[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Proposed Rules]
[Pages 18528-18546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8951]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 261, 262, 264, 265, and 270

[FRL -7170-8]
RIN 2090-AA28


New Jersey Gold Track Program Under Project XL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; Request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
to modify the regulations under the Resource Conservation and Recovery 
Act (RCRA) and the Clean Air Act (CAA) to enable the implementation of 
the New Jersey Department of Environmental Protection (NJDEP) Gold 
Track Program (Gold Track), which has been developed under EPA's 
Project eXcellence and Leadership (Project XL) Program. Project XL is a 
national pilot program that allows state and local governments, 
businesses and federal facilities to develop with EPA innovative 
strategies to test better or more cost-effective ways of achieving 
environmental and public health protection. In exchange, EPA will issue 
regulatory, program, policy, or procedural flexibilities to conduct the 
pilot experiments.
    In today's proposed rule, EPA is providing high performing 
companies in New Jersey with the regulatory flexibility to test 
environmental management strategies that produce increased, measurable 
results. NJDEP has expressed an interest in Project XL to test new 
pilot ideas with a select group of facilities that focus resources on 
activities NJDEP believes would provide progressively greater 
environmental benefits than are achievable through compliance with 
current regulatory requirements. This proposed rule is intended to 
provide the multimedia regulatory flexibility that will enable these 
test projects to move forward.
    Under the proposed CAA rule modifications, participating Gold Track 
facilities would be able to obtain a Plantwide Applicability Limit 
(PAL) based on past actual emissions. As long as a Gold Track facility 
did not exceed the emission level identified in its PAL for a 
particular pollutant, it would be exempted from major New Source Review 
(NSR) for that pollutant. Also, this proposed rule encourages the 
development of Combined Heat and Power (CHP) technologies in New Jersey 
by allowing a CHP facility participating in Gold Track to obtain a PAL 
using its own past actual emissions plus the offset emissions derived 
from the shutting down or curtailment of boilers at the off-site 
facility.
    Under today's proposed modifications under RCRA for Gold Track 
participants, secondary materials destined for recycling that would 
otherwise be considered solid wastes would be excluded from the 
definition of solid waste, provided certain conditions are met. 
Participating facilities would also be allowed up to 180 days (or 270 
days as applicable) to accumulate hazardous waste without a permit as 
long as specified conditions are met.

DATES: Public Comments: All public comments on the proposed rule must 
be received on or before May 16, 2002, unless a public hearing is 
requestesd, in which case comments must be received no later than 30 
days following the hearing. Comments provided electronically will be 
considered timely if they are submitted electronically by 11:59 p.m. 
(Eastern time) May 16, 2002, unless a public hearing is requested, in 
which case they must be received by 11:59 p.m. (Eastern time) on the 
date 30 days following the hearing.
    Public Hearing: Commenters may request a public hearing by April 
30, 2002, during the public comment period. Commenters requesting a 
public hearing should specify the basis for their request. If a hearing 
is requested based on a relevant issue, it will be held by May 7, 2002, 
during the last week of the public comment period. Requests for a 
public hearing should be submitted to the address below. If a public 
hearing is scheduled, the date, time, and location will be available 
through a Federal Register announcement or by contacting Mr. Stan 
Siegel at the U.S. EPA Region 2 office.

ADDRESSES: Comments: Written comments should be mailed to the RCRA 
Information Center Docket Clerk (5305W), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Please send an 
original and two copies of all comments, and refer to Docket Number F-
2001-NJGP-FFFFF.
    Request for a Hearing: Requests for a hearing should be mailed to 
the RCRA Information Center Docket Clerk (5305G), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460. 
Please send an original and two copies of all comments, and refer to 
Docket Number F-2001-NJGP-FFFFF. A copy should also be sent to Mr. Stan 
Siegel at the U.S. EPA Region 2 office. Mr. Siegel may be contacted at 
the following address: U.S. Environmental Protection Agency, Region 2, 
290 Broadway, 25th Floor, New York, NY 10007, (212) 637-3701.
    Viewing Project Materials: A docket containing the proposed rule, 
Final Project Agreement, supporting materials, and public comments is 
available for public inspection and copying at the RCRA Information 
Center (RIC), located at Crystal Gateway, 1235 Jefferson Davis Highway, 
First Floor, Arlington, Virginia. The RIC is open from 9 am to 4 pm 
Monday through Friday, excluding Federal holidays. The public is 
encouraged to phone in

[[Page 18529]]

advance to review docket materials. Appointments can be scheduled by 
phoning the Docket Office at (703) 603-9230. Refer to RCRA docket 
number F-2001-NJGP-FFFFF. The public may copy a maximum of 100 pages 
from any regulatory docket at no charge. Additional copies cost 15 
cents per page. Project materials are also available for review for 
today's action on the World Wide Web at http://www.epa.gov/projectxl/.
    A duplicate copy of the docket is available for inspection and 
copying at the U.S. EPA Region 2 Library, 290 Broadway, 16th Floor, New 
York, NY 10007, during normal business hours. Persons wishing to view 
the duplicate docket at the New York location are encouraged to contact 
Mr. Siegel in advance, by telephoning (212) 637-3701.

FOR FURTHER INFORMATION CONTACT: Mr. Siegel, or Mr. David Beck, (919) 
541-5421 or Mr. Chad Carbone, (202) 564-1017, U.S. EPA, Room 1027WT 
(1807), 1200 Pennsylvania Ave., NW, Washington, DC 20460. Further 
information on today's action may also be viewed on the World Wide Web 
at http://www.epa.gov/projectxl/. For additional information on the 
applicant process see supplementary information.

SUPPLEMENTARY INFORMATION: The Gold Track Program (Gold Track) is part 
of NJDEP's efforts to create a State-run tiered performance-based 
program. Currently, facilities may join NJDEP's Silver Track Program, 
which is a lower-level tier that provides recognition for commitments 
to a certain level of environmental enhancement. Gold Track expands 
upon these environmental commitments, and offers proportionally greater 
recognition, as well as actual federal regulatory flexibility to 
participating facilities. NJDEP is partnering with EPA in the Gold 
Track effort under the XL program, so as to be able to offer federal 
regulatory flexibility to Gold Track participants.
    NJDEP will require that facilities participating in Gold Track 
commit to: community outreach; a demonstrated Environmental Management 
System; declining facility-wide air emissions caps based on past actual 
emissions; conversion of all non-de minimis air sources to State-of-
the-Art controls over 15 years; procurement of advanced technology/
alternative fuel vehicles; commitment to procure cleaner energy; 
greenhouse gas reductions of a minimum of 3.5% below 1990 baseline 
levels within five years of executing a Gold Track covenant with NJDEP; 
and enhanced pollution prevention.
    Gold Track will be limited to nine participants who must pass a 
rigorous screening and application process. Upon acceptance into Gold 
Track, NJDEP will enter into a covenant agreement with each 
participating facility that will detail all aspects of Gold Track 
participation, monitoring, and reporting. Facility covenant terms and 
performance standards will be made enforceable through a combination of 
federal and state rule changes, as well as changes to individual 
facility permits.
    The terms of the overall Gold Track XL project are contained in a 
Final Project Agreement (FPA) which was the subject of a Notice of 
Availability published in the Federal Register on December 20, 2000 (65 
FR 79854) and which was signed by EPA and NJDEP on January 19, 2001. 
The Final Project Agreement (FPA) is available to the public at the EPA 
Docket in Washington, DC, in the U.S. EPA Region 2 Library, and on the 
World Wide Web at http://www.epa.gov/projectxl/.
    The rules proposed for revision under the CAA are being proposed 
under a procedure called parallel processing, whereby EPA proposes 
rulemaking action concurrently with the state's procedures for amending 
its regulations. If the proposed revision is substantially changed in 
areas other than those identified in this document, EPA will evaluate 
those changes and may publish another notice of proposed rulemaking. If 
no substantial changes are made other than those areas cited in this 
document, EPA will publish a final rulemaking on the revisions. The 
state proposed rules cited in this proposed rulemaking can be obtained 
from the NJDEP by contacting Mr. Walter Brown (609-292-0716) at its 
Office of Legal Affairs, 401 E. State Street, Trenton, New Jersey. This 
is also available through the NJDEP Web site, www.state.nj.us/dep/opppc. The proposed state rules can also be viewed as part of the 
docket for this proposed rule at the locations listed under ADDRESSES 
above. The final rulemaking action by EPA will occur only after the SIP 
revision has been adopted by New Jersey and submitted formally to EPA 
for incorporation into the SIP.

Outline of Today's Proposed Rule

    The information presented in this preamble is organized as follows:

I. Authority
II. Background
    A. What is Project XL?
    B. What is EPA Announcing?
    C. How Have Stakeholders Been Involved in this Project?
    D. What are the Goals of Gold Track?
    E. What Regulatory Changes Will Be Necessary to Implement this 
Project?
    F. Why is EPA Considering Allowing Gold Track?
    G. What Are the Environmental Benefits Anticipated through Gold 
Track?
    H. What Are the Provisions for Enforcing the Terms of Gold 
Track?
    I. How Long Will this Project Last and When Will It Be 
Completed?
    J. Project Expectations.
    K. Gold Track Implementation Procedures.
    L. Early Termination/Withdrawal Procedures for EPA or NJDEP.
III. Summary of Proposed Rule Changes under the Clean Air Act
    A. Summary of Regulatory Requirements for the Gold Track.
    B. Prevention of Significant Deterioration of Air Quality (PSD) 
Regulations.
    C. Major Nonattainment NSR.
    D. Proposed Regulatory Changes.
    1. Changes to the Definition of ``Major Modification.''
    2. Duration of Plantwide Applicability Limits (PALs).
    3. Changes to the Definition of ``Building, Structure, Facility, 
and Installation'' for Combined Heat and Power (CHP) Facilities.
IV. Summary of the Proposed Rule Conditions under the Resource 
Conservation and Recovery Act
    A. Exclusion from the Definition of Solid Waste for Materials 
Destined for Recycling.
    1. Purpose and Context of Proposed Rule
    2. Rationale for Allowing an Exclusion from the Definition of 
Solid Waste
    3. Applicability of the Exclusion from the Definition of Solid 
Waste
    4. Criteria for Obtaining a Solid Waste Exclusion from NJDEP
    5. Protection of Human Health and the Environment
    6. Summary of Applicable Management Standards for Excluded Solid 
Waste
    (i) Types of Hazardous Waste not Eligible for Exclusion under
    Gold Track
    (ii) Requirements for Confirmation from NJDEP Prior to Exclusion
    (iii) Notification of Changes in Operation
    (iv) Storage of Excluded Materials Destined for Recycling
    (v) Labeling Storage Containers
    (vi) Monitoring and Record Keeping
    (vii) Annual Report
    B. 180-Day Accumulation Period for Hazardous Waste Generated by 
Gold Track Participants
    1. Purpose and Context of Proposed Rule
    2. Rationale for Allowing Gold Track Facilities 180 Days (or 270 
Days) to Accumulate Waste
    3. Protection of Human Health and the Environment
    4. Additional Accumulation Time for Transport over 200 Miles
    5. Summary of Applicable Management Standards
    (i) Accumulation Units
    (ii) Measures to Ensure Wastes are not Accumulated for More Than 
180 (or 270) Days
    (iii) Labeling and Marking Accumulation Units

[[Page 18530]]

    (iv) Preparedness and Prevention
    (v) Contingency Plan and Emergency Procedures
    (vi) Personnel Training
    6. Special Conditions for Gold Track Generators Accumulating 
Hazardous Waste for up to 180 (or 270) Days
    C. State Authority--Applicability of Rules in Authorized States
    V. Additional Information
    A. Executive Order 12866
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Tribal Governments
    H. National Technology Transfer and Advancement Act
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

I. Authority

    These regulations are proposed under the authority of sections 
101(b)(1), 110, 161-169, 172-173, and 301(a)(1) of the Clean Air Act 
(CAA); and under the authority of sections 2002 and 3002 of the Solid 
Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912 and 6922.

II. Background

A. What Is Project XL?

    Project XL, which stands for ``eXcellence and Leadership,'' is a 
national pilot program that tests innovative ways of achieving better 
and more cost-effective public health and environmental protection 
through site-specific agreements with project sponsors. Project XL was 
announced on March 16, 1995 (see 60 FR 27282 (May 23, 1995) and 60 FR 
55569 (November 1, 1995). The intent of Project XL is to allow EPA, 
States, and regulated entities to experiment with pragmatic, 
potentially promising regulatory approaches, both to assess whether 
they provide superior environmental performance and other benefits at 
the specific facility affected, and also whether they should be 
considered for wider application. Today's proposed regulation would 
enable implementation of Gold Track. These pilot efforts are crucial to 
EPA's ability to test new strategies that reduce the regulatory burden 
and promote economic growth while achieving better environmental and 
public health protection.

B. What Is EPA Announcing?

    On September 30, 1999, NJDEP submitted a proposal for a pilot 
project under the Project XL Program to EPA. The process for reviewing 
and accepting the pilot project included gathering input from industry 
representatives, non-governmental organizations, State and EPA 
officials, as well as providing opportunity for public participation. 
As discussed in more detail below, the proposal has advanced to the 
final steps of the Project XL process. In today's proposed rule, EPA 
announces revisions to the national Air regulations at 40 CFR 51.165 
and 52.1603 that will allow Gold Track to be implemented. However, 
NJDEP will need to revise its own regulations to authorize the pilot 
program, submit a SIP revision to EPA for approval and issue modified 
permits to participating companies before this rule can be implemented.
    EPA is also proposing revisions to regulations for the management 
of hazardous waste including 40 CFR parts 261, 262, 264, 265, and 270 
that would enable NJDEP to implement the portions of this project 
requiring RCRA regulatory changes. These changes to the RCRA 
regulations would not take effect in New Jersey until the changes are 
codified as state law.

C. How Have Stakeholders Been Involved in This Project?

    Gold Track is the culmination of joint public and private sector 
discussions conducted over the past several years. Starting in 1996, 
the New Jersey Chemical Industry Project (NJICP) identified and 
evaluated opportunities to implement creative solutions for more 
efficient and effective environmental performance. The stakeholders 
participating in the NJCIP included representatives from the batch 
chemical industry, trade associations, community, academic and 
environmental groups, USEPA and the NJDEP. A subset of this group and 
additional experts and non-governmental organizations (NGOs) formed the 
Flexible Track Team, which developed the framework and many of the 
details which NJDEP adopted for the Silver and Gold Track Program. The 
establishment of Gold Track is the direct outgrowth of proposals 
identified by these stakeholders. NJDEP invited all stakeholders 
including environmental groups, NGOs, industry representatives, and 
other interested parties to participate in the development of Gold 
Track.
    To further encourage input during the Gold Track Final Project 
Agreement (FPA) development process, NJDEP provided public notice of 
the meeting schedule for the February 15, March 2, and March 16, 2000 
Gold Track stakeholder meetings. The announcement was published in the 
Star Ledger, the Courier Post, and the Asbury Park Press, on or about 
the 11th of February. NJDEP also posted a legal advertisement for the 
March 16, 2000 meeting in the March 6, 2000 New Jersey Register. 
Additional stakeholder meetings were completed by the end of June 2000. 
All Gold Track Stakeholder meeting schedules were posted on NJDEP's Web 
site at http://www.state.nj.us/dep/opppc/.
    Stakeholders will also have formal opportunities to comment on 
provisions of any state rules that may be proposed to implement the 
program. In addition, under the CAA, stakeholders will have formal 
opportunities to comment on any modified permits and other legal 
implementing mechanisms under the procedures established at 40 CFR 
51.165 and 52.1603 and this rule. We invite interested stakeholders to 
submit comments on this proposed rule to the contacts listed in the 
ADDRESSES section above.
    NJDEP will require that participants accepted into Gold Track 
conduct quarterly meetings with a local community outreach citizen 
advisory panel as part of their community outreach program. These 
meetings are envisioned as an extension of the State-level stakeholder 
process.

D. What Are the Goals of Gold Track?

    Gold Track is part of NJDEP's efforts to create a State-run tiered 
performance-based program. Currently, facilities may join NJDEP's 
Silver Track Program, which is a lower-level tier that provides 
recognition for commitments to a certain level of environmental 
enhancement. Gold Track expands upon these environmental commitments, 
and offers proportionally greater recognition, as well as federal 
regulatory flexibility to participating facilities. NJDEP is partnering 
with EPA in the Gold Track effort under the XL program, so as to be 
able to offer federal regulatory flexibility to Gold Track 
participants.
    Gold Track, once implemented, would be the top performance tier of 
NJDEP's Silver and Gold Program for Environmental Performance. New 
Jersey's goal in creating this tiered system is to encourage 
environmentally progressive companies to commit to further reductions 
in emissions and to adopt environmentally sustainable practices beyond 
those currently

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required by Federal or State law. In initiating the Gold Track Program, 
NJDEP is pursuing reductions in criteria and hazardous air pollutants, 
carbon dioxide and other greenhouse gases, encouraging enhanced 
hazardous waste management, promoting procurement of renewable energy, 
fostering facilities' use of environmental management systems, and 
increasing companies' accountability to and communication with the 
general public and local communities. In return for meeting the 
stringent entry requirements and environmental commitments of Gold 
Track, participating facilities will receive certain CAA and RCRA 
regulatory flexibilities which are described in greater detail in 
Sections III and IV below.
    As part of the application process, facilities wishing to 
participate in Gold Track must certify that they are currently in 
compliance with all environmental obligations and confirm participation 
in programs that promote responsible environmental practices, as 
defined further in the FPA. Gold Track applicants must demonstrate a 
``historically good environmental record,'' which means that an 
applicant must have no criminal or significant civil violations and 
must maintain up-to-date facility or institutional environmental plans. 
NJDEP will conduct a 5-year review of the enforcement history of each 
Gold Track applicant, in conjunction with the applicant's self-
certification of compliance with all environmental regulations. The 
review will include any informal and formal enforcement actions taken 
against the applicant, patterns of recurring minor violations, ongoing 
investigations, and pending court actions. In addition, NJDEP will 
coordinate with EPA to review the applicant's compliance status with 
federal laws and regulations using the EPA's Project XL compliance 
screening guidance (available on the EPA Web site, http://www.epa.gov/ProjectXL). Further details regarding the compliance screening of Gold 
Track applicants may be found in the Gold Track FPA.
    Finally, it should be noted that EPA sees this project as an 
opportunity to gather information about recycling of some materials 
that might otherwise be classified as hazardous wastes and hazardous 
waste generator accumulation requirements (see Section IV).
    Table 1 presents the commitments required and incentives provided 
to Gold Track participants.

          Table 1.--NJDEP Gold Track Commitments and Incentives
 
 
 
                               Commitments
 State of the Art Control of non de minimis sources phased in
 over 15 years.
 Community Outreach; Implement a community outreach policy,
 provide summary of facility operations, hold quarterly meetings with
 Citizens Advisory Panel, hold an annual public meeting.
 Environmental Management System (EMS): Demonstrate an
 established standard EMS, with third-party and self audit review
 component, or ISO14000 certification.
 Enhanced pollution prevention.
 Procurement of Advanced Technology/ Alternative Fuel Vehicles
 for company fleet.
 Procurement of cleaner energy where reasonable.
 Greenhouse gas reductions of a minimum of 3.5% below 1990
 baseline levels by the year 2005.
 Declining air emissions caps and air quality modeling.
 Participation in the ozone action partnership, watershed
 partnership.
 Monitoring and tracking of 5 sustainable State indicators. (NJ
 Sustainability indicators may be found at http://www.state.nj.us/dep/dsr/sustainable-state/
                               Incentives
 Recognition as a Gold Track facility.
 Single point of contact within NJDEP for permitting purposes.
 Expedited permitting.
 Electronic reporting for State-only measures.
 Research and Development flexibility (state-only).
 Facility-wide air pollution caps, with no preconstruction
 review for de minimis modifications if total cap levels are not
 exceeded.
 Special incentive offered for combined heat and power
 facilities. (see Section III for more details).
 Opportunities to apply for exemptions from the definition of
 solid waste for materials destined for recycling (see Section IV for
 more details)
 180 days for generators to accumulate hazardous waste without
 having to obtain a RCRA permit. (see Section IV for more details)
 

E. What Regulatory Changes Will Be Necessary to Implement this Project?

    Changes to existing regulations under both the Clean Air Act (CAA) 
and Resource Recovery and Conservation Act (RCRA) will be needed to 
implement some portions of Gold Track. Adoption of revisions through 
this proposed rulemaking does not signal EPA's willingness to adopt 
those revisions or amendments as a general matter. The scope of Gold 
Track will be limited to no more than nine carefully screened New 
Jersey facilities, that have achieved the status of Gold Track 
participants as determined by NJDEP (entrance criteria and screening 
processes including performance commitments and demonstrations of 
environmental performance and compliance, are described in detail in 
the Gold Track FPA). Nothing in these regulatory changes shall be 
construed to allow violation or circumvention of provisions of the CAA 
and/or RCRA.
    In order to implement the portion of the project that involves 
facility-wide air emissions caps under the CAA, EPA is proposing to 
create Gold Track-specific changes to the definition of ``major 
modification'' in 40 CFR 51.165 and corresponding changes to 40 CFR 
52.1603. For the portion of the project that encourages the use of 
combined heat and power (CHP), EPA is proposing Gold Track-specific 
changes to the definition of ``building, structure, facility, or 
installation'' in 40 CFR 51.165 and corresponding changes to 40 CFR 
52.1603.
    EPA is proposing to amend RCRA regulations found at 40 CFR 261.4 to 
authorize facilities to apply for an exemption from NJDEP from the 
definition of a solid waste for materials destined for recycling. In 
addition, EPA is proposing to amend 40 CFR 262.120 to allow generators 
to accumulate hazardous waste for up to 180 days (270 days in some 
cases) as opposed to 90

[[Page 18532]]

days without a RCRA permit subject to certain conditions. In addition, 
minor changes to Parts 264, 265 and 270 are being proposed as discussed 
below. Refer to Sections III and IV below for further details on these 
proposed CAA and RCRA rule revisions and amendments.

F. Why Is EPA Considering Allowing Gold Track?

    The XL program is intended to allow EPA to experiment with untried, 
potentially promising regulatory approaches, both to assess whether 
they provide benefits at the specific facility affected, and whether 
they should be considered for wider application. Pilot projects such as 
Gold Track allow EPA to proceed more quickly than would be possible 
when undertaking changes on a nationwide basis. As part of this 
experimentation, EPA may try out approaches or legal interpretations 
that depart from or are even inconsistent with longstanding Agency 
practice, so long as those interpretations are within the broad range 
of discretion enjoyed by the Agency in interpreting statutes that it 
implements. EPA may also modify rules that represent one of several 
possible policy approaches within a more general statutory directive, 
so long as the alternative being used is permissible under the statute.
    EPA believes that adopting alternative policy approaches and 
interpretations, on a limited, project-specific basis and in connection 
with carefully selected pilot projects such as Gold Track, is 
consistent with the expectations of Congress about EPA's role in 
implementing the environmental statutes (so long as the Agency acts 
within the discretion allowed by the statute). Congress' recognition 
that there is a need for experimentation and research, as well as 
ongoing re-evaluation of environmental programs, is reflected in a 
variety of statutory provisions, such as sections 101(b) and 103 of the 
CAA and RCRA section 8001.

G. What Are the Environmental Benefits Anticipated Through Gold Track?

    This XL project is expected to achieve superior environmental 
performance beyond that which is required under the current RCRA and 
CAA regulatory system by allowing NJDEP and companies participating in 
Gold Track to focus on priority environmental goals identified by 
NJDEP, EPA and other Gold Track stakeholders in exchange for regulatory 
flexibility. In general, this project is expected to produce additional 
benefits by:
     Reducing pollutant loadings to the environment beyond the 
reductions currently achieved through the existing state and federal 
regulatory programs. (The amount of reduction in pollutant loading will 
be calculated from facility-specific environmental performance data and 
data related to environmental impacts, in order to allow EPA and NJDEP 
to quantify the environmental benefit derived from Gold Track), and
     Providing EPA and NJDEP with information on how the 
current regulatory programs might be better oriented towards the 
achievement of higher levels of environmental performance.
    EPA's intent is to enable NJDEP to administer Gold Track in a way 
to best further those objectives. Some of the specific environmental 
benefits that will be realized through Gold Track include:
     Environmental benefits from greater community involvement: 
NJDEP will require Gold Track facilities to implement a community 
outreach program, provide community stakeholders with a summary of 
facility operations, hold quarterly meetings with a locally organized 
Citizens Advisory Panel, and to hold an annual public meeting for all 
interested stakeholders. Because these commitments to community 
outreach go beyond those required by current regulation, communities 
will have access to more information about the performance of local 
facilities. This public scrutiny will also provide an incentive for 
participating facilities to maintain a high level of environmental 
performance. All permits and significant modifications implementing the 
Gold Track provisions will be subject to public review and comment.
    Research indicates that public disclosure is a powerful incentive 
for facilities to reduce their releases of pollutants into the 
environment. The Toxics Release Inventory (TRI) and the ``33/50'' 
Program are two examples of EPA programs that demonstrate this effect. 
EPA summarized much of this research in an assessment of the incentives 
created by public disclosure supporting regulations published August 4, 
2000 (65 FR 48107). Further, because participation in Gold Track is 
entirely voluntary, EPA believes that facilities that make the choice 
to apply and to demonstrate their commitments to environmental 
improvements in the public spotlight will be imposing upon themselves 
an increased level of transparency and incentive to deliver this 
heightened level of performance.
     Environmental benefits from participants using an EMS: All 
Gold Track participants must, prior to acceptance into the program, 
demonstrate to NJDEP that they are either ISO 14000 certified or have 
an established Environmental Management System (EMS) in place that has 
an independent third party and self audit review component. EMSs 
integrate environmental considerations into routine decision-making at 
facilities, establish work practices that consistently reduce 
environmental risks and releases, evaluate environmental performance, 
and set management priorities based on the environmental impacts of 
individual facilities. Because they organize and consolidate 
information on a facility's environmental obligations and potential 
weaknesses for management, EMSs often improve the facility's compliance 
record and reduce accidents. Many EMS frameworks address unregulated 
environmental impacts as well as regulated impacts. Thus, an EMS 
provides a facility with the ability to assess and mitigate impacts 
that are most significant for the facility or that pose the most risk 
to the ecosystem and the community surrounding the facility. An EMS 
helps enable a facility to take additional environmental mitigation 
actions that are highly effective and appropriate, potentially 
providing better environmental results than the existing regulatory 
structure alone.
    EPA believes that EMSs hold the potential for improving the overall 
environmental performance of private and public entities. Gold Track 
will serve to further promote and encourage responsible environmental 
management by requiring all participants to develop, apply and maintain 
comprehensive EMSs as a condition of their acceptance into the program.
     Environmental benefits from commitments to reduce 
greenhouse gases (GHGs), purchase of Alternative Fuel Vehicles, and 
procurement of cleaner energy: NJDEP will require Gold Track facilities 
to commit to a variety of measures aimed at reducing overall air 
pollution loadings. These provisions are explained more fully in the 
Gold Track FPA (65 FR 79854).
     Environmental benefits from facility-wide declining air 
emissions caps: As explained in more detail in Section III., NJDEP will 
require each Gold Track facility to have a facility-wide declining 
actual emissions cap that will be lowered by 5% every five years. This 
Gold Track provision will provide net air quality improvements that 
would otherwise not be required under the current regulatory system.
     Environmental benefits from an increase in the recycling 
and re-use of hazardous waste: Increased levels of recycling and reuse 
of hazardous waste have a number of environmental and

[[Page 18533]]

health benefits including: (1) A decrease in reliance on limited 
natural resources; (2) a decrease in the energy necessary to produce 
the raw hazardous material; (3) a decrease in the potential for 
accidental spills or releases during handling and transportation of a 
hazardous waste; (4) an increase in production efficiency; and (5) the 
elimination of releases and emissions from the treatment and disposal 
of hazardous waste.

H. What Are the Provisions for Enforcing the Terms of Gold Track?

    All XL Projects must include a legally enforceable mechanism to 
ensure accountability and superior environmental performance. Gold 
Track will be administered by the State, with individual voluntary 
covenant agreements drawn up between participating facilities and 
NJDEP, and attendant enforceable Gold Track permits and compliance 
plans. As described in the FPA, NJDEP and EPA may enforce the terms of 
permits, regulations, or other legal implementing mechanisms as 
provided under applicable law. NJDEP has indicated that its enforcement 
response would vary depending upon the actual performance of a 
participating Gold Track facility, as well as the severity of any 
violation. As stated in the FPA, a facility's participation in Gold 
Track is not relevant to any issue of law or fact in any legal 
proceeding for violations of environmental regulations.
    If the Project is terminated, or the participation of a Gold Track 
facility is terminated, either because the Program term has ended or 
because of an early withdrawal or termination, the procedures set forth 
in the FPA will be followed, to ensure an orderly return to compliance 
with otherwise applicable regulations. Gold Track facilities are 
expected to anticipate and plan for all activities to return to 
compliance with applicable regulations in advance of the end of the 
Program term. In situations of early withdrawal or termination, interim 
compliance periods may be negotiated, but Gold Track facilities must 
plan to be in compliance with all applicable Federal, State and local 
requirements as soon as is practicable, but no later than six months 
from the date of termination or withdrawal.

I. How Long Will This Project Last and When Will It Be Completed?

    The federal rulemaking for this project is proposed to remain in 
effect for eighteen years from the date that the federal final 
rulemaking becomes effective, unless it is terminated earlier by either 
EPA or NJDEP, or extended by both EPA and NJDEP (if the FPA and final 
rule making is extended, EPA will seek comments and input of 
stakeholders and will publish a Federal Register notice). Either EPA or 
NJDEP may terminate its participation in this project at any time in 
accordance with the procedures set forth in the FPA. Those procedures 
require EPA to provide written notice to NJDEP at least 60 days before 
the termination. The proposed regulatory changes that enable the 
implementation of this XL project contain a sunset provision that will 
effectively terminate the regulations automatically after eighteen 
years, unless further action is taken to extend the XL project (or end 
it sooner). Covenants negotiated between NJDEP and participating 
facilities will have a maximum implementation length of fifteen years.
    Should on-going evaluation during the course of the XL project 
indicate that the project is not successful, EPA and NJDEP will 
promulgate a rule to remove these regulations prior to the eighteen-
year sunset provision. However, EPA may promulgate a rule to withdraw 
these regulations at any time, subject to the procedures agreed to in 
the FPA, for any reason including, but not limited to, a substantial 
failure on the part of NJDEP or Gold Track participants to comply with 
the terms and conditions of the FPA or if Gold Track becomes 
inconsistent with future statutory requirements.

J. Project Expectations

    Although the Gold Track FPA is not legally binding, and NJDEP, EPA 
or a participating facility may withdraw from Gold Track at any time, 
it is the desire of EPA and NJDEP that the Gold Track Program should 
remain in effect throughout the expected duration of eighteen years, 
and be implemented as fully as possible unless one of the following 
conditions below occurs:
    (1) Failure of EPA and/or NJDEP to disclose material facts during 
the development of the FPA.
    (2) Failure of Gold Track to provide superior environmental 
performance consistent with the provisions of the FPA.
    (3) Enactment or promulgation of any environmental, health or 
safety law or regulation after execution of the FPA, which renders Gold 
Track legally, technically or economically impracticable.

K. Gold Track Implementation Procedures

    The FPA sets out detailed implementation procedures that the State 
has agreed to incorporate into its regulations. EPA is not 
incorporating these procedures into federal rules under RCRA or the CAA 
because it will not be the implementing agency for this project. 
Rather, it is authorizing New Jersey to review applications, select 
participating facilities, and otherwise carry out the program. EPA, 
however, is relying on many of these implementation procedures as part 
of the basis for its finding that the Gold Track Program will continue 
to protect human health and the environment while relaxing certain 
existing regulatory requirements. Some of the most important State 
implementation requirements are:
    (1) An entity who wishes to participate in Gold Track will be 
required to submit a Gold Track application to NJDEP. Once a complete 
application is received, NJDEP will determine if the application 
satisfies the eligibility criteria outlined below. NJDEP will review 
all plans, permits, registrations, approvals and any other documents 
that the applicant is required to have and maintain by State and 
federal environmental statutes, rules and regulations to determine if 
they are up to date, accurate and approved. NJDEP will select the nine 
best eligible candidates.
    If NJDEP determines that a Gold Track application is incomplete, 
NJDEP will issue a Notice of Deficiency (NOD) identifying the 
incomplete items and advising what is needed to complete the Gold Track 
application. Facilities will have 30 days after receiving a Notice of 
Deficiency to submit missing items. If the application remains 
incomplete after thirty days, the application will be rejected, and the 
applicant would be required to wait six months before reapplying.
    (2) In order to participate in Gold Track, an applicant must 
demonstrate that it complies with the following criteria:
    (i) The applicant has no significant violations or non-minor 
violations, as designated in EPA and NJDEP regulatory requirements. Any 
significant or non-minor violation in any media within five consecutive 
years of applying to Gold Track shall result in an automatic exclusion 
from Gold Track;
    (ii) The applicant has submitted any plan required by statute, 
regulation or permit to NJDEP or EPA as required, in a timely manner 
(i.e., a Discharge Prevention, Control and Countermeasures Plan under 
N.J.A.C. 7:1E; or an Operations and Maintenance Plan as required by a 
solid waste facility permit);
    (iii) The applicant has complied with any executed site remediation 
Memorandum of Understanding or other

[[Page 18534]]

directive issued by or executed with NJDEP for the performance of any 
regulated activity;
    (iv) The applicant has no ongoing State or federal environmental 
investigations or pending court actions; and,
    (v) The applicant has no State or federal criminal violations.
    (3) In determining an applicant's eligibility to participate in 
Gold Track, NJDEP will:
    (i) Review on a case-by-case basis any minor violations committed 
by the Gold Track applicant during the five-year period preceding the 
filing of its application. In conducting this review NJDEP will 
consider:
     The number and type of minor violations committed by the 
applicant;
     Whether those violations were entitled to a grace period 
under N.J.S.A. 13:1D-125 et seq.;
     Whether the violations occurred at a source that had a 
continuous emissions monitor installed; and, if so, whether the 
violations have occurred more recently with decreasing frequency (i.e., 
there is a downward trend in the frequency of the occurrence of these 
violations); and;
     The corrective steps, if any, that the applicant has taken 
to avoid future violations; and
     The size and scope of the facility.
    (ii) Consider the conduct of the applicant in responding to 
violations. In cases where the applicant has entered into an 
Administrative Consent Order (ACO), NJDEP, at a minimum, expects there 
to be compliance with all milestones, terms and conditions that are 
contained in the ACO. An entity that is accepted into Gold Track will 
continue to have a duty to comply with the milestones, terms and 
conditions of a valid ACO, if applicable.
    (4) To be eligible to participate in the Gold Track Program, an 
applicant will show that it:
    (i) Has implemented an Environmental Management System (EMS) which 
consists of the following minimum components:
     An environmental policy with commitment from top 
management;
     A commitment to continuous environmental improvement;
     Community outreach/communication with components set forth 
below;
     Monitoring and measurement;
     Self audit; and;
     An independent third party audit.
    (ii) Has implemented a Community Outreach Program, which shall 
consist of the following minimum components:
     A written policy that articulates a commitment to two-way, 
open communication with employees and the community;
     A ``Plain English'' summary of what the facility does 
(operations), the environmental impacts of these operations, and how 
the facility maintains compliance with all applicable environmental 
laws;
     Establishment of a Community Outreach Advisory Panel 
(COPAC), with a minimum of quarterly meetings conducted each calendar 
year;
     Clearly articulated objectives and goals for interacting 
with the community;
     Distribution of an annual report to the COPAC on the 
facility's environmental performance;
     Conduct an annual public meeting where changes in facility 
operations and environmental compliance issues are discussed; and;
     A process to continually evaluate the effectiveness and 
relevancy of the community outreach program.
    (5) Once NJDEP approves an application for a facility to enter Gold 
Track, and prior to the participating entity being granted regulatory 
flexibility, NJDEP and the participating entity will develop a Gold 
Track Covenant, which will have a term of 15 consecutive years and will 
become effective upon execution by both the participating entity's 
responsible official and the Commissioner, or duly authorized 
representative of the NJDEP. EPA is allowing the New Jersey Gold Track 
rule to be in effect for a time period totaling eighteen years. NJDEP 
will have a period of three years from the date of final rule 
promulgation to get the Gold Track Program up and running and an 
additional 15 years in which to implement covenants with Gold Track 
facilities under the rule.
    (6) When the NJDEP modifies the Gold Track facilities' permits to 
incorporate the proposed flexibility, it must include a provision that 
requires the facilities to return to compliance with current regulatory 
requirements at the expiration or termination of the FPA, including an 
interim compliance period as described in Section XI. of the FPA.
    Gold Track facilities that are RCRA hazardous waste generators 
would also need to return to compliance with current generator 
requirements at the expiration or termination of the project.
    At the end of the interim compliance period, the Gold Track 
facility shall comply with all applicable requirements and regulations 
that exist at the time of program termination. The interim compliance 
period cannot extend beyond six months from the date of withdrawal or 
termination.
    Additional details are available in the FPA. EPA is also proposing 
to codify these requirements under its RCRA regulations.

L. Early Termination/Withdrawal Procedures for EPA or NJDEP

    EPA and NJDEP agree that the following procedures will be used to 
withdraw from or terminate their participation in Gold Track before 
expiration of the Gold Track term.
    (1) If EPA and/or NJDEP want to terminate or withdraw from Gold 
Track, EPA and/or NJDEP will provide written notice to the other party 
at least sixty (60) days before the withdrawal or termination and 
comply with the procedures identified in Section IX of the FPA.
    (2) The procedures described in Section IX of the FPA apply only to 
the decision to withdraw or terminate participation in Gold Track by 
EPA or NJDEP. Procedures to be used in modifying or rescinding any 
regulations, permits or other legal implementing mechanisms will be 
governed by applicable law.

III. Summary of Proposed Rule Changes Under the Clean Air Act

A. Summary of Regulatory Requirements for Gold Track

    Implementation of Gold Track requires limited federal regulatory 
changes. NJDEP plans to offer participants certain types of regulatory 
flexibility at the State level. Specifically, NJDEP will not require 
Gold Track facilities to obtain air pollution control pre-construction 
approvals for any new or modified equipment, that is in compliance with 
all applicable requirements, provided that the potential to emit (after 
control) for each of the specified pollutants is below New Jersey's 
State-of-the-Art (SOTA) threshold levels for criteria pollutants and 
hazardous air pollutants (HAPS), and the new or modified equipment is 
the same as that already covered under an approved Gold Track 
Compliance Plan. New Jersey's SOTA threshold level is 5 tons per year 
for all criteria pollutants with the exception of lead. The SOTA 
threshold for lead is 20 pounds per year pursuant to N.J.A.C. 7:27-8, 
Appendix 1. Individual SOTA thresholds, contained at N.J.A.C. 7:27-22 
have been set for HAPs, and are mostly less than 5 tons/year. Any new 
or modified equipment with a potential to emit (after control) between 
the SOTA threshold level and EPA's ``significant emission levels'' for 
criteria pollutants would not (except as described below at 2) undergo 
pre-

[[Page 18535]]

construction approval if the new equipment installs SOTA as defined in 
a New Jersey SOTA manual, and the new or modified equipment is the same 
as that already covered under an approved Gold Track Compliance Plan. 
The following notification provisions will be in effect for new and 
modified equipment with a PTE below significant emission levels:
    (1) Gold Track participants would be required to notify the NJDEP 
within 120 days of the installation or modification of equipment 
considered to be an insignificant source. For Gold Track facilities 
NJDEP will define ``Gold Track Insignificant Source'' to be equipment 
with air emissions below the New Jersey SOTA de minimis levels, (i.e., 
less than 5 tons per year for most criteria pollutants, and less than 
20 pounds per year for lead).
    (2) For the installation or modification of equipment with a 
potential to emit between the SOTA de minimis levels and EPA 
significant levels, for example between 5 and 25 tons per year for VOCs 
and NOX, New Jersey will not use the quarterly reporting 
procedure for Gold Track facilities. NJDEP will use the 7-day advance 
notice procedure referenced in section 502 (b) (10) of the Clean Air 
Act (if no allowable emissions would be exceeded ) or the minor 
modification procedure referenced in N.J.A.C. 727-22.23 (if an 
allowable emissions would be exceeded).
    Any new equipment that exceeded EPA's ``significant emission 
levels'' for criteria pollutants would have to install BACT.
    Gold Track facilities would be required to obtain plantwide 
applicability limits (PALs), referred to as emissions caps in the FPA. 
The PALs or emissions caps would establish a ceiling for actual 
emissions of specified pollutants in tons per year as described in the 
proposed New Jersey State rule. In general, a Gold Track facility would 
have PALs for the air pollutants regulated under major New Source 
Review (NSR) that it emitted.
    The PALs would last for 15 years. As long as a Gold Track facility 
did not exceed the emission levels identified in its PAL for a 
particular pollutant, it would be exempted from major NSR for that 
pollutant (which includes both the prevention of significant 
deterioration (PSD) and nonattainment NSR Programs).
    If a major expansion would require a higher facility-wide emission 
cap, the major preconstruction permit process (major New Source Review) 
would be used.
    Today's rule also encourages the use and expansion of Combined Heat 
and Power (CHP) technologies in New Jersey. The CHP incentive of the NJ 
Gold Track Program would encourage facilities to shut down their 
boilers and receive their electricity, heating and/or cooling from an 
off-site CHP facility. In exchange for providing this energy to off-
site facilities, the CHP facility would be allowed to obtain a PAL 
using its own past actual emissions plus the past actual emission 
reductions derived from the shutting down or curtailment of boilers at 
the off-site facilities.

B. Prevention of Significant Deterioration of Air Quality (PSD) 
Regulations

    Because this proposed rule modifies certain requirements of the PSD 
Program applicable in New Jersey for sources participating in Gold 
Track, a brief description of the PSD requirements may be useful. The 
PSD and major nonattainment NSR Programs are preconstruction review and 
permitting programs applicable to new or modified major stationary 
sources of air pollutants. Major nonattainment NSR is discussed in the 
following section.
    In attainment areas [i.e., areas meeting the National Ambient Air 
Quality Standards (``NAAQS'')] and unclassifiable areas, the 
requirements for the PSD Program found in part C of Title I of the CAA 
apply for the attainment pollutants. The PSD provisions are a 
combination of air quality planning and air pollution control 
technology program requirements. Each State Implementation Plan (SIP) 
is required to contain a preconstruction review program for the 
construction and modification of major stationary sources of air 
pollution to assure that the NAAQS are achieved and maintained; to 
protect areas with existing clean air; to protect Air Quality Related 
Values (AQRVs) (including visibility) in national parks and other 
natural areas of concern; to assure appropriate emission controls are 
applied; to ensure opportunities for economic development consistent 
with the preservation of clean air resources; and to ensure that any 
decision to increase air pollution is made only after full public 
consideration of all the consequences of such a decision. See sections 
101(b)(1), 110(a)(2)(C) and 160 of the CAA. For purposes of major NSR 
permitting, New Jersey is in an area that meets the NAAQS for all 
criteria pollutants except for ozone (statewide), carbon monoxide (CO) 
(northeast portion of the state), and sulfur dioxide (portions of 
Warren County). Therefore, in New Jersey the PSD Program under part C 
of Title I of the CAA applies to those criteria air pollutants for 
which the area is in attainment or unclassifiable. As discussed below 
in C., the major nonattainment NSR Program under part D of Title I of 
the CAA applies to certain areas in New Jersey.
    Because the SIP for the State of New Jersey did not include the PSD 
requirements of sections 160-165 of the CAA, EPA promulgated a PSD 
Program for the State by incorporating by reference the provisions of 
40 CFR 52.21(b) through (w) into the state plan for the State of New 
Jersey (see 40 CFR 52.1603). In addition, EPA delegated authority to 
the NJDEP as the PSD permitting authority in New Jersey. This 
delegation of the PSD Program will continue in New Jersey for sources 
needing major NSR permits. For Gold Track sources the NJDEP will draft, 
accept public comment on, and issue Gold Track permits, subject to EPA 
review and the procedural requirements in 40 CFR 52.21 and 40 CFR part 
124.

C. Major Nonattainment NSR

    Because New Jersey is in the Northeast Ozone Transport Region the 
nonattainment NSR requirements apply across the entire state for VOCs 
and NOX, which are precursors to the formation of ozone. In 
addition, some parts of New Jersey are in nonattainment for carbon 
monoxide (CO) or for sulfur dioxide (SO2). Some Gold Track 
facilities may emit, or have the potential to emit, air pollutants of 
nonattainment concern in major amounts and are otherwise subject to the 
major nonattainment NSR provisions of Part D of Title I of the CAA. The 
State of New Jersey has rules implementing the Part D requirements that 
include both technology and emissions offset requirements. EPA has 
partially approved this portion of the New Jersey SIP. The State of New 
Jersey plans to submit a revised SIP that will contain Gold Track-
specific changes to its major nonattainment NSR rules. In anticipation 
of this SIP submittal, this proposed rule contains Gold Track-specific 
changes to the general requirements in 40 CFR 51.165.

D. Proposed Regulatory Changes

1. Changes to the Definition of ``Major Modification''
    To implement today's rule, we are proposing Gold Track-specific 
changes to the definition of ``major modification'' found in 40 CFR 
51.165 (a)(1)(v)(A) and corresponding changes to 40 CFR 52.1603, which 
sets forth the PSD requirements for New Jersey. These changes would 
allow a Gold Track

[[Page 18536]]

facility to be exempted from major nonattainment NSR/PSD for new and 
modified sources as long as the facility's PAL for the pollutant in 
question was not exceeded.
2. Duration of Plantwide Applicability Limits (PALs)
    The proposed duration of the PALs will be 15 years. Absent this 
rule, currently applicable NSR requirements could limit the 
effectiveness of Gold Track PALs to 5 years. In order to implement Gold 
Track, we are proposing to modify the NSR requirements for Gold Track 
facilities to ensure that the PAL may remain effective for 15 years. 
For Gold Track, alterations to existing emissions units or the addition 
of new emissions units would not significantly increase net emissions 
above the actual emissions baseline used in setting the PAL provided 
the stationary source continues to meet its PAL emissions limit. 
Therefore, such alterations or additions would not trigger major NSR. 
Nothing in these regulatory changes shall be construed to allow 
violation or circumvention of provisions of the Clean Air Act.
    Under present regulations, a source that adds or modifies a unit 
that would result in a significant emissions increase may ``net'' that 
particular change out of review if the new emission increase plus the 
sum of all other contemporaneous creditable increases and decreases at 
the source is less than significant. The current regulatory requirement 
regarding contemporaneity derives from the interpretation of the CAA's 
provisions governing modifications set forth in Alabama Power Co. v. 
Costle, 636 F.2d 323 (DC Cir. 1979). Among other things, the court 
interpreted the statute as allowing emissions increases to be offset by 
decreases at the same source, but stated that, ``any offset changes 
claimed by industry must be substantially contemporaneous.'' Id. At 
402. The court explained that EPA retains discretion to define 
``substantially contemporaneous.'' Thereafter, EPA codified 
contemporaneity as a regulatory requirement. See 45 FR 52676, 52700-
52702 (August 7, 1980).
    Absent the changes proposed today, the Federal PSD requirements in 
40 CFR 52.21(b)(3)(ii)(a) limit the period within which the changes may 
be considered contemporaneous to 5 years. States implementing a PSD 
Program or nonattainment NSR Program under an EPA-approved SIP may 
define a reasonable contemporaneous period. Without deciding whether 
the contemporaneity principle applies to PALs, EPA is proposing a 15-
year contemporaneous period for sources in Gold Track that corresponds 
to the 15-year duration of the NJ Gold Track covenant. EPA recognizes 
that Gold Track facilities would make important commitments which would 
result in superior environmental performance as described in the Final 
Project Agreement Air Addenda. In addition, all other currently 
applicable requirements would continue to apply to a Gold Track 
facility, including, but not limited to: Reasonably Available Control 
Technology (RACT), Maximum Achievable Control Technology (MACT), State-
of-the-Art (SOTA), Best Available Control Technology (BACT), Lowest 
Achievable Emission Rate (LAER) and New Source Performance Standards 
(NSPS). Under these circumstances EPA believes that a 15-year 
contemporaneous period for the Gold Track PALs is appropriate.
3. Changes to the Definition of ``Building, Structure, Facility, and 
Installation'' for Combined Heat and Power (CHP) Facilities
    In order to encourage greater energy efficiency and reduced levels 
of air pollution, the State of New Jersey is promoting the expansion of 
the Combined Heat and Power (CHP) industry in their state. In the 
emerging energy market under utility deregulation, owners/operators and 
developers of CHP projects seek to minimize their financial risk in 
order to employ CHP technology successfully. To do this they are 
finding it desirable to locate CHP facilities at the same sites as 
existing industrial or commercial users of steam and electricity. An 
existing user facility, such as a chemical manufacturing plant, becomes 
the customer, or ``host,'' of the CHP facility and provides a steady 
stream of revenue. The existing user, which formerly managed its own 
steam production operations to support its main line of business, can 
then divest itself of the day-to-day business of heat and power 
production and obtain long-term access to favorably priced steam and 
electricity.
    Typically, a CHP project developer, a separately-owned and operated 
entity from the host facility's owner/operator, purchases the existing 
steam (and sometimes electricity)-producing equipment from the host 
facility (generally boilers and turbines) and then retires it and 
replaces it with CHP technology, or upgrades it to incorporate CHP 
technology. The new, separately owned and operated CHP facility then 
contracts with the host facility to provide that facility's steam and 
some or all of its electricity. Once the CHP facility can access the 
local utility grid, it can sell excess electricity to the grid. In 
addition, the same CHP facility may enter similar contracts with other 
nearby, but not necessarily contiguously located, customers of steam 
and/or electricity, either at the inception of the CHP project or over 
time.
    Under Gold Track, CHP facilities which supply electricity and 
heating and/or cooling could obtain an emissions cap or PAL based on 
the facility's actual emissions, plus the avoided actual emissions at 
the off-site buildings being supplied with heat and/or cooling, 
provided that the avoided emission reductions are not claimed by the 
owner or operator of the off-site buildings. There would have to be a 
contractual agreement between the CHP facility and the off-site CHP 
user which stated that the emission reductions from heating/cooling 
energy equipment shutdown or curtailment at the CHP energy user are to 
be credited to the CHP facility, rather than the CHP energy user. When 
used for the CHP facility emission cap, the off-site emission 
reductions could not be used for other purposes, including but not 
limited to, emission offsets, netting, or discrete emission reduction 
credits. The cap additive from off-site facility emission reductions 
would have to be the lesser of actual emissions before the supply of 
heat/cooling by the CHP facility or SOTA emissions for the amount of 
energy supplied by the CHP facility. The cap additive would have to be 
based on off-site actual emission reductions during the same 5-year 
timeframe, used to determine baseline actual emissions. Third party 
independent verifications of the reductions would be required. The 
resultant cap would be subject to the same air quality modeling 
requirements as the caps at other Gold Track facilities. Addition of 
new units at the CHP facility would be subject to the same 
flexibilities if below de minimis, and the same permitting, SOTA, and 
BACT requirements if above de minimis, as other Gold Track facilities. 
Enforceable operating restrictions would be required on the off-site 
equipment being replaced or curtailed by the CHP facility.
    The Gold Track CHP proposal reflects the interests and concerns 
which the EPA has regarding the development and expansion of CHP 
sources. The EPA recognizes the potential for reducing fuel consumption 
and air pollution as a result of CHP technologies, and we are actively 
seeking to promote CHP as an alternative to conventional ways of 
supplying industrial, commercial, and institutional users with heat and 
power. EPA encourages the greater use of CHP

[[Page 18537]]

because typically it: (1) Generates energy efficient power; (2) is an 
additional source of power; (3) decreases the need for transmission 
over distances; and (4) provides clean energy.
    As summarized in section III.D.2, Gold Track facilities would 
voluntarily make several important commitments which would result in 
superior environmental performance. Under these circumstances, and 
because we are seeking to encourage the greater use of CHP, EPA 
believes the flexibility outlined above for Gold Track CHP facilities 
is appropriate. EPA is proposing to implement the Gold Track CHP 
incentive through Gold Track-specific changes to the definition of 
``building, structure, facility, and installation'' in 40 CFR 
51.165(a)(1)(i) and corresponding changes to 40 CFR 52.1603.

IV. Summary of the Proposed Rule Conditions Under the Resource 
Conservation and Recovery Act

    Today's proposal would modify 40 CFR 261.4(a), 262, 264.1, 265.1 
and 270.1 to provide NJDEP with the regulatory flexibility needed to 
implement the RCRA-specific portions of Gold Track. The proposed RCRA 
modifications described below are expected to promote greater levels of 
recycling, provide EPA with information about generator accumulation 
times, and provide valuable incentives for companies to participate in 
Gold Track while maintaining rigorous standards of environmental 
protection.
    Incentives play a crucial role in maximizing the environmental 
benefits of any voluntary program such as Gold Track. Facilities must 
perceive a benefit to themselves that is at least equal to their 
perceived costs of participation in a voluntary program, including 
administrative burdens associated with participation as well as any 
costs incurred in meeting the substantive requirements of the program.
    The incentives relating to hazardous waste management that would be 
provided under the Gold Track Program include (a) allowing Gold Track 
facilities to apply to NJDEP for an exclusion from the definition of 
solid waste for some types of materials destined for recycling, and (b) 
allowing up to 180 days (270 days, if applicable) for hazardous waste 
generators to accumulate hazardous waste without having to obtain a 
RCRA permit. These regulatory flexibilities should provide incentives 
for companies to participate in the Gold Track Program while 
maintaining necessary environmental protections.
    EPA and NJDEP have agreed upon a combination of environmental 
protections including requiring prospective participants to pass a 
rigorous screening process during which NJDEP, in consultation with 
EPA, would screen candidates based on several factors including past 
compliance history, current commitment to environmental improvement, 
and the legitimacy of future recycling activities. Facilities would be 
required to also meet specific conditions to minimize the possibility 
that their activities would threaten human health and the environment 
as a result of this program.

A. Exclusion From the Definition of Solid Waste for Materials Destined 
for Recycling

1. Purpose and Context of Proposed Rule
    Section 3002 of the Resource Conservation and Recovery Act (RCRA) 
directs EPA to promulgate standards for generators of hazardous waste 
as necessary to protect human health and the environment. Similarly, 
Section 3004 of RCRA directs EPA to promulgate standards for facilities 
that treat, store or dispose of hazardous wastes. Section 1003 of RCRA 
establishes a national objective of ``minimizing the generation of 
hazardous waste and the land disposal of hazardous waste by encouraging 
process substitutions, materials recovery, properly conducted recycling 
and reuse, and treatment.''
    The primary intent of the current RCRA regulatory structure 
governing hazardous waste recycling is to ensure that such recycling 
practices are done safely including ensuring that waste materials are 
managed protectively prior to recycling and that the resulting products 
are legitimate products and do not contain potentially harmful ``toxics 
along for the ride.'' Industry has asserted that certain RCRA hazardous 
waste recycling regulations can in some cases discourage generators 
from exploring recycling options for their wastes. Today's proposed 
rule is intended to remove many of these regulatory requirements in 
order to promote recycling of hazardous and solid waste for Gold Track 
participants. Moreover, the regulations would impose conditions on the 
management of hazardous waste that would minimize the likelihood that 
the activities of participating facilities would threaten human health 
and the environment as a result of this program. Specifically, today's 
proposed rule is responsive to the desire to direct suitable 
wastestreams towards recycling and reuse by allowing Gold Track 
facilities to apply to NJDEP for conditional exclusion from the 
definition of solid waste for some types of materials destined for 
recycling that would otherwise be considered listed or characteristic 
hazardous wastes. NJDEP will consider applications for exclusions from 
the definition of solid waste on a case-by-case basis, and will conduct 
a waste stream specific evaluation to ensure that only legitimate 
recycling of materials (as opposed to sham recycling) takes place. EPA 
requests comments on these proposed conditional exclusions.
2. Rationale for Allowing an Exclusion From the Definition of Solid 
Waste
    Today's proposal would allow NJDEP, with some exceptions, to grant 
case-by-case exclusions from the definition of solid waste for 
hazardous secondary materials generated at Gold Track facilities that 
are destined for some types of recycling and that, absent the 
exclusion, would be considered hazardous wastes. Under this proposed 
rulemaking, these materials would no longer be considered wastes. A 
number of RCRA regulatory requirements that can make recycling less 
attractive would no longer apply, including:
     Permits. According to current regulations, companies 
generating hazardous wastes that can be recycled would typically need a 
RCRA permit if they store the wastes for greater than 90 days prior to 
recycling. In addition, if hazardous wastes are shipped to off-site 
facilities for reclamation or recycling, those receiving facilities 
must also have RCRA permits if they store or treat the wastes prior to 
recycling. This can have important implications for these companies. 
Obtaining a RCRA permit can be costly and time consuming. In addition, 
a RCRA permit carries with it other obligations, such as the 
requirement for facility-wide corrective action, which can incur 
further substantial costs. Thus, many companies have a strong incentive 
to avoid recycling hazardous wastes if they must store wastes for 
greater than 90 days prior to recycling. As a result, some hazardous 
wastes are sent to treatment or disposal facilities, rather than being 
beneficially recycled. Under today's proposal, excluded wastes from 
Gold Track facilities could be stored by recyclers for an extended 
period of time without triggering the need for a RCRA permit. EPA 
expects this flexibility to enhance recycling opportunities for Gold 
Track participants.
     Transportation, reporting and recordkeeping. Hazardous 
wastes

[[Page 18538]]

destined for recycling are generally subject to the RCRA ``cradle to 
grave'' reporting and recordkeeping requirements. Under this system, 
generators of such wastes must:

--Manifest off-site shipments of hazardous wastes (Secs. 262.20-
262.23);
--Submit exception reports for any shipments that have not been 
reported received (Sec. 262.42);
--Maintain copies of manifests, exception reports, biennial reports and 
any data used to make hazardous waste determinations, for at least 
three years (Sec. 262.40); and
--Submit a biennial report describing all hazardous wastes generated 
and the facilities to which they were shipped every other year if they 
generate large quantities of hazardous wastes. (Sec. 262.41)
    Under this proposed rule, excluded secondary materials being 
transported to a recycler would not be subject to the manifest and 
related recordkeeping requirements. The Gold Track facility will keep 
records on the amounts of excluded material sent to the recycler and 
returned to the facility.
3. Applicability of the Exclusion From the Definition of Solid Waste
    Today's proposed rule would allow Gold Track participants to 
petition NJDEP to exclude materials that are recycled from the 
definition of solid waste if they are managed according to certain 
conditions. This flexibility would only be offered to Gold Track 
participants. If finalized, materials generated by Gold Track 
participants that are currently regulated as solid and hazardous wastes 
prior to reclamation (i.e. spent solvents) would no longer be regulated 
as solid and hazardous wastes if they are recycled according to the 
conditions discussed below. Excluded materials shipped to off-site 
recycling facilities would also be excluded from regulation as a solid 
waste.
    Not all types of recycling practices would be eligible for the 
exclusion under this proposed rule. Today's proposal identifies four 
specific recycling scenarios that EPA believes merit full regulation 
under current hazardous waste regulations, and which therefore will not 
be eligible for relaxed regulatory controls under the Gold Track 
Program:
     Wastes burned for energy recovery [Sec. 261.2(c)(1)];
     Wastes used in a manner constituting disposal 
[Sec. 261.2(c)(2)];
     Recycling of materials that are inherently waste-like 
[Sec. 261.2(d)] (F020, F021 (unless used as an ingredient to make a 
product at the site of generation), F022, F023, F026, F028, and 
secondary materials fed to a halogen acid furnace);
     Secondary materials that are stored on the land, in 
containment buildings, or on drip pads.
    EPA and NJDEP believe that limiting the scope of this rulemaking in 
this way is sensible and appropriate due to the experimental nature of 
Gold Track and the reduced level of regulation that will be afforded to 
participating facilities.
    It should be noted that the conditional exclusion proposed today 
would be an exclusion only from the RCRA Subtitle C regulations, and 
not from the emergency, remediation and information-gathering sections 
of the RCRA statute (sections 3004(u), 3007, 3008(h), 3013, and 7003). 
This restates the principle codified for other excluded secondary 
materials--that the exclusion is only from RCRA regulatory provisions, 
and not from these statutory authorities. See section 261.1(b). EPA is 
repeating that principle here in the interests of clarity, not to 
reopen the issue. The legal basis for the distinction of the Agency's 
authority under these provisions is that they use the broader statutory 
definition of solid waste (and hazardous waste as well) and so need not 
(and should not) be read as being limited by the regulatory definition. 
See, for example, 50 FR 627; January 4, 1985.
    EPA is also proposing that the requirements for speculative 
accumulation of hazardous wastes not apply to Gold Track participants. 
The speculative accumulation provisions generally apply to secondary 
materials that are not solid wastes when recycled. Under RCRA 
regulations, certain recyclable materials are not considered solid 
wastes if they are recycled in a timely manner. However, if these 
materials are accumulated on-site for too long, they become a solid 
waste pursuant to the speculative accumulation provisions of 40 CFR 
261.1(c)(8) and 261.2(c)(4).
    The provision serves as a safety net, preventing recyclable 
materials that are not otherwise regulated under RCRA from being stored 
indefinitely and potentially causing environmental damage. EPA subjects 
persons who ``accumulate speculatively'' (i.e., persons who fail to 
recycle a sufficient percentage of a recyclable material during the 
calendar year or fail to demonstrate that a feasible means of recycling 
exists) to immediate regulation as hazardous waste generators or 
storage facilities. (50 FR 614, 650; January 4,1985).
    As an alternative safety net, today's proposal, would require Gold 
Track participants to report on their recycling activities including 
(1) amount of excluded material generated during each twelve month 
period after the exclusion takes effect, (2) the amount of excluded 
material recycled during the same twelve-month period, (3) how the 
excluded material was recycled, (4) any significant changes in the 
excluded material wastestream, (5) the recycling processes used, and 
(6) the location of any off-site recycler. Also, a participant would be 
required to obtain approval from the State Director prior to any 
significant changes in the waste stream or the recycling process. In 
addition to providing data on whether this incentive increases 
recycling, these reports would directly alert the State to any overly 
lengthy accumulation practices that may occur and would allow the State 
to assess whether environmental damage could occur from such storage. 
EPA believes that this approach provides a suitable alternative to the 
speculative accumulation requirements for hazardous waste under RCRA.
4. Criteria for Obtaining a Solid Waste Exclusion From NJDEP
    Gold Track facilities wishing to take advantage of this flexibility 
would be required to submit an application identifying each waste 
stream to be excluded from the definition of a solid waste to NJDEP. 
Included in the application package must be a detailed description of 
the waste stream and its composition, a full description of the 
recycling to be conducted and the sites where storage and recycling 
would occur, along with a comparison of the proposed recycling strategy 
to the recycling guidelines set forth in the EPA policy memo entitled: 
``Criteria for Evaluating Whether a Waste is Being Recycled''. This 
document can be obtained either by clicking on the following Web site: 
http://yosemite.epa.gov/OSW/rcra. nsf/Documents/BFB132AA4BB3D1D385 
2565DA006F0447, or through EPA's Faxback service by dialing 202-651-
2060 on your fax machine and entering code # 11426.
    This application process will ensure that the regulatory 
flexibility for recycling that is provided to Gold Track facilities 
will not compromise human health and the environment. NJDEP will 
carefully analyze each application to ensure that sham recycling or any 
other harmful activity will not occur. The determination of whether 
sham recycling is being proposed rests on a number of factors 
including: the similarity of the secondary material to an analogous raw 
material or product, the degree of processing the secondary material 
must undergo to produce a

[[Page 18539]]

finished product, the value of the secondary material, the market for 
the end product, handling and management practices for the secondary 
material, and the need for toxic constituents in the recycling process. 
These factors are laid out in the EPA guidance document described 
above. Each application will be evaluated and considered in the context 
of these factors.
5. Protection of Human Health and the Environment
    As discussed below, waste destined for recycling must be stored in 
accordance with the performance standards of 40 CFR part 265, subparts 
I and J for containers and tanks, respectively, and 40 CFR section 
264.175 that requires secondary containment for containers holding free 
liquid. The Air Emission requirements under subparts AA, BB and CC are 
included in subparts I and J of 40 CFR part 265 and are applicable. The 
additional condition that materials excluded from the definition of 
solid waste may only be stored in tanks or containers that meet 
stringent design and operating standards also helps to ensure that 
materials are managed safely prior to recycling.
    Materials sent offsite for recycling will be excluded from 
regulation provided that the generator complies with all applicable 
conditions. If the offsite recycler manages the material in any of the 
activities listed in subsection 3 above that are not eligible for the 
exclusion, the material ceases to be excluded.
    With regards to excluded materials sent to an offsite recycler, the 
Gold Track facility would be required to:
     Designate the off-site facility that will be receiving 
excluded material;
     Keep facility recycling records that track the amount of 
excluded material sent to the off-site recycler and returned to the 
Gold Track participant and make these records available upon facility 
inspection; and
     Include the recycling information listed above in the Gold 
Track participant's annual report.
6. Summary of Applicable Management Standards for Excluded Solid Waste
    Hazardous secondary materials excluded from RCRA regulation under 
today's proposed rule would be subject to certain conditions. Failure 
by Gold Track participants managing materials under this exclusion to 
meet any of these conditions could result in revocation of the 
exclusion and/or subsequent enforcement action.
(i) Types of Hazardous Waste Not Eligible for Exclusion Under Gold 
Track
    This exclusion would not apply to materials that are burned for 
energy recovery, used in a manner constituting disposal, or for 
materials that are inherently waste-like as defined in 40 CFR 
261.2(c)(1), (c)(2) and 261.2(d).
(ii) Requirements for Confirmation From NJDEP Prior to Exclusion
    Under this proposal, Gold Track facilities wishing to take 
advantage of this flexibility would be required to submit a petition to 
NJDEP to be excluded from the definition of a solid waste. This 
petition must include a detailed description of the waste stream and 
its composition, a description of the recycling to be conducted and the 
sites where storage and recycling would occur, and a comparison of the 
recycling proposed to the EPA guidance discussed above in section 
IV.A.4.
    NJDEP will make a site specific determination that the material 
will be legitimately recycled to recover material values based on EPA 
guidance and the information provided, and will respond to each 
petition before this exclusion would be applicable.
(iii) Notification of Changes in Operation
    EPA is proposing that Gold Track participants would be required to 
inform NJDEP of any changes to the wastestream, (e.g., as a result of a 
change in the production process or inputs) changes in the recycling 
process to be used, and changes in the recycling location.
    Gold Track participants would be required to receive approval from 
NJDEP to continue exercising this flexibility if the changes described 
above occur.
(iv) Storage of Excluded Materials Destined for Recycling
    Under this proposal, Gold Track generators would be required to 
manage materials in tanks or containers and comply with the management 
standards for hazardous waste storage units, as specified in 40 CFR 
part 265, subparts I and J, and the secondary containment standards (or 
alternative) for containers with free liquids as described at 
Sec. 264.175. Secondary containment provides an added level of safety 
by ensuring that if the tank or container leaks, the release is 
captured by an impermeable base or second exterior tank wall. This 
condition applies to excluded materials stored at a Gold Track 
facility. Gold Track facilities would also be required to comply with 
any other substantive regulatory requirement that would normally be 
applicable to the containers or tanks.
    This exclusion would not be extended to materials that are stored 
on the land (e.g., in outdoor piles), in containment buildings, or on 
drip pads. In this respect, storage of excluded materials under today's 
rule would be subject to more stringent container management standards 
than if they were managed as hazardous wastes and is consistent with 
the Project XL goal of superior environmental performance.
(v) Labeling Storage Containers
    Today's proposal would also require generators managing materials 
under this conditional exclusion to use a label to identify the 
contents of containers in which materials to be recycled are stored and 
indicate the date the material was originally placed into the 
container. Gold Track participants would not be required to comply with 
labeling and marking requirements at Sec. 262.34(a)(2) and (a)(3) as a 
condition for this exclusion.
(vi) Monitoring and Record Keeping
    EPA is also proposing that generators maintain records for each 
container or tank used to store material exempted from the definition 
of solid waste, and that participants label the contents as stated 
above. This information will be used to track trends and environmental 
performance, and is expected to be used for the annual report.
(vii) Annual Report
    Each participant shall submit an annual report to the State of New 
Jersey that shall specify:
     The amount of exempt material in inventory at the facility 
at the time the flexibility specified at N.J.A.C. 7:2733.21(a)9 is 
granted to the facility;
     The amount of exempt material generated during the past 
twelve months;
     The amount of exempt material recycled during the same 
twelve-month period;
     A description of how the exempt material was recycled; and
     Any changes in the original wastestream, recycling 
processes used or the location of recycling sites.

B. 180-day Accumulation Period for Hazardous Wastes Generated by Gold 
Track Participants

1. Purpose and Context of Proposed Rule
    Today's proposed rule would allow large quantity hazardous waste 
generators (generators of 1000 kilograms or greater of non-acutely 
hazardous waste or more than 1 kilogram of acute

[[Page 18540]]

hazardous waste) that have been accepted into the Gold Track Program to 
accumulate their hazardous wastes on-site for up to 180 days without 
having to obtain a RCRA permit.
    Participating large quantity generators would also be allowed to 
accumulate their hazardous waste on-site for up to 270 days if they 
must transport the waste, or offer the waste for transport, a distance 
of 200 miles or more. The current requirements under 40 CFR part 262 
for large quantity generators (LQGs) limit the amount of time hazardous 
waste can be accumulated on-site without a RCRA permit. Under 40 CFR 
262.34, LQGs may accumulate any quantity of hazardous waste on-site for 
up to 90 days without having to obtain a RCRA permit.
    EPA requests comments regarding its proposal to provide 
participating Gold Track generators 180 days (or 270, if applicable) to 
accumulate their hazardous waste on-site without a RCRA permit. Today's 
proposed rule would not make any changes to the existing conditions for 
the 90-day accumulation period for generators under the current 
regulations, and EPA is not requesting comment on 40 CFR 262.34.
2. Rationale for Allowing Gold Track Facilities 180 Days (or 270 Days) 
To Accumulate Waste
    Today's proposed rule is designed to assist EPA in learning more 
about appropriate hazardous waste generator accumulation times that may 
optimize the ability of generators to carry out activities incidental 
to the generation of hazardous waste. EPA intends that this project 
will yield information regarding typical and appropriate generator 
activities--such as accumulating hazardous waste prior to sending it 
off-site for waste management--and the time periods appropriate for 
carrying out such activities. EPA believes that additional accumulation 
time may allow generators to accumulate enough waste to make 
transportation to a waste management facility more cost-effective and 
efficient. EPA also believes that additional accumulation time may 
reduce the movement and handling of hazardous waste and also reduce the 
amount of air pollution created and transportation related safety 
concerns through more frequent truck trips.
    Given the strict screening requirements of the Gold Track Program, 
only facilities of very high environmental caliber would be allowed to 
take advantage of the additional accumulation time flexibility, thus 
EPA believes this limited flexibility should not result in any 
additional risk to public health or the environment.
    In order to evaluate the potential effects of additional 
accumulation time, EPA and NJDEP would be able to request specific 
information from participating facilities (including hazardous waste 
manifests, operating and recycling records, inspection logs for the 
container/tank areas, waste generation rates, etc.), and hold 
informational meetings with facility staff as may be necessary to track 
progress and measure performance of longer accumulation time limits.
    The 180 days (or 270 days, if applicable) accumulation time limit 
was also cited as a very desirable flexibility by industry stakeholders 
during the Gold Track Final Project Agreement negotiation process. This 
flexibility is seen as an incentive that rewards Gold Track facilities 
for undertaking the economically costly commitments (see Table 1 in 
Section II.D.) that are required for Gold Track participation.
3. Protective of Human Health and the Environment
    The provisions of today's proposed rule would ensure that on-site 
accumulation of hazardous waste for up to 180 days (270 days, if 
applicable) is protective of human health and the environment. As 
mentioned previously, the strict screening requirements of the Gold 
Track Program ensure that only facilities of very high environmental 
caliber will be allowed to take advantage of the additional 
accumulation time flexibility, thus EPA believes this limited 
flexibility should not result in any additional risk to public health 
or the environment.
    In addition, all the conditions that apply to 90-day accumulation 
of any hazardous waste will apply to the 180 day (or 270 day, if 
applicable) accumulation of hazardous waste by participating Gold Track 
generators (See Section IV.B.4. below). The requirements include that 
hazardous waste must be stored in accordance with the performance 
standards of 40 CFR parts 265, subparts I and J for containers and 
tanks, respectively. Gold Track participants would also be required to 
manage materials in accordance with the secondary containment standards 
(or alternative) for containers with free liquids as described at 
Sec. 264.175. Secondary containment provides an added level of safety 
by ensuring that if the tank or container leaks, the release is 
captured by an impermeable base or second exterior tank wall. In 
addition, the Air Emission requirements under subparts AA, BB and CC 
are included in subparts I and J of 40 CFR part 265.
4. Additional Accumulation Time for Transport Over 200 Miles
    Under today's proposed rule, participating Gold Track generators 
would have up to 270 days to accumulate their hazardous waste on-site 
without a RCRA permit or interim status if the generator must transport 
the waste, or offer the waste for transport, a distance of 200 miles or 
more. The generator would still be required to comply with all other 
conditions for accumulating hazardous waste under Gold Track, including 
the more stringent accumulation requirements noted above.
    EPA believes that additional accumulation time under circumstances 
where a generator must send its hazardous waste a distance of 200 miles 
or more may be necessary and appropriate to allow sufficient time to 
accumulate enough waste to make long-distance transport more cost-
effective and efficient. EPA also believes that the additional 
accumulation time may reduce the movement and handling of hazardous 
waste and also reduce the amount of air pollution created and 
transportation related safety concerns through more frequent truck 
trips.
    As part of the Gold Track covenant agreement between the Gold Track 
participant and the NJDEP, a generator in the Gold Track Program would 
need to identify and keep inventory records for wastes to be shipped to 
an off-site facility that is located more than 200 miles away.
5. Summary of Applicable Management Standards
    Under today's proposed rule, the same, or more stringent standards 
applicable to 90-day on-site accumulation of hazardous waste under 40 
CFR 262.34, other than the length of time that large quantity 
generators hazardous waste can accumulate that waste on-site without a 
RCRA permit, would apply to 180-day (or 270-day, as applicable) 
accumulation of hazardous waste. These include technical standards for 
units used to accumulate hazardous wastes, recordkeeping standards to 
document the length of time hazardous wastes are accumulated on-site, 
preparedness and emergency response procedures, and personnel training. 
EPA is not proposing to change any of these existing standards as they 
would apply to generators participating in Gold Track.
    The Agency would like to note, however, that the longer additional 
accumulation time may impact each participating generator's 
implementation of some of these

[[Page 18541]]

provisions. For example, in order to be in compliance with proposed 40 
CFR 262.120 (which incorporates the existing general site operation 
provisions), generators accumulating hazardous waste on-site under the 
terms of today's proposal may need to consider whether their current 
general site operation procedures (e.g., personnel training, 
contingency planning) should be modified in light of having more 
hazardous waste on-site than they would under the 90-day limit. The 
existing management standards as they would apply to Gold Track 
generators of hazardous waste under this proposed rule are summarized 
below. EPA requests comments on these standards only as they would 
apply to participating Gold Track generators accumulating their 
hazardous waste for 180 or 270 days.
    (i) Accumulation Units: A large quantity generator would only be 
able to accumulate hazardous waste on-site for up to 180 days (or 270 
days, if applicable) in tanks or containers which comply with the unit-
specific technical standards of 40 CFR part 265 for containers (subpart 
I) and tanks (subpart J). These unit-specific standards would include 
provisions for the design, installation and general condition of each 
unit. The requirements governing each type of unit would also include 
standards for ensuring the compatibility of the waste and the unit and 
special requirements for ignitable, reactive or incompatible wastes. In 
addition, there would be provisions for performing inspections to 
monitor for leaks and deterioration of the unit and for proper response 
to and containment of releases. For example, the container holding 
hazardous waste would be required to be closed except when adding or 
removing waste and the container could not be handled in a manner that 
may cause it to rupture or leak. Participating Gold Track generators 
that comply with the applicable regulatory provisions would be able to 
treat and/or recycle the waste in the accumulation unit without a RCRA 
permit during the 180-day (or 270-day, if applicable) accumulation 
period. (See, e.g., 51 FR 10168, March 24, 1986).
    (ii) Measures to Ensure Wastes are not Accumulated for More Than 
180 (or 270) Days: Participating Gold Track generators operating under 
the terms of today's proposed rule would also be required to comply 
with provisions which help ensure that the length of time the wastes 
remain on-site in certain accumulation units would not exceed 180 days 
(270 days, if applicable) from the date the waste is generated. For 
those accumulating waste in containers, the date upon which each period 
of accumulation begins would be required to be clearly marked and 
visible for inspection on each container.
    (iii) Labeling and Marking Accumulation Units: Participating Gold 
Track generators operating under the terms of today's proposed rule 
would be required to clearly label or mark each tank or container used 
to accumulate hazardous waste with the words ``Hazardous Waste''.
    (iv) Preparedness and Prevention: Participating Gold Track 
generators who accumulate waste on-site under the terms of today's 
proposed rule for up to 180 days (or 270 days, as applicable) would be 
required to comply with subpart C of part 265 which contains standards 
for facility preparedness and prevention. Participating generators 
would be required to maintain their facilities in a manner that 
minimizes the possibility of fire, explosion, or any unplanned release 
of hazardous waste or hazardous waste constituents to the environment.
    Participating generators would also be required to ensure that 
their facilities are equipped with emergency devices, such as an 
internal communications or alarm system, a telephone or other device 
capable of summoning emergency assistance, and appropriate fire control 
equipment, unless none of the wastes handled at the generation site 
requires a particular kind of equipment. Equipment would be required to 
be tested and maintained, as necessary, to assure its proper 
functioning.
    All persons involved in hazardous waste handling operations would 
be required to have immediate access to either an internal or external 
alarm or communications equipment, unless such a device is not 
required.
    Additionally, under the terms of today's proposed rule, 
participating generators would be required to maintain sufficient aisle 
space to allow for the unobstructed movement of personnel and equipment 
to any area of the facility operations in an emergency, unless aisle 
space is not needed for any of these purposes. Participating generators 
would also be required to attempt to make arrangements with police, 
fire departments, state emergency response teams, and hospitals, as 
appropriate, to familiarize these officials with the layout of the 
generator's site and the properties of each type of waste handled at 
the site in preparation for the potential need for the services of 
these organizations. If state or local authorities decline to enter 
into such arrangements, the owner or operator would be required to 
document the refusal.
    (v) Contingency Plan and Emergency Procedures: Participating 
generators who accumulate hazardous waste on-site for up to 180 days 
(or 270 days, as applicable) under the terms of today's proposed rule 
would be required to comply with the contingency plan and emergency 
procedures provisions of 40 CFR part 265, subpart D. The contingency 
plan would be required to include, where necessary, a description of 
the generator's planned response to emergencies at the facility, any 
arrangements with local and state agencies to provide emergency 
response support, a list of the generator's emergency response 
coordinators, a list of the generator's emergency equipment, and an 
evacuation plan. Requirements for distributing and amending the 
contingency plan would also be specified. In addition, a facility 
emergency coordinator would be required to either be present, or on 
call, whenever the facility is in operation.
    Provisions for emergency procedures would include immediate 
notification of employees and local, state, and Federal authorities of 
any imminent or actual emergencies; measures to preclude the spread of 
fires and explosions to other wastes; proper management of residues; 
rehabilitation of emergency equipment and notification of authorities 
before operations are resumed; and recordkeeping and reporting to NJDEP 
or EPA on the nature and consequences of any incident that requires 
implementing the contingency plan.
    (vi) Personnel Training: As proposed in today's rule, generators 
participating in Gold Track who accumulate hazardous waste on-site for 
up to180 days (or 270 days, as applicable) would be subject to the 
provisions for personnel training in 40 CFR 265.16. These requirements 
are designed to ensure that personnel are adequately prepared to manage 
hazardous waste and respond to any emergencies that are likely to 
arise.
    Personnel training could be in the form of on-the-job or classroom 
training, but would have to be performed by an instructor who is 
trained in hazardous waste management procedures. Personnel training 
would have to be performed within six months of initial employment and 
must be renewed annually. A participating generator would also be 
required to maintain records in accordance with 40 CFR 265.16(d) to 
document completion of the training requirements for employees.

[[Page 18542]]

6. Special Conditions for Gold Track Generators Accumulating Hazardous 
Waste For Up to 180 (or 270) Days
    In addition to complying with the management standards currently 
applicable to 90-day accumulation of hazardous waste (described above), 
Gold Track generators would also have to comply with several conditions 
unique to this XL project in order to accumulate their hazardous waste 
for up to 180 (or 270 days).
    Gold Track generators would be required to make information (such 
as manifests, costs, environmental releases) available to NJDEP as may 
be necessary to track the progress and measure the impact of longer 
accumulation times. If requested, Gold Track generators would also be 
required to participate in informational meetings with NJDEP. 
Collecting this information from the Gold Track generators would ensure 
that NJDEP and EPA would have data that provides a basis for evaluating 
the impacts of longer accumulation time, including whether it may 
optimize the ability of the generators to carry out activities 
incidental to the generation of hazardous waste. In addition, Gold 
Track generators would be required to notify NJDEP, in writing, of 
their intent to accumulate hazardous waste for up to 180 (or 270) days. 
This notification would assist NJDEP and EPA in the tracking and 
information gathering activities associated with this flexibility.
    Additionally, as previously mentioned, participating Gold Track 
generators accumulating their hazardous waste up to 180 days (270 days 
if applicable) in containers would be required to comply with 
Sec. 264.175, which does not currently apply to generators accumulating 
hazardous waste. Section 264.175 imposes ``secondary containment'' 
requirements on containers holding hazardous waste. Compliance with 
Sec. 264.175 would provide an added level of protection against 
releases to the environment by ensuring that any leaks from the 
containers storing the waste would be contained in the accumulation 
area.

C. State Authority--Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified State to 
administer and enforce a hazardous waste program within the State in 
lieu of the federal program, and to issue and enforce permits in the 
State. (See 40 CFR part 271 for the standards and requirements for 
authorization.) Following authorization, a State continues to have 
enforcement responsibilities under its law to pursue violations of its 
hazardous waste program. EPA continues to have independent authority 
under RCRA sections 3007, 3008, 3013, and 7003.
    After authorization, Federal rules written under RCRA provisions 
that predate the Hazardous and Solid Waste Amendments of 1984 (HSWA), 
no longer apply in the authorized state. The legal obligations imposed 
pursuant to RCRA provisions predating HSWA do not take legal effect in 
an authorized state until the state adopts the provisions under state 
law.
    In contrast, under sections 3004 and 3006(g) of RCRA, new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time they take effect in non-authorized States. EPA 
is directed to carry out HSWA requirements and prohibitions in 
authorized States until the State is granted authorization to do so.
    Today's proposed rule is not promulgated under HSWA authorities. 
Consequently, the final rule will not amend the authorized program for 
the State of New Jersey upon promulgation, and EPA will not implement 
the rule. The authorized RCRA Program will change when EPA approves New 
Jersey's application for a revision to its RCRA Program.
    For the proposed Gold Track Rule, EPA encourages NJDEP to 
expeditiously adopt Gold Track regulations and begin program 
implementation. To revise the federally-authorized RCRA Program, NJDEP 
would need to seek formal authorization for the Gold Track Rule after 
program implementation.
    It is EPA's understanding that New Jersey intends to develop 
appropriate legal mechanisms to implement today's rule and that it will 
be seeking RCRA authorization for the program. At the same time, EPA 
expects that the state will begin implementing its program as soon as 
it is allowable under state law, while the RCRA authorization process 
proceeds. To ensure prompt implementation of the project, EPA 
encourages the state to take this approach.

V. Additional Information

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety in State, local, or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs of the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Because the annualized cost of this proposed rule will be 
significantly less than $100 million and will not meet any of the other 
criteria specified in the Executive Order, it has been determined that 
this rule is not a ``significant regulatory action'' under the terms of 
Executive Order 12866, and is therefore not subject to OMB review.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 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 rule on small 
entities, small entity is defined as: (1) A small business; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the

[[Page 18543]]

regulatory flexibility analyses is to identify and address regulatory 
alternatives ``which minimize any significant economic impact of the 
proposed rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an 
agency may certify that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, or otherwise has a positive economic effect on all 
of the small entities subject to the rule. Moreover, the proposed rule 
will not impose any requirements on small entities. Gold Track is a 
voluntary program that offers sources flexibility in complying with 
regulatory requirements. We expect applications only from firms which 
have determined that the benefits of their participation will outweigh 
the costs. We have therefore concluded that today's proposed rule will 
relieve regulatory burden for any small entities that choose to 
participate in this voluntary program. We continue to be interested in 
the potential impacts of the proposed rule on small entities and 
welcome comments on issues related to such impacts.

C. Paperwork Reduction Act

    This proposed rule will only apply to a maximum of nine facilities, 
and therefore requires no information collection activities subject to 
the Paperwork Reduction Act. Therefore, no information collection 
request (ICR) will be submitted to OMB for review in compliance with 
the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

D. Unfunded Mandates Reform Act

    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 
one 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 of 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 proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. Given that participation in 
Gold Track is purely voluntary, the proposed Gold Track rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Thus, today's proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. In addition, because 
this proposed rule contains no regulatory requirements that might 
significantly or uniquely affect small governments, it is not subject 
to UMRA section 203.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The Executive Order 13045, ``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.
    The portions of this proposal that would amend the current CAA 
regulations are not subject to Executive Order 13045 because the EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. These portions of this proposal are not 
subject to Executive Order 13045 because they are based in part on 
technology performance and in part implement previously promulgated 
health or safety based standards, the National Ambient Air Quality 
Standards (NAAQS). In addition, they are not subject to Executive Order 
13045 because they are not economically significant as defined by 
Executive Order 12866.
    The portions of this proposal that would amend the current RCRA 
regulations are not subject to Executive Order 13045 because they are 
not economically significant regulatory actions as defined by Executive 
Order 12866, and the Agency does not have reason to believe the 
environmental health risks or safety risks addressed by these actions 
would present a disproportionate risk to children.
    The proposal to provide participating Gold Track generators with up 
to 180 (or 270) days accumulation time includes a condition that such 
generators follow the current waste management standards for large 
quantity generators accumulating hazardous waste on-site without a RCRA 
permit. Similarly, the proposal to allow waste generators to obtain 
variances from the definition of solid waste contains several 
conditions. These provisions are discussed in detail in Section IV of 
this preamble. EPA believes that these provisions are protective of 
human health and the environment and minimize the likelihood of 
exposure to hazardous waste held in accumulation units. For this 
reason, EPA believes that the proposed 180 (or 270) day accumulation 
time and the proposed solid waste variances would not result in 
increased exposures to children.

F. Executive Order 13132: Federalism

    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'' is 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.''
    The portions of this proposal that would amend the current RCRA 
regulations do not have federalism

[[Page 18544]]

implications. They will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
These portions of the proposed rule are less stringent than the 
existing federal RCRA Program, and RCRA authorized states are only 
required to modify their programs when EPA promulgates federal 
regulations that are more stringent or broader in scope than the 
authorized state regulations. Similarly, the portions of this proposal 
that would amend the current CAA regulations do not have federalism 
implications. They will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
They provide facilities that receive regulatory flexibility from their 
state with similar flexibility under federal law. Thus, the 
requirements of Section 6 of this Executive Order do not apply to this 
proposal. Although section 6 of the Order does not apply to this rule, 
EPA consulted extensively with State officials, as noted throughout 
today's proposed rule and in particular in section II.C., above.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

G. Executive Order 13175: Consultation and Coordination With Tribal 
Governments

    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.''
    This proposed 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 Executive Order 13175. 
This proposed rule affects only private entities. Thus, Executive Order 
13175 does not apply to this rule. In the spirit of Executive Order 
13175, and consistent with EPA policy to promote communications between 
EPA and tribal governments, EPA specifically solicits additional 
comment on this proposed rule from tribal officials.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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 standard. This 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards. 
EPA welcomes comments on this aspect of the proposed rulemaking and, 
specifically, invites the public to identify potentially-applicable 
voluntary consensus standards and to explain why such standards should 
be used in this regulation.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

40 CFR Part 261

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

40 CFR Part 262

    Environmental protection, Exports, Hazardous materials 
transportation, Hazardous waste, Imports, Labeling, Packaging and 
containers, 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, Security measures, Surety bonds. Water supply.

40 CFR Part 270

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Reporting and recordkeeping requirements, Water 
pollution control, Water supply.

    Dated: March 28, 2002.
Christine Todd Whitman,
Administrator.
    For the reasons set forth in the preamble chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. Section 51.165 is amended:
    a. By adding a new sentence to the end of paragraph (a)(1)(ii).
    b. By adding a new paragraph (a)(1)(v)(C)(10).
    The additions read as follows:


Sec. 51.165  Permit requirements.

    (a) * * *

[[Page 18545]]

    (i) * * *
    (ii) * * * Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE 
FEDERAL FINAL RULEMAKING BECOMES EFFECTIVE], this definition does not 
apply to combined heat and power (CHP) facilities in the State of New 
Jersey that are participants in the New Jersey Gold Track Program set 
forth in Subchapter 2 of the N.J.A.C 7:1M.
* * * * *
    (v) * * *
    (C) * * *
    (10) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL 
FINAL RULEMAKING BECOMES EFFECTIVE], changes (including the addition of 
new emissions units or changes to existing emissions units) at 
stationary sources in the State of New Jersey that are participants in 
the New Jersey Gold Track Program set forth in Subchapter 2 of the 
N.J.A.C 7:1M, provided the stationary source emits within the annual 
emissions limitations (caps) established under the New Jersey Gold 
Track Program.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

    1. The authority citation for part 52 continues to read as follows:


    Authority: 42 U.S.C. 7401 et. seq.
    3. Section 52.1603 is amended by:
    a. Adding text to the end of paragraph (b).
    b. Adding paragraphs (c) and (d).
    The additions read as follows:


Sec. 52.1603  Significant deterioration of air quality.

* * * * *
    (b) * * * except as provided in paragraphs (c) and (d) of this 
section.
    (c) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL FINAL 
RULEMAKING BECOMES EFFECTIVE], for stationary sources in the State of 
New Jersey that are participants in the New Jersey Gold Track Program 
set forth in Subchapter 2 of the N.J.A.C 7:1M:
    (1) Changes (including the addition of new emissions units or 
changes to existing emissions units) at a stationary source are not 
physical changes or changes in the method of operation and therefore 
are not major modifications as otherwise defined in 40 CFR 52.21(b)(2), 
provided the stationary source emits within the annual emissions 
limitations (caps) established under the New Jersey Gold Track Program.
    (2) ``The date on which the annual emissions limitation (cap) 
established under the New Jersey Gold Track Program became effective, 
not to exceed 15 years before construction on the particular change 
commences; and'' applies instead of 40 CFR 52.21 (b) (3) (ii) (a).
    (d) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL FINAL 
RULEMAKING BECOMES EFFECTIVE], 40 CFR 52.21 (b) (6) does not apply to 
combined heat and power (CHP) facilities in the State of New Jersey 
that are participants in the New Jersey Gold Track Program set forth in 
Subchapter 33 of the N.J.A.C. For such CHP facilities, ``building, 
structure, facility, or installation'' includes both the CHP facility 
itself and heating/cooling equipment at the facility to which the CHP 
facility supplies electricity and heating/cooling (``the CHP energy 
user''), provided that there is a contractual agreement between the CHP 
facility and the CHP energy user which states that the emissions 
reductions from shutting down or curtailing the heating/cooling 
equipment at the CHP energy user are to be credited to the CHP 
facility, rather than the CHP energy user.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.

    2. Section 261.4 is amended by adding paragraph (a)(20) to read as 
follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (20) Secondary materials (i.e., sludges, by products, and spent 
materials as defined in Sec. 261.1) that are reclaimed and/or reused 
are excluded from the definition of solid waste for facilities 
participating in the New Jersey Gold Track Program with a signed and 
approved covenant with NJDEP provided that:
    (i) The secondary material is not destined to be burned for energy 
recovery or used in a manner constituting disposal as described in 
Sec. 261.2(c)(1) and Sec. 261.2(c)(2);
    (ii) The secondary material is not inherently waste-like as 
described in Sec. 261.2(d);
    (iii) The generator in the Gold Track Program applies to the 
Director, as appropriate, supplying the following information: the 
types and composition of material(s) to be recycled; a description of 
the recycling to be conducted; and its assessment, including supporting 
information that the material will be legitimately recycled and the 
locations where storage and recycling will occur;
    (iv) The Director makes a site specific determination that the 
material will be legitimately recycled to recover material values;
    (v) The generator in the Gold Track Program informs and receives 
approval from the Director regarding the waste streams, recycling 
process and location identified in paragraph (a)(2)(iii) of this 
section;
    (vi) Any on-site accumulation or storage of the secondary material 
prior to recycling takes place only in tanks and containers as defined 
in 40 CFR 260.10. Accumulation and storage in containers must comply 
with the requirements of subpart I of 40 CFR part 265 and secondary 
containment requirements found in 40 CFR 264.175. Accumulation and 
storage in tanks must comply with the requirements of 40 CFR part 265, 
subpart J. No restrictions on speculative accumulation as defined in 
Secs. 261.1 and 261.2(c)(4) apply;
    (vii) Containers and tanks at the generator's facility used to 
accumulate or store materials subject to this exclusion are labeled to 
properly identify the contents and the date the material was originally 
placed into the container, and records are kept for each container and 
tank indicating the contents and date the material was placed in the 
tank or container;
    (viii) The generator of the excluded materials submits an annual 
report documenting recycling activities that shall specify:
    (A) The amount of excluded material in inventory at the facility at 
the time the flexibility specified at N.J.A.C. 7:2733 is granted to the 
facility;
    (B) The amount of excluded material generated during each twelve 
month period after the exclusion takes effect;
    (C) The amount of excluded material recycled during the same 
twelve-month period;
    (D) A description of how the excluded material was recycled; and
    (E) Any significant changes in the excluded material wastestream, 
the recycling processes used, and the location of recycling sites.
    (ix) If a participating entity withdraws from the Gold Track 
Program prior to the expiration of its exclusion, or if NJDEP 
terminates an entity's participation prior to such expiration, the 
entity must return to compliance with all otherwise applicable 
hazardous waste regulations as soon as practicable but no later than 
six months after the date of withdrawal or termination.
    (x) This section will expire eighteen years after the federal 
rulemaking

[[Page 18546]]

becomes effective; or earlier, if either New Jersey or EPA terminates 
the program and EPA promulgates a rule removing these provisions from 
the Code of Federal Regulations.
* * * * *

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

    2. Part 262 is amended by adding subpart K consisting of 
Sec. 262.120 to read as follows:

Subpart K--New Jersey Gold Track Program XL Project


Sec. 262.120  Standards applicable to generators of hazardous waste 
participating in the New Jersey gold track program.

    (a) A generator participating in Gold Track with a signed and 
approved covenant agreement with NJDEP and who generates greater than 
1000 kilograms of hazardous waste per calendar month or 1 kilogram of 
acute hazardous waste as listed in 40 CFR 261.31, 261.32, and 
261.33(e.), may accumulate that hazardous waste onsite for more than 90 
days, but not more than 180 days without a permit or without having 
interim status provided that:
    (1) The waste is placed:
    (i) In containers and the generator complies with the applicable 
requirements of subpart I, of 40 CFR part 265; and 40 CFR 264.175; and/
or
    (ii) In tanks, and the generator complies with applicable 
requirements in subparts J, of 40 CFR part 265 except Secs. 265.197(c) 
and 265.200;
    (2) The date upon which each period of accumulation begins is 
clearly marked and visible for inspection on each container;
    (3) While being accumulated on-site, each container and tank is 
labeled or marked clearly with the words ``hazardous waste';
    (4) The generator complies with the requirements for owners or 
operators in Subparts C and D in 40 CFR part 265, with Sec. 265.16, and 
with 40 CFR 268.7(a)(5). In addition, such a generator is exempt from 
all the requirements in subparts G and H of 40 CFR part 265, except for 
Secs. 265.111 and 265.114;
    (5) The generator notifies the Director in writing of its intent to 
accumulate its hazardous waste in accordance with this section; and
    (6) The generator makes information (such as manifest, costs, 
environmental releases) available to the Director and, if requested, 
participates in informational meetings with the Director as may be 
necessary to track progress and measure the impact of longer 
accumulation time limits.
    (b) A generator participating in Gold Track and who generates 
greater than 1000 kilograms of hazardous waste or 1 kilogram of acute 
hazardous waste as listed in 40 CFR 261.31, 261.32, and 261.33(e.) per 
calendar month and who must transport this waste, or offer this waste 
for transportation over a distance of 200 miles or more may accumulate 
that hazardous waste onsite for more than 90 days, but not more than 
270 days without a permit or without having interim status if the 
generator complies with the requirements of paragraphs (a)(1) through 
(a)(6) of this section.
    (c) A generator accumulating hazardous waste in accordance with 
paragraphs (a) and (b) of this section who accumulates that hazardous 
waste onsite for more than 180 days (or for more than 270 days if the 
generator must transport this waste or offer the waste for 
transportation over a distance of 200 miles or more), is an operator of 
a storage facility and is subject to the requirements of 40 CFR parts 
264 and 265 and the permit requirements of 40 CFR part 270 unless the 
generator has been granted an extension to the 180 day (or 270 days if 
applicable) limit. An extension of up to 30 days may be granted at the 
discretion of the Director on a case-by-case basis. Such 30 day 
extensions may be granted by the Director if hazardous waste must 
remain onsite for longer than 180 days (or 270 if applicable) due to 
unforseen, temporary, and uncontrollable circumstances.
    (d) If a participating entity withdraws from the Gold Track Program 
prior to the expiration of its exclusion, or if the Director terminates 
an entity's participation prior to such expiration, the entity must 
return to compliance with all otherwise applicable hazardous waste 
regulations no later than six months after the date of withdrawal or 
termination.

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 264.1 is amended by adding paragraph (g)(13) to read as 
follows:


Sec. 264.1  Purpose, scope and applicability.

* * * * *
    (g) * * *
    (13) A generator participating in the Gold Track Program with a 
signed and approved covenant agreement with NJDEP storing or 
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *

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 265.1 is amended by adding paragraph (c)(16) to read as 
follows:


Sec. 265.1  Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (16) A generator participating in the Gold Track Project with a 
signed and approved covenant agreement with NJDEP storing or 
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *

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 270.1 is amended by adding paragraph (c)(2)(x) to read 
as follows:


Sec. 270.1  Purpose and scope of these regulations.

* * * * *
    (c) * * *
    (2) * * *
    (x) A generator participating in the Gold Track Project with a 
signed and approved covenant agreement with NJDEP storing or 
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *

[FR Doc. 02-8951 Filed 4-15-02; 8:45 am]
BILLING CODE 6560-50-P