaking any ofthe activities listed in paragraphs (a)(1)through (3) of this section.

(3) Sources that fail to comply withparagraph (a) above or paragraph (b)(2)of this section shall stop burninghazardous waste on or before the datetwo years after the effective date of theemission standards of this subpart.

(c) Schedule. (1) The progress reportshall contain a detailed schedule thatlists key dates for all projects that willbring the source into compliance withthe requirements of this subpart (i.e.,key dates for the activities requiredunder paragraphs (b)(1)(i) through (iii)of this section). Dates shall cover thetime frame from the progress reportthrough the compliance date of theemission standards of this subpart.

(2) The schedule shall contain thefollowing dates:

(i) Bid and award dates forconstruction contracts and equipmentsupply contractors;


(ii) Milestones such as groundbreaking, completion of drawings andspecifications, equipment deliveries,intermediate construction completions,and testing;

(iii) The dates on which applicationswere submitted for or obtainedoperating and construction permits orlicenses;

(iv) The dates by which approvals ofany permits or licenses are anticipated;and

(v) The projected date by which thesource will be in compliance with therequirements of this subpart.

(d) Notice of intent to comply. Theprogress report shall contain a statementthat the source intends or does notintend to come into compliance withthe applicable emission controlrequirements of this subpart.

(e) Sources that do not intend tocomply. (1) Sources that: indicated intheir NIC their intent not to complywith this subpart and stop burninghazardous waste prior to the submittalof a progress report; or meet therequirements of paragraph (a)(1)(iv) ofthis section are not required to includethe requirements of paragraphs (b) and(c) of this section to their progressreport, but shall include in theirprogress report: the date on which thesource stopped burning hazardouswaste; and the date(s) on which RCRAclosure documents were submitted.

(2) Those sources that signify in theprogress report, submitted not later thantwo years after the effective date of theemission standards of this subpart, theirintention not to comply with therequirements of this subpart must stopburning hazardous waste on or beforethe date two years after the effectivedate of the emission standards of thissubpart.

§ 63.1213 Certification.(a) The Notice of Intent to Comply

(NIC) and Progress Report submittedshall contain the following certificationsigned and dated by an authorizedrepresentative of the source:

I certify under penalty of law that I havepersonally examined and am familiar withthe information submitted in this documentand all attachments and that, based on myinquiry of those individuals immediatelyresponsible for obtaining the information, Ibelieve that the information is true, accurate,and complete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility of fineand imprisonment.

(b) An authorized representativeshould be a responsible corporate officer(for a corporation), a general partner (fora partnership), the proprietor (of a soleproprietorship), or a principal executive

officer or ranking elected official (for amunicipality, State, Federal, or otherpublic agency).

§ 63.1214 Extension of the compliancedate.

(a) A source that intends to come intocompliance with the requirements ofthis subpart, but due to the installationof controls will not meet the compliancedate, may request an extension of thecompliance date for one year.

(b) Sources subject to this subpartshall follow the requirements of§ 63.6(i)(4) or § 63.1216 to request anextension of the compliance date.

§ 63.1215 Sources that become affectedsources after the effective date of theemission standards of this subpart.

(a) A source that begins to burnhazardous waste after the effective dateof the emission standards of thissubpart, therefore becoming an affectedsource, but prior to 9 months after theeffective date of the emission standardsof this subpart shall comply with all therequirements of §§ 63.1211 through63.1213 and associated time frames forpublic meetings and documentsubmittals.

(b) A source that intends to beginburning hazardous waste more than 9months after the effective date of theemission standards of this subpart,therefore becoming an affected source,shall meet all the requirements of§§ 63.1211 through 63.1213 prior toburning hazardous waste.

(1) Such sources shall make a draftNIC available, notice their publicmeeting, hold their public meeting, andsubmit a final NIC prior to burninghazardous waste.

(2) Such sources also shall submittheir progress report at the time of thesubmittal of their final NIC.

§ 63.1216 Extension of the compliancedate to install pollution prevention or wasteminimization controls.

(a) Applicability. The owner oroperator of any source subject to therequirements of this subpart mayrequest from the Administrator or Statewith an approved Title V program anextension of one year to comply withthe emission standards in this subpart,if the owner or operator can reasonablydocument that the installation ofpollution prevention or wasteminimization measures willsignificantly reduce the amount and/ortoxicity of hazardous wastes enteringthe feedstream(s) of the combustiondevice(s) subject to this subpart, andthat the facility could not otherwiseinstall the necessary control measuresand comply within three years after the

effective date of the emission standardsof this subpart.

(b) Requirements for requesting anextension. Requests for a one-yearextension must be in writing, must bereceived not later than 12 months beforethe affected source’s compliance date,and must contain the followinginformation:

(1) A description of pollutionprevention or waste minimizationcontrols that, when installed, willsignificantly reduce the amount and/ortoxicity of hazardous wastes enteringthe feedstream(s) of the combustiondevice(s) subject to this subpart.Pollution prevention or wasteminimization measures may include:equipment or technology modifications,reformulation or redesign of products,substitution of raw materials,improvements in work practices,maintenance, training, inventorycontrol, or recycling practicesconducted as defined in 40 CFR261.1(c);

(2) A description of other pollutioncontrols to be installed that arenecessary to comply with the emissionstandards;

(3) A reduction goal or estimate of theannual reductions in quantity and/ortoxicity of hazardous waste(s) enteringcombustion feedstream(s) that willoccur by installing the proposedpollution prevention or wasteminimization measures;

(4) A comparison of reductions in theamounts and/or toxicity of hazardouswastes combusted after installation ofpollution prevention or wasteminimization measures to the amountsand/or toxicity of hazardous wastescombusted prior to the installation ofthese measures; and, if the difference isless than a fifteen percent reduction, acomparison to pollution prevention andwaste minimization reductions recordedduring the previous five years;

(5) Reasonable documentation thatinstallation of the pollution preventionor waste minimization changes will notresult in a net increase (except fordocumented increases in production) ofhazardous constituents released to theenvironment through other emissions,wastes or effluents;

(6) Reasonable documentation that thedesign and installation of wasteminimization and other measures thatare necessary for compliance cannototherwise be installed within the threeyear compliance period, and

(7) The information required in 40CFR 63.6(i)(6)(i)(B) through (D).

(8) Documentation prepared under anexisting State required pollutionprevention program that contains theinformation may be enclosed with a


request for extension in lieu ofparagraphs (b)(1) through (7) of thissection.

(c) Approval of request for extensionof compliance. Based on the informationprovided in any request made underparagraph (a) of this section, theAdministrator or State with an approvedTitle V program may grant an extensionof compliance with the emissionstandards identified in paragraph (a) ofthis section. The extension will be inwriting in accordance with§§ 63.6(i)(10)(i) through63.6(i)(10)(v)(A). EPA and States mustconsider the information required inparagraph (a) of this section inapproving or denying requests for one-year compliance extensions.

PART 261—IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE


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

2. Section 261.4 is amended byadding paragraph (a)(16) to read asfollows:

§ 261.4 Exclusions.(a) * * *(16) Comparable fuels or comparable

syngas fuels (i.e., comparable/syngasfuels) that meet the requirements of§ 261.38.* * * * *

3. Section 261.38 is added to read asfollows:

§ 261.38 Comparable/Syngas FuelExclusion.

Wastes that meet the followingcomparable/syngas fuel requirementsare not solid wastes:

(a) Comparable fuel specifications.—(1) Physical specifications.—(i) Heatingvalue. The heating value must exceed5,000 BTU/lbs. (11,500 J/g).

(ii) Viscosity. The viscosity must notexceed: 50 cs, as-fired.

(2) Constituent specifications. Forcompounds listed in table 1 to thissection 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) thatis generated from hazardous waste must:

(1) Have a minimum Btu value of 100Btu/Scf;

(2) Contain less than 1 ppmv of totalhalogen;

(3) Contain less than 300 ppmv oftotal nitrogen other than diatomicnitrogen (N2);

(4) Contain less than 200 ppmv ofhydrogen sulfide; and

(5) Contain less than 1 ppmv of eachhazardous constituent in the target listof Appendix VIII constituents of thispart.

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

Chemical name CAS No.

Concentra-tion limit(mg/kg at

10,000 BTU/lb)

Minimum re-quired detection

limit(mg/kg)

Total Nitrogen as N ...................................................................................................................... na 4900 ............ ..........................Total Halogens as Cl .................................................................................................................... na 540 .............. ..........................Total Organic Halogens as Cl ...................................................................................................... na 25 or individ-

ual halo-genatedorganicslistedbelow.

..........................

Polychlorinated biphenyls, total [Arocolors, total] a ....................................................................... 1336–36–3 Non-detect .. 1.4Cyanide, total ................................................................................................................................ 57–12–5 Non-detect .. 1.0Metals:

Antimony, total ....................................................................................................................... 7440–36–0 7.9 ............... ..........................Arsenic, total .......................................................................................................................... 7440–38–2 0.23 ............. ..........................Barium, total .......................................................................................................................... 7440–39–3 23 ................ ..........................Beryllium, total ....................................................................................................................... 7440–41–7 1.2 ............... ..........................Cadmium, total ...................................................................................................................... 7440–43–9 1.2 ............... ..........................Chromium, total ..................................................................................................................... 7440–47–3 2.3 ............... ..........................Cobalt .................................................................................................................................... 7440–48–4 4.6 ............... ..........................Lead, total .............................................................................................................................. 7439–92–1 31 ................ ..........................Manganese ............................................................................................................................ 7439–96–5 1.2 ............... ..........................Mercury, total ......................................................................................................................... 7439–97–6 0.24 ............. ..........................Nickel, total ............................................................................................................................ 7440–02–0 58 ................ ..........................Selenium, total ....................................................................................................................... 7782–49–2 0.15 ............. ..........................Silver, total ............................................................................................................................. 7440–22–4 2.3 ............... ..........................Thallium, total ........................................................................................................................ 7440–28–0 23 ................ ..........................

Hydrocarbons:Benzo[a]anthracene ............................................................................................................... 56–55–3 1100 ............ ..........................Benzene ................................................................................................................................. 71–43–2 4100 ............ ..........................Benzo[b]fluoranthene ............................................................................................................. 205–99–2 960 .............. ..........................Benzo[k]fluoranthene ............................................................................................................. 207–08–9 1900 ............ ..........................Benzo[a]pyrene ...................................................................................................................... 50–32–8 960 .............. ..........................Chrysene ............................................................................................................................... 218–01–9 1400 ............ ..........................Dibenzo[a,h]anthracene ......................................................................................................... 53–70–3 960 .............. ..........................7,12-Dimethylbenz[a]anthracene ........................................................................................... 57–97–6 1900 ............ ..........................Fluoranthene .......................................................................................................................... 206–44–0 1900 ............ ..........................Indeno(1,2,3-cd)pyrene ......................................................................................................... 193–39–5 960 .............. ..........................3-Methylcholanthrene ............................................................................................................ 56–49–5 1900 ............ ..........................Naphthalene .......................................................................................................................... 91–20–3 3200 ............ ..........................Toluene .................................................................................................................................. 108–88–3 36000 .......... ..........................

Oxygetes:


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



10,000 BTU/lb)


limit(mg/kg)

Acetophenone ........................................................................................................................ 98–86–2 1900 ............ ..........................Acrolein .................................................................................................................................. 107–02–8 37 ................ ..........................Allyl alcohol ............................................................................................................................ 107–18–6 30 ................ ..........................Bis(2-ethylhexyl)phthalate [Di-2-ethylhexyl phthalate] .......................................................... 117–81–7 1900 ............ ..........................Butyl benzyl phthalate ........................................................................................................... 85–68–7 1900 ............ ..........................o-Cresol [2-Methyl phenol] .................................................................................................... 95–48–7 220 .............. ..........................m-Cresol [3-Methyl phenol] ................................................................................................... 108–39–4 220 .............. ..........................p-Cresol [4-Methyl phenol] .................................................................................................... 106–44–5 220 .............. ..........................Di-n-butyl phthalate ............................................................................................................... 84–74–2 1900 ............ ..........................Diethyl phthalate .................................................................................................................... 84–66–2 1900 ............ ..........................2,4-Dimethylphenol ................................................................................................................ 105–67–9 1900 ............ ..........................Dimethyl phthalate ................................................................................................................. 131–11–3 1900 ............ ..........................Di-n-octyl phthalate ................................................................................................................ 117–84–0 960 .............. ..........................Endothall ................................................................................................................................ 145–73–3 100 .............. ..........................Ethyl methacrylate ................................................................................................................. 97–63–2 37 ................ ..........................2-Ethoxyethanol [Ethylene glycol monoethyl ether] .............................................................. 110–80–5 100 .............. ..........................Isobutyl alcohol ...................................................................................................................... 78–83–1 37 ................ ..........................Isosafrole ............................................................................................................................... 120–58–1 1900 ............ ..........................Methyl ethyl ketone [2-Butanone] .......................................................................................... 78–93–3 37.Methyl methacrylate .............................................................................................................. 80–62–6 37.1,4-Naphthoquinone .............................................................................................................. 130–15–4 1900.Phenol .................................................................................................................................... 108–95–2 1900.Propargyl alcohol [2-Propyn-l-ol] ........................................................................................... 107–19–7 30.Safrole ................................................................................................................................... 94–59–7 1900.

Sulfoted Organics:Carbon disulfide ..................................................................................................................... 75–15–0 Non-detect .. 37Disulfoton ............................................................................................................................... 298–04–4 Non-detect .. 1900Ethyl methanesulfonate ......................................................................................................... 62–50–0 Non-detect .. 1900Methyl methanesulfonate ...................................................................................................... 66–27–3 Non-detect .. 1900Phorate .................................................................................................................................. 298–02–2 Non-detect .. 19001,3-Propane sultone .............................................................................................................. 1120–71–4 Non-detect .. 100Tetraethyldithiopyrophosphate [Sulfotepp] ............................................................................ 3689–24–5 Non-detect .. 1900Thiophenol [Benzenethiol] ..................................................................................................... 108–98–5 Non-detect .. 30O,O,O-Triethyl phosphorothioate .......................................................................................... 126–68–1 Non-detect .. 1900

Nitrogenated Organics:Acetonitrile [Methyl cyanide] .................................................................................................. 75–05–8 Non-detect .. 372-Acetylaminofluorene [2-AAF] .............................................................................................. 53–96–3 Non-detect .. 1900Acrylonitrile ............................................................................................................................ 107–13–1 Non-detect .. 374-Aminobiphenyl .................................................................................................................... 92–67–1 Non-detect .. 19004-Aminopyridine ..................................................................................................................... 504–24–5 Non-detect .. 100Aniline .................................................................................................................................... 62–53–3 Non-detect .. 1900Benzidine ............................................................................................................................... 92–87–5 Non-detect .. 1900Dibenz[a,j]acridine ................................................................................................................. 224–42–0 Non-detect .. 1900O,O-Diethyl O-pyrazinyl phophoro-thioate [Thionazin] ......................................................... 297–97–2 Non-detect .. 1900Dimethoate ............................................................................................................................ 60–51–5 Non-detect .. 1900p-(Dimethylamino)azobenzene [4-Dimethylaminoazobenzene] ............................................ 60–11–7 Non-detect .. 19003,3′-Dimethylbenzidine .......................................................................................................... 119–93–7 Non-detect .. 1900α,α-Dimethylphenethylamine ................................................................................................. 122–09–8 Non-detect .. 19003,3′-Dimethoxybenzidine ....................................................................................................... 119–90–4 Non-detect .. 1001,3-Dinitrobenzene [m-Dinitrobenzene] ................................................................................. 99–65–0 Non-detect .. 19004,6-Dinitro-o-cresol ................................................................................................................ 534–52–1 Non-detect .. 19002,4-Dinitrophenol ................................................................................................................... 51–28–5 Non-detect .. 19002,4-Dinitrotoluene .................................................................................................................. 121–14–2 Non-detect .. 19002,6-Dinitrotoluene .................................................................................................................. 606–20–2 Non-detect .. 1900Dinoseb [2-sec-Butyl-4,6-dinitrophenol] ................................................................................ 88–85–7 Non-detect .. 1900Diphenylamine ....................................................................................................................... 122–39–4 Non-detect .. 1900Ethyl carbamate [Urethane] ................................................................................................... 51–79–6 Non-detect .. 100Ethylenethiourea (2-Imidazolidinethione) .............................................................................. 96–45–7 Non-detect .. 110Famphur ................................................................................................................................ 52–85–7 Non-detect .. 1900Methacrylonitrile ..................................................................................................................... 126–98–7 Non-detect .. 37Methapyrilene ........................................................................................................................ 91–80–5 Non-detect .. 1900Methomyl ............................................................................................................................... 16752–77–5 Non-detect .. 572-Methyllactonitrile [Acetone cyanohydrin] ............................................................................ 75–86–5 Non-detect .. 100Methyl parathion .................................................................................................................... 298–00–0 Non-detect .. 1900MNNG (N-Metyl-N-nitroso-N’-nitroguanidine) ........................................................................ 70–25–7 Non-detect .. 1101-Naphthylamine, [α-Naphthylamine] .................................................................................... 134–32–7 Non-detect .. 19002-Naphthylamine, [β-Naphthylamine] .................................................................................... 91–59–8 Non-detect .. 1900Nicotine .................................................................................................................................. 54–11–5 Non-detect .. 100





10,000 BTU/lb)


limit(mg/kg)

4-Nitroaniline, [p-Nitroaniline] ................................................................................................ 100–01–6 Non-detect .. 1900Nitrobenzene ......................................................................................................................... 98–95–3 Non-detect .. 1900p-Nitrophenol, [p-Nitrophenol] ............................................................................................... 100–02–7 Non-detect .. 19005-Nitro-o-toluidine .................................................................................................................. 99–55–8 Non-detect .. 1900N-Nitrosodi-n-butylamine ....................................................................................................... 924–16–3 Non-detect .. 1900N-Nitrosodiethylamine ........................................................................................................... 55–18–5 Non-detect .. 1900N-Nitrosodiphenylamine, [Diphenylnitrosamine] .................................................................... 86–30–6 Non-detect .. 1900N-Nitroso-N-methylethylamine ............................................................................................... 10595–95–6 Non-detect .. 1900N-Nitrosomorpholine .............................................................................................................. 59–89–2 Non-detect .. 1900N-Nitrosopiperidine ................................................................................................................ 100–75–4 Non-detect .. 1900N-Nitrosopyrrolidine ............................................................................................................... 930–55–2 Non-detect .. 19002-Nitropropane ....................................................................................................................... 79–46–9 Non-detect .. 30Parathion ............................................................................................................................... 56–38–2 Non-detect .. 1900Phenacetin ............................................................................................................................. 62–44–2 Non-detect .. 19001,4-Phenylene diamine, [p-Phenylenediamine] ..................................................................... 106–50–3 Non-detect .. 1900N-Phenylthiourea ................................................................................................................... 103–85–5 Non-detect .. 572-Picoline [alpha-Picoline] ..................................................................................................... 109–06–8 Non-detect .. 1900Propythioracil [6-Propyl-2-thiouracil] ...................................................................................... 51–52–5 Non-detect .. 100Pyridine .................................................................................................................................. 110–86–1 Non-detect .. 1900Strychnine .............................................................................................................................. 57–24–9 Non-detect .. 100Thioacetamide ....................................................................................................................... 62–55–5 Non-detect .. 57Thiofanox ............................................................................................................................... 39196–18–4 Non-detect .. 100Thiourea ................................................................................................................................. 62–56–6 Non-detect .. 57Toluene-2,4-diamine [2,4-Diaminotoluene] ........................................................................... 95–80–7 Non-detect .. 57Toluene-2,6-diamine [2,6-Diaminotoluene] ........................................................................... 823–40–5 Non-detect .. 57o-Toluidine ............................................................................................................................. 95–53–4 Non-detect .. 2200p-Toluidine ............................................................................................................................. 106–49–0 Non-detect .. 1001,3,5-Trinitrobenzne, [sym-Trinitobenzene] ........................................................................... 99–35–4 Non-detect .. 2000

Halogenated Organics b:Allyl chloride .......................................................................................................................... 107–05–1 Non-detect .. 37Aramite .................................................................................................................................. 104–57–8 Non-detect .. 1900Benzal chloride [Dichloromethyl benzene] ............................................................................ 98–87–3 Non-detect .. 100Benzyl chloride ...................................................................................................................... 100–44–77 Non-detect .. 100Bis(2-chloroethyl)ether [Dichloroethyl ether] ......................................................................... 111–44–4 Non-detect .. 1900Bromoform [Tribromomethane] ............................................................................................. 75–25–2 Non-detect .. 37Bromomethane [Methyl bromide] .......................................................................................... 74–83–9 Non-detect .. 374-Bromophenyl phenyl ether [p-Bromo diphenyl ether] ........................................................ 101–55–3 Non-detect .. 1900Carbon tetrachloride .............................................................................................................. 56–23–5 Non-detect .. 37Chlordane .............................................................................................................................. 57–74–9 Non-detect .. 14p-Chloroaniline ....................................................................................................................... 106–47–8 Non-detect .. 1900Chlorobenzene ...................................................................................................................... 108–90–7 Non-detect .. 37Chlorobenzilate ...................................................................................................................... 510–15–6 Non-detect .. 1900p-Chloro-m-cresol .................................................................................................................. 59–50–7 Non-detect .. 19002-Chloroethyl vinyl ether ........................................................................................................ 110–75–8 Non-detect .. 37Chloroform ............................................................................................................................. 67–66–3 Non-detect .. 37Chloromethane [Methyl chloride] ........................................................................................... 74–87–3 Non-detect .. 372-Chlorophthalene [beta-Chlorophthalene] ........................................................................... 91–58–7 Non-detect .. 19002-Chlorophenol [o-Chlorophenol] .......................................................................................... 95–57–8 Non-detect .. 1900Chloroprene [2-Chloro-1,3-butadiene] ................................................................................... 1126–99–8 Non-detect .. 372,4-D [2,4-Dichlorophenoxyacetic acid] ................................................................................. 94–75–7 Non-detect .. 7.0Diallate ................................................................................................................................... 2303–16–4 Non-detect .. 19001,2-Dibromo-3-chloropropane ................................................................................................ 96–12–8 Non-detect .. 371,2-Dichlorobenzene [o-Dichlorobenzene] ............................................................................ 95–50–1 Non-detect .. 19001,3-Dichlorobenzene [m-Dichlorobenzene] ........................................................................... 541–73–1 Non-detect .. 19001,4-Dichlorobenzene [p-Dichlorobenzene] ............................................................................ 106–46–7 Non-detect .. 19003,3′-Dichlorobenzidine ........................................................................................................... 91–94–1 Non-detect .. 1900Dichlorodifluoromethane [CFC–12] ....................................................................................... 75–71–8 Non-detect .. 371,2-Dichloroethane [Ethylene dichloride] ............................................................................... 107–06–2 Non-detect .. 371,1-Dichloroethylene [Vinylidene chloride] ............................................................................ 75–35–4 Non-detect .. 37Dichloromethoxy ethane [Bis(2-chloroethoxy)methane ......................................................... 111–91–1 Non-detect .. 19002,4-Dichlorophenol ................................................................................................................. 120–83–2 Non-detect .. 19002,6-Dichlorophenol ................................................................................................................. 87–65–0 Non-detect .. 19001,2-Dichloropropane [Propylene dichloride] .......................................................................... 78–87–5 Non-detect .. 37cis-1,3-Dichloropropylene ...................................................................................................... 10061–01–5 Non-detect .. 37trans-1,3-Dichloropropylene .................................................................................................. 10061–02–6 Non-detect .. 371,3-Dichloro-2-propanol ......................................................................................................... 96–23–1 Non-detect .. 30Endosulfan I ........................................................................................................................... 959–98–8 Non-detect .. 1.4Endosulfan II .......................................................................................................................... 33213–65–9 Non-detect .. 1.4





10,000 BTU/lb)


limit(mg/kg)

Endrin .................................................................................................................................... 72–20–8 Non-detect .. 1.4Endrin aldehyde ..................................................................................................................... 7421–93–4 Non-detect .. 1.4Endrin Ketone ........................................................................................................................ 53494–70–5 Non-detect .. 1.4Epichlorohydrin [1-Chloro-2,3-epoxy propane] ...................................................................... 106–89–8 Non-detect .. 30Ethylidene dichloride [1,1-Dichloroethane] ............................................................................ 75–34–3 Non-detect .. 372-Fluoroacetamide ................................................................................................................. 640–19–7 Non-detect .. 100Heptachlor ............................................................................................................................. 76–44–8 Non-detect .. 1.4Heptachlor epoxide ................................................................................................................ 1024–57–3 Non-detect .. 2.8Hexachlorobenzene ............................................................................................................... 118–74–1 Non-detect .. 1900Hexachloro-1,3-butadiene [Hexachlorobutadiene] ................................................................ 87–68–3 Non-detect .. 1900Hexachlorocyclopentadiene ................................................................................................... 77–47–4 Non-detect .. 1900Hexachloroethane .................................................................................................................. 67–72–1 Non-detect .. 1900Hexachlorophene ................................................................................................................... 70–30–4 Non-detect .. 1000Hexachloropropene [Hexachloropropylene] .......................................................................... 1888–71–7 Non-detect .. 1900Isodrin .................................................................................................................................... 465–73–6 Non-detect .. 1900Kepone [Chlordecone] ........................................................................................................... 143–50–0 Non-detect .. 3600Lindane [gamma-Hexachlorocyclohexane] [gamma-BHC] ................................................... 58–89–9 non-detect ... 1.4Methylene chloride [Dichloromethane] .................................................................................. 75–09–2 non-detect ... 374,4′-methylene-bis(2-chloroaniline) ........................................................................................ 101–14–4 non-detect ... 100Methyl iodide [Iodomethane] ................................................................................................. 74–88–4 non-detect ... 37Pentachlorobenzene .............................................................................................................. 608–93–5 non-detect ... 1900Pentachloroethane ................................................................................................................. 76–01–7 non-detect ... 37Pentachloronitrobenzene [PCNB] [Quintobenzene] [Quintozene] ........................................ 82–68–8 non-detect ... 1900Pentachlorophenol ................................................................................................................. 87–86–5 non-detect ... 1900Pronamide ............................................................................................................................. 23950–58–5 non-detect ... 1900Silvex [2,4,5-Trichlorophenoxypropionic acid] ....................................................................... 93–72–1 non-detect ... 7.02,3,7,8-Tetrachlorodibenzo-p-dioxin [2,3,7,8-TCDD] ............................................................. 1746–01–6 non-detect ... 301,2,4,5-Tetrachlorobenzene ................................................................................................... 95–94–3 non-detect ... 19001,1,2,2-Tetrachloroethane ..................................................................................................... 79–34–5 non-detect ... 37Tetrachloroethylene [Perchloroethylene] ............................................................................... 127–18–4 non-detect ... 372,3,4,6-Tetrachlorophenol ...................................................................................................... 58–90–2 non-detect ... 19001,2,4-Trichlorobenzene .......................................................................................................... 120–82–1 non-detect ... 19001,1,1-Trichloroethane [Methyl chloroform] ............................................................................. 71–55–6 non-detect ... 371,1,2-Trichloroethane [Vinyl trichloride] ................................................................................. 79–00–5 non-detect ... 37Trichloroethylene ................................................................................................................... 79–01–6 non-detect ... 37Trichlorofluoromethane [Trichlormonofluoromethane] ........................................................... 75–69–4 non-detect ... 372,4,5-Trichlorophenol ............................................................................................................. 95–95–4 non-detect ... 19002,4,6-Trichlorophenol ............................................................................................................. 88–06–2 non-detect ... 19001,2,3-Trichloropropane .......................................................................................................... 96–18–4 non-detect ... 37Vinyl Chloride ........................................................................................................................ 75–01–4 non-detect ... 37

a Absence of PCBs can also be demonstrated by using appropriate screening methods, e.g., immunoassay kit for PCB in oils (Method 4020) orcolorimetric analysis for PCBs in oil (Method 9079).

b Some minimum required detection limits are above the total halogen limit of 540 ppm. The detection limits reflect what was achieved duringEPA testing and analysis and also analytical complexity associated with measuring all halogen compounds on Appendix VIII at low levels. EPArecognizes that in practice the presence of these compounds will be functionally limited by the molecular weight and the total halogen limit of 540ppm.

(c) Implementation.—Waste thatmeets the comparable or syngas fuelspecifications provided by paragraphs(a) or (b) of this section (theseconstituent levels must be achieved bythe comparable fuel when generated, oras a result of treatment or blending, asprovided in paragraphs (c)(3) or (4) ofthis section) is excluded from thedefinition of solid waste provided thatthe following requirements are met:

(1) Notices—For purposes of thissection, the person claiming andqualifying for the exclusion is called thecomparable/syngas fuel generator andthe person burning the comparable/syngas fuel is called the comparable/syngas burner. The person who

generates the comparable fuel or syngasfuel must claim and certify to theexclusion.

(i) State RCRA and CAA Directors inAuthorized States or Regional RCRAand CAA Directors in UnauthorizedStates.—

(A) The generator must submit a one-time notice to the Regional or StateRCRA and CAA Directors, in whosejurisdiction the exclusion is beingclaimed and where the comparable/syngas fuel will be burned, certifyingcompliance with the conditions of theexclusion and providing documentationas required by paragraph (c)(1)(i)(C) ofthis section;

(B) If the generator is a company thatgenerates comparable/syngas fuel atmore than one facility, the generatorshall specify at which sites thecomparable/syngas fuel will begenerated;

(C) A comparable/syngas fuelgenerator’s notification to the Directorsmust contain the following items:

(1) The name, address, and RCRA IDnumber of the person/facility claimingthe exclusion;

(2) The applicable EPA HazardousWaste 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 thecomparable/syngas fuel; and


(4) The following statement is signedand submitted by the person claimingthe exclusion or his authorizedrepresentative:

Under penalty of criminal and civilprosecution for making or submitting falsestatements, representations, or omissions, Icertify that the requirements of 40 CFR261.38 have been met for all waste identifiedin this notification. Copies of the records andinformation required at 40 CFR 261.28(c)(10)are available at the comparable/syngas fuelgenerator’s facility. Based on my inquiry ofthe individuals immediately responsible forobtaining the information, the information is,to the best of my knowledge and belief, true,accurate, and complete. I am aware that thereare significant penalties for submitting falseinformation, including the possibility of fineand imprisonment for knowing violations.

(ii) Public notice.—Prior to burning anexcluded comparable/syngas fuel, theburner must publish in a majornewspaper of general circulation localto the site where the fuel will be burned,a notice entitled ‘‘Notification ofBurning a Comparable/Syngas FuelExcluded Under the ResourceConservation and Recovery Act’’containing the following information:

(A) Name, address, and RCRA IDnumber of the generating facility;

(B) Name and address of the unit(s)that will burn the comparable/syngasfuel;

(C) A brief, general description of themanufacturing, treatment, or otherprocess generating the comparable/syngas fuel;

(D) An estimate of the average andmaximum monthly and annual quantityof the waste claimed to be excluded;and

(E) Name and mailing address of theRegional or State Directors to whom theclaim was submitted.

(2) Burning.—The comparable/syngasfuel exclusion for fuels meeting therequirements of paragraphs (a) or (b)and (c)(1) of this section applies only ifthe fuel is burned in the following unitsthat also shall be subject to Federal/State/local air emission requirements,including all applicable CAA MACTrequirements:

(i) Industrial furnaces as defined in§ 260.10 of this chapter;

(ii) Boilers, as defined in § 260.10 ofthis chapter, that are further defined asfollows:

(A) Industrial boilers located on thesite of a facility engaged in amanufacturing process wheresubstances are transformed into newproducts, including the componentparts of products, by mechanical orchemical processes; or

(B) Utility boilers used to produceelectric power, steam, heated or cooledair, or other gases or fluids for sale;

(iii) Hazardous waste incineratorssubject to regulation under subpart O ofparts 264 or 265 of this chapter orapplicable CAA MACT standards.

(3) Blending to meet the viscosityspecification.—A hazardous wasteblended to meet the viscosityspecification shall:

(i) As generated and prior to anyblending, manipulation, or processingmeet the constituent and heating valuespecifications of paragraphs (a)(1)(i) and(a)(2) of this section;

(ii) Be blended at a facility that issubject to the applicable requirements ofparts 264 and 265, or § 262.34 of thischapter; and

(iii) Not violate the dilutionprohibition of paragraph (c)(6) of thischapter.

(4) Treatment to meet the comparablefuel exclusion specifications.—(i) Ahazardous waste may be treated to meetthe exclusion specifications ofparagraphs (a)(1) and (2) of this sectionprovided the treatment:

(A) Destroys or removes theconstituent listed in the specification orraises the heating value by removing ordestroying hazardous constituents ormaterials;

(B) Is performed at a facility that issubject to the applicable requirements ofparts 264 and 265, or § 262.34 of thisChapter; and

(C) Does not violate the dilutionprohibition of paragraph (c)(6) of thisseciton.

(ii) Residuals resulting from thetreatment of a hazardous waste listed insubpart D of this part to generate acomparable fuel remain a hazardouswaste.

(5) Generation of a syngas fuel.—(i) Asyngas fuel can be generated from theprocessing of hazardous wastes to meetthe exclusion specifications ofparagraph (b) of this section providedthe processing:

(A) Destroys or removes theconstituent listed in the specification orraises the heating value by removing ordestroying constituents or materials;

(B) Is performed at a facility that issubject to the applicable requirements ofparts 264 and 265, or § 262.34 of thischapter or is an exempt recycling unitpursuant to § 261.6(c) of this chapter;and

(C) Does not violate the dilutionprohibition of paragraph (c)(6) of thischapter.

(ii) Residuals resulting from thetreatment of a hazardous waste listed insubpart D of this part to generate asyngas fuel remain a hazardous waste.

(6) Dilution prohibition forcomparable and syngas fuels.—Nogenerator, transporter, handler, or owner

or operator of a treatment, storage, ordisposal facility shall in any way dilutea hazardous waste to meet the exclusionspecifications of paragraph (a)(1)(i),(a)(2) or (b) of this section.

(7) Waste analysis plans. Thegenerator of a comparable/syngas fuelshall develop and follow a written wasteanalysis plan which describes theprocedures for sampling and analysis ofthe hazardous waste to be excluded. Thewaste analysis plan shall be developedin accordance with the applicablesections of the ‘‘Test Methods forEvaluating Solid Waste, Physical/Chemical Methods’’ (SW–846). The planshall be followed and retained at thefacility excluding the waste.

(i) At a minimum, the plan mustspecify:

(A) The parameters for which eachhazardous waste will be analyzed andthe rationale for the selection of thoseparameters;

(B) The test methods which will beused to test for these parameters;

(C) The sampling method which willbe used to obtain a representativesample of the waste to be analyzed;

(D) The frequency with which theinitial analysis of the waste will bereviewed or repeated to ensure that theanalysis is accurate and up to date; and

(E) If process knowledge is used in thewaste determination, any informationprepared by the generator in makingsuch determination.

(ii) The waste analysis plan shall alsocontain records of the following:

(A) The dates and times wastesamples were obtained, and the datesthe samples were analyzed;

(B) The names and qualifications ofthe person(s) who obtained the samples;

(C) A description of the temporal andspatial locations of the samples;

(D) The name and address of thelaboratory facility at which analyses ofthe samples were performed;

(E) A description of the analyticalmethods used, including any clean-upand sample preparation methods;

(F) All quantitation limits achievedand all other quality control results forthe analysis (including method blanks,duplicate analyses, matrix spikes, etc.),laboratory quality assurance data, anddescription of any deviations fromanalytical methods written in the planor from any other activity written in theplan which occurred;

(G) All laboratory resultsdemonstrating that the exclusionspecifications have been met for thewaste; and

(H) All laboratory documentation thatsupport the analytical results, unless acontract between the claimant and thelaboratory provides for the


documentation to be maintained by thelaboratory for the period specified inparagraph (c)(11) of this section and alsoprovides for the availability of thedocumentation to the claimant uponrequest.

(iii) Syngas fuel generators shallsubmit for approval, prior to performingsampling, analysis, or any managementof a syngas fuel as an excluded waste,a waste analysis plan containing theelements of paragraph (c)(7)(i) of thissection to the appropriate regulatoryauthority. The approval of wasteanalysis plans must be stated in writingand received by the facility prior tosampling and analysis to demonstratethe exclusion of a syngas. The approvalof the waste analysis plan may containsuch provisions and conditions as theregulatory authority deems appropriate.

(8) Comparable fuel sampling andanalysis. (i) General. For each waste forwhich an exclusion is claimed, thegenerator of the hazardous waste musttest for all the constituents on appendixVIII to this part, except those that thegenerator determines, based on testingor knowledge, should not be present inthe waste. The generator is required todocument the basis of eachdetermination that a constituent shouldnot be present. The generator may notdetermine that any of the followingcategories of constituents should not bepresent:

(A) A constituent that triggered thetoxicity characteristic for the wasteconstituents that were the basis of thelisting of the waste stream, orconstituents for which there is atreatment standard for the waste code in40 CFR 268.40;

(B) A constituent detected in previousanalysis of the waste;

(C) Constituents introduced into theprocess that generates the waste; or

(D) Constituents that are byproductsor side reactions to the process thatgenerates the waste.

Note to paragraph (c)(8): Any claim underthis section must be valid and accurate for allhazardous constituents; a determination notto test for a hazardous constituent will notshield a generator from liability should thatconstituent later be found in the waste abovethe exclusion specifications.

(ii) For each waste for which theexclusion is claimed where thegenerator of the comparable/syngas fuelis not the original generator of thehazardous waste, the generator of thecomparable/syngas fuel may not useprocess knowledge pursuant toparagraph (c)(8)(i) of this section andmust test to determine that all of theconstituent specifications of paragraphs(a)(2) and (b) of this section have beenmet.

(iii) The comparable/syngas fuelgenerator may use any reliableanalytical method to demonstrate thatno constituent of concern is present atconcentrations above the specificationlevels. It is the responsibility of thegenerator to ensure that the samplingand analysis are unbiased, precise, andrepresentative of the waste. For thewaste to be eligible for exclusion, agenerator must demonstrate that:

(A) Each constituent of concern is notpresent in the waste above thespecification level at the 95% upperconfidence limit around the mean; and

(B) The analysis could have detectedthe presence of the constituent at orbelow the specification level at the 95%upper confidence limit around themean.

(iv) Nothing in this paragraphpreempts, overrides or otherwisenegates the provision in § 262.11 of thischapter, which requires any person whogenerates a solid waste to determine ifthat waste is a hazardous waste.

(v) In an enforcement action, theburden of proof to establishconformance with the exclusionspecification shall be on the generatorclaiming the exclusion.

(vi) The generator must conductsampling and analysis in accordancewith their waste analysis plandeveloped under paragraph (c)(7) of thissection.

(vii) Syngas fuel and comparable fuelthat has not been blended in order tomeet the kinematic viscosityspecifications shall be analyzed asgenerated.

(viii) If a comparable fuel is blendedin order to meet the kinematic viscosityspecifications, the generator shall:

(A) Analyze the fuel as generated toensure that it meets the constituent andheating value specifications; and

(B) After blending, analyze the fuelagain to ensure that the blended fuelcontinues to meet all comparable/syngasfuel specifications.

(ix) Excluded comparable/syngas fuelmust be re-tested, at a minimum,annually and must be retested after aprocess change that could change thechemical or physical properties of thewaste.

(9) Speculative accumulation. Anypersons handling a comparable/syngasfuel are subject to the speculativeaccumulation test under § 261.2(c)(4) ofthis chapter.

(10) Records. The generator mustmaintain records of the followinginformation on-site:

(i) All information required to besubmitted to the implementingauthority as part of the notification ofthe claim:

(A) The owner/operator name,address, and RCRA facility ID number ofthe person claiming the exclusion;

(B) The applicable EPA HazardousWaste Codes for each hazardous wasteexcluded as a fuel; and

(C) The certification signed by theperson claiming the exclusion or hisauthorized representative.

(ii) A brief description of the processthat generated the hazardous waste andprocess that generated the excludedfuel, if not the same;

(iii) An estimate of the average andmaximum monthly and annualquantities of each waste claimed to beexcluded;

(iv) Documentation for any claim thata constituent is not present in thehazardous waste as required underparagraph (c)(8)(i) of this section;

(v) The results of all analyses and alldetection limits achieved as requiredunder paragraph (c)(8) of this section;

(vi) If the excluded waste wasgenerated through treatment orblending, documentation as requiredunder paragraph (c)(3) or (4) of thissection;

(vii) If the waste is to be shipped off-site, a certification from the burner asrequired under paragraph (c)(12) of thissection;

(viii) A waste analysis plan and theresults of the sampling and analysis thatincludes the following:

(A) The dates and times wastesamples were obtained, and the datesthe samples were analyzed;

(B) The names and qualifications ofthe person(s) who obtained the samples;

(C) A description of the temporal andspatial locations of the samples;

(D) The name and address of thelaboratory facility at which analyses ofthe samples were performed;

(E) A description of the analyticalmethods used, including any clean-upand sample preparation methods;

(F) All quantitation limits achievedand all other quality control results forthe analysis (including method blanks,duplicate analyses, matrix spikes, etc.),laboratory quality assurance data, anddescription of any deviations fromanalytical methods written in the planor from any other activity written in theplan which occurred;

(G) All laboratory analytical resultsdemonstrating that the exclusionspecifications have been met for thewaste; and

(H) All laboratory documentation thatsupport the analytical results, unless acontract between the claimant and thelaboratory provides for thedocumentation to be maintained by thelaboratory for the period specified inparagraph (c)(11) of this section and also


provides for the availability of thedocumentation to the claimant uponrequest; and

(ix) If the generator ships comparable/syngas fuel off-site for burning, thegenerator must retain for each shipmentthe following information on-site:

(A) The name and address of thefacility receiving the comparable/syngasfuel 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 orother information used to make thedetermination that the comparable/syngas fuel meets the specifications asrequired under paragraph (c)(8) of thissection; and

(E) A one-time certification by theburner as required under paragraph(c)(12) of this section.

(11) Records retention. Records mustbe maintained for the period of threeyears. A generator must maintain acurrent waste analysis plan during thatthree year period.

(12) Burner certification. Prior tosubmitting a notification to the Stateand Regional Directors, a comparable/syngas fuel generator who intends toship their fuel off-site for burning must

obtain a one-time written, signedstatement from the burner:

(i) Certifying that the comparable/syngas fuel will only be burned in anindustrial furnace or boiler, utilityboiler, or hazardous waste incinerator,as required under paragraph (c)(2) ofthis section;

(ii) Identifying the name and addressof the units that will burn thecomparable/syngas fuel; and

(iii) Certifying that the state in whichthe burner is located is authorized toexclude wastes as comparable/syngasfuel under the provisions of this section.

(13) Ineligible waste codes. Wastesthat are listed because of presence ofdioxins or furans, as set out inAppendix VII of this part, are noteligible for this exclusion, and any fuelproduced from or otherwise containingthese wastes remains a hazardous wastesubject to full RCRA hazardous wastemanagement requirements.

PART 270—EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMITPROGRAM


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

Subpart D—Changes to Permits

2. Section 270.42 is amended byadding a new paragraph (j) to read asfollows:

§ 270.42 Permit modification at the requestof the permittee.

* * * * *(j) Combustion facility changes to

meet part 63 MACT standards. Thefollowing procedures apply tohazardous waste combustion facilitypermit modifications requested underAppendix I of this section, section L(9).

(1) Facility owners or operators mustcomply with the Notification of Intent toComply (NIC) requirements of 40 CFR63.1211 before a permit modificationcan be requested under this section.

(2) If the Director does not approve ordeny the request within 90 days ofreceiving it, the request shall be deemedapproved. The Director may, at his orher discretion, extend this 90 daydeadline one time for up to 30 days bynotifying the facility owner or operator.

3. In § 270.42 Appendix I is amendedby adding entry L(9) to read as follows:

Appendix I to § 270.42—Classificationof Permit Modification

Modification Class

L. Incinerators, Boilers and Industrial Furnaces 1 1

* * * * * * *

9. Technology Changes Needed to meet Standards under 40 CFR part 63 (Subpart EEE—National Emission Standards for Hazardous AirPollutants 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 byadding paragraph (b)(8) to read asfollows:

§ 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 PollutantsFrom Hazardous Waste Combustors.

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

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