[Federal Register Volume 67, Number 30 (Wednesday, February 13, 2002)]
[Rules and Regulations]
[Pages 6792-6818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3346]



[[Page 6791]]

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Part II





Environmental Protection Agency





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40 CFR Part 63 et al.



NESHAP: Interim Standards for Hazardous Air Pollutants for Hazardous 
Waste Combustors (Interim Standards Rule); Final Rule

  Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 / 
Rules and Regulations  

[[Page 6792]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 264, 265, 266, 270, and 271

[FRL-7143-3]
RIN 2050-AE79


NESHAP: Interim Standards for Hazardous Air Pollutants for 
Hazardous Waste Combustors (Interim Standards Rule)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On September 30, 1999, EPA promulgated standards to control 
emissions of hazardous air pollutants from incinerators, cement kilns 
and lightweight aggregate kilns that burn hazardous wastes. A number of 
parties sought judicial review of the rule. On July 24, 2001, the 
United States Court of Appeals for the District of Columbia Circuit 
(the Court) granted the Sierra Club's petition for review and vacated 
the challenged portions of the rule. In its decision, the Court invited 
EPA or any of the parties that challenged the regulations to file a 
motion with the Court to request either that the current standards 
remain in place, or that EPA be allowed time to develop interim 
standards, pending further time in which EPA develops standards 
complying with the Court's opinion. On October 19, 2001, EPA, together 
with all other petitioners, jointly moved the Court to stay the 
issuance of its mandate for four months to allow EPA time to develop 
interim standards. The motion contemplates that EPA will issue final 
standards by June 14, 2005. The joint motion also details other actions 
EPA intends to take. These actions include promulgating, by February 
14, 2002, a rule with amended interim emission standards and several 
compliance and implementation amendments to the rule which EPA proposed 
on July 3, 2001. The Court has granted this motion and stayed issuance 
of its mandate until February 14, 2002.
    Today's rule amends the September 1999 emission standards, with 
certain provisions amended as set out in the parties' joint motion. The 
rule also adopts the compliance and implementation amendments described 
in that motion. Although this Interim Standards Rule results in 
emission reductions that are less stringent than those of the September 
1999 rule, we believe it achieves most of the emission gains of that 
rule. Promulgation of the rule now, before the Court issues its 
mandate, also avoids the severe problems relating to developing the 
Maximum Achievable Control Technology (MACT) on a source-by-source 
basis pursuant to section 112(j)(2) of the Clean Air Act, which applies 
if there are no national standards in place. We believe that adopting 
this Interim Standards Rule now best fulfills the statutory requirement 
to have national emission standards in place by a specified time, while 
avoiding unnecessary disruption and burden to regulated industry and 
affected state and federal administrative agencies.

DATES: Effective Date: This final rule is effective on February 13, 
2002.
    Compliance Date: You are required to comply with these promulgated 
standards by September 30, 2003.

ADDRESSES: You may view the docket to this rulemaking in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The docket number is F-
2002-RC7F-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through 
Friday, excluding federal holidays. To review docket materials, we 
recommend that you make an appointment by calling (703) 603-9230. You 
may copy a maximum of 100 pages from any regulatory docket at no 
charge. Additional copies cost $0.15/page.

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
Callers within the Washington Metropolitan Area must dial 703-412-9810 
or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open 
Monday-Friday, 9 am to 4 pm, Eastern Standard Time. For more 
information, contact Frank Behan at 703-308-8476, [email protected], 
or Michael Galbraith at 703-605-0567, [email protected], or 
write to them at the Office of Solid Waste, 5302W, U.S. EPA, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Acronyms Used in the Rule

APCD--Air pollution control device
ASME--American Society of Mechanical Engineers
CAA--Clean Air Act
CEMS--Continuous emissions monitors/monitoring system
COMS--Continuous opacity monitoring system
CFR--Code of Federal Regulations
DOC--Documentation of Compliance
DRE--Destruction and removal efficiency dscf--Dry standard cubic feet 
dscm--Dry standard cubic meter
EPA/USEPA--United States Environmental Protection Agency gr--Grains
HAP--Hazardous air pollutant
HWC--Hazardous waste combustor
MACT--Maximum Achievable Control Technology
NESHAP--National Emission Standards for HAPs ng--Nanograms
NIC--Notice of Intent to Comply
NOC--Notification of compliance
OPL--Operating parameter limit
PM--Particulate matter
POHC--Principal organic hazardous constituent ppmv--Parts per million 
by volume
RCRA--Resource Conservation and Recovery Act
TEQ--Toxicity equivalence

    Official Record. The official record is the paper record maintained 
at the address in ADDRESSES above.
    Supporting Materials Availability on the Internet. Supporting 
materials are available on the Internet. To access the information 
electronically from the World Wide Web, type http://www.epa.gov/epaoswer/hazwaste/combust.

Table of Contents

Part One--What Events Led Up to This Rule?

I. What Is the Background?
    A. What Is the Phase I Rule?
    B. How Did the Court's Opinion To Vacate Challenged Portions of 
the Rule and the Parties' Joint Motion To Stay the Mandate Affect 
Phase I and Today's Rule?
II. Good Cause for Issuing the Rule
    A. Failure to Control Area Sources
    B. No National Standards for Major Sources for a Long Period
    C. Case-by-Case Permit Standards Delaying Compliance With More 
Stringent National Standards
    D. Inconsistent Permit Standards
    E. Adverse Consequences to Regulated Sources
    F. Administrative Burdens
III. What Is Included in This Rule?

Part Two--What Revisions Are We Making in This Rule?

I. What Are the Interim Standards?
    A. New and Existing Incinerators
    B. New and Existing Cement Kilns
    C. New and Existing Lightweight Aggregate Kilns
II. What Are the Revisions to the Startup, Shutdown, and Malfunction 
Requirements?
    A. What Are the Revised Requirements for Malfunctions?
    B. Why Does the Revised Rule Require You To Include the 
Automatic Waste Feed Cutoff Requirements in the Startup, Shutdown, 
and Malfunction Plan?

[[Page 6793]]

    C. What Are the Revised Requirements for Burning Hazardous Waste 
During Startup and Shutdown?
    D. What Are the Conforming Revisions to the Emergency Safety 
Vent Opening Requirements?
III. What Changes Are We Making to the Performance Testing 
Requirements for the Interim Standards Rule?
    A. Why Are We Revising the Data in Lieu Provisions?
    B. Why Are We Waiving Periodic Comprehensive Performance Testing 
Under the Interim Standards?
    C. Why Are We Waiving the Dioxin/Furan Confirmatory Test Under 
the Interim Standards?
IV. Why Are We Deleting the Minimum Power Requirement for Ionizing 
Wet Scrubbers?
V. What Are the Monitoring Requirements for Carbon Beds?
VI. Can a Source Be Granted an Extension of Compliance for the 
Interim Standards?
VII. Why Are We Repromulgating the Hourly Rolling Average 
Temperature Limit at a Dry Particulate Matter Control Device To 
Control Dioxin/Furan Emissions?

Part Three--What Are the Analytical and Regulatory Requirements?

I. Executive Order 12866: Regulatory Planning and Review
II. What Are the Potential Costs and Benefits of Today's Final Rule?
III. What Consideration Was Given to Small Entities under the 
Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et seq.?
IV. Was the Unfunded Mandates Reform Act Considered in This Final 
Rule?
V. Were Equity Issues and Children's Health Considered in This Final 
Rule?
VI. What Consideration Was Given to Tribal Governments in This Final 
Rule?
VII. Were Federalism Implications Considered in Today's Final Rule?
VIII. Were Energy Impacts Considered?
IX. Paperwork Reduction Act
X. National Technology Transfer and Advancement Act of 1995
XI. Is Today's Rule Subject to Congressional Review?

Part Four--What Are the State Authorization and Delegation 
Implications?

I. What Is the Authority for the Interim Standards Rule?
II. How Is This Rule Delegated Under the CAA?
III. How Would States Become Authorized Under RCRA?

Part One--What Events Led Up to This Rule?

I. What Is the Background?

A. What Is the Phase I Rule?
    Today's notice finalizes specific changes to the NESHAP: Final 
Standards for Hazardous Air Pollutants for Hazardous Waste Combustors 
(Phase I) rule, published September 30, 1999 (64 FR 52828). In the 
Phase I final rule, we adopted National Emissions Standards for 
Hazardous Air Pollutants, pursuant to section 112(d) of the Clean Air 
Act (CAA) to control toxic emissions from the burning of hazardous 
waste in incinerators, cement kilns, and lightweight aggregate kilns. 
These emission standards created a technology-based national cap for 
hazardous air pollutant emissions from the combustion of hazardous 
waste in these devices. Additional risk-based conditions necessary to 
protect human health and the environment may be imposed presently 
(assuming a proper, site-specific justification) under section 
3005(c)(3) of the Resource Conservation and Recovery Act (RCRA) (and 
may ultimately be imposed under section 112(f) of the Clean Air Act as 
well).
    Section 112(d) of the CAA requires emissions standards for 
hazardous air pollutants to be based on the performance of the Maximum 
Achievable Control Technology (MACT). These standards apply to the 
three major categories of hazardous waste burners--incinerators, cement 
kilns, and lightweight aggregate kilns. For purposes of today's rule, 
we refer to these three categories collectively as hazardous waste 
combustors (HWC).
B. How Did the Court's Opinion To Vacate Challenged Portions of the 
Rule and the Parties' Joint Motion To Stay the Mandate Affect Phase I 
and Today's Rule?
    A number of parties, representing interests of both industrial 
sources and of the environmental community, sought judicial review of 
the Phase I rule. On July 24, 2001, the United States Court of Appeals 
for the District of Columbia Circuit (the Court) granted the Sierra 
Club's petition for review and vacated the challenged portions of the 
rule. Cement Kiln Recycling Coalition v. EPA, 255 F. 3d 855 (D.C. Cir. 
2001). The Court held that EPA had not demonstrated that the standards 
met the statutory requirement of being no less stringent than (1) the 
average emission limitation achieved by the best performing 12 percent 
of existing sources and (2) the emission control achieved in practice 
by the best controlled similar source for new sources. 255 F.3d at 861, 
865-66. As a remedy, the Court, after declining to rule on most of the 
issues presented in the Industry petitions for review, vacated the 
``challenged regulations,'' stating that: ``[W]e have chosen not to 
reach the bulk of industry petitioners'' claims, and leaving the 
regulations in place during remand would ignore petitioners' 
potentially meritorious challenges.'' Id. at 872. Examples of the 
specific challenges the Court indicated might have merit were 
provisions relating to compliance during start up/shut down and 
malfunction events, including emergency safety vent openings, the 
dioxin standard for lightweight aggregate kilns, and the semi-volatile 
metal standard for cement kilns. Id. However, the Court stated, 
``[b]ecause this decision leaves EPA without standards regulating 
[hazardous waste combustor] emissions, EPA (or any of the parties to 
this proceeding) may file a motion to delay issuance of the mandate to 
request either that the current standards remain in place or that EPA 
be allowed reasonable time to develop interim standards.'' Id.
    Acting on this invitation, all parties moved the Court jointly to 
stay the issuance of its mandate for four months to allow EPA time to 
develop interim standards. The interim standards will replace the 
vacated standards temporarily, until final standards are promulgated.
    The motion indicates that EPA would issue final standards which 
fully comply with the Court's opinion by June 14, 2005, and it 
indicates that EPA and Petitioner Sierra Club intend to enter into a 
settlement agreement requiring us to promulgate final rules by that 
date, and that date be judicially enforceable. The joint motion also 
details other actions we agreed to take, including issuing a one-year 
extension to the September 30, 2002 compliance date (66 FR 63313, 
December 6, 2001), and promulgating by February 14, 2002 several of the 
compliance and implementation amendments to the rule which we proposed 
on July 3, 2001 (66 FR 35126). These final amendments will be published 
in tomorrow's Federal Register. The joint motion can be viewed and 
downloaded from EPA's Hazardous Waste Combustion Website: http://www.epa.gov/epaoswer/hazwaste/combust/preamble.htm. 
    We believe that implementation of today's interim standards will be 
beneficial to the regulated community, the state implementing programs, 
and the environment. Compliance with these interim standards will 
result in emissions reductions sooner than if the hazardous waste 
combustion standards were vacated. It also provides a more orderly 
transition to final standards than if the current rules were vacated 
without replacement standards being in place due to the operation of 
the so-called hammer provisions of section 112(j)(2) and 112(g)(2) of 
the CAA. These hammer provisions are discussed in the next section.

[[Page 6794]]

II. Good Cause for Issuing the Rule

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment.\1\ EPA so finds here.\2\
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    \1\ Section 553 of the Administrative Procedure Act does apply 
here, even though issues of rulemaking procedure under the Clean Air 
Act are normally controlled by CAA section 307(d). See CAA section 
307(d)(1) final sentence, indicating that the CAA provisions do not 
apply to rules covered by section 553(b)(B) of the Administrative 
Procedure Act.
    \2\ EPA notes as well that certain of the provisions adopted 
today (those dealing with the revised standards and compliance 
provisions) are the subject of prior notice and opportunity for 
comment, so that no good cause finding is required for such 
provisions. In addition, for all of the provisions of the rule which 
we are repromulgating in existing form, notice and opportunity for 
comment is unnecessary since these provisions have already been the 
subject of exhaustive notice and comment rulemaking.
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    First, the regulated community and environmental community have had 
actual notice of the contents of this rule, and opportunity to comment 
upon it, due to the exhaustive negotiations leading to filing of the 
joint motion on October 19, 2001, which motion recited the projected 
contents of this Interim Standards Rule. It is well-settled that actual 
notice satisfies all obligations to provide notice and opportunity for 
comment as to those persons. Small Refiner Lead Phase-Down Task Force 
v. EPA, 705 F. 2d 506, 548 (D.C. Cir. 1983).
    Second, with respect to entities that were not part of this 
negotiating process, EPA finds that there is good cause to issue the 
rule without prior proposal in order to avoid the consequences of not 
having a standard in place. The consequence of vacating the present 
rule before EPA promulgates a replacement rule is that the statutory 
``hammer'' provisions would operate with respect to major sources, and 
that there would be no CAA standards for area sources.\3\ Congress 
required that EPA promulgate national standards to control emissions of 
hazardous air pollutants by designated dates. Congress also added the 
hammer provisions to create a strong incentive to assure that those 
standards are adopted and go into force. Section 112(j)(2) of the Act 
thus provides that ``[i]n the event that the Administrator fails to 
promulgate a standard for a category * * * of major sources by the date 
established pursuant to subsection (e)(1) and (3) of this section,'' 
prescribed consequences occur. 42 U.S.C. 7412(j)(2). The first of these 
is that ``18 months after such date, the owner or operator of any major 
source in such category * * * shall submit a permit application.'' Id. 
Permit writers (either federal or state) must then establish emission 
limitations for each major source which they ``determin[e], on a case-
by-case basis, to be equivalent to the limitation that would apply to 
such source if an emission standard had been promulgated in a timely 
manner under subsection (d).'' Id. 42 U.S.C. 7412(j)(5). These site-
specific permit limitations can be superseded by subsequently 
promulgated national standards. Should such a standard be promulgated, 
the permitting authority ``shall revise such permit upon the next 
renewal to reflect the standard * * * providing such a reasonable time 
to comply, but no longer than 8 years after such standard is 
promulgated or 8 years after the date on which the source is first 
required to comply with the [site-specific emission standard], 
whichever is earlier.'' Id. Sec. 7412(j)(6). Thus there could be 
considerable delay before sources are subject to a national CAA section 
112(d) standard once a section 112(j)(5) permit is issued.
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    \3\ EPA's interpretation that the hammer provisions apply is 
based on the statutory language and evident Congressional purpose to 
create a default mechanism whenever there are no national Clean Air 
Act section 112(d) standards in place on or after the hammer date. 
See also Steel Mfr's Ass'n v. EPA, 27 F. 3d 642, 647-48 (D.C. Cir. 
1994) holding that EPA reasonably construed analogous hammer 
provisions of the Resource Conservation and Recovery Act to apply if 
a rule is issued but vacated so as not to be in place on the hammer 
date.
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    There are significant adverse consequences of vacating the existing 
rule and allowing the section 112(j) hammer to operate:
A. Failure To Control Area Sources
    The hammer requirement applies only to major sources of hazardous 
air pollutants. We determined, pursuant to CAA section 112(c)(3), 
however, that regulation of all hazardous waste combustor area sources 
(i.e., sources below the major source threshold) is necessary because 
of the threat of potential adverse effects to human health or the 
environment posed by these sources. 64 FR at 52837-52838. If this 
Interim Standards Rule is not adopted now, before the mandate issues, 
these area sources would not be subject to any CAA standards for 
hazardous air pollutants until the compliance date for the projected 
2005 rule.
B. No National Standards for Major Sources for a Long Period
    If this Interim Standards Rule is not issued now, major hazardous 
waste combustor sources would not be subject to national CAA MACT 
standards for a prolonged period. Even if the case-by-case permitting 
process goes smoothly, permitting authorities have up to 18 months to 
issue such permits after a complete application is filed. See 40 CFR 
70.4(b)(6). The permitting authority could then allow up to a 3-year 
compliance date (42 U.S.C. 7412(j)(5)), so that sources may not be 
subject to emission standards until 2006. Yet these sources were to 
have been subject to national standards no later than November 2003. 
CAA sections 112(e)(1) and (i)(3).
C. Case-by-Case Permit Standards Delaying Compliance With More 
Stringent National Standards
    Case-by-case permit limitations do not have to be modified to 
reflect more stringent subsequent national standards until the permit 
is renewed or until 8 years from the date the national standard is 
promulgated or 8 years from the time the permit is issued, whichever is 
earlier. CAA section 112(j)(6). A scenario thus could result where 
major sources receive case-by-case permits in 2004 before EPA issues a 
national rule, and then might not have to comply with a national 
standard until 2012. This result is again far later than the expected 
2003 date for compliance with national section 112(d) standards.
D. Inconsistent Permit Standards
    The case-by-case permitting process, with its hundreds of separate 
determinations, necessarily raises the prospect of potentially 
inconsistent determinations. The general statutory scheme, however, is 
that sources in a category or subcategory will be subject to a common 
standard. Such inconsistency could also lessen the degree of emission 
reduction Congress contemplated in requiring that sources be subject to 
national technology-based standards developed pursuant to section 
112(d).
E. Adverse Consequences to Regulated Sources
    The case-by-case permitting process also poses adverse consequences 
for regulated sources. The immediate burden is to submit permit 
applications to federal or state permit-writing authorities. Some 
industry sources may also face the possibility that individual permit 
limits could be so inconsistent with later national standards that the 
source will have to develop a new strategy for achieving emission 
reductions (with consequent loss of investment in the equipment needed 
to comply with the case-by-case permit), and the prospect of continuing 
to comply with Resource Conservation and

[[Page 6795]]

Recovery Act (RCRA) permit conditions for air emissions.
F. Administrative Burdens
    The administrative burdens on EPA and on States administering CAA 
permit programs likewise will be significant if a case-by-case 
permitting process is triggered if this rule is not promulgated by the 
mandate issuance date. Processing many permit applications from 
hazardous waste combustors, and trying to develop standards equivalent 
to maximum achievable control technology on a case-by-case basis, can 
only further complicate an already exceedingly difficult permit-
issuance task.
    EPA notes further that in the scarce time between the Court issuing 
an order staying its mandate and the present, we have used best efforts 
to provide notice of this projected Interim Standards Rule. We posted 
the joint motion and appendices on websites, and also solicited comment 
on these documents in the section 112(g) settlement notice published in 
the Federal Register on November 16, 2001. 66 FR 57715. We have 
responded to all of the comments received on that notice. However, it 
has proved impossible to provide further notice and opportunity for 
comment given the lack of time before issuance of the mandate, and the 
need for EPA to focus on development of the 2005 final standards, which 
will implement MACT for these sources.
    Therefore, in light of the fact that Congress intended for national 
standards to already be in place for hazardous waste combustors, and 
that a case-by-case permitting regime for those combustors could have 
adverse consequences for regulated sources, state and federal 
permitting authorities, and for the environment, we believe that there 
is good cause for this rule to issue without additional notice and 
opportunity for comment. Small Refiner Lead Phase-Down Task Force, 705 
F.2d at 545-46 (inviting EPA to issue an interim standards rule to 
avoid a regulatory gap and noting that there probably exists ``good 
cause'' under 5 U.S.C. 553(b)(B) to issue the rule without prior notice 
and opportunity for comment). EPA also finds that good cause exists 
under U.S.C. 553(d)(3) for making this rule effective less than 30 days 
after publication in the Federal Register.

III. What Is Included in This Rule?

    In this rulemaking, we are retaining the existing Part 63, Subpart 
EEE, regulations, except for the following changes:
     We are revising certain emission standards as follows: (a) 
The semi-volatile metals standard for new incinerators; (b) the semi-
volatile metals standard for existing cement kilns; (c) the mercury 
standard for new cement kilns; (d) the dioxin standard for new and 
existing lightweight aggregate kilns; (e) the mercury standard for new 
and existing lightweight aggregate kilns; (f) the hydrochloric acid/
chlorine gas standard for new and existing lightweight aggregate kilns.
     We are providing an alternative means for lightweight 
aggregate kilns and cement kilns to comply with the mercury standard to 
allow sources to comply with a hazardous waste mercury feedrate limit 
in lieu of complying with an emission standard. Sources electing to 
comply with this option will be required to notify the RCRA permitting 
authority that they are complying with this option.
     We are revising the startup, shutdown and malfunction 
(``SSM'') provisions to provide that emission standards and operating 
requirements set forth in the rule apply at all times except during 
periods of startup, shutdown and malfunction. The revised rule subjects 
hazardous waste combustors to the same general MACT SSM provisions that 
apply to most sources, except that revised automatic waste feed cutoff 
requirements continue to apply during most SSM events, and sources must 
determine whether the SSM plan should be revised if excessive 
exceedances of operating requirements when hazardous waste is in the 
system occur during these events. Such exceedances will not constitute 
violations of the operating requirements. In addition, owners and 
operators of hazardous waste combustors must select either RCRA option 
or a CAA option to control emissions from startup, shutdown, and 
malfunctions. Under the RCRA options, operating conditions in the RCRA 
permit will minimize emissions during these events. Under the CAA 
option, the SSM plan must be proactive in minimizing emissions from 
these events, and must be submitted to the delegated CAA authority for 
review and approval. Finally, we are revising the emergency safety vent 
(``AESV'') opening provisions to provide that if there is hazardous 
waste in the combustion chamber, and there is an ESV opening that is 
not a malfunction, the source must document whether it remains in 
compliance with applicable standards, and file a report if there is 
noncompliance.
    In addition, we are making the following regulatory revisions to 
compensate for the possibility that sources may be required to comply 
with permanent replacement emission standards (i.e., the final 
standards that comply with the Court's opinion and that must be 
promulgated by June 14, 2005) that are significantly different than the 
Interim Standards in today's rulemaking. Such an outcome could result 
in loss of capital investment. As a result, we believe these provisions 
are appropriate since they could lessen this potentially negative 
financial impact.
     Amending the performance testing requirements of 40 CFR 
63.1207 to allow previously collected data, regardless of age, to serve 
as documentation of compliance with the interim emission standards 
provided that these data meet quality assurance requirements and are 
sufficient to establish operating parameter limits;
     Amending the performance testing provisions such that all 
subsequent comprehensive performance tests (that is, those after the 
initial comprehensive performance test) for the interim standards are 
automatically waived; and,
     Amending the confirmatory performance testing provisions 
to eliminate the requirement to conduct confirmatory performance 
testing during the period that the interim standards are in effect.

Part Two--What Revisions Are We Making in This Rule?

I. What Are the Interim Standards?

    In today's rulemaking, we are replacing the vacated emission 
standards temporarily until final standards are promulgated by June 14, 
2005.\4\ EPA notes that this Interim Standards Rule does not respond to 
the Court's mandate regarding the need to demonstrate that EPA's 
methodology reasonably predicts the performance of the average of the 
best performing twelve percent of sources (or best-performing source). 
EPA intends to address those issues in a subsequent rule, which will 
necessarily require a longer time to develop, propose, and finalize. 
However, some type of Interim Standards Rule is needed now, for the 
reasons explained in Part One, Section II above. These standards, to 
some degree, represent negotiated interim levels agreed to by the 
parties to the Joint Motion (both industry and environmental, as well 
as EPA). In EPA's view, these standards preserve critical parts of the 
September 30, 1999

[[Page 6796]]

rule unchanged, and achieve approximately 93 percent of the emissions 
reductions for existing sources which the original rule would have 
attained. Given the need to expeditiously adopt an Interim Standards 
Rule to avoid outright vacature (with the attendant adverse 
consequences described in the previous section), and the fact that the 
Court indicated that some of the industry challenges had potential 
merit (so that repromulgating all of the September 30,1999 rule was not 
a realistic possibility), EPA believes that this rule represents a 
reasonable interim measure. The numerical values of most existing 
emission standards are being retained except for the changes outlined 
above and discussed below. Given that the emission standards will be 
vacated when the Court issues an order called a mandate (expected on or 
after February 14, 2002), we are repromulgating the emissions standards 
of Secs. 63.1203 through 63.1205, not just those standards that are 
being revised.
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    \4\ In a final rule published on December 6, 2001, we extended 
for one year the compliance date requirement of Sec. 63.1206(a) for 
the interim emission standards until September 30, 2003. See 66 FR 
63313.
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A. New and Existing Incinerators
    The interim emission standards for new and existing hazardous waste 
incinerators are identical to the standards promulgated on September 
30, 1999, except that the semivolatile metals standard for new 
incinerators is revised to 120 g/dscm. We are revising 
Sec. 63.1203(b)(3) and repromulgating Sec. 63.1203 accordingly.
    We are also correcting two typographic errors in 
Sec. 63.1203(c)(2). In the second sentence of this paragraph, we are 
replacing the word ``tetro-'' with the word ``tetra-.'' We are also 
inserting the word ``to'' before the word ``calculate'' in the third 
sentence of the paragraph.
    The interim emission standards are summarized below.

                               Interim Standards for Existing and New Incinerators
----------------------------------------------------------------------------------------------------------------
                                                             Interim emission standard \1\
 Hazardous air pollutant or hazardous --------------------------------------------------------------------------
       air pollutant surrogate                Existing sources                        New sources
----------------------------------------------------------------------------------------------------------------
Dioxin/Furan.........................  0.20 ng TEQ \2\ dscm; or 0.40  0.20 ng TEQ/dscm.
                                        ng TEQ/dscm and temperature
                                        at inlet to the initial
                                        particulate matter control
                                        device 400 deg. F.
Mercury..............................  130 g/dscm..........  45 g/dscm.
Particulate Matter...................  34mg/dscm (0.015gr/dscf).....  34mg/dscm (0.015gr/dscf).
Semivolatile Metals..................  240 g/dscm..........  120 g/dscm.
Low Volatile Metals..................  97 g/dscm...........  97 g/dscm.
Hydrochloric Acid/Chlorine Gas.......  77 ppmv......................  21 ppmv.
Hydrocarbons \3\ \4\.................  10 ppmv (or 100 ppmv carbon    10 ppmv (or 100 ppmv carbon monoxide).
                                        monoxide).
Destruction and Removal Efficiency...  For existing and new sources,  Same as for existing incinerators.
                                        99.99% for each principal
                                        organic hazardous
                                        constituent (POHC)
                                        designated. For sources
                                        burning hazardous wastes
                                        F020, F021, F022, F023,
                                        F026, or F027, 99.9999% for
                                        each POHC designated.
----------------------------------------------------------------------------------------------------------------
\1\ All emission levels are corrected to 7 percent oxygen.
\2\ Toxicity equivalent quotient, the international method of relating the toxicity of various dioxin/furan
  congeners to the toxicity of 2,3,7,8-TCDD.
\3\ Hourly rolling average. Hydrocarbons are reported as propane.
\4\ Incinerators that elect to continuously comply with the carbon monoxide standard must demonstrate compliance
  with the hydrocarbon standard of 10 ppmv during the comprehensive performance test.

B. New and Existing Cement Kilns
    The interim emission standards for new and existing hazardous waste 
burning cement kilns are identical to the standards promulgated on 
September 30, 1999, with two exceptions. The semivolatile metals 
standard for existing cement kilns and the mercury standard for new 
cement kilns are revised to 330 g/dscm and 120 g/
dscm, respectively. In today's rule, we are revising 
Secs. 63.1204(a)(3) and (b)(2) and repromulgating Sec. 63.1204 
accordingly.
    We are also correcting two typographic errors in 
Sec. 63.1204(c)(2). In the second sentence of this paragraph, we are 
replacing the word ``tetro-'' with the word ``tetra-.'' We are also 
inserting the word ``to'' before the word ``calculate'' in the third 
sentence of the paragraph.
    Finally, we are providing an alternative means for new and existing 
cement kilns to comply with the interim mercury standard. Under this 
alternative, new and existing cement kilns are allowed to comply with a 
hazardous waste maximum theoretical emissions concentration \5\ of 
mercury of 120 g/dscm. This new operating requirement for 
mercury from cement kilns is conceptually similar to the alternative 
mercury standard provisions that we promulgated in the September 30, 
1999 rule. See Sec. 63.1206(b)(10) (alternative standard where source 
demonstrates that it cannot meet emission standard as a result of 
mercury levels in raw material feedstocks). The feedrate operating 
requirement alternative ensures that the hazardous waste mercury 
contribution to emissions--MACT control for cement kilns as promulgated 
in the final rule--will always be below the mercury standard.
---------------------------------------------------------------------------

    \5\ Maximum theoretical emissions concentration or MTEC is a 
term to compare metals and chlorine feedrates across sources of 
different sizes. MTEC is defined as the metals or chlorine feedrate 
divided by the gas flow rate and is expressed in units of 
g/dscm.
---------------------------------------------------------------------------

    The alternative to the interim mercury standard is based on the 
combined hazardous waste feedstreams to the kiln and may be expressed 
either as a maximum theoretical emissions concentration or as a 
restriction on maximum hazardous waste mercury mass feedrate and 
minimum gas flow rate. Sources must account for each hazardous waste 
feedstream when determining compliance with the maximum theoretical 
emissions concentration limit. In addition, sources are not required to 
monitor for mercury in their raw material for compliance purposes. 
Sources are also required to notify the RCRA permitting authority that 
they are electing to comply with this option. See Sec. 63.1206(b)(15). 
The RCRA permitting authority may determine on a case-by-case basis 
under Sec. 270.32(b)(2) that additional operating requirements may be 
needed to ensure protection of human health and the environment.
    The interim emission standards are summarized below.

[[Page 6797]]



           Interim Standards for Existing and New Cement KILNS
------------------------------------------------------------------------
 Hazardous air pollutant or          Interim emission standard \1\
   hazardous air pollutant   -------------------------------------------
          surrogate             Existing sources         New sources
------------------------------------------------------------------------
Dioxin and Furan............  0.20 ng TEQ/dscm; or  0.20 ng TEQ/dscm; or
                               0.40 ng TEQ/dscm      0.40 ng TEQ/dscm
                               and control of flue   and control of flue
                               gas temperature not   gas temperature not
                               to exceed 400 deg.F   to exceed 400 deg.F
                               at the inlet to the   at the inlet to the
                               particulate matter    particulate matter
                               control device.       control device.
Mercury.....................  120 g/dscm.  120 g/dscm.
Particulate Matter \2\......  0.15 kg/Mg dry feed   0.15 kg/Mg dry feed
                               and 20% opacity.      and 20% opacity.
Semivolatile Metals.........  330 g/dscm.  180 g/dscm.
Low Volatile Metals.........  56 g/dscm..  54 g/dscm.
Hydrochloric Acid and         130 ppmv............  86 ppmv.
 Chlorine Gas.
Hydrocarbons: Kilns without   20 ppmv (or 100 ppmv  Greenfield kilns: 20
 By-pass 3 6.                  carbon monoxide)      ppmv (or 100 ppmv
                               \3\.                  carbon monoxide and
                                                     50 ppmv \5\
                                                     hydrocarbons).
                                                    All others:
                                                    20 ppmv (or 100 ppmv
                                                     carbon monoxide)
                                                     \3\.
Hydrocarbons: Kilns with By-  No main stack         50 ppmv \5\.
 pass; Main Stack.4 6          standard.
Hydrocarbons: Kilns with By-  10 ppmv (or 100 ppmv  10 ppmv (or 100 ppmv
 pass; By-pass Duct and        carbon monoxide).     carbon monoxide).
 Stack.3 4 6
Destruction and Removal         For existing and new sources, 99.99% for
 Efficiency.                        each principal organic hazardous
                                   constituent (POHC) designated. For
                                 sources burning hazardous wastes F020,
                               F021, F022, F023, F026, or F027, 99.9999%
                                       for each POHC designated.
------------------------------------------------------------------------
\1\ All emission levels are corrected to 7% O2, dry basis.
\2\ If there is an alkali by-pass stack associated with the kiln or in-
  line kiln raw mill, the combined particulate matter emissions from the
  kiln or in-line kiln raw mill and the alkali by-pass must be less than
  the particulate matter emissions standard.
\3\ Cement kilns that elect to comply with the carbon monoxide standard
  must demonstrate compliance with the hydrocarbon standard during the
  comprehensive performance test.
\4\ Measurement made in the by-pass sampling system of any kiln (e.g.,
  alkali by-pass of a preheater and/or precalciner kiln; midkiln
  sampling system of a long kiln).
\5\ Applicable only to newly-constructed cement kilns at greenfield
  sites (see discussion in Part Four, Section VII.D.9). The 50 ppmv
  standard is a 30-day block average limit. Hydrocarbons are reported as
  propane.
\6\ Hourly rolling average. Hydrocarbons are reported as propane.

C. New and Existing Lightweight Aggregate Kilns
    The interim emission standards for new and existing hazardous waste 
burning lightweight aggregate kilns are identical to the standards 
promulgated on September 30, 1999, with the following exceptions. The 
dioxin and furan standard for both new and existing lightweight 
aggregate kilns is revised to 0.20 ng TEQ/dscm or rapid quench of the 
combustion gas temperature at the exit of the (last) combustion chamber 
(or exit of any waste heat recovery system) to 400 deg.F or lower. This 
interim emission standard for dioxin and furans preserves the intent of 
the standard promulgated on September 30, 1999. That is, the 
temperature limitation of 400 deg.F ensures that each lightweight 
aggregate kiln will be operating, at a minimum, consistent with sound 
operational practices for controlling dioxin and furan emissions. 
Accordingly, we are revising Secs. 63.1205(a)(1) and (b)(1). We are 
also revising the mercury standard for new and existing sources of 
Secs. 63.1205(a)(2) and (b)(2) to 120 g/dscm. Finally, we are 
revising the hydrochloric acid/chlorine gas standard for new and 
existing lightweight aggregate kilns to 600 ppmv. See revised 
Secs. 63.1205(a)(6) and (b)(6).
    We are also correcting two typographic errors in 
Sec. 63.1205(c)(2). In the second sentence of this paragraph, we are 
replacing the word ``tetro-'' with the word ``tetra-.'' We are also 
inserting the word ``to'' before the word ``calculate'' in the third 
sentence of the paragraph.
    Finally, we are providing the same alternative means for new and 
existing lightweight aggregate kilns to comply with the interim mercury 
standard as finalized in today's rule for cement kilns (discussed 
above). Under this alternative, new and existing lightweight aggregate 
kilns are allowed to comply with a hazardous waste maximum theoretical 
emissions concentration of mercury of 120 g/dscm. See 
Sec. 63.1206(b)(15).
    We are today repromulgating Sec. 63.1205 with these changes, as 
summarized below.

   Interim Standards for Existing and New Lightweight Aggregate Kilns
------------------------------------------------------------------------
 Hazardous air pollutant or          Interim emission standard \1\
   hazardous air pollutant   -------------------------------------------
          surrogate             Existing sources         New sources
------------------------------------------------------------------------
Dioxin/Furan................  0.20 ng TEQ/dscm; or  0.20 ng TEQ/dscm; or
                               rapid quench of the   rapid quench of the
                               flue gas at the       flue gas at the
                               exit of the kiln to   exit of the kiln to
                               less than 400 deg.F.  less than 400
                                                     deg.F.
Mercury.....................  120 g/dscm.  120 g/dscm.
Particulate Matter..........  57 mg/dscm (0.025 gr/ 57 mg/dscm (0.025 gr/
                               dscf).                dscf).
Semivolatile Metals \2\.....  250 g/dscm.  43 g/dscm.
Low Volatile Metals \3\.....  110 g/dscm.  110 g/dscm.
Hydrochloric Acid/Chlorine    600 ppmv............  600 ppmv.
 Gas.
Hydrocarbons 2 3............  20 ppmv (or 100 ppmv  20 ppmv (or 100 ppmv
                               carbon monoxide).     carbon monoxide).

[[Page 6798]]

 
Destruction and Removal        For existing and new sources, 99.99% for
 Efficiency.                        each principal organic hazardous
                                   constituent (POHC) designated. For
                                 sources burning hazardous wastes F020,
                               F021, F022, F023, F026, or F027, 99.9999%
                                       for each POHC designated.
------------------------------------------------------------------------
\1\ All emission levels are corrected to 7% O2, dry basis.
\2\ Hourly rolling average. Hydrocarbons are reported as propane.
\3\ Lightweight aggregate kilns that elect to continuously comply with
  the carbon monoxide standard must demonstrate compliance with the
  hydrocarbon standard of 20 ppmv during the comprehensive performance
  test.

II. What Are the Revisions to the Startup, Shutdown, and Malfunction 
Requirements?

    The September 1999 final rule requires compliance with the emission 
standards and operating requirements at all times that hazardous waste 
is in the combustion system (i.e., before the hazardous waste residence 
time has transpired), including during startup, shutdown, and 
malfunctions. See Sec. 63.1206(b)(1)(i). This requirement was intended 
to create an incentive to minimize exceedances when burning hazardous 
waste during startup, shutdown, and malfunctions. For example, to 
minimize the frequency and severity of exceedances during malfunctions, 
you could take various measures including providing for spare parts and 
redundant systems.
    Industry stakeholders note that requiring compliance with emission 
standards and operating requirements during startup, shutdown, and 
malfunctions is inconsistent with the General Provisions of Subpart A, 
Part 63, that apply to MACT sources.\6\ Although requirements for 
particular source categories can be more or less stringent than the 
General Provisions (which provisions serve as a default), stakeholders 
state that requiring compliance with emission standards and operating 
requirements during malfunctions is not appropriate. The purpose of the 
startup, shutdown, and malfunction plan required under 
Sec. 63.1206(c)(2), and by reference Sec. 63.6(e)(3), is: (1) To ensure 
that the combustor, including emission control equipment, is operated 
and maintained in a manner consistent with good air pollution control 
practices for minimizing emissions at least to the levels required by 
the standards; (2) to ensure that owners and operators are prepared to 
correct malfunctions as soon as practicable; and (3) to minimize the 
reporting burden associated with excess emissions. Stakeholders 
conclude that it is inappropriate to penalize a source for exceeding 
emission standards and operating requirements during malfunctions 
because some exceedances are unavoidable and they are already required 
to take the corrective measures prescribed in the startup, shutdown, 
and malfunction plan to minimize emissions.
---------------------------------------------------------------------------

    \6\ Joint Brief of Industry Petitioners, US Court of Appeals for 
the District of Columbia Circuit, No. 99-1457 et al, Cement Kiln 
Recycling Coalition, et al., v. USEPA, Aug. 16, 2000, p. 86.
---------------------------------------------------------------------------

    In response to stakeholder concerns, today's rule: (1) Exempts you 
from the Subpart EEE emission standards and operating requirements 
during startup, shutdown, and malfunctions; (2) continues to subject 
sources to RCRA requirements during malfunctions, unless they comply 
with alternative MACT requirements including expanding the startup, 
shutdown, and malfunction plan to minimize the frequency and severity 
of malfunctions, and submit the plan to the delegated CAA authority for 
review and approval; (3) continues to subject sources that burn 
hazardous waste during startup and shutdown to RCRA requirements for 
startup and shutdown, unless they comply with alternative MACT 
requirements, and requires them to include waste feed restrictions and 
operating conditions and limits in the startup, shutdown, and 
malfunction plan; (4) requires sources to include in the startup, 
shutdown, and malfunction plan a requirement to comply with the 
automatic hazardous waste feed cutoff system during startup, shutdown, 
and malfunctions; and (5) makes conforming revisions to the emergency 
safety vent opening requirements.
A. What Are the Revised Requirements for Malfunctions?
    We agree with stakeholders that the startup, shutdown, and 
malfunction plan should minimize emissions during malfunctions and are 
revising the rule to conform with the General Provisions. The revised 
rule exempts you from the MACT emission standards and operating 
requirements during startup, shutdown, and malfunctions, even if 
hazardous waste is in the combustion system during such events. See 
revised Sec. 63.1206(b)(1)(i).
    We are concerned, however, that even though following the 
corrective measures in response to malfunctions that you prescribe in 
the startup, shutdown, and malfunction plan should minimize emissions 
during these events, the plan may not minimize the frequency and 
severity\7\ of exceedances, and thus may not minimize emissions from 
these events. In other words, the startup, shutdown, and malfunction 
plan is largely reactive to malfunctions rather than proactive. Thus, 
we are concerned that our RCRA mandate to ensure protection of human 
health and the environment may not be achieved without additional 
controls. In fact, existing RCRA regulations require compliance with 
emission standards and operating requirements at all times that 
hazardous waste is in the combustion chamber (see Sec. 264.345(a) for 
incinerators and Sec. 266.102(e)(1) for cement and lightweight 
aggregate kilns), and EPA has found that this provision is necessary to 
protect human health and the environment.\8\ Thus, any replacement to 
the existing standards must (at a minimum) provide an equivalent degree 
of protection to satisfy RCRA requirements. Accordingly, today's rule 
gives you the option of complying with RCRA requirements or CAA 
requirements that achieve the equivalent objective of minimizing 
emissions during malfunctions.
---------------------------------------------------------------------------

    \7\ The duration and magnitude of excess emissions from a 
particular type of malfunction can be minimized by proactive as well 
as reactive measures.
    \8\ Specific hazardous wastes under specific conditions may be 
exempt from the emission standards and operating requirements, 
however. See Sec. 264.340(c) for incinerators, and Secs. 266.108 and 
266.109 for cement and lightweight aggregate kilns.
---------------------------------------------------------------------------

    We discuss below how these options work for various RCRA permitting 
situations.
1. Facilities With Existing RCRA Permits
    When a source with a RCRA permit for the combustion unit documents

[[Page 6799]]

compliance with the MACT standards and requests that duplicative permit 
conditions be removed from the permit, the source must comply with one 
of the following options to minimize emissions during malfunctions: (1) 
The requirements of Sec. 264.345(a) for incinerators and 
Sec. 266.102(e)(1) for cement and lightweight aggregate kilns; or (2) 
revised RCRA permit conditions that minimize emissions from 
malfunctions; or (3) the procedures you prescribe in a startup, 
shutdown, and malfunction plan that is expanded to be proactive as well 
as reactive to minimize emissions from malfunctions,\9\ and that is 
subject to review and approval by the delegated CAA authority. See new 
Sec. 270.235(a)(1). We have also made conforming revisions to 
Secs. 264.340(b)(1), 265.340(b)(1), 266.100(b)(2)(i), 270.19(e), 270.22 
(introductory text), 270.62 (introductory text), and 270.66 
(introductory text) to require compliance with Secs. 264.345(a) and 
266.102(e)(1) only during malfunctions and only if you elect the option 
that requires compliance with those provisions (i.e., 
Sec. 270.235(a)(1)(i)).
---------------------------------------------------------------------------

    \9\ That is, the plan must identify actions you are taking to 
minimize the frequency and severity of malfunctions as well as the 
corrective measures you will take during a malfunction.
---------------------------------------------------------------------------

    Similarly, the rule requires sources that are being reissued a RCRA 
permit for the combustion unit (and that have documented compliance 
with the MACT standards) to comply with options that parallel those 
discussed above to minimize emissions during malfunctions. See new 
Secs. 270.235(a)(2).
    a. How Does the RCRA Option Work to Minimize Emissions during 
Malfunctions? Under the RCRA option to minimize emissions during 
malfunctions, a source with a RCRA permit (and that has documented 
compliance with the MACT standards) and that is requesting that 
duplicative RCRA permit conditions be removed from the permit must 
either: (1) Remain subject to the RCRA permit conditions implementing 
Sec. 264.345(a) for incinerators and Sec. 266.102(e)(1) for cement and 
lightweight aggregate kilns during malfunctions \10\ while hazardous 
waste is in the combustion chamber; or (2) request that the current 
RCRA permit conditions be revised to provide alternative means of 
ensuring that emissions from malfunctions are minimized.\11\ \12\ See 
new Secs. 270.235(a)(1)(i) and (a)(1)(ii).
---------------------------------------------------------------------------

    \10\ When using the term ``malfunction'' with respect to RCRA 
requirements, we mean the definition of malfunction provided by 
Sec. 63.2.
    \11\ Please note a change to the design or operation of the 
combustor that could increase emissions of toxic compounds from 
burning hazardous waste during malfunctions must be approved through 
a permit modification under Secs. 270.41(a) or 270.42. Under the 
permit modification, RCRA permit officials will determine whether 
the permit conditions relevant to controlling emissions from 
malfunction must be revised.
    \12\ When retaining or revising RCRA permit conditions to 
control emissions during malfunctions, the delegated RCRA authority 
will ensure that the permit contains only those conditions relevant 
to controlling emissions during malfunctions. For example, under the 
option where RCRA permit conditions are revised, the permit could 
retain a subset of the RCRA emission standards and operating limits 
necessary to comply with Secs. 264.345(a) and 266.102(e)(1) during 
malfunctions. But, permit officials could also consider whether the 
RCRA monitoring, recordkeeping and reporting requirements should be 
revised to be more consistent with the MACT requirements.
---------------------------------------------------------------------------

    The rule allows you to revise the current RCRA permit conditions to 
control emissions during malfunctions because, for example, you may 
want to request to comply with a subset of your existing permit 
conditions, or you may want to request to comply with a limit on the 
number of exceedances during malfunctions when hazardous waste is in 
the combustion chamber in lieu of complying with all of the RCRA 
emission standards and associated operating limits during malfunctions.
    Under this option when you request to revise your RCRA permit 
conditions, the permit writer will consider information including 
whether your startup, shutdown, and malfunction plan is both proactive 
and reactive, and the source's design and operating history. Because 
the permit writer's decision to revise your permit conditions 
addressing emissions from malfunctions is based, in part, on review of 
the startup, shutdown, and malfunction plan and the design of the 
source, the rule also requires that you notify the delegated RCRA 
authority in writing within 5 days of making a change to the plan or 
design of the source that may significantly increase emissions of toxic 
compounds \13\ from malfunctions. In addition, you must recommend 
revisions to permit conditions necessary as a result of the change to 
minimize emissions of toxic compounds from malfunctions. The delegated 
RCRA authority may revise the permit conditions as a result of these 
changes to ensure that emissions of toxic compounds are minimized from 
malfunctions upon permit renewal, or if warranted, by modifying the 
permit under Secs. 270.41(a) or 270.42.
---------------------------------------------------------------------------

    \13\ Compounds listed in Appendix VIII to Part 261.
---------------------------------------------------------------------------

    A source that is being reissued a permit for the combustor (and 
that has documented compliance with the MACT standards) must address 
RCRA permit conditions to control emissions during malfunctions under 
any of three options that parallel those discussed above for a 
permitted source that is requesting that duplicative RCRA permit 
conditions be removed from the permit. See new Sec. 270.235(a)(2). 
Under ``RCRA Option A,'' the delegated RCRA authority will include in 
the (reissued) permit conditions that ensure compliance with 
Sec. 264.345(a) for incinerators and Sec. 266.102(e)(1) for cement and 
lightweight aggregate kilns during malfunctions. See 
Sec. 270.235(a)(2)(i). Under ``RCRA Option B,'' the delegated RCRA 
authority will include in the permit conditions that ensure emissions 
of toxic compounds are minimized from malfunctions. These permit 
conditions could be a subset of the permit conditions that would be 
required to comply with Secs. 264.345(a) or 266.102 (e)(1). Because 
permit officials will consider information including the startup, 
shutdown, and malfunction plan, you must notify the delegated RCRA 
authority of changes to the plan that may significantly increase 
emissions of toxic compounds from malfunctions. The notification 
procedures and consideration of permit revisions as a result of changes 
to the plan are identical to those discussed above. See 
Sec. 270.235(a)(2)(ii).
    b. How Does the CAA Option Work to Minimize Emissions during 
Malfunctions? Under the CAA option, you must develop a proactive 
startup, shutdown, and malfunction plan and submit the plan to the 
delegated CAA authority for review and approval. Because the plan is 
both proactive and reactive, it is equivalent to the incentive provided 
by the RCRA options discussed above (i.e., exceedances of RCRA emission 
standards or associated operating limits while hazardous waste is in 
the combustion chamber is a violation) to minimize emissions of 
hazardous air pollutants from malfunctions when hazardous waste is in 
the combustion chamber.\14\ Accordingly, for a source with a RCRA 
permit (and that has documented compliance with the MACT standards) 
that selects this option to address emissions during malfunctions, the 
delegated RCRA authority will remove relevant permit conditions 
addressing malfunctions when the source requests that duplicative RCRA 
permit conditions be removed from the permit. See 
Sec. 270.235(a)(1)(iii). Similarly, for a source that is in a permit 
reissuance

[[Page 6800]]

proceeding (and that has documented compliance with the MACT standards) 
and that selects this option to address emissions during malfunctions, 
the delegated RCRA authority will omit from the permit conditions 
addressing malfunctions upon permit reissuance. See 
Sec. 270.235(a)(2)(iii).
---------------------------------------------------------------------------

    \14\ Please note RCRA permit writers also generally require 
owners and operators to take proactive measures to minimize 
emissions from malfunctions.
---------------------------------------------------------------------------

    To implement this option, you include in the startup, shutdown, and 
malfunction plan a description of potential causes of malfunctions and 
actions you are taking to minimize the frequency and severity of 
malfunctions. See revised Sec. 63.1206(c)(2)(ii). You may develop a 
fault tree analysis, for example, to identify malfunctions and develop 
measures to minimize the frequency and severity of those malfunctions. 
Examples of measures would be providing spare parts and redundant 
systems.
    In addition, you must submit the startup, shutdown, and malfunction 
plan to the delegated CAA authority for review and approval to ensure 
that it is complete and both proactive and reactive to minimize 
emissions of hazardous air pollutants from malfunctions. The delegated 
CAA authority also will ensure that the potential malfunctions 
identified in the plan are bona fide malfunctions. Malfunctions are 
events that are a sudden, infrequent, and not reasonably preventable 
failure of air pollution control equipment, process equipment, or a 
process to operate in a normal or usual manner. Failures that are 
caused, in part, by poor maintenance or careless or improper operation 
(including improper or inadequate characterization of feedstreams) are 
not malfunctions.\15\ See definition of malfunction in Sec. 63.2.
---------------------------------------------------------------------------

    \15\ Operations during a failure that are not malfunctions are 
subject to the applicable emission standards and operating 
requirements of Subpart EEE. See Sec. 63.1206(b)(1)(i). Thus, an 
exceedance of an applicable emission standard or operating limit as 
a result of a failure that is not a malfunction is a violation 
irrespective of whether hazardous waste is in the combustion 
chamber.
---------------------------------------------------------------------------

    The procedures for approving the startup, shutdown, and malfunction 
plan provide you the opportunity to revise the plan if the delegated 
CAA authority intends to disapprove the plan. The delegated CAA 
authority will notify you of approval or intention to deny approval 
within 90 calendar days after receipt of the approval request, and 
within 60 calendar days after receipt of any supplemental information 
that you submit. Before disapproving the plan, the delegated CAA 
authority will notify you of the intention to disapprove the plan 
together with the basis for intending to disapprove the plan and notice 
of opportunity for you to present additional information before final 
action on disapproval of the plan.
    Further, if you change the plan in a manner that may significantly 
increase emissions of hazardous air pollutants from malfunctions, you 
must request approval from the delegated CAA authority within 5 days 
after making the change, under the same procedures described above for 
initial approval of the plan.
2. Interim Status Facilities
    Sources operating under the interim status standards of Part 265, 
Subpart O, or Sec. 266.103 must comply with either of the following 
options to minimize emissions during malfunctions after they document 
compliance with the MACT standards by conducting a comprehensive 
performance test and submitting a Notification of Compliance: (1) A 
RCRA option where the source continues to comply with the interim 
status emission standards and operating requirements relevant to 
control of emissions from malfunctions and where those standards and 
requirements apply only during malfunctions; or (2) a CAA option where 
the owner or operator is exempt from the interim status standards 
relevant to control of emissions of toxic compounds during malfunctions 
upon submittal of written notification and documentation to the 
delegated RCRA authority that the startup, shutdown, and malfunction 
plan has been approved by the Administrator. See new 
Sec. 270.235(b)(1). These options parallel the options discussed above 
and work as discussed above.
    When a source operating under the interim status standards of Part 
265, Subpart O, or Sec. 266.103 (and that has documented compliance 
with the MACT standards) submits a RCRA permit application, the source 
must comply with one of the three options provided for sources that are 
being reissued a RCRA permit, as discussed above. See new 
Sec. 270.235(b)(2). These situations are analogous because the source 
is being issued a new permit in both cases.
B. Why Does the Revised Rule Require You To Include the Automatic Waste 
Feed Cutoff Requirements in the Startup, Shutdown, and Malfunction 
Plan?
    We are revising the rule to require compliance with the automatic 
waste feed cutoff requirements during malfunctions. You must include 
the automatic waste feed cutoff requirements in the startup, shutdown, 
and malfunction plan by reference. This requirement applies 
irrespective of whether you choose the RCRA or CAA approach under 
Sec. 270.235 to minimize emissions from malfunctions, as discussed 
above.
    We conclude that compliance with the automatic waste feed cutoff 
requirements is necessary to comply with Sec. 63.6(e)(3)(i)(A) which 
requires you to operate in a manner consistent with good air pollution 
control practices for minimizing emissions at least to the levels 
required by all relevant standards. Good operating practices during a 
malfunction includes cutting off the hazardous waste feed.
    An exceedance of a Subpart EEE emission standard or operating 
requirement during a malfunction identified in your startup, shutdown, 
and malfunction plan would not be a violation, however, provided that 
you followed the corrective measures prescribed in a plan that meets 
the requirements of Sec. 63.6(e)(3).
    In addition, today's rule requires you to reevaluate your startup, 
shutdown, and malfunction plan if you experience 10 exceedances of a 
Subpart EEE emission standard or operating parameter limit during 
malfunctions in a 60-day block period while hazardous waste remains in 
the combustion chamber (i.e., when the hazardous waste residence time 
has not transpired). You must complete, within 45 days of the 10th 
exceedance, an investigation of the cause of each exceedance and 
evaluation of approaches to minimize the frequency, duration, and 
severity of each exceedance, and revise the startup, shutdown, and 
malfunction plan as warranted by the evaluation. Finally, you must 
record the results of the investigation and evaluation in the operating 
record and include a summary of the findings, and any changes to the 
startup, shutdown, and malfunction plan, in the excess emissions report 
required under Sec. 63.10(e)(3).
C. What Are the Revised Requirements for Burning Hazardous Waste During 
Startup and Shutdown?
    As discussed above, the revised rule exempts you from the MACT 
emission standards and operating requirements during startup, shutdown 
and malfunctions. See revised Sec. 63.1206(b)(1)(i). We are concerned, 
however, that burning hazardous waste during startup and shutdown can 
be problematic. During startup and shutdown, a combustor is not 
operating under steady-state conditions. For example, the combustion 
chamber temperature fluctuates during startup and shutdown and at times 
will be lower than required to achieve good combustion and minimize 
emissions of

[[Page 6801]]

organic hazardous pollutants. Because hazardous waste combustors can 
burn fuels that are not hazardous wastes (e.g., fossil fuel) during 
startup and shutdown, it generally is not appropriate to burn hazardous 
waste at these times. Accordingly, RCRA regulations require compliance 
with the RCRA emission standards and operating limits during startup 
and shutdown (which, as a practical matter, prohibits burning hazardous 
waste at these times), except for only one or two narrow exemptions. 
See Sec. 264.345(c) for incinerators and Sec. 266.102(e)(2)(iii) for 
cement and lightweight aggregate kilns.
    By exempting you from the MACT emission standards and operating 
requirements during startup and shutdown (and malfunctions), today's 
revised rule allows you to continue burning those specific hazardous 
wastes that are currently allowed under RCRA to be burned during 
startup and shutdown. This is reasonable because there may be 
situations where burning hazardous wastes containing low levels of 
toxic compounds during startup and shutdown may result in equivalent or 
lower emissions of hazardous air pollutants than burning fossil fuels. 
For example, hazardous spent solvents may combust more completely 
during startup and shutdown than coal or No. 6 fuel oil which is the 
alternative fuel for many combustors. In these situations, you may be 
able to burn hazardous waste during startup and shutdown while meeting 
the requirements of Sec. 63.6(e)(3)(i)(A) (which requires you to 
operate at all times in a manner consistent with good air pollution 
control practices for minimizing emissions at least to levels required 
by all relevant standards).
    Given that today's rule exempts you from the MACT emission 
standards and operating requirements during startup and shutdown, the 
rule provides the following alternative requirements for sources that 
burn hazardous waste during startup and shutdown. When a source with a 
RCRA permit for the combustion unit documents compliance with the MACT 
standards and requests that duplicative permit conditions be removed 
from the permit, the source must comply with one of the following 
options to minimize emissions during startup and shutdown: (1) the 
requirements of Sec. 264.345(c) for incinerators and 
Sec. 266.102(e)(2)(iii) for cement and lightweight aggregate kilns 
restricting the types of hazardous waste that can be burned during 
startup and shutdown; or (2) revised RCRA permit conditions that meet 
the objective of those provisions (i.e., to minimize emissions during 
startup and shutdown); or (3) the waste feed restrictions (e.g., type 
and quantity) and other operating conditions and limits that you 
include in the startup, shutdown, and malfunction plan, which is 
subject to review and approval by the delegated CAA authority. See new 
Sec. 270.235(a)(1).\16\ We have made conforming revisions to 
Secs. 264.340(b)(1), 265.340(b)(1), 266.100(b)(2)(i), 270.19(e), 270.22 
(introductory text), 270.62 (introductory text), and 270.66 
(introductory text) to require compliance with Secs. 265.345(c) and 
266.102(e)(1) only during startup and shutdown and only if you elect 
the option that requires compliance with those provisions (i.e., 
Sec. 270.235(a)(1)(i)).
---------------------------------------------------------------------------

    \16\ Please note Sec. 63.1206(c)(2)(v)(B) requires sources that 
feed hazardous waste during startup or shutdown to include waste 
feed restrictions and other appropriate operating conditions and 
limits in the startup, shutdown, and malfunction plan irrespective 
of which option the source selects to minimize emissions during 
those events. Under the RCRA options for controlling emissions 
during startup and shutdown, however, you are not required to submit 
the startup, shutdown, and malfunction plan to the delegated CAA 
authority for review and approval.
---------------------------------------------------------------------------

    Thus, similar to the requirements for malfunctions, today's rule 
gives you the option of using either a RCRA or CAA approach to ensure 
that you minimize emissions from startup and shutdown. These options 
work as discussed above for malfunctions. You may retain or revise your 
RCRA permit requirements that control emissions during startup and 
shutdown, or, under the CAA option, you may request that the RCRA 
permit requirements be deleted.
    The rule also requires you to comply with the automatic waste feed 
cutoff system to minimize emissions during startup and shutdown. See 
Sec. 63.1206(c)(2)(v)(B). You must interlock operating limits you 
establish to minimize emissions during startup and shutdown with the 
automatic waste feed cutoff system. To implement this requirement, you 
must include the waste feed restrictions (e.g., type and quantity) and 
other operating conditions and limits that are necessary to minimize 
emissions while feeding waste during startup and shutdown. See 
Sec. 63.1206(c)(2)(v)(B)(1).
    Finally, the rule allows sources in other RCRA permitting 
situations to comply with RCRA options or a CAA option to minimize 
emissions during startup and shutdown after they document compliance 
with the MACT standards. These situations are: (1) Permit reissuance; 
(2) complying with MACT while operating under RCRA interim status; and 
(3) interim status sources submitting a RCRA permit application. The 
RCRA and CAA options for these situations are identical to those 
discussed above to control emissions during malfunctions.
D. What Are the Conforming Revisions to the Emergency Safety Vent 
Opening Requirements?
    Emergency safety vents are designed to allow combustion gases to 
bypass the emission control system during emergencies to preclude 
catastrophic consequences such as explosions or fires in the emission 
control equipment. We are revising the emergency safety vent opening 
requirements under Sec. 63.1206(c)(4) to conform to the revisions to 
the startup, shutdown, and malfunction plan requirements. Under today's 
revision, the MACT emission standards and operating requirements do not 
apply to openings that occur as a result of a malfunction. See revised 
Sec. 63.1206(b)(1)(i).
    In addition, we are revising the rule to no longer presume that an 
emergency safety vent opening under operations other than a malfunction 
defined in the startup, shutdown, and malfunction plan (i.e., when the 
emission standards and operating requirements continue to apply) is 
evidence of failure to comply with an emission standard. See revised 
Sec. 63.1206(c)(4)(i). For example, if feedrates of metals and chlorine 
were well below their limits when the safety vent opened under 
operations other than a malfunction, the metals and chlorine emission 
standards may not be exceeded. Rather, the revised rule places the 
burden on you to document in the operating record whether you remain in 
compliance with the emission standards when the emergency safety vent 
opens. In addition, as required by the current rule, you must submit to 
the delegated CAA authority a written report within 5 days of an ESV 
opening that results in failure to meet the emission standard 
documenting the result of the investigation of the cause of the opening 
and corrective measures taken. See Secs. 62.1206(c)(4)(iii) and (iv).

III. What Changes Are We Making to the Performance Testing Requirements 
for the Interim Standards Rule?

    We are amending three performance test provisions in today's rule. 
First, we are revising the ``data in lieu of the initial comprehensive 
performance test'' provision to allow you to submit test data 
irrespective of when the test was conducted. Second, we are amending 
the comprehensive performance testing frequency provisions such that 
you will only be required to conduct one comprehensive performance test 
for the interim standards. Third, we are not requiring you to conduct 
dioxin/furan

[[Page 6802]]

confirmatory tests for the interim standards. See revised 
Sec. 63.1207(c) and (d).
A. Why Are We Revising the Data in Lieu Provisions?
    The September 1999 final rule allows you to request that previous 
emissions test data serve as documentation of conformance with the 
emission standards provided that the previous testing was initiated 
after March 30, 1998 and provided the data is sufficient to establish 
appropriate operating parameter limits. This date was subsequently 
changed to March 30, 1999 as a result of extending the compliance date 
one year. See 66 FR 63313. Today we are amending this requirement to 
allow you to submit test data even though the testing was initiated 
prior to March 30, 1999, i.e., prior to four years and eight months 
before the compliance date.
    Stakeholders indicated that some sources have emissions data that 
were collected before March 30, 1999 that could be used to demonstrate 
compliance with the MACT standards and establish appropriate operating 
limits. Stakeholders reason that the age restriction on data-in-lieu 
emissions tests should be waived for the initial test in order to 
counter the additional costs associated with having to comply with two 
potentially different sets of emission standards at different times. We 
agree, noting that these sources were in compliance with the MACT 
standards well before the compliance date. However, we emphasize that, 
consistent with the existing requirements, these data must: (1) meet 
the appropriate quality assurance objectives; (2) originate from 
testing conditions that satisfy the operating condition requirements of 
Sec. 63.1207(g)(1); and (3) be sufficient to establish all appropriate 
operating parameter limits required pursuant to Sec. 63.1209.
B. Why Are We Waiving Periodic Comprehensive Performance Testing Under 
the Interim Standards?
    The September 1999 final rule requires you to begin subsequent 
comprehensive testing no later than 61 months after the date of 
commencing the initial comprehensive performance test. Today we are 
waiving the requirement to conduct periodic comprehensive performance 
testing for the interim standards. You are required to conduct only one 
comprehensive performance test for the duration of the interim 
standards. See new Sec. 63.1207(d)(4)(i).
    Pursuant to the settlement agreement with the Sierra Club (see 66 
FR 57715, November 16, 2001), EPA must promulgate permanent standards 
that replace today's interim standards no later than June 14, 2005. 
Following this schedule, your new compliance date for the replacement 
standards could be approximately June of 2008, in which case you would 
have to conduct your test to demonstrate compliance with these 
replacement standards no later than June of 2009.\17\ This would 
roughly coincide with the deadline for conducting your second 
comprehensive performance test under today's interim standards, absent 
today's revision.
---------------------------------------------------------------------------

    \17\ This assumes sources will be allowed to conduct the 
comprehensive performance test not later than one year after the 
compliance date for the permanent replacement standards.
---------------------------------------------------------------------------

    We conclude that a second interim standards comprehensive test 
would not be needed given that, by that time, the interim standards 
will have already been replaced with the permanent replacement 
standards. It would not be appropriate to require you to prepare (e.g., 
submit a performance test plan a year in advance of the scheduled test 
date) to conduct a second compliance test under today's interim 
standards that no longer apply while also requiring you to prepare to 
conduct the initial compliance test for the replacement standards 
shortly thereafter. We conclude this amendment is necessary to assure a 
smooth transition between the interim standards and the permanent 
replacement standards.
C. Why Are We Waiving the Dioxin/Furan Confirmatory Test Under the 
Interim Standards?
    The September 1999 final rule requires you to begin your initial 
dioxin/furan confirmatory test no later than 31 months after the date 
of commencing your initial comprehensive performance test. Today we are 
waiving the dioxin/furan confirmatory performance testing requirement 
under the interim standards. See new Sec. 63.1207(d)(4)(ii). You are 
not required to conduct a confirmatory compliance test while the 
interim standards are in effect.
    Absent this amendment, you would have to commence your first 
confirmatory compliance test under the interim standards no later than 
October of 2006. As discussed above, we project that the compliance 
date for the standards that will replace today's interim standards 
could be about June of 2008. Some sources may be in process of 
upgrading their facility in October of 2006 to comply with the 
permanent replacement standards. We conclude that it would be 
problematic to require sources to simultaneously upgrade their facility 
and conduct a dioxin/furan confirmatory compliance test under the 
interim standards. Thus, to conclude that exempting sources from the 
confirmatory compliance test requirements while the interim standards 
are in effect is reasonable and appropriate.

IV. Why Are We Deleting the Minimum Power Requirement for Ionizing Wet 
Scrubbers?

    Today's rule deletes the limit on minimum total power to an 
ionizing wet scrubber. See Sec. 63.1209(m)(1)(i)(D). Until we 
promulgate compliance assurance procedures for ionizing wet scrubbers, 
sources and permitting officials should use the alternative monitoring 
provisions of Sec. 63.1209(g) to identify appropriate controls on a 
site-specific basis.
    On May 14, 2001, we issued a final rule implementing, among other 
things, a court order to vacate operating parameter limits for 
electrostatic precipitators and baghouses. 66 FR at 24272. The Agency 
voluntarily requested that the Court vacate the operating parameter 
limits at Secs. 63.1209(m)(1)(ii) and (m)(1)(iii) because the Agency 
inadvertently did not provide opportunity for public comment on 
revisions to the proposed operating parameter limits.
    One of the vacated operating parameter limits was a limit on 
minimum secondary power to each field of an electrostatic precipitator. 
We had proposed a minimum limit on only total secondary power to the 
precipitator in May 1996. But, we determined after review of comments 
and further investigation that a limit on minimum total power will not 
ensure that collection efficiency of a multistage electrostatic 
precipitator is maintained. Rather, we concluded that a limit on 
minimum secondary power to each field of the precipitator is needed. 
Consequently, we declined to replace the vacated minimum limit on power 
to each field of the precipitator with a limit on total power to the 
precipitator, as originally proposed. Subsequently, in July 2001, we 
proposed to reinstate the limit on minimum secondary power to each 
field of the precipitator, but also discussed other compliance 
assurance alternatives that may provide equivalent or better compliance 
assurance, and requested comment on those alternatives. 66 FR at 35143-
35144.
    In the July 3, 2001 proposal regarding compliance assurance 
approaches for electrostatic precipitators, we

[[Page 6803]]

inadvertently neglected to propose to delete the minimum total power 
operating parameter limit for ionizing wet scrubbers at 
Sec. 63.1209(m)(1)(i)(D) and propose those same compliance assurance 
alternatives for ionizing wet scrubbers. An ionizing wet scrubber is 
essentially an electrostatic precipitator integrated with a packed bed 
scrubber where particulate matter is collected on both the plates of 
the precipitator and the bed packing material.
    Today's final rule simply deletes the requirement to establish an 
operating limit on minimum total power to an ionizing wet scrubber at 
Sec. 63.1209(m)(1)(i)(D). We are not replacing the total power limit 
with a limit on minimum power to each field of the ionizing wet 
scrubber, as we proposed on July 3, 2001 for electrostatic 
precipitators, because we need additional time to review and evaluate 
comments received on the compliance assurance alternatives we discussed 
in that proposal. Until we promulgate compliance assurance requirements 
for ionizing wet scrubbers and electrostatic precipitators, sources and 
regulatory officials should use the alternative monitoring provisions 
under Sec. 63.1209(g) to establish appropriate compliance requirements 
on a site-specific basis.

V. What Are the Monitoring Requirements for Carbon Beds?

    We are deleting the requirement to establish a limit on the useful 
life of a carbon bed or bed segment and associated requirements to 
verify compliance with the dioxin/furan (and mercury) emission standard 
prior to the end of the life of the bed. See (deleted) 
Sec. 63.1209(k)(7)(i). In lieu of that requirement, the revised rule 
requires you to monitor performance of the bed according to 
manufacturer's specifications to ensure that the bed has not reached 
the end of its useful life.
    The existing rule allowed you to use the manufacturer's 
specification to establish the limit on carbon bed age rather than the 
actual age of the bed during the performance test when demonstrating 
compliance with the dioxin/furan (and mercury) emission standard during 
the initial comprehensive performance test. If you used the 
manufacturer's specification for bed age, you were required to 
recommend in the initial comprehensive performance test plan a schedule 
for subsequent dioxin/furan emissions testing to demonstrate that the 
initial limit on maximum bed age ensures compliance with the dioxin/
furan (and mercury) emission standard.
    In response to stakeholders' concerns with the existing rule, we 
proposed amendments to these provisions to clarify our intent regarding 
confirmatory testing to verify compliance with the dioxin/furan 
emission standard prior to the end of the bed's life. See 66 FR at 
35141-35142 (July 3, 2001).
    Several commenters state that the proposed requirement to perform 
confirmatory testing to verify that the source is in compliance with 
emission standards at the manufacturer's recommended bed age may be 
burdensome and unnecessary. Emissions testing to confirm bed age may 
either require testing in addition to periodic comprehensive 
performance testing and dioxin/furan confirmatory testing or that a 
source replace the bed on the anniversary of the comprehensive 
performance test or the dioxin/furan confirmatory test, even though the 
manufacturer may recommend a longer bed life.
    In addition, one commenter is concerned that infrequent (e.g., once 
every several years) emissions testing to confirm compliance with the 
dioxin/furan and mercury emissions standards does not ensure the carbon 
bed is operated and maintained ``in a manner consistent with good air 
pollution control practices for minimizing emissions at least to the 
levels required by all relevant standards,'' as required by 
Sec. 63.6(e)(3)(i)(A). The commenter recommends use of manufacturer's 
specifications and recommendations for periodic, frequent monitoring to 
ensure the bed is performing as designed.
    We agree with commenters and are deleting the requirement to 
establish a limit on maximum bed life and the associated requirement to 
conduct emissions testing to confirm compliance with the dioxin/furan 
and mercury standards.\18\ Instead, we are substituting the following 
requirements consistent with the comments we received. You must: (1) 
Monitor performance of the carbon bed consistent with manufacturer's 
specifications to ensure the carbon bed (or bed segment for beds with 
multiple segments) has not reached the end of its useful life to 
minimize dioxin/furan and mercury emissions at least to the levels 
required by the emission standards; (2) document the monitoring 
procedures in the operation and maintenance plan; (3) record results of 
the performance monitoring in the operating record; and (4) replace the 
bed or bed segment before it has reached the end of its useful life. 
See revised Sec. 63.1209(k)(7)(i) and conforming revisions to 
Sec. 63.1209(l)(4).
---------------------------------------------------------------------------

    \18\ Note that this amendment does not alter the requirement to 
demonstrate compliance with all emission standards every five years 
(i.e., comprehensive performance testing), and the requirement to 
confirm compliance with the dioxin/furan emission standard midway 
between comprehensive performance tests (i.e., confirmatory 
performance testing). The amendment simply deletes the potentially 
additional dioxin/furan (and mercury) emission test prior to the end 
of the manufacturer's recommended life of the carbon bed to verify 
compliance with those emission standards.
---------------------------------------------------------------------------

VI. Can a Source Be Granted an Extension of Compliance for the Interim 
Standards?

    As a result of the uncertainty created by the Court's opinion, we 
previously determined that it was not appropriate to require sources to 
comply with the regulatory schedule promulgated in the September 30, 
1999 rule. Accordingly, we recently extended the compliance date 
requirement of Sec. 63.1206(a) for one year until September 30, 2003. 
See 66 FR 63313 (December 6, 2001). We are clarifying today that the 
recent change to the compliance date requirements of Sec. 63.1206(a) do 
not preclude a source from requesting an extension of compliance with 
the emission standards as provided in Secs. 63.6(i) and 63.1213. See 
Sec. 63.1206(b)(4). Sections 63.6(i) and 63.1213 allow the 
Administrator or State with an approved title V program to grant an 
extension of compliance of up to one year for a source that cannot 
complete system retrofits or pollution prevention and waste 
minimization measures by the compliance date despite a good faith 
effort to do so.

VII. Why Are We Repromulgating the Hourly Rolling Average Temperature 
Limit at a Dry Particulate Matter Control Device To Control Dioxin/
Furan Emissions?

    The provision finalized in the September 1999 rule that requires 
you to maintain compliance with the dioxin/furan emission standard by 
operating under a maximum temperature limit at the inlet to the dry 
particulate matter control device based on a one-hour rolling average 
was challenged and briefed by Industry in the Cement Kiln Recycling 
Coalition litigation. \19\ Given that the challenged provisions will be 
vacated when the Court issues its mandate, we are repromulgating this 
compliance provision, consistent with our approach of repromulgating 
the challenged emissions standards that were not revised. See 
Sec. 63.1209(k)(1) and preamble discussion in Part Two, Section I.
---------------------------------------------------------------------------

    \19\ Joint Brief of Industry Petitioners, US Court of Appeals 
for the District of Columbia Circuit, No. 99-1457 et al, Cement Kiln 
Recycling Coalition, et al., v. USEPA, Aug. 16, 2000.
---------------------------------------------------------------------------

    As we explained in detail in the record to the September 1999 rule, 
this

[[Page 6804]]

monitoring requirement is needed to assure that the emission standard 
is not exceeded. It is well-established that the relationship between 
dioxin/furan formation and temperature at the inlet to a dry 
particulate matter control device (e.g., fabric filter, electrostatic 
precipitator) is non-linear and exponential; that is, dioxin formation 
increases at a faster rate than temperature. Thus, an increase in 
temperature above the site-specific limit will increase formation of 
dioxin more than an equal reduction below the limit will reduce dioxin 
formation (and consequently emissions at lowered temperature will not 
balance out those emitted at the higher temperature). See generally 
Technical Support Document Vol. 4 chapters 2 and 3.\20\ We consequently 
view the monitoring requirement as a form of enhanced monitoring 
required by section 114 (a)(3) of the Act to ``provide a reasonable 
assurance of compliance with emission standards.'' NRDC v. EPA, 194 F. 
3d 130, 136 (D.C. Cir. 1999).
---------------------------------------------------------------------------

    \20\ In light of this documented non-linear increase in CDD 
emissions, RCRA permit writers are cautioned to take this phenomenon 
into account in making risk determinations pursuant to the RCRA 
omnibus permitting provision. Cf. 64 FR at 52839-843 (description of 
the site specific risk assessment policy which implements the RCRA 
omnibus permitting provision, and its relationship to sources 
subject to the Hazardous Waste Combustor NESHAP).
---------------------------------------------------------------------------

    We noted in the July 3, 2001 proposed rule that we do not view the 
temperature monitoring requirement as being an amendment to the 
standard. See 66 FR at 35138 n. 20. One commenter, however, reiterated 
claims briefed in the Cement Kiln Recycling Coalition litigation 
maintaining that requiring sources to establish a limit on maximum 
temperature at the inlet to a dry particulate matter control device to 
control dioxin/furan emissions on an hourly rolling average effectively 
amends the standard. We disagree.
    Compliance with dioxin/furan emission standard is demonstrated by 
stack emissions testing. Neither the standard nor the stack test method 
prescribes any particular averaging time, or other monitoring regime, 
for achieving a temperature level. Therefore, using a one-hour 
averaging time does not amend the standard.
    However, even if (against our view) the requirement to monitor 
temperature on an hourly rolling average is considered a change to the 
emission standard, it can be justified as a beyond the floor standard 
under CAA section 112 (d) (2). First, the standard is readily 
achievable technically. Spray quenching, the means of control, merely 
requires turning of a control valve to allow quenching. 4 TSD at 2-16. 
Operators can readily determine when quenching is needed, since 
thermocouples report instantaneous temperature changes, allowing 
immediate reaction to temperature changes. 4 TSD at 2-10. Second, we 
have already considered this cost (i.e., the cost of spray quenching) 
in determining the standards for HWCs. We do not believe that there 
would be any incremental cost associated with the one-hour averaging 
requirement, because it is based on the same spray quenching technology 
which is the basis for the standards already adopted. We also included 
the cost of controlling spray quenching to meet the one-hour monitoring 
requirement in assessing costs of the September 1999 rule, and regard 
these costs as reasonable. See generally Technical Support Document 
Volumes III, IV, and V. See also 64 FR at 52892 (finding that the cost 
of spray quenching technology for lightweight aggregate kilns is 
reasonable, in adopting the beyond-the-floor standard for dioxin). In 
addition, as explained above, the one-hour averaging requirement is 
needed to prevent exceedances of the emission standard itself, see 4 
TSD at 2-8 to 2-9 and 3-8 to 3-9. Given dioxin/furan's extreme 
toxicity, costs are justified to assure that the emission limit is not 
exceeded. Finally, we do not believe there are any adverse non-air or 
energy impacts associated with the averaging requirement (and again, we 
have already assessed energy impacts and waste generation impacts of 
the standard when promulgating the standard in the first place). See 
generally Technical Support Document Vol. 5, ``Emissions Estimates and 
Engineering Costs'' (RC2F-S0011) chapter 10.

Part Three--What Are the Analytical and Regulatory Requirements?

I. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and, therefore, subject to 
comprehensive review by the Office of Management and Budget (OMB), and 
the other provisions of the Executive Order. A significant regulatory 
action is defined by the Order as one that may:

--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;
--Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or rights and obligations or recipients thereof; 
or
--Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866.

    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel legal or policy issues. As such, this action 
was submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations will be documented in the public record.
    The aggregate annualized social costs for this final rule are less 
than $100 million. Furthermore, this rule is not expected to adversely 
effect, 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. The 
benefits to human health and the environment resulting from today's 
final action have not been fully monetized but are believed to be less 
than $100 million per year. Overall, the costs and benefits associated 
with this final Interim Standards Rule are essentially the same as 
those estimated for the September 30, 1999 rule. These impacts are 
discussed below in more detail.

II. What Are the Potential Costs and Benefits of Today's Final Rule?

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. This assumes full 
monetization of all relevant components. All other factors being equal, 
a rule that generates positive net welfare would be advantageous to 
society and should be promulgated, while a rule that results in 
negative net welfare to society should be avoided. In this Part we 
discuss the estimated costs and benefits of the interim standards.
    Today's rule revises some emission standards and various other 
requirements promulgated in the September 30, 1999 rule. As discussed 
in Part Two, Section I of this action, while some of the emission 
standards are revised; most are retained as promulgated in that rule. 
In addition to modification of some standards, this rule provides 
cement and lightweight aggregate kiln sources the alternative to comply 
with the mercury standard by limiting the mercury content in the

[[Page 6805]]

hazardous waste to a certain level. Today's rule also includes 
revisions intended to reduce the potential for forfeited capital 
investments. This could occur if the future standards (i.e., the 
standards that will replace the interim standards) are substantially 
different (more stringent) than those established by this Interim 
Standards Rule. These changes include eliminating the requirement for 
confirmatory testing for dioxin and furans during the period that the 
interim standards are in effect; allowing the use of previously 
collected data to serve as documentation of compliance with the interim 
standards; and waiving all subsequent comprehensive performance tests 
(i.e., those after the initial comprehensive performance test) for the 
period that the interim standards are in effect. Finally, we are 
revising the startup, shutdown, and malfunction (SSM) provisions and 
emergency safety vent opening provisions.
    In support of today's final rule we have developed preliminary cost 
and benefit estimates for the interim standards. These estimates, as 
presented below, are generalized quantified projections based on our 
findings as presented in the July 1999 Assessment\21\, and the July 23 
1999 Addendum\22\. We have not quantified impacts potentially 
associated with the other aspects of today's rule. Impacts associated 
with today's final rule will be fully characterized, modeled in detail, 
and incorporated as the baseline scenario in our analysis for the 
upcoming rule that will establish final standards.
---------------------------------------------------------------------------

    \21\ U.S. EPA, Office of Solid Waste, ``Assessment of the 
Potential Costs, Benefits, & Other Impacts of the Hazardous Waste 
Combustion MACT Standards: Final Rule'', July 1999.
    \22\ U.S. EPA, Office of Solid Waste, ``Addendum to the 
Assessment of the Potential Costs, Benefits, & Other Impacts of the 
Hazardous Waste Combustion MACT Standards: Final Rule,'' July 23, 
1999.
---------------------------------------------------------------------------

    Cost impacts (savings and increases) of the emission standards vary 
by source category. The interim standards for existing incinerators are 
identical to the standards promulgated in the September 30, 1999 rule. 
As a result, estimated impacts to existing incinerators are equivalent 
to the impacts presented in the Addendum to the September 30, 1999 
rule. The interim emission standards for existing cement kilns are 
equivalent to the September 30, 1999 rule standards, except for 
semivolatile metals. The semivolatile metals emission standard in this 
Interim Standards Rule is increased from 240 g/dscm to 330 
g/dscm. This change is estimated to result in a 5 percent 
decrease in total annual compliance costs for this source, as compared 
to costs presented in the Addendum. The interim emission standards for 
existing hazardous waste burning lightweight aggregate kilns are 
modified from the final rule standards for dioxin and furan, mercury, 
and hydrochloric acid/chlorine gas. Projected from the 1999 final rule 
baseline, these changes are estimated to reduce per system and 
aggregate annual compliance costs by about one-third for this source 
category.
    The aggregate annualized social cost impacts associated with the 
interim standards reflect only a marginal reduction from the impacts 
associated with the September 30, 1999 rule. The total annualized 
social costs resulting from today's interim standards are estimated to 
range from $47 million to $60 million, with a high-end estimate of $74 
million. The annualized social cost impacts of the September 30, 1999 
rule were estimated to range from $50 to $61 million, with a high-end 
estimate of $75 million (See Addendum tables ADD-6, ADD-7, and ADD-8). 
All benefits associated with today's final rule have not been 
monetized. The Addendum estimated average monetized human health 
benefits of approximately $20 million per year \23\ for selected 
primary pollutants. Approximately 90 percent of this total was derived 
from reductions in particulate matter emission levels. Since the 
particulate matter emission standard for each source category for the 
interim standards is unchanged, these estimated average monetized human 
health benefits are retained. Although not monetized, reduced lead 
exposure to children was another projected benefit. Ecological and 
waste minimization benefits were also anticipated as a result of the 
September 30, 1999 final rule \24\. While full monetization of all 
benefits (human health, ecological, waste minimization) is not 
feasible, we believe that these benefits justify the aggregate social 
costs. Overall, when projected from the September 30, 1999 baseline, 
aggregate annualized social costs for all sources are projected to 
decline by no more than 6 percent, while annual monetized plus non-
monetized benefits may be only marginally reduced \25\.
---------------------------------------------------------------------------

    \23\ Undiscounted estimate for future cases avoided.
    \24\ See the July 1999 ``Assessment'' for a full discussion of 
these benefits.
    \25\ The majority of the cancer risk reductions were linked to 
the consumption of dioxin-contaminated agricultural products. The 
dioxin and furan standards in the Interim Standards Rule remain the 
same for incinerators and cement kilns and are modified slightly for 
lightweight aggregate kilns. Because baseline emissions of dioxin 
and furans from incinerators and cement kilns represent 
approximately 95 percent of the emissions from the three source 
categories combined, we estimate that most benefits discussed in the 
1999 Assessment are retained.
    Semivolatile metals are comprised of lead and cadmium. Lead 
exposure above certain levels has been linked to childhood IQ 
reductions and high blood pressure in adults. Potential benefits 
from reduced lead exposure were discussed but not monetized in the 
Addendum. Because approximately 70 percent of total semivolatile 
metals reductions (from all three source categories) were from 
incinerators, we estimate the semivolatile standard in today's 
Interim Standards Rule may correlate to marginally reduced lead 
benefits for children and/or adults.
---------------------------------------------------------------------------

    These findings are presented in more detail in the economic support 
document: Preliminary Impacts Assessment--Interim Standards for 
Hazardous Air Pollutants for Hazardous Waste Combustors. This document 
is available in the docket established for today's action.

III. What Consideration Was Given to Small Entities Under the 
Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et. 
seq.?

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions. For purposes of assessing the 
impacts of today's final rule on small entities, a small entity is 
defined either by the number of employees or by the annual dollar 
amount of sales/revenues. The level at which an entity is considered 
small is determined for each NAICS code by the Small Business 
Administration (SBA).
    The Agency has examined the potential effects today's final rule 
may have on small entities, as required by the RFA/SBREFA. We have 
determined that this action will not have a significant economic impact 
on a substantial number of small entities. This is evidenced by the 
fact that the small entity analysis conducted in support of the 
September 30, 1999 final rule \26\ concluded that significant impacts 
would not occur on a substantial number of potentially impacted small 
entities. Today's action results in marginally reduced cost

[[Page 6806]]

impacts, as measured from the September 30, 1999 findings. As such, it 
is logical to presume that impacts to small entities subject to rule 
requirements may be equivalent to the final rule impacts, or marginally 
reduced. After considering the economic impacts of today's final rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \26\ U.S. EPA, Office of Solid Waste, Assessment of the 
Potential Costs, Benefits, & Other Impacts of the Hazardous Waste 
Combustion MACT Standards: Final Rule, July 1999. Appendix G.
---------------------------------------------------------------------------

IV. Was the Unfunded Mandates Reform Act Considered in This Final Rule?

    Executive Order 12875, ``Enhancing the Intergovernmental 
Partnership'' (October 26, 1993), calls on federal agencies to provide 
a statement supporting the need to issue any regulation containing an 
unfunded federal mandate and describing prior consultation with 
representatives of affected state, local, and tribal governments. 
Signed into law on March 22, 1995, the Unfunded Mandates Reform Act 
(UMRA) supersedes Executive Order 12875, reiterating the previously 
established directives while also imposing additional requirements for 
federal agencies issuing any regulation containing an unfunded mandate.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
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 
single year. Before promulgating an EPA rule for which a written 
statement is needed, 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, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's final action is not subject to the relevant requirements of 
UMRA. This rule will not result in $100 million or more in 
expenditures. Applying the pre final rule baseline, total social costs 
for today's final action are estimated to range from $47 million to $60 
million per year. Furthermore, today's rule is not subject to the 
requirements of section 203 of UMRA. Section 203 requires agencies to 
develop a small government Agency plan before establishing any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments. We have determined that this 
rule will not significantly or uniquely affect small governments.

V. Were Equity Issues and Children's Health Considered in This Final 
Rule?

    By applicable executive order, we are required to consider the 
impacts of today's rule with regard to environmental justice and 
children's health.
(1) Executive Order 13045: ``Protection of Children From Environmental 
Health Risks and Safety Risks''
    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866; and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. Today's final rule is not 
subject to the Executive Order (EO) because it is not economically 
significant, as defined by EO 12866.
(2) Executive Order 12898: Environmental Justice
    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Population'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, and to concerns voiced by many groups outside the Agency, EPA's 
Office of Solid Waste and Emergency Response (OSWER) formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17). We have no data indicating that today's final action would 
result in disproportionately negative impacts on minority or low income 
communities.

VI. What Consideration Was Given to Tribal Governments in This Final 
Rule?

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    Today's final rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in the Order. Today's rule 
will not significantly or uniquely affect the communities of Indian 
tribal

[[Page 6807]]

governments, nor impose substantial direct compliance costs on them.

VII. Were Federalism Implications Considered in Today's Final Rule?

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Today's final rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in the Order. Thus, Executive Order 13132 does not apply 
to this rule.

VIII. Were Energy Impacts Considered?

    Executive Order 13211, ``Actions Concerning Regulations That Affect 
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the 
need for regulatory actions to more fully consider the potential energy 
impacts of the proposed rule and resulting actions. Under the Order, 
agencies are required to prepare a Statement of Energy Effects when a 
regulatory action may have significant adverse effects on energy 
supply, distribution, or use, including impacts on price and foreign 
supplies. Additionally, the requirements obligate agencies to consider 
reasonable alternatives to regulatory actions with adverse affects and 
the impacts the alternatives might have upon energy supply, 
distribution, or use.
    Today's final rule is not likely to have any significant adverse 
impact on factors affecting the national energy supply. We believe that 
Executive Order 13211 is not relevant to this action.

IX. Paperwork Reduction Act

    We have prepared an Information Collection Request (ICR) document 
(ICR No. 1773.06) listing the information collection requirements of 
this final rule, and have submitted it for approval to the Office of 
Management and Budget (OMB) under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. OMB has assigned a control number 
2050-0171 for this ICR. A copy of this ICR may be obtained from Sandy 
Farmer, OPIA Regulatory Information Division, U.S. Environmental 
Protection Agency (2137), 1200 Pennsylvania Avenue, NW., Washington DC 
20460, or by calling (202) 260-2740.
    The public burden associated with this final rule (which is under 
the Clean Air Act) is projected to affect approximately 171 HWC units 
and is estimated to average 4.3 hours per respondent annually. The 
reporting and recordkeeping cost burden is estimated to average $252 
per respondent annually. Burden means total time, effort, or financial 
resources expended by persons to generate, maintain, retain, disclose, 
or provide information to or for a Federal agency. That includes the 
time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; train personnel to be able to respond to a collection of 
information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.

X. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This final rule does not require the implementation of new 
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.

XI. Is Today's Rule Subject to Congressional Review?

    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 rule 
effective sooner than otherwise provided by the CRA if the agency makes 
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 therefore, and established an effective date of February 13, 
2002. 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).

Part Four--What Are the State Authorization and Delegation 
Implications?

I. What Is the Authority for the Interim Standards Rule?

    This rule revises the promulgated standards located at 40 CFR part 
63, subpart EEE. As in the September 30, 1999 Final HWC NESHAP, we 
encourage State, Local, and Tribal (S/L/T) agencies to apply for 
delegation under CAA section 112. Additionally, this rule adds a new 
section (40 CFR 270.235) to the RCRA regulations to provide options for 
minimizing hazardous waste combustion emissions during startup, 
shutdown, and malfunction events.

II. How Is This Rule Delegated Under the CAA?

    Section 112(l) of the CAA allows us to delegate authority to S/L/T 
programs to implement and enforce emission standards for pollutants 
subject to section 112 regulations. Thus, a S/L/T agency that receives 
112(l) delegation can implement and enforce the revised emission 
standards and other revisions being made today. A S/L/T agency also can 
implement the revisions for Title V major sources (40 CFR 70.2) via 
their Title V authority because it is independent of their delegation 
status. By having an approved Title V program, the S/L/T agency has 
demonstrated that it has the legal authority, resources, and expertise 
to implement and enforce standards for section 112 pollutants.

[[Page 6808]]

    As before, we encourage S/L/T agencies to apply for and receive 
112(l) delegation for this rule. The key advantages afforded to S/L/T 
agencies who receive delegation are that they become the primary 
enforcement authority and can exercise delegable provision authorities. 
Additionally, it ensures clear and consistent requirements for affected 
sources and regulators. For example, a source need only report 
compliance assurance monitoring to its primary enforcement authority.
    State, Local, and Tribal agencies still have the ability to choose 
which delegation options to use when applying for delegation of Federal 
authorities for this rule. The 112(l) delegation process begins when 
the S/L/T agency applies for delegation of a section 112 rule without 
changes (straight delegation), by rule adjustment, substitution of 
requirements, state program approval (SPA), or equivalency by permit 
(EBP).\27\ Also, the partial approval option is available for any S/L/T 
who cannot or chooses not to take full delegation of an entire 
standard. The drawback to this option is that it can create 
inconsistent requirements since the S/L/T agency will enforce portions 
of the standard, while we will enforce the remaining portions.
---------------------------------------------------------------------------

    \27\ Refer to Hazardous Air Pollutants: Amendments to the 
Approval of State Programs and Delegation of Federal Authorities; 
Final Rule at 65 FR 55810 or the CAA Delegation for the HWC NESHAP 
fact sheet at www.epa.gov/epaoswer/hazwaste/combust/toolkit/coverpage.htm for further information on delegation procedures.
---------------------------------------------------------------------------

    This rule will be effective upon promulgation. As with the Phase I 
NESHAP, a S/L/T agency will need to incorporate the Federal standards 
and provisions of this rule into a major source's new, renewed, or 
revised Title V permit regardless of whether it has received 
delegation. However, by receiving delegation of 112(l), a S/L/T agency 
can approve minor changes to a Federal NESHAP. For instance, it can 
substitute an emission limitation that is more stringent than a Federal 
standard.
    In light of the benefits afforded to a S/L/T agency if it receives 
112(l) delegation, we recognize that the process of applying for and 
receiving delegation can be a lengthy one. This may be especially true 
for those agencies that do not have established agreements in place to 
receive automatic delegation of unchanged standards. There are agencies 
who choose to utilize the delegation options provided under 112(l), 
which are not as straightforward as the unchanged standards. In these 
cases, the review period required when applying for one of the 
delegation options combined with a state's legislative proceedings, are 
factors that can prolong the delegation process. Therefore, we 
encourage the S/L/T agency to do what makes sense given circumstances 
relevant to timing issues and resource needs.

III. How Would States Become Authorized Under RCRA?

    Under section 3006 of RCRA, we may authorize qualified States to 
administer the RCRA hazardous waste program within the State. A State 
may receive authorization by following the approval process described 
under part 271. See 40 CFR part 271 for the overall standards and 
requirements for authorization. Following authorization, the State 
requirements authorized by us apply in lieu of equivalent Federal 
requirements and become Federally enforceable as requirements of RCRA. 
We maintain independent authority to bring enforcement actions under 
RCRA sections 3007, 3008, 3013, and 7003. Authorized States also have 
independent authority to bring enforcement actions under State law.
    Authorized States are required to modify their programs when we 
promulgate Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows 
States to impose standards more stringent than those in the Federal 
program. See also Sec. 271.1(i). Therefore, authorized States are not 
required to adopt Federal regulations, both HSWA \28\ and non-HSWA, 
that are considered less stringent than the existing requirements. The 
requirements in today's amendment are considered to be neither more nor 
less stringent than the current emission regulations because they 
provide equivalent protection. Thus, States are not required to adopt 
today's amendments to maintain an equivalent program, although we 
strongly encourage them to do so.
---------------------------------------------------------------------------

    \28\ HSWA refers to the Hazardous and Solid Waste Amendments of 
1984.
---------------------------------------------------------------------------

    Today's amendment in 40 CFR 270.235 is promulgated under both HSWA 
and non-HSWA statutory authority, depending on the waste management 
unit to which the standards apply. The authority to apply the 
provisions of 40 CFR 270.235 to cement and lightweight aggregate kilns 
is under RCRA 3004(q), which is a provision added by HSWA. Therefore, 
the Agency is adding this rule to Table 1 in Sec. 271.1(j), which 
identifies the Federal program requirements that are promulgated 
pursuant to HSWA. If a State is not authorized to implement the RCRA 
program for these units, EPA will implement today's amendments. If a 
State has such authorization, today's amendments will not become 
effective under RCRA until States adopt and become authorized for the 
revisions. The authority to apply the provisions of 40 CFR 270.235 to 
incinerators is under section 3004(a) of RCRA, a non-HSWA provision. 
Therefore, today's amendments as they apply to incinerators will not 
become effective under RCRA until States adopt and become authorized 
for the revisions.

List of Subjects

40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Incorporation by reference, Reporting and recordkeeping 
requirements.

40 CFR Part 264

    Environmental protection, Air pollution control, Hazardous waste, 
Insurance, Packaging and containers, Reporting and recordkeeping 
requirements, Security measures, Surety bonds.

40 CFR Part 265

    Environmental protection, Air pollution control, Hazardous waste, 
Insurance, Packaging and containers, Reporting and recordkeeping 
requirements.

40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Recycling, 
Reporting and recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Administrative practice and procedure, 
Confidenetial business information, Hazardous materials transportation, 
Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271

    Administrative practice and procedure, Hazardous materials 
transportation, Hazardous waste, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: February 7, 2002.
Christine Todd Whitman,
Administrator.


    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

[[Page 6809]]

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

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

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


    2. Section 63.1203 is revised to read as follows:


Sec. 63.1203  What are the standards for hazardous waste incinerators?

    (a) Emission limits for existing sources. You must not discharge or 
cause combustion gases to be emitted into the atmosphere that contain:
    (1) For dioxins and furans:
    (i) Emissions in excess of 0.20 ng TEQ/dscm corrected to 7 percent 
oxygen; or
    (ii) Emissions in excess of 0.40 ng TEQ/dscm corrected to 7 percent 
oxygen provided that the combustion gas temperature at the inlet to the 
initial particulate matter control device is 400 deg.F or lower based 
on the average of the test run average temperatures. (For purposes of 
compliance, operation of a wet particulate control device is presumed 
to meet the 400  deg.F or lower requirement);
    (2) Mercury in excess of 130 g/dscm corrected to 7 percent 
oxygen;
    (3) Lead and cadmium in excess of 240 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 97 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) For carbon monoxide and hydrocarbons, either:
    (i) Carbon monoxide in excess of 100 parts per million by volume, 
over an hourly rolling average (monitored continuously with a 
continuous emissions monitoring system), dry basis and corrected to 7 
percent oxygen. If you elect to comply with this carbon monoxide 
standard rather than the hydrocarbon standard under paragraph 
(a)(5)(ii) of this section, you must also document that, during the 
destruction and removal efficiency (DRE) test runs or their equivalent 
as provided by Sec. 63.1206(b)(7), hydrocarbons do not exceed 10 parts 
per million by volume during those runs, over an hourly rolling average 
(monitored continuously with a continuous emissions monitoring system), 
dry basis, corrected to 7 percent oxygen, and reported as propane; or
    (ii) Hydrocarbons in excess of 10 parts per million by volume, over 
an hourly rolling average (monitored continuously with a continuous 
emissions monitoring system), dry basis, corrected to 7 percent oxygen, 
and reported as propane;
    (6) Hydrochloric acid and chlorine gas in excess of 77 parts per 
million by volume, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis and corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 34 mg/dscm corrected to 7 
percent oxygen.
    (b) Emission limits for new sources. You must not discharge or 
cause combustion gases to be emitted into the atmosphere that contain:
    (1) Dioxins and furans in excess of 0.20 ng TEQ/dscm, corrected to 
7 percent oxygen;
    (2) Mercury in excess of 45 g/dscm corrected to 7 percent 
oxygen;
    (3) Lead and cadmium in excess of 120 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 97 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) For carbon monoxide and hydrocarbons, either:
    (i) Carbon monoxide in excess of 100 parts per million by volume, 
over an hourly rolling average (monitored continuously with a 
continuous emissions monitoring system), dry basis and corrected to 7 
percent oxygen. If you elect to comply with this carbon monoxide 
standard rather than the hydrocarbon standard under paragraph 
(b)(5)(ii) of this section, you must also document that, during the 
destruction and removal efficiency (DRE) test runs or their equivalent 
as provided by Sec. 63.1206(b)(7), hydrocarbons do not exceed 10 parts 
per million by volume during those runs, over an hourly rolling average 
(monitored continuously with a continuous emissions monitoring system), 
dry basis, corrected to 7 percent oxygen, and reported as propane; or
    (ii) Hydrocarbons in excess of 10 parts per million by volume, over 
an hourly rolling average (monitored continuously with a continuous 
emissions monitoring system), dry basis, corrected to 7 percent oxygen, 
and reported as propane;
    (6) Hydrochloric acid and chlorine gas in excess of 21 parts per 
million by volume, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis and corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 34 mg/dscm corrected to 7 
percent oxygen.
    (c) Destruction and removal efficiency (DRE) standard. (1) 99.99% 
DRE. Except as provided in paragraph (c)(2) of this section, you must 
achieve a destruction and removal efficiency (DRE) of 99.99% for each 
principle organic hazardous constituent (POHC) designated under 
paragraph (c)(3) of this section. You must calculate DRE for each POHC 
from the following equation:

DRE = [1-(Wout / Win)]  x  100%

Where:

Win = mass feedrate of one principal organic hazardous 
constituent (POHC) in a waste feedstream; and
Wout = mass emission rate of the same POHC present in 
exhaust emissions prior to release to the atmosphere.

    (2) 99.9999% DRE. If you burn the dioxin-listed hazardous wastes 
F020, F021, F022, F023, F026, or F027 (see Sec. 261.31 of this 
chapter), you must achieve a destruction and removal efficiency (DRE) 
of 99.9999% for each principle organic hazardous constituent (POHC) 
that you designate under paragraph (c)(3) of this section. You must 
demonstrate this DRE performance on POHCs that are more difficult to 
incinerate than tetra-, penta-, and hexachlorodibenzo-p-dioxins and 
dibenzofurans. You must use the equation in paragraph (c)(1) of this 
section to calculate DRE for each POHC. In addition, you must notify 
the Administrator of your intent to incinerate hazardous wastes F020, 
F021, F022, F023, F026, or F027.
    (3) Principal organic hazardous constituents (POHCs). (i) You must 
treat the Principal Organic Hazardous Constituents (POHCs) in the waste 
feed that you specify under paragraph (c)(3)(ii) of this section to the 
extent required by paragraphs (c)(1) and (c)(2) of this section.
    (ii) You must specify one or more POHCs from the list of hazardous 
air pollutants established by 42 U.S.C. 7412(b)(1), excluding 
caprolactam (CAS number 105602) as provided by Sec. 63.60, for each 
waste to be burned. You must base this specification on the degree of 
difficulty of incineration of the organic constituents in the waste and 
on their concentration or mass in the waste feed, considering the 
results of waste analyses or other data and information.
    (d) Significant figures. The emission limits provided by paragraphs 
(a) and (b) of this section are presented with two significant figures. 
Although you must perform intermediate calculations using at least 
three significant figures, you may round the resultant emission levels 
to two significant figures to document compliance.

    3. Section 63.1204 is revised to read as follows:


Sec. 63.1204  What are the standards for hazardous waste burning cement 
kilns?

    (a) Emission limits for existing sources. You must not discharge or

[[Page 6810]]

cause combustion gases to be emitted into the atmosphere that contain:
    (1) For dioxins and furans:
    (i) Emissions in excess of 0.20 ng TEQ/dscm corrected to 7 percent 
oxygen; or
    (ii) Emissions in excess of 0.40 ng TEQ/dscm corrected to 7 percent 
oxygen provided that the combustion gas temperature at the inlet to the 
initial dry particulate matter control device is 400 deg.F or lower 
based on the average of the test run average temperatures;
    (2) Mercury in excess of 120 g/dscm corrected to 7 percent 
oxygen;
    (3) Lead and cadmium in excess of 330 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 56 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) Carbon monoxide and hydrocarbons. (i) For kilns equipped with a 
by-pass duct or midkiln gas sampling system, either:
    (A) Carbon monoxide in the by-pass duct or mid-kiln gas sampling 
system in excess of 100 parts per million by volume, over an hourly 
rolling average (monitored continuously with a continuous emissions 
monitoring system), dry basis and corrected to 7 percent oxygen. If you 
elect to comply with this carbon monoxide standard rather than the 
hydrocarbon standard under paragraph (a)(5)(i)(B) of this section, you 
must also document that, during the destruction and removal efficiency 
(DRE) test runs or their equivalent as provided by Sec. 63.1206(b)(7), 
hydrocarbons in the by-pass duct or mid-kiln gas sampling system do not 
exceed 10 parts per million by volume during those runs, over an hourly 
rolling average (monitored continuously with a continuous emissions 
monitoring system), dry basis, corrected to 7 percent oxygen, and 
reported as propane; or
    (B) Hydrocarbons in the by-pass duct or midkiln gas sampling system 
in excess of 10 parts per million by volume, over an hourly rolling 
average (monitored continuously with a continuous emissions monitoring 
system), dry basis, corrected to 7 percent oxygen, and reported as 
propane;
    (ii) For kilns not equipped with a by-pass duct or midkiln gas 
sampling system, either:
    (A) Hydrocarbons in the main stack in excess of 20 parts per 
million by volume, over an hourly rolling average (monitored 
continuously with a continuous emissions monitoring system), dry basis, 
corrected to 7 percent oxygen, and reported as propane; or
    (B) Carbon monoxide in the main stack in excess of 100 parts per 
million by volume, over an hourly rolling average (monitored 
continuously with a continuous emissions monitoring system), dry basis 
and corrected to 7 percent oxygen. If you elect to comply with this 
carbon monoxide standard rather than the hydrocarbon standard under 
paragraph (a)(5)(ii)(A) of this section, you also must document that, 
during the destruction and removal efficiency (DRE) test runs or their 
equivalent as provided by Sec. 63.1206(b)(7), hydrocarbons in the main 
stack do not exceed 20 parts per million by volume during those runs, 
over an hourly rolling average (monitored continuously with a 
continuous emissions monitoring system), dry basis, corrected to 7 
percent oxygen, and reported as propane.
    (6) Hydrochloric acid and chlorine gas in excess of 130 parts per 
million by volume, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis, corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 0.15 kg/Mg dry feed and opacity 
greater than 20 percent.
    (i) You must use suitable methods to determine the kiln raw 
material feedrate.
    (ii) Except as provided in paragraph (a)(7)(iii) of this section, 
you must compute the particulate matter emission rate, E, from the 
following equation:

E = (Cs x Qsd) / P

Where:

E = emission rate of particulate matter, kg/Mg of kiln raw material 
feed;
Cs = concentration of particulate matter, kg/dscm;
Qsd = volumetric flowrate of effluent gas, dscm/hr; and
P = total kiln raw material feed (dry basis), Mg/hr.

    (iii) If you operate a preheater or preheater/precalciner kiln with 
dual stacks, you must test simultaneously and compute the combined 
particulate matter emission rate, Ec, from the following 
equation:

Ec = (Csk x Qsdk + Csb x 
Qsdb) / P

Where:

Ec = the combined emission rate of particulate matter from 
the kiln and bypass stack, kg/Mg of kiln raw material feed;
Csk = concentration of particulate matter in the kiln 
effluent, kg/dscm;
Qsdk = volumetric flowrate of kiln effluent gas, dscm/hr;
Csb = concentration of particulate matter in the bypass 
stack effluent, kg/dscm;
Qsdb = volumetric flowrate of bypass stack effluent gas, 
dscm/hr; and
P = total kiln raw material feed (dry basis), Mg/hr.

    (b) Emission limits for new sources. You must not discharge or 
cause combustion gases to be emitted into the atmosphere that contain:
    (1) For dioxins and furans:
    (i) Emissions in excess of 0.20 ng TEQ/dscm corrected to 7 percent 
oxygen; or
    (ii) Emissions in excess of 0.40 ng TEQ/dscm corrected to 7 percent 
oxygen provided that the combustion gas temperature at the inlet to the 
initial dry particulate matter control device is 400  deg.F or lower 
based on the average of the test run average temperatures;
    (2) Mercury in excess of 120 g/dscm corrected to 7 percent 
oxygen;
    (3) Lead and cadmium in excess of 180 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 54 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) Carbon monoxide and hydrocarbons. (i) For kilns equipped with a 
by-pass duct or midkiln gas sampling system, carbon monoxide and 
hydrocarbons emissions are limited in both the bypass duct or midkiln 
gas sampling system and the main stack as follows:
    (A) Emissions in the by-pass or midkiln gas sampling system are 
limited to either:
    (1) Carbon monoxide in excess of 100 parts per million by volume, 
over an hourly rolling average (monitored continuously with a 
continuous emissions monitoring system), dry basis and corrected to 7 
percent oxygen. If you elect to comply with this carbon monoxide 
standard rather than the hydrocarbon standard under paragraph 
(b)(5)(i)(A)(2) of this section, you also must document that, during 
the destruction and removal efficiency (DRE) test runs or their 
equivalent as provided by Sec. 63.1206(b)(7), hydrocarbons do not 
exceed 10 parts per million by volume during those runs, over an hourly 
rolling average (monitored continuously with a continuous emissions 
monitoring system), dry basis, corrected to 7 percent oxygen, and 
reported as propane; or
    (2) Hydrocarbons in the by-pass duct or midkiln gas sampling system 
in excess of 10 parts per million by volume, over an hourly rolling 
average

[[Page 6811]]

(monitored continuously with a continuous emissions monitoring system), 
dry basis, corrected to 7 percent oxygen, and reported as propane; and
    (B) Hydrocarbons in the main stack are limited, if construction of 
the kiln commenced after April 19, 1996 at a plant site where a cement 
kiln (whether burning hazardous waste or not) did not previously exist, 
to 50 parts per million by volume, over a 30-day block average 
(monitored continuously with a continuous monitoring system), dry 
basis, corrected to 7 percent oxygen, and reported as propane.
    (ii) For kilns not equipped with a by-pass duct or midkiln gas 
sampling system, hydrocarbons and carbon monoxide are limited in the 
main stack to either:
    (A) Hydrocarbons not exceeding 20 parts per million by volume, over 
an hourly rolling average (monitored continuously with a continuous 
emissions monitoring system), dry basis, corrected to 7 percent oxygen, 
and reported as propane; or
    (B)(1) Carbon monoxide not exceeding 100 parts per million by 
volume, over an hourly rolling average (monitored continuously with a 
continuous emissions monitoring system), dry basis, corrected to 7 
percent oxygen; and
    (2) Hydrocarbons not exceeding 20 parts per million by volume, over 
an hourly rolling average (monitored continuously with a continuous 
monitoring system), dry basis, corrected to 7 percent oxygen, and 
reported as propane at any time during the destruction and removal 
efficiency (DRE) test runs or their equivalent as provided by 
Sec. 63.1206(b)(7); and
    (3) If construction of the kiln commenced after April 19, 1996 at a 
plant site where a cement kiln (whether burning hazardous waste or not) 
did not previously exist, hydrocarbons are limited to 50 parts per 
million by volume, over a 30-day block average (monitored continuously 
with a continuous monitoring system), dry basis, corrected to 7 percent 
oxygen, and reported as propane.
    (6) Hydrochloric acid and chlorine gas in excess of 86 parts per 
million, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis and corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 0.15 kg/Mg dry feed and opacity 
greater than 20 percent.
    (i) You must use suitable methods to determine the kiln raw 
material feedrate.
    (ii) Except as provided in paragraph (a)(7)(iii) of this section, 
you must compute the particulate matter emission rate, E, from the 
equation specified in paragraph (a)(7)(ii) of this section.
    (iii) If you operate a preheater or preheater/precalciner kiln with 
dual stacks, you must test simultaneously and compute the combined 
particulate matter emission rate, Ec, from the equation 
specified in paragraph (a)(7)(iii) of this section.
    (c) Destruction and removal efficiency (DRE) standard. (1) 99.99% 
DRE. Except as provided in paragraph (c)(2) of this section, you must 
achieve a destruction and removal efficiency (DRE) of 99.99% for each 
principle organic hazardous constituent (POHC) designated under 
paragraph (c)(3) of this section. You must calculate DRE for each POHC 
from the following equation:

DRE = [1-(Wout / Win)]  x  100%

Where:

Win = mass feedrate of one principal organic hazardous 
constituent (POHC) in a waste feedstream; and
Wout = mass emission rate of the same POHC present in 
exhaust emissions prior to release to the atmosphere.

    (2) 99.9999% DRE. If you burn the dioxin-listed hazardous wastes 
F020, F021, F022, F023, F026, or F027 (see Sec. 261.31 of this 
chapter), you must achieve a destruction and removal efficiency (DRE) 
of 99.9999% for each principle organic hazardous constituent (POHC) 
that you designate under paragraph (c)(3) of this section. You must 
demonstrate this DRE performance on POHCs that are more difficult to 
incinerate than tetra-, penta-, and hexachlorodibenzo-p-dioxins and 
dibenzofurans. You must use the equation in paragraph (c)(1) of this 
section to calculate DRE for each POHC. In addition, you must notify 
the Administrator of your intent to incinerate hazardous wastes F020, 
F021, F022, F023, F026, or F027.
    (3) Principal organic hazardous constituents (POHCs). (i) You must 
treat the Principal Organic Hazardous Constituents (POHCs) in the waste 
feed that you specify under paragraph (c)(3)(ii) of this section to the 
extent required by paragraphs (c)(1) and (c)(2) of this section.
    (ii) You must specify one or more POHCs from the list of hazardous 
air pollutants established by 42 U.S.C. 7412(b)(1), excluding 
caprolactam (CAS number 105602) as provided by Sec. 63.60, for each 
waste to be burned. You must base this specification on the degree of 
difficulty of incineration of the organic constituents in the waste and 
on their concentration or mass in the waste feed, considering the 
results of waste analyses or other data and information.
    (d) Cement kilns with in-line kiln raw mills. (1) General. (i) You 
must conduct performance testing when the raw mill is on-line and when 
the mill is off-line to demonstrate compliance with the emission 
standards, and you must establish separate operating parameter limits 
under Sec. 63.1209 for each mode of operation, except as provided by 
paragraph (d)(1)(iv) of this section.
    (ii) You must document in the operating record each time you change 
from one mode of operation to the alternate mode and begin complying 
with the operating parameter limits for that alternate mode of 
operation.
    (iii) You must establish rolling averages for the operating 
parameter limits anew (i.e., without considering previous recordings) 
when you begin complying with the operating limits for the alternate 
mode of operation.
    (iv) If your in-line kiln raw mill has dual stacks, you may assume 
that the dioxin/furan emission levels in the by-pass stack and the 
operating parameter limits determined during performance testing of the 
by-pass stack when the raw mill is off-line are the same as when the 
mill is on-line.
    (2) Emissions averaging. You may comply with the mercury, 
semivolatile metal, low volatile metal, and hydrochloric acid/chlorine 
gas emission standards on a time-weighted average basis under the 
following procedures:
    (i) Averaging methodology. You must calculate the time-weighted 
average emission concentration with the following equation:

Ctotal = {Cmill-off  x  (Tmill-off /
(Tmill-off + Tmill-on ))} + {Cmill-on 
x  (Tmill-on /(Tmill-off + Tmill-on))}
Where:

Ctotal = time-weighted average concentration of a regulated 
constituent considering both raw mill on time and off time;
Cmill-off = average performance test concentration of 
regulated constituent with the raw mill off-line;
Cmill-on = average performance test concentration of 
regulated constituent with the raw mill on-line;
Tmill-off = time when kiln gases are not routed through the 
raw mill; and
Tmill-on = time when kiln gases are routed through the raw 
mill.

    (ii) Compliance. (A) If you use this emission averaging provision, 
you must document in the operating record compliance with the emission 
standards on an annual basis by using the equation provided by 
paragraph (d)(2) of this section.
    (B) Compliance is based on one-year block averages beginning on the 
day you

[[Page 6812]]

submit the initial notification of compliance.
    (iii) Notification. (A) If you elect to document compliance with 
one or more emission standards using this emission averaging provision, 
you must notify the Administrator in the initial comprehensive 
performance test plan submitted under Sec. 63.1207(e).
    (B) You must include historical raw mill operation data in the 
performance test plan to estimate future raw mill down-time and 
document in the performance test plan that estimated emissions and 
estimated raw mill down-time will not result in an exceedance of an 
emission standard on an annual basis.
    (C) You must document in the notification of compliance submitted 
under Sec. 63.1207(j) that an emission standard will not be exceeded 
based on the documented emissions from the performance test and 
predicted raw mill down-time.
    (e) Preheater or preheater/precalciner kilns with dual stacks. (1) 
General. You must conduct performance testing on each stack to 
demonstrate compliance with the emission standards, and you must 
establish operating parameter limits under Sec. 63.1209 for each stack, 
except as provided by paragraph (d)(1)(iv) of this section for dioxin/
furan emissions testing and operating parameter limits for the by-pass 
stack of in-line raw mills.
    (2) Emissions averaging. You may comply with the mercury, 
semivolatile metal, low volatile metal, and hydrochloric acid/chlorine 
gas emission standards specified in this section on a gas flowrate-
weighted average basis under the following procedures:
    (i) Averaging methodology. You must calculate the gas flowrate-
weighted average emission concentration using the following equation:

Ctot = {Cmain  x  (Qmain /
(Qmain + Qbypass))} + {Cbypass x 
(Qbypass / (Qmain + Qbypass))}
Where:

Ctot = gas flowrate-weighted average concentration of the 
regulated constituent;
Cmain = average performance test concentration demonstrated 
in the main stack;
Cbypass = average performance test concentration 
demonstrated in the bypass stack;
Qmain = volumetric flowrate of main stack effluent gas; and
Qbypass = volumetric flowrate of bypass effluent gas.

    (ii) Compliance. (A) You must demonstrate compliance with the 
emission standard(s) using the emission concentrations determined from 
the performance tests and the equation provided by paragraph (e)(1) of 
this section; and
    (B) You must develop operating parameter limits for bypass stack 
and main stack flowrates that ensure the emission concentrations 
calculated with the equation in paragraph (e)(1) of this section do not 
exceed the emission standards on a 12-hour rolling average basis. You 
must include these flowrate limits in the Notification of Compliance.
    (iii) Notification. If you elect to document compliance under this 
emissions averaging provision, you must:
    (A) Notify the Administrator in the initial comprehensive 
performance test plan submitted under Sec. 63.1207(e). The performance 
test plan must include, at a minimum, information describing the 
flowrate limits established under paragraph (e)(2)(ii)(B) of this 
section; and
    (B) Document in the Notification of Compliance submitted under 
Sec. 63.1207(j) the demonstrated gas flowrate-weighted average 
emissions that you calculate with the equation provided by paragraph 
(e)(2) of this section.
    (f) Significant figures. The emission limits provided by paragraphs 
(a) and (b) of this section are presented with two significant figures. 
Although you must perform intermediate calculations using at least 
three significant figures, you may round the resultant emission levels 
to two significant figures to document compliance.
    (g) [Reserved].
    (h) When you comply with the particulate matter requirements of 
paragraphs (a)(7) or (b)(7) of this section, you are exempt from the 
New Source Performance Standard for particulate matter and opacity 
under Sec. 60.60 of this chapter.

    4. Section 63.1205 is revised to read as follows:


Sec. 63.1205  What are the standards for hazardous waste burning 
lightweight aggregate kilns?

    (a) Emission limits for existing sources. You must not discharge or 
cause combustion gases to be emitted into the atmosphere that contain:
    (1) For dioxins and furans:
    (i) Emissions in excess of 0.20 ng TEQ/dscm corrected to 7 percent 
oxygen; or
    (ii) Rapid quench of the combustion gas temperature at the exit of 
the (last) combustion chamber (or exit of any waste heat recovery 
system) to 400 deg.F or lower based on the average of the test run 
average temperatures. You must also notify in writing the RCRA 
authority that you are complying with this option;
    (2) Mercury in excess of 120 g/dscm corrected to 7 percent 
oxygen;
    (3) Lead and cadmium in excess of 250 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 110 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) Carbon monoxide and hydrocarbons. (i) Carbon monoxide in excess 
of 100 parts per million by volume, over an hourly rolling average 
(monitored continuously with a continuous emissions monitoring system), 
dry basis and corrected to 7 percent oxygen. If you elect to comply 
with this carbon monoxide standard rather than the hydrocarbon standard 
under paragraph (a)(5)(ii) of this section, you also must document 
that, during the destruction and removal efficiency (DRE) test runs or 
their equivalent as provided by Sec. 63.1206(b)(7), hydrocarbons do not 
exceed 20 parts per million by volume during those runs, over an hourly 
rolling average (monitored continuously with a continuous emissions 
monitoring system), dry basis, corrected to 7 percent oxygen, and 
reported as propane; or
    (ii) Hydrocarbons in excess of 20 parts per million by volume, over 
an hourly rolling average, dry basis, corrected to 7 percent oxygen, 
and reported as propane;
    (6) Hydrochloric acid and chlorine gas in excess of 600 parts per 
million by volume, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis and corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 57 mg/dscm corrected to 7 
percent oxygen.
    (b) Emission limits for new sources. You must not discharge or 
cause combustion gases to be emitted into the atmosphere that contain:
    (1) For dioxins and furans:
    (i) Emissions in excess of 0.20 ng TEQ/dscm corrected to 7 percent 
oxygen; or
    (ii) Rapid quench of the combustion gas temperature at the exit of 
the (last) combustion chamber (or exit of any waste heat recovery 
system) to 400 deg.F or lower based on the average of the test run 
average temperatures. You must also notify in writing the RCRA 
authority that you are complying with this option;
    (2) Mercury in excess of 120 g/dscm corrected to 7 percent 
oxygen;

[[Page 6813]]

    (3) Lead and cadmium in excess of 43 g/dscm, combined 
emissions, corrected to 7 percent oxygen;
    (4) Arsenic, beryllium, and chromium in excess of 110 g/
dscm, combined emissions, corrected to 7 percent oxygen;
    (5) Carbon monoxide and hydrocarbons. (i) Carbon monoxide in excess 
of 100 parts per million by volume, over an hourly rolling average 
(monitored continuously with a continuous emissions monitoring system), 
dry basis and corrected to 7 percent oxygen. If you elect to comply 
with this carbon monoxide standard rather than the hydrocarbon standard 
under paragraph (b)(5)(ii) of this section, you also must document 
that, during the destruction and removal efficiency (DRE) test runs or 
their equivalent as provided by Sec. 63.1206(b)(7), hydrocarbons do not 
exceed 20 parts per million by volume during those runs, over an hourly 
rolling average (monitored continuously with a continuous emissions 
monitoring system), dry basis, corrected to 7 percent oxygen, and 
reported as propane; or
    (ii) Hydrocarbons in excess of 20 parts per million by volume, over 
an hourly rolling average, dry basis, corrected to 7 percent oxygen, 
and reported as propane;
    (6) Hydrochloric acid and chlorine gas in excess of 41 parts per 
million by volume, combined emissions, expressed as hydrochloric acid 
equivalents, dry basis and corrected to 7 percent oxygen; and
    (7) Particulate matter in excess of 57 mg/dscm corrected to 7 
percent oxygen.
    (c) Destruction and removal efficiency (DRE) standard. (1) 99.99% 
DRE. Except as provided in paragraph (c)(2) of this section, you must 
achieve a destruction and removal efficiency (DRE) of 99.99% for each 
principal organic hazardous constituent (POHC) designated under 
paragraph (c)(3) of this section. You must calculate DRE for each POHC 
from the following equation:

DRE = [1--(Wout / Win)]  x  100%
Where:

Win = mass feedrate of one principal organic hazardous 
constituent (POHC) in a waste feedstream; and
Wout = mass emission rate of the same POHC present in 
exhaust emissions prior to release to the atmosphere.

    (2) 99.9999% DRE. If you burn the dioxin-listed hazardous wastes 
F020, F021, F022, F023, F026, or F027 (see Sec. 261.31 of this 
chapter), you must achieve a destruction and removal efficiency (DRE) 
of 99.9999% for each principal organic hazardous constituent (POHC) 
that you designate under paragraph (c)(3) of this section. You must 
demonstrate this DRE performance on POHCs that are more difficult to 
incinerate than tetra-, penta-, and hexachlorodibenzo-dioxins and 
dibenzofurans. You must use the equation in paragraph (c)(1) of this 
section to calculate DRE for each POHC. In addition, you must notify 
the Administrator of your intent to burn hazardous wastes F020, F021, 
F022, F023, F026, or F027.
    (3) Principal organic hazardous constituents (POHCs). (i) You must 
treat the Principal Organic Hazardous Constituents (POHCs) in the waste 
feed that you specify under paragraph (c)(3)(ii) of this section to the 
extent required by paragraphs (c)(1) and (c)(2) of this section.
    (ii) You must specify one or more POHCs from the list of hazardous 
air pollutants established by 42 U.S.C. 7412(b)(1), excluding 
caprolactam (CAS number 105602) as provided by Sec. 63.60, for each 
waste to be burned. You must base this specification on the degree of 
difficulty of incineration of the organic constituents in the waste and 
on their concentration or mass in the waste feed, considering the 
results of waste analyses or other data and information.
    (d) Significant figures. The emission limits provided by paragraphs 
(a) and (b) of this section are presented with two significant figures. 
Although you must perform intermediate calculations using at least 
three significant figures, you may round the resultant emission levels 
to two significant figures to document compliance.

    5. Section 63.1206 is amended by:
    a. Revising paragraph (b)(1)(i).
    b. Adding paragraph (b)(15).
    c. Revising paragraphs (c)(2)(i), (c)(2)(ii), (c)(4)(i), and 
(c)(4)(iv).
    d. Adding paragraph (c)(2)(v).
    The revisions and additions read as follows:


Sec. 63.1206  When and how must you comply with the standards and 
operating requirements?

* * * * *
    (b) * * *
    (1) * * *
    (i) During periods of startup, shutdown, and malfunction; and
* * * * *
    (15) Alternative to the interim standards for mercury for cement 
and lightweight aggregate kilns. (i) General. In lieu of complying with 
the applicable mercury standards of Secs. 63.1204(a)(2) and (b)(2) for 
existing and new cement kilns and Secs. 63.1205(a)(2) and (b)(2) for 
existing and new lightweight aggregate kilns, you may instead elect to 
comply with the alternative mercury standard described in paragraphs 
(b)(15)(ii) through (b)(15)(v) of this section.
    (ii) Operating requirement. You must not exceed a hazardous waste 
feedrate corresponding to a maximum theoretical emission concentration 
(MTEC) of 120 g/dscm on a twelve-hour rolling average.
    (iii) To document compliance with the operating requirement of 
paragraph (b)(15)(ii) of this section, you must:
    (A) Monitor and record the feedrate of mercury for each hazardous 
waste feedstream according to Sec. 63.1209(c);
    (B) Monitor with a CMS and record in the operating record the gas 
flowrate (either directly or by monitoring a surrogate parameter that 
you have correlated to gas flowrate);
    (C) Continuously calculate and record in the operating record a 
MTEC assuming mercury from all hazardous waste feedstreams is emitted;
    (D) Interlock the MTEC calculated in paragraph (b)(15)(iii)(C) of 
this section to the AWFCO system to stop hazardous waste burning when 
the MTEC exceeds the operating requirement of paragraph (b)(15)(ii) of 
this section.
    (iv) In lieu of the requirement in paragraph (b)(15)(iii) of this 
section, you may:
    (A) Identify in the Notification of Compliance a minimum gas 
flowrate limit and a maximum feedrate limit of mercury from all 
hazardous waste feedstreams that ensures the MTEC calculated in 
paragraph (b)(15)(iii)(C) of this section is below the operating 
requirement of paragraph (b)(15)(ii) of this section; and
    (B) Interlock the minimum gas flowrate limit and maximum feedrate 
limits in paragraph (b)(15)(iv)(A) of this section to the AWFCO system 
to stop hazardous waste burning when the gas flowrate or mercury 
feedrate exceeds the limits in paragraph (b)(15)(iv)(A) of this 
section.
    (v) Notification requirement. You must notify in writing the RCRA 
authority that you intend to comply with the alternative standard.
    (c) * * *
    (2) Startup, shutdown, and malfunction plan. (i) You are subject to 
the startup, shutdown, and malfunction plan requirements of 
Sec. 63.6(e)(3).
    (ii) If you elect to comply with Secs. 270.235(a)(1)(iii), 
270.235(a)(2)(iii), or 270.235(b)(1)(ii) of this chapter to address 
RCRA concerns that you minimize emissions of toxic compounds from 
startup, shutdown, and malfunction events (including releases from 
emergency safety vents):
    (A) The startup, shutdown, and malfunction plan must include a

[[Page 6814]]

description of potential causes of malfunctions, including releases 
from emergency safety vents, that may result in significant releases of 
hazardous air pollutants, and actions the source is taking to minimize 
the frequency and severity of those malfunctions.
    (B) You must submit the startup, shutdown, and malfunction plan to 
the Administrator for review and approval.
    (1) Approval procedure. The Administrator will notify you of 
approval or intention to deny approval of the startup, shutdown, and 
malfunction plan within 90 calendar days after receipt of the original 
request and within 60 calendar days after receipt of any supplemental 
information that you submit. Before disapproving the plan, the 
Administrator will notify you of the Administrator's intention to 
disapprove the plan together with:
    (i) Notice of the information and findings on which intended 
disapproval is based; and
    (ii) Notice of opportunity for you to present additional 
information to the Administrator before final action on disapproval of 
the plan. At the time the Administrator notifies you of intention to 
disapprove the plan, the Administrator will specify how much time you 
will have after being notified on the intended disapproval to submit 
additional information.
    (2) Responsibility of owners and operators. You are responsible for 
ensuring that you submit any supplementary and additional information 
supporting your plan in a timely manner to enable the Administrator to 
consider whether to approve the plan. Neither your submittal of the 
plan, nor the Administrator's failure to approve or disapprove the 
plan, relieves you of the responsibility to comply with the provisions 
of this subpart.
    (C) Changes to the plan that may significantly increase emissions. 
(1) You must request approval in writing from the Administrator within 
5 days after making a change to the startup, shutdown, and malfunction 
plan that may significantly increase emissions of hazardous air 
pollutants.
    (2) To request approval of such changes to the startup, shutdown, 
and malfunction plan, you must follow the procedures provided by 
paragraph (c)(2)(ii)(B) of this section for initial approval of the 
plan.
* * * * *
    (v) Operating under the startup, shutdown, and malfunction plan. 
(A) Compliance with AWFCO requirements during malfunctions. (1) During 
malfunctions, the automatic waste feed cutoff requirements of 
Sec. 63.1206(c)(3) continue to apply, except for paragraphs (c)(3)(v) 
and (c)(3)(vi) of this section. If you exceed a part 63, Subpart EEE, 
of this chapter emission standard monitored by a CEMS or COMs or 
operating limit specified under Sec. 63.1209, the automatic waste feed 
cutoff system must immediately and automatically cutoff the hazardous 
waste feed, except as provided by paragraph (c)(3)(viii) of this 
section. If the malfunction itself prevents immediate and automatic 
cutoff of the hazardous waste feed, however, you must cease feeding 
hazardous waste as quickly as possible.
    (2) Although the automatic waste feed cutoff requirements continue 
to apply during a malfunction, an exceedance of an emission standard 
monitored by a CEMS or COMS or operating limit specified under 
Sec. 63.1209 is not a violation of this subpart if you take the 
corrective measures prescribed in the startup, shutdown, and 
malfunction plan.
    (3) Excessive exceedances during malfunctions. For each set of 10 
exceedances of an emission standard or operating requirement while 
hazardous waste remains in the combustion chamber (i.e., when the 
hazardous waste residence time has not transpired since the hazardous 
waste feed was cutoff) during a 60-day block period, you must:
    (i) Within 45 days of the 10th exceedance, complete an 
investigation of the cause of each exceedance and evaluation of 
approaches to minimize the frequency, duration, and severity of each 
exceedance, and revise the startup, shutdown, and malfunction plan as 
warranted by the evaluation to minimize the frequency, duration, and 
severity of each exceedance; and
    (ii) Record the results of the investigation and evaluation in the 
operating record, and include a summary of the investigation and 
evaluation, and any changes to the startup, shutdown, and malfunction 
plan, in the excess emissions report required under Sec. 63.10(e)(3).
    (B) Compliance with AWFCO requirements when burning hazardous waste 
during startup and shutdown. (1) If you feed hazardous waste during 
startup or shutdown, you must include waste feed restrictions (e.g., 
type and quantity), and other appropriate operating conditions and 
limits in the startup, shutdown, and malfunction plan.
    (2) You must interlock the operating limits you establish under 
paragraph (c)(2)(v)(B)(1) of this section with the automatic waste feed 
cutoff system required under Sec. 63.1206(c)(3), except for paragraphs 
(c)(3)(v) and (c)(3)(vi) of this section.
    (3) When feeding hazardous waste during startup or shutdown, the 
automatic waste feed cutoff system must immediately and automatically 
cutoff the hazardous waste feed if you exceed the operating limits you 
establish under paragraph (c)(2)(v)(B)(1) of this section, except as 
provided by paragraph (c)(3)(viii) of this section.
    (4) Although the automatic waste feed cutoff requirements of this 
paragraph apply during startup and shutdown, an exceedance of an 
emission standard or operating limit is not a violation of this subpart 
if you comply with the operating procedures prescribed in the startup, 
shutdown, and malfunction plan.
* * * * *
    (4) * * * (i) Failure to meet standards. If an emergency safety 
vent (ESV) opens when hazardous waste remains in the combustion chamber 
(i.e., when the hazardous waste residence time has not expired) during 
an event other than a malfunction as defined in the startup, shutdown, 
and malfunction plan such that combustion gases are not treated as 
during the most recent comprehensive performance test (e.g., if the 
combustion gas by-passes any emission control device that was operating 
during the performance test), you must document in the operating record 
whether you remain in compliance with the emission standards of this 
subpart considering emissions during the ESV opening event.
* * * * *
    (iv) Reporting requirements. You must submit to the Administrator a 
written report within 5 days of an ESV opening that results in failure 
to meet the emission standards of this subpart (as determined in 
paragraph (c)(4)(i) of this section) documenting the result of the 
investigation and corrective measures taken.
* * * * *

    6. Section 63.1207 is amended by:
    a. Revising paragraph (c)(2)(i)(A).
    b. Adding paragraph (c)(2)(iii).
    c. Revising paragraphs (d) introductory text, (d)(1), and (d)(2).
    d. Adding paragraph (d)(4).
    The revisions and additions read as follows:


Sec. 63.1207  What are the performance testing requirements?

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *

[[Page 6815]]

    (A) Initiated after 54 months prior to the compliance date, except 
as provided by paragraph (c)(2)(iii) of this section;
* * * * *
    (iii) The data in lieu of test age restriction provided in 
paragraph (c)(2)(i)(A) of this section does not apply for the duration 
of the interim standards (i.e., the standards published in the Federal 
Register on February 13, 2002. Paragraph (c)(2)(i)(A) of this section 
does not apply until EPA promulgates permanent replacement standards 
pursuant to the Settlement Agreement noticed in the Federal Register on 
November 16, 2001.
* * * * *
    (d) Frequency of testing. Except as otherwise specified in 
paragraph (d)(4) of this section, you must conduct testing periodically 
as prescribed in paragraphs (d)(1) through (d)(3) of this section. The 
date of commencement of the initial comprehensive performance test is 
the basis for establishing the deadline to commence the initial 
confirmatory performance test and the next comprehensive performance 
test. You may conduct performance testing at any time prior to the 
required date. The deadline for commencing subsequent confirmatory and 
comprehensive performance testing is based on the date of commencement 
of the previous comprehensive performance test. Unless the 
Administrator grants a time extension under paragraph (i) of this 
section, you must conduct testing as follows:
    (1) Comprehensive performance testing. Except as otherwise 
specified in paragraph (d)(4) of this section, you must commence 
testing no later than 61 months after the date of commencing the 
previous comprehensive performance test. If you submit data in lieu of 
the initial performance test, you must commence the subsequent 
comprehensive performance test within 61 months of commencing the test 
used to provide the data in lieu of the initial performance test.
    (2) Confirmatory performance testing. Except as otherwise specified 
in paragraph (d)(4) of this section, you must commence confirmatory 
performance testing no later than 31 months after the date of 
commencing the previous comprehensive performance test. If you submit 
data in lieu of the initial performance test, you must commence the 
initial confirmatory performance test within 31 months of the date six 
months after the compliance date. To ensure that the confirmatory test 
is conducted approximately midway between comprehensive performance 
tests, the Administrator will not approve a test plan that schedules 
testing within 18 months of commencing the previous comprehensive 
performance test.
* * * * *
    (4) Applicable testing requirements under the interim standards. 
(i) Waiver of periodic comprehensive performance tests. Except as 
provided by paragraph (c)(2) of this section, you must conduct only an 
initial comprehensive performance test under the interim standards 
(i.e., the standards published in the Federal Register on February 13, 
2002; all subsequent comprehensive performance testing requirements are 
waived under the interim standards. The provisions in the introductory 
text to paragraph (d) and in paragraph (d)(1) of this section do not 
apply until EPA promulgates permanent replacement standards pursuant to 
the Settlement Agreement noticed in the Federal Register on November 
16, 2001.
    (ii) Waiver of confirmatory performance tests. You are not required 
to conduct a confirmatory test under the interim standards (i.e., the 
standards published in the Federal Register on February 13, 2002. The 
confirmatory testing requirements in the introductory text to paragraph 
(d) and in paragraph (d)(2) of this section are waived until EPA 
promulgates permanent replacement standards pursuant to the Settlement 
Agreement noticed in the Federal Register on November 16, 2001.
* * * * *

    7. Section 63.1209 is amended by:
    a. Revising paragraphs (k) introductory text, (k)(1), and 
(k)(7)(i).
    b. Removing paragraph (m)(1)(i)(D).
    The revisions read as follows:


Sec. 63.1209  What are the monitoring requirements?

* * * * *
    (k) Dioxins and furans. You must comply with the dioxin and furans 
emission standard by establishing and complying with the following 
operating parameter limits. You must base the limits on operations 
during the comprehensive performance test, unless the limits are based 
on manufacturer specifications.
    (1) Gas temperature at the inlet to a dry particulate matter 
control device. (i) For hazardous waste burning incinerators and cement 
kilns, if the combustor is equipped with an electrostatic precipitator, 
baghouse (fabric filter), or other dry emissions control device where 
particulate matter is suspended in contact with combustion gas, you 
must establish a limit on the maximum temperature of the gas at the 
inlet to the device on an hourly rolling average. You must establish 
the hourly rolling average limit as the average of the test run 
averages.
    (ii) For hazardous waste burning lightweight aggregate kilns, you 
must establish a limit on the maximum temperature of the gas at the 
exit of the (last) combustion chamber (or exit of any waste heat 
recovery system) on an hourly rolling average. The limit must be 
established as the average of the test run averages;
* * * * *
    (7) * * *
    (i) Monitoring bed life. You must:
    (A) Monitor performance of the carbon bed consistent with 
manufacturer's specifications and recommendations to ensure the carbon 
bed (or bed segment for sources with multiple segments) has not reached 
the end of its useful life to minimize dioxin/furan and mercury 
emissions at least to the levels required by the emission standards;
    (B) Document the monitoring procedures in the operation and 
maintenance plan;
    (C) Record results of the performance monitoring in the operating 
record; and
    (D) Replace the bed or bed segment before it has reached the end of 
its useful life to minimize dioxin/furan and mercury emissions at least 
to the levels required by the emission standards.
* * * * *

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.


    2. Section 264.340 is amended by revising paragraph (b)(1) and 
adding paragraph (b)(4) to read as follows:


Sec. 264.340  Applicability.

* * * * *
    (b) * * * (1) Except as provided by paragraphs (b)(2), (b)(3), and 
(b)(4) of this section, the standards of this part no longer apply when 
an owner or operator demonstrates compliance with the maximum 
achievable control technology (MACT) requirements of part 63, subpart 
EEE, of this chapter by conducting a comprehensive performance test and 
submitting to the Administrator a Notification of Compliance under 
Secs. 63.1207(j) and 63.1210(b) of this chapter documenting compliance 
with the requirements of part 63, subpart EEE, of this chapter. 
Nevertheless, even after this

[[Page 6816]]

demonstration of compliance with the MACT standards, RCRA permit 
conditions that were based on the standards of this part will continue 
to be in effect until they are removed from the permit or the permit is 
terminated or revoked, unless the permit expressly provides otherwise.
* * * * *
    (4) The following requirements remain in effect for startup, 
shutdown, and malfunction events if you elect to comply with 
Sec. 270.235(a)(1)(i) of this chapter to minimize emissions of toxic 
compounds from these events:
    (i) Section 264.345(a) requiring that an incinerator operate in 
accordance with operating requirements specified in the permit; and
    (ii) Section 264.345(c) requiring compliance with the emission 
standards and operating requirements during startup and shutdown if 
hazardous waste is in the combustion chamber, except for particular 
hazardous wastes.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937, unless otherwise noted.


    2. Section 265.340 is amended by revising paragraph (b)(1) and 
adding paragraph (b)(3) to read as follows:


Sec. 265.340  Applicability.

* * * * *
    (b) * * * (1) Except as provided by paragraphs (b)(2) and (b)(3) of 
this section, the standards of this part no longer apply when an owner 
or operator demonstrates compliance with the maximum achievable control 
technology (MACT) requirements of part 63, subpart EEE, of this chapter 
by conducting a comprehensive performance test and submitting to the 
Administrator a Notification of Compliance under Secs. 63.1207(j) and 
63.1210(b) of this chapter documenting compliance with the requirements 
of part 63, subpart EEE, of this chapter.
* * * * *
    (3) Section 265.345 generally prohibiting burning of hazardous 
waste during startup and shutdown remains in effect if you elect to 
comply with Sec. 270.235(b)(1)(i) of this chapter to minimize emissions 
of toxic compounds from startup and shutdown.
* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

    1. The authority citation for part 266 continues to read as 
follows:

    Authority: 42 U.S.C. 1006, 2002(a), 3004, and 3014, 6905, 6906, 
6912, 6922, 6924, 6925, and 6937.


    2. Section 266.100 is amended by redesignating paragraphs 
(b)(2)(i), (b)(2)(ii), (b)(2)(iii), and (b)(2)(iv) as paragraphs 
(b)(2)(ii), (b)(2)(iii), (b)(2)(iv), and (b)(2)(v), respectively, and 
adding new paragraph (b)(2)(i) to read as follows:


Sec. 266.100  Applicability.

* * * * *
    (b) * * *
    (2) * * *
    (i) If you elect to comply with Sec. 270.235(a)(1)(i) of this 
chapter to minimize emissions of toxic compounds from startup, 
shutdown, and malfunction events, Sec. 266.102(e)(1) requiring 
operations in accordance with the operating requirements specified in 
the permit at all times that hazardous waste is in the unit, and 
Sec. 266.102(e)(2)(iii) requiring compliance with the emission 
standards and operating requirements during startup and shutdown if 
hazardous waste is in the combustion chamber, except for particular 
hazardous wastes. These provisions apply only during startup, shutdown, 
and malfunction events;
* * * * *

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

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

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


    2. Section 270.19 is amended by revising paragraph (e) to read as 
follows:


Sec. 270.19  Specific part B information requirements for incinerators.

* * * * *
    (e) When an owner or operator demonstrates compliance with the air 
emission standards and limitations in part 63, subpart EEE, of this 
chapter (i.e., by conducting a comprehensive performance test and 
submitting a Notification of Compliance), the requirements of this 
section do not apply, except those provisions the Director determines 
are necessary to ensure compliance with Secs. 264.345(a) and 264.345(c) 
of this chapter if you elect to comply with Sec. 270.235(a)(1)(i) to 
minimize emissions of toxic compounds from startup, shutdown, and 
malfunction events. Nevertheless, the Director may apply the provisions 
of this section, on a case-by-case basis, for purposes of information 
collection in accordance with Secs. 270.10(k) and 270.32(b)(2).

    3. Section 270.22 is amended by revising introductory text to read 
as follows:


Sec. 270.22  Specific part B information requirements for boilers and 
industrial furnaces burning hazardous waste.

    When an owner or operator of a cement or lightweight aggregate kiln 
demonstrates compliance with the air emission standards and limitations 
in part 63, subpart EEE, of this chapter (i.e., by conducting a 
comprehensive performance test and submitting a Notification of 
Compliance), the requirements of this section do not apply, except 
those provisions the Director determines are necessary to ensure 
compliance with Secs. 266.102(e)(1) and 266.102(e)(2)(iii) of this 
chapter if you elect to comply with Sec. 270.235(a)(1)(i) to minimize 
emissions of toxic compounds from startup, shutdown, and malfunction 
events. Nevertheless, the Director may apply the provisions of this 
section, on a case-by-case basis, for purposes of information 
collection in accordance with Secs. 270.10(k) and 270.32(b)(2).
* * * * *

    4. Section 270.62 is amended by revising introductory text to read 
as follows:


Sec. 270.62  Hazardous waste incinerator permits.

    When an owner or operator demonstrates compliance with the air 
emission standards and limitations in part 63, subpart EEE, of this 
chapter (i.e., by conducting a comprehensive performance test and 
submitting a Notification of Compliance), the requirements of this 
section do not apply, except those provisions the Director determines 
are necessary to ensure compliance with Secs. 264.345(a) and 264.345(c) 
of this chapter if you elect to comply with Sec. 270.235(a)(1)(i) to 
minimize emissions of toxic compounds from startup, shutdown, and 
malfunction events. Nevertheless, the Director may apply the provisions 
of this section, on a case-by-case basis, for purposes of information 
collection in accordance with Secs. 270.10(k) and 270.32(b)(2).
* * * * *

[[Page 6817]]


    5. Section 270.66 is amended by revising introductory text to read 
as follows:


Sec. 270.66  Permits for boilers and industrial furnaces burning 
hazardous waste.

    When an owner or operator of a cement or lightweight aggregate kiln 
demonstrates compliance with the air emission standards and limitations 
in part 63, subpart EEE, of this chapter (i.e., by conducting a 
comprehensive performance test and submitting a Notification of 
Compliance), the requirements of this section do not apply, except 
those provisions the Director determines are necessary to ensure 
compliance with Secs. 266.102(e)(1) and 266.102(e)(2)(iii) of this 
chapter if you elect to comply with Sec. 270.235(a)(1)(i) to minimize 
emissions of toxic compounds from startup, shutdown, and malfunction 
events. Nevertheless, the Director may apply the provisions of this 
section, on a case-by-case basis, for purposes of information 
collection in accordance with Secs. 270.10(k) and 270.32(b)(2).
* * * * *

    6. Part 270 is amended by adding Subpart I to read as follows:

Subpart I--Integration with Maximum Achievable Control Technology 
(MACT) Standards


Sec. 270.235  Options for incinerators and cement and lightweight 
aggregate kilns to minimize emissions from startup, shutdown, and 
malfunction events.

    (a) Facilities with existing permits. (1) Revisions to permit 
conditions after documenting compliance with MACT. The owner or 
operator of a RCRA-permitted incinerator, cement kiln, or lightweight 
aggregate kiln may request that the Director address permit conditions 
that minimize emissions from startup, shutdown, and malfunction events 
under any of the following options when requesting removal of permit 
conditions that are no longer applicable according to Secs. 264.340(b) 
and 266.100(b) of this chapter:
    (i) Retain relevant permit conditions. Under this option, the 
Director will:
    (A) Retain permit conditions that address releases during startup, 
shutdown, and malfunction events, including releases from emergency 
safety vents, as these events are defined in the facility's startup, 
shutdown, and malfunction plan required under Sec. 63.1206(c)(2) of 
this chapter; and
    (B) Limit applicability of those permit conditions only to when the 
facility is operating under its startup, shutdown, and malfunction 
plan.
    (ii) Revise relevant permit conditions. (A) Under this option, the 
Director will:
    (1) Identify a subset of relevant existing permit requirements, or 
develop alternative permit requirements, that ensure emissions of toxic 
compounds are minimized from startup, shutdown, and malfunction events, 
including releases from emergency safety vents, based on review of 
information including the source's startup, shutdown, and malfunction 
plan, design, and operating history.
    (2) Retain or add these permit requirements to the permit to apply 
only when the facility is operating under its startup, shutdown, and 
malfunction plan.
    (B) Changes that may significantly increase emissions. (1) You must 
notify the Director in writing of changes to the startup, shutdown, and 
malfunction plan or changes to the design of the source that may 
significantly increase emissions of toxic compounds from startup, 
shutdown, or malfunction events, including releases from emergency 
safety vents. You must notify the Director of such changes within five 
days of making such changes. You must identify in the notification 
recommended revisions to permit conditions necessary as a result of the 
changes to ensure that emissions of toxic compounds are minimized 
during these events.
    (2) The Director may revise permit conditions as a result of these 
changes to ensure that emissions of toxic compounds are minimized 
during startup, shutdown, or malfunction events, including releases 
from emergency safety vents either:
    (i) Upon permit renewal, or, if warranted;
    (ii) By modifying the permit under Secs. 270.41(a) or 270.42.
    (iii) Remove permit conditions. Under this option:
    (A) The owner or operator must document that the startup, shutdown, 
and malfunction plan required under Sec. 63.1206(c)(2) of this chapter 
has been approved by the Administrator under Sec. 63.1206(c)(2)(ii)(B) 
of this chapter; and
    (B) The Director will remove permit conditions that are no longer 
applicable according to Secs. 264.340(b) and 266.100(b) of this 
chapter.
    (2) Addressing permit conditions upon permit reissuance. The owner 
or operator of an incinerator, cement kiln, or lightweight aggregate 
kiln that has conducted a comprehensive performance test and submitted 
to the Administrator a Notification of Compliance documenting 
compliance with the standards of part 63, subpart EEE, of this chapter 
may request in the application to reissue the permit for the combustion 
unit that the Director control emissions from startup, shutdown, and 
malfunction events under any of the following options:
    (i) RCRA option A. (A) Under this option, the Director will:
    (1) Include, in the permit, conditions that ensure compliance with 
Secs. 264.345(a) and 264.345(c) or Secs. 266.102(e)(1) and 
266.102(e)(2)(iii) of this chapter to minimize emissions of toxic 
compounds from startup, shutdown, and malfunction events, including 
releases from emergency safety vents; and
    (2) Specify that these permit requirements apply only when the 
facility is operating under its startup, shutdown, and malfunction 
plan.; or
    (ii) RCRA option B. (A) Under this option, the Director will:
    (1) Include, in the permit conditions, that ensure emissions of 
toxic compounds are minimized from startup, shutdown, and malfunction 
events, including releases from emergency safety vents, based on review 
of information including the source's startup, shutdown, and 
malfunction plan, design, and operating history; and
    (2) Specify that these permit requirements apply only when the 
facility is operating under its startup, shutdown, and malfunction 
plan.
    (B) Changes that may significantly increase emissions. (1) You must 
notify the Director in writing of changes to the startup, shutdown, and 
malfunction plan or changes to the design of the source that may 
significantly increase emissions of toxic compounds from startup, 
shutdown, or malfunction events, including releases from emergency 
safety vents. You must notify the Director of such changes within five 
days of making such changes. You must identify in the notification 
recommended revisions to permit conditions necessary as a result of the 
changes to ensure that emissions of toxic compounds are minimized 
during these events.
    (2) The Director may revise permit conditions as a result of these 
changes to ensure that emissions of toxic compounds are minimized 
during startup, shutdown, or malfunction events, including releases 
from emergency safety vents either:
    (i) Upon permit renewal, or, if warranted;
    (ii) By modifying the permit under Secs. 270.41(a) or 270.42; or
    (iii) CAA option. Under this option:
    (A) The owner or operator must document that the startup, shutdown, 
and malfunction plan required under Sec. 63.1206(c)(2) of this chapter 
has been

[[Page 6818]]

approved by the Administrator under Sec. 63.1206(c)(2)(ii)(B) of this 
chapter; and
    (B) The Director will omit from the permit conditions that are not 
applicable under Secs. 264.340(b) and 266.100(b) of this chapter.
    (b) Interim status facilities. (1) Interim status operations. In 
compliance with Secs. 265.340 and 266.100(b), the owner or operator of 
an incinerator, cement kiln, or lightweight aggregate kiln that is 
operating under the interim status standards of part 265 or 266 of this 
chapter may control emissions of toxic compounds during startup, 
shutdown, and malfunction events under either of the following options 
after conducting a comprehensive performance test and submitting to the 
Administrator a Notification of Compliance documenting compliance with 
the standards of part 63, subpart EEE, of this chapter:
    (i) RCRA option. Under this option, the owner or operator continues 
to comply with the interim status emission standards and operating 
requirements of part 265 or 266 of this chapter relevant to control of 
emissions from startup, shutdown, and malfunction events. Those 
standards and requirements apply only during startup, shutdown, and 
malfunction events; or
    (ii) CAA option. Under this option, the owner or operator is exempt 
from the interim status standards of part 265 or 266 of this chapter 
relevant to control of emissions of toxic compounds during startup, 
shutdown, and malfunction events upon submission of written 
notification and documentation to the Director that the startup, 
shutdown, and malfunction plan required under Sec. 63.1206(c)(2) of 
this chapter has been approved by the Administrator under 
Sec. 63.1206(c)(2)(ii)(B) of this chapter.
    (2) Operations under a subsequent RCRA permit. When an owner or 
operator of an incinerator, cement kiln, or lightweight aggregate kiln 
that is operating under the interim status standards of parts 265 or 
266 of this chapter submits a RCRA permit application, the owner or 
operator may request that the Director control emissions from startup, 
shutdown, and malfunction events under any of the options provided by 
paragraphs (a)(2)(i), (a)(2)(ii), or (a)(2)(iii) of this section.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    7. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 9605, 6912(2), and 6926.

    8. Section 271.1(j) is amended by adding the following entry to 
Table 1 in chronological order by date of publication (``Promulgation 
date'') in the Federal Register, to read as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                Federal Register
        Promulgation date             Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
February 13, 2002................  Interim Standards for      [Insert page No.]...  February 13, 2002.
                                    Hazardous Air Pollutants
                                    for Hazardous Waste
                                    Combustors.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-3346 Filed 2-12-02; 8:45 am]
BILLING CODE 6560-50-P