[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Rules and Regulations]
[Pages 33782-33829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15843]



[[Page 33781]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 63, 261, and 270



Hazardous Waste Combustors; Revised Standards; Final Rule

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

[[Page 33782]]


-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 261, and 270

[EPA F-98-RCSF-FFFFF; FRL-6110-3]
RIN 2050-AE01


Hazardous Waste Combustors; Revised Standards; Final Rule--Part 
1: RCRA Comparable Fuel Exclusion; Permit Modifications for Hazardous 
Waste Combustion Units; Notification of Intent To Comply; Waste 
Minimization and Pollution Prevention Criteria for Compliance 
Extensions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On April 19, 1996, EPA proposed revisions for air emission 
standards for certain hazardous waste combustion units. Today's rule 
finalizes some elements of that proposal. These elements include a 
conditional exclusion from RCRA for fuels which are produced from a 
hazardous waste, but which are comparable to some currently used fossil 
fuels; a new RCRA permit modification provision which is intended to 
make it easier for facilities to make changes to their existing RCRA 
permits when adding air pollution control equipment or making other 
changes in equipment or operation needed to comply with the upcoming 
air emission standards; notification requirements for sources which 
intend to comply with the final rule; and allowances for extensions to 
the compliance period to promote the installation of cost effective 
pollution prevention technologies to replace or supplement emission 
control technologies for meeting the emission standards.

EFFECTIVE DATE: This rule is effective on June 19, 1998.

ADDRESSES: The public docket for this rulemaking is available for 
public inspection at EPA's RCRA Docket, located at Crystal Gateway, 
First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The 
regulatory docket for this final rule contains a number of background 
materials. To obtain a list of these items, contact the RCRA Docket at 
703-603-9230 and request the list of references in EPA Docket #F-98-
RCSF-FFFFF.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9:00 a.m.-
6:00 p.m. EST, at 800-424-9346 (toll-free); 703-412-9810 (from 
Government phones or if in the Washington, D.C. local calling area); or 
800-553-7672 (for the hearing impaired). For more detailed information 
on specific aspects of the rulemaking, contact Mary Jo Krolewski on the 
comparable fuel exclusion at (703) 308-7754, Tricia Buzzell on permit 
modifications at (703) 308-8632, James Lounsbury on waste minimization 
and pollution prevention at (703) 308-8463, David Hockey on the 
notification of intent to comply at (703) 308-8846, or by writing, to 
U.S. Environmental Protection Agency, Office of Solid Waste, Permits 
and State Programs Division, 401 M St., S.W. (Mailcode 5303W), 
Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION: This rule is available on the Internet. 
Please follow these instructions to access the rule electronically:
From the World Wide Web (WWW), type either
    http://www.epa.gov/epaoswer/hazwaste/combust/fastrack.

    EPA's ``Pollution Prevention Facility Planning Guide'' (May, 1992; 
NTIS #PB92-213206) describes the series of analytical steps that are 
often used by companies to identify waste minimization measures. 
Additional EPA references include: ``Waste Minimization Opportunity 
Assessment Manual (EPA 625/7-88/003, July 1988), Interim Final 
``Guidance to Hazardous Waste Generators on the Elements of a Waste 
Minimization Program In Place,'' (May 1993), ``An Introduction to 
Environmental Accounting As a Business Management Tool'' (EPA 742-R-95-
001, June 1995), the ``P2/Finance User's Manual: Pollution Prevention 
Financial Analysis and Cost Evaluation System for Lotus 1-2-3 (EPA 742-
B-94-003, January 1994), and Enviro$ense, an electronic library of 
information on pollution prevention, technical assistance, and 
environmental compliance. Many of these and other documents can be 
accessed by contacting the RCRA Hotline toll-free at 1-800-424-9346. 
Enviro$ense can be accessed by contacting a system operator at (703) 
908-2007, or on the Internet at http://wastenot.inel.gov/enviro-sense. 
Information on State waste minimization programs can be obtained 
through Enviro$ense, directly from the State pollution prevention 
program offices, or from the National Pollution Prevention Roundtable 
at E-mail address [email protected], by phone at 202-466-7272 
in Washington, D.C.
    The official record for this action is kept in a paper format. 
Accordingly, EPA has transferred all electronic comments received into 
paper form and placed them into the official record, with all the 
comments received in writing. The official record is maintained at the 
address in the ADDRESSES section at the beginning of this document.
    EPA's responses to comments have been incorporated in a ``Response 
to Comments'' document, which has been placed into the official record 
for this rulemaking. The major comments and responses are discussed in 
the Response to Comment sections of this preamble.
    The contents of today's preamble are listed in the following 
outline:

I. Authority

II. Scope of Final Rule

III. Comparable Fuels Exclusion

A. EPA's Approach to Establishing Benchmark Constituent Levels
    1. The Benchmark Approach
    2. Selection of the Benchmark Fuels
B. Options for the Benchmark Approach
    1. Selection of Percentile Level
    2. Composite v. Individual Specifications
C. Parameters for the Comparable Fuel Specification
    1. Physical Specifications
    2. General Constituent Specifications
    3. Individual Hazardous Constituent Specifications
D. Parameters for the Synthesis Gas Fuel Exclusion
    1. Physical Specifications
    2. General Constituent Specifications
    3. Individual Hazardous Constituent Specifications
E. Meeting the Comparable Fuel Specifications
    1. Potential Applicability of Today's Rule to Specific Waste 
Codes
    2. General
    3. Blending
    4. Treatment
F. Meeting the Syngas Fuel Specifications
G. Sampling and Analysis
    1. Use of Process Knowledge
    2. Waste Analysis Plan
    3. Methods to Analyze Comparable Fuels
    4. Syngas Waste Analysis Plan and Analysis Methods
    5. Non-detects
H. Notification, Certification, and Documentation
    1. Who Must Make the Exclusion Notification
    2. Notification Requirements
I. Exclusion Status
J. Recordkeeping
    1. General
    2. Off-site Shipment
K. Transportation and Storage
L. Comparable Fuels Exclusion and Waste Minimization
    1. Introduction
    2. Major Concerns of Commenters

IV. RCRA Permit Modifications for Hazardous Waste Combustion Units

A. Introduction
B. Overview
    1. Background on RCRA Permit Modification Procedures
    2. Shortcomings of the Current Procedures

[[Page 33783]]

    3. How Today's Rule Impacts the Procedures
C. Discussion of RCRA Permit Modification Procedures for Facilities 
Coming Into Compliance With MACT Requirements
    1. Summary of Proposed Options
    2. Summary of Public Comments
    3. Response to Comments and Discussion of Final Provisions
D. Summary of Public Comments
E. Response to Comments
F. RCRA Changes in Interim Status Procedures

V. Notification of Intent to Comply and Progress Report

A. Background
B. Summary of Final Provisions
C. Discussion of Public Comments and Final NIC Provisions
    1. General
    2. Purpose of the NIC
    3. Timing
    4. NIC Meeting
    5. Relation Between NIC and Other Notification Requirements
D. Discussion of Public Comments and Progress Report
    1. Overview
    2. Summary of Progress Report Requirements
E. Certification
F. Extension of the Compliance Date
G. Sources Which Become Affected After the Effective Date of This 
Subpart

VI. Waste Minimization and Pollution Prevention

A. Overview
B. Background
C. Summary of Proposed Pollution Prevention/Waste Minimization 
Incentives and Comments Received
D. Waste Minimization Incentives Contained in Today's Rule

VII. State Authority

A. RCRA State Authorization
B. Program Delegation under the Clean Air Act

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates

IX. Submission to Congress and the General Accounting Office

X. Environmental Justice

A. Applicability of Executive Order 12898
B. Potential Effects

XI. Children's Health

XII. National Technology Transfer and Advancement Act

I. Authority

    These regulations are being finalized under the authority of 
sections 1004, 1006, 2002, 3001, 3004, 3005, and 7004 of the Solid 
Waste Disposal Act of 1965, as amended, including amendments by the 
Resource Conservation and Recovery Act.

II. Scope of the Final Rule

    On April 19, 1996, EPA proposed rules to control emissions of HAPs 
from hazardous waste-burning incinerators, cement kilns, and light 
weight aggregate kilns. (61 FR 17358) After promulgation of the 
proposal, the Agency issued the following notices of data availability 
(NODA): NODA 1 (Peer review and Comparable fuels)--August 23, 1996: 61 
FR 43501; NODA 2 (Revised emissions database)--January 7, 1997: 62 FR 
960; Continuous Emissions Monitoring Systems (CEMS) NODA--March 21, 
1997: 62 FR 13775; NODA 3 (MACT standards and implementation)--May 2, 
1997: 62 FR 24212; and NODA 4 (Comparable fuels data)--September 9, 
1997: 62 FR 47402.
    Today's final rule addresses four elements of the April 19, 1996 
(61 FR 17358) proposal to revise the standards for hazardous waste 
combustors. The remaining issues of the proposal will be addressed in 
final rules in the near future.

III. Comparable Fuels Exclusion

    Under this final rule, EPA is excluding from the regulatory 
definition of solid waste hazardous waste-derived fuels that meet 
specification levels comparable to fossil fuels for concentrations of 
hazardous constituents and for physical properties that affect 
burning.\1\ The exclusion would apply to the comparable fuel from the 
point it is generated and would be claimed by the person generating the 
comparable fuel (which person can include a hazardous waste treater). 
With respect to the fuels, generators of the comparable fuel would have 
to comply with sampling and analysis, notification and certification, 
and recordkeeping requirements in order for their fuels to be excluded. 
The exclusion potentially applies to gaseous and liquid hazardous 
waste-derived fuels. However, this exclusion does not apply to solids 
or to used oil, which is subject to special standards under 40 CFR Part 
279.
---------------------------------------------------------------------------

    \1\ We note that DOW Chemical Company (Dow) in a petition to the 
Administrator, dated August 10, 1995, specifically requested that 
the Agency develop a generic exclusion for ``materials that are 
burned for energy recovery in on-site boilers which do not exceed 
the levels of fossil fuel constituents* * *.'' (Petition, at p.3). 
This final rule also responds to that petition.
---------------------------------------------------------------------------

    Today's rule is consistent with EPA's goal to develop a comparable 
fuel specification which is of use to the regulated community but 
assures that an excluded waste-derived fuel is similar in composition 
to commercially available fuel and therefore poses no greater risk than 
burning fossil fuel. Accordingly, EPA is using a ``benchmark approach'' 
to identify a specification that would ensure that constituent 
concentrations and physical properties of excluded waste-derived fuel 
are comparable to those of fossil fuels.
    The rationale for the Agency's approach is that if a hazardous 
waste-derived fuel is comparable to a fossil fuel in terms of hazardous 
and other key constituents and has a heating value indicative of a 
fuel, EPA has discretion to classify such material as a fuel product, 
not as a waste. Given that a comparable fuel would have legitimate 
energy value and the same hazardous constituents in comparable 
concentrations to those in fossil fuel (and satisfies other parameters 
related to comparability as well), classifying such material as a fuel 
product and not as a waste promotes RCRA's resource recovery goals 
without creating any risk greater than those posed by the commonly used 
commercial fuels. Under these circumstances, EPA can permissibly 
classify a comparable fuel as a non-waste. See 46 FR 44971 (August 8, 
1981) (exemption from Subtitle C regulation for spent pickle liquor 
used as a wastewater treatment agent in part because of its similarity 
in composition to the commercial acids that would be used in its 
place); 50 FR 49180, 49181, 49183 (November 29, 1985) (explanation of a 
similar type of benchmark approach in establishing used oil fuel 
specification); 53 FR at 31164 (August 18, 1988) (exemption for certain 
hazardous waste-derived fertilizers due to similarity to the commercial 
fertilizers that would be used in their place).
    Put another way, EPA can reasonably determine that a material which 
is a legitimate fuel and which contains hazardous constituents at 
levels comparable to fossil fuels is not being ``discarded'' within the 
meaning of RCRA section 1004 (27). ``Discarded'' itself is an ambiguous 
term, see American Petroleum Inst. v. EPA, 906 F. 2d 729, 741 (D.C. 
Cir. 1990). EPA's interpretation that hazardous waste-derived fuels 
which are comparable to fossil fuels need not be considered to be 
``discarded'' serves the statutory objective of encouraging resource 
recovery. RCRA section 1003 (a) (10). In addition, burning of such 
fuels does not present the element of discarding hazardous constituents 
through combustion that underlies the typical classification of 
hazardous waste-derived fuels as a solid waste. 50 Fed. Reg. at 629-630 
(Jan. 4, 1985). This is because, as noted, hazardous constituent 
concentration levels are comparable to those in fossil fuels.

[[Page 33784]]

    The case law further makes clear that EPA may classify secondary 
materials as ``discarded'' based, at least in part, upon whether such 
materials may be considered part of the waste management problem. 
American Mining Congress v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990). 
Today's rule contains conditions to assure that burning of comparable 
fuels will not become part of the waste management problem. The chief 
condition is limitation on burning to industrial furnaces (as defined 
in 260. 10), industrial and utility boilers, and hazardous waste 
incinerators. Another condition prevents specification limits for 
hazardous constituents being achieved by means of dilution, so that the 
total volume of hazardous constituents emitted from burning comparable 
fuels would remain comparable to those from burning fossil fuels. The 
rule also contains notification and record keeping conditions which 
assure that the fuels meet the specification and will be burned in the 
requisite type of unit, and that this can be verified objectively by 
third persons.
    EPA notes that today's final rule is consistent with the main 
approach discussed in the Dow petition (see footnote 1 above), which 
also points out a number of benefits that would result from 
promulgating this type of exclusion: (1) Support for the statutory goal 
of promoting beneficial energy recovery and resource conservation; (2) 
reduction of unnecessary regulatory burden and allowing all parties to 
focus resources on higher permitting and regulatory priorities; and (3) 
demonstration of a common-sense approach to regulation. Dow's petition 
contained data on the chemical and physical aspects of the fuel for 
which the petition was submitted. Based on these data and additional 
data submitted during the comment period, it appears that the waste 
petitioned for exclusion by Dow meets the individual physical and 
chemical comparable fuel specifications set forth in this rule. Today's 
rule does not exclude Dow's wastestreams or other wastestreams for 
which commenters submitted data that may meet the specifications of the 
final rule. It remains the responsibility of the generator to comply 
with the specifications of the comparable fuel exclusion stipulated by 
the State RCRA implementing authority.

A. EPA's Approach to Establishing Benchmark Constituent Levels

1. The Benchmark Approach
    EPA considered using risk to human health and the environment as 
the way to determine the scope and levels of a ``clean fuels'' 
specification. However, the Agency encountered several technical and 
implementation problems using a purely risk-based approach to develop a 
national rule. Specifically, EPA has insufficient data relating to the 
types of waste burned and the risks they pose to develop a fully 
protective and complete ``clean fuels'' exemption. EPA also does not 
have sufficient data to determine the relationship between the amount 
of ``clean fuel'' burned and emissions, especially of dioxins and other 
non-dioxin PICs. EPA also does not know how emissions (likely 
uncontrolled) at the multitude of actual facilities that would burn an 
excluded fuel would compare to emissions from the example facilities 
that EPA would use to derive a ``clean fuel'' specification. (Emissions 
and/or risks at a given facility could be higher than those of the 
example facilities given site-specific considerations.) Without 
considering all reasonable, possible emission scenarios, which is not 
feasible for the Agency at this time, the Agency is not prepared today 
to address these potential risks \2\.
---------------------------------------------------------------------------

    \2\ It is possible to determine on an individual basis that 
particular waste-derived fuel should be excluded from RCRA on risk-
based grounds. See 63 FR at 18533 (April 15, 1998) where EPA 
finalized such an exclusion for a waste fuel which could be 
generated by the pulp and paper industry. However, EPA cautions that 
making such a demonstration is difficult (because of potential 
uncertainties regarding combustion conditions and exposure patterns) 
and resource-intensive for the Agency to evaluate, and would still 
involve rulemaking.
---------------------------------------------------------------------------

    The Chemical Manufacturers Association (CMA) submitted a proposal 
to exempt certain ``clean'' liquid wastes from RCRA regulation. (61 FR 
at 17469) Unlike EPA's benchmark-based comparable fuel approach, the 
CMA approach would establish ``clean fuel'' specifications for mercury, 
LVM, and SVM metals based on the technology-based MACT emissions 
standards proposed for hazardous waste combustors on April 19, 1996. As 
just discussed above, EPA is concerned about using risk to establish a 
``clean fuel'' specification. EPA does not have data available 
documenting that emissions from burning a ``clean fuel'' would not pose 
a significant risk for the potential combustion and management 
scenarios in which the clean fuel exclusion from RCRA might be used. 
Therefore, EPA will not be adopting CMA's proposal in today's rule, but 
may address aspects of the CMA concept in future actions if appropriate 
and feasible.
    The Agency instead developed a comparable fuel specification, based 
on the level of hazardous and other constituents normally found in 
fossil fuels. EPA refers to this as the benchmark approach. For this 
approach, EPA set a comparable fuel specification such that 
concentrations of hazardous constituents in the comparable fuel could 
be no greater than the concentration of hazardous constituents normally 
occurring in commercial fossil fuels. Thus, EPA expects that the 
comparable fuel would pose no greater risk when burned than a fossil 
fuel and would at the same time be physically comparable to a fossil 
fuel, leading to the conclusion that EPA may classify these materials 
as products, not wastes. See proposal for more details (61 FR 17460, 
April 19, 1996).
    Some commenters argued that by using a benchmark approach, EPA had 
failed to assess potential risks to human health and the environment 
resulting from the exclusion. Commenters argued that EPA cannot 
determine that there are no adverse risks by the comparison to fossil 
fuels. EPA disagrees with commenters conclusions concerning the need to 
determine absolute risk. In this final rule, EPA is setting a 
comparable fuel specification with concentrations of hazardous 
constituents no greater than the concentrations of hazardous 
constituents occurring in fossil fuels. Thus, EPA reasonably expects--
based on the methodology used to establish the specification--that the 
comparable fuel will pose no greater risk when burned than a fossil 
fuel and concomitant energy recovery benefits will be realized from 
reusing the waste to displace fossil fuels. The Agency concludes it has 
discretion in exercising jurisdiction over hazardous waste-derived 
fuels that are essentially the same as fossil fuel, since there would 
likely not be environmental benefits from regulating those hazardous 
waste-derived fuels (i.e., burners would likely just choose to burn 
fossil fuels). Indeed, as explained below, many commercial fuels could 
be less ``clean'' than the comparable fuels, so that substitution of 
some commercial fuels could be a net deterrent. See 50 FR at 49186 
(November 29, 1985) where EPA discussed similar considerations when 
developing a specification for used oil fuel. See also discussion above 
as to why such fuels need not be considered to be ``discarded''. EPA 
has therefore decided not to regulate comparable hazardous waste-
derived fuels meeting the benchmark specifications as hazardous waste 
under RCRA.
    Furthermore, the Agency notes that the comparable fuel exclusion 
promulgated today is the first phase in addressing the ``clean fuels'' 
issue. Although EPA has identified problems with commenters' 
alternatives, there is

[[Page 33785]]

room for further expansion of the comparable or clean fuel concept. EPA 
will continue to work with the regulated community to identify areas to 
expand the approach taken in today's final rulemaking.
2. Selection of the Benchmark Fuels
    Since commercially available fossil fuels are diverse, EPA 
considered a range of fuels upon which to base its benchmark fuel 
selection. Available fuels ranged from gases, such as natural gas and 
propane, to liquids (such as gasoline and fuel oils) to solids (such as 
coal, coke, and peat). The Agency proposed a benchmark based on liquid 
fossil fuels (gasoline, No.2 fuel oil, and No.6 fuel oil). (61 FR at 
17462)
    Commenters argued that EPA should consider solid fossil fuels in 
developing the benchmark specifications. Commenters believe that 
materials such as coal are fuels that are widely used throughout the 
U.S. and failing to consider these materials ignores legitimate fuels 
used by certain industries. EPA disagrees with commenters' requests to 
include solid fossil fuels in its benchmark specification. From an 
environmental standpoint, the comparable fuel specification, which 
would exclude a hazardous waste-derived fuel from RCRA subtitle C 
regulation, should not be based on fossil fuels that have high levels 
of toxic constituents that will not be destroyed or detoxified by 
burning (e.g., metals and halogens). Data show that solid fossil fuels 
have comparatively higher metal \3\ and possibly halogen levels than 
liquid fossil fuels \4\. Metals and halogens are not destroyed in the 
combustion process unlike organic constituents which are commonly 
destroyed or detoxified through combustion. Comparison with this type 
of fuel could easily result in a least common denominator approach 
whereby a hazardous waste-derived fuel would be ``comparable'' if it 
was no more dangerous to burn than the most contaminated fossil fuels. 
Such ``comparability'' is not congruent with the overall objective of 
RCRA to protect human health and the environment and is inconsistent 
with the specific directive to regulate combustion of hazardous waste-
derived fuels where necessary to protect human health and the 
environment. (RCRA section 3004(q)). Thus, while EPA has chosen to use 
a benchmark rather than a risk-based approach, the Agency has chosen 
benchmark fuels that, in general, have lower contaminant levels for 
constituents that are not destroyed. Therefore, in today's rule, EPA is 
not using solid fossil fuels as part of the comparative benchmark.
---------------------------------------------------------------------------

    \3\ A smaller fraction of metals in coal partitions to emissions 
than for liquid fuels. Given that most potentially comparable fuels 
are liquids, allowing metals at the concentrations present in coal 
could result in substantially higher metals emissions.
    \4\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Standards, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

    EPA also will not be using a gas fuels as benchmarks. Basing the 
comparable fuel specification on a gas fuel would be overly 
conservative and have no utility to the regulated industry. (The reader 
should note that EPA is promulgating an exclusion for a particular type 
of hazardous waste-derived fuel, namely a type of synthesis gas 
(``syngas'') meeting particular specifications (see Section D below). 
This hazardous waste derived gas can be used as a fuel and an exclusion 
provides beneficial resource recovery.) Liquid fuels, on the other 
hand, are widely used by industry, readily combusted, and do not 
present the inconsistencies of solid or gaseous fuels. Simply put, the 
Agency, in assessing comparability, is not required to base a 
specification on either the most or least contaminated fossil fuels, 
but may reasonably choose a median, in this case, representative fuel 
oils. In this final rule, EPA is selecting only liquid fuels for its 
benchmark fuel specification.
    With regard to liquid fuels, commenters argued that EPA should 
consider as benchmark fuels non-petroleum liquid based fuels such as 
turpentine and tall oil. One commenter recommended that EPA identify 
turpentine as a benchmark fuel because it has a very high Btu value and 
is used as a fuel (and a manufacturing feedstock) both within and 
outside the forest products industry. Another commenter pointed out 
that tall oil is not only used in commerce as a traditional fuel, but 
that EPA has previously noted that tall oil is a legitimate non-waste 
fuel under the BIF rule low risk waiver exemption (LRWE) and DRE trial 
burn exemptions (56 FR 7193, February 21, 1991).
    While EPA is interested in establishing a broad-based benchmark of 
liquid fuels, EPA disagrees that turpentine should be included in the 
benchmark specification. Turpentine is not a widely used commercial 
fuel. There are no ASTM standards for turpentine fuel which specify the 
minimum properties which must be met for the product to be considered 
as a commercial fuel. By contrast, there are ASTM specifications for 
each of the petroleum fossil fuels EPA is using as a benchmark.
    EPA does agree with the commenter that tall oil is used in commerce 
as a traditional fuel and could be used as a benchmark fuel. At the 
time of the proposal, EPA had no data on tall oil. The commenter did 
submit one set of data that EPA was unable to use because it did not 
meet EPA data quality standards. Therefore, at this time, EPA will not 
include tall oil in its benchmark fuels.
    Finally, some commenters did not support the use of gasoline for 
setting comparable fuel specifications, because it is not typically 
utilized in industrial boilers and furnaces. Gasoline is typically 
limited used in internal combustion engines, and the commenter did not 
anticipate that industry or individuals will utilize hazardous waste-
derived fuels in automobiles, trucks and buses. EPA disagrees that 
gasoline should be excluded as one of the benchmark fuels. The Agency 
notes that gasoline is a widely used, commercially available, liquid 
fuel and EPA does not believe that our selection is necessarily limited 
to fuel burned in boilers or industrial furnaces. EPA has chosen its 
benchmark fuels so that the resulting comparable fuel when substituted 
would have hazardous constituents lower than the fuel it replaces. 
However, because the comparable fuel will not be substituted for use in 
gasoline applications (the exclusion is restricted to air regulated 
stationary combustion units, see Section H below), the rationale for 
the inclusion of gasoline differs. The Agency believes that gasoline 
provides a reasonable upper boundary for volatile organics, which are 
fuel-worthy constituents. The Agency notes that unlike some solid 
fuels, gasoline has low concentrations of metals. When compared to 
lighter fuel oils (e.g., No. 2 fuel oil), the gasoline specification 
has higher specifications for only the detected volatile organics, 
which are readily burnable compounds.

B. Options for the Benchmark Approach

    At proposal, EPA presented several options for deciding what fossil 
fuel(s) data to use as the benchmark. The options range from developing 
a suite of comparable fuel specifications based on individual benchmark 
fuels (i.e., gasoline, No. 2, No. 4, No. 6) to basing the specification 
on composite values derived from the analysis of all benchmark fuels. 
(61 FR at 17643).
    EPA took comment on individual benchmark fuel specifications based 
on gasoline, No. 2, and No. 6 fuel oil, using the 90th percentile 
values for the basis of the individual specifications. Under this 
approach, individual fuel specification(s) could be implemented

[[Page 33786]]

in one of two ways. First, a facility could use any of the individual 
benchmark specifications, without regard to what fuel it currently 
burns. The second approach is to link the comparable fuel specification 
to the type of fuel burned at the facility and being displaced by the 
comparable fuel. Under a composite fuel benchmark approach, EPA took 
comment on using: (1) The 90th percentile aggregate values for the 
benchmark fuels; and (2) the 50th percentile aggregate values for the 
benchmark fuels. (61 FR at 17643).
1. Selection of Percentile Level
    To calculate benchmark specifications, EPA obtained 27 fossil fuel 
samples, comprised of eight gasoline, eleven No. 2, one No. 4, and 
seven No. 6 fuel oil samples. Due to the small sample sizes of each 
fuel type, EPA initially used a nonparametric rank order statistical 
approach to analyze the fuel data. Rank order involved ordering the 
data for each constituent from lowest to highest concentration, 
assigning each data point a percentile value from lowest to highest 
percentile, respectively. Results were then calculated from the data 
percentiles. Because there were different numbers of samples for each 
fuel type, EPA was concerned that the fuel with the largest number of 
samples would dominate the composite database. To address this issue, 
EPA's statistical analysis ``normalized'' the number of samples, i.e., 
treated each fuel type in the composite equally without regard to the 
number of samples taken.5 See Kennecott v. EPA, 780 F.2d 
445, 457 (4th Cir. 1985) (upholding this statistical methodology). The 
fuel samples were weighted equally because this weighting reflects the 
fact that benchmark fuels can be used interchangeably in stationary 
combustion units. In addition, as noted in the next section, equal 
weighting prevented over-estimation of either metals and semi-volatiles 
in No. 6 fuel oil or volatiles in the higher end fractions.
---------------------------------------------------------------------------

    \5\ For the gasoline sample analysis, the resulting detection 
limits for volatile organic compounds were an order of magnitude 
higher than the other fuel specifications. EPA believes analysis of 
comparable fuels will more likely result in detection limits much 
lower than gasoline and similar to those associated with analysis of 
fuel oils. To address this issue, EPA has performed an analysis of a 
fuel oil-only composite (one which does not include gasoline in the 
composite) to use as a surrogate for the volatile organic gasoline 
non-detect values. Therefore, the volatile organic gasoline non-
detect values used in the development of the composite and 
individual gasoline specification were based on this fuel oil-only 
composite.
---------------------------------------------------------------------------

    One commenter argued that EPA's proposed constituent-by-constituent 
comparison approach is flawed because it ignores the compounding effect 
of joint probability. The commenter has examined the rank order 
statistics technique EPA used and has concluded that the percentile 
values for the individual constituents must be set higher for all of 
them to meet the overall percentile value simultaneously. For example, 
a candidate comparable fuel taken from the same reservoir as a 
benchmark fuel would, because of random variability in constituent 
concentrations, have a 23 percent chance of ``failing'' a comparison to 
a benchmark (at the 90th percentile) that has 14 constituents above the 
detection limits. Thus the commenter argued that the proposed 
constituent-by-constituent comparison would have little utility to the 
regulated community.
    While EPA believes there is some interdependence among individual 
constituents and that the principle of joint probability cannot be 
strictly applied, EPA is inclined to agree with the commenter. At the 
time of proposal, EPA believed that a 50th percentile analysis 
represented a midpoint of potential benchmark fuels that were studied. 
EPA also believed that a 90th percentile analysis represented a 
reasonable upper bound of what is found in all fuels capturing 
variability both with each fuel category and in the case of the 
composite approach, between categories. However, when the individual 
fuel samples were compared to the benchmark specifications, EPA found 
that at the 50th percentile composite none of the virgin fuel samples 
met the specification and at the 90th percentile composite only 40 
percent met the specification. This appears to confirm the commenter's 
concern over joint probability, and reflects on the degree to which the 
comparable fuels exclusion would actually be useable. It was EPA's goal 
to base the comparable fuel specifications on the 99th percentile, a 
level near which 90 percent of EPA's individual fuel samples would meet 
the specification. However, the size of the data base precluded the 
calculating of a 99th percentile constituent specification. Therefore, 
in this case, the Agency used the largest measured value to approximate 
an upper percentile. In the future, EPA may choose alternative methods 
of evaluating any new data that may be submitted suggesting that these 
specifications need to be modified. After re-calculating the 
specification taking joint probability into account, the composite at 
the largest value more closely represents what EPA intended to propose 
with the 90th percentile, a reasonable upper bound that is also useable 
in practice. The 90th percentile closely represents what EPA intended 
with the proposed 50th percentile, i.e., a midpoint.
    Some commenters did support the 50th percentile because they argued 
it was more protective. The majority of commenters supported the 90th 
percentile and some commenters argued for the use of a higher 
percentile, i.e., 95th or 99th. Because none of EPA's own fuel samples 
meet this specification, the 50th percentile is overly conservative. If 
EPA selected the 50th percentile, comparable fuels would have to be 
``cleaner'' than all commercial liquid fuels (or at least all of those 
in the Agency's current database), which would greatly restrict the 
utility of the provision. Also, with such a strict approach, additional 
quantities of virgin oils with higher contaminant levels would be 
burned, leading to greater emissions than if a higher percentile was 
chosen. Therefore, EPA agrees with commenters that a higher percentile 
better reflects the liquid fossil fuels burned nationally and is a 
better benchmark.
    After considering the issue of joint probability, EPA has decided 
to promulgate a composite specification based on the largest measured 
value to approximate what 90 percent of individual benchmark fuels are 
likely to meet. This approach has the virtue of being representative of 
a range of fuels that are burned nationally in combustion devices.
    Based on the proposal, EPA had the option of choosing between an 
individual fuel specification approach and a composite approach. The 
majority of commenters supported using the composite specification plus 
the suite of individual fuel specifications that could be used 
irrespective of the fuel displaced.
    The composite approach has advantages over the individual fuel 
specification approach. One issue associated with the single fuel 
specification approach is that gasoline has relatively higher levels of 
volatile organic compounds while No. 6 fuel oil has higher levels of 
semi-volatile organic compounds and metals. If a potential comparable 
fuel were to have a volatile organic constituent concentration below 
the gasoline specification but higher than the others and a particular 
metal concentration lower than the No. 6 fuel oil specification but 
higher than gasoline, it would not be a comparable fuel since it meets 
no single specification entirely. Therefore, EPA is concerned that 
establishing specifications under this

[[Page 33787]]

option would significantly limit the utility of the exclusion without 
any obvious advantage in terms of the technical basis of the 
specifications themselves.
    Compositing all the fuels has the advantage that it may better 
reflect the range of fuel choices and potential for fuel-switching 
available nationally to burners. A facility would be allowed to use the 
composite fuel specification regardless of which fuel(s) it burns. In 
addition, the composite well represents the constituent makeup of 
liquid fossil fuels currently burned nationally. Because allowing 
individual specifications would unnecessarily complicate the Agency's 
implementation oversight, EPA has decided not to allow the individual 
specifications as an alternative. Furthermore, EPA notes that because 
it has chosen to promulgate constituent standards for comparable fuels 
based on the largest measured value, the composite approach will 
provide industry with greater flexibility in using the exclusion. A 
composite specification provides a simpler regulatory framework, which 
would facilitate implementation of the exclusion. Therefore, in this 
final rule, EPA is promulgating a composite specification for 
comparable fuels.

C. Parameters for the Comparable Fuel Specification

    Using the benchmark approach discussed above, EPA is promulgating a 
set of technical specifications. The specifications address the 
following 6:
---------------------------------------------------------------------------

    \6\ Note that ppmw is an alternate way of expressing the units 
mg/kg.
---------------------------------------------------------------------------

(1) Physical specifications:

--Heating value (BTU/lb);
--Kinematic viscosity (centistokes, cs, as-fired),

(2) General constituent specifications for:

--Total Halogens (ppmw, expressed as Cl)
--Nitrogen, total (ppmw), and

(3) Individual hazardous constituent specifications, for:

--Individual Metals (ppmw),
--Individual Appendix VIII Toxic Organics (ppmw)

The constituent specifications and heating value would apply to both 
gases and liquids. The kinematic viscosity would not apply to gases. 
(See Section D, below, which discusses synthesis gases specifically.)
1. Physical Specifications
    a. Heating Value. The Agency is concerned with the acceptability of 
the potential fuel and wants to ensure that comparable fuels have a 
legitimate use as a fuel. As discussed below, the comparable fuels 
exclusion only applies to waste fuels that are ultimately burned. In 
addition, the Agency has relied on a heating value of 5,000 Btu/lbm 
(11,500 J/g) as a reasonable heating value specification for 
determining if a waste is being burned for energy recovery; that is, 
wastes with this Btu value or higher are considered to be burned for 
energy recovery. (See Sec. 266.103(c)(2)(ii). 50 FR at 49173n.24 
(November 29, 1985)). 7 This type of minimum Btu value 
specification is appropriate here as well as for the overall fuel (note 
that this is a different issue than finding the appropriate Btu value 
by which to correctly determine if the individual constituent 
specifications are being met, discussed below). EPA is thus setting a 
5,000 Btu/lbm limit today as a minimum heating value for a comparable 
fuel to ensure that comparable fuels are in fact legitimate fuels. See 
Sec. 261.38(a)(1)(i).
---------------------------------------------------------------------------

    \7\  The 5,000 Btu/lb measure is not, however, an unvarying 
measure of legitimate versus insufficient energy recovery. See, 
e.g., 48 FR at 1158 (March 16, 1983).
---------------------------------------------------------------------------

    b. Kinematic viscosity. Viscosity is an important specification to 
help ensure that a comparable fuel is as readily burnable as the 
benchmark fuel. Viscosity is important to the proper atomization and 
feed to the burning device and is an important design specification of 
the burner assembly. EPA proposed two options for setting a viscosity 
specification: (1) Using a value derived from the analyses EPA 
conducted; or (2) using the ASTM viscosity specification for fuel oil. 
(61 FR at 17465). Under the ASTM option for the composite fuel 
viscosity specification, EPA took comment on using the second highest 
ASTM viscosity specification. This would have the effect of not 
considering the extremes, viscosity of No. 6 fuel oil (50.0 cs at 
100 deg.C) and using as the specification the viscosity of No. 4 fuel 
oil (24.0 cs at 40 deg.C).
    Given the choice of EPA-derived viscosity values and ASTM values, 
the majority of commenters supported the use of the ASTM physical 
specification for viscosity. In addition, several commenters argued 
that the viscosity specification should apply at the point 
(temperature) that the fuel is fired rather than the point of 
generation. Commenters pointed out that it is common practice to reduce 
the as-fired viscosity to promote good atomization and combustion 
through blending with less viscous fuels or by warming the fuel to 
above-ambient temperature before firing. For example, while No. 6 fuel 
oil has an elevated viscosity at ambient conditions, it is typically 
stored and fired at temperatures which promote atomization and 
combustion.
    EPA is persuaded by commenters that basing our viscosity 
specification on No. 4 fuel oil would possibly limit comparable fuels 
similar to No. 6 fuel oil (one of the benchmark fuels) from qualifying 
for the exclusion. EPA agrees that the viscosity specification should 
be based on ASTM standard for No. 6 fuel oil (50 cs at 100 deg.C). The 
ASTM standard represents the typical temperature and viscosity at which 
No.6 fuel oil is fired. Thus, it is appropriate for a comparable fuel, 
when fired, to have the same viscosity as No. 6 fuel when fired. This 
will allow for a specification that is achievable for all liquid fossil 
fuels.
    Therefore, in this final rule, EPA is promulgating a kinematic 
viscosity specification of 50 cs, as-fired . The specification for 
viscosity will only pertain to non-gaseous fuels, because gases are 
inherently less viscous than liquids. See Sec. 261.38(a)(1)(ii).
    c. Flashpoint (proposed, but not promulgated). EPA proposed two 
options for setting a minimum flashpoint specification: (1) Using a 
value derived from the analyses EPA conducted; or (2) using the 
requirements for flashpoint specified by ASTM. Under the ASTM option 
for the composite fuel flashpoint specification, EPA took comment on 
using the second lowest flash point as the specifications. (61 FR at 
17465). This would have the effect of not considering the extremes, 
flash point of gasoline (-42 deg.C) and using as the specification the 
flash point of No. 2 fuel oil (38 deg.C).
    Several commenters opposed setting specifications for flash point. 
Commenters argued that DOT and OSHA have developed and promulgated 
regulations that control the hazards such materials can pose. 
Commenters also argued that the specification would preclude burning 
materials that are normally fuels such as methanol. EPA agrees with 
commenters that DOT (49 CFR Parts 171 through 180) and OSHA (29 CFR 
Part 1910) regulations adequately address the transportation and 
handing of low flashpoint material and setting a flashpoint 
specification under RCRA would be unnecessarily redundant with no 
ostensible gain in protectiveness. In addition, by limiting the 
exclusion to units subject to Federal/State/local air emission 
requirements, comparable fuels will be burned in units subject to OSHA 
requirements. (See Section H, below,

[[Page 33788]]

which discusses this requirement.) Therefore, EPA is not establishing a 
flashpoint specification for the final rule.
2. General Constituent Specifications
    In determining general constituent specifications and in 
determining individual hazardous constituent specifications (see 
following discussion), the Agency is concerned with the overall 
environmental loading. Comparable fuels could have lower heating value 
than the fossil fuels they would displace. In these situations, more 
comparable fuel would be burned to achieve the same heat input, with 
the result that more hazardous constituents would be fired and emitted 
(e.g., halogenated organic compounds and metals) than if fossil fuel 
were to be burned. This would lead to greater environmental loading of 
potentially toxic substances, which is not in keeping with the intent 
of the comparable fuels exclusion nor with RCRA's overall 
protectiveness goals.
    To address environmental loading, the approach used in this final 
rule is to establish a minimum heating value specification comparable 
to the BTU content of the benchmark fossil fuel(s). The Agency is 
establishing the specification(s) for comparable fuels at a heating 
value of 10,000 BTU/lb, which is near to what liquid commercial fuels 
contain.8 EPA chose 10,000 BTU/lb because it is typical of 
current hazardous waste burned for energy recovery.9 
However, candidate comparable fuels when generated initially can have 
heating values very different than 10,000 BTU/lb. Therefore, under this 
final rule, when determining whether a waste meets the comparable fuel 
constituent specifications, a generator must first correct the 
constituent levels in the candidate waste to a 10,000 BTU/lb heating 
value basis prior to comparing them to the comparable fuel 
specification tables. In this way, a facility that burns a comparable 
fuel would not be feeding more total mass of hazardous constituents 
than if it burned fossil fuels.10
---------------------------------------------------------------------------

    \8\ Constituent levels presented in today's final rule have been 
corrected from the fuel's heating value (approximately 20,000 BTU/
lb) to 10,000 BTU/lb.
    \9\ Consult USEPA, ``Final Technical Support Document for HWC 
MACT Standards, Development of Comparable Fuels Specifications'', 
May 1998.
    \10\ Note that the heating value correction would apply only to 
allowable constituent levels in fuels, not to detection limits. 
Detection limits would not be corrected for heating value.
---------------------------------------------------------------------------

    a. Specification Levels for Halogenated Compounds. I. Summary. For 
the final rule, EPA is using its composite benchmark approach to 
establish a total halogen specification and allowing compliance with a 
total organic halogen limit in lieu of complying with limits on 
individual Appendix VIII halogenated compounds. Therefore, a comparable 
fuels generator would have the option of complying: (a) with a total 
organic halogen specification of 25 ppm plus the total PCB 
specification or (b) with the all of the individual Appendix VIII 
specifications for halogen compounds. In addition, in both cases, the 
generator would also have to comply with the total halogen limit (which 
includes both organic and inorganic halogens) of 540 ppm and with a 
total PCB specification (non-detect at a minimum required detection 
limit of 1.4 ppm). See Sec. 261.38(a)(2), Table 1.
    Compliance with a total organic halogen specification in lieu of 
limits on individual halogenated compounds will ensure that measurable 
levels of halogenated compounds will be no greater than in benchmark 
fuels. In addition, the total organic halogen specification will result 
in less sampling and analysis costs. Finally, the total halogen limit 
(both organic and inorganic) will create a presumption that halogenated 
products of incomplete combustion (PICs) generated from burning a 
comparable fuel will not be emitted at higher levels than from burning 
a benchmark fossil fuel.
    ii. Total Halogen Rationale. Although total halogens are not listed 
in Appendix VIII, Part 261, EPA proposed a total halogen specification 
to establish a presumption that halogenated products of incomplete 
combustion (PICs) generated from burning a comparable fuel would not be 
emitted at higher levels than from burning a benchmark fossil fuel. See 
proposal (61 FR at 17461) and subsequent notices of data availability 
(61 FR 43502, August 23, 1996 and 61 FR 47402, September 9, 1997). PICs 
resulting from the burning of halogenated organic compounds can pose a 
particular hazard to human health and the environment.11 
Using the benchmark approach, EPA proposed a composite fuel total 
halogen limit of 25 ppm.
---------------------------------------------------------------------------

    \11\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Standards, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

    At the time of the proposal, EPA intended to establish a total 
halogen limit that included both organic and inorganic halogens. 
However, the total halogen data used by EPA in the proposed rule for 
its No. 4 and No. 6 fuel oils were based on analytical methods 
measuring only total organic halogens, not both organic and inorganic 
halogens. Commenters raised concerns about including total halogen data 
that did not include inorganic halogens because it did not represent 
typical halogen content found in benchmark fuels. EPA was persuaded by 
commenters' arguments and noticed additional total halogen data 
gathered from its own database (i.e., Certifications of Compliance 
(CoC) required by the Boilers and Industrial Furnace Rule) and data 
submitted by one commenter. In addition, EPA will continue to use its 
original gasoline and No. 2 fuel oil halogen data, which included both 
organic and inorganic halogens. Using the additional data, the total 
halogen specification would be 540 ppm for the composite benchmark 
data. For further discussion, see NODA 61 FR at 47402.
    In response to EPA's NODA, commenters argued that some of the data 
should not be used to establish the total halogen specification due to 
the use of inappropriate analytic methods. In particular, commenters 
believe that CoC data from two facilities (Huntsman Polypropylene 
Corporation and American Cyanamid) should not be included because the 
analytical method used measured organic halogens only. In addition, 
commenters believe that CoC data from another facility (Dow Chemical) 
should not be included because the detection limit of the method used 
to analyze for total halogens (ASTM Standard D 808) is not sensitive 
below 1000 ppm, and unless some other, more sensitive analytical method 
were followed afterward, the method could not have been effective at 
the levels reported. EPA is persuaded by these commenters' arguments 
and has excluded the data from these three facilities from its halogen 
data set. Using this revised data set, the total halogen specification 
would be 540 ppm for the composite benchmark data. For the final rule, 
EPA is promulgating a total halogen specification of 540 ppm.
    In response to the initial proposal, some commenters argued that 
EPA should consider solid fuels like wood and coal in the development 
of a total halogen specification. As discussed above, EPA has decided 
not to include solid fuels in its benchmark specification. Thus, EPA is 
not inclined to consider using solid fuels to set one of the 
specifications. Also, EPA is concerned about the formation of 
halogenated PICs from comparable fuels containing halogens. At this 
time, EPA has no data to support a conclusion that the higher halogen 
levels in solid fuels would not cause an increase in

[[Page 33789]]

halogenated PIC formation compared to benchmark fuels.
    The Agency also received comment on an emissions-based equivalency 
determination to qualify for the total halogen specification. One 
commenter argued that the Agency should consider the commenter's 
candidate comparable fuel as a comparable fuel even though it cannot 
meet the comparable fuel specification for total halogens. The Agency 
considered the situation but, as indicated in the September 9, 1997 
NODA (62 FR at 47403), continues to maintain that an emissions-based 
equivalency determination to the halogen specification on a national 
regulatory basis would be inappropriate and infeasible at this time.
    In response to EPA's NODA, the commenter argued that an equivalency 
determination would not be administratively complex and that it could 
involve a demonstration by the person applying for the equivalency 
determination that the chemistry of the fuel is such that it is 
incapable of forming halogenated PICs. EPA is not persuaded by the 
commenter's arguments. For hydrocarbon-based fuels, combustion 
conditions (such as oxygen level, mixing, temperature, etc.) will have 
an impact on non-chlorinated and/or chlorinated PIC emissions. 
Additionally, chlorine in both inorganic and organic forms in the waste 
fuel can contribute to chlorinated PIC emissions. Dioxin/furans and 
other chlorinated PICs have been detected from sources burning both 
inorganic (e.g., salts) and/or organic chloride (e.g., plastics) 
containing wastes.12 Furthermore, if the Agency were to 
develop an equivalency determination for total halogens, the 
implementation details needed in a national regulation to ensure proper 
combustion of halogenated wastes would be numerous, including, for 
example, provisions on burner operating parameters, performance 
testing, and monitoring. These details would almost certainly result in 
a complicated conditional exclusion from the definition of solid waste 
that is viewed as both potentially unworkable and very difficult to 
implement on a national basis.
---------------------------------------------------------------------------

    \12\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Standards, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

    Therefore, EPA is not inclined at this time to consider developing 
any national equivalency determination to the total halogen 
specification. At some future point, perhaps as the Agency's 
understanding of cause-and-effect relationships regarding emissions 
from a wider variety of sources grows, EPA may be able to address 
aspects of the commenter's recommendations if appropriate and feasible.
    iii. Total Organic Halogen Rationale. As an additional part of its 
proposal, EPA invited comment on whether a total halogen specification 
could act as a surrogate for limits on individual halogenated compounds 
found in Appendix VIII. In this case, EPA's proposed limit of 25 ppm 
for total organic halogens would act as the surrogate for the 
individual halogenated organics. Commenters supported the surrogate 
approach and indicated that it would reduce the testing and 
recordkeeping costs on the regulated community. EPA agrees that this 
approach will simplify the comparable fuels specification and possibly 
mean fewer and less costly sampling and analyses of comparable fuel 
streams for generators.
    However, some commenters raised concerns that a total halogen 
analysis will not be an effective screen for some of the more hazardous 
halogenated Appendix VIII constituents which could constitute a 
potential risk at low detection levels (e.g., tetrachlorodibenzo-p-
dioxins). EPA calculated the equivalent constituent concentrations 
using the minimum detection limit values for these hazardous 
halogenated organics and determined that the 25 ppm total organic 
halogen limit will be an effective screen for all of the chlorinated 
dibenzofurans and chlorinated dibenzodioxins (i.e., the tetra- through 
octa-congeners). The minimum detection limits calculated for these 
congeners ranged from 30 to 150 ppm and the 25 ppm organic halogen 
specification will limit these congeners' concentrations to below those 
minimum detection limits. Additional factors in this decision to use 
the 25 ppm halogen limit as a screen for dioxins include the following:
    (1) In particular, waste codes F020, F021, F022, F023, F026 and 
F028 have been designated as ``inherently waste-like'' under 40 CFR 
261.2(d) and therefore are not eligible for the comparable fuel 
exclusion;
    (2) Wastes listed because they contain dioxins would also be 
expected to contain significant levels of other halogenated organics. 
(The reader should note that the compounds in question are typically 
formed from the breakdown and reaction of other halogenated organics.) 
The higher concentrations of these other halogenated organics would 
drive the total organic halogen content of the waste up and, thus, the 
contribution of any chlorinated dibenzofurans and dioxins would have to 
be significantly less than the 25 ppm limit; and
    (3) Waste codes expected to contain significant levels of other 
halogenated organics can be readily discerned from their list 
descriptions in 40 CFR 261 Subpart D (e.g., F001 and F002 solvent 
wastes are defined as halogenated solvents; F024 includes waste from 
production of halogenated organics.) In addition, Appendix III to Part 
268 lists the halogenated organics typically found in hazardous wastes 
and that are subject to land disposal restrictions under 40 CFR 268.32. 
By comparing these, a person implementing today's rule could easily 
determine the most likely waste codes that could contain halogenated 
organics in excess of the 25 ppm limit, and thus easily identify wastes 
not eligible for the comparable fuels exclusion. See also Section E 
below for point of generation and blending/treatment discussions.
    Commenters are also concerned that the use of a total organic 
halogen surrogate will possibly mask illegal PCB disposal. Since low 
analytical detection limits for PCBs (i.e., 1.4 ppm) in the benchmark 
fuel matrices have been well-demonstrated, the 25 ppm total organic 
halogen limit would not be a sufficient screen. Since PCBs are 
relatively common halogenated contaminants in fuel-like wastes and the 
probability of finding them is non-trivial, EPA is keeping the limits 
on PCBs to ensure levels no greater than from benchmark fuels. EPA also 
points out that there are several relatively inexpensive analytical 
screening methods that have been developed specifically for the 
determination of total PCBs.
    With regard to analysis methodology, commenters have indicated that 
the test method (ASTM Method 4929) used by EPA to analyze for organic 
halogens may not be appropriate to analyze their candidate comparable 
fuel. EPA recognizes that the methods used in its own analysis of the 
benchmark fuels may not be appropriate for some candidate comparable 
fuels. Thus, in the final rule EPA is allowing the use of alternate 
methods or modifications to current methods that meet the performance 
based criteria in section Sec. 261.38(c)(7). It is the responsibility 
of the generator to ensure that the sampling and analysis is unbiased, 
precise, and representative of the waste. For further details, see 
Section G. Sampling and Analysis, below.
    b. Specification Levels for Nitrogenated Compounds. Although total 
nitrogen is not listed on Appendix VIII, Part 261, EPA proposed a total

[[Page 33790]]

nitrogen specification to ensure that nitrogenated products of 
incomplete combustion (PICs) from burning a comparable fuel would not 
be emitted at higher levels than from burning a benchmark fossil fuel. 
See proposal (61 FR at 17462) and a subsequent notice of data 
availability (61 FR 43502, August 23, 1996). PICs resulting from 
burning nitrogenated organic compounds can also pose a particular 
hazard to human health and the environment.13
---------------------------------------------------------------------------

    \13\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Standards, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

    Commenters generally did not address the issue of formation of 
nitrogenated PICs. Instead, most commenters disagreed with the need to 
establish a specification for nitrogen under RCRA's comparable fuel 
specification when this pollutant (as NOx) is controlled under the 
Clean Air Act (CAA). Commenters argued that EPA has the authority under 
the CAA to control certain criteria pollutants, such as nitrogen oxides 
and, in fact, has promulgated primary and secondary National Ambient 
Air Quality Standards (NAAQS) for oxides of nitrogen. EPA believes that 
a total nitrogen specification is necessary. The counter-arguments 
advanced do not address EPA's rationale for establishing a total 
nitrogen limit. The CAA NAAQS do not themselves ensure control of 
individual combustion units in a manner that prevents formation of 
nitrogenated PICs, nor do they ensure that a hazardous waste-derived 
fuel would contain no greater amounts of nitrogenated compounds than 
fossil fuels. EPA is therefore establishing a total nitrogen 
specification to ensure that concentrations of nitrogenated PICs in 
comparable fuels will be no greater than in benchmark fuels.
    As an additional part of its proposal, similar to total halogens, 
EPA invited comment on whether a total nitrogen specification could act 
as a surrogate for limits on individual nitrogenated compounds found in 
Appendix VIII. EPA believes that a surrogate approach would simplify 
the comparable fuels specification and possibly mean fewer and less 
costly sampling and analyses of comparable fuel streams for generators. 
However, analysis of EPA's composite data results in a total nitrogen 
specification of 4,900 ppm. The detection limits for EPA's analysis of 
individual nitrogenated compounds in its benchmark fuels ranged from 1 
to 2200 ppm. Since detection limits for nitrogenated compounds in the 
benchmark fuels have been demonstrated well below 4,900 ppm, a total 
nitrogen specification would not be a sufficient screen for individual 
Appendix VIII nitrogenated compounds.
    Therefore, for nitrogen compounds, EPA is promulgating a total 
nitrogen specification of 4,900 ppm with individual Appendix VIII 
nitrogen specifications. See Sec. 261.38(a)(2), Table 1. This approach 
ensures that levels of individual nitrogenated compounds and the total 
nitrogen concentration are no greater than the benchmark fuels and 
creates a presumption that concentrations of nitrogenated PICs from 
burning a comparable fuel are no greater than burning a benchmark fuel.
3. Individual Hazardous Constituent Specifications
    To limit the Part 261, Appendix VIII constituents in comparable 
fuels to those found in benchmark fossil fuels, the Agency calculated 
concentration limits using the Agency's analysis of individual 
benchmark fuel samples. Where EPA did not detect a particular Appendix 
VIII constituent in the benchmark fuel, the Agency set the constituent 
specification using one of two approaches. For constituents that the 
Agency did not detect and did not have reason to believe would be 
present in a benchmark fuel (e.g., halogenated organics), the 
comparable fuel specification is ``non-detect'' with an associated, 
specified minimum required detection limit for each compound. The 
detection limit is a statistically-derived level based on the 
quantification limit determined for each sample. While these 
constituents should not be present, the Agency will allow non-detects 
lower than the detection limits that EPA was able to obtain. However, 
EPA will not allow measured or quantified results below the specified 
minimum required detection limit where ``non-detect'' is the comparable 
fuel specification. For metals, hydrocarbons, and oxygenates, the 
Agency followed a different approach, which is described below.
    a. Individual CAA and Appendix VIII Metals. EPA proposed 
concentration levels or minimum required detection limits for all CAA 
metals and RCRA Appendix VIII metals (61 FR at 17460). Commenters 
argued that the Agency should modify its approach with respect to non-
detect levels and allow the hazardous constituent to be present in the 
comparable fuel up to the detection limit. In particular, commenters 
argued that metals are expected to be present in petroleum products, 
resulting from the formation process or the production process, and, 
therefore, it is reasonable to assume that non-detect metals in EPA's 
benchmark analysis would be present up to the detection limit. EPA 
agrees that metals could be present in fossil fuels but below EPA's 
detection limits. Therefore, the final rule allows metals to be present 
at any concentration less than or equal to the detection limits in 
EPA's analysis.
    In addition, as proposed, EPA is setting limits for two metals that 
are not found on Part 261, Appendix VIII: cobalt and manganese. EPA 
included these metals in the analysis because they are listed in the 
Clean Air Act as hazardous air pollutants (HAPs). See CAA, section 
112(b) and proposal (61 FR at 17460). By including these metal HAPs and 
the RCRA metals listed on Appendix VIII, Part 261, the Agency will 
ensure that the specification limits all toxic metals of concern in 
hazardous wastes to levels present in the benchmark fossil fuels. 
Therefore, EPA is promulgating constituent levels for the all CAA 
metals and RCRA Appendix VIII metals at the largest value composite of 
EPA fossil fuel data. See Sec. 261.38(a)(2), Table 1.
    b. Individual Appendix VIII Toxic Organics. EPA is promulgating 
constituent levels or minimum required detection limits for all Part 
261, Appendix VIII, toxic organic constituents, unless otherwise noted. 
See Sec. 261.38(a)(2), Table 1. Some Appendix VIII compounds were not 
analyzed because a routine analytical method is not available. Because 
EPA did not analyze for some compounds in Appendix VIII, EPA will not 
be promulgating standards for these remaining Appendix VIII 
constituents. These compounds are not listed in today's specifications, 
and a comparable fuel generator will not have to comply with 
specifications for these compounds. EPA believes it highly unlikely 
that a hazardous waste-derived fuel would contain only these 
undetectable Appendix VIII constituents.
    i. Specification Levels for Undetected Pure Hydrocarbons. EPA 
proposed allowing pure hydrocarbons on Appendix VIII to be present at 
any concentration less than or equal to the detection limits in EPA's 
analysis. Since fossil fuels are comprised almost entirely of pure 
hydrocarbons 14 in varying concentrations, it is possible 
that many pure hydrocarbons in Appendix VIII, Part 261, could be 
present in fossil fuel but below detection limits. These materials, 
which include compounds such as fluoranthene, might not even be 
considered solid wastes when burned in

[[Page 33791]]

their pure carbon form since they are themselves products. See 
Sec. 261.2(c)(2)(ii), and see proposal (61 FR at 17461).
---------------------------------------------------------------------------

    \14\ Excluding sulfur, carbon and hydrogen comprise 99.6 to 100% 
of liquid fossil fuels.
---------------------------------------------------------------------------

    Some commenters argued that no comparable fuels specifications 
should be established for pure hydrocarbon compounds because pure 
hydrocarbons will burn cleanly. EPA disagrees for the purpose of 
today's rule because establishing no limits for Appendix VIII 
hydrocarbons would depart from the basic comparable benchmark approach 
and even relatively clean-burning compounds may produce some toxic 
emissions. EPA's analysis confirms that these compounds are not present 
in the benchmark fuels above the minimum detection limits. However, it 
is reasonable to assume that the ``non-detect'' pure hydrocarbons could 
in fact be present in fossil fuels up to the detection limit since 
fossil fuels are comprised entirely of pure hydrocarbons. Therefore, 
the final rule allows hydrocarbons in Appendix VIII to be present at 
any concentration less than or equal to the detection limits in EPA's 
analysis. See Sec. 261.38(a)(2), Table 1.
    Some commenters argued that toluene, a typical fuel component, 
should be allowed without limitation in comparable fuels. As discussed 
above for all hydrocarbons, EPA disagrees with not establishing any 
limits on toluene, or establishing a different specification not based 
on fuel data, because this would depart from the comparable benchmark 
approach. EPA has established the toluene specification at the fuel 
data-based concentration found in its benchmark fuel analysis. However, 
because toluene can be a fuel component, setting a different data-based 
specification for toluene may be warranted at some point in the future, 
and therefore EPA will continue to remain open to considering further 
action.
    ii. Specification Levels for Undetected Oxygenates. In addition to 
the pure hydrocarbon compounds, EPA invited comment on whether 
oxygenates should be allowed up to the detection limits in EPA's 
analysis and on what would be an appropriate minimum oxygen-to-carbon 
ratio to identify an oxygenate. (61 FR at 17461). Oxygenates are 
organic compounds comprised solely of hydrogen, carbon, and oxygen and 
can serve as fuels or fuel additives. Examples of oxygenates (not in 
Appendix VIII and thus not RCRA regulated) include alcohols such as 
ethanol, and ethers such as methyl tert-butyl ether (MTBE). Appendix 
VIII oxygenates are not routinely found in fossil fuels and only a few 
oxygenates were detected in EPA's sampling and analysis program.
    Several commenters supported allowing oxygenates at any 
concentration less than or equal to the detection limit but also argued 
that EPA should go a step further and set no specification limits for 
oxygenated compounds. Commenters argued that oxygenates (like isobutyl 
alcohol) burn well and promote good combustion of other constituents in 
a fuel. Again, for the purpose of today's rule, EPA disagrees with not 
establishing any limits on oxygenates because this would depart from 
the basic comparable benchmark approach. EPA's analysis confirms that 
these compounds are not present in the benchmark fuel above the minimum 
detection limits and establishing a specification without fuel data 
containing oxygenates would depart from the comparable fuel approach. 
Furthermore, oxygenates are listed on Appendix VIII for their toxicity 
and in particular, one group of organic oxygenates, organic peroxides, 
can be extremely hazardous to manage. However, since most oxygenates 
burn well and are not likely to produce significant PICs, EPA will 
allow these compounds at any concentration less than or equal to the 
detection limits found in EPA's analysis.
    EPA notes that the Clean Air Act provides for the use of some 
oxygenates (like isobutyl alcohol) as additives in unleaded gasoline 
and it may be appropriate to consider their use in a comparable fuel. 
However, at the time of this final rulemaking, EPA had no fuel data in 
which these oxygenates were used as gasoline additives and thus was not 
able to set a specification different than in today's final rule. As 
discussed above, any approach without using fuel data would depart from 
the comparable fuel approach. However, setting data-based 
specifications for certain oxygenates may be warranted at some point in 
the future, and therefore EPA will continue to remain open to 
considering further action.
    With regard to a minimum oxygen-to-carbon ratio to define an 
oxygenate, one commenter recommended defining oxygenates simply as 
aliphatic compounds comprised of carbon, hydrogen, and oxygen. If EPA 
was intent on defining an oxygen-to-carbon ratio, other commenters 
recommended a ratio of 0.266, which is the ratio for MTBE. Defining an 
oxygenate with a minimum oxygen-to-carbon ratio or limiting the 
definition to only aliphatics is more conservative than necessary. 
Instead, EPA is defining an oxygenate as any compound comprised solely 
of hydrogen, carbon, and oxygen.
    In summary, the final rule allows oxygenates, defined as any 
compound comprised solely of hydrogen, carbon, and oxygen, at any 
concentration less than or equal to the detection limits in EPA's 
analysis. See Sec. 261.38(a)(2), Table 1.

D. Parameters for the Synthesis Gas Fuel Exclusion

    In today's final rule, EPA is also excluding from the regulatory 
definition of solid waste (and, therefore regulation as hazardous 
waste) a particular type of hazardous waste-derived fuel, namely a type 
of synthesis gas (``syngas'') fuel meeting particular specifications. 
The exclusion applies to syngas that results from the thermal reaction 
of hazardous wastes by a process designed to generate both hydrogen gas 
(H2) and carbon monoxide (CO) as usable fuel. See proposal 
(61 FR at 17465).
    Some commenters stated that synthesis gas fuels are beyond EPA's 
regulatory authority because they are uncontained gases. EPA has broad 
statutory authority to regulate fuels produced from hazardous wastes. 
RCRA section 3004 (q) (1); see also Horsehead Resource Development Co. 
v. Browner, 16 F. 3d 1246, 1262 (D.C. Cir. 1994) (broadly construing 
this authority). The fact that syngas (by definition) is a gas, rather 
than a solid or liquid, does not appear to raise jurisdictional issues. 
It is still produced from the hazardous wastes that are being processed 
thermally. See Sec. 261. 2 (c) (2) (A) and (B) (defining such materials 
as solid wastes). EPA believes its authority to be clear under these 
provisions.
    EPA also received a number of comments from persons operating 
synthetic gasification processes within the petroleum industry. These 
comments also argued that the Agency was without legal authority to 
regulate the fuel output of these processes even if the processes use 
hazardous waste as a feed material. The Agency has in fact adjudicated 
the status under existing regulations of such a unit, indicating that 
while both the process and the fuel output are within RCRA subtitle C 
jurisdiction, the process is a type of exempt recycling unit under 40 
CFR 261.6(c)(1) and the fuel is also exempt under Sec. 261.6(a)(3). 
Letter of Michael Shapiro (Director of Office of Solid Waste) to 
William Spratlin (Director RCRA Division EPA Region VII) (May 25, 
1995).
    Upon reflection, it appears that these petroleum gasification 
operations may be similar to other within-petroleum industry recycling 
activities that EPA has proposed to exclude from Subtitle C 
jurisdiction in the petroleum listing rule

[[Page 33792]]

proposed on November 20, 1995. 60 FR 57747. It therefore appears more 
appropriate to consider this overall jurisdictional issue in the 
context of that rulemaking. However, EPA is not at this time limiting 
the synthetic gas fuel exclusion insofar as it potentially applies to 
the output of gasification operations conducted as part of normal 
petroleum refining (SIC Code 2911). Thus, these syngas fuels can also 
be eligible for the exclusion in today's rule.
    To ensure that any excluded hazardous waste-derived syngas contains 
low levels of hazardous compounds relative to levels in fossil fuels, 
the Agency is setting a series of syngas specifications addressing:
(1) physical specifications:

--Minimum Btu value (Btu/scf);

(2) general constituent specifications for:

--Total halogen (ppmv)
--Total nitrogen (ppmv)
--Hydrogen Sulfide (ppmv)

(3) individual hazardous constituent specifications, for:

--Individual Appendix VIII constituents (ppmv)
1. Physical Specifications
    a. Minimum Btu value. Like the comparable fuel specification, EPA 
proposed that syngas fuel have a minimum Btu value of 5,000 Btu/lb. 
Commenters had several concerns with this specification. First, 
commenters noted that the heating value of a gas is almost universally 
measured in units of Btu per unit volume (``scf''). Second, commenters 
argued that due to the efficiencies of combustion, a gas can be used as 
a fuel even though its heating value, when expressed in terms of Btu 
per pound, is less than 5000. Commenters argued that using fuels with 
significantly higher Btu per scf could actually degrade efficiency of 
gas turbine electric generation systems and increase air emissions. For 
example, syngas with a heating value of 5000 Btu per pound would have 
to be diluted to reduce its heating value to enable a combustion 
turbine to meet NOX emission limits. Furthermore, commenters 
argued that in many potential applications, syngas produced from 
hazardous waste would be used as a substitute for syngas produced from 
fossil fuels or syngas produced from non-hazardous secondary materials. 
Syngas produced from coal, coke, and certain types of secondary 
materials, with heating values less than 5000 Btu per pound (when 
expressed in these terms), are currently used as fuels.
    EPA agrees with commenters' concerns with regard to the heating 
value of syngas. To set an appropriate heating value, EPA investigated 
the heating values of syngas currently manufactured for use as a 
fuel.15 For fuel usage related purposes, syngas is 
classified as either medium- or low-Btu gases (medium-Btu generally 
being produced with pure oxygen, low-Btu generally with air). Medium-
Btu syngas generated from the gasification of fuels (including coal, 
fuel oil, biomass, municipal solid wastes, plastics, etc.) with pure 
oxygen typically has heating values from 200 to 400 Btu/scf. Medium-Btu 
syngas can typically be used as a fuel for power production in a gas 
turbine. Low-Btu syngas generated from the gasification of fuels with 
air has heating values from about 100 to 200 Btu/scf. In most cases, 
low-Btu syngas does not achieve temperature and expansion ratios needed 
for thermodynamically efficient power generation. Low-Btu syngas is 
usually mixed with higher energy sources and is not generally desired 
for most applications. However, EPA notes that there are certain 
specifically designed gas turbines (with very large ``silo'' combustion 
chambers) that can handle very low-Btu (100 Btu/scf) syngases for power 
generation. Thus, a heating value of 100 Btu/scf is reasonable for 
syngas because it represents fuels used as legitimate energy sources. 
Therefore, EPA is establishing a minimum Btu value of 100 Btu/scf for 
synthesis gas. See Sec. 261.38(b)(1).
---------------------------------------------------------------------------

    \15\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Standards, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

2. General Constituent Specifications
    a. Total Halogen Specification. As proposed, EPA is promulgating a 
total halogen specification for synthesis gas fuels of less than 1 
ppmv. Like comparable fuels, EPA is establishing a total halogen 
specification to limit the formation of halogenated PICs from the 
burning of the hazardous waste-derived syngas fuel. EPA has looked at 
syngas manufactured from non-hazardous waste sources, such as coal, and 
concludes that 1 ppmv is a reasonable specification for total halogen 
for a synthesis gas fuel. See Sec. 261.38(b)(2).
    b. Total Nitrogen Specification. EPA proposed a total nitrogen 
specification of less than 1 ppmv of total nitrogen, other than 
diatomic nitrogen (N2). Like comparable fuels, EPA was 
concerned about the formation of nitrogenated PICs from the nitrogen 
contained in the hazardous waste-derived syngas fuel. Commenters argued 
that regardless of whether nitrogen is present in the syngas, when 
syngas is burned, NO, NO2 and NOX will always 
form, as nitrogen present in the air combines with oxygen in the 
syngas, the air or both. In addition, commenters argued that the Agency 
or authorized states already regulate the emissions of these air 
pollutants through the issuance of air permits. Furthermore, commenters 
argued that nitrogen in the syngas would not lead to the formation of 
PICs.
    EPA disagrees with the commenters that a total nitrogen 
specification is unnecessary and believes that the comments did not 
address EPA's rationale for a total nitrogen limit. EPA is establishing 
a total nitrogen specification to limit the formation of nitrogenated 
PICs. Diatomic nitrogen is not included in a total nitrogen 
specification because only organic-bound nitrogen compounds are 
expected to form PICs. However, a total nitrogen specification based on 
syngas used as a fuel is a more appropriate specification. EPA has 
looked at syngas currently manufactured for use as a fuel to establish 
a total nitrogen specification. Nitrogen compounds in syngas (other 
than N2) are mostly in the form of HCN or NH3. 
Syngas manufactured from coal can have HCN and NH3 levels of 
100 to 300 ppmv.16 A total nitrogen specification of 300 
ppmv would ensure that concentrations of nitrogenated PICs in waste-
derived syngas will be no greater than syngas manufactured from coal. 
Therefore, in today's final rule, EPA is promulgating a total nitrogen 
specification of 300 ppmv, other than diatomic nitrogen (N2) 
for synthesis gas fuel. See Sec. 261.38(b)(3).
---------------------------------------------------------------------------

    \16\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Rule, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

    c. Hydrogen Sulfide Specification. EPA proposed a hydrogen sulfide 
(H2S) specification of 10 ppmv for syngas fuels. Commenters 
argued that the H2S specification is not necessary because 
the Clean Air Act has specifications that restrict the amount of sulfur 
that can be emitted by sources that would likely burn syngas fuel 
(i.e., boilers, combustion turbines). In addition, commenters argued 
that the potential of facilities that burn syngas as a fuel to emit 
sulfur compounds is low in comparison to facilities burning fossil 
fuels. For example, facilities that produce power by burning syngas 
produced from the gasification of coal emit approximately one-fifth of 
the level of sulfur compounds emitted by similar facilities burning 
coal.
    EPA disagrees with the commenters that no hydrogen sulfide 
specification

[[Page 33793]]

should be promulgated. EPA is establishing the syngas exclusion by 
limiting Part 261 Appendix VIII constituents, one of which is hydrogen 
sulfide. However, a more appropriate specification would be based on 
current applications where syngas is used as a fuel, rather than the 
proposed specification of 10 ppmv. To set an appropriate hydrogen 
sulfide specification, EPA investigated the hydrogen sulfide levels in 
syngases currently manufactured from non-hazardous waste sources for 
use as a fuel.
    The sulfur content of the material used to produce the syngas is 
converted to almost entirely H2S in the gasification 
process, with smaller amounts of carbonyl sulfide (COS). Syngas 
produced from low sulfur content material does not contain appreciable 
H2S. The H2S content of high sulfur coal-based 
syngas can be over 1000 ppmv. However, in these cases, H2S 
is removed during the gasification process. The amount of 
H2S removal is dependent on how the syngas will be used. In 
the case of syngas used for chemical feedstock, the H2S 
removal can be to a level under 1 ppmv. For the case of syngas used for 
fuel, H2S removal can range to levels between 50 and 200 
ppmv (above 200 ppmv leads to corrosion of down stream gas handling 
equipment, such as turbine blades.17 Thus, 200 ppmv 
represents the level of H2S in gas currently used in 
applications where syngas is used as a fuel. Therefore, in this final 
rule, EPA is promulgating a H2S specification of 200 ppmv 
for synthesis gas fuels. See Sec. 261.38(b)(4). EPA further notes that 
H2S removal is considered as part of the gasification 
process and a syngas generator is required to meet the H2S 
specification after this removal process.
---------------------------------------------------------------------------

    \17\ For further discussion see USEPA, ``Final Technical Support 
Document for HWC MACT Rule, Development of Comparable Fuels 
Specifications'', May 1998.
---------------------------------------------------------------------------

3. Individual Hazardous Constituent Specifications
    As proposed, EPA is promulgating specifications of less than 1 ppmv 
for each hazardous constituent listed in Appendix VIII of part 261 
(that could reasonably be expected to be in the gas). Having received 
no comments to the contrary, this a reasonable specification for 
Appendix VIII constituents in a synthesis gas fuel. See 
Sec. 261.38(b)(5). Since EPA is promulgating a total halogen 
specification for syngas and since this specification ensures that the 
excluded syngas has less than 1 ppmv of individual halogenated 
compounds, a syngas generator would not be expected to analyze for the 
individual halogenated compounds in Appendix VIII. However, a syngas 
generator would be expected to analyze for the individual nitrogenated 
compounds in Appendix VIII since a total nitrogen specification of 300 
ppmv would not ensure that individual nitrogenated compounds would be 
limited to 1 ppmv. In addition, a syngas generator would be expected to 
analyze for the Appendix VIII constituents identified in the comparable 
fuels specification. See Sec. 261.38(a)(2) Table 1.

E. Meeting the Comparable Fuel Specifications

1. Potential Applicability of Today's Rule to Specific Waste Codes
    The probability of today's rule being applicable to any specific 
hazardous waste is highly dependent upon the waste codes assigned to 
that waste as well as the industry generating the waste. In developing 
the Land Disposal Restrictions (40 CFR part 268) and in developing the 
listings of hazardous wastes (40 CFR part 261), the majority of the 
listed hazardous wastes were analyzed for concentrations of specific 
hazardous constituents. EPA has already determined that the majority of 
listed hazardous wastes (i.e., those having codes beginning with ``F'', 
``K'', ``U'' or ``P'') are known to contain at least one of the 
hazardous constituents that are restricted by today's rule to ``non-
detect'' levels. Appendix VII to Part 261 provides a partial list of 
hazardous constituents that are known to be present in each Listed 
Waste code, and the Treatment Standards for Hazardous Wastes (40 CFR 
268.40) indicate constituents (and concentrations) that are 
specifically regulated for land disposal for each waste code. The 
majority of these constituents and waste codes are restricted to ``non-
detect'' levels in today's rule and so a potential comparable fuel 
containing these constituents either could not be used, or would have 
to be treated so that the hazardous constituents are removed or 
destroyed to non-detect levels. See treatment discussion below, Section 
E.4. It is possible, however, that an organic solvent or oil could 
carry one of these codes, based on the derived-from rule only, and 
could comply with the limits in today's rule. As such, EPA did not 
restrict the application of today's rule to any waste code, except in 
the case of wastes listed for the presence of dioxins or furans. See 
261.38(c)(12). However, EPA does not expect that corrosive or reactive 
wastes would be candidate comparable fuels because of the detrimental 
impacts on the burning unit that would occur.
    At the same time, there are specific listed waste codes that EPA 
expects to contain only those constituents for which today's rule sets 
maximum allowable concentrations. As such, some wastes with these codes 
would be likely candidates for compliance with the corresponding 
constituent limits. These applicable wastes are primarily expected to 
be: ignitable solvent wastes (F003 and F005), wastes from petroleum 
production (F037, F038, and K048-51), and wastes from coking operations 
(K060, K087, K141-145, K147 and K148). Table 1 also lists a set of U 
waste codes and their corresponding constituents that may be applicable 
depending upon their concentrations.
    It is expected that today's rule will primarily be applied to 
wastes that are classified as hazardous only because they exhibit the 
hazardous characteristic of ignitability (D001) and/or corrosivity 
(D002). In comparing the regulatory levels for characteristic metal 
wastes (D004-D011) and the corresponding allowable limits for these 
metals in today's rule, there is an extremely small window of 
applicability for some wastes identified as D006 (cadmium) or D009 
(mercury) and likewise a relatively small window of applicability for 
some D008 wastes (lead). All other characteristic metal wastes fail the 
limit restrictions for metals. D003 wastes that are classified as 
hazardous due to their cyanide (CN) content are expected, for the most 
part, to fail to meet the specification for total nitrogen. Except for 
D018 wastes (benzene), wastes that are characteristic for organics 
(D012-D043) are also expected to be unable to comply with either the 
limits or the ``non-detect'' requirements.
    All wastes consisting primarily of alcohols (e.g., ethanol or 
isopropanol), petroleum distillates, oils, or other ignitable organic 
liquids) are the most likely candidates for applying today's rule. This 
is quite logical in that these chemicals tend to have good fuel value 
when compared to the fuels examined for today's rule. The most probable 
listed wastes that are expected to be able to comply with today's rule 
are F003 and F005 solvents (except those F005 wastes containing carbon 
disulfide, pyridine, or nitrobenzene). There are an additional number 
of ``U'' wastes identified in Table 2 that are also good candidates for 
compliance with today's rule. These chemicals are either hydrocarbons 
or oxygenated hydrocarbons for which today's rule does not establish 
any limits.
    Because of the potential for cross-contamination, wastes from 
facilities

[[Page 33794]]

(e.g., pesticide manufacturers and halogenated solvent manufacturers) 
known to manufacture concentrated forms of the chemicals restricted by 
today's rule, are the most likely to require closer scrutiny and 
testing. However, wastes generated by these facilities that are not 
expected to be cross-contaminated would include non-contact solvents, 
hydraulic or lubricating oils, and solvent-based wastes from the 
production of unregulated constituents.

   Table 1.--Listed ``U'' Wastes With Corresponding Constituent Limits  
------------------------------------------------------------------------
   Constituent for which the code was listed           Waste  code      
------------------------------------------------------------------------
Acetophenone..................................  U004                    
Benz[a]anthacene..............................  U018                    
Benzene.......................................  U019                    
Benzo(a)pyrene................................  U022                    
Bis(2-ethylhexyl) phthalate...................  U028                    
Chrysene......................................  U050                    
Creosote......................................  U051                    
Cresol cresylic acid (total cresols)..........  U052                    
Dibenz[a,h]anthracene.........................  U063                    
Di-n-butyl phthalate..........................  U069                    
Diethyl phthalate.............................  U088                    
7,12-Dimethylbenz[a]anthracene................  U094                    
Di-n-octyl phthalate..........................  U107                    
Fluoranthene..................................  U120                    
Indeno(1,2,3-cd) pyrene.......................  U137                    
3-Methylcholanthrene..........................  U157                    
Naphthalene...................................  U165                    
Toluene.......................................  U220                    
Acrolein......................................  P003                    
Allyl alcohol.................................  P005                    
Endothall.....................................  P088                    
Propargyl alcohol.............................  P102                    
Ethyl methacrylate............................  U118                    
Isobutyl alcohol..............................  U140                    
Isosafrole....................................  U141                    
Methyl ethyl ketone [2-Butanone] [MEK]........  U159                    
Methyl methacrylate...........................  U162                    
1,4-Naphthoquinone............................  U166                    
Phenol........................................  U188                    
Safrole.......................................  U203                    
2-Ethoxyethanol [Ethylene glycol monoethyl      U359                    
 ether].                                                                
------------------------------------------------------------------------


 Table 2.--Listed ``U'' Wastes With No Corresponding Constituent Limits 
------------------------------------------------------------------------
  Constituent for which the waste was listed           Waste code       
------------------------------------------------------------------------
Acetaldehyde [Ethanal]........................  U001                    
Acetone [2-Propanone].........................  U002                    
2-Acetylaminofluorene [2-AAF].................  U005                    
Acrylic acid..................................  U008                    
Benz[c]acridine...............................  U016                    
n-Butyl alcohol [n-Butanol]...................  U031                    
Carbon oxyfluoride............................  U033                    
Crotonaldehyde................................  U053                    
Cumene [Isopropyl benzene]....................  U055                    
Cyclohexane...................................  U056                    
Cyclohexanone.................................  U057                    
Dibenzo[a,i]pyrene............................  U064                    
1,2:3,4-Diepoxybutane [2,2'-Bioxirane]........  U085                    
,-Dimethyl benzyl           U096                    
 hydroperoxide.                                                         
2,4-Dimethylphenol............................  U101                    
Dimethyl phthalate............................  U102                    
1,4-Dioxane [1,4-Diethyleneoxide].............  U108                    
Ethyl acetate.................................  U112                    
Ethyl acrylate................................  U113                    
Ethylene oxide................................  U115                    
Ethyl ether...................................  U117                    
Formaldehyde..................................  U122                    
Formic Acid...................................  U123                    
Furan.........................................  U124                    
Furfural......................................  U125                    
Glycidylaldehyde..............................  U126                    
Maleic anhydride..............................  U147                    
Methanol......................................  U154                    
Methyl ethyl ketone peroxide..................  U160                    
Methyl isobutyl ketone [4-Methyl-2-pentanone].  U161                    
Paraldehyde...................................  U182                    
1,3-Pentadiene................................  U186                    
Phthalic anhydride............................  U190                    
Quinone [p-Benzoquinone]......................  U197                    
Resorcinol....................................  U201                    
Tetrahydrofuran...............................  U213                    
Xylenes, mixed isomers [Xyenes, total]........  U239                    
------------------------------------------------------------------------

2. General
    The proposal provided several methods by which a hazardous waste 
could qualify as a comparable fuel. The final rule retains these 
methods and adds clarifying conditions to ensure that the methods do 
not violate existing policy with regard to blending and treatment. The 
person claiming that a hazardous waste meets the exclusion criteria of 
this rule will be referred to as the ``comparable fuel generator,'' in 
the case of excluded liquid fuel, or ``syngas fuel generator,'' in the 
case of excluded syngas fuel. In today's final rule, a hazardous waste 
can meet the comparable fuel hazardous constituent, heating value and 
viscosity specifications of Sec. 261.38(a) in several ways. However, in 
each case, the generator claiming the exclusion is responsible for 
demonstrating eligibility. In addition, just meeting the hazardous 
constituent, heating value and viscosity specifications would not 
qualify a hazardous waste for the exclusion. The implementation 
requirements of Sec. 261.38(c) (e.g., notification, certification, 
sampling and analysis, recordkeeping) must also be satisfied for a 
hazardous waste to be excluded as a comparable fuel.
    A waste can meet the Sec. 261.38(a)(2) hazardous constituent 
specification if the hazardous waste ``as generated,'' i.e. without any 
processing, blending or other alteration: (a) Meets the hazardous 
constituent specification; or (b) does not meet the hazardous 
constituent specification, but undergoes treatment, pursuant to 
Sec. 261.38(c)(4), so that the hazardous constituents of concern are 
destroyed or removed to concentrations that meet the exclusion 
specification.
    A waste can meet the Sec. 261.38(1)(i) heating value specification 
if the hazardous waste as generated without processing: (a) Meets the 
heating value specification; or (b) does not meet the hazardous 
constituent specification, but undergoes treatment, pursuant to 
Sec. 261.38(c)(4), that destroys or removes material to increase the 
heating value to meet the exclusion specification.
    A waste can meet the Sec. 261.38(a)(1)(ii) viscosity specification 
if the hazardous waste as generated without processing: (a) Meets the 
viscosity specification; (b) does not meet the viscosity specification, 
but through blending, pursuant to Sec. 261.38(c)(3) with fossil fuel, 
another excluded comparable fuel, or other non-waste changes the 
viscosity to meet the exclusion specification; or (c) does not meet the 
viscosity specification, but undergoes treatment, pursuant to 
Sec. 261.38(c)(4) that destroys or removes material to decrease the 
viscosity to meet the exclusion specification.
3. Blending
    Commenters supported allowing the blending of a hazardous waste 
that meets the constituent and heating value specifications for the 
purpose of decreasing viscosity. However, commenters were concerned 
that blending could dilute toxic constituents and said that blending 
should only be allowed if toxic constituents in the hazardous waste 
would not be diluted. In today's final rule, the Agency allows an as-
generated hazardous waste, which meets the hazardous constituent and 
heating value specifications, but does not meet the viscosity 
specification, to be blended to meet the viscosity specification (see 
Sec. 261.38(a)). The generator must document that the hazardous waste, 
as generated without processing, meets the hazardous constituent and 
heating value specifications prior to any blending. It is also the 
responsibility of the generator to document that the blending does not 
violate the dilution prohibition of Sec. 261.38(c)(6). This provision 
states that the hazardous constituent and heating

[[Page 33795]]

value specifications cannot be met through dilution; i.e. they can only 
be met through treatment which destroys or removes hazardous 
constituents, or by the waste as-generated. See generally 61 FR at 
15586-87 (April 8, 1996) (extending dilution prohibition in Sec. 268.3 
to include combustion of inorganic wastes). Allowing blending to meet 
the hazardous constituent or heating value specification simply 
increases the amounts of hazardous constituents emitted when the fuels 
are burned, and would increase these amounts above those emitted if 
fossil fuels were burned instead. This is at inconsistent with the 
whole premise of comparable fuels, and also is inconsistent with the 
section 3004(m) hazardous waste treatment provisions (which, although 
not directly applicable, articulate important overall statutory 
objectives) which require hazardous constituents to be removed or 
destroyed by treatment, not diluted. Chemical Waste Management v. EPA, 
976 F. 2d 2, 16 (D.C. Cir. 1992). As noted earlier, such burning can be 
viewed as part of the waste management problem, and EPA may validly 
condition the exclusion to prevent that result.
    Blending of a hazardous waste pursuant to Sec. 261.38(c)(3) to 
meets the viscosity specification obviously may be performed only in 
regulated units: at a permitted RCRA treatment, storage facility; a 
regulated interim status treatment, storage facility; or at a 90-day 
generator unit meeting the requirements of Sec. 262.34.
4. Treatment
    Commenters also supported the proposal to allow a hazardous waste 
to be treated to meet the comparable fuel specifications. Many of the 
same commenters also expressed concerns that any treatment allowed 
should reduce emissions of hazardous constituents, i.e. treatment must 
destroy or remove the constituents or materials of concern. The Agency 
agrees, and Sec. 261.38(c)(4) specifically states that only treatment 
which destroys or removes hazardous constituents or materials is 
permissible. Moreover, as noted above, the waste remains subject to 
subtitle C control during treatment and thus treatment can only occur 
in regulated units. (Treatment by blending to meet the viscosity 
specification likewise can only occur in regulated units, for the same 
reason.)
    It is the responsibility of the generator claiming the exclusion to 
demonstrate eligibility. See generally Sec. 261.2(f). It should be 
noted that just meeting the hazardous constituent, heating value and 
viscosity specifications would not qualify a hazardous waste for the 
exclusion; the implementation requirements of Sec. 261.38(c) (e.g., 
notices, certification, sampling and analysis, recordkeeping, etc.) 
also must be satisfied for a hazardous waste to be excluded as a 
comparable fuel. The person that treats the hazardous waste to generate 
a comparable fuel must also demonstrate that the treatment of the 
hazardous waste destroys or removes the hazardous constituents or 
materials of concern from the waste. The treater must: (1) Document 
that the unit that will treat the hazardous waste has been demonstrated 
to effectively remove or destroy the hazardous constituents (at the 
levels present in the waste) or materials of concern from the type of 
waste being treated; or (2) treat the waste in a unit that removes or 
destroys the constituents of concern, then reanalyze the waste, in 
accordance with the requirements of Sec. 261.38(c)(8), to document that 
the constituent specifications have been satisfied.
    If a hazardous waste is treated to produce a comparable fuel, only 
the waste-derived fuel would be excluded from RCRA subtitle C 
regulation upon a determination that it met the specification. The 
hazardous waste would be regulated under Subtitle C from the point of 
generation until the generation of a comparable fuel that meets the 
exclusion specifications and implementation requirements. This means 
that the generation, transport, storage, and treatment of the hazardous 
waste, until exclusion as a comparable fuel, remains subject to 
applicable Subtitle C regulations.
    In addition, residuals from the treatment of a hazardous waste 
remain solid waste and, if hazardous, are subject to applicable 
Subtitle C regulations. Thus, if comparable fuel is produced from 
treatment of listed hazardous waste, the wastes from that process are 
automatically hazardous by virtue of the derived from rule. (See the 
derived-from rule in Sec. 261.2(d).)

F. Meeting the Syngas Specifications

    Commenters felt the proposal was not very specific in describing 
ways in which a syngas fuel could be generated from hazardous waste. 
The final rule makes clear that a hazardous waste can meet the syngas 
fuel constituent and heating value specifications through the treatment 
of the hazardous waste. As with comparable fuels, it is the 
responsibility of the generator claiming the exclusion to demonstrate 
eligibility. The treatment of a hazardous waste to generate a syngas 
fuel can occur in either: (1) A unit subject to applicable Subtitle C 
treatment, storage and disposal requirements (i.e., Parts Sec. 264, 
Sec. 265 or Sec. 262.34); or (2) a recycling unit exempt under 
Sec. 261.6(c).
    The generator of the syngas fuel must demonstrate that the 
treatment of the hazardous waste destroys or removes the hazardous 
constituent of concern from the waste. A generator of syngas fuel from 
the treatment of hazardous waste must: (1) Document that the unit that 
will process the hazardous waste has been demonstrated to effectively 
remove or destroy the hazardous constituents of concern from the type 
of waste being treated; and (2) process the hazardous waste in a unit 
that removes or destroys the constituents of concern, then analyze the 
waste in accordance with the requirements of Sec. 261.38(c)(8) to 
document that the exclusion specifications have been satisfied. If a 
hazardous waste is processed to produce a syngas fuel that meets the 
exclusion specifications, only the syngas fuel would be excluded from 
RCRA subtitle C regulation.
    In addition, residuals from the treatment of a hazardous waste to 
generate an excluded syngas fuel remain solid waste and are subject to 
applicable Subtitle C regulations if they are also hazardous wastes. 
Residuals from the treatment of a listed hazardous waste to generate a 
syngas fuel remain hazardous wastes due to the derived-from rule: the 
residuals are derived from treatment of listed hazardous wastes.

G. Sampling and Analysis

    Commenters expressed concern that the Agency proposed: (1) To 
initially require sampling and analysis for all Appendix VIII 
constituents; (2) to require the use of SW-846 methods to conduct 
sampling and analysis of Appendix VIII constituents; and (3) to also 
require the use of the same methods for syngas as for comparable fuels. 
In response to commenters concerns, the Agency is finalizing the 
following approaches to sampling and analysis of comparable fuel and 
syngas fuel.
1. Use of Process Knowledge
    A majority of commenters believed that EPA should allow the use of 
process knowledge under limited circumstances in determining which 
constituents to test for in the initial scan as well as any follow up 
testing. The Agency agrees with commenters. Generators of hazardous 
wastes should have adequate knowledge of their waste to allow the use 
of process knowledge in determining which constituents may and may not 
be present in their waste.
    The use of process knowledge may only be used by the original 
generator of

[[Page 33796]]

the hazardous waste. If the generator of the hazardous waste and 
generator of the comparable/syngas fuel are different, then the 
generator of the comparable/syngas fuel may not use process knowledge 
to determine that constituents are not present in the waste. The 
generator of the comparable/syngas fuel, if not the original generator 
of the hazardous waste, must test for all of the constituents and 
properties in Sec. 261.38(a)(2) Table 1 of the regulations. This is 
because the Agency believes that only the original generator may have 
intimate knowledge of the constituents in the waste to make such a 
determination. See Sec. 268.7, where EPA uses the same approach for 
analyzing compliance with LDR treatment standards; see also Hazardous 
Waste Treatment Council v. EPA, 886 F. 2d 355, 368-71 (D.C. Cir. 1989) 
(upholding this approach).
    Therefore, the final rule allows the use of process knowledge under 
certain circumstances. Today's rule requires testing for all 
constituents except those the initial generator of the hazardous waste 
determines should not be present in the waste. The following cannot be 
determined to ``not be present'' in the waste: (1) A hazardous 
constituent that causes the waste to exhibit the toxicity 
characteristic for the waste or hazardous constituents that were the 
basis for the listing of the waste; (2) a hazardous constituent 
detected in previous analysis of the waste; (3) a hazardous constituent 
introduced into the process that generates the waste; or (4) a 
hazardous constituent that is a byproduct or side reaction to the 
process that generates the waste.
    It is the responsibility of the original generator/comparable fuel 
generator to document their claim that specific hazardous constituents 
meet the exclusion specifications based on process knowledge. 
Regardless of which method a generator uses, testing or process 
knowledge, the generator is responsible for ensuring that the waste 
meets all constituent specifications at all times. If at any time the 
comparable fuel fails to meet any of the specifications, that fuel is 
in violation of Subtitle C requirements.
2. Waste Analysis Plan
    As in the proposal, the final rule requires comparable fuel 
generators to develop a waste analysis plan prior to sampling and 
analysis of their hazardous waste to determine if the waste meets the 
exclusion specifications. This is consistent with the usual requirement 
throughout the Subtitle C rules that persons generating and treating 
hazardous waste must prepare a waste analysis plan. See, e.g. 
Sec. 264.13 (general waste analysis plans) and Sec. 268.7(a)(4) 
(requiring even generators using 90-day units for treatment to prepare 
waste analysis plans with respect to hazardous waste prohibited from 
land disposal). To ensure that the chemical/physical measurements of 
the waste are sufficient, accurate and precise, the Agency is requiring 
comparable fuel generators to develop a waste analysis plan, and 
suggest doing so in accordance with Agency guidance. Chapter Nine of 
``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'' 
(SW-846) addresses the development and implementation of a 
scientifically credible sampling plan. Chapter One of SW-846 describes 
the basic elements to be included in a Quality Assurance Project Plan 
(QAPP), as well as information describing basic quality assurance (QA) 
and quality control (QC) procedures. Chapter Two of SW-846 aids the 
analyst in choosing the appropriate methods for samples, based upon 
sample matrix and the analytes to be determined.
    Comparable fuel generators may want to follow the SW-846 guidance 
in developing their waste analysis plans. As specified in the 
recordkeeping section of the rule (Sec. 261.38(c)(10)) the generator 
also must have documentation of the: (1) Sampling, analysis, and 
statistical analysis protocols that were employed; (2) sensitivity and 
bias of the measurement process; (3) precision of the analytical 
results for each batch of waste tested; and (4) results of the 
statistical analysis.
3. Methods To Analyze Comparable Fuels
    In the proposal, EPA required the use of SW-846 methods for the 
sampling and analysis of wastes to determine if the waste meets the 
comparable fuel exclusion constituent specifications. Based on 
commenter response and the Agency's overall increased use of 
alternative methods to those specified in SW-846, the final rule allows 
the use of alternate methods that meet the performance based criteria 
in section Sec. 261.38(c)(8).
    The approach allows comparable/syngas fuel generators to use any 
reliable analytical method to demonstrate that no constituent of 
concern is present at concentrations above the specification levels. It 
is the responsibility of the generator to ensure that the sampling and 
analysis is unbiased, precise, and representative of the waste. For the 
waste to be eligible for exclusion, a generator must demonstrate that: 
(1) Each constituent of concern is not present above the specified 
specification level at the 95% upper confidence limit around the mean; 
and (2) the analysis could have detected the presence of the 
constituent at or below the specified specification level at the 95% 
upper confidence limit around the mean. (See Guidance for Data Quality 
Assessment--Practical Methods for Data Analysis, EPA QA/G-9, January 
1998, EPA/600/R-96/084).
    The Agency will consider that the exclusion level was achieved in 
the waste matrix if an analysis in which the constituent is spiked at 
the exclusion level indicates that the analyte is present at that level 
within analytical method performance limits (e.g., bias and precision). 
In order to determine the performance limits for a method, EPA 
recommends following the quality control (QC) guidance provided in 
Chapters One and Two of SW-846, and the additional QC guidance provided 
in the individual methods.
    The Office of Solid Waste's (OSW) standing policy on the 
Appropriate Selection and Performance of Analytical Methods for Waste 
Matrices Considered to be ``Difficult-to-Analyze'' was stated in a 
January 31, 1996 memorandum from Barnes Johnson, Director of the 
Economics, Methods, and Risk Assessment Division, to James Berlow, 
Director of the Hazardous Waste Minimization and Management Division. 
The following excerpts are appropriate to this rulemaking.
    Inadequate recovery of target analytes from the RCRA-regulated 
waste matrices of concern demonstrates that the analytical conditions 
selected are inappropriate for the intended application. Proper 
selection of an appropriate analytical method and analytical conditions 
(as allowed by the scope of that method) are demonstrated by adequate 
recovery of spiked analytes (or surrogate analytes) and reproducible 
results. Quality control data obtained must also reflect consistency 
with the data quality objectives and intent of the analysis.
    (a) For extractable organics in standard RCRA matrices, e.g., 
groundwater, aqueous leachates, soils, OSW considers a sample 
preparation method appropriate for use if it generates an analyte 
recovery of 70% or greater (Method 8270C, Sec. 1.1). For extractable 
organics in ``difficult matrices'', e.g., sludges, ash, stabilized 
wastes, OSW considers a sample preparation method appropriate for use 
if it generates an analyte recovery of 50% or greater.
    (b) For volatile organics, using relative recoveries, i.e., 
standard curves established by purge-and-trap, or other

[[Page 33797]]

techniques for the preparation of standards, OSW considers a sample 
preparation method appropriate if it generates a relative analyte 
recovery of 80% or greater (Methods 8260B, 8015B).
    (c) For inorganic analytes in almost all matrices, an absolute 
recovery and precision of 80-120% can generally be achieved with the 
proper choice of acid digestion procedure and determinative method for 
the analyte of interest.''
4. Syngas Waste Analysis Plan and Analysis Methods
    a. General. EPA is concerned that tested and generally accepted 
methods may not exist for the sampling and analysis of gases from 
pressurized systems that will ensure an accurate, unbiased, and precise 
representation of the hazardous constituents present in the gas.
    Hazardous constituents present in a gas at high pressure and high 
temperature may be difficult to analyze accurately due to possible 
physical and chemical changes in the constituents when a sample is 
drawn into a low pressure and temperature environment for analysis. For 
example, some constituents, while present as a gas under high pressure 
and temperature, may solubilize into liquids that have condensed or 
adhere to the sampling components as the pressure and temperature drops 
in the sampling device. If this were to occur, the analysis of the 
sampled gas would not accurately represent the concentrations of the 
constituents in the original gas.
    The Agency also shares the general concern stated in comments that 
enforcement of the exclusion specifications could be compromised 
because of the difficulty in applying or potential absence of accepted 
sampling and analysis methods for these gases. Therefore, the final 
rule requires syngas generators to submit for approval, prior to 
sampling and analysis, a waste analysis plan to the appropriate 
regulatory authority (see Sec. 261.38(c)(7)(iii)). At a minimum, the 
plan must specify: (1) The parameters for which each hazardous waste 
will be analyzed and the rationale for the selection of those 
parameters; (2) the test methods which will be used to test for these 
parameters; (3) the sampling method which will be used to obtain a 
representative sample of the waste to be analyzed; and (4) the 
frequency with which the initial analysis of the waste will be reviewed 
or repeated to ensure that the analysis is accurate and up to date; and 
(5) if process knowledge is used in the waste determination, any 
information prepared by the facility owner or operator in making such 
determination.
    b. Analysis. A syngas fuel generator also may use the performance-
based approach (Sec. 261.38(c)(8)) to demonstrate that the performance 
of the methods selected is appropriate to meet the exclusion 
specifications (as described in 3 above). Guidance on demonstration of 
appropriate method performance can be found in Chapter One of SW-846 
and the Quality Control sections of the individual methods.
5. Non-Detects
    EPA proposed that for a waste to meet a non-detect standard, the 
analysis must achieve a detection limit equal to or less than the EPA 
specified number and also not detect the constituent of concern in the 
waste (61 FR 17358). However, some commenters believe that the Agency 
should develop numerical levels for each parameter in the benchmark 
where results are ``non-detect.'' They are concerned that a potential 
comparable fuel that has any measurable levels of Appendix VIII 
constituents below the Agency's detection limits would not qualify as a 
comparable fuel.
    The final rule maintains the proposed approach for non-detect 
constituent specifications, except in the case of metals, hydrocarbons 
and oxygenates (see Section C. above). The Agency believes that 
allowing concentrations of constituents not found in the benchmark 
fuels to be present in the comparable fuel is counter to the comparable 
approach and could allow higher emissions of toxic compounds from 
burning excluded waste than from benchmark fuels. Additionally, 
commenters noted that the detection limit, referenced as the 
``maximum'' detection limit, should more accurately be referred to as 
the ``minimum'' detection limit that must be achieved. The Agency 
agrees and the final rule requires that analysis for a constituent with 
a specification of non-detect must: (1) Meet a detection limit at or 
less than the minimum required detection limit listed for the 
constituent; and (2) not detect the constituent of concern in the waste 
(see Sec. 261.38(a) and (b)).
    Commenters also indicated that it may be difficult to achieve the 
detection limits specified for the non-detect specifications. The 
Agency continues to believe that the detection limits can be met. This 
is due in part to the fact that the detection limits are primarily 
based on the limits found for the No. 6 fuel oil analysis. EPA believes 
that the matrix for No. 6 fuel oil is a more difficult matrix to 
analyze than what the Agency believes will be the matrix for the 
majority of comparable fuels--a light solvent matrix. In addition, to 
assist generators who may have difficult matrices to analyze, the final 
rule provides the latitude to use any method that will ensure an 
unbiased and precise analysis of the waste.

H. Notification, Certification, and Documentation

1. Who Must Make the Exclusion Notification
    The person claiming that a hazardous waste meets the exclusion 
criteria of this rule is known as the ``comparable fuel generator'' in 
the case of excluded liquid fuel or ``syngas fuel generator'' in the 
case of excluded syngas fuel. The comparable/syngas fuel generator need 
not be the person who originally generates the hazardous waste. The 
comparable/syngas fuel generator can be the first person who documents 
and certifies that a specific hazardous waste meets the exclusion 
criteria.
2. Notification Requirements
    Most commenters agreed with the proposal that a one-time 
notification was appropriate; however, some commenters said that the 
exclusion should not be self-implementing and should require some type 
of review and approval by the implementing authority. The Agency 
continues to believe that a one-time notification in combination with 
the other requirements of this section, gives sufficient notice to the 
regulating officials (i.e., State RCRA and CAA officials). Since this 
is a self-implementing exclusion, in order to ensure delivery, the 
notification must be sent certified mail and until the notification of 
exclusion is received the waste is still a hazardous waste and must be 
managed as such. Only after the receipt of such notification that the 
hazardous waste-derived fuel meets the requirements of this rule is the 
waste excluded and free to be managed in accordance with the 
requirements for a comparable or syngas fuel. If a comparable/syngas 
fuel generator loses its exclusion, the generator must renotify for the 
exclusion, after coming into compliance with the requirements of this 
section. If necessary the generator must also comply with any 
applicable Subtitle C requirements for the waste.
    a. EPA Regional or State Notification. Prior to managing any waste 
as an excluded comparable/syngas fuel under this section, the generator 
must send to, in States not authorized to implement this Section, the 
EPA Regional RCRA and CAA Directors, and, in authorized States, to the 
State RCRA and CAA Directors. The notification of the exclusion claim 
should be sent via

[[Page 33798]]

certified mail, or other mail service that provides written 
confirmation of delivery. Notification of the RCRA and CAA Directors 
will provide notification of the exclusion and appropriate 
documentation to both the RCRA and CAA implementing officials. The 
Agency's intent is for copies of the exclusion information to reach 
both the RCRA and CAA implementing officials because of the nature of 
this exclusion--a RCRA excluded waste being burned in CAA regulated 
units. If the comparable/syngas is to be burned in a State other than 
the generating State, then the comparable/syngas fuel generator must 
also provide notification to that State's or Region's RCRA and CAA 
Directors.
    The notification shall contain the following items: (1) The name, 
address, and RCRA ID number of the person/facility claiming the 
exclusion; (2) the applicable EPA Hazardous Waste Codes for the 
hazardous waste; (3) the name and address of the units, meeting the 
requirements of Sec. 261.38(c)(2), that will burn the comparable/syngas 
fuel; and (4) the following statement signed and submitted by the 
person claiming the exclusion or his authorized representative:
    ``Under penalty of criminal and civil prosecution for making or 
submitting false statements, representations, or omissions, I certify 
that the requirements of 40 CFR 261.38 have been met for all waste 
identified in this notification. Copies of the records and information 
required at 40 CFR 261.38(c)(10) are available at the comparable/syngas 
fuel generator's facility. Based on my inquiry of the individuals 
immediately responsible for obtaining the information, the information 
is, to the best of my knowledge and belief, true, accurate, and 
complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment for knowing violations.''
    b. Public Notification. As a self-implementing exclusion effective 
upon receipt of the notification by the implementing authority, there 
is no decision prior to exclusion being made by the implementing 
authority regarding the waste. The opportunity exists at all times for 
the public to bring to the implementing authority's attention any 
circumstance that might aid that authority in its monitoring and 
enforcement efforts. The public, furthermore, would have the ability to 
bring a citizen suit for a claimant's failure to comply with any 
requirement of the exclusion. Based on comments received on the 
proposal, the Agency believes that requiring the comparable/syngas fuel 
burner to provide a simple public notification of an exclusion claim 
would aid the public in its efforts. In most cases, the Agency believes 
the burner will also be the generator of the fuel.
    Therefore, under the final rule, the comparable/syngas fuel burner 
must submit for publication in a major newspaper of general circulation 
local to the site where the comparable/syngas fuel will be burned, a 
notice entitled ``Notification of Burning of Comparable/Syngas Fuel 
Excluded Under the Resource Conservation and Recovery Act'' containing 
the following information: (1) Name, address, and RCRA ID number of the 
claimant's facility; (2) name and address of the unit(s) that will burn 
the comparable/syngas fuel; (3) a brief, general description of the 
manufacturing, treatment, or other process generating the comparable/
syngas fuel; (4) an estimate of the average and maximum monthly and 
annual quantity of the waste claimed to be excluded; (5) name and 
mailing address of the State or Regional Directors to whom the claim is 
being submitted. This notification must be published in the newspaper 
prior to the burning of the comparable/syngas fuel. Notification is 
only necessary once for each waste stream excluded.
    c. Burner Certification. As proposed, the final rule requires 
comparable/syngas fuel to be burned only in units subject to Federal/
State/local air emission requirements. The Agency believes that 
limiting the burning of comparable/syngas fuels to industrial furnaces 
or industrial boilers, or hazardous waste incinerators, along with a 
certification from the burner, would ensure that the fuel was burned in 
a unit subject to Federal/State/local air emission regulations. 
Industrial furnaces or industrial boilers, or hazardous waste 
incinerators are believed to be a universe of units that are capable of 
handling comparable/syngas fuels and that would be subject to Federal/
State/local air emission requirements. In response to comments, the 
Agency believes that these excluded hazardous wastes are best handled 
and burned in the types of units specified in Sec. 261.38(c)(2). To 
ensure that comparable/syngas fuels burned off-site are burned in a 
unit specified in Sec. 261.38(c)(2) (see discussion below), the Agency 
is requiring the generator to obtain from the burner a one-time 
written, signed certification that: (1) The comparable/syngas fuel will 
be burned only in an industrial furnace or boiler, or hazardous waste 
incinerator subject to Federal, State, or local air emission 
requirements; (2) identifies the name and address of the units that 
will burn the comparable/syngas fuel; and (3) the state in which the 
burner is located is authorized to exclude wastes as comparable fuels 
(i.e., under the provisions of Sec. 261.38). This requirement coupled 
with the requirement to notify the State or Regional Directors will 
enable regulatory officials to take any measure that may be appropriate 
to ensure that excluded fuel is burned in conformance with applicable 
regulations and so does not become part of the waste management 
problem.
    If the generator or burner intends to change the unit where the 
comparable/syngas fuel is burned (i.e., burn a comparable/syngas fuel 
in a unit that has not previously been included in a certification), 
then prior to burning, the generator must again follow the requirements 
for: (1) Obtaining a burner certification; (2) notifying the public; 
and (3) submitting a revised notification to the State or Regional 
Directors. Once the revised notification has been received by the State 
or Regional Directors and the notification has been published in the 
newspaper, the generator/burner may burn the fuel as an excluded waste.

I. Exclusion Status

    Some commenters requested clarification of the regulatory status of 
the comparable/syngas fuel if the conditions of the exclusion were not 
met. After the exclusion for a waste has become effective, the 
conditions of the exclusion must continue to be met in order to 
maintain the exclusion.
    Separate and distinct from any requirement or condition established 
in this final rule, all generators--including comparable/syngas fuel 
generators under this exclusion--have a continuing obligation to 
identify whether they are generating a hazardous waste and to notify 
the appropriate government official if they are generating a hazardous 
waste. Section 3010; 40 CFR 262.11. If a comparable fuel claimed as 
excluded under today's rule fails to meet the exclusion requirements of 
sections Sec. 261.38(a)-(c), that comparable/syngas fuel and 
subsequently generated comparable/syngas fuel would be required to be 
managed as a hazardous waste--including compliance with all 
notification requirements--until testing demonstrated that the waste 
was below the exclusion specifications.
    A comparable/syngas fuel that is not ultimately burned remains a 
hazardous waste and is subject to all applicable Subtitle C regulations 
(unless another exclusion from RCRA applies). As stated

[[Page 33799]]

in the proposal, the only allowable treatment or disposal method for a 
comparable/syngas fuel is burning. Any disposal method other than 
burning is a RCRA violation, unless the comparable/syngas fuel is 
properly managed as a hazardous waste meeting applicable Subtitle C 
regulations. The implications of not burning are that any prior 
management of the waste was subject to Subtitle C requirements.
    Excluded comparable/syngas fuel generators, transporters and 
burners are subject to the speculative accumulation requirements under 
Sec. 261.2(c)(4). Thus, there must be turnover of a given percentage of 
comparable fuel stock each calendar year, and the persons holding such 
fuels must be able to demonstrate that such turnover is occurring. See 
Sec. 261.2(f). Since ultimate users are notified that they are 
receiving comparable fuels, they may feasibly comply with this 
requirement by documenting how much such fuel is received when it is 
burned.
    If a generator knows or should have known that a waste fails to 
meet the constituent specifications, the exclusion ends as of the point 
of determination and the material must be managed as a hazardous waste.

J. Recordkeeping

1. General
    Some commenters believed that the recordkeeping requirements in the 
proposal were excessive, while others felt they were too lenient. The 
Agency, however, believes that because of the self-implementing nature 
of this exclusion, maintenance of the proper information on-site is 
essential to the proper implementation of the exclusion.
    The final rule requires the comparable/syngas fuel generator to 
maintain the following files (see Sec. 261.38(c)(10)) at the facility 
generating the fuel: (1) All information required to be submitted to 
the State RCRA and CAA Directors as part of the notification of the 
claim: (i) the name, address, and RCRA ID number of the person claiming 
the exclusion; (ii) the applicable EPA Hazardous Waste Codes for the 
hazardous waste; (2) a brief description of the process that originally 
generated the hazardous waste and process that generated the excluded 
fuel; (3) an estimate of the average and maximum monthly and annual 
quantities of each waste claimed to be excluded; (4) documentation for 
any claim that a constituent is not present in the hazardous waste as 
required under Sec. 261.38(8); (5) the results of all analyses and all 
quantitation limits achieved for the fuel; (6) documentation as 
required for the treatment or blending of a waste to meet the exclusion 
specifications; (7) a certification from the burner if the waste is to 
be shipped off-site; and (8) the certification signed by the person 
claiming the exclusion or his authorized representative.
    The generator must also maintain documentation of the waste 
analysis plan and the results of the sampling and analysis that 
includes the following: (1) the dates and times waste samples were 
obtained, and the dates the samples were analyzed; (2) the names and 
qualifications of the person(s) who obtained the samples; (3) a 
description of the temporal and spatial locations of the samples; (4) 
the name and address of the laboratory facility at which analyses of 
the samples were performed; (5) a description of the analytical methods 
used, including any clean-up and sample preparation methods; (6) all 
quantitation limits achieved and all other quality control results for 
the analysis (including method blanks, duplicate analyses, matrix 
spikes, etc.), laboratory quality assurance data, and description of 
any deviations from analytical methods written in the plan or from any 
other activity written in the plan which occurred; (7) all laboratory 
analytical results demonstrating that the exclusion specifications have 
been met for the waste; and (8) all laboratory documentation that 
support the analytical results, unless a contract between the claimant 
and the laboratory provides for the documentation to be maintained by 
the laboratory for the period specified in Sec. 261.38(c)(11) and also 
provides for the availability of the documentation to the generator 
upon request. These records and those required for off-site shipments 
must be maintained for the period of three years. A generator must 
maintain a current waste analysis plan during that three year period.
2. Off-Site Shipments
    The final rule requires that for each shipment of comparable/syngas 
fuel a generator sends off-site for burning in an industrial furnace or 
boiler, or hazardous waste incinerator, a record of the shipment must 
be kept by the generator on-site. Because these fuels are not required 
to be accompanied by a manifest, it is the Agency's belief, supported 
by commenters, that to ensure that comparable/syngas fuels are 
transported to and burned in only those units approved for such burning 
some type of tracking mechanism is warranted. Therefore, the final rule 
requires for off-site shipments the following information be maintained 
by the generator on-site: (1) The name and address of the facility 
receiving the comparable/syngas fuel for burning; (2) the quantity of 
comparable/syngas fuel delivered; (3) the date of shipment or delivery; 
(4) a cross-reference to the record of comparable/syngas fuel analysis 
or other information used to make the determination that the 
comparable/syngas fuel meets the specifications; and (5) the one-time 
certification by the burner.

K. Transportation and Storage

    Commenters concurred with the Agency's belief that the Department 
of Transportation (DOT) and the Occupational Safety and Health Agency 
(OSHA) requirements for the transportation and handling of comparable/
syngas fuels will be adequate to ensure the safe management of these 
excluded fuels. The final rule does not require comparable/syngas fuel 
handlers to comply with the RCRA storage and transportation 
requirements. It should be noted that excluded comparable/syngas fuel 
transporters are required to comply with all applicable requirements 
under the U.S. Department of Transportation regulations in 49 CFR parts 
171 through 180.
    Anyone who stores an excluded comparable/syngas fuel (e.g., 
generator, transporter, burner) is required to comply with all 
applicable requirements under the Occupational Safety and Health Agency 
regulations in 29 CFR part 1910. The occupational safety and health 
standards for flammable and combustible liquids can be found in Subpart 
H--Hazardous Materials section 1910.106 and standards for compressed 
gases in section 1910.101.

L. Comparable Fuels Exclusion and Waste Minimization

1. Introduction
    In its April 1996 NPRM (61 FR 17464), EPA solicited comment on the 
effects of the comparable fuels provision on facilities' efforts to 
promote pollution prevention and waste minimization measures (i.e., 
source reduction and environmentally sound recycling). In particular, 
EPA wanted to determine the extent to which companies might: (1) Shift 
from hazardous waste recycling practices to burning wastes as fuel in 
broader markets; (2) continue to recycle these wastes for product 
recovery; (3) undertake source reduction for those wastes currently 
failing the comparable fuel specifications; or (4) continue to burn the 
excluded waste fuel in either an hazardous waste incinerator, light 
weight aggregate kiln, or cement kiln.
    EPA received many comments on this issue, most of which indicated 
there

[[Page 33800]]

would probably be a shift from recycling toward combustion, but the 
Agency received very little quantitative information that would allow 
the Agency to assess the extent and impact of potential shifts. 
Consequently, EPA used data from the RCRA Biennial Reporting System, 
which is a census of waste stream information from all large quantity 
hazardous waste generators, and the National Hazardous Waste 
Constituent Survey (NHWCS), which contains data on the composition and 
properties of waste streams for certain industries, to develop two 
approaches for assessing the impacts of the comparable fuels provision 
on pollution prevention and recycling. This approach is described in 
the next section.
    The results of EPA's analysis conclude that about three-fourths of 
hazardous wastes now meeting the comparable fuels specifications are 
already being combusted; the remainder (about one-fourth) is recycled. 
The 70,000 tons of hazardous wastes, that qualify for the comparable 
fuels exclusion and are currently recycled annually, could shift to the 
comparable fuels market, if all generators responded the same way, a 
possibility which seems unlikely. This figure represents less than a 
one percent annual increase in the amount of hazardous waste combusted, 
but it represents a decrease of about 20% in the amount of hazardous 
wastes recycled annually.
    If the comparable fuels provision were implemented alone, a 20% 
decrease in recycling might appear to have a negative effect on 
pollution prevention and waste minimization. However, as one commenter 
pointed out, some generators will install pollution prevention and 
waste minimization measures (i.e., to prevent high levels of 
constituents from becoming part of the waste) in order to qualify for 
the comparable fuels exclusion. This would have the effect of 
increasing pollution prevention. Furthermore, EPA fully expects that 
the increased cost of upcoming MACT standards will cause the regulated 
community to seek cost effective pollution prevention and waste 
minimization solutions to offset the higher costs (a response seen, for 
example, in the RCRA land disposal restrictions program). EPA is 
examining this effect in the regulatory impact analysis for the 
upcoming MACT standards. On balance, the impact of the comparable fuels 
provision on pollution prevention and waste minimization in the context 
of MACT standards appears to be negligible.
2. Major Concerns of Commenters
    EPA received comments generally expressing either concerns or 
support for the exclusion. There was some concern that the comparable 
fuels exclusion would lead to combustion of spent solvents and other 
high-energy wastes low in halogens and metals that would otherwise be 
recovered as product. Conversely, others supported the exclusion 
pointing to incentives it may create to source reduce and conserve 
resources by replacing fossil fuels with comparable fuels. In addition, 
concerns were raised over the role of energy recovery in the waste 
management hierarchy, and the impact of fuel blending on comparable 
fuels.
    Impact on Source Reduction and Recycling: Several commenters stated 
that EPA failed to investigate whether the comparable fuels exclusion 
would encourage combustion of wastes now being recycled. Some of these 
commenters took positions on how the comparable fuels exclusion would 
impact the recycling-combustion balance. One group claimed that the 
comparable fuels exclusion would encourage combustion at the expense of 
recycling. A smaller group of commenters stated that the comparable 
fuels exclusion would offer an incentive for generators to use more 
source reduction to lower the levels of toxic constituents to the 
specification levels. The commenters provided little quantitative 
information describing these changes.
    As noted above, EPA used data from the RCRA Biennial Reporting 
System (BRS), which is a census of waste stream information from all 
large quantity hazardous waste generators, and the National Hazardous 
Waste Constituent Survey (NHWCS), which contains data on the 
composition and properties of waste streams for certain industries, to 
develop two approaches for assessing the impacts of the comparable 
fuels provision on pollution prevention and recycling. Results from 
both analyses indicate that about three-fourths of wastes likely to 
meet the comparable fuel specifications are already combusted rather 
than recycled, and that the remaining wastes could shift from the 
current recycling market to the comparable fuels depending on the 
economics and individual company preferences. The methodologies used 
are summarized below. A full discussion of these analyses is provided 
in the docket.
    Analysis #1: EPA searched the 1993 BRS data to identify waste 
streams that would be most likely contain wastes that could meet 
comparable fuel specifications for energy value and low levels of 
contaminants. EPA focused its search on D001/ignitable wastes because 
this waste typically contains spent nonhalogenated solvents. EPA also 
used the BRS data to determine how these wastes were managed after 
generation, and found that about three-fourths of D001 wastes are 
combusted, while the remaining one-fourth goes to recycling for solvent 
recovery.
    Analysis #2: Using waste stream specific laboratory analysis data 
from the NHWCS, EPA identified those waste streams in the survey that 
meet the comparable fuels specifications for about half of the recycled 
wastes reported in the BRS. Using this data, EPA was able to estimate 
the total amount of recycled wastes that could be comparable fuels, and 
how much waste currently sent to combustion meets the comparable fuels 
specifications. Analysis of these estimates indicates that about 75% of 
waste streams meeting the comparable fuels criteria is combusted while 
the remainder is recycled.
    The ``Economic Analysis Report for the Combustion MACT Fast-Track 
Rulemaking'' (contained in the docket) predicts savings to generators 
who can begin to combust hazardous wastes as comparable fuels rather 
than as hazardous wastes. EPA believes this offers generators 
incentives to achieve the comparable fuels specifications through 
source reduction. However, since the costs of source reduction 
initiatives vary widely from facility to facility, EPA could not 
reliably estimate net cost savings that facilities could achieve by 
turning hazardous wastes into comparable fuels through upstream source 
reduction. Therefore we did not attempt such an estimation.
    In addition, many solvent recycling facilities could begin to 
combust streams meeting the comparable fuels specifications instead of 
continuing to recycle them. EPA's comparison of recycling costs and 
revenues with costs for combusting these streams as comparable fuels 
indicate that in many cases facilities may find the combustion option 
more economical. Since solvent recycling costs and revenues vary 
considerably from facility to facility and also fluctuate in time 
according to the market values of virgin solvent (fuel costs also 
fluctuate), EPA could not and did not estimate the extent of this 
shift. Individual facilities may continue to recycle wastes rather than 
combust them as comparable fuels.
    Recycling and the Waste Management Hierarchy: Some commenters 
stated that letting wastes similar to fuels be burned is evidence of an 
Agency preference for

[[Page 33801]]

combustion over recycling. EPA disagrees: The comparable fuels 
exclusion is based on the fact that some hazardous waste fuels very 
closely resemble fossil fuels and do not warrant the full slate of RCRA 
Subtitle C controls. This does not suggest that the Agency has altered 
its commitment to the hierarchy. The underpinning of the comparable 
fuels exclusion is simply a determination on the degree of regulatory 
oversight needed for fuel-like waste materials, which does not 
translate to any change of view on the waste management hierarchy.
    Burning for Energy Recovery: Some commenters claim that burning for 
energy recovery is waste minimization. While EPA is clearly providing 
greater flexibility to burn wastes that closely resemble virgin fuels, 
EPA distinguishes this from waste minimization. Waste minimization 
includes source reduction and environmentally sound recycling, but does 
not include any ``method, technique, or process, including 
neutralization, designed to change the physical, chemical or biological 
character or composition of any hazardous waste so as to neutralize 
such waste, or so as to recover energy or material resources from the 
waste, or so as to render such waste non-hazardous, or less hazardous; 
safer to transport, store or dispose of; or amenable for recovery, 
amenable for storage, or reduced in volume.'' (40 CFR 260.10)(emphasis 
added).
    Blenders and Third Parties: Some commenters expressed concern that 
EPA would allow blending of hazardous wastes to meet the concentration 
specifications for a comparable fuel, thereby raising the issue of 
dilution to avoid RCRA regulation. Similarly, commenters objected to 
allowing third parties, such as fuel blenders, to handle and blend 
wastes between generation and combustion. Commenters pointed out that 
blending and third-party involvement would constitute impermissible 
dilution. It would also undermine any incentive to minimize the volume 
or toxicity of these wastes. The Agency agrees that blending hazardous 
wastes to bring them within the comparable fuels concentration 
specifications would constitute dilution which is not only 
impermissible but also would likely inhibit waste minimization. Today's 
rule explicitly prohibits any blending or other ``treatment'' which 
does not remove or destroy hazardous constituents. Blending of two 
wastes already meeting the comparable fuels specifications is, however, 
allowed only to achieve the viscosity specification. The rationale for 
this limited use of blending is discussed in that section of today's 
preamble.
    Opportunities for Source Reduction: One commenter commented that 
the Standards for the Management of Used Oil (40 CFR Part 279) offered 
generators an incentive for keeping used oil streams clean by requiring 
oil exceeding certain concentration specifications for metals and 
chlorine to be managed as hazardous waste, and predicts that the 
comparable fuels exclusion will result in similar incentives for source 
reductions to achieve the comparable fuel exclusion criteria, 
particularly for generators of D001 (ignitable) wastes. EPA agrees with 
this view, but did not receive industry-specific information from 
commenters with which to complete an analysis of this issue.

IV. RCRA Permit Modifications for Hazardous Waste Combustion Units

A. Introduction

    The Clean Air Act (CAA) sets a maximum time frame of three years 
for facility owners or operators to comply with Maximum Achievable 
Control Technology (MACT) emission standards once final standards are 
published in the Federal Register. EPA expects that many facility 
owners or operators will need to make changes to their process(es) in 
order to come into compliance with the new standards. For facilities 
operating under a RCRA permit, these changes may have to be 
incorporated into the permit before they may be put in place at the 
facility. To facilitate meeting the three year deadline, EPA is 
revising the RCRA permit modification procedures to explicitly address 
changes to a facility's design or operations that are necessary to 
comply with the new MACT emission standards. The revised modification 
process offers streamlined procedures that will help facility owners 
and operators meet two compliance concerns--compliance with their RCRA 
permits and compliance with the new MACT standards.
    EPA anticipates that a substantial number of requests to modify 
facility design or operations will be submitted in a relatively short 
period of time following promulgation of the final MACT standards. 
Although the states could always use their current modification 
process, the revised procedures offer a potentially more viable way for 
states to handle the anticipated volume of requests in a more timely 
manner.
    In most cases, state permitting agencies have been authorized by 
EPA to issue and modify RCRA permits. Authorized states that wish to 
implement the revised procedures may have to modify their state 
procedures, consistent with today's rule, before they may use the 
streamlined procedures to respond to MACT-related modification requests 
from facility owners or operators. Once the final MACT standards are 
promulgated, facility owners and operators have three years to begin 
operating under the lower emissions levels. The Agency believes that 
these three years are better used for processing modification requests, 
and subsequently implementing the necessary changes, than for modifying 
state regulations and going through the authorization process. By 
promulgating the revised procedures on an expedited schedule (i.e., 
before the final MACT standards), EPA hopes to provide ample time for 
states to develop comparable standards and obtain EPA authorization 
before they need to process MACT-related modification requests from 
facility owners or operators. It should be noted that states which 
currently have temporary authorization procedures equivalent to the 
federal 40 CFR 270.42(e) procedures may also use these, in many cases, 
to approve facility changes needed to come into compliance with MACT 
standards. However, these procedures would allow operation under the 
modified conditions only up to 180 days (with a possible extension of 
up to 180 additional days), followed by a full class 2 or 3 permit 
modification. Therefore, EPA encourages states to adopt procedures 
comparable to those in today's rule.
    Combining the streamlined modification procedures with the 
expedited schedule for promulgating them sets up a procedural framework 
to promote compliance with the MACT standards. But even this 
combination does not guarantee that other factors will not ultimately 
interfere with a facility's efforts to comply. As part of a common 
sense approach to implementing, and enforcing, its programs, EPA would 
like to make sure that the consequences of non-compliance are 
commensurate with the causes. With regard to the three-year deadline 
for operating under the lower emissions levels required by MACT, EPA is 
further examining potential consequences of non-compliance, 
particularly if the causes are beyond the facility's control (e.g., a 
permitting agency's administrative procedures or workload cause delays, 
necessary equipment is back ordered, or testing contractors are 
unavailable). For example, the Agency is looking into the possibility 
of using standard

[[Page 33802]]

enforcement procedures under the Clean Air Act (CAA), rather than 
requiring more stringent consequences through regulations (e.g., 
requiring a facility to stop burning hazardous waste until it receives 
a permit or revoking a permit). The potential consequences of non-
compliance are discussed in more detail in the Revised Technical 
Standards for Hazardous Waste Combustion Facilities; Proposed Rule, 
Notice of Data Availability (62 FR 24212, May 2, 1997).
    EPA is not going to pursue any of the three companion 
implementation options discussed in the proposed rule (see 61 FR 17456, 
April 19, 1996). Those options were intended to address possible permit 
implementation conflicts which may have occurred if a State did not 
become authorized to carry out the provisions of the proposed MACT rule 
in time to handle necessary modifications. By promulgating the revised 
modification procedures prior to the remainder of the proposed rule, 
EPA anticipates that States will have adequate time to receive 
authorization to process the requisite modifications. Thus, the need to 
put in place a separate implementation mechanism no longer exists. 
Today's rule does not address any of the longer-term implementation 
options discussed in the proposed rule (e.g., placing the MACT 
standards in a Clean Air Act permit, in a RCRA permit, or in both 
permits). Implementation will be discussed in the final rule 
promulgating revised standards for hazardous waste combustors.

B. Overview

1. Background on RCRA Permit Modification Procedures
    Section 3004 of RCRA requires owners and operators of facilities 
that treat, store, or dispose of hazardous waste to comply with 
standards that are ``necessary to protect human health and the 
environment.'' EPA, or EPA-authorized States, implement these standards 
by issuing RCRA permits to these types of facilities. Once a permit has 
been issued to a facility, the facility must operate in compliance with 
the conditions in the permit; any subsequent changes to the facility's 
design or operations are incorporated into the permit in accordance 
with the Agency's, or authorized State's, permit modification 
procedures.
    EPA's regulations concerning permit modifications requested by 
facility owners or operators are set forth in 40 CFR 270.42. The 
regulations break the types of potential modifications into three 
classes (see Sec. 270.42 Appendix I). Class 1 modifications cover 
administrative or routine changes, including replacing equipment with 
functionally equivalent equipment. They are relatively straightforward 
and in most cases do not require Agency approval before being made. 
Class 2 modifications cover somewhat more complex changes, for example, 
to address common variations in the types and quantities of wastes 
managed, where the changes can be implemented without substantially 
altering the design specifications or management practices prescribed 
by the permit. Class 3 modifications involve substantial changes to 
facility operating conditions or waste management practices and are 
subject to principally the same review and public participation 
procedures as permit applications. Each class of modification request 
requires varying degrees of facility preparation, Agency review time, 
and public involvement. The various degrees have a significant impact 
on the amount of time needed to put the change into effect. For 
example, Class 1 modifications typically can be implemented in a very 
short time, where Class 2 and 3 modifications may take several years.
    Prior to promulgating the Class 1, 2, 3 procedures, modifications 
were divided into two categories, major and minor. States authorized to 
implement the RCRA program were not required to adopt the Class 1, 2, 3 
procedures, since they were considered less stringent than the 
predecessor major/minor system. As a result, both systems are in use 
today. EPA would like to point out that, in converting to the new 
system, many of the modifications that had been designated as minor 
were placed into Class 1, or Class 1 with prior Agency approval. EPA 
presumes that modifications listed in Appendix I as Class 1, or Class 1 
requiring prior Agency approval, are most likely processed as minor 
modifications in states that continue to use that system.
2. Shortcomings of the Current Procedures
    EPA did not consider, in developing the modification classes and 
procedures, that changes to RCRA permit conditions might be necessary 
in order to comply with other environmental statutes. Similarly, the 
Agency did not anticipate changes to comply with upgrades to existing 
regulations (although the process was developed to include changes for 
new regulations). EPA developed the Class 1 through 3 modification 
scheme within the context of the RCRA program to provide both 
incentives to facility owners and operators to pursue facility changes 
that lead to improved management of hazardous wastes, and greater 
flexibility for timely processing of change requests, e.g., by 
tailoring the level of review to the type of change (see Permit 
Modifications for Hazardous Waste Management Facilities; Final Rule, 53 
FR 37912, September 28, 1988). EPA is now concerned, however, that the 
RCRA permit modification procedures, as a practical matter, will not 
allow enough time to meet statutory deadlines for implementing new 
standards under the Clean Air Act.
3. How Today's Rule Impacts the Procedures
    EPA proposed several options for amending RCRA permit modification 
procedures to accommodate the Clean Air Act requirement that facilities 
comply with MACT standards within three years of publishing a final 
rule in the Federal Register (61 FR 17454, April 19, 1996). In all five 
of the proposed options, the Agency tried to balance the need to 
develop a process that would enable facilities to comply with more 
stringent emissions standards within the allotted time with the need to 
provide adequate opportunities for public participation in the process. 
The level of regulatory oversight that would take place under each 
option was also discussed. The Agency requested comments on the 
proposed options, as well as on any combinations thereof, or any other 
feasible approaches.
    EPA has decided to finalize, with some adjustments, its originally 
proposed recommended approach, i.e., to establish a new section in the 
permit modification table for changes to existing permit conditions 
necessary to come into compliance with MACT standards. This approach 
best meets the Agency's objective of implementing a process that 
enables facilities to meet the three year statutory deadline. This 
approach also allows for public notification of the modification 
request.
    Today's final rule establishes a new section in Appendix I of 40 
CFR 270.42 for technology changes that are necessary for a facility to 
achieve compliance with the MACT standards. The new section is 
designated as Class 1 modifications, with prior Agency approval. As 
such, the Agency will have an opportunity to review the proposed 
physical and operational changes to the facility before they are 
implemented, in order to ensure that these changes do not have other 
undesirable consequences. Agency experience suggests that steps 
intended to reduce emissions may not, in all cases, lead to overall 
enhanced environmental protection. For example, decreasing combustion 
temperature as a way to

[[Page 33803]]

decrease air pollution control device (ACPD) inlet temperature, in 
order to reduce dioxin emissions could increase organic emissions by 
allowing poor combustion.
    The new section in 40 CFR 270.42 Appendix I, specifically, section 
L(9) ``Technology Changes Needed to Meet MACT Standards Under 40 CFR 
Part 63 Subpart EEE--National Emissions Standards for Hazardous Air 
Pollutants From Hazardous Waste Combustors,'' is limited to technology 
changes to existing permits to allow a facility to come into compliance 
with the new Part 63 standards. General retrofitting changes outside 
the framework of meeting MACT-related technology, or subsequent changes 
for maintaining compliance with Part 63 standards, are outside the 
scope of this category. The permitting agency director will determine 
whether the types of modifications requested qualify as ``technology 
changes needed to meet standards under 40 CFR part 63 Subpart EEE.'' 
The Agency anticipates that the distinction between technology changes 
necessary to allow a facility to operate under the lower emissions 
levels and general retrofitting changes will be clear. EPA expects that 
the same types of changes to comply with the MACT standards will be 
needed at most facilities, thus the requests submitted under section 
L(9) should be fairly uniform.
    EPA, in response to public comments, is also incorporating a time 
default into the modification procedures for changes requested under 
section L(9) only. Section 270.42(a) is being amended to add a 
paragraph specifying that the permitting agency Director has 90 days, 
with a possible one-time 30 day extension, to make a decision about 
modifications requested under section L(9). If the Director does not 
make a decision, then the permittee may consider the request approved. 
EPA is also requiring owners or operators to comply with the 
requirements for the Notification of Intent to Comply (NIC) (see 40 CFR 
63.1211) in order to benefit from the streamlined modification process.

C. Discussion of RCRA Permit Modifications Procedures for Facilities 
Coming Into Compliance With MACT requirements

1. Summary of Proposed Options
    EPA is in the process of developing final MACT standards imposing 
more stringent (lower) emissions levels for hazardous waste combustion 
activities; facilities will have to operate in compliance with these 
standards within three years of their promulgation, with a possible one 
year extension (for a total of four years). The Agency expects that a 
large number of facilities will need to modify their design or 
operations to meet the more stringent emissions standards required 
under MACT. For example, incinerators that currently operate above the 
MACT emissions standard for particulate matter (PM) might have to add 
electrostatic precipitators (ESP) or baghouses to reduce emissions; 
similarly, incinerators that need to reduce dioxin emissions to meet 
the MACT standards may need to implement additional controls on 
temperature or employ carbon injection; or light weight aggregate kilns 
(LWAKs) with high acid gas emissions may need to add a control 
technology, such as wet scrubbers.
    For these facilities to remain in compliance with their RCRA 
permits, they will need to modify their permits to allow any design or 
operational changes needed to achieve compliance with the MACT 
standards. The Agency proposed five options for handling these ``MACT 
related'' RCRA permit modifications. The options, which varied with 
regard to the level of procedural requirements and administrative 
review required, were: (1) Provide facilities with ``self-
implementing'' authority to proceed with necessary changes without 
Agency review; (2) categorize the changes needed to comply with MACT 
standards as Class 1 modifications that do not require prior Agency 
approval; (3) categorize the changes as Class 1 modifications that do 
require prior Agency approval (this option was discussed in the 
proposal as the recommended option); (4) categorize the changes as 
Class 1 modifications requiring prior Agency approval, but give the 
Director authority to elevate change requests to Class 2; and, (5) 
retain the current scheme for modifying the RCRA permits. Under the 
current scheme, the MACT-related changes would likely be categorized as 
Class 2 or 3 modifications.
2. Summary of Public Comments
    In general, there were three recurring themes in the comments 
received by the Agency in this area. First, commenters expressed 
concern about being able to meet the three year time frame. They cited, 
as reasons, (1) that three years are insufficient to allow state 
agencies to obtain authorization for the rule and to subsequently 
process the anticipated volume of modification requests, and (2) that 
the modification procedures themselves are too long. Secondly, 
commenters emphasized the need to allow sufficient public 
participation, but with the caveat that the modification process not be 
unduly delayed by public participation activities (this being yet 
another factor in potentially being unable to meet the three year 
deadline). Finally, commenters were concerned that the consequences of 
non-compliance are too severe (e.g., having to stop burning), given 
that delays in achieving compliance could be the result of permitting 
agencies being unable to process modification requests in a timely 
manner (and not a consequence of the facility's activities).
    The Agency received a wide variety of comments on the options 
themselves. Each of the proposed options received support, with most 
commenters favoring the first three options for their more streamlined 
procedures. A few commenters suggested that incorporating a time limit 
into the modification review process would aid in coming into 
compliance with the MACT standards. Many commenters expressed the 
importance of developing a streamlined permit modification process that 
would allow facilities to make the necessary technology upgrades in a 
timely fashion, while retaining enough regulatory oversight to ensure 
that the changes have a proper degree of ``buy-in'' by the permitting 
agency. Some commenters expressed concern that options 4 and 5 would 
delay implementation of MACT-related changes beyond the three year 
deadline mandated by Congress. A few commenters preferred options 4 and 
5 since they incorporate a greater degree of public participation into 
the review process. Additionally, some commenters thought that options 
4 and 5 might be more readily accepted by and implemented in authorized 
States that chose to remain with the original permit modification 
structure composed of minor and major changes. [Note: States were not 
required to adopt the Class 1, 2, 3 structure since it was determined 
to be less stringent than the major/minor structure.]
    Finally, some commenters requested that the Agency consider as a 
possible alternative that a Class 3 modification could be reclassified 
as Class 2 for the purposes of MACT compliance.
3. Response to Comments and Discussion of Final Provisions
    EPA agrees with commenters that streamlined modification procedures 
for MACT-related changes are essential. The three year time frame for 
complying with the MACT standards has been set by Congress; it is the 
Agency's responsibility to ensure that facilities are able to comply 
with those

[[Page 33804]]

requirements without violating other areas of their environmental 
responsibilities, like their RCRA permit. As discussed earlier, EPA 
anticipates that many facilities will need to make some changes to meet 
the lower emissions levels imposed by MACT, and that these changes will 
have to be incorporated into their RCRA permits. EPA does not want the 
RCRA permit modification procedures to hinder a facility's ability to 
comply with MACT.
    As discussed in the Section B.1. Background on RCRA Permit 
Modifications Procedures, Class 1 modifications may be done quickly, 
whereas Class 2 or 3 modifications may take several years to process. 
The combination of the time normally required to completely process 
Class 2 or 3 modification requests, and the anticipated volume of 
requests from facilities striving to meet MACT emission levels, would 
make meeting the three year deadline unrealistic. Permitting agencies 
would not have the resources to meet the workload demand. This leads 
EPA to concur with commenters on the need to embrace a more streamlined 
approach than would be provided by options 4 or 5. Similarly, EPA chose 
not to pursue the option suggested by some commenters to reclassify 
changes from Class 3 to Class 2. A streamlined approach is consistent 
with general efforts within the Agency (e.g., through the Permits 
Improvement Team) to improve the permitting process by focusing on 
performance standards rather than on a detailed review of the 
technology requirements.
    The Agency acknowledges the validity of the concerns expressed by 
some commenters that the options offering the more streamlined 
procedures offer fewer opportunities for public participation. It is 
important to strike an appropriate balance between streamlined 
modification procedures that promote coming into compliance sooner with 
more stringent standards and public participation. The Agency has 
repeatedly emphasized its commitment to a common-sense approach to 
permitting--one that minimizes regulatory burden and provides 
flexibility to tailor activities to specific situations. In carrying 
this commitment to today's rule, EPA wants to ensure three things; (1) 
that the permit modification process is not an obstacle for complying 
with the MACT standards; (2) that facilities are not forced to operate 
outside of their permitted conditions in order to comply with MACT 
standards; and (3) that public participation is not streamlined out of 
the process.
    EPA believes that Option 3, with some modifications, provides the 
best framework for meeting these objectives and responding to public 
comments. This option was supported by many commenters, particularly 
because the streamlined procedures will facilitate meeting the three 
year deadline for complying with the more stringent emission levels. 
There has been a precedent set in the past for streamlining the 
modifications process. To ensure that facilities implemented timely 
changes necessary to meet land disposal restriction (LDR) levels for 
newly listed or newly identified hazardous waste, the Agency designated 
the modifications needed to meet the LDR levels for newly identified 
wastes as Class 1 modifications (see 54 FR 9596, March 7, 1989).
    The prior agency approval under Option 3 provides the regulatory 
oversight requested by commenters, since the permitting agency will 
have the opportunity to review the proposed physical and operational 
changes to the facility before they are implemented. EPA concurs with 
commenters who encouraged retaining some amount of regulatory oversight 
in the modifications. As discussed previously, sometimes changes to one 
part of a facility's design or operations that have a positive effect, 
like reducing one type of emissions, may cause detrimental effects to 
other parts of the facility's operations. It is important for 
permitting agencies to have the opportunity to review proposed changes 
to make sure they do not lead to other undesirable impacts.
    Some commenters expressed concern, however, that a facility's 
ability to begin implementing the change(s) might be delayed by 
requiring regulatory oversight (i.e., if the Agency failed to respond 
to the request in a timely manner). EPA recognizes the validity of this 
concern, given the anticipated volume of requests from facilities 
striving to meet the new emissions standards; therefore, the Agency is 
incorporating a time default for reviewing the requests into the final 
modification process. The time default for review, codified in a new 
paragraph 270.42(a)(4), specifies that if a determination to approve or 
deny the Class 1 permit modification request submitted under item L(9) 
is not made within 90 days (with the possibility of a one-time 
extension for up to 30 days) from the time the request was received by 
the permitting agency, the request is to be considered approved, and 
the facility can proceed with the modification(s). In some situations, 
the Director of the permitting agency may deny a request, for example, 
if the request contained insufficient information upon which to base a 
decision. The permittee could revise its request to address the 
shortfalls and resubmit it to the permitting agency. Such a resubmittal 
would initiate a new 90 day review period.
    EPA anticipates that the incorporation of the time default, coupled 
with the fact that the revised modification procedures are being 
promulgated on an expedited schedule, will alleviate commenters' 
concerns about non-compliance. Although the consequences of non-
compliance are outside the scope of this rule, this approach 
(streamlined modification procedures coupled with expedited 
promulgation) establishes a procedural framework through which there is 
a greater chance that permitting agencies will not cause undue delays 
in facilities' compliance with the MACT standards. Under the new 
streamlined process, permitting agencies should be able to process the 
modification requests with sufficient time remaining for facility 
owners or operators to make the changes within the three year time 
frame.
    Some commenters expressed concern that option 3 does not provide 
the same levels of public participation that would be available through 
options 4 and 5. Those options would require facilities to request 
Class 2 or 3 permit modifications for MACT-related changes. The 
procedures for Class 2 and 3 modifications include public meetings, 
notices, and comment periods. Class 1 modifications, even those 
requiring prior Agency approval, only require that the facility owner 
or operator send a notice of the change to the facility mailing list 
within 90 days of approval being given.
    EPA is committed to enhancing public participation in all of its 
processes, and has established additional requirements in today's rule 
to provide opportunities, beyond the public notice requirements 
associated with Class 1 (with prior approval) modifications, to involve 
the public in permitting changes required to comply with MACT 
standards. These opportunities are being incorporated into requirements 
for a Notification of Intent to Comply (NIC), discussed in more detail 
in Section V. One goal of the NIC development process is to promote 
interaction between the facility and its host community, for example, 
by requiring the facility to host an informal meeting with the 
community before submitting the final NIC to the permitting agency. 
Since the NIC must describe anticipated activities for coming into 
compliance with the MACT

[[Page 33805]]

standards, the technology changes that trigger the RCRA permit 
modification would be a natural component of the NIC and the public 
meeting. EPA expects that the meeting will be similar in style and 
intent to the pre-application meetings required under 40 CFR 124.31.
    The final rule requires facility owners or operators to complete 
the NIC in order to benefit from the streamlined modification 
procedures. This requirement means that owners or operators will need 
to submit a final NIC either before, or at the same time as, they 
submit the modification request. If they do not comply with the NIC 
requirements, they will need to follow the otherwise applicable 
modification scheme, i.e., the permitting agency Director will likely 
reclassify their request to Class 2 or 3. EPA is not requiring 
documentation in the modification request that the permittee completed 
the NIC. Since both items are submitted to the permitting agency, EPA 
assumes the permitting agency will be aware of whether the permittee 
has indeed complied with the NIC requirements.
    EPA expects that information about anticipated changes to facility 
design or operations to comply with the more stringent standards will 
be included in the NIC, and thus will be available for public review 
and discussion during the NIC public meeting. Through this meeting, 
communities have an early vehicle for learning, among other things, 
about potential changes to facility design and operations necessary to 
meet the lower emission levels. Of course, in accordance with the 
current requirements concerning Class 1 modifications, the permittee 
must also inform the public about the modifications within 90 days of 
their approval by the permitting agency (see 40 CFR 270.42(a)(1)(ii)).
    EPA would like to point out that although similar information about 
facility design or operation changes may be included in both the NIC 
and the modification request, the Agency does not believe it is 
redundant to have both documents. The two have different purposes, and 
the formats and levels of detail may differ accordingly. The 
modification request would most likely differ from the NIC, since the 
request has to tie directly to the permit itself. For example, the NIC 
may talk in general terms about adding baghouses to reduce emissions, 
but the modification request would have to specifically cite the 
section(s) of the permit being modified to include information on the 
baghouses.
    Today's requirements would not, of course, preclude additional 
public participation activities beyond the regulations, where 
appropriate on a facility-specific basis. At certain RCRA facilities, 
in fact, permitting agencies and facilities have implemented a variety 
of public involvement activities, such as additional fact sheets or 
information availability sessions, that have helped affected 
communities to understand and participate in permit decision-making. 
EPA has published a practical how-to guidance manual designed to help 
all stakeholders in the permitting process (permit writers, industry, 
and communities) determine what types of public participation 
activities might be helpful. The RCRA Public Participation Manual 
(EPA530-R-96-007, September 1996) also offers tips on how to conduct a 
wide variety of activities. Supplemental public participation 
activities on a site-specific level, geared for a particular facility's 
operations and tailored to meet the host community needs, could be used 
to augment community understanding of the changes taking place to 
comply with MACT standards. In closing, EPA would like to reiterate 
that facilities are making changes to meet more stringent standards. 
Requiring facilities to comply with lower emissions levels in a 
relatively short time frame does offer significant benefits to public 
health and the environment that the Agency believes communities will 
generally welcome.
    In response to the comments that options 4 and 5 might be more 
compatible with permit modification procedures in authorized states, 
EPA is aware that States have to evaluate new regulations in terms of 
their specific structures. Promulgating the revised modification 
procedures in today's rule, however, will provide ample time for states 
to obtain authorization before they actually begin processing 
modification requests following promulgation of the final MACT 
standards. EPA encourages states to expedite their requests for 
authorization to implement the provisions in today's rule. EPA expects 
that States using the Class 1, 2, 3 modification system would 
incorporate the provisions by reference, and that States using the 
major/minor system would incorporate the provisions as minor 
modifications. As discussed in Section B.1. Background on RCRA Permit 
Modification Procedures, many changes that were formerly classified as 
minor were converted to Class 1, or Class 1 requiring prior Agency 
approval. Thus, EPA believes it is consistent for states using the 
major/minor system to incorporate this category of changes into the 
minor classification.
    If the states cannot adopt an approach that ensures expeditious 
implementation of the MACT standards, however, then the Agency expects 
that changes necessary to comply with MACT standards may well be 
accomplished under a compliance order, with a specified schedule to 
come into compliance.

F. RCRA Changes in Interim Status Procedures

    RCRA facilities operating under interim status are allowed to 
implement certain facility changes in accordance with requirements and 
procedures set forth in 40 CFR 270.72(a). (Note: EPA anticipates that 
the types of changes a facility may need to make to comply with the 
MACT standards would be allowable under this section). Section 
270.72(b) imposes a limit, however, by stating that the changes cannot 
amount to ``reconstruction'' (defined in the regulation as ``when the 
capital investment in the changes to the facility exceeds 50 percent of 
the capital cost of a comparable entirely new hazardous waste 
management facility''). As discussed in the preamble to the proposed 
rule, the Agency does not anticipate that the costs to perform facility 
changes necessary to come into compliance with the MACT standards would 
exceed the 50 percent reconstruction limit. However, since the limit is 
cumulative for all changes at the interim status facility, there could 
conceivably be situations where the cost for MACT-related changes might 
push a facility over the limit.
    To ensure that the reconstruction clause does not present an 
obstacle for interim status facilities trying to implement changes to 
meet the new emissions levels, the Agency proposed adding a new 
paragraph to Sec. 270.72(b) exempting changes necessary to comply with 
the MACT standards from the reconstruction limit. The Agency did not 
receive any adverse comments, and so is finalizing this provision in 
today's rule.
    It is important to note that facilities operating under interim 
status will, like permitted facilities, be required to comply with the 
NIC requirements. Thus, the public will have the opportunity to review 
planned changes as part of the NIC and to participate in the public 
meeting. EPA anticipates that owners or operators of interim status 
facilities will hold the meeting and complete the NIC before proceeding 
with any changes to facility design or operations necessary to comply 
with the MACT standards.

[[Page 33806]]

V. Notification of Intent To Comply and Progress Report

A. Background

    In the proposed rule (61 FR 17358), the Agency requested comments 
on strategies to identify and encourage or require affected sources to 
comply with the final emission standards at the earliest possible date. 
The Agency also asked for views on how best to determine when a source 
can realistically conclude whether it will comply with the final 
standards. A number of commenters suggested that the Agency require a 
submission from affected sources that would identify whether the 
facility intends to comply with the final standards, and outline the 
procedures the facility would employ to achieve compliance. This 
primary purpose of this submission (referred to by the commenters as a 
``Notification of Intent to Comply'') would be to identify the sources 
that will choose as a compliance strategy to stop burning hazardous 
waste, so that those sources could be required to terminate waste 
burning activities as soon as possible following the effective date of 
the final Hazardous Waste Combustor (HWC) rule.
    Other commenters suggested that EPA require submission of a plan 
that outlines the procedures a facility will follow to comply with the 
final standards. However, the purpose of this submission would be to 
begin an early process of communication between the public and the 
facility through the public disclosure of the facility's compliance 
strategy to meet the final HWC standards.
    The Agency reviewed these comments and found the suggestions for an 
early notification persuasive. In the Notice of Data Availability 
(NODA) published in the Federal Register on May 2, 1997 (Revised 
Technical Standards for Hazardous Waste Combustion Facilities; Proposed 
Rule, 62 FR 24241), EPA described its strategy to promote early 
compliance planning through a Public and Regulatory Notice of Intent to 
Comply (PRNIC). The discussion laid out a process by which an affected 
source would be required to develop a draft document including 
anticipated plans for coming into compliance with the new emissions 
standards, hold an informal meeting with the public to discuss the 
draft planning document, and to subsequently provide a final planning 
document to the permitting agency. The information to be covered in the 
document and during the meeting would include such topics as a 
description of waste minimization and pollution control technique(s) 
being considered and their effectiveness, a description of emission 
monitoring techniques being considered, and an outline of key dates for 
activities the source would need to accomplish in order to operate 
within the MACT standards.
    The intended purpose of the PRNIC, as described in the NODA, was 
twofold. First, the PRNIC was intended to provide for public 
involvement in a source's compliance planning process. EPA envisioned 
that this involvement would also serve to offset public participation 
opportunities that may be ``lost'' if a source is able to take 
advantage of the new streamlined RCRA modification procedures for HWCs, 
since modifications required under RCRA would naturally be part of the 
source's overall plan for achieving compliance with the standards. 
Secondly, the PRNIC would provide an expeditious notice to the 
permitting Agency as to whether sources would be able to come into 
compliance with the new standards. Having information about plans for 
compliance might prove helpful to permitting agencies in planning the 
most efficient use of their resources during the three year compliance 
period.

B. Summary of Final Provisions

    EPA is moving forward with an early compliance planning 
requirement. However, the final rule contains certain changes from the 
PRNIC discussed in the NODA; the Agency has revised the requirements 
based on public comments received following the NODA's publication and 
based as well on the original proposal. EPA is finalizing new 
requirements in Sec. 63.1211 for facility owners and operators to 
develop and submit a Notification of Intent to Comply (NIC), and in 
Sec. 63.1212 to develop and submit a Progress Report. Section 63.9(h) 
``notification of compliance status'' requires facilities to submit 
such notification when a source becomes subject to a relevant CAA 
standard. As such, today's requirement is an enhancement of this 
requirement to give notification of intent to comply prior to the three 
year compliance date of the emissions standards. The source can use the 
NIC to notify either the source's intent to come into compliance with 
the new standards, or the source's intent not to come into compliance 
with the new standards. The NIC must be submitted to the permitting 
agency within a year of the final standards being promulgated, and the 
Progress Report within two years.
    As proposed, the primary purpose of the NIC is to serve as a 
planning and outreach tool for achieving compliance with the MACT 
standards. The contents of the NIC, set forth in Sec. 63.1211(a)(1), 
are similar to those presented in the NODA discussion on the PRNIC with 
modifications based on comments received on the NODA. Also as discussed 
in the NODA, sources will have to make a draft of the document 
available to the public as part of the process of developing the NIC. 
They will also have to provide notice of and conduct an informal 
meeting with the public to discuss anticipated plans for achieving 
compliance with the standards. The purpose of the Progress Report is to 
help permitting agencies determine if sources are making reasonable 
headway in their efforts to come into compliance. In deciding on this 
approach to compliance planning--the NIC followed by the Progress 
Report--EPA determined (1) that one year is sufficient time for a 
source to establish its general ``plan of attack'' for achieving 
compliance, and (2) that during the second year a source should be well 
on its way to making necessary modifications, if it plans to meet the 
MACT limits, or to making alternate arrangements for handling the 
hazardous waste, if it does not intend to meet the MACT limits.
    The final rule does not contain provisions for updates to the final 
NIC following a significant change in the facility's implementation 
strategy, as considered in the NODA. Since the Agency decided to 
implement a requirement for a Progress Report at the end of the second 
year, there is no purpose served by having a revised NIC. EPA 
anticipates that any significant changes to a facility's compliance 
plan would necessarily be reflected in the Progress Report.

C. Discussion of Public Comments and Final NIC Provisions

1. General.
    The majority of commenters supported the concept of early 
compliance planning, particularly with regard to the public involvement 
component. Those advocating early involvement indicated that the PRNIC 
concept appears reasonable, not overly burdensome, and represents a 
positive step to ensure public involvement in the MACT process. Many 
lauded the Agency's effort to bring the spirit of the recently 
promulgated RCRA enhanced public participation requirements (see 69 FR 
63417 (Dec. 11, 1995)) to the MACT arena and the strong RCRA goal of 
public participation for decisions involving permitted hazardous waste 
management facilities (RCRA section 7004(b)). Commenters opposing the

[[Page 33807]]

additional public involvement required as part of the PRNIC development 
process stated that the activities (e.g., the public meeting) would 
create more controversy and impose additional burdens on both sources 
and permitting agencies at a time when they will be faced with a 
substantial workload. Some commenters expressed concern that the 
additional activities would provide no real benefit, since neither the 
permitting agencies nor the public have authority to disapprove of a 
source's chosen control options, as long as the source operates within 
the MACT limits. One commenter noted that the concept of a PRNIC was 
unprecedented for CAA sources; they said a PRNIC was not required under 
the CAA and it was beyond EPA's authority to impose such a requirement.
    The Agency agrees with commenters who recognize the value of early 
public involvement. EPA has repeatedly emphasized its commitment to 
enhancing public participation in all of its programs (see National 
Waste Minimization and Combustion Strategy and Enhanced Public 
Participation Rule). Experience has shown that hazardous waste 
combustors spark a tremendous amount of legitimate public interest; 
many communities have expressed a desire to be involved at all stages 
of combustor operations and permitting activities. Given this 
background, EPA fully expects the promulgation of the final MACT 
standards to receive significant and appropriate public scrutiny. As 
one commenter points out, HWCs are already subject to RCRA regulations, 
and many of them operate under risk-based permits that were subject to 
extensive public review. EPA anticipates that the fact that HWCs will 
now be regulated under CAA is likely to remain of vital interest. 
People will know that new emissions limits are being imposed, and will 
want to know how the source plans on meeting them. The NIC provides 
this information, and the NIC meeting opens the door for the public to 
communicate directly with the owners or operators.
    EPA does not share the concern expressed by commenters that the 
public involvement activities impose a substantial burden with no 
commensurate benefit. The effort associated with drafting a NIC and 
holding the NIC meeting is not overly burdensome. Facilities will most 
likely need to compile the information for their own uses, in order to 
effectively decide which compliance option(s) they will pursue. Making 
the information available to the public and discussing it during an 
informal meeting could provide benefits in many areas, even if the 
permitting agency and the public do not have the authority to approve 
or disapprove of the compliance method(s) ultimately selected. For 
example, it could save time and money at the end of the permitting 
process. Talking to people early on about what can and cannot be 
accomplished in a given situation, asking their input on decisions that 
need to be made, and explaining the rationale behind decisions that 
have already been made, can lead to fewer challenges on draft permit 
conditions. EPA also believes the public could provide useful 
information to owners or operators that might contribute to a quality 
plan for achieving compliance with the MACT standards. The level of 
knowledge on environmental matters exhibited by the public (at public 
meetings, in correspondence, for example) appears to be increasing. As 
the public's knowledge base grows, so might the quality of input they 
can provide into technical decisions.
    EPA disagrees also that there is no precedent for the concepts 
inherent in the NIC, and that EPA does not have authority to impose 
such a requirement. Since EPA has chosen to provide the maximum amount 
of time for compliance allowed under the CAA (3 years), requiring 
sources to identify their compliance plans is particularly appropriate. 
As stated before, EPA is committed to enhancing public involvement in 
environmental matters. Providing the compliance plans to the public is 
one of many ways the Agency is implementing this policy. Precedent for 
early public involvement has been set both in the Agency's Hazardous 
Waste Minimization and Combustion Strategy and in the enhanced RCRA 
public participation requirements promulgated in December, 1995 (see 69 
FR 63417, December 11, 1995).
2. Purpose of the NIC
    As discussed in the background part of this section, the original 
purpose of the PRNIC was to promote public involvement and to assist in 
compliance planning. Commenters supported these goals, which continue 
to be the compelling motives for adopting the NIC requirement. The 
primary purpose of the NIC is thus to serve as a planning tool for 
achieving compliance with the MACT standards. In other words, the NIC 
is designed to ensure that facility owners or operators get an early 
start on evaluating their options for meeting the new standards, and to 
serve as a vehicle for public involvement. EPA's intent is to 
facilitate dialogue regarding a facility's compliance strategy. The NIC 
also serves the purpose of having sources identify to the regulators 
and the public their intent to comply or not to comply with the 
applicable emission control requirements of this Subpart. The NIC and 
public meeting will foster mutual understanding of the compliance 
options, including consideration of both technical (e.g., equipment 
changes to upgrade air pollution control devices) and operational (e.g, 
process changes to minimize waste generation) alternatives. Ideally, it 
will also result in the selection of a method that will meet the goals 
of both the facility and the community.
    The NIC will not serve as a basis for requiring facilities to cease 
burning hazardous waste if they intend to comply with the emission 
standards of this Subpart. If, however, a facility indicates in its NIC 
that it does not intend to meet the emission standards of this Subpart, 
then the source must stop burning hazardous waste within two years of 
the standards being promulgated. This requirement is discussed in more 
detail in Section D. Discussion of Public Comments and Progress Report. 
EPA would like to clarify that its intent has never been to shut a 
source down completely. The source might be required to cease burning 
hazardous waste; however, it would not be precluded from burning non-
hazardous waste or other alternative fuels. However, those sources who 
indicate in the NIC their intent not to comply with the applicable 
emission control requirements of this Subpart will be required to stop 
burning hazardous waste within two years of the effective date of the 
emission control requirements.
    Although the NIC will not be used to cause sources to stop burning, 
there are enforceable requirements associated with it. Sources must 
provide a draft NIC for public review, advertise and conduct an 
informal meeting, and submit a final NIC to the permitting agency. If 
these activities do not take place within the time frames specified in 
the regulations, sources will be in violation of the requirements, and 
subject to appropriate enforcement action. The key milestone dates 
contained in the schedule submitted with the NIC are not enforceable, 
however; the requirement to submit a schedule containing key dates is 
the enforceable requirement.
    Finally, one commenter suggested that the NIC be used to identify 
RCRA permit conditions that would ``disappear'' when MACT limits are 
set. EPA is not using the NIC for this purpose. EPA will address 
permitting

[[Page 33808]]

schemes, and the process for transitioning from a RCRA permit to a 
Title V permit, in the final rule promulgating MACT standards for HWCs. 
The NIC is not the appropriate vehicle for accomplishing this task.
3. Timing
    In the PRNIC discussion in the May 2, 1997 NODA, EPA said that the 
final PRNIC would be due to the permitting agency within 270 days 
following the effective date of the final MACT standards. A draft of 
the document would have to be available within 210 days, and at least 
30 days before the informal public meeting was to be held.
    Although several of commenters considered the time frame too long, 
many others said it would be difficult to prepare a quality compliance 
planning document so quickly. They also expressed concern about meeting 
with the public at such an early stage. The commenters' position was 
that any draft plan put together within 7 months after the standards 
are finalized would be tentative only. They were reluctant to go to the 
public with a tentative plan that was likely to change significantly 
before it was final.
    EPA agrees with commenters that the time frames are tight. In order 
to be operating within the new limits by the end of the compliance 
period, it is imperative to start the planning process immediately. In 
recognition of commenters' concerns about preparing the draft plan, EPA 
is extending the time frames in the final rule. In accordance with the 
provisions in Sec. 63.1211, the final NIC will be due to the permitting 
agency within one year of promulgation of the final standards. The NIC 
meeting must be held no later than 10 months following promulgation, 
and the draft NIC made available at least 30 days before the meeting is 
held. So, facilities basically have 2 extra months to prepare a draft 
document, and 3 extra months to submit a final NIC to the permitting 
agency. The revised time frames should provide sufficient time not only 
to prepare the initial draft, but also to revise it, as appropriate, to 
reflect discussions from the public meeting and final engineering 
decisions about the source's operation.
    The Agency understands the concerns expressed by commenters about 
sharing draft material with the public. However, EPA does not expect, 
nor should facilities or the public expect, the draft NIC to describe 
all of the technical aspects of the compliance options in extensive 
detail. Similarly, discussion of the options at the public meeting 
should not focus on minute details. The purpose of sharing the draft 
and discussing the options at the public meeting is to capture major 
ideas in a planning document, to facilitate dialogue regarding a 
facility's compliance strategy, and to discuss possible courses of 
action. The information in the draft NIC should be sufficient to 
stimulate this level of discussion. The more in-depth technical 
discussion can be incorporated into the final document. Since all 
sources are required to have the final NIC submitted to the permitting 
agency one year after the final standards are promulgated, anyone may 
request a copy of it from the permitting agency at that time.
4. NIC Meeting
    EPA is requiring facilities to provide notice of and host an 
informal meeting with the community to discuss anticipated plans for 
complying with the MACT emissions standards (see Sec. 63.1211(b)). The 
meeting must take place within 10 months of the final standards being 
promulgated. At least 30 days before the meeting takes place, the 
facility must provide public notice of the meeting, and must make the 
draft NIC available for public review.
    Commenters were generally supportive of EPA's intent to require a 
public meeting to discuss compliance planning. Some commenters had 
specific concerns, ranging from the timing issues addressed above, to 
the methods for providing notice, and the potential for being required 
to conduct several redundant meetings to meet various purposes.
    EPA had listed three mechanisms in the NODA for providing notice of 
the public meeting: a display ad in a newspaper, a sign at the 
facility, and a broadcast announcement. These were the same mechanisms 
used to provide notice of the RCRA pre-application meeting, and EPA 
believes they are appropriate for the NIC meeting as well. At least one 
commenter thought the mechanisms were too broad, and that a notice via 
newspaper and a sign at the facility would be enough. Another commenter 
suggested that a notice be sent to the facility mailing list as well. 
EPA decided not to limit the notice methods for the NIC meeting, but 
did add the facility mailing list to the methods in Sec. 63.1211(b)(3). 
Each of these notices must include the date, time and location of the 
meeting, a brief description of the purpose, a brief description of the 
facility, a statement asking people who need special access to notify 
the facility in advance, the name of a contact for the NIC, and a 
statement describing how the draft NIC can be obtained.
    Commenters who were concerned about redundant public meetings 
described a few possible scenarios. For example, in states that do not 
adopt the streamlined RCRA modification procedures a facility might be 
required to conduct a public meeting as part of a Class 2 or 3 RCRA 
modification, as well as the NIC meeting. Federal facilities might have 
public meeting requirements under the National Environmental Policy Act 
(NEPA). Other facilities might be facing RCRA pre-application meetings, 
either for initial permits or those up for renewal. Or, some facilities 
might have routine meetings scheduled with communities as part of 
Responsible Care or Good Neighbor agreements.
    It is not EPA's intent in imposing the NIC meeting requirement to 
create duplicative requirements for public meetings. To do so would 
burden both the facility and the public. Everyone's time is valuable, 
and most people would probably prefer not to go to several meetings if 
one will do. EPA recognizes this, and would like to clarify that 
nothing in today's rule precludes a facility from combining meetings as 
long as the purposes of each are served. EPA sees combining events, 
particularly public involvement activities, as a first step in moving 
towards a multi-media approach to environmental management. Thus, if a 
facility has to complete a class 2 or 3 RCRA modification because it is 
located in a state that has not adopted the RCRA streamlined 
modification process, EPA would expect, and fully encourage, the 
facility to set up one meeting that would serve both the RCRA 
requirements and the CAA NIC requirements. The same is true for 
combining the NIC meeting with a RCRA pre-application meeting, if the 
facility has to host one for either an initial RCRA permit or because 
its permit is up for renewal, or with other types of public meetings 
the facility may have scheduled.
    A few commenters expressed concerns about responding to public 
comments on the draft NIC, either during or following the public 
meeting. They cited time as the driving reason for this concern; they 
suggested their time would be better spent finalizing their plans for 
complying than formally responding to comments. One commenter noted 
that it was unclear in the NODA whether the draft NIC would be 
available prior to the meeting. In response, EPA would like to clarify 
that facilities are not required to formally respond to any comments, 
oral or written. However, it is important to keep in mind that the 
public may request a copy of the final NIC, and will

[[Page 33809]]

be reviewing the facility's final plans for coming into compliance. 
Facilities must also submit a summary of the meeting to the permitting 
agency as part of the final NIC, so the permitting agency will be 
apprised of the discussions that took place. EPA believes that this 
provides incentive for the facility to address any significant issues 
raised by the public in the NIC meeting.
    EPA expects that the exchange between the facility and the 
community that takes place during the meeting will be much like it is 
for RCRA pre-application meetings. That is, the Agency intends for the 
meeting to provide an open, flexible and informal occasion for the 
facility and the public to discuss various aspects of the facility's 
compliance strategy. The Agency anticipates that the facility and the 
public will share ideas, and build a framework for a solid working 
relationship. The final NIC should reflect, to the extent appropriate, 
ideas or suggestions raised by the public.
    The final provisions in Sec. 63.1211 clarify that the draft NIC 
must be made available to the public at least 30 days before the 
meeting is to take place. This will provide sufficient time for people 
to review the facility's intended strategy. EPA did not prescribe in 
the regulations the manner in which the draft NIC must be provided. 
There is not a ``one-size-fits-all'' approach to getting information 
out to the public. It is more logical to allow the facility to make 
that decision in the context of their particular situations. For 
example, if a facility has an information repository established, the 
draft NIC may be made available there. Or they could make it available 
upon request, since the name, phone number, and address of the NIC 
contact must be in the meeting notice.
5. Relation Between NIC and Other Notification Requirements
    The requirements for the NIC are being promulgated in a new subpart 
applicable to HWCs in the Part 63 CAA regulations. Several commenters 
did not believe it necessary to add these new requirements, arguing 
that existing provisions under both the CAA and RCRA would fulfill the 
purpose of the NIC. They cited the initial notification requirements in 
Sec. 63.9(b), the notifications of compliance status in Sec. 63.9(h), 
Title V permit application requirements in Sec. 70.5(c), and RCRA 
public involvement requirements in Sec. 270.42 (permit modification 
procedures).
    EPA has reviewed the requirements in each of these sections, and is 
not persuaded that the information or the timing of the submittals are 
sufficient to meet the objectives of the NIC. In terms of the 
information, the NIC actually seems to fall between the initial 
notification and the notification of compliance status. The information 
included in the NIC supplements the initial notification requirements 
in 40 CFR Part 63.9(b). The initial notification requirements in 
Sec. 63.9(b) address basic information such as name and address of the 
owner and the source, and a brief description of the source. The focus 
is on the source as it exists, not as it may need to be modified to 
meet new standards. The information in the NIC provides this next 
step--it focuses on what types of changes might have to take place in 
order to achieve the emission limits set by MACT. The types of changes 
may be physical, such as adding or replacing air pollution control 
devices, or they may be operational, for example, achieving lower 
emissions by minimizing the waste generated elsewhere that is 
subsequently used as fuel for the combustor.
    The information required in the NIC will enable the public to 
engage in a meaningful dialogue about the facility's compliance 
strategy, including a discussion of the various options under 
consideration. For example, when a facility identifies and describes 
the type of control technique(s) being considered, it would be ideal 
for the facility to have examined all of the waste minimization and/or 
pollution control options available, including emission control through 
process modification, feed restriction, and pollution control 
equipment, (e.g., Hg control by production process changes, recovery, 
segregation, feedrate restriction, carbon injection, carbon bed, wet 
scrubbing, etc.). The compliance notification requirements in 
Sec. 63.9(h), on the other hand, have a different objective. They focus 
not on options for coming into compliance, but rather on how compliance 
will be demonstrated and monitored.
    EPA chose not to tie the NIC requirements to the Title V permitting 
process. In terms of timing, the Title V process may not always be 
appropriate. It is important to keep in mind that MACT standards set 
forth in Part 63 are self-implementing; activities associated with them 
often take place outside of the permitting process. When MACT standards 
are promulgated, sources must begin adhering to the regulations, 
regardless of where they stand in the Title V permit process. For 
example, sources that already have Title V permits do not have to 
reopen them until renewal, if they are within 3 years of the expiration 
date. This time frame obviously is too long to meet the goals of the 
NIC. In addition, Title V permits contain all applicable requirements 
for all sources at a facility. To use the Title V process just for 
hazardous waste combustors is not practical.
    The Agency has also determined that the information requirements 
for Title V applications do not meet the spirit of the NIC. Like the 
Sec. 63.9(h) compliance notification requirements, the Title V 
information does not address options for achieving compliance, 
particularly with regard to waste minimization and pollution prevention 
techniques being considered. Of course, the NIC is not intended to be 
the primary vehicle for waste minimization or pollution prevention 
planning. EPA expects that these are ongoing areas of exploration for 
facilities. EPA does expect, however, that to the extent these may be 
used to achieve compliance with the MACT standards, facilities will 
investigate them as viable options and will discuss them as such with 
the public.
    Some commenters suggested that facilities having to follow Class 2 
or 3 RCRA permit modification procedures (e.g., because they are 
located in states that do not adopt the RCRA streamlined modification 
procedures) not be required to submit a NIC, since public meetings are 
a required step in those procedures. Another suggested that RCRA 
interim status facilities not be subject to NIC requirements, because 
they are not ``losing'' any public involvement in a modification 
process (since they have no permit to modify). EPA disagrees with these 
suggestions. The NIC is broader in scope than just facility 
modifications that may have to be incorporated into a RCRA permit or 
that may be accomplished by following the procedures in 40 CFR 
270.72(a) for allowable changes under interim status. The NIC is 
intended to lay out for discussion the source's overall plan for 
achieving compliance; this goal is relevant regardless of whether the 
facility is operating under a permit or under interim status. Facility 
changes under RCRA would just be one piece of the overall document, and 
one segment of the public discussion. As stated in the previous 
section, however, there is nothing in today's rule that precludes a 
facility having to follow Class 2 or 3 permit modification procedures 
from combining the public meeting required as part of the modification 
process with the public meeting required as part of the NIC process. 
EPA would expect, and fully encourage, a facility in this situation to 
set up one meeting that would serve both purposes.

[[Page 33810]]

D. Discussion of Public Comments and Progress Report

1. Overview
     The Clean Air Act requires the Administrator to establish a 
compliance date or dates for each category or subcategory of existing 
sources, which shall provide for compliance as expeditiously as 
practicable, but in no event later than 3 years after the effective 
date of such standard, except as provided via a one year extension. CAA 
section 112(i)(3). EPA believes that compliance as expeditiously as 
practicable will have numerous benefits for human health and the 
environment. In particular, for those sources that do not intend to 
ultimately come into compliance with the emission standards of this 
Subpart, expeditious compliance would be achieved by ceasing to burn 
hazardous waste. The Agency anticipates that numerous sources will 
choose not to come into compliance with the requirements of this rule, 
and will cease burning hazardous waste prior to issuance of the rule or 
at some later date, but prior to the compliance date. This section is 
intended to expeditiously limit the burning of hazardous waste by those 
sources who do not intend to come into compliance with the requirements 
of the emission standards of this Subpart, but continue to burn 
hazardous waste after the effective date of the emission standards of 
this Subpart. These sources are, quite simply, able to meet the 
standards earlier than the three years allowed for sources which will 
continue to burn hazardous waste. Thus, for this class of facilities, 
EPA is creating a means of compliance ``as expeditiously as 
practicable'' (CAA section 112(i)(3)).
    In the April 1996 proposal, the Agency invited comment on how 
sources could be identified and strategies that could be used to 
encourage or require these types of sources to comply at the earliest 
possible date. Several commenters suggested methods to require sources 
to identify their intent to comply or not comply with the emission 
standards soon after the promulgation of the final rule for these 
standards. They also suggested that those sources that did not intend 
to come into compliance would be required to stop burning hazardous 
waste.
2. Summary of Progress Report Requirements
    The Agency has adopted in the final rule a variation of the concept 
commenters suggested along the lines of the April 1996 concept EPA 
proposed. The final rule requires those sources subject to the rule to 
signify in their NIC an intent to comply or not to comply with the 
requirements of the emission standards of this Subpart. Sources who 
make the decision not to comply with the rule must stop burning 
hazardous waste on or before two years after the effective date of the 
emission standards of this Subpart. The Agency believes that two years 
is an adequate length of time for these sources to arrange for 
alternate management of their hazardous waste through process changes 
to minimize the waste, use of alternate on-site management, or the use 
of off-site management. Those sources who intend to come into 
compliance with the emission standards will have the full three years 
to come into compliance as intended by the statute.
    The sources who do not intend to comply with this rule must include 
in their NIC a schedule that includes key dates for the steps to be 
taken to stop burning hazardous waste. Key dates include the date for 
submittal of RCRA closure documents. The types of closure documents 
that would need to be submitted will most likely vary depending on the 
source's status. For example, if a source is in interim status, it may 
need to submit a closure plan. If the source is permitted, it will 
probably need to update its closure plan (that is part of the permit); 
thus, the ``document'' may be a permit modification request.
    a. Submittal. Commenters suggested that sources submit progress 
reports to track source's actions toward compliance. The Agency also 
believes that a progress report would be a useful tool to evaluate a 
source's progress toward compliance. In the final rule, EPA requires 
those sources to submit to the regulatory authority a progress report 
on or before two years after the effective date of the emission 
standards of this Subpart. Any sources burning waste on and/or after 
two years following the effective date of the emission standards of 
this Subpart will be required to submit a progress report.
    b. Demonstration. The Agency believes that any source which intends 
to come into compliance with the emission standards of this Subpart, 
except for those sources in compliance on the effective date of the 
emission standards of this Subpart, will be required to make 
modifications to the source to come into compliance. To gauge the 
progress of these modifications, the final rule requires sources to 
submit with their progress report information demonstrating that the 
source has: (1) Completed engineering design for any physical 
modifications to the source needed to comply with the emissions 
standards of this Subpart; (2) Submitted applicable construction 
applications to the applicable regulatory authority; and (3) Entered 
into a binding contractual commitment to purchase, fabricate, and 
install any equipment, devices, and ancillary structures needed to 
comply with the emission requirements of this Subpart. Those sources 
which fail to make this demonstration in their progress report or who 
fail to submit a progress report shall stop burning hazardous waste on 
or before the date two years after the effective date of this Subpart.
    Because the types of modifications that sources will have to make 
are anticipated to require the commitment of substantial resources, 
sources are required to demonstrate that they have entered into a 
binding contractual commitment to purchase the resources necessary to 
make those modifications. Some examples of binding contractual 
commitments follow; however, EPA may judge other demonstrations 
adequate on a case-by-case basis. In some cases, EPA will allow 
evidence of an in-house construction plan to satisfy the demonstration. 
If on-site labor by facility personnel will be used, a statement of 
commitment must be provided by upper management, and such other 
evidence of a commitment as is available, such as company memoranda or 
annual budgets committing funds, purchase orders, or copies of 
contracts with any suppliers of equipment or materials. EPA expects 
that, in most cases, sources will use off-site resources in their 
modifications. To demonstrate commitment in these cases, sources must 
provide copies of binding contracts with companies to perform tasks or 
supply equipment that will facilitate bringing the source into 
compliance.
    There may be a limited number of sources who intend to come into 
compliance, but will not need to undertake any of the activities 
identified in the demonstration criteria above to do so. These sources 
are required to submit instead documentation: (1) Demonstrating that 
the source, at the time of the progress report, is in compliance with 
the emissions requirements; or (2) specifying the steps that will be 
taken to bring the source into compliance, without undertaking any of 
the activities identified in the demonstration criteria. The Agency 
anticipates that few if any sources will not need to enter into binding 
contracts in order to come into compliance with the emission standards 
of this Subpart.
    Those sources who indicated in the NIC their intent not to comply 
with the

[[Page 33811]]

emission control requirements of this Subpart must still submit a 
progress report. These sources, however, must only indicate that they 
have stopped burning hazardous waste and have submitted the required 
RCRA closure documents.
    c. Schedule. To determine that facilities are undertaking the steps 
necessary to come into compliance by the compliance date, the progress 
report shall contain a schedule. This schedule must take into account 
the key dates listed in 63.1211(a)(1)(ii) for projects that will bring 
the source into compliance with the emission standards. The schedule 
must cover the time frame from the submittal of the progress report 
through the compliance date of the emission standards. EPA is requiring 
that the following key dates, as applicable to each source, be 
contained in their schedule: (1) Bid and award dates for construction 
contracts and equipment supply contractors; (2) milestones such as 
ground breaking, completion of drawings and specifications, equipment 
deliveries, intermediate construction completions, and testing; (3) the 
dates on which applications were submitted for or obtained operating 
and construction permits or licenses; (4) the dates by which approvals 
of any permits or licenses applied for are anticipated; and (5) the 
projected date by which the source will be in compliance with emission 
standards. The Agency anticipates that many sources will be able to 
update the schedule included with their NIC in submitting a schedule 
for the progress report.
    d. Sources That Do Not Intend To Comply. The Agency anticipates 
that some facilities, which intended to comply at the time of their NIC 
submittal, may make the determination not to comply based on 
engineering studies or evaluations by the time of their progress report 
submittal. Those sources that signify in their progress report, 
submitted on or any time before two years after the effective date of 
the emission standards of this Subpart, their intention not to comply 
with the requirements of this Subpart must stop burning hazardous waste 
on or before the date two years after the effective date of the 
emissions standards of this Subpart. Sources who, at the time of their 
NIC submittal, have any belief or concern that they may decide not to 
comply with the emission standards should consider planning alternate 
waste management alternatives well in advance of the two year stop 
burning deadline.
    e. Facilities with Multiple Sources. Commenters stated that some 
facilities may have multiple units at the same site subject to the MACT 
requirements. These facilities may decide to bring a portion of the 
sources into compliance and cease burning hazardous waste in the other 
portion of their sources. If a facility did decide to upgrade one or 
more units, it may be necessary to utilize the remaining unit, in which 
it intended to stop burning hazardous waste prior to the compliance 
date, to handle the capacity of the unit being upgraded until the 
installation of controls was complete. The commenters believed that it 
was unjustified to close a source at the two year deadline in the case 
where a source: (1) Was designated for closure at or before the three 
year compliance date; and (2) was handling the waste from another on-
site source being upgraded to comply with the MACT standards or in 
order to install source reduction modifications eliminating the need 
for further combustion of wastes.
    The Agency agrees that the intent of the requirement for sources 
that did not intend to comply to stop burning hazardous waste should 
not apply to these types of sources. Therefore, the requirement to stop 
burning hazardous waste at the two year deadline does not apply to a 
source if: (1) The source was designated in the NIC as a source that 
would stop burning hazardous waste on or before the compliance date; 
and (2) the source was shown in the NIC to be necessary to handle the 
capacity of another on-site source while that source was unable to 
handle the waste and undergoing modifications to come into compliance 
with the emission standards of this Subpart or in order to install 
source reduction modifications eliminating the need for further 
combustion of wastes.

E. Certification

    To ensure that information submitted by a source is true and 
accurate, all NIC and progress reports submitted shall contain the 
following certification signed and dated by an authorized 
representative of the source: ``I certify under penalty of law that I 
have personally examined and am familiar with the information submitted 
in this document and all attachments and that, based on my inquiry of 
those individuals immediately responsible for obtaining the 
information, I believe that the information is true, accurate, and 
complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment.''
    An authorized representative should be a responsible corporate 
officer (for a corporation), a general partner (for a partnership), the 
proprietor (of a sole proprietorship), or a principal executive officer 
or ranking elected official (for a municipality, State, Federal, or 
other public agency).

F. Extension of the Compliance Date

    The CAA provides sources that intend to come into compliance, but 
because of the need to install controls will not meet the compliance 
date, the ability to request an extension of the compliance date for 
one year. The Agency believes facilities that choose to install process 
changes (which are essentially pollution prevention or waste 
minimization measures) and/or other controls that are appropriate for 
meeting MACT standards are eligible to request a one year extension of 
the compliance date to install these controls (CAA Section 
112(i)(3)(B)). Facilities that request an extension to install 
pollution prevention and/or waste minimization measures may use part 
63.1216 below, which describes the pollution prevention related 
information to be submitted. Facilities that request an extension for 
installing only end-of-pipe emission controls may use part 63.6(i)(4) 
requirements. In either case, the extension request shall be filed at 
least one year prior to the compliance date of this Subpart.

G. Sources Which Become Affected Sources After the Effective Date of 
This Subpart

    The Agency is concerned that there may be sources who become 
subject to the emission standards of this Subpart after the effective 
date of the emission standards of this Subpart. The following is 
intended to clarify the requirements and time frames that must be met 
by such sources. A source which begins to burn hazardous waste after 
the effective date of the emission standards of this Subpart, therefore 
becoming an affected source, but prior to 9 months after the effective 
date of the emission standards of this Subpart, shall comply with all 
the requirements of this section and associated time frames for public 
meetings and document submittals.
    A source which intends to begin burning hazardous waste after 9 
months after the effective date of the emission standards of this 
Subpart, therefore becoming an affected source, shall meet all the 
requirements concerning the NIC and progress report prior to burning 
hazardous waste. Such sources shall make a draft NIC available, notice 
their public meeting, hold their public meeting, and submit a final NIC 
prior to burning hazardous waste. Such sources also shall submit their 
progress report at

[[Page 33812]]

the time of the submittal of their final NIC.

VI. Waste Minimization and Pollution Prevention

A. Overview

    Pollution prevention is widely recognized as the most preferable 
form of environmental management. Indeed, the Clean Air Act, the 
Pollution Prevention Act, and the Resource Conservation and Recovery 
Act explicitly make pollution prevention the preferred tool in our 
nation's environmental management toolbox. The States have been strong 
leaders as well in moving pollution prevention to the forefront. Over 
the past decade, 30 states have passed legislation that promotes 
pollution prevention.18 Those States have embarked on a 
variety of programs that move pollution prevention more into the 
mainstream of their environmental management strategies--ranging from 
pollution prevention based permits and inspections, to mandatory 
pollution prevention planning programs, to voluntary partnerships and 
technical assistance. Nearly every State operates some form of 
pollution prevention technical assistance program to help companies 
reduce as much waste as possible at the source.
---------------------------------------------------------------------------

    \18\ Pollution Prevention 1997, A National Progress Report 
(June, 1997). U.S. Environmental Protection Agency, EPA 742-R-97-00, 
Washington, D.C.
---------------------------------------------------------------------------

    EPA has embarked on several experimental programs, including, for 
example, Project XL and the Common Sense Initiative, to identify 
barriers in Federal regulations that impede cleaner, cheaper, smarter 
environmental solutions, and to demonstrate ways of redrafting 
regulations to provide greater flexibility in solving environmental 
problems.
    In 1994, EPA began an extensive outreach effort to begin 
identifying pollution prevention barriers and incentives affecting 
hazardous waste combustion. Over the course of the past four years, EPA 
has worked extensively with the States, industry, environmental groups, 
and citizens, in many dozens of discussions and correspondences to 
explore a broad range of approaches to pollution prevention in the 
combustion arena. Today's rulemaking puts in place several incentive 
based pollution prevention and waste minimization incentives that 
derive from that long term effort, and that will provide the regulated 
community with additional flexibility to use pollution prevention 
technologies where it makes sense to do so. Some barriers were 
identified that are not easily solvable within the limits of the Clean 
Air Act, such as time limits on compliance that sometimes force 
companies to install end-of-pipe emission controls, instead of 
pollution prevention process changes, because they are faster and less 
risky to install. Nevertheless, today's rule suggests an approach that 
can address even this problem.
    Today's rule contains incentives that provides the regulated 
community:

--several months of planning time before the MACT compliance period 
begins to explore cost effective pollution prevention alternatives that 
might reduce the cost of hazardous waste combustion,
--the opportunity to extend the compliance period by one year where the 
additional time is needed to install pollution prevention controls that 
reduce the amount of hazardous waste entering combustion units, and
--the opportunity to engender public support on pollution prevention 
alternatives that reduce the amount of waste that will be combusted.

    The six pollution prevention alternatives EPA published for 
comment, the comments received and a description of the incentives 
contained in today's rule are discussed further below.

B. Background

    The goals of the Clean Air Act clearly express Congress' intent to 
use pollution prevention as a fundamental tool for protecting our 
nation's air resources:
    ``A primary goal of this chapter is to encourage or otherwise 
promote reasonable Federal, State, and local government actions, 
consistent with the provisions of this chapter, for pollution 
prevention.'' (Clean Air Act, Section 101 (c)).''
    ``Air pollution prevention (that is, the reduction or elimination , 
through any measures, of the amount of pollutants produced or created 
at the source) * * * is the primary responsibility of States and local 
governments.'' (Clean Air Act, Section 101 (a)(3)).''
    Congress' intent in the CAA is consistent, if not identical, to the 
policies set in the Pollution Prevention Act of 1990 (PPA) and the 
Hazardous and Solid Waste Amendments to RCRA of 1984, RCRA Section 
1003(b) and Section 6602 (a).
    More specifically, we note the definition of pollution prevention 
as used in the CAA is best captured in the operational definition used 
in Section 112 (d)(2). This section requires EPA to consider pollution 
prevention techniques in addition to ``end of pipe'' emission controls 
and other methods in the setting of MACT standards. Pollution 
prevention is used here to include: ``measures, processes, methods, 
systems, or techniques including, but not limited to, measures which * 
* * (A) reduce the volume of, or eliminate emissions of, such 
pollutants through process changes, substitutions of materials or other 
modifications, * * * or (D) are design, equipment, work practice, or 
operational standards (including requirements for operator training or 
certification) * * *''
    To avoid some of the historical confusion that has occurred over 
the definitions of pollution prevention and waste minimization, it is 
useful to compare the CAA definition to those in the PPA and in the 
Hazardous and Solid Waste Amendments to RCRA of 1984.
    The PPA (at Section 6603(5)(A)) defines pollution prevention as 
source reduction activities, which includes any practice that reduces 
the amount of hazardous substance, pollutant or contaminant entering a 
waste stream, or otherwise prior to recycling, treatment or disposal. 
It includes such activities as: equipment or technology modifications, 
reformulation or redesign of products, substitution of raw materials, 
improvements in work practices, maintenance, training, and inventory 
control. The meaning contained in the PPA is essentially the same 
meaning referred to in Section 112(d)(2) of the CAA. Both focus on 
reducing waste generation at the source by making changes in the way 
things are manufactured.
    The PPA excludes from pollution prevention any practice which 
``alters the physical, chemical, or biological characteristics or the 
volume of a hazardous substance, pollutant, or contaminant through a 
process or activity which itself is not integral to and necessary for 
the production of a product or the providing of a service.'' (Section 
6603(5)(B). In essence, this definition excludes waste management, 
recycling (except for closed loop recycling that is integrated into 
production processes), burning for energy recovery, waste treatment, 
and disposal.
    Since many of the facilities affected by today's rulemaking are 
simultaneously regulated by RCRA, it is important to also explain the 
use of the term waste minimization, under RCRA.
    Waste minimization includes pollution prevention (or source 
reduction) and environmentally sound recycling, i.e., recycling that 
does not constitute disposal (see 40 CFR 261.1(c)). It does not include 
treatment--i.e, any ``method, technique, or process, including 
neutralization,

[[Page 33813]]

designed to change the physical, chemical or biological character or 
composition of any hazardous waste so as to neutralize such waste, or 
so as to recover energy or material resources from the waste, or so as 
to render such waste non-hazardous, or less hazardous; safer to 
transport, store or dispose of; or amenable for recovery, amenable for 
storage, or reduced in volume.'' (40 CFR 260.10). RCRA also contains 
requirements for hazardous waste generators and permitted waste 
management facilities to make routine certifications that they have a 
``waste minimization program in place,'' and large generators must also 
report waste minimization activities biennially.
    The environmental literature and public statements of many 
companies provide strong evidence of the potential benefits to industry 
and the environment that result from using pollution prevention over 
waste generation and management. For example, pollution prevention 
techniques can help companies reduce the amount of raw materials 
purchased and the amount of waste generated. These reductions can 
reduce the amount spent on waste management and can also reduce worker 
exposure to hazardous substances. Pollution prevention can help 
companies improve product yield and find ways to recover materials that 
might otherwise be destroyed or landfilled.
    The literature also points to barriers that may impede a company's 
ability to pursue pollution prevention. Barriers may include, for 
example: little or no access to technical information on pollution 
prevention technologies, concern over the impact of process changes on 
product quality, a lack of access to capital, requirements in existing 
environmental regulations that conflict with pollution prevention 
objectives.
    Today's regulation focuses on reducing several potential regulatory 
barriers that could interfere with pollution prevention solutions. The 
incentive based approach contained in today's rule is explained further 
below.

C. Summary of Proposed Pollution Prevention/Waste Minimization 
Incentives and Comments Received

    EPA requested comment on six alternatives for promoting pollution 
prevention and waste minimization at hazardous waste incinerators, 
cement kilns and LWAKs. Three were proposed in the Agency's April 1996 
NPRM and three were proposed in the Agency's Notice of Data 
Availability (NODA) published in the Federal Register on May 2, 1997 
(Revised Technical Standards for Hazardous Waste Combustion Facilities; 
Proposed Rule, 62 FR 24241). All six incentive based alternatives were 
designed to promote the identification and installation of pollution 
prevention and waste minimization techniques that reduce or eliminate 
the amount and/or toxicity of hazardous wastes entering combustion 
feedstreams, either as an alternative to end-of-pipe combustion 
measures, or in combination with combustion measures, to meet MACT 
standards.
    Two of the six alternatives proposed focused on using waste 
minimization facility planning as a tool that would cause regulated 
facilities to identify pollution prevention/waste minimization measures 
that could be used to reduce the amount and/or the toxicity of 
hazardous wastes entering combustion feedstreams. Two additional 
alternatives focused on extending compliance deadlines to allow 
additional time for companies to fully explore pollution prevention/
waste minimization measures and combustion measures that may be 
necessary to meet MACT standards. A fifth alternative requested comment 
on an approach that would harness the power of public involvement 
during the initial stage of corporate compliance planning. The sixth 
alternative proposed promulgating pollution prevention and waste 
minimization incentives several months before the MACT standards are 
promulgated--which would provide companies several months of advance 
planning time before the MACT compliance period begins. The 
alternatives were not designed to be exclusive. Today's rule 
promulgates a combination of three of these options, encourages States 
to adopt two others, and recommends an alternative voluntary approach 
for the sixth. The options, comments received and EPA's response to 
major comments are discussed below. EPA's response to each comment is 
contained in the docket.
    EPA received over 40 comments on the options contained in the April 
1996 NPRM and the NODA. Most of the commenters addressed one or more of 
the following topics:

--Time-based incentives, including the opportunity to enter into 
enforcement agreements beyond four years,
--The effectiveness of pollution prevention planning and planning 
criteria,
--Perceived effectiveness of pollution prevention in the context of 
this rulemaking,
--Setting MACT standards based on pollution prevention/waste 
minimization,
--Public review of pollution prevention and waste minimization,
--The role of pollution prevention and waste minimization in waste 
management,
--The definition of pollution prevention and waste minimization, and
--Applicability of pollution prevention incentives to commercial 
facilities.

    EPA asked for comments on the appropriateness of two options 
requiring pollution prevention/waste minimization facility planning. 
One option would require facilities to complete a waste minimization 
facility plan that identifies alternatives for reducing the amount of 
hazardous waste managed by combustion. While this approach would not 
require facilities to select any particular pollution prevention 
technology, it presumes that going through the process of exploring 
alternatives would cause a company to consider more pollution 
prevention options than they would have otherwise and select any that 
are cost-effective.
    In the second waste minimization planning option, EPA proposed to 
allow States and EPA Regions (in cases where States are do not have an 
approved CAA Title V program) to require pollution prevention planning 
on a case-by-case basis. Determining which facilities should be 
required to complete a pollution prevention/waste minimization facility 
plan could take into account several factors, including, for example, 
whether an existing state program had already accomplished this 
objective, the extent to which this requirement may be too burdensome 
for some states, and the extent to which facility specific conditions 
indicate emissions could be controlled by feed stream management and 
waste minimization at the source.
    A variety of commenters addressed this issue. Four states and one 
state association commented pollution prevention/waste minimization 
should be the highest priority waste management approach, though they 
had diverse and sometimes conflicting opinions about the specific 
options proposed. One State commented that mandatory planning should be 
required for all facilities that generate and combust waste on-site, 
and that planning should be required on a case-by-case basis for 
commercial off-site combustion facilities. One State and the State 
association stated that the mandatory planning requirement should be 
expanded to include all facilities that generate waste managed by 
combustion. A fourth State said that no waste minimization incentives 
should be included in this rule because the

[[Page 33814]]

regulated community has had many years to reduce waste generation 
through pollution prevention/ waste minimization, and should have 
already considered waste minimization as an approach to compliance. One 
state did not comment specifically on the pollution prevention planning 
options but was in favor of encouraging pollution prevention incentives 
in this rule.
    This diversity of opinion among States leads EPA to believe that 
the pollution prevention/waste minimization incentives contained in 
this rule must allow broad flexibility for State programs. EPA is also 
aware, from discussions outside the context of this rulemaking, that 
some states are specifically opposed to mandatory pollution prevention 
requirements, and a few states have not yet established pollution 
prevention programs.
    Several dozen comments were received from industry. Most of the 
comments from companies who generate and combust waste on-site were in 
favor of pollution prevention/waste minimization as the most desirable 
form of waste management. However, most were opposed or silent 
regarding required pollution prevention planning. Only one argued that 
mandatory pollution prevention planning is not appropriate, and that 
the case by case option provides greater flexibility and is therefore 
more appropriate.
    Commercial combustion facilities generally oppose pollution 
prevention planning requirements because they have virtually no control 
over what types or how much waste their customers generate for 
combustion. However, one company argued strongly for the Agency to 
require mandatory pollution prevention planning by all regulated units 
to identify pollution prevention alternatives that eliminate or reduce 
the amount and toxicity of combusted wastes. The commenter further 
argued that pollution prevention should be used to leverage the closing 
of combustion units where wastes could more effectively be eliminated 
or reduced. Another commercial company believes EPA should implement 
``good actor'' incentives for companies that educate their customers 
regarding available waste minimization resources. Such incentives could 
include reduced inspection frequencies, reduced performance testing, 
and a recognition program. This approach was not suggested by any other 
commenters. EPA believes this approach might be appropriate for further 
exploration at a later time. One Federal agency commented in favor of a 
case-by-case approach.
    EPA considered several factors regarding this approach. First, the 
CAA clearly envisions States as the primary implementers of the Title V 
program, and the pollution prevention programs operated by the States 
are clearly diverse. While 15 States have enacted mandatory pollution 
prevention planning programs, the remaining States continue to 
emphasize voluntary pollution prevention programs and technical 
assistance to encourage pollution prevention.
    Available data shows that mandatory pollution prevention planning 
can be an effective State tool. It is not clear how effective this 
approach would be for a broad array of states. In a review of seven 
states that have chosen to implement mandatory pollution prevention 
planning programs, the National Pollution Roundtable concludes that 
mandatory pollution prevention planning produces beneficial results for 
the regulated community and the environment, and encourages other 
states to consider this direction.19 However, New Jersey 
(one of the seven States reviewed) notes in a separate report that its 
companies began making significant reductions through pollution 
prevention well before the State passed legislation requiring mandatory 
pollution prevention planning. In this case, the State is not able to 
pinpoint why this occurred.20
---------------------------------------------------------------------------

    \19\ ``Facility Pollution Prevention Planning Requirements: An 
Overview of State Program Evaluations,'' National Pollution 
Prevention Round table (August 8, 1997), Washington, D.C. 20036.
    \20\ Aucott, M., Wachspress, D., & Herb J., (May, 1996). 
``Industrial Pollution Prevention in New Jersey,'' New Jersey 
Department of Environmental Protection, Trenton, N.J.
---------------------------------------------------------------------------

    Of the 21 commercial hazardous waste incinerators and the 141 on-
site hazardous waste incinerators (i.e., incinerators co-located with a 
company manufacturing facilities), 58 percent are located in states 
which have legislated pollution prevention programs already in place. 
Nearly all of the remaining facilities are located in States that 
provide pollution prevention technical assistance. In addition, all of 
these facilities are co-regulated by RCRA and have been required since 
1984 to certify on an annual basis, that they have a waste minimization 
program in place. Therefore, it is not clear what additional pollution 
prevention benefits would result from a mandatory requirement. Based on 
its analysis, EPA believes that a federal requirement for pollution 
prevention planning is not appropriate.
    EPA also considered the impact Federal pollution prevention 
planning requirements would have on the Agency's paperwork reduction 
commitments. EPA is committed to decreasing its information collection 
request budget. In light of the baseline requirements and voluntary 
programs States have already established in this area, EPA concludes 
this requirement would increase federal paperwork without necessarily 
creating a commensurate improvement in environmental quality.
    EPA has also expanded the availability of voluntary pollution 
prevention incentives available--which in turn reduce the need for 
mandatory federal pollution prevention requirements. For example, EPA 
has recently released the ``Waste Minimization Prioritization Tool.'' 
21 This tool is an easy-to-use computer program that allows 
industrial, government and public users to quickly identify their 
highest hazard wastes as targets for pollution prevention efforts. The 
tool allows the user to enter information on particular waste streams 
and develop a screening-level assessment of chemicals based on their 
persistence, bioaccumulation potential, and human and ecological 
toxicity. The system ranks about 900 chemicals that have ``complete'' 
data on chemical persistence, bioaccumulation potential, and human and 
ecological toxicity, and it includes partial data for 3,800 others. 
This tool has received much review and is targeted for widespread 
distribution in the regulated community.
---------------------------------------------------------------------------

    \21\ ``Waste Minimization Prioritization Tool, Version 1.0: 
User's Guide and System Documentation,'' (EPA 530-R-97-019, June, 
1997). U.S. Environmental Protection Agency, Washington, D.C.
---------------------------------------------------------------------------

    EPA continues to provide $5-$8 million dollars per year in grant 
funds to States that develop innovative pollution prevention 
approaches, and EPA is promoting pollution prevention innovation in 
States through the National Environmental Performance Partnership 
System (NEPPS). NEPPS agreements give the States flexibility to combine 
individual program grants to maximize achieve environmental goals, 
including using funds for pollution prevention that have historically 
been used for end-of-pipe pollution controls. Texas, New Jersey, and 
Ohio (which oversee a total of 45 hazardous waste incinerators) are 
among the states that signed NEPPS agreements in 1996. Thirty states 
were scheduled to negotiate NEPPS agreements in 1997.
    In addition, a variety of government-industry partnerships are 
producing pollution prevention results. For example, 163 industry 
members of Texas' Clean Industries 2000 program

[[Page 33815]]

are committed to reducing emissions of Toxic Release Inventory (TRI) 
chemicals by 50 percent by the year 2000. A twenty-nine percent 
reduction was reached by the year 1994.
    Balancing all of the above factors, EPA believes mandatory and 
case-by-case pollution prevention planning approaches are not necessary 
to achieve the pollution prevention goals of the CAA. A combination of 
strong incentives and broad flexibility for States and the regulated 
community, including some of the options discussed below and contained 
in today's rule, will accomplish the pollution prevention goals of the 
CAA.
    Two options were proposed that would allow the MACT compliance 
period to be extended for facilities that demonstrate the need for 
extra time to install pollution prevention measures. One of these 
options would allow facilities to apply for a one-year compliance 
extension to the MACT compliance period under Section 112(i)(3)(B) 
where additional time is needed to install pollution prevention or 
waste minimization measures that reduce or eliminate hazardous wastes 
entering the combustion feedstreams of regulated facilities. Of course, 
such applications must still be evaluated on a case-by-case basis CAA 
112(b)(3). However, the following discussion provides an indication of 
how EPA might evaluate such applications based on pollution prevention.
    Facilities that apply for this one-year extension would be required 
to provide a description of the pollution prevention/waste minimization 
measures that would significantly reduce or eliminate the volume and/or 
toxicity of hazardous wastes entering combustion feedstreams, a 
reduction goal (i.e., how much waste will no longer enter combustion 
feedstreams of the regulated unit(s)), a discussion of additional 
combustion or other treatment technology that will be installed to meet 
MACT standards, and a schedule of milestones necessary to achieve 
compliance. The pollution prevention/waste minimization measures 
installed could be used either alone to meet MACT standards (e.g., in 
cases where elimination of certain combusted waste streams will either 
achieve MACT standards for the regulated unit(s), or will eliminate the 
need for the regulated unit(s)), or in combination with combustion or 
other treatment technologies that enable the facility to comply with 
MACT standards. We emphasize that identifying expected reductions in 
combustion feedstreams is required, but identifying reductions in 
emissions as a result of installing pollution prevention measures is 
not required. EPA recognizes this would not be practical. The 
compliance date for facilities that are granted a one year extension by 
the permitting agency would be four years after the promulgation of 
MACT standards, rather than three years after the date of promulgation.
    EPA recognized in its proposal that States operate very diverse 
pollution prevention programs. However, to ensure some degree of 
consistency in granting one year extensions, EPA proposed four flexible 
factors to be considered in approving or denying requests for one-year 
compliance extensions for hazardous waste burning incinerators, LWAKs, 
and cement kilns. These factors included: (1) The extent to which the 
process changes (including waste minimization measures) proposed as a 
basis for the extension reduce or eliminate hazardous wastes entering 
combustion feed streams and are technologically and economically 
feasible, (2) whether the magnitude of the reductions in hazardous 
wastes entering combustion feed streams through process changes are 
significant enough to warrant granting an extension, (3) a clear 
demonstration that reductions of hazardous wastes entering combustion 
feed streams are not shifted as increases in pollutants emitted through 
other regulated media, and (4) a demonstration that the design and 
installation of process changes, which include waste minimization 
measures, and other measures that are necessary for compliance cannot 
otherwise be installed within the three year compliance period.
    EPA received no adverse comments on the four factors for ensuring 
consistency. Companies that operate on-site units (many of which are 
large chemical plants which operate complex production processes and 
which generate diverse and complex waste streams) commented that they 
prefer to use pollution prevention and waste minimization measures 
wherever they are cost effective. However, in the instant rulemaking, 
the dual tasks of designing, testing and installing pollution 
prevention process changes and combustion or other treatment equipment 
is not practical in a three year compliance period plus a one-year 
extension. Some commented that meeting the compliance date may often 
force companies to install combustion controls at great expense and 
forego exploration of pollution prevention options.
    The four states and one State association that commented on the 
compliance extension options had diverse opinions. Two states commented 
that pollution prevention/waste minimization should be encouraged in 
this rulemaking. However, they believe three years plus a one-year 
extension may not be enough time for companies to identify and install 
waste minimization measures. A third State said that pollution 
prevention/waste minimization incentives should not be included in this 
rule because companies have had more than ample time to pursue 
pollution prevention/waste minimization as an approach to compliance. A 
fourth State and State association commented that facilities have had 
ample time to identify and install pollution prevention solutions--
however, one year compliance extensions should be considered in cases 
where it will promote further pollution prevention.
    Two commercial hazardous waste treatment organizations commented 
that a one-year extension for pollution prevention/waste minimization 
purposes is not appropriate since the companies generating the waste 
have had several years to consider pollution prevention and waste 
minimization measures as a waste management alternative.
    EPA believes that compliance extensions provide a strong incentive 
for pollution prevention, and provide States additional flexibility. 
EPA agrees that, in some cases, three years plus a one-year extension 
may not be sufficient time to identify and install waste minimization 
measures that achieve compliance. However, the one year extension is 
the maximum allowable under the CAA. EPA disagrees with the commenters 
opposing the extension because pollution prevention and waste 
minimization should be viewed as an on-going process that adopts new 
pollution prevention technologies as they become available. In some 
cases, the economics of complying with new MACT standards may make 
pollution prevention more cost-effective than it would have otherwise 
been.
    In today's rule, EPA has chosen to implement the one-year 
compliance extension approach. In evaluating extension requests, EPA 
urges permitting agencies to give first preference to facilities that 
request the extra time to install pollution prevention measures (either 
alone or in addition to combustion controls) over facilities that 
request an extension only for installing combustion controls. EPA has 
also simplified the factors that must be considered by permitting 
agencies in making determinations for one year extensions by making 
them identical to

[[Page 33816]]

the factors facilities must include in requests for extensions.
    In its 1997 NODA, EPA encouraged facilities that wish to apply for 
a one-year extension to coordinate the development the application for 
extension with the information contained in Notice of Intent to Comply 
(NIC), which is also described in today's rulemaking. Based on the 
comments received from industry and States noting the need for extra 
time to consider and then install pollution prevention measures, EPA 
would expect to see a reasonable degree of consistency between 
pollution prevention alternatives discussed in the NIC and pollution 
prevention technologies identified in a subsequent request for a one 
year extension to install pollution prevention technologies. Requests 
for a one-year compliance extension from facilities who did not address 
pollution prevention in the NIC should be viewed with caution to guard 
against last minute attempts to delay compliance.
    The second compliance extension option, proposed in the 1997 NODA, 
would allow certain facilities to enter into a written consent 
agreement or consent order in cases where pollution prevention/waste 
minimization technologies would significantly reduce wastes entering 
combustion feed streams, but would take more than four years (i.e., 
three years plus a one-year extension). EPA could use this alternative 
using the principles articulated in the Agency's ``Policy on 
Encouraging Self-Policing and Voluntary Correction'' (also known as the 
``Audit Policy'' 60 FR 66706, December 22, 1995).
    Very few commenters addressed this option. Some industry commenters 
expressed limited interest in this approach, since entering into a 
consent agreement would provide no shield against citizen suits.
    EPA agrees that longer than four years may be needed in some cases. 
However, based on the comments received and after further evaluation, 
the Agency has decided not to pursue this proposal as part of this 
rulemaking. Instead, EPA believes its Project XL program provides a 
better opportunity for EPA to work with companies who are interested in 
undertaking projects which hold the promise of superior environmental 
results in exchange for regulatory flexibility. The XL program is also 
designed to include public involvement early in the process, which 
would hopefully reduce the likelihood of citizen suits. Project XL 
proposals should be developed and submitted well in advance of the 
deadline for meeting this MACT standard, possibly before the 
promulgation of MACT standards. See the May 22, 1995 Federal Register 
Notice [FRL-5197-9] for further information on developing and 
submitting a proposal.
    EPA proposed a fifth pollution prevention/waste minimization 
incentive in the 1997 NODA which focused on harnessing the power of 
public involvement to encourage companies to consider pollution 
prevention alternatives. The NODA proposed to require facilities to 
make public, within ten months after promulgation of the MACT 
standards, a draft Notice of Intent to Comply (NIC) that contains a 
description of technologies that will be used to achieve compliance 
with MACT standards, including pollution prevention and waste 
minimization technologies. Regulated facilities would also be required 
to hold a public meeting on its compliance plan and to submit a final 
NIC to the permitting agency no later than one year after the 
promulgation of standards. In this setting, the public would be able to 
review a company's draft compliance plan and make known its concerns 
and views regarding the use of pollution prevention, combustion or 
other treatment methods.
    Several commenters responded to the pollution prevention/waste 
minimization components of the NIC proposal. One industry trade 
organization commented that the NIC requirements are unnecessary since 
its members already participate in a responsible care program that 
includes pollution prevention and community involvement. Another 
commenter argued strongly that the public involvement opportunity 
provided by the NIC process is inadequate, and that the point at which 
the public interacts with the facility is too late to influence 
decisions to encourage the installation of pollution prevention 
technology that may reduce or eliminate the need for combustion.
    It is crucial to provide the public with information and a public 
meeting on the pollution prevention/waste minimization and combustion 
measures that are planned at individual facilities. The NIC process 
occurs early enough in the compliance process to provide meaningful 
public involvement, and the NIC process provides a strong lever for 
citizens to voice their opinions. The pollution prevention aspects of 
the NIC requirements are further discussed in the NIC portion of 
today's preamble.
    The sixth pollution prevention/waste minimization option proposed 
involved promulgating a ``fast track'' rule in advance of MACT 
standards to provide the regulated community time to explore, plan and 
possibly begin implementation of pollution prevention and waste 
minimization measures several months before the promulgation of MACT 
standards.
    One commenter strongly urged this option because it provides 
facilities with additional planning time to identify pollution 
prevention options before the MACT compliance period begins. Although 
no other commenters specifically addressed this option, EPA believes it 
provides States additional flexibility, and comports with the variety 
of comments that expressed general support for pollution prevention as 
a top priority environmental management strategy.

D. Waste Minimization Incentives Contained in Today's Rule

    Today's rulemaking provides three incentives to encourage the use 
of pollution prevention measures to reduce or amount and/or toxicity of 
hazardous wastes entering combustion feedstreams. Wastes that cannot be 
reduced at the source should be recycled in an environmentally sound 
manner, i.e., in a manner that does not constitute disposal. Wastes 
that cannot be reduced at the source or recycled should be either 
burned for energy recovery, treated, or disposed in accordance with 
environmental standards. Today's incentive based approach encourages 
and rewards facilities that significantly reduce the amount of 
combusted hazardous waste using pollution prevention measures as a 
method for achieving MACT standards, and it provides the flexibility 
needed by the States to build on or expand existing pollution 
prevention programs.
    Today's rule (at Section 63.1216) allows owners/operators of 
hazardous waste burning incinerators, cement kilns and lightweight 
aggregate kilns to request a one-year extension to the MACT compliance 
period in cases where additional time is needed to install pollution 
prevention and waste minimization measures that reduce the amount of 
hazardous waste entering combustion feedstreams. The Administrator or 
State with an approved Title V program is authorized to grant one-year 
extensions for this purpose under Section 112(i)(3)(B) of the CAA. 
Pollution prevention and waste minimization measures that can be 
considered in this determination include: process changes (including 
closed loop recycling), raw material substitutions, design changes, 
equipment changes, work practice changes, changes in operational 
standards or other similar measures that

[[Page 33817]]

EPA or State permitting agencies may determine is pollution prevention 
or waste minimization. Waste minimization activities that may be 
considered for an extension include pollution prevention activities and 
recycling measures, as defined in 40 CFR 261.1(c) and conducted in 
accordance with RCRA regulations.
    The term recycling, as defined in defined in 40 CFR 260.10 does not 
include burning for energy recovery or treatment activities. Therefore, 
burning for energy recovery will not be considered for an extension. 
Companies who burn for energy recovery are presumed, in accordance with 
their RCRA waste minimization program in place certification (discussed 
above), to have determined that wastes burned for energy recovery could 
not be economically source reduced or recycled prior to burning. EPA 
believes this approach is completely consistent with past Agency policy 
and provides the regulated community with greater flexibility in 
managing its non-product outputs.
    Requests for a one-year extension must reasonably document that the 
waste minimization measures, and whatever additional compliance 
measures are necessary to achieve compliance, could not otherwise be 
installed in time to meet the three-year compliance period. Stronger 
consideration should be given to requests that contain, for example: 
(1) A schedule to redesign a production process that eliminates the use 
of solvents and the generation of spent solvents (which are currently 
combusted in an on-site hazardous waste incinerator), (2) a commitment 
to reduce by 25% the amount of hazardous wastes entering the 
incinerator feedstream (as a result of the waste minimization process 
change), (3) a description and schedule for designing and installing 
combustion controls to treat remaining wastes, and (4) evidence that 
the extension reflects the reality that the design specs and schedule 
for the remaining combustion controls can not be completed or installed 
without first having information on waste minimization related 
feedstream changes. In contrast, requests that propose to simply send 
wastes off-site for recycling, for example, without first exploring on-
site process changes or operating practices, should receive little or 
no consideration for an extension because there is nothing in this 
action that would require extensive time.
    Decisions to grant one-year extensions will be made by EPA or state 
programs that have delegated the authority to implement and enforce the 
emission standard for that source. In light of the wide range of 
approaches States employ regarding waste minimization planning, it is 
appropriate to encourage some degree of consistency in how these 
decisions are made, without superseding State approaches. Therefore, 
EPA is requiring that permitting agencies must consider all of the 
information required in Section 63.1216 in approving or denying 
requests for one-year compliance extensions for hazardous waste burning 
incinerators, LWAKs, and cement kilns. EPA will also work with States 
to develop separate guidance, with examples, of how to review requests 
for an extension, based on pollution prevention/waste minimization 
efforts.
    The second pollution prevention/waste minimization incentive 
promulgated in today's rule is the requirement for regulated facilities 
to include in their Notice of Intent to Comply (NIC) a description of 
pollution prevention and waste minimization activities proposed to 
reduce the amount and/or toxicity of hazardous waste entering the 
facility's combustion feedstream(s). This approach will harness the 
power of public involvement, through the NIC review and public meeting 
process, to encourage facilities to consider pollution prevention 
measures in their MACT compliance plan. The requirements for the NIC 
process are described in today's preamble.
    It is important to note here that companies should consider 
coordinating the development of a NIC process with any subsequent 
requests for a one year extension. For example, it would seem logical 
that pollution prevention measures identified in the NIC (prepared in 
the first year of the compliance period), would also appear in a 
subsequent request for a one year extension (prepared in the second 
year of the compliance period). In contrast, requests for a one year 
extension from companies that did not consider pollution prevention in 
their NIC might be looked at with more caution.
    As a third pollution prevention incentive, EPA is promulgating 
today's rule several months in advance of promulgating MACT standards 
to provide companies with several valuable months of advance planning 
time to identify waste minimization measures can be used to meet, or 
assist in meeting MACT standards. The timing of today's rule, 
therefore, serves as a valuable pollution prevention incentive.
    Taken together, the tailored incentives contained in today's rule 
provide strong encouragement for regulated companies to pursue cost 
effective pollution prevention and waste minimization measures in their 
individual approaches to meeting MACT standards.
    As a final note, a substantial amount of free technical 
information, assistance and guidance on pollution prevention and waste 
minimization is available from the Federal government and States, and 
from a variety of private sources. EPA's ``Pollution Prevention 
Facility Planning Guide'' (May, 1992; NTIS  PB92-
213206) describes the series of analytical steps that are often used by 
companies to identify waste minimization measures. Additional EPA 
references include: ``Waste Minimization Opportunity Assessment Manual 
(EPA 625/7-88/003, July 1988), Interim Final ``Guidance to Hazardous 
Waste Generators on the Elements of a Waste Minimization Program In 
Place,''(May 1993), ``An Introduction to Environmental Accounting As a 
Business Management Tool'' (EPA 742-R-95-001, June 1995), the ``P2/
Finance User's Manual: Pollution Prevention Financial Analysis and Cost 
Evaluation System for Lotus 1-2-3 (EPA 742-B-94-003, January 1994), and 
Enviro$ense, an electronic library of information on pollution 
prevention, technical assistance, and environmental compliance. Many of 
these and other documents can be accessed by contacting the RCRA 
Hotline toll-free at 1-800-424-9346. Enviro$ense can be accessed by 
contacting a system operator at (703) 908-2007, or on the Internet at 
http://wastenot.inel.gov/enviro-sense. Information on State waste 
minimization programs can be obtained through Enviro$ense, directly 
from the State pollution prevention program offices, or from the 
National Pollution Prevention Roundtable at E-mail address 
[email protected], by phone at 202-466-7272 in Washington, D.C.

VII. State Authority

A. RCRA State Authorization

    Under RCRA section 3006, EPA may authorize a State to administer 
and enforce the RCRA hazardous waste program. See 40 CFR part 271. 
After receiving authorization, the State administers the program in 
lieu of the Federal government, although EPA retains enforcement 
authority under RCRA sections 3008, 3013, and 7003. Because the new 
Federal requirements in today's final rule are promulgated under non-
HSWA authority, they are not Federally enforceable in an authorized 
State until the State has adopted equivalent (or more stringent) 
standards under its authorized laws and regulations, and those changes 
have

[[Page 33818]]

been approved by EPA. See RCRA section 3006, 42 U.S.C. 6926. Thus, upon 
their effective date, these requirements will be applicable only in 
those States that do not have authorization.
    It should be noted that authorized States are only required to 
modify their programs when EPA promulgates Federal standards that are 
more stringent or broader in scope than existing Federal standards. 
RCRA section 3009 allows States to impose standards that are more 
stringent than those in the Federal program (see also 40 CFR 
271.1(i)(1)). Thus, for those Federal changes that are less stringent, 
or reduce the scope of the Federal program, States are not required to 
modify their programs. The revisions to the Federal RCRA Subtitle C 
program that are promulgated today are considered to be less stringent 
than the existing Federal regulations. However, EPA believes that their 
adoption by States will greatly enhance the implementation of the 
upcoming MACT standards, and ease the permitting burden on the States. 
Thus, EPA strongly urges States to adopt all aspects of today's final 
rule as quickly as their legislative and regulatory processes will 
allow.

B. Program Delegation Under the Clean Air Act

    Today's final rule adds notification procedures for hazardous waste 
combustors under Title III. Specifically, today's rule requires sources 
to provide to the permitting agency a Notification of Intent to Comply 
(NIC) within a year following promulgation of new emissions standards 
in 40 CFR part 63 Subpart EEE, and a Progress Report within two years. 
As part of the process of developing a NIC, the source is also required 
to conduct additional public involvement activities, in particular an 
informal meeting with the community. Section 112(l) of the Clean Air 
Act allows EPA to approve State rules or programs for the 
implementation and enforcement of emission standards and other 
requirements for air pollutants subject to section 112. Under this 
authority, EPA has developed delegation procedures and requirements 
located at 40 CFR Part 63, Subpart E, for NESHAPS under Title III of 
the CAA (See 57 FR 32250, July 21, 1992).
    Submission of rules or programs by States under 40 CFR Part 63 is 
voluntary. Once a State receives approval from EPA for a standard under 
section 112(l) of the CAA, the State is delegated the authority to 
implement and enforce the approved State rules or programs in lieu of 
the otherwise applicable federal rules (the approved State standard 
would be federally enforceable). States may also apply for a partial 
Title III program, such that the State is not required to adopt all 
rules promulgated in 40 CFR Part 63. EPA will administer any rules 
federally promulgated under section 112 of the CAA that have not been 
delegated to the State.

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866

    Under Executive Order No. 12866, (58 FR 51735 (October 4, 1993)) 
the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to formal review by the Office of 
Management and Budget (OMB) and to the requirements of the Executive 
Order, which include assessing the costs and benefits anticipated as a 
result of the proposed regulatory action. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    EPA has determined that today's final rule is not ``significant'' 
under points one through three above. The Agency is sensitive, however, 
to interpretations that may define today's action as ``significant'' 
under point number four above, due to the nature of the policy issues 
raised and recognizes today's action as significant. The Agency has 
examined economic impacts potentially associated with the three key 
elements of today's action: the comparable fuel exclusion, waste 
minimization incentives, and streamlined RCRA permitting modifications. 
The comparable fuels exclusion in today's final rule will result in 
national annual cost savings to generators ranging from approximately 
$11 to $36 million, net of the cost of gaining the exclusion. Blending 
and combustion facilities, however, are estimated to experience reduced 
receipts for managing hazardous wastes, coupled with the costs of 
replacing these materials with more expensive substitutes. The combined 
impact is estimated to cost these firms an additional $3 to $13 million 
per year. Today's action also allows sources to apply for up to a one 
year extension of the three-year compliance period for implementation 
of waste minimization procedures. Overall, this extension is likely to 
provide a greater incentive for facilities with on-site combustion 
units to implement waste minimization options rather than to continue 
burning hazardous wastes and implement appropriate control 
technologies. The degree to which this incentive will change the waste 
burning behavior of combustion facilities is undetermined. EPA is also 
implementing streamlined procedures for modifying RCRA permits at 
hazardous waste combustion units. Only those states that regulate 
combustion units and choose to adopt the streamlined modification 
system would have to undergo rulemaking and authorization for the 
streamlined permitting process. The Agency estimates that approximately 
half of the states with MACT-regulated combustion units will not alter 
their current permitting system. Based on the average cost to a state 
for rulemaking and authorization, the Agency estimates aggregate 
national costs for those states that would modify their systems at a 
one-time cost of no more than $685,000. In addition to rulemaking and 
authorization costs, the aggregate national cost for permit review may 
be as high as $3.8 million. For more information on the cost impacts of 
today's final rule, see the Economic Analysis Report for the Combustion 
MACT Fast-Track Rulemaking, March 1998, which is part of the docket for 
this rule.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 requires Federal 
agencies to consider ``small entities'' throughout the regulatory 
process. Section 603 of the RFA requires an initial screening analysis 
to be performed to determine whether small entities will be adversely 
affected by the regulation. If affected small entities are identified, 
regulatory alternatives must be considered to mitigate the potential 
impacts. Small entities as described in the Act are only those 
``businesses, organizations and governmental jurisdictions subject to 
regulation.''
    EPA has determined that today's rule will primarily affect large 
scale facilities. Furthermore, since today's final notice generally 
provides savings

[[Page 33819]]

over current requirements, EPA believes that any small entities engaged 
in activity covered by the rule will not be adversely affected. 
Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C., I 
hereby certify that this rule will not have a significant economic 
impact on a substantial number of small entities. A more detailed 
discussion of small entity impacts is presented in the Economic 
Analysis Report.

C. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0073.
    The incremental annual public reporting and record keeping burden 
for this collection of information is estimated to be 55,196 hours at a 
cost of about $5,164,000. For those generators applying for the 
comparable/syngas fuel exclusion, the average annual respondent 
reporting burden is estimated to be 0.5 hours per facility and the 
average annual record keeping burden is estimated to be 47.3 hours per 
facility. For burners of comparable/syngas fuels, there is no reporting 
burden and the annual record keeping burden is 8.0 hours per facility. 
For HWCs complying with the notification of intent to comply 
regulations, the average annual reporting burden is 300.5 hours per 
facility and the average annual record keeping burden is 9.0 hours per 
facility.
    This estimate includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purpose of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to respond to 
collection of information; search existing data sources; complete and 
review the collection of information; and transmit or otherwise 
disclose the information.
    During its review of the proposed rule ICR, OMB offered comments 
concerning the burdens associated with the proposed testing 
requirements and records retention for the comparable fuel/syngas 
exclusion. In the final rule, EPA is allowing generators to use process 
knowledge and requiring testing for only those constituents the 
generator determines should be in the waste. The frequency of the 
testing will be specified by the generator in the waste analysis plan. 
With regards to records retention, the final rule will require the 
retention of records of all comparable and syngas fuel-related 
information for three years. EPA also received several public comments 
on the final rule ICR which was noticed on January 28, 1998 at 63 FR 
4249. EPA has responded to those comments in the supporting statement 
for the ICR.
    EPA estimates that the addition of the comparable fuels exclusion 
will cause the BIF universe to decrease by 25 facilities. Although the 
burden reduction is not reflected in the ICR, EPA expects reporting and 
recordkeeping requirements for BIFs to decrease by 70,743 hours (18 
percent) and $7,493,221 (15 percent) annually. EPA will revise the ICR 
to reflect this burden reduction when it finalizes the emissions 
standards for hazardous waste combustors.
    EPA is also amending the table of currently approved ICR control 
numbers issued by OMB for various regulations. This amendment updates 
the table to display accurately this final rule. This display of the 
OMB control numbers and their subsequent codification in the Code of 
Federal Regulations (CFR) at 40 CFR Part 9 satisfies the requirements 
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's 
implementing regulations at 5 CFR Part 1320.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are displayed in 40 CFR Part 9.
    Send comments regarding the burden estimates or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, OPPE Regulatory Information Division; U.S. 
Environmental Protection Agency (2136); 401 M Street, S.W.; Washington, 
DC 20460; and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence.

D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal, and local 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When a written statement is needed for an EPA rule, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. EPA has estimated that the total potential cost 
to State, local, and Tribal governments would not exceed approximately 
$4.5 million over ten years. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

IX. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2), therefore, the effective date of the rule is not 
affected.

[[Page 33820]]

X. Environmental Justice

A. Applicability of Executive Order 12898

    EPA is committed to address environmental justice concerns and is 
assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities.

B. Potential Effects

    Today's final rule is not expected to cause any disproportionate 
impacts to minority or low income communities versus affluent or non-
minority communities.

XI. Children's Health

    Executive Order 13045: The Executive Order 13045 applies to any 
rule that EPA determines (1) ``economically significant'' as defined 
under Executive Order 12866, and (2) the environmental health or safety 
risk addressed by the rule has a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children; and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency
    This final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and safety Risks (62 FR 
19885, April 23, 1997), because: (a) ``This is not an economically 
significant regulatory action as defined by E.O. 12866.''

XII. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using such standards.
    EPA is not finalizing any new test methods or other technical 
standards as part of today's final rule. Thus, the Agency has no need 
to consider the use of voluntary consensus standards in developing this 
final rule.

List of Subjects

40 CFR Part 63

    Administrative practice and procedure, Air pollution control, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and record keeping 
requirements.

40 CFR Part 270

    Administrative practice and procedure, Confidential business 
information, Emergency responses, Hazardous materials transportation, 
Hazardous waste, Permit application requirements, Permit modifications, 
Reporting and recordkeeping requirements.

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

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

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

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

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

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

Subpart EEE--National Emission Standards for Hazardous Air 
Pollutants From Hazardous Waste Combustors

Sec.
63.1200-63.1210  [Reserved]
63.1211  Notification requirements.
63.1212  Progress reports.
63.1213  Certification.
63.1214  Extension of the compliance date.
63.1215  Sources that become affected sources after the effective 
date of this subpart.
63.1216  Extension of compliance date to install pollution 
prevention or waste minimization controls.


Sec. 63.1211  Notification requirements.

    (a) Notification of Intent To Comply (NIC). (1) All hazardous waste 
combustors subject to this subpart shall prepare a Notification of 
Intent to Comply that includes the following information:
    (i) General information:
    (A) The name and address of the owner/operator and the source;
    (B) Whether the source is a major or an area source;
    (C) Waste minimization and emission control technique(s) being 
considered;
    (D) Emission monitoring technique(s) being considered;
    (E) Waste minimization and emission control technique(s) 
effectiveness;
    (F) A description of the evaluation criteria used or to be used to 
select waste minimization and/or emission control technique(s); and
    (G) A statement that the source intends to comply with this subpart 
by controlling emissions from the combustion of hazardous waste 
pursuant to the standards of this subpart.
    (ii) Information on key activities and estimated dates for these 
activities that will bring the source into compliance with emission 
control requirements of this subpart. The submission of key activities 
and dates is not intended to be static and may be revised by the source 
during the period the NIC is in effect. Revisions shall be submitted to 
the regulatory authority and be made available to the public. The 
following are the key activities and dates that shall be included:
    (A) The dates for beginning and completion of engineering studies 
to evaluate emission control systems or process changes for emissions;
    (B) The date by which contracts for emission control systems or 
process changes for emission control will be awarded, or the date by 
which orders will be issued for the purchase of component parts to 
accomplish emission control or process changes;
    (C) The date by which construction applications will be submitted;
    (D) The date by which on-site construction, installation of 
emission control equipment, or process change is to be initiated;
    (E) The date by which on-site construction, installation of 
emission control equipment, or process change is to be completed; and
    (F) The date by which final compliance is to be achieved. The 
individual dates and milestones listed in paragraphs (a)(1)(ii)(A) 
through (F) of this section as part of the NIC are not requirements and 
therefore are not enforceable deadlines; the Agency is

[[Page 33821]]

requiring paragraphs (a)(1)(ii)(A) through (F) of this section as part 
of the NIC only to inform the public of the source's intentions towards 
coming into compliance.
    (iii) A summary of the public meeting required under paragraph (b) 
of this section.
    (iv) For any source that does not intend to comply, but will not 
stop burning hazardous waste as required under paragraph (c) of this 
section, a certification that the designated source will:
    (A) Stop burning hazardous waste on or before the compliance date 
of the emission standards of this Subpart; and
    (B) Be necessary to combust the hazardous waste from another on-
site source, during the year prior to the compliance date of the 
emission standards of this Subpart, because that other source is:
    (1) Installing equipment to come into compliance with the emission 
standards of this Subpart; or
    (2) Installing source reduction modifications to eliminate the need 
for further combustion of wastes.
    (2) A draft of the NIC must be made available for public review no 
later than 30 days prior to the public meeting required under paragraph 
(b)(1) of this section.
    (3) The final NIC must be submitted to the permitting agency no 
later than one year following the effective date of the emission 
standards of this subpart.
    (b) NIC Public Meeting and Notice. (1) Prior to the submission of 
the NIC to the permitting agency, and no later than 10 months after the 
effective date of the emission standards of this subpart, the source 
shall hold at least one informal meeting with the public to discuss 
anticipated activities described in the draft NIC for achieving 
compliance with the MACT standards promulgated in this subpart. The 
source must post a sign-in sheet or otherwise provide a voluntary 
opportunity for attendees to provide their names and addresses.
    (2) The source shall submit a summary of the meeting, along with 
the list of attendees and their addresses developed under paragraph 
(b)(1) of this section, and copies of any written comments or materials 
submitted at the meeting, to the permitting agency as part of the final 
NIC, in accordance with paragraph (a)(1)(iii) of this section.
    (3) The source must provide public notice of the NIC meeting at 
least 30 days prior to the meeting. The source shall provide public 
notice in all of the following forms:
    (i) Newspaper advertisement. The source shall publish a notice in a 
newspaper of general circulation in the county or equivalent 
jurisdiction of the source. In addition, the source shall publish the 
notice in newspapers of general circulation in adjacent counties or 
equivalent jurisdiction where such publication would be necessary to 
inform the affected public. The notice must be published as a display 
advertisement.
    (ii) Visible and accessible sign. The source shall post a notice on 
a clearly marked sign at or near the source. If the source places the 
sign on the source's property, then the sign must be large enough to be 
readable from the nearest spot where the public would pass by the 
source.
    (iii) Broadcast media announcement. The source shall broadcast a 
notice at least once on at least one local radio station or television 
station.
    (iv) Notice to the facility mailing list. The source shall provide 
a copy of the notice to the facility mailing list in accordance with 
Sec. 124.10(c)(1)(ix) of this chapter.
    (4) The notices required under paragraph (b)(3) of this section 
must include:
    (i) The date, time, and location of the meeting;
    (ii) A brief description of the purpose of the meeting;
    (iii) A brief description of the source and proposed operations, 
including the address or a map (e.g., a sketched or copied street map) 
of the source location;
    (iv) A statement encouraging people to contact the source at least 
72 hours before the meeting if they need special access to participate 
in the meeting;
    (v) A statement describing how the draft NIC can be obtained; and
    (vi) The name, address, and telephone number of a contact person 
for the NIC.
    (c) Sources that do not intend to comply. Those sources subject to 
the requirements of this subpart, except those sources meeting the 
requirements of paragraph (a)(1)(iv) of this section:
    (1) Who signify in their NIC an intent not to comply with the 
requirements of this Subpart, must stop burning hazardous waste on or 
before two years after the effective date of the emmission standards of 
this subpart;
    (2) Who do not intend to comply with this subpart must include in 
their NIC a schedule that includes key dates for the steps to be taken 
to stop burning hazardous waste. Key dates include the date for 
submittal of RCRA closure documents.


Sec. 63.1212  Progress reports.

    (a) General. Not later than two years after the effective date of 
the emission standards of this subpart, all sources subject to this 
Subpart except those hazardous waste combustion sources that comply 
with paragraph (b)(2) of this section shall:
    (1) Complete engineering design for any physical modifications to 
the source needed to comply with the emissions standards of this 
subpart;
    (2) Submit applicable construction applications to the applicable 
regulatory authority; and
    (3) Enter into a binding contractual commitment to purchase, 
fabricate, and install any equipment, devices, and ancillary structures 
needed to comply with the emission requirements of this subpart.
    (b) Demonstration (1) Hazardous waste combustion sources shall 
submit to the regulatory authority a progress report on or before two 
years after the effective date of the emission standards of this 
subpart which contains information demonstrating that the source has 
met the requirements of paragraph (a) of this section. This information 
will be used by the regulatory authority to determine if the source has 
made adequate progress towards compliance with the applicable emission 
standards.
    (2) Sources that intend to come into compliance with the emissions 
standards of this subpart, but can do so without undertaking any of the 
activities described in paragraph (a) of this section, shall submit 
documentation either:
    (i) Demonstrating that the source, at the time of the progress 
report, is in compliance with the emissions requirements; or
    (ii) Specifying the steps that will be taken to bring the source 
into compliance, without undertaking any of the activities listed in 
paragraphs (a)(1) through (3) of this section.
    (3) Sources that fail to comply with paragraph (a) above or 
paragraph (b)(2) of this section shall stop burning hazardous waste on 
or before the date two years after the effective date of the emission 
standards of this subpart.
    (c) Schedule. (1) The progress report shall contain a detailed 
schedule that lists key dates for all projects that will bring the 
source into compliance with the requirements of this subpart (i.e., key 
dates for the activities required under paragraphs (b)(1)(i) through 
(iii) of this section). Dates shall cover the time frame from the 
progress report through the compliance date of the emission standards 
of this subpart.
    (2) The schedule shall contain the following dates:
    (i) Bid and award dates for construction contracts and equipment 
supply contractors;

[[Page 33822]]

    (ii) Milestones such as ground breaking, completion of drawings and 
specifications, equipment deliveries, intermediate construction 
completions, and testing;
    (iii) The dates on which applications were submitted for or 
obtained operating and construction permits or licenses;
    (iv) The dates by which approvals of any permits or licenses are 
anticipated; and
    (v) The projected date by which the source will be in compliance 
with the requirements of this subpart.
    (d) Notice of intent to comply. The progress report shall contain a 
statement that the source intends or does not intend to come into 
compliance with the applicable emission control requirements of this 
subpart.
    (e) Sources that do not intend to comply. (1) Sources that: 
indicated in their NIC their intent not to comply with this subpart and 
stop burning hazardous waste prior to the submittal of a progress 
report; or meet the requirements of paragraph (a)(1)(iv) of this 
section are not required to include the requirements of paragraphs (b) 
and (c) of this section to their progress report, but shall include in 
their progress report: the date on which the source stopped burning 
hazardous waste; and the date(s) on which RCRA closure documents were 
submitted.
    (2) Those sources that signify in the progress report, submitted 
not later than two years after the effective date of the emission 
standards of this subpart, their intention not to comply with the 
requirements of this subpart must stop burning hazardous waste on or 
before the date two years after the effective date of the emission 
standards of this subpart.


Sec. 63.1213  Certification.

    (a) The Notice of Intent to Comply (NIC) and Progress Report 
submitted shall contain the following certification signed and dated by 
an authorized representative of the source:

    I certify under penalty of law that I have personally examined 
and am familiar with the information submitted in this document and 
all attachments and that, based on my inquiry of those individuals 
immediately responsible for obtaining the information, I believe 
that the information is true, accurate, and complete. I am aware 
that there are significant penalties for submitting false 
information, including the possibility of fine and imprisonment.

    (b) An authorized representative should be a responsible corporate 
officer (for a corporation), a general partner (for a partnership), the 
proprietor (of a sole proprietorship), or a principal executive officer 
or ranking elected official (for a municipality, State, Federal, or 
other public agency).


Sec. 63.1214  Extension of the compliance date.

    (a) A source that intends to come into compliance with the 
requirements of this subpart, but due to the installation of controls 
will not meet the compliance date, may request an extension of the 
compliance date for one year.
    (b) Sources subject to this subpart shall follow the requirements 
of Sec. 63.6(i)(4) or Sec. 63.1216 to request an extension of the 
compliance date.


Sec. 63.1215  Sources that become affected sources after the effective 
date of the emission standards of this subpart.

    (a) A source that begins to burn hazardous waste after the 
effective date of the emission standards of this subpart, therefore 
becoming an affected source, but prior to 9 months after the effective 
date of the emission standards of this subpart shall comply with all 
the requirements of Secs. 63.1211 through 63.1213 and associated time 
frames for public meetings and document submittals.
    (b) A source that intends to begin burning hazardous waste more 
than 9 months after the effective date of the emission standards of 
this subpart, therefore becoming an affected source, shall meet all the 
requirements of Secs. 63.1211 through 63.1213 prior to burning 
hazardous waste.
    (1) Such sources shall make a draft NIC available, notice their 
public meeting, hold their public meeting, and submit a final NIC prior 
to burning hazardous waste.
    (2) Such sources also shall submit their progress report at the 
time of the submittal of their final NIC.


Sec. 63.1216  Extension of the compliance date to install pollution 
prevention or waste minimization controls.

    (a) Applicability. The owner or operator of any source subject to 
the requirements of this subpart may request from the Administrator or 
State with an approved Title V program an extension of one year to 
comply with the emission standards in this subpart, if the owner or 
operator can reasonably document that the installation of pollution 
prevention or waste minimization measures will significantly reduce the 
amount and/or toxicity of hazardous wastes entering the feedstream(s) 
of the combustion device(s) subject to this subpart, and that the 
facility could not otherwise install the necessary control measures and 
comply within three years after the effective date of the emission 
standards of this subpart.
    (b) Requirements for requesting an extension. Requests for a one-
year extension must be in writing, must be received not later than 12 
months before the affected source's compliance date, and must contain 
the following information:
    (1) A description of pollution prevention or waste minimization 
controls that, when installed, will significantly reduce the amount 
and/or toxicity of hazardous wastes entering the feedstream(s) of the 
combustion device(s) subject to this subpart. Pollution prevention or 
waste minimization measures may include: equipment or technology 
modifications, reformulation or redesign of products, substitution of 
raw materials, improvements in work practices, maintenance, training, 
inventory control, or recycling practices conducted as defined in 40 
CFR 261.1(c);
    (2) A description of other pollution controls to be installed that 
are necessary to comply with the emission standards;
    (3) A reduction goal or estimate of the annual reductions in 
quantity and/or toxicity of hazardous waste(s) entering combustion 
feedstream(s) that will occur by installing the proposed pollution 
prevention or waste minimization measures;
    (4) A comparison of reductions in the amounts and/or toxicity of 
hazardous wastes combusted after installation of pollution prevention 
or waste minimization measures to the amounts and/or toxicity of 
hazardous wastes combusted prior to the installation of these measures; 
and, if the difference is less than a fifteen percent reduction, a 
comparison to pollution prevention and waste minimization reductions 
recorded during the previous five years;
    (5) Reasonable documentation that installation of the pollution 
prevention or waste minimization changes will not result in a net 
increase (except for documented increases in production) of hazardous 
constituents released to the environment through other emissions, 
wastes or effluents;
    (6) Reasonable documentation that the design and installation of 
waste minimization and other measures that are necessary for compliance 
cannot otherwise be installed within the three year compliance period, 
and
    (7) The information required in 40 CFR 63.6(i)(6)(i)(B) through 
(D).
    (8) Documentation prepared under an existing State required 
pollution prevention program that contains the information may be 
enclosed with a

[[Page 33823]]

request for extension in lieu of paragraphs (b)(1) through (7) of this 
section.
    (c) Approval of request for extension of compliance. Based on the 
information provided in any request made under paragraph (a) of this 
section, the Administrator or State with an approved Title V program 
may grant an extension of compliance with the emission standards 
identified in paragraph (a) of this section. The extension will be in 
writing in accordance with Secs. 63.6(i)(10)(i) through 
63.6(i)(10)(v)(A). EPA and States must consider the information 
required in paragraph (a) of this section in approving or denying 
requests for one-year compliance extensions.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

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

    2. Section 261.4 is amended by adding paragraph (a)(16) to read as 
follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (16) Comparable fuels or comparable syngas fuels (i.e., comparable/
syngas fuels) that meet the requirements of Sec. 261.38.
* * * * *
    3. Section 261.38 is added to read as follows:


Sec. 261.38  Comparable/Syngas Fuel Exclusion.

    Wastes that meet the following comparable/syngas fuel requirements 
are not solid wastes:
    (a) Comparable fuel specifications.--(1) Physical specifications.--
(i) Heating value. The heating value must exceed 5,000 BTU/lbs. (11,500 
J/g).
    (ii) Viscosity. The viscosity must not exceed: 50 cs, as-fired.
    (2) Constituent specifications. For compounds listed in table 1 to 
this section the specification levels and, where non-detect is the 
specification, minimum required detection limits are: (see Table 1).
    (b) Synthesis gas fuel specification.--Synthesis gas fuel (i.e., 
syngas fuel) that is generated from hazardous waste must:
    (1) Have a minimum Btu value of 100 Btu/Scf;
    (2) Contain less than 1 ppmv of total halogen;
    (3) Contain less than 300 ppmv of total nitrogen other than 
diatomic nitrogen (N2);
    (4) Contain less than 200 ppmv of hydrogen sulfide; and
    (5) Contain less than 1 ppmv of each hazardous constituent in the 
target list of Appendix VIII constituents of this part.

         Table 1 to Sec.  261.38: Detection and Detection Limit Values for Comparable Fuel Specification        
----------------------------------------------------------------------------------------------------------------
                                                                                                     Minimum    
                                                                Concentration limit  (mg/kg at       required   
                Chemical name                      CAS No.              10,000 BTU/lb)           detection limit
                                                                                                     (mg/kg)    
----------------------------------------------------------------------------------------------------------------
Total Nitrogen as N..........................              na  4900............................  ...............
Total Halogens as Cl.........................              na  540.............................  ...............
Total Organic Halogens as Cl.................              na  25 or individual halogenated      ...............
                                                                organics listed below.                          
Polychlorinated biphenyls, total [Arocolors,        1336-36-3  Non-detect......................              1.4
 total] a.                                                                                                      
Cyanide, total...............................         57-12-5  Non-detect......................              1.0
Metals:                                                                                                         
    Antimony, total..........................       7440-36-0  7.9.............................  ...............
    Arsenic, total...........................       7440-38-2  0.23............................  ...............
    Barium, total............................       7440-39-3  23..............................  ...............
    Beryllium, total.........................       7440-41-7  1.2.............................  ...............
    Cadmium, total...........................       7440-43-9  1.2.............................  ...............
    Chromium, total..........................       7440-47-3  2.3.............................  ...............
    Cobalt...................................       7440-48-4  4.6.............................  ...............
    Lead, total..............................       7439-92-1  31..............................  ...............
    Manganese................................       7439-96-5  1.2.............................  ...............
    Mercury, total...........................       7439-97-6  0.24............................  ...............
    Nickel, total............................       7440-02-0  58..............................  ...............
    Selenium, total..........................       7782-49-2  0.15............................  ...............
    Silver, total............................       7440-22-4  2.3.............................  ...............
    Thallium, total..........................       7440-28-0  23..............................  ...............
Hydrocarbons:                                                                                                   
    Benzo[a]anthracene.......................         56-55-3  1100............................  ...............
    Benzene..................................         71-43-2  4100............................  ...............
    Benzo[b]fluoranthene.....................        205-99-2  960.............................  ...............
    Benzo[k]fluoranthene.....................        207-08-9  1900............................  ...............
    Benzo[a]pyrene...........................         50-32-8  960.............................  ...............
    Chrysene.................................        218-01-9  1400............................  ...............
    Dibenzo[a,h]anthracene...................         53-70-3  960.............................  ...............
    7,12-Dimethylbenz[a]anthracene...........         57-97-6  1900............................  ...............
    Fluoranthene.............................        206-44-0  1900............................  ...............
    Indeno(1,2,3-cd)pyrene...................        193-39-5  960.............................  ...............
    3-Methylcholanthrene.....................         56-49-5  1900............................  ...............
    Naphthalene..............................         91-20-3  3200............................  ...............
    Toluene..................................        108-88-3  36000...........................  ...............
Oxygetes:                                                                                                       

[[Page 33824]]

                                                                                                                
    Acetophenone.............................         98-86-2  1900............................  ...............
    Acrolein.................................        107-02-8  37..............................  ...............
    Allyl alcohol............................        107-18-6  30..............................  ...............
    Bis(2-ethylhexyl)phthalate [Di-2-                117-81-7  1900............................  ...............
     ethylhexyl phthalate].                                                                                     
    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                 110-80-5  100.............................  ...............
     monoethyl ether].                                                                                          
    Isobutyl alcohol.........................         78-83-1  37..............................  ...............
    Isosafrole...............................        120-58-1  1900............................  ...............
    Methyl ethyl ketone [2-Butanone].........         78-93-3  37..............................                 
    Methyl methacrylate......................         80-62-6  37..............................                 
    1,4-Naphthoquinone.......................        130-15-4  1900............................                 
    Phenol...................................        108-95-2  1900............................                 
    Propargyl alcohol [2-Propyn-l-ol]........        107-19-7  30..............................                 
    Safrole..................................         94-59-7  1900............................                 
Sulfoted Organics:                                                                                              
    Carbon disulfide.........................         75-15-0  Non-detect......................             37  
    Disulfoton...............................        298-04-4  Non-detect......................           1900  
    Ethyl methanesulfonate...................         62-50-0  Non-detect......................           1900  
    Methyl methanesulfonate..................         66-27-3  Non-detect......................           1900  
    Phorate..................................        298-02-2  Non-detect......................           1900  
    1,3-Propane sultone......................       1120-71-4  Non-detect......................            100  
    Tetraethyldithiopyrophosphate [Sulfotepp]       3689-24-5  Non-detect......................           1900  
    Thiophenol [Benzenethiol]................        108-98-5  Non-detect......................             30  
    O,O,O-Triethyl phosphorothioate..........        126-68-1  Non-detect......................           1900  
Nitrogenated Organics:                                                                                          
    Acetonitrile [Methyl cyanide]............         75-05-8  Non-detect......................             37  
    2-Acetylaminofluorene [2-AAF]............         53-96-3  Non-detect......................           1900  
    Acrylonitrile............................        107-13-1  Non-detect......................             37  
    4-Aminobiphenyl..........................         92-67-1  Non-detect......................           1900  
    4-Aminopyridine..........................        504-24-5  Non-detect......................            100  
    Aniline..................................         62-53-3  Non-detect......................           1900  
    Benzidine................................         92-87-5  Non-detect......................           1900  
    Dibenz[a,j]acridine......................        224-42-0  Non-detect......................           1900  
    O,O-Diethyl O-pyrazinyl phophoro-thioate         297-97-2  Non-detect......................           1900  
     [Thionazin].                                                                                               
    Dimethoate...............................         60-51-5  Non-detect......................           1900  
    p-(Dimethylamino)azobenzene [4-                   60-11-7  Non-detect......................           1900  
     Dimethylaminoazobenzene].                                                                                  
    3,3'-Dimethylbenzidine...................        119-93-7  Non-detect......................           1900  
    ,-                             122-09-8  Non-detect......................           1900  
     Dimethylphenethylamine.                                                                                    
    3,3'-Dimethoxybenzidine..................        119-90-4  Non-detect......................            100  
    1,3-Dinitrobenzene [m-Dinitrobenzene]....         99-65-0  Non-detect......................           1900  
    4,6-Dinitro-o-cresol.....................        534-52-1  Non-detect......................           1900  
    2,4-Dinitrophenol........................         51-28-5  Non-detect......................           1900  
    2,4-Dinitrotoluene.......................        121-14-2  Non-detect......................           1900  
    2,6-Dinitrotoluene.......................        606-20-2  Non-detect......................           1900  
    Dinoseb [2-sec-Butyl-4,6-dinitrophenol]..         88-85-7  Non-detect......................           1900  
    Diphenylamine............................        122-39-4  Non-detect......................           1900  
    Ethyl carbamate [Urethane]...............         51-79-6  Non-detect......................            100  
    Ethylenethiourea (2-Imidazolidinethione).         96-45-7  Non-detect......................            110  
    Famphur..................................         52-85-7  Non-detect......................           1900  
    Methacrylonitrile........................        126-98-7  Non-detect......................             37  
    Methapyrilene............................         91-80-5  Non-detect......................           1900  
    Methomyl.................................      16752-77-5  Non-detect......................             57  
    2-Methyllactonitrile [Acetone                     75-86-5  Non-detect......................            100  
     cyanohydrin].                                                                                              
    Methyl parathion.........................        298-00-0  Non-detect......................           1900  
    MNNG (N-Metyl-N-nitroso-N'-                       70-25-7  Non-detect......................            110  
     nitroguanidine).                                                                                           
    1-Naphthylamine, [-                     134-32-7  Non-detect......................           1900  
     Naphthylamine].                                                                                            
    2-Naphthylamine, [-                      91-59-8  Non-detect......................           1900  
     Naphthylamine].                                                                                            
    Nicotine.................................         54-11-5  Non-detect......................            100  

[[Page 33825]]

                                                                                                                
    4-Nitroaniline, [p-Nitroaniline].........        100-01-6  Non-detect......................           1900  
    Nitrobenzene.............................         98-95-3  Non-detect......................           1900  
    p-Nitrophenol, [p-Nitrophenol]...........        100-02-7  Non-detect......................           1900  
    5-Nitro-o-toluidine......................         99-55-8  Non-detect......................           1900  
    N-Nitrosodi-n-butylamine.................        924-16-3  Non-detect......................           1900  
    N-Nitrosodiethylamine....................         55-18-5  Non-detect......................           1900  
    N-Nitrosodiphenylamine,                           86-30-6  Non-detect......................           1900  
     [Diphenylnitrosamine].                                                                                     
    N-Nitroso-N-methylethylamine.............      10595-95-6  Non-detect......................           1900  
    N-Nitrosomorpholine......................         59-89-2  Non-detect......................           1900  
    N-Nitrosopiperidine......................        100-75-4  Non-detect......................           1900  
    N-Nitrosopyrrolidine.....................        930-55-2  Non-detect......................           1900  
    2-Nitropropane...........................         79-46-9  Non-detect......................             30  
    Parathion................................         56-38-2  Non-detect......................           1900  
    Phenacetin...............................         62-44-2  Non-detect......................           1900  
    1,4-Phenylene diamine, [p-                       106-50-3  Non-detect......................           1900  
     Phenylenediamine].                                                                                         
    N-Phenylthiourea.........................        103-85-5  Non-detect......................             57  
    2-Picoline [alpha-Picoline]..............        109-06-8  Non-detect......................           1900  
    Propythioracil [6-Propyl-2-thiouracil]...         51-52-5  Non-detect......................            100  
    Pyridine.................................        110-86-1  Non-detect......................           1900  
    Strychnine...............................         57-24-9  Non-detect......................            100  
    Thioacetamide............................         62-55-5  Non-detect......................             57  
    Thiofanox................................      39196-18-4  Non-detect......................            100  
    Thiourea.................................         62-56-6  Non-detect......................             57  
    Toluene-2,4-diamine [2,4-Diaminotoluene].         95-80-7  Non-detect......................             57  
    Toluene-2,6-diamine [2,6-Diaminotoluene].        823-40-5  Non-detect......................             57  
    o-Toluidine..............................         95-53-4  Non-detect......................           2200  
    p-Toluidine..............................        106-49-0  Non-detect......................            100  
    1,3,5-Trinitrobenzne, [sym-                       99-35-4  Non-detect......................           2000  
     Trinitobenzene].                                                                                           
Halogenated Organics b:                                                                                         
    Allyl chloride...........................        107-05-1  Non-detect......................             37  
    Aramite..................................        104-57-8  Non-detect......................           1900  
    Benzal chloride [Dichloromethyl benzene].         98-87-3  Non-detect......................            100  
    Benzyl chloride..........................       100-44-77  Non-detect......................            100  
    Bis(2-chloroethyl)ether [Dichloroethyl           111-44-4  Non-detect......................           1900  
     ether].                                                                                                    
    Bromoform [Tribromomethane]..............         75-25-2  Non-detect......................             37  
    Bromomethane [Methyl bromide]............         74-83-9  Non-detect......................             37  
    4-Bromophenyl phenyl ether [p-Bromo              101-55-3  Non-detect......................           1900  
     diphenyl ether].                                                                                           
    Carbon tetrachloride.....................         56-23-5  Non-detect......................             37  
    Chlordane................................         57-74-9  Non-detect......................             14  
    p-Chloroaniline..........................        106-47-8  Non-detect......................           1900  
    Chlorobenzene............................        108-90-7  Non-detect......................             37  
    Chlorobenzilate..........................        510-15-6  Non-detect......................           1900  
    p-Chloro-m-cresol........................         59-50-7  Non-detect......................           1900  
    2-Chloroethyl vinyl ether................        110-75-8  Non-detect......................             37  
    Chloroform...............................         67-66-3  Non-detect......................             37  
    Chloromethane [Methyl chloride]..........         74-87-3  Non-detect......................             37  
    2-Chlorophthalene [beta-Chlorophthalene].         91-58-7  Non-detect......................           1900  
    2-Chlorophenol [o-Chlorophenol]..........         95-57-8  Non-detect......................           1900  
    Chloroprene [2-Chloro-1,3-butadiene].....       1126-99-8  Non-detect......................             37  
    2,4-D [2,4-Dichlorophenoxyacetic acid]...         94-75-7  Non-detect......................              7.0
    Diallate.................................       2303-16-4  Non-detect......................           1900  
    1,2-Dibromo-3-chloropropane..............         96-12-8  Non-detect......................             37  
    1,2-Dichlorobenzene [o-Dichlorobenzene]..         95-50-1  Non-detect......................           1900  
    1,3-Dichlorobenzene [m-Dichlorobenzene]..        541-73-1  Non-detect......................           1900  
    1,4-Dichlorobenzene [p-Dichlorobenzene]..        106-46-7  Non-detect......................           1900  
    3,3'-Dichlorobenzidine...................         91-94-1  Non-detect......................           1900  
    Dichlorodifluoromethane [CFC-12].........         75-71-8  Non-detect......................             37  
    1,2-Dichloroethane [Ethylene dichloride].        107-06-2  Non-detect......................             37  
    1,1-Dichloroethylene [Vinylidene                  75-35-4  Non-detect......................             37  
     chloride].                                                                                                 
    Dichloromethoxy ethane [Bis(2-                   111-91-1  Non-detect......................           1900  
     chloroethoxy)methane.                                                                                      
    2,4-Dichlorophenol.......................        120-83-2  Non-detect......................           1900  
    2,6-Dichlorophenol.......................         87-65-0  Non-detect......................           1900  
    1,2-Dichloropropane [Propylene                    78-87-5  Non-detect......................             37  
     dichloride].                                                                                               
    cis-1,3-Dichloropropylene................      10061-01-5  Non-detect......................             37  
    trans-1,3-Dichloropropylene..............      10061-02-6  Non-detect......................             37  
    1,3-Dichloro-2-propanol..................         96-23-1  Non-detect......................             30  
    Endosulfan I.............................        959-98-8  Non-detect......................              1.4
    Endosulfan II............................      33213-65-9  Non-detect......................              1.4

[[Page 33826]]

                                                                                                                
    Endrin...................................         72-20-8  Non-detect......................              1.4
    Endrin aldehyde..........................       7421-93-4  Non-detect......................              1.4
    Endrin Ketone............................      53494-70-5  Non-detect......................              1.4
    Epichlorohydrin [1-Chloro-2,3-epoxy              106-89-8  Non-detect......................             30  
     propane].                                                                                                  
    Ethylidene dichloride [1,1-                       75-34-3  Non-detect......................             37  
     Dichloroethane].                                                                                           
    2-Fluoroacetamide........................        640-19-7  Non-detect......................            100  
    Heptachlor...............................         76-44-8  Non-detect......................              1.4
    Heptachlor epoxide.......................       1024-57-3  Non-detect......................              2.8
    Hexachlorobenzene........................        118-74-1  Non-detect......................           1900  
    Hexachloro-1,3-butadiene                          87-68-3  Non-detect......................           1900  
     [Hexachlorobutadiene].                                                                                     
    Hexachlorocyclopentadiene................         77-47-4  Non-detect......................           1900  
    Hexachloroethane.........................         67-72-1  Non-detect......................           1900  
    Hexachlorophene..........................         70-30-4  Non-detect......................           1000  
    Hexachloropropene [Hexachloropropylene]..       1888-71-7  Non-detect......................           1900  
    Isodrin..................................        465-73-6  Non-detect......................           1900  
    Kepone [Chlordecone].....................        143-50-0  Non-detect......................           3600  
    Lindane [gamma-Hexachlorocyclohexane]             58-89-9  non-detect......................              1.4
     [gamma-BHC].                                                                                               
    Methylene chloride [Dichloromethane].....         75-09-2  non-detect......................             37  
    4,4'-methylene-bis(2-chloroaniline)......        101-14-4  non-detect......................            100  
    Methyl iodide [Iodomethane]..............         74-88-4  non-detect......................             37  
    Pentachlorobenzene.......................        608-93-5  non-detect......................           1900  
    Pentachloroethane........................         76-01-7  non-detect......................             37  
    Pentachloronitrobenzene [PCNB]                    82-68-8  non-detect......................           1900  
     [Quintobenzene] [Quintozene].                                                                              
    Pentachlorophenol........................         87-86-5  non-detect......................           1900  
    Pronamide................................      23950-58-5  non-detect......................           1900  
    Silvex [2,4,5-Trichlorophenoxypropionic           93-72-1  non-detect......................              7.0
     acid].                                                                                                     
    2,3,7,8-Tetrachlorodibenzo-p-dioxin             1746-01-6  non-detect......................             30  
     [2,3,7,8-TCDD].                                                                                            
    1,2,4,5-Tetrachlorobenzene...............         95-94-3  non-detect......................           1900  
    1,1,2,2-Tetrachloroethane................         79-34-5  non-detect......................             37  
    Tetrachloroethylene [Perchloroethylene]..        127-18-4  non-detect......................             37  
    2,3,4,6-Tetrachlorophenol................         58-90-2  non-detect......................           1900  
    1,2,4-Trichlorobenzene...................        120-82-1  non-detect......................           1900  
    1,1,1-Trichloroethane [Methyl chloroform]         71-55-6  non-detect......................             37  
    1,1,2-Trichloroethane [Vinyl trichloride]         79-00-5  non-detect......................             37  
    Trichloroethylene........................         79-01-6  non-detect......................             37  
    Trichlorofluoromethane                            75-69-4  non-detect......................             37  
     [Trichlormonofluoromethane].                                                                               
    2,4,5-Trichlorophenol....................         95-95-4  non-detect......................           1900  
    2,4,6-Trichlorophenol....................         88-06-2  non-detect......................           1900  
    1,2,3-Trichloropropane...................         96-18-4  non-detect......................             37  
    Vinyl Chloride...........................         75-01-4  non-detect......................            37   
----------------------------------------------------------------------------------------------------------------
a Absence of PCBs can also be demonstrated by using appropriate screening methods, e.g., immunoassay kit for PCB
  in oils (Method 4020) or colorimetric analysis for PCBs in oil (Method 9079).                                 
b Some minimum required detection limits are above the total halogen limit of 540 ppm. The detection limits     
  reflect what was achieved during EPA testing and analysis and also analytical complexity associated with      
  measuring all halogen compounds on Appendix VIII at low levels. EPA recognizes that in practice the presence  
  of these compounds will be functionally limited by the molecular weight and the total halogen limit of 540    
  ppm.                                                                                                          

    (c) Implementation.--Waste that meets the comparable or syngas fuel 
specifications provided by paragraphs (a) or (b) of this section (these 
constituent levels must be achieved by the comparable fuel when 
generated, or as a result of treatment or blending, as provided in 
paragraphs (c)(3) or (4) of this section) is excluded from the 
definition of solid waste provided that the following requirements are 
met:
    (1) Notices--For purposes of this section, the person claiming and 
qualifying for the exclusion is called the comparable/syngas fuel 
generator and the person burning the comparable/syngas fuel is called 
the comparable/syngas burner. The person who generates the comparable 
fuel or syngas fuel must claim and certify to the exclusion.
    (i) State RCRA and CAA Directors in Authorized States or Regional 
RCRA and CAA Directors in Unauthorized States.--
    (A) The generator must submit a one-time notice to the Regional or 
State RCRA and CAA Directors, in whose jurisdiction the exclusion is 
being claimed and where the comparable/syngas fuel will be burned, 
certifying compliance with the conditions of the exclusion and 
providing documentation as required by paragraph (c)(1)(i)(C) of this 
section;
    (B) If the generator is a company that generates comparable/syngas 
fuel at more than one facility, the generator shall specify at which 
sites the comparable/syngas fuel will be generated;
    (C) A comparable/syngas fuel generator's notification to the 
Directors must contain the following items:
    (1) The name, address, and RCRA ID number of the person/facility 
claiming the exclusion;
    (2) The applicable EPA Hazardous Waste Codes for the hazardous 
waste;
    (3) Name and address of the units, meeting the requirements of 
paragraph (c)(2) of this section, that will burn the comparable/syngas 
fuel; and

[[Page 33827]]

    (4) The following statement is signed and submitted by the person 
claiming the exclusion or his authorized representative:

    Under penalty of criminal and civil prosecution for making or 
submitting false statements, representations, or omissions, I 
certify that the requirements of 40 CFR 261.38 have been met for all 
waste identified in this notification. Copies of the records and 
information required at 40 CFR 261.28(c)(10) are available at the 
comparable/syngas fuel generator's facility. Based on my inquiry of 
the individuals immediately responsible for obtaining the 
information, the information is, to the best of my knowledge and 
belief, true, accurate, and complete. I am aware that there are 
significant penalties for submitting false information, including 
the possibility of fine and imprisonment for knowing violations.

    (ii) Public notice.--Prior to burning an excluded comparable/syngas 
fuel, the burner must publish in a major newspaper of general 
circulation local to the site where the fuel will be burned, a notice 
entitled ``Notification of Burning a Comparable/Syngas Fuel Excluded 
Under the Resource Conservation and Recovery Act'' containing the 
following information:
    (A) Name, address, and RCRA ID number of the generating facility;
    (B) Name and address of the unit(s) that will burn the comparable/
syngas fuel;
    (C) A brief, general description of the manufacturing, treatment, 
or other process generating the comparable/syngas fuel;
    (D) An estimate of the average and maximum monthly and annual 
quantity of the waste claimed to be excluded; and
    (E) Name and mailing address of the Regional or State Directors to 
whom the claim was submitted.
    (2) Burning.--The comparable/syngas fuel exclusion for fuels 
meeting the requirements of paragraphs (a) or (b) and (c)(1) of this 
section applies only if the fuel is burned in the following units that 
also shall be subject to Federal/State/local air emission requirements, 
including all applicable CAA MACT requirements:
    (i) Industrial furnaces as defined in Sec. 260.10 of this chapter;
    (ii) Boilers, as defined in Sec. 260.10 of this chapter, that are 
further defined as follows:
    (A) Industrial boilers located on the site of a facility engaged in 
a manufacturing process where substances are transformed into new 
products, including the component parts of products, by mechanical or 
chemical processes; or
    (B) Utility boilers used to produce electric power, steam, heated 
or cooled air, or other gases or fluids for sale;
    (iii) Hazardous waste incinerators subject to regulation under 
subpart O of parts 264 or 265 of this chapter or applicable CAA MACT 
standards.
    (3) Blending to meet the viscosity specification.--A hazardous 
waste blended to meet the viscosity specification shall:
    (i) As generated and prior to any blending, manipulation, or 
processing meet the constituent and heating value specifications of 
paragraphs (a)(1)(i) and (a)(2) of this section;
    (ii) Be blended at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec. 262.34 of this chapter; and
    (iii) Not violate the dilution prohibition of paragraph (c)(6) of 
this chapter.
    (4) Treatment to meet the comparable fuel exclusion 
specifications.--(i) A hazardous waste may be treated to meet the 
exclusion specifications of paragraphs (a)(1) and (2) of this section 
provided the treatment:
    (A) Destroys or removes the constituent listed in the specification 
or raises the heating value by removing or destroying hazardous 
constituents or materials;
    (B) Is performed at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec. 262.34 of this Chapter; and
    (C) Does not violate the dilution prohibition of paragraph (c)(6) 
of this seciton.
    (ii) Residuals resulting from the treatment of a hazardous waste 
listed in subpart D of this part to generate a comparable fuel remain a 
hazardous waste.
    (5) Generation of a syngas fuel.--(i) A syngas fuel can be 
generated from the processing of hazardous wastes to meet the exclusion 
specifications of paragraph (b) of this section provided the 
processing:
    (A) Destroys or removes the constituent listed in the specification 
or raises the heating value by removing or destroying constituents or 
materials;
    (B) Is performed at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec. 262.34 of this chapter or is 
an exempt recycling unit pursuant to Sec. 261.6(c) of this chapter; and
    (C) Does not violate the dilution prohibition of paragraph (c)(6) 
of this chapter.
    (ii) Residuals resulting from the treatment of a hazardous waste 
listed in subpart D of this part to generate a syngas fuel remain a 
hazardous waste.
    (6) Dilution prohibition for comparable and syngas fuels.--No 
generator, transporter, handler, or owner or operator of a treatment, 
storage, or disposal facility shall in any way dilute a hazardous waste 
to meet the exclusion specifications of paragraph (a)(1)(i), (a)(2) or 
(b) of this section.
    (7) Waste analysis plans. The generator of a comparable/syngas fuel 
shall develop and follow a written waste analysis plan which describes 
the procedures for sampling and analysis of the hazardous waste to be 
excluded. The waste analysis plan shall be developed in accordance with 
the applicable sections of the ``Test Methods for Evaluating Solid 
Waste, Physical/Chemical Methods'' (SW-846). The plan shall be followed 
and retained at the facility excluding the waste.
    (i) At a minimum, the plan must specify:
    (A) The parameters for which each hazardous waste will be analyzed 
and the rationale for the selection of those parameters;
    (B) The test methods which will be used to test for these 
parameters;
    (C) The sampling method which will be used to obtain a 
representative sample of the waste to be analyzed;
    (D) The frequency with which the initial analysis of the waste will 
be reviewed or repeated to ensure that the analysis is accurate and up 
to date; and
    (E) If process knowledge is used in the waste determination, any 
information prepared by the generator in making such determination.
    (ii) The waste analysis plan shall also contain records of the 
following:
    (A) The dates and times waste samples were obtained, and the dates 
the samples were analyzed;
    (B) The names and qualifications of the person(s) who obtained the 
samples;
    (C) A description of the temporal and spatial locations of the 
samples;
    (D) The name and address of the laboratory facility at which 
analyses of the samples were performed;
    (E) A description of the analytical methods used, including any 
clean-up and sample preparation methods;
    (F) All quantitation limits achieved and all other quality control 
results for the analysis (including method blanks, duplicate analyses, 
matrix spikes, etc.), laboratory quality assurance data, and 
description of any deviations from analytical methods written in the 
plan or from any other activity written in the plan which occurred;
    (G) All laboratory results demonstrating that the exclusion 
specifications have been met for the waste; and
    (H) All laboratory documentation that support the analytical 
results, unless a contract between the claimant and the laboratory 
provides for the

[[Page 33828]]

documentation to be maintained by the laboratory for the period 
specified in paragraph (c)(11) of this section and also provides for 
the availability of the documentation to the claimant upon request.
    (iii) Syngas fuel generators shall submit for approval, prior to 
performing sampling, analysis, or any management of a syngas fuel as an 
excluded waste, a waste analysis plan containing the elements of 
paragraph (c)(7)(i) of this section to the appropriate regulatory 
authority. The approval of waste analysis plans must be stated in 
writing and received by the facility prior to sampling and analysis to 
demonstrate the exclusion of a syngas. The approval of the waste 
analysis plan may contain such provisions and conditions as the 
regulatory authority deems appropriate.
    (8) Comparable fuel sampling and analysis. (i) General. For each 
waste for which an exclusion is claimed, the generator of the hazardous 
waste must test for all the constituents on appendix VIII to this part, 
except those that the generator determines, based on testing or 
knowledge, should not be present in the waste. The generator is 
required to document the basis of each determination that a constituent 
should not be present. The generator may not determine that any of the 
following categories of constituents should not be present:
    (A) A constituent that triggered the toxicity characteristic for 
the waste constituents that were the basis of the listing of the waste 
stream, or constituents for which there is a treatment standard for the 
waste code in 40 CFR 268.40;
    (B) A constituent detected in previous analysis of the waste;
    (C) Constituents introduced into the process that generates the 
waste; or
    (D) Constituents that are byproducts or side reactions to the 
process that generates the waste.

    Note to paragraph (c)(8): Any claim under this section must be 
valid and accurate for all hazardous constituents; a determination 
not to test for a hazardous constituent will not shield a generator 
from liability should that constituent later be found in the waste 
above the exclusion specifications.

    (ii) For each waste for which the exclusion is claimed where the 
generator of the comparable/syngas fuel is not the original generator 
of the hazardous waste, the generator of the comparable/syngas fuel may 
not use process knowledge pursuant to paragraph (c)(8)(i) of this 
section and must test to determine that all of the constituent 
specifications of paragraphs (a)(2) and (b) of this section have been 
met.
    (iii) The comparable/syngas fuel generator may use any reliable 
analytical method to demonstrate that no constituent of concern is 
present at concentrations above the specification levels. It is the 
responsibility of the generator to ensure that the sampling and 
analysis are unbiased, precise, and representative of the waste. For 
the waste to be eligible for exclusion, a generator must demonstrate 
that:
    (A) Each constituent of concern is not present in the waste above 
the specification level at the 95% upper confidence limit around the 
mean; and
    (B) The analysis could have detected the presence of the 
constituent at or below the specification level at the 95% upper 
confidence limit around the mean.
    (iv) Nothing in this paragraph preempts, overrides or otherwise 
negates the provision in Sec. 262.11 of this chapter, which requires 
any person who generates a solid waste to determine if that waste is a 
hazardous waste.
    (v) In an enforcement action, the burden of proof to establish 
conformance with the exclusion specification shall be on the generator 
claiming the exclusion.
    (vi) The generator must conduct sampling and analysis in accordance 
with their waste analysis plan developed under paragraph (c)(7) of this 
section.
    (vii) Syngas fuel and comparable fuel that has not been blended in 
order to meet the kinematic viscosity specifications shall be analyzed 
as generated.
    (viii) If a comparable fuel is blended in order to meet the 
kinematic viscosity specifications, the generator shall:
    (A) Analyze the fuel as generated to ensure that it meets the 
constituent and heating value specifications; and
    (B) After blending, analyze the fuel again to ensure that the 
blended fuel continues to meet all comparable/syngas fuel 
specifications.
    (ix) Excluded comparable/syngas fuel must be re-tested, at a 
minimum, annually and must be retested after a process change that 
could change the chemical or physical properties of the waste.
    (9) Speculative accumulation. Any persons handling a comparable/
syngas fuel are subject to the speculative accumulation test under 
Sec. 261.2(c)(4) of this chapter.
    (10) Records. The generator must maintain records of the following 
information on-site:
    (i) All information required to be submitted to the implementing 
authority as part of the notification of the claim:
    (A) The owner/operator name, address, and RCRA facility ID number 
of the person claiming the exclusion;
    (B) The applicable EPA Hazardous Waste Codes for each hazardous 
waste excluded as a fuel; and
    (C) The certification signed by the person claiming the exclusion 
or his authorized representative.
    (ii) A brief description of the process that generated the 
hazardous waste and process that generated the excluded fuel, if not 
the same;
    (iii) An estimate of the average and maximum monthly and annual 
quantities of each waste claimed to be excluded;
    (iv) Documentation for any claim that a constituent is not present 
in the hazardous waste as required under paragraph (c)(8)(i) of this 
section;
    (v) The results of all analyses and all detection limits achieved 
as required under paragraph (c)(8) of this section;
    (vi) If the excluded waste was generated through treatment or 
blending, documentation as required under paragraph (c)(3) or (4) of 
this section;
    (vii) If the waste is to be shipped off-site, a certification from 
the burner as required under paragraph (c)(12) of this section;
    (viii) A waste analysis plan and the results of the sampling and 
analysis that includes the following:
    (A) The dates and times waste samples were obtained, and the dates 
the samples were analyzed;
    (B) The names and qualifications of the person(s) who obtained the 
samples;
    (C) A description of the temporal and spatial locations of the 
samples;
    (D) The name and address of the laboratory facility at which 
analyses of the samples were performed;
    (E) A description of the analytical methods used, including any 
clean-up and sample preparation methods;
    (F) All quantitation limits achieved and all other quality control 
results for the analysis (including method blanks, duplicate analyses, 
matrix spikes, etc.), laboratory quality assurance data, and 
description of any deviations from analytical methods written in the 
plan or from any other activity written in the plan which occurred;
    (G) All laboratory analytical results demonstrating that the 
exclusion specifications have been met for the waste; and
    (H) All laboratory documentation that support the analytical 
results, unless a contract between the claimant and the laboratory 
provides for the documentation to be maintained by the laboratory for 
the period specified in paragraph (c)(11) of this section and also

[[Page 33829]]

provides for the availability of the documentation to the claimant upon 
request; and
    (ix) If the generator ships comparable/syngas fuel off-site for 
burning, the generator must retain for each shipment the following 
information on-site:
    (A) The name and address of the facility receiving the comparable/
syngas fuel for burning;
    (B) The quantity of comparable/syngas fuel shipped and delivered;
    (C) The date of shipment or delivery;
    (D) A cross-reference to the record of comparable/syngas fuel 
analysis or other information used to make the determination that the 
comparable/syngas fuel meets the specifications as required under 
paragraph (c)(8) of this section; and
    (E) A one-time certification by the burner as required under 
paragraph (c)(12) of this section.
    (11) Records retention. Records must be maintained for the period 
of three years. A generator must maintain a current waste analysis plan 
during that three year period.
    (12) Burner certification. Prior to submitting a notification to 
the State and Regional Directors, a comparable/syngas fuel generator 
who intends to ship their fuel off-site for burning must obtain a one-
time written, signed statement from the burner:
    (i) Certifying that the comparable/syngas fuel will only be burned 
in an industrial furnace or boiler, utility boiler, or hazardous waste 
incinerator, as required under paragraph (c)(2) of this section;
    (ii) Identifying the name and address of the units that will burn 
the comparable/syngas fuel; and
    (iii) Certifying that the state in which the burner is located is 
authorized to exclude wastes as comparable/syngas fuel under the 
provisions of this section.
    (13) Ineligible waste codes. Wastes that are listed because of 
presence of dioxins or furans, as set out in Appendix VII of this part, 
are not eligible for this exclusion, and any fuel produced from or 
otherwise containing these wastes remains a hazardous waste subject to 
full RCRA hazardous waste management requirements.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    1. The authority citation for part 270 continues to read as 
follows:

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

Subpart D--Changes to Permits

    2. Section 270.42 is amended by adding a new paragraph (j) to read 
as follows:


Sec. 270.42  Permit modification at the request of the permittee.

* * * * *
    (j) Combustion facility changes to meet part 63 MACT standards. The 
following procedures apply to hazardous waste combustion facility 
permit modifications requested under Appendix I of this section, 
section L(9).
    (1) Facility owners or operators must comply with the Notification 
of Intent to Comply (NIC) requirements of 40 CFR 63.1211 before a 
permit modification can be requested under this section.
    (2) If the Director does not approve or deny the request within 90 
days of receiving it, the request shall be deemed approved. The 
Director may, at his or her discretion, extend this 90 day deadline one 
time for up to 30 days by notifying the facility owner or operator.
    3. In Sec. 270.42 Appendix I is amended by adding entry L(9) to 
read as follows:

Appendix I to Sec. 270.42--Classification of Permit Modification

------------------------------------------------------------------------
                          Modification                            Class 
------------------------------------------------------------------------
L. Incinerators, Boilers and Industrial Furnaces                   \1\ 1
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
                                                                        
   9. Technology Changes Needed to meet Standards under 40 CFR part 63  
 (Subpart EEE--National Emission Standards for Hazardous Air Pollutants 
    From Hazardous Waste Combustors), provided the procedures of Sec.   
                         270.42(i) are followed                         
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------
\1\ Class 1 modifications requiring Agency prior approval.              

* * * * *

Subpart G--Interim Status

    4. Section 270.72 is amended by adding paragraph (b)(8) to read as 
follows:


Sec. 270.72  Changes during interim status.

* * * * *
    (b) * * *
    (8) Changes necessary to comply with standards under 40 CFR part 
63, Subpart EEE--National Emission Standards for Hazardous Air 
Pollutants From Hazardous Waste Combustors.

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