[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)] [Rules and Regulations] [Pages 63209-63213] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-30235] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 63, 261, and 266 [FRL-6477-9] RIN 2050-AE01 NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; technical correction. ----------------------------------------------------------------------- SUMMARY: On June 19, 1998, EPA published the Revised Standards for Hazardous Waste Combustors Final Rule and on September 30, 1999 published the Hazardous Waste Combustors NESHAP Final Rule. In today's action we are clarifying our intention associated with the Notification of Intent to Comply and Progress Report requirements of the 1998 rule. Additionally, we are correcting a typographical error in the [[Page 63210]] comparable fuels specification table and an omission pertaining to residue testing requirements in the 1999 final rule. EFFECTIVE DATE: This rule is effective on November 19, 1999. ADDRESSES: The public may obtain a copy of this technical correction at the RCRA Information Center (RIC), located at Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor, Arlington, Virginia. FOR FURTHER INFORMATION CONTACT: For general information, contact the RCRA Hotline at (800) 424-9346 (toll free) or (703) 920-9810 in the Washington, DC metropolitan area. For information on this rule pertaining to the notification requirements, contact David Hockey (5302W), Office of Solid Waste, 401 M Street, SW, Washington, DC 20460, (703) 308-8846, e-mail address is ``[email protected].'' For information pertaining to the residue requirements, contact Larry Gonzalez (5302W), Office of Solid Waste, 401 M Street, SW, Washington, DC 20460, (703) 308-8468, e-mail address is ``[email protected].'' SUPPLEMENTARY INFORMATION I. Reasons and Basis for Today's Action The June 1998 Revised Standards for Hazardous Waste Combustors rule (June 19, 1998, 63 FR 33782) includes a requirement that sources submit progress reports to support declarations made in the source's Notification of Intent to Comply (63 FR at 33820). We are amending two of these requirement in today's action to make our original intent more clear. The third amendment is to the September 1999 rule and it involves a typographical error in the comparable fuels specification table revised at 64 FR 53076 which we are correcting today. The fourth amendment we are correcting is an inadvertent omission pertaining to residue testing requirements for devices burning hazardous waste fuels while processing Bevill amendment raw materials. In the final rule setting standards for hazardous waste combustors (Sept. 30, 1999, 64 FR at 53076), we modified a number of provisions found in 40 CFR parts 264, 265, and 266. In the revisions to 40 CFR 266.112, we inadvertently omitted a note to the Appendix VIII table to Part 266 that limits the requirement for testing to only those compounds that have a nonwastewater concentration limit under the F039 waste code for leachates found at 40 CFR 268.40. II. Corrections to the June 19, 1998 Final Rule A. Notification of Intent To Comply Today's changes to 40 CFR 63.1210 clarify that only those elements enumerated in Sec. 63.1210(b)(1)(ii) which actually apply to the particular source must be addressed by the source in its notice of intent to comply. It was not EPA's intent to require sources to spend time submitting information, or addressing issues, of no applicability to their actual situation. Since some of the elements that are required to be submitted may not be necessary for every source in coming into compliance, this technical amendment clarifies that the elements of paragraph (b)(1)(ii) are only applicable to a source if necessary to bring that source into compliance. A source itself makes this determination based upon its own particular situation. B. Progress Reports The changes to Sec. 63.1211 of the progress report requirements clarify our original intent with respect to the documentation of progress towards compliance. In paragraph (b)(1), we require sources to demonstrate their progress via three elements: (i) Development of engineering designs for physical modifications; (ii) submittal of applicable construction applications; and (iii) a commitment of resources. As currently expressed, element (iii) requires the source to enter into ``binding contractual commitments'' to purchase, build and install needed equipment. Section 63.1211(b)(1) (as promulgated at 63 FR 33820 (June 19, 1998)). Sources have since voiced concern with the ``contractual'' element because it can be read to imply that upgrading requires arrangements to be made with entities other than the source itself. This was not EPA's intent, nor would such a restriction make environmental sense since there is no inherent problem with a source performing its own upgrading if it is able to do so. Some sources thus will not have to enter into contracts with other entities, but will be able to use in-house personnel or existing agreements to purchase, fabricate, and install any equipment needed to comply with the emission standards. Therefore, we are better describing our intent by amending the language of the ``contractual'' element to more broadly include these other situations. This change merely restates the language of element (iii) while continuing to meet our original intent for the demonstration of progress, as discussed in the preamble language in the June 19, 1999 Federal Register (63 FR at 33810). This section also makes the necessary conforming changes to the rest of paragraph (b). III. Corrections to the September 30, 1999 Final Rule A. Comparable Fuels Specification Table In the September 30, 1999 (64 FR 53076) final rule, we corrected several of the exemption specifications contained in Table 1 to section 261.38--Detection and Detection Limit Values for Comparable Fuel Specification. A typographical error occurred during printing which misprinted the Antimony specification by incorrectly inserting the standard for Arsenic which appears below Antimony in the table. The correct value for the Antimony specification should be a concentration limit of 12 mg/kg at 10,000 BTU/lb. Today's rule corrects this typographical error. B. Regulation of Residues In the September 30, 1999 (64 FR 53076) final rule, the Agency revised the requirements governing the classification of residues from certain industrial furnaces that burn hazardous waste-derived fuels. Specifically, the existing provisions at Sec. 266.112 create an objective test to determine whether residues from these devices have been ``significantly affected'' by their hazardous waste combustion activities. Residues that have been ``significantly affected'' are no longer eligible for Bevill exempt status, and so are subject to subtitle C regulation. The ``significantly affected'' determination requires certain types of testing to determine hazardous constituent concentration levels in the wastes generated by the industrial furnace. We amended part of that testing requirement in the September 30, 1999 final rule, and are correcting those amendments in this notice. The 1999 revisions require hazardous waste combustion sources regulated under the BIF Rule (40 CFR 266, Subpart H) to test their residues for all of the compounds specified in the Appendix VIII table to Part 266, and to verify that their residues do not exceed the F039 nonwastewater concentration limits to retain their Bevill exempt status (64 FR at 53076). We also revised the list of compounds to be tested by including specific dioxin compounds on the table (64 FR 53076). However, in revising the residue testing requirements, we inadvertently failed to include a provision that allows sources not to analyze for those compounds on the table that lack F039 nonwastewater concentration limits. This omission is [[Page 63211]] contrary to preamble language of the 1999 final rule. For example at 64 FR 52995, we state that the revised Sec. 266.112 (b)(2) measurement requirements apply only to discreet homologues of dioxin compounds (tetra, penta, and hexa-homologues) because these homologues are the only ones with established F039 concentration limits. Following promulgation of the September 1999 final rule, we determined that nine additional compounds on the table do not have F039 nonwastewater concentration limits. These compounds were included in the table because the F039 list may be revised in the future to include concentration limits for them, and, if it is, we want sources to analyze their combustion residues for them. However, without a current F039 concentration limit, analysis of these compounds in combustion residues would be futile because they do not have established concentration limits against which to measure the testing results. The following nine compounds on the Appendix VIII to Part 266 table entitled ``Organic Compounds for Which Residues Must Be Analyzed'' do not have F039 nonwastewater concentration limits: cis-1,4-Dichloro-2- butene; Bromochloromethane; Bromoform; Bromomethane; Methylene bromide; 2,4,6-Trichlorophenol; o-Nitrophenol; o-Chlorophenol; and, 2,6-Toluene diisocyanate. Today's rule amends the table by including a note to the table that states testing is required for only those organic compounds for which an F039 nonwastewater concentration limit is identified. IV. Administrative Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a ``good cause'' finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, see section VI below, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the ``Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the June 19, 1998 Federal Register notice. V. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of November 19, 1999. EPA will submit 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 United States prior to publication of the rule in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). VI. Immediate Effective Date EPA is making this rule effective immediately. The rule adopts amendments which are purely technical in that they correct mistakes which are clearly inconsistent with the Agency's stated intent. Comment on such changes is unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B). For the same reasons, there is good cause to make the rule effective immediately pursuant to 5 U.S.C. 553(d)(3). List of Subjects 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. 40 CFR Part 261 Hazardous waste, Recycling, Recordkeeping and reporting. 40 CFR Part 266 Environmental protection, Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements. Dated: November 15, 1999. Michael Shapiro, Principal Deputy Assistant Administrator. For the reasons set forth in the preamble, title 40, chapter I of the Code of Federal Regulations is 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. Subpart EEE--National Emission Standards for Hazardous Air Pollutants From Hazardous Waste Combustors 2. Section 63.1210 is amended by revising paragraph (b)(1)(ii) introductory text, (b)(1)(ii)(A), (b)(1)(ii)(B) and (b)(1)(iv) introductory text to read as follows: Sec. 63.1210 What are the notification requirements? * * * * * (b) * * * (1) * * * (ii) As applicable to each source, information on key activities and [[Page 63212]] 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 you may revise them during the period the NIC is in effect. You must submit revisions to the Administrator and make them available to the public. You must include the following key activities and dates: (A) The dates by which you will develop engineering designs for emission control systems or process changes for emissions; (B) The date by which you will commit internal or external resources for installing emission control systems or making process changes for emission control, or the date by which you will issue orders for the purchase of component parts to accomplish emission control or process changes. * * * * * (iv) If you intend to comply, but will not stop burning hazardous waste by October 1, 2001 a certification that: * * * * * 3. Section 63.1211 is amended by revising paragraph (b) to read as follows: Sec. 63.1211 What are the recordkeeping and reporting requirements? * * * * * (b) Compliance progress reports associated with the notification of intent to comply. (1) General. If you intend to comply with the emission standards and operating requirements of this subpart, then not later than October 1, 2001, you must comply with the following, unless you comply with paragraph (b)(2)(ii) of this section: (i) Develop engineering design for any physical modifications to the source needed to comply with the emission standards of this subpart; (ii) Submit applicable construction applications to the Administrator; and (iii) Document an internal or external commitment of resources, i.e. funds or personnel, to purchase, fabricate, and install any equipment, devices, and ancillary structures needed to comply with the emission standards and operating requirements of this subpart. (2) Progress Report. (i) You must submit to the Administrator a progress report on or before October 1, 2001 which contains information documenting that you have met the requirements of paragraph (b)(1) of this section. This information will be used by the Administrator to determine if you have made adequate progress towards compliance with the emission standards of this subpart. In any evaluation of adequate progress, the Administrator may consider any delays in a source's progress caused by the time required to obtain necessary permits from governmental regulatory agencies when the sources have submitted timely and complete permit applications. (ii) If you intend to comply with the emission standards and operating requirements of this subpart, but can do so without undertaking any of the activities described in paragraph (b)(1) of this section, you must submit a progress report documenting either: (A) That you, at the time of the progress report, are in compliance with the emission standards and operating requirements; or (B) The steps you will take to comply, without undertaking any of the activities listed in paragraphs (b)(1)(i) through (b)(1)(iii) of this section. (iii) If you do not comply with paragraphs (b)(1) or (b)(2)(ii) of this section, you must stop burning hazardous waste on or before October 1, 2001. (3) Schedule. (i) You must include in the progress report a detailed schedule that lists key dates for all projects that will bring the source into compliance with the emission standards and operating requirements of this subpart for the time period between submission of the progress report and the compliance date of the emission standards and operating requirements of this subpart. (ii) The schedule must contain anticipated or actual dates for the following: (A) Bid and award dates, as necessary, for construction contracts and equipment supply contractors; (B) Milestones such as ground breaking, completion of drawings and specifications, equipment deliveries, intermediate construction completions, and testing; (C) The dates on which applications will be, submitted for operating permits or licenses; (D) The dates by which approvals of any permits or licenses are anticipated; and (E) The projected date by which you expect to comply with the emission standards and operating requirements of this subpart. (4) Notice of intent to comply. You must include a statement in the progress report that you intend or do not intend to comply with the emission standards and operating requirements of this subpart. (5) Sources that do not intend to comply. (i) If you indicated in your NIC your intent not to comply with the emission standards and operating requirements of this subpart and stop burning hazardous waste prior to submitting a progress report, or if you meet the requirements of Sec. 63.1206(a)(2), you are exempt from the requirements of paragraphs (b)(1) through (b)(4) of this section. However, you must submit and include in a revised NIC the date on which you stopped burning hazardous waste and the date(s) you submitted, or plan to submit RCRA closure documents. (ii) If you signify in the progress report, submitted not later than October 1, 2001, your intention not to comply with the emission standards and operating requirements of this subpart, you must stop burning hazardous waste on or before October 1, 2001 and you are exempt from the requirements of paragraphs (b)(1) through (b)(3) of this section. * * * * * PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation of part 261 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938. 2. In Sec. 261.38 Table 1 is amended by revising the entry for ``Antimony, total'' under the heading Metals to read as follows: Sec. 261.38 Comparable/Syngas Fuel Exclusion. * * * * * [[Page 63213]] Table 1 to Sec. 261.38 Detection and Detection Limit Values for Comparable Fuel Specification ---------------------------------------------------------------------------------------------------------------- Minimum Heating Concentration required Chemical name CAS No. Composite value (mg/ value (BTU/ limit (mg/kg at detection kg) lb) 10,000 BTU/lb) limit (mg/ kg) ---------------------------------------------------------------------------------------------------------------- * * * * * * * Metals: Antimony, total.............. 7440-36-0 ND 12 * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND HAZARDOUS WASTE MANAGEMENT FACILITIES 1. The authority citation for Part 266 continues to read as follows: Authority: Secs. 1006, 2002(a), 3004, 6905, 6906, 6912, 6922, 6924, 6925, and 6937. 2. The Appendix VIII table to Part 266 is amended by adding the note after the table to read as follows: Appendix VIII Table to Part 266--Organic Compounds for Which Residues Must Be Analyzed * * * * * Note to the table: Analysis is not required for those compounds that do not have an established F039 nonwastewater concentration limit. [FR Doc. 99-30235 Filed 11-18-99; 8:45 am] BILLING CODE 6560-50-P