National Emission Standards for Hazardous Air Pollutants: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II) [[pp. 59501-59550]]
[Federal Register: October 12, 2005 (Volume 70, Number 196)]
[Rules and Regulations]
[Page 59501-59550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc05-27]
[[pp. 59501-59550]]
National Emission Standards for Hazardous Air Pollutants: Final
Standards for Hazardous Air Pollutants for Hazardous Waste Combustors
(Phase I Final Replacement Standards and Phase II)
[[Continued from page 59500]]
[[Page 59501]]
lead to upset conditions and potentially damage the integrity of the
manufacturing equipment. Other commenters oppose, however, deletion of
the minimum combustion chamber temperature limit for cement kilns.
These commenters state that all combustion sources, including cement
kilns, must meet a minimum combustion chamber temperature limit to
control dioxin/furans and organic HAP emissions given that some cement
kilns feed hazardous waste at locations other than the high temperature
clinker-forming zone of the kiln.
Response: We are deleting as proposed the requirement to establish
a minimum combustion chamber temperature limit for dioxin/furan under
Sec. 63.1209(k)(2) for cement kilns. See 69 FR at 21343. However, we
retain the requirement for cement kilns to establish and comply with a
minimum combustion chamber temperature limit for the destruction and
removal efficiency standard under Sec. 63.1209(j)(1).\224\
---------------------------------------------------------------------------
\224\ Under the interim standards, cement kilns must establish
and continuously monitor limits on minimum gas temperature in the
combustion zone for both the dioxin/furan and DRE standards. As
discussed in the preceding paragraph, a source may not need to
conduct DRE testing during each comprehensive performance test. If
DRE testing is required, then the source will need to establish a
minimum combustion zone temperature limit as required under the DRE
standard. However, if DRE testing is not required, then (according
to the changes made today) the cement kiln will not be required to
establish the minimum combustion chamber temperature limit under the
dioxin/furan standard during a subsequent comprehensive performance
test. The minimum combustion chamber temperature operating limit
established during previous testing remains in effect, however.
---------------------------------------------------------------------------
As discussed in the 1999 rule, nondioxin/furan organic hazardous
air pollutants are controlled by the DRE standard and the carbon
monoxide and hydrocarbon standards. See 64 FR at 52848-52852. This
standard was not reopened in the present rulemaking. We note, however,
that the DRE standard determines appropriate process controls necessary
for the combustion of hazardous waste. Establishing and monitoring a
minimum temperature of the combustion chamber is a principal factor in
ensuring combustion efficiency and destruction of toxic organic
compounds. As discussed in the previous response, we believe this is
especially true given the industry trend to convert to the more
thermally efficient preheater/precalciner kiln manufacturing process,
which use two separate combustion processes. We conclude that it is
necessary, in spite of the concerns raised by commenters, to retain the
minimum combustion chamber temperature limit as related to the DRE
standard to ensure that combustion efficiency within the entire kiln
system is maintained for the control of nondioxin/furan organic HAP.
However, we acknowledge the difficulties that cement kiln operators
face in establishing a minimum combustion chamber temperature limit,
including the stressful operating conditions necessary to establish the
limit. As we stated at proposal, our data indicate that limiting the
gas temperature at the inlet to the particulate matter control device
is a critical parameter in controlling dioxin/furan emissions in cement
kilns. See 69 FR at 21344. Therefore, we believe that an operating
limit on the minimum combustion chamber temperature is less important
to ensure compliance with the dioxin/furan standard than to ensure
compliance with the DRE standard. Thus, we remove the requirement to
establish a minimum combustion chamber temperature limit for dioxin/
furan under Sec. 63.1209(k)(2) for cement kilns. This change does not
affect the other operating parameter limits under Sec. 63.1209(k) that
must be established for dioxin/furans, including a limit on the gas
temperature at the inlet to the particulate matter control device.
Comment: One commenter supports the use of previous minimum
combustion zone temperature data, regardless of the test age, in lieu
of conducting new, stressful DRE testing. That is, if a cement kiln is
required to conduct future DRE tests, then the source should not have
to re-establish a minimum combustion chamber temperature limit during
the new test. Rather, the source should have the option to submit
minimum combustion chamber temperature results in lieu of re-
establishing the limit.
Response: We reject the commenter's suggestion for reasons
discussed above. We believe that it is necessary to retain the link
between the minimum combustion chamber temperature limit and the DRE
test itself, which will ensure that the combustion efficiency of the
entire system will be maintained for the control of nondioxin/furan
organic HAP.
Comment: One commenter supports deletion of the minimum combustion
chamber temperature requirement for dioxin/furan under Sec.
63.1209(k)(2) for lightweight aggregate kilns.
Response: We reject the commenter's suggestion. Our data base of
dioxin/furan emissions data shows substantial variability in test
results at each source.\225\ This may indicate that factors other than
limiting kiln exit gas temperatures may be influencing significantly
dioxin/furan formation in lightweight aggregate kilns. As such, we
conclude that removing the minimum combustion chamber temperature limit
would not be appropriate at this time due to the uncertain nature of
dioxin/furan formation in lightweight aggregate kilns. Thus, we are
retaining the requirement to establish a minimum combustion chamber
temperature limit for dioxin/furans under Sec. 63.1209(k)(2) and Sec.
63.1209(j)(1) for lightweight aggregate kilns.
---------------------------------------------------------------------------
\225\ For example, dioxin/furan emissions from source number 307
range from a low of 0.024 to a high of 57.9 ng TEQ/dscm. See
``Source Category Summary Sheets'' available in the docket or USEPA,
``Final Technical Support Document for HWC MACT Standards, Volume
II: HWC Data Base,'' September 2005.
---------------------------------------------------------------------------
L. One Time Dioxin and Furan Test for Sources Not Subject to a
Numerical Limit for Dioxin and Furan
Comment. Commenters support the one-time dioxin/furan test for
sources not subject to a numerical dioxin and furan standard.
Commenters agree that previous testing should be allowed to document
the one time test.
Response. The final rule requires sources that are not subject to a
standard with numerical dioxin and furan levels \226\ to conduct a one-
time dioxin and furan test as part of their initial comprehensive
performance testing: lightweight aggregate kilns that elect to control
the gas temperature at the kiln exit rather than comply with a dioxin/
furan standard of 0.20 ng TEQ/dscm, solid fuel boilers, liquid fuel
boilers with wet or no air pollution control systems, and HCl
production furnaces. We will use these data as part of the process of
addressing residual risk under CAA section 112(f) and evaluating future
MACT standards under section 112(d)(6). The results may also be used as
part of the RCRA omnibus permitting process.
---------------------------------------------------------------------------
\226\ These sources do, however, need to comply with the carbon
monoxide or hydrocarbon standards, as well as the DRE standard as
surrogates to comply with today's dioxin and furan emissions control
requirements.
---------------------------------------------------------------------------
Comment. EPA proposed that source not subject to a numerical dioxin
and furan limit conduct a dioxin and furan test under worst-case
conditions. Commenters state that operating under worst-case conditions
is inconsistent with the CAA Section 112(f) process, which is to
consider actual (i.e., normal) emissions. Commenters suggest that we
require the tests be conducted under normal to above normal conditions.
Response. Section 112 (f) standards evaluate allowable emission
levels, although actual emissions levels may also be considered. See 70
FR at 19998-
[[Page 59502]]
19999 (April 15, 2005). Although we agree with the commenter that, in
general, emissions in the range of normal to maximum are considered for
section 112(f) determinations, we believe that dioxin/furan testing to
provide information of use in section 112(f) residual risk
determinations should be conducted under conditions where controllable
operating conditions are maximized to reflect the full range of
expected variability of those parameters which can be controlled. This
is because dioxin/furan emissions may relate exponentially with the
operating conditions that affect formation. We believe that dioxin/
furan emissions relate exponentially with gas temperature at the inlet
to an ESP or fabric filter,\227\ and are concerned that emissions may
also relate exponentially with the operating parameters (discussed
below) that affect emissions from sources subject to the one-time
dioxin/furan emissions test. Emissions testing under operating
conditions that are in the range of ``normal to above normal'' may be
exponentially lower than emissions under operating conditions
reflecting maximum daily variability of the source. Since testing under
normal operating conditions makes no effort to assess operating
variability, emissions during such testing would fail to reflect
expected daily maximum operating variability and so would not represent
time-weighted average emissions and would under-represent health risk
from chronic exposure.
---------------------------------------------------------------------------
\227\ See USEPA, ``Technical Support Document for HWC MACT
Standards, Volume IV: Compliance,'' July 1999, Chapter 3.
---------------------------------------------------------------------------
Although we acknowledge that sources will not exhibit maximum
operating variability each day of operation, we believe that it is
important to assess the upper range of emissions that these sources may
emit to properly evaluate under section 112(f) whether the MACT
standards for dioxin/furan for these sources (i.e., absent a numerical
emission standard) protect public health with an ample margin of
safety.\228\
---------------------------------------------------------------------------
\228\ Dioxin/furan are some of the most toxic compounds known
due to their bioaccumulation potential and wide range of health
effects, including carcinogenesis, at exceedingly low doses.
Exposure via indirect pathways is a chief reason that Congress
singled out dioxin/furan for priority MACT control in CAA section
112(c)(6). See S. Rep. No. 128, 101st Cong. 1st Sess. at 154-155.
---------------------------------------------------------------------------
In addition, we note that emissions reflecting daily maximum
variability would be most useful for section 112(d)(6) determinations
in the future because they would represent the full range of emissions
variability that results from controllable operating conditions.
For these reasons, the final rule requires sources to test under
feed and operating conditions that are most likely to reflect maximized
expected daily variability of dioxin/furan emissions, as proposed. Such
testing is similar to a comprehensive performance test to demonstrate
compliance with a numerical dioxin/furan emission standard where
operating limits would be established based on operations during the
test. As a practical matter, however, we note that many of the
operating parameters discussed below, although controllable to some
extent, cannot be quantified and cannot be controlled to replicate the
condition in a future test. In addition, some operating parameters we
identify may not have as strong a relationship to dioxin/furan
emissions as others. Consequently, the operating conditions are
generally described subjectively.
Based on currently available research, you should consider the
following factors to ensure that you conduct the test under operating
conditions that seek to fully reflect maximum daily variability of
dioxin/furan emissions: (1) Dioxin/furan testing should be conducted at
the point in the maintenance cycle for a boiler when the boiler tubes
are more fouled and soot-laden, and not after maintenance involving
soot or ash removal from the tubes; (2) dioxin/furan testing should be
performed following (or during) a period of feeding normal or greater
quantities of metals; (3) dioxin/furan testing should be performed
while feeding normal or greater quantities of chlorine; (4) the flue
gas temperature in some portion of the heat recovery section of a
boiler should be within the dioxin formation temperature window of 750
to 400[deg]F during the testing; (5) the testing should not be
conducted under optimal combustion conditions (e.g., combustion chamber
temperature should be in the range of normal to the operating limit;
hazardous waste feedrate and combustor through put should be in the
range of normal to maximum); (6) for units equipped with wet air
pollution control systems, the testing should be conducted after a high
solids loading has developed in the scrubber system (consistent with
normal operating cycles); and (7) for solid fuel boilers, the sulfur
content of the coal should be equivalent to or lower than normal coal
sulfur levels (within the range of sulfur levels that the source
utilizes), and the gas temperature at the inlet to the electrostatic
precipitator or fabric filter should be close to the operating limit.
In addition, unless sulfur compounds are routinely fed to the boler,
dioxin/furan testing should not be performed after a period of firing
high sulfur fuel or injection of sulfur additives. See 69 FR at 21308
for more information.
Comment: Commenters state that we should delete the one-time
testing requirement for dioxin and furans. The Clean Air Act at Section
114(a)(1)(D) allows EPA to request ``any person'' to sample emissions.
Applying the Section 114 authority to an entire subcategory of sources
is overly broad, particularly in the context of having already
established appropriate surrogates for dioxin and furan in a MACT rule.
Commenters are not aware of EPA taking this approach in previous
efforts. (Section 114 requests have focused on collecting existing
information from sources facing future MACT standards). Commenters
oppose this approach because it established a precedent they do not
favor, and will bring about significant costs and difficulties to
provide the data. They suggest that we delete the proposed requirements
for a one-time dioxin and furan test.
Response: We believe that section 114(a)(1)(D) of the Clean Air Act
provides us the authority to require sources to conduct a one time test
to generate data which can be used in making later section 112 (f)
determinations for the source category. The results of the testing may
also inform the section 112(d)(6) review and the RCRA omnibus
permitting processes. The fact that section 114 specifically indicates
that a purpose of gathering information under section 114 is to assist
in developing national rules indicates that the provision can have wide
sweep extending to all sources in a category. See 69 FR at 21307-308
for a full explanation.
We believe a dioxin and furan test costs approximately $10,000 when
conducted along with other testing. We do not believe this cost is
significant, and sources must only perform this test once, not more
frequently as would be the case to ensure compliance with a standard.
We also allow sources to use prior testing to meet this requirement,
and allow sources to use ``data in lieu'' so they can test one source
if they have more than one of the same identical sources.
We do not believe that obtaining these data will be difficult, and
note that the permitting authority can assist sources in planning their
tests.
M. Miscellaneous Compliance Issues
Comment: Several commenters state that Sec. 63.1206(c)(3)(iv)
requiring an automatic waste feed cutoff (AWFCO) if
[[Page 59503]]
a parameter linked to the AWFCO is exceeded should be revised to
reflect Sec. 63.1206(c)(2)(v)(A)(1). Section 63.1206(c)(2)(v)(A)(1)
states that, if the AWFCO is affected by a malfunction such that the
malfunction itself prevents immediate and automatic cutoff of the
hazardous waste feed, you must cease feeding hazardous waste as quickly
as possible.
Response: We agree with commenters in principle, but note that the
automatic waste feed cutoff system may fail for reasons other than a
malfunction. That is, equipment or other failures are malfunctions only
if they meet the definition of malfunction at Sec. 63.2. Failures that
result from improper maintenance or operation are not malfunctions.
Consequently, the final rule revises Sec. 63.1206(c)(3)(iv) to state
that if the AWFCO is affected by a failure such that the failure itself
prevents immediate and automatic cutoff of the hazardous waste feed,
you must cease feeding hazardous waste as quickly as possible. Revised
Sec. 63.1206(c)(3)(iv) does not refer to malfunctions, however,
because the AWFCO system may fail for reasons other than a malfunction.
The reference in Sec. 63.1206(c)(2)(v)(A)(1) to malfunctions is
appropriate because that paragraph addresses requirements during
malfunctions.
Comment: Several commenters note that the proposed rule did not
include a sunset provision for the Interim Standards applicable to
incinerators, cement kilns, and lightweight aggregate kilns after the
compliance date of the standards we promulgate today (i.e., the
``permanent replacement standards''). Commenters are concerned that,
although the Agency intends for the replacement standards to be more
stringent than the Interim Standards, that may not be the case in all
situations because of the different format used for some of the
replacement standards. For example, several of the replacement
standards for cement kilns and lightweight aggregate kilns are
expressed as hazardous waste thermal emissions.
Response: Although we are promulgating the replacement standards in
a format that ensures they are not less stringent than the Interim
Standards, we agree with commenters that not sunsetting the Interim
Standards may lead to confusion as to which standards apply.
Consequently, we include a sunset provision in today's rule for the
Interim Standards. The Interim Standards will be superseded by the
final rule promulgated today on the compliance date.
We note, however, that the Interim Standards for total chlorine
continue to apply to sources that establish health-based limits for
total chlorine under Sec. 63.1215. Consequently, we have incorporated
the total chlorine Interim Standards in Sec. 63.1215 as they apply as
a cap to the health-based emission limits.
Comment: Several commenters state that the rule should allow
extrapolation of ash and chlorine feedrates to establish feedrate
limits corresponding to the particulate matter and total chlorine
standards. Commenters believe the rationale we use to allow
extrapolation of metals feedrates is also applicable to ash and chlorine.
Response: The final rule does not allow you to extrapolate ash and
chlorine feedrates achieved during the comprehensive performance test
to establish feedrate limits comparable to the particulate matter and
total chlorine emission standards.
We do not allow extrapolation of ash to the particulate matter
emission standard because particulate matter (i.e., soot) may form in
the combustor, particularly at times of unstable combustion conditions.
Consequently, extrapolating from ash feedrates may underestimate
particulate matter emissions and may not ensure compliance with the
particulate matter emission standard.
We do not allow extrapolation of chlorine feedrates to the total
chlorine emission standard because chlorine feedrate is an operating
parameter limit to ensure compliance with the semivolatile metal
emission standard. Because an increase in chlorine feedrate can
increase the volatility of semivolatile metals and we do not know the
precise relationship among chlorine feedrate, metal volatility, and
metals emissions, extrapolating the chlorine feedrate achieved during
the comprehensive performance test to a feedrate comparable to the
total chlorine emission standard may not ensure compliance with the
semivolatile metal emission standard. If a source complies with the
semivolatile metals emission standard under Sec. 63.1207(m)(2) where
the performance test is waived, however, by assuming zero system
removal efficiency and limiting the semivolatile feedrate (expressed as
a maximum theoretical emission concentration) to the level of the
emission standard, the source may request under Sec. 63.1209(g)(1) to
extrapolate chlorine feedrates during the comprehensive performance
test up to the total chlorine emission standard.
Comment: Several commenters state that the proposed regulatory
language under Sec. Sec. 63.1206(b)(9)(i) and 63.1206(b)(10)(i) is
inconsistent with the proposed preamble, which states that sources
should be allowed to petition for alternative standards provided they
submit information showing that HAP contributions to emissions from the
raw materials are preventing the source from achieving the emissions
standard though the source is using MACT control.\229\ The commenters
state that the proposed regulatory language, despite the intent
signaled in the proposed preamble, inappropriately excludes the
provisions of Sec. Sec. 63.1206(b)(9)(i) and 63.1206(b)(10)(i) as an
alternative option when complying with the replacement emission
standards under Sec. Sec. 63.1220 and 63.1221.
---------------------------------------------------------------------------
\229\ For example, see 69 FR at 21268.
---------------------------------------------------------------------------
Response: We agree with the commenters. The proposed regulatory
text inadvertently excluded the alternative standard provisions from
use by cement and lightweight aggregate kilns under the replacement
standards. Accordingly, we are revising the introductory text of
Sec. Sec. 63.1206(b)(9)(i) and 63.1206(b)(10)(i) by making the
alternative standards available under the replacement standards.
Comment: One commenter states that the availability of the
alternative standard for mercury under Sec. 63.1206(b)(10)(i) should
not be conditioned upon mercury being present only at levels below the
detection limit in raw materials, as specified under Sec.
63.1206(b)(10)(i)(B). The commenter suggests that the approach for
mercury should be the same as for other HAP such as semi- and low
volatile metals under Sec. 63.1206(b)(10)(i)(A).
Response: The commenter misreads the alternative standard
provisions under Sec. 63.1206(b)(10)(i). We note that Sec.
63.1206(b)(10) includes two separate provisions for cement kilns. The
first provision allows sources to petition for an alternative standard
when a source cannot achieve a standard because of HAP metal or
chlorine concentrations in their raw material feedstocks cause an
exceedance of a standard despite the source's use of MACT control. See
Sec. 63.1206(b)(10)(i)(A). The term ``regulated metals'' specified in
Sec. 63.1206(b)(10)(i)(A) includes mercury, semivolatile metals, and
low volatile metals. The second provision allows a source to petition
for an alternative mercury standard when mercury is not present at
detectable levels in the source's raw materials. Sec.
63.1206(b)(10)(i)(B). These two provisions are indeed separate as
[[Page 59504]]
discussed in the 1999 rule. See 64 FR at 52962-967. Also note that the
conjunction separating paragraphs (b)(10)(i)(A) and (b)(10)(i)(B) is
``or,'' not ``and.''
Given the potential confusion of the term ``regulated metals,'' we
are clarifying the regulatory text by specifying the three metal HAP
volatility groups that comprise the term ``regulated metals.'' See
revised Sec. 63.1206(b)(10)(i)(A). Finally, given that the alternative
standard provisions are similar for lightweight aggregate kilns, we are
also clarifying Sec. Sec. 63.1206(b)(9)(i)(A) and (b)(9)(iv).
IX. Site-Specific Risk Assessment Under RCRA
A. What Is the Site-Specific Risk Assessment Policy?
The Site-Specific Risk Assessment (SSRA) Policy has undergone
several revisions since its inception in the 1993 draft Combustion
Strategy. Currently, it is the same policy as we expressed in the 1999
final rule preamble. In the 1999 rule, we recommended that for
hazardous waste combustors subject to the Phase 1 MACT standards,
permitting authorities should evaluate the need for an SSRA on a case-
by-case basis. Further, while SSRAs are not anticipated to be necessary
for every facility, they should be conducted where there is some reason
to believe that operation in accordance with the MACT standards alone
may not be protective of human health and the environment. For
hazardous waste combustors not subject to the Phase 1 standards, we
continued to recommend that SSRAs be conducted as part of the RCRA
permitting process. See 64 FR 52841. Since 1999, we have provided
additional clarification of the appropriate use of the SSRA policy and
technical guidance in an April 10, 2003 memorandum from OSWER's
Assistant Administrator to the EPA Regional Administrators entitled,
``Use of the Site-Specific Risk Assessment Policy and Guidance for
Hazardous Waste Combustion Facilities'' (see Docket # OAR-2004-
0022-0083). Most importantly, in this memorandum we reiterated that
where a permitting authority concludes that a risk assessment is
necessary for a particular combustor, the basis for this decision must
be substantiated in each case. The factual and technical basis for any
decisions to conduct a risk assessment must be included in the
administrative record for the facility per 40 CFR 124.7, 124.8, 124.9,
and 124.18. In addition, if the facility, or any other party, files
comments on a draft permit decision objecting to the permitting
authority's conclusions regarding the need for a risk assessment, the
permitting authority must respond fully to the comments. Any permit
conditions determined to be necessary based either on the SSRA, or
because the facility declined to conduct an SSRA, also must be
documented and supported in the administrative record.
Today, we are codifying additional regulatory language providing
authority for SSRAs while maintaining the same basic SSRA policy. It is
important to note that all of the requirements of Part 124 referred to
above will continue to apply to actions taken in accordance with the
additional regulatory language we are codifying. The SSRA regulatory
provisions, which establish that the need for an SSRA should be
determined on a case-by-case basis, apply equally to both Phase 1 and
Phase 2 sources.
B. Why Might SSRAs Continue To Be Necessary for Sources Complying With
Phase 1 Replacement Standards and Phase 2 Standards?
EPA conducted a national evaluation of human health and ecological
risk for the MACT standards as proposed in the 1996 NPRM and then
revised the evaluation to include more facilities for the 1999 final
rulemaking. Based on the results of the final national risk evaluation
for hazardous air pollutants (excluding non-dioxin products of
incomplete combustion), we concluded that sources complying with the
MACT standards generally would not pose an unacceptable risk to human
health or the environment. For today's final rule, we did not conduct
another national risk assessment as we did for the 1999 rule. Rather,
for both the April 20, 2004 NPRM and today's final rule we conducted a
comparative risk analysis, comparing the Phase 1 Replacement and Phase
2 Standards to the 1999-promulgated Phase 1 Standards, to determine if
there were any significant differences that might influence or impact
the potential risk. Similar to the proposal, the comparative analysis
conducted for today's final rule focused on several key
characteristics: emission rates, stack height, stack gas buoyancy,
meteorological conditions (which include a number of variables),
population parameters including density and radial distribution, and
correlations among the characteristics themselves. The results of the
comparative analysis suggest that the MACT standards for both Phase 1
and Phase 2 sources are generally protective. Therefore, separate
national emissions standards under RCRA are unnecessary. See Part
Seven: How Does the Final Rule Meet the RCRA Protectiveness Mandate?
Although we have concluded that the Phase 1 Replacement and Phase 2
standards are generally protective, as we discussed in the 2004
proposal (69 FR 21325), there may be instances where we cannot assure
that emissions from each source will be protective of human health and
the environment, and therefore an SSRA may be necessary. Furthermore,
it should be noted that, just as for the risk assessment for the 1999
rule, the comparative analysis does not account for cumulative
emissions at a source or background exposures from other sources.
Before discussing factors that may lead permit authorities to
consider whether or not to conduct an SSRA, it should be noted that the
Agency generally does not expect that facilities that have conducted
risk assessments will have to repeat them. As we explained in the 1999
final rule preamble, changes to comply with the MACT standards should
not cause an increase in risk for the vast majority of facilities given
that the changes will likely be the addition of pollution control
equipment or a reduction in the hazardous waste being burned (see 64 FR
52842). Instances where a facility may need to repeat a risk assessment
would be related to changes in conditions that would likely lead to
increased risk. For example, if the only changes at a facility relate
to the exposed population (a new housing development is constructed
within a few square miles of the source), what was once determined to
be protective under a previous risk assessment may now be beyond
acceptable levels. Another example would be where a hazardous waste
burning cement kiln that previously monitored hydrocarbons in the main
stack elects to install a mid-kiln sampling port for carbon monoxide or
hydrocarbon monitoring to avoid restrictions on hydrocarbon levels in
the main stack. Thus, the stack hydrocarbon emissions may increase (64
FR 52843, footnote 29). In such situations, we would anticipate that
the risk assessment would not have to be entirely redone. It may be as
limited as collecting relevant new data for comparison purposes,
leading to a decision not to repeat any portion of a risk assessment.
Or, it may be more inclusive such that modifications would be made to
specific inputs to or aspects of the risk assessment using data from a
previous risk assessment, risk burn or comprehensive performance test.
In recognition of this, we have added an additional factor to the list
of factors at Sec. 270.10(l)(1) to indicate that a previously
conducted risk assessment
[[Page 59505]]
would be relevant in evaluating changes in conditions that may lead to
increased risk. The factor reads as follows: ``Adequacy of any
previously conducted risk assessment, given any subsequent changes in
conditions likely to affect risk.'' The following discussion is
intended mainly to address facilities that have not yet conducted an
SSRA (i.e., where it has been determined that one is needed).
In the proposal we discussed our conclusion that almost all of the
proposed standards for Phase 1 sources were equivalent to or more
stringent than the 1999 final standards, with the exception of the
mercury standard for new and existing LWAKs and the total chlorine
standard for new LWAKs. However, there are additional standards for
Phase 1 sources finalized in today's rulemaking that are less stringent
than the 1999 final standards. In addition to those discussed in the
proposal, the following standards are less stringent than the 1999
final standards: mercury for new cement kilns and semi-volatile metals
for existing cement kilns; dioxin/furan for existing and new LWAKs,
mercury for existing and new LWAKs, and total chlorine for existing and
new LWAKs. Because these standards exceed the levels which were
evaluated in the 1999 national risk assessment, especially with respect
to mercury and dioxin/furan standards for which the national risk
assessment showed high end risks at or near levels of concern, permit
authorities may decide on a case-by-case basis that an SSRA is
appropriate to determine whether the less stringent Replacement
standards are protective. In addition, the comparative analysis results
suggest concern regarding the dioxin/furan standard for LWAKs and thus,
permit authorities may consider site-specific factors in determining
whether the standard is sufficiently protective.
Specific to Phase 2 sources, we mentioned earlier that we conducted
the same comparative risk analysis for Phase 2 sources as we did for
Phase 1 sources (i.e., by comparing the Phase 2 standards to the 1999
final standards for Phase 1 sources). Although several MACT standards
for Phase 2 sources are more stringent than the BIF standards under
RCRA, there are a few MACT standards that may be cause for concern on a
case-by-case basis, as they are either less stringent than some of the
1999 final standards or the comparative risk analysis suggests concern.
They are: The particulate matter standard (and certain metals such as
antimony and thallium), mercury standard, and total chlorine standard
for solid fuel-fired boilers (SFBs); the dioxin/furan standard (carbon
monoxide or total hydrocarbon as surrogate controls, versus a numerical
standard) for HCl production furnaces; and the dioxin/furan standard
for liquid fuel-fired boilers (LFBs) with dry APCDs. In addition,
dioxin/furan emissions data for LFBs with wet or no APCDs indicate an
observed level (1.4 ng TEQ/dscm) of more than three times the highest
dioxin/furan standard evaluated in the 1999 national risk assessment
(69 FR 21285).\230\ Thus, these standards may warrant site-specific
risk consideration, especially with respect to the dioxin/furan
standards. That is, due to the complexity of the dioxin/furan formation
mechanism and given the toxicity of dioxin/furans,\231\ an SSRA may be
needed based on the specific emission levels of each source not subject
to a numerical standard. For additional discussion on the
protectiveness of standards, please refer to Part Seven: How Does the
Final Rule Meet the RCRA Protectiveness Mandate?
---------------------------------------------------------------------------
\230\ The comparative analysis did not specifically suggest
concern as it has for other source categories, but per the reference
to the proposal, we have some concern regarding the protectiveness
of the standard.
\231\ There is ongoing uncertainty in cancer and other health
effects levels for chlorinated dioxins and furans.
---------------------------------------------------------------------------
There are also site-specific factors beyond the standards that can
be important to the SSRA decision making process. As discussed in the
proposal, examples include a source's proximity to a water body or
endangered species habitat, repeated occurrences of contaminant
advisories for nearby water bodies, the number of hazardous air
pollutant emission sources within a facility and the surrounding
community, whether or not the waste feed to the combustor is made up of
persistent, bioaccumulative or toxic contaminants, and sensitive
receptors with potentially significantly different exposure pathways,
such as Native Americans (69 FR 21326). Also, there are several
uncertainties inherent in the 1999 national risk assessment.\232\ Thus,
the same uncertainties related to the fate and transport of mercury in
the environment and the biological significance of mercury exposures in
fish (i.e., once mercury has been transformed into methylmercury, it
can be ingested by the lower trophic level organisms where it can
bioaccumulate in fish tissue), as well as the risk posed by non-dioxin
products of incomplete combustion, remain today and may influence a
permitting authority's decision. Last, we are finalizing the option for
Phase 2 area sources to comply with specific MACT standards as provided
by CAA Sec. 112(c)(6) specific pollutants authority. These area
sources may need to conduct an SSRA for the remaining RCRA standards
that they choose to comply with (i.e., since they do not address the
potential risk from indirect exposures to long-term deposition of
metals onto soils and surface waters).\233\
---------------------------------------------------------------------------
\232\ Uncertainties stem from a lack of information regarding
the behavior of mercury in the environment and a lack of sufficient
emissions data and parameter values (e.g., bioaccumulation values)
for nondioxin products of incomplete combustion. See 64 FR 52840-52841.
\233\ Currently, there are only five area sources that this may
apply to; they are interim status units in the process of conducting
an SSRA as part of their final permits.
---------------------------------------------------------------------------
In addition to the examples provided in the previous paragraph, we
also expressed that an SSRA may be necessary with respect to the
proposed thermal emission standards. With respect to Phase 1 sources,
we had noted in the proposal that the thermal emission standards for
semi-volatile and low volatile metals for cement kilns and LWAKs may be
of concern because they directly address emissions attributable to
hazardous waste versus a source's total HAP metal emissions. See 69 FR
21326. However, we are requiring sources to comply with both the
thermal emission standards and the Interim Standards in today's final
rulemaking, since compliance with the thermal emission standards may
not always assure compliance with the Interim Standards. As a result,
the thermal emission standards for cement kilns and LWAKs no longer
pose the uncertainties that they had in the proposal.\234\ In regard to
Phase 2 sources, the concern at the time of proposal was with respect
to the thermal emission standards for liquid fuel-fired boilers.
However, the comparative analysis for today's final rulemaking for
liquid fuel-fired boilers, which is based on total stack emissions from
these sources while assuming compliance with the thermal standards,
does not suggest that risks for LFBs are cause for concern (except as
otherwise noted, e.g., dioxins).
---------------------------------------------------------------------------
\234\ An exception would be the semivolatile metal Interim
standard for existing cement kilns, which is less stringent than the
1999 final standard. As we noted, permit authorities may consider
the need for an SSRA as a result.
---------------------------------------------------------------------------
C. What Changes Are EPA Finalizing With Respect to the Site-Specific
Risk Assessment Policy?
In the 1999 final rule preamble, we included a revised site-
specific risk assessment (SSRA) policy recommendation to account for
promulgation of the new technology-based CAA MACT standards for Phase
[[Page 59506]]
1 sources. We recommended that permitting authorities evaluate the need
for an SSRA on a case-by-case basis for hazardous waste combustors
subject to the Phase 1 MACT standards. For hazardous waste combustors
not subject to the Phase 1 standards, we continued to recommend that
SSRAs be conducted as part of the RCRA permitting process if necessary
to protect human health and the environment. We indicated that the RCRA
omnibus provision authorized permit authorities to require applicants
to submit SSRA results where an SSRA was determined to be necessary.
For the reasons described in the previous subsection, we believe that
additional controls may be necessary on a site-specific basis to ensure
that adequate protection is achieved in accordance with RCRA.
Consequently, because SSRAs are likely to continue to be necessary
at some facilities (mainly those that have not previously conducted an
SSRA), we concluded that it is more appropriate to include a regulatory
provision that explicitly provides for the permit authority to require
SSRAs on a case-by-case basis and add conditions to RCRA permits based
on SSRA results. Therefore, instead of relying on RCRA Sec. 3005(c)(3)
and its associated regulations at Sec. 270.10(k) when permitting
authorities conduct or require a risk assessment on a site-specific
basis (i.e., as applicable to those newly entering the RCRA permit
process), we had proposed to codify the authorities provided by
sections 3004(a) and (q) and 3005(b). See proposed regulations at 69 FR
21383-21384, Sec. Sec. 270.10(l) and 270.32(b)(3). In proposing to
codify these authorities, we stated that we were not requiring that
SSRAs automatically be conducted for hazardous waste combustion units,
but that the decision of whether or not a risk assessment is necessary
must be made based upon relevant factors associated with an individual
combustion unit and that there are combustion units for which an SSRA
will not be necessary. Further, we explained that the proposed language
would provide notice to the regulated community that an SSRA may be
necessary to support a source's permit, while reminding the permit
agency of the need to evaluate whether an SSRA would be necessary on a
site-specific basis.
Despite our efforts to explain that by codifying these provisions,
we are only modifying the statutory authority under which we implement
the SSRA policy while maintaining the same SSRA policy from a
substantive standpoint, commenters generally opposed EPA's proposed
codification. The comment most frequently presented was that the
proposed regulatory language is not helpful to anyone (i.e., regulated
community, the public or permitting agencies), is redundant with the
omnibus authority, and sets an extremely low hurdle for regulators to
require SSRAs.
We disagree that the new regulatory language is not helpful and
that it sets an extremely low hurdle for regulators to require SSRAs.
We believe that the new provisions are beneficial in two ways: (1) They
provide notice to the regulated community and public that an SSRA may
be necessary to support a source's permit; and (2) they remind the
permitting agencies of the importance of evaluating whether an SSRA
would be necessary on a site-specific basis. The new regulatory
provision in no way expands or supplements the authority on which EPA
had previously relied--i.e., omnibus and Sec. 270.10(k), thus it does
not provide any more or less authority to permit authorities (i.e.,
lower or raise the hurdle) to require SSRAs. We agree that, because the
proposed language provides permitting authorities with no greater
authority than the omnibus authority, it is somewhat duplicative of
Sec. 270.10(k). However, as noted, EPA believes this provision offers
important benefits to both the agency and the regulated community, and
as explained further below, EPA has adopted a slightly modified version
of the proposal pursuant to RCRA Sec. 3004(a) and Sec. 3005(b). See
also discussion in subsection F.
Another common view expressed by commenters is that, although
extensive risk assessments that have been performed for more than a
decade, showing lack of risk to human health and the environment, EPA
continues to require SSRAs without a technical evaluation of the
historical results. To the contrary, EPA Regional permit writers have
found that certain chemicals (especially dioxin and mercury)\235\ pose
excess risk in certain circumstances--even under the Interim
Standards--and consequently find it necessary to assess risk to human
health and the environment based on site-specific conditions at the
facility. In EPA Regions 7 and 10 for example, some facilities have
RCRA risk-based permit conditions that establish more frequent sampling
or limits on feed rate for specified metals to ensure that ecologically
sensitive areas are not adversely impacted.
---------------------------------------------------------------------------
\235\ Dioxin is a common risk driver due to ongoing uncertainty
in cancer and other health effects levels for chlorinated dioxins
and furans. Mercury is also a common risk driver due to
uncertainties implicit in the quantitative mercury analysis. See
discussion in Part Seven, Section II. and 65 FR 52997. Thus, it is
not uncommon for permit authorities to require risk-based RCRA
permit limits (based on risk assessment results) to control
emissions of these pollutants.
---------------------------------------------------------------------------
Many commenters also state that CAA Sec. 112(f) residual risk
process is the appropriate method to assess risk for hazardous waste
combustors complying with MACT, not RCRA risk assessments.
Specifically, one commenter argued that EPA lacked statutory authority
to rely on the omnibus provisions to require SSRA and SSRA-based
controls on the grounds that Sec. 112(f) of the Clean Air Act
establishes a specific provision to control any residual risk from
combustor emissions. We disagree with commenters for two reasons.
First, as we explained in the 1999 final rule preamble, the omnibus
provision is a RCRA statutory requirement and the CAA does not override
RCRA. Promulgation of the MACT standards, therefore, does not
duplicate, supersede, or otherwise modify the omnibus provision or its
applicability to the sources covered by today's rule. Second, the SSRA
under RCRA is usually conducted prior to issuance of the final permit.
The CAA residual risk determination is generally made eight years after
promulgation of the MACT standards for a source category. Accordingly,
a permit authority currently facing a permit decision could not rely on
these yet unwritten residual risk standards to resolve its identified
concern that the MACT standard may not be sufficiently protective at an
individual site. In addition, even though we believe that Sec.
3005(c)(3) and its associated regulations provide the authority to
require and perform SSRAs and to write permit conditions based on SSRA
results, we are not relying on these provisions as the authority for
Sec. 270.10(l). Rather, we are relying on Sec. Sec. 3004(a) and (q)
and 3005(b). See 69 FR 21327.
With respect to the costs incurred when conducting an SSRA, several
commenters raised the concern that our approximations do not include
portions of actual costs (e.g., data gathering, QA/QC, and third party
consultants, risk assessors, and plant personnel time to coordinate and
review SSRA efforts and collect facility data), thus resulting in
artificially low costs. Commenters cited additional reasons why they
feel that EPA's cost estimates are too low including our assumptions
that: (1) SSRAs are a one-time or infrequent cost; (2) most SSRAs fall
under ``normal'' versus ``unusual'' situations; and (3) the cost of
conducting a risk burn during a
[[Page 59507]]
trial burn adds only 20% more to the cost.
Regarding the comment that we did not include actual costs for our
estimates of overall costs to conduct an SSRA, we agree that some costs
were overlooked. We did include the costs related to conducting an SSRA
under ``normal'' and ``unusual'' conditions, SSRA data collection in
conjunction with a regular performance burn, and a full independent
risk burn including protocol, sampling, analysis, and report. However,
we did not capture facility time associated with data collection and
management related to the SSRA. Consequently, we have revised our cost
estimate for performing these activities; see chapter 4 of the
background document entitled, Assessment of the Potential Costs,
Benefits, and Other Impacts of the Hazardous Waste Combustion MACT
Replacement Standards--Final Rule, October 12, 2005.
In response to the broader comment that our cost estimates are too
low (for several reasons mentioned previously), we agree that our
estimate of a 20% additional cost to conduct a risk burn with a trial
burn may have been conservative and therefore, we have adjusted our
previous estimate to include a range of 20% to 40%. The total SSRA cost
range has also been updated from $141K-$370K to $157K-$815K.\236\ With
respect to our assumption that the majority of SSRAs are conducted
under ``normal'' conditions (lending to overall lower cost estimates),
we do believe that the majority of future SSRAs will fall under the
``normal'' conditions.\237\ We believe this is appropriate due to: lack
of new facilities coming on-line for which there is no previous test
data; availability of commercial modeling software; and finalization of
the ``Human Health Risk Assessment Protocol for Hazardous Waste
Combustion Facilities'' guidance, or ``HHRAP'' guidance. However, we do
recognize that some facilities can be more complex than others in the
hazardous waste combustion universe. Therefore, we have identified a
portion of facilities that are likely to incur ``unusual'' costs for a
future SSRA and have revised our cost analysis to reflect inclusion of
these higher-cost facilities. See background document, Assessment of
the Potential Costs, Benefits, and Other Impacts of the Hazardous Waste
Combustion MACT Replacement Standards--Final Rule, October 12, 2005.
---------------------------------------------------------------------------
\236\ The high end of this range applies only to those systems
operating under ``unusual conditions'' (the available data suggest
that there are only five such facilities).
\237\ Normal conditions assume use of previously collected
performance burn data, use of standard commercial modeling software
that meet Agency guidance, and limited interactions with State and
Federal oversight authorities. Unusual conditions assume the need
for site-specific modeling, extensive interactions with stakeholders
and regulators, an extended time frame, and targeted ecological analyses.
---------------------------------------------------------------------------
Also, we maintain our assumption that SSRAs generally represent a
one-time cost unless a facility significantly changes its operations or
if receptors change such that an increase in risk is anticipated as a
result. Even so, as explained earlier in subsection B., we would
anticipate that the risk assessment would not have to be entirely
redone. It may be as limited as collecting relevant new data for
comparison purposes, leading to a decision not to repeat any portion of
a risk assessment. Or, it may be more inclusive such that modifications
would be made to specific inputs to or aspects of the risk assessment
using data from a previous risk assessment, risk burn or comprehensive
performance test. With respect to chemical weapons demilitarization
facilities, we recognize that due to their specialized waste streams
and multiple treatment units, SSRAs, in many cases, are not one-time
events and as a result, their SSRA costs are relatively high. The high
costs can be attributed to the necessity for each chemical weapons
demilitarization facility to perform surrogate trial burns and then
agent trial burns for each furnace and each agent campaign (e.g., GB
(Sarin), VX, and HD (Sulfur Mustard)). For example, a chemical weapons
demilitarization facility would conduct GB trial burns on all the
furnaces and then complete destruction of the GB stockpile, followed by
VX trial burns and VX stockpile and finally, the HD trial burns and the
HD stockpile. This effectively extends the input to the risk assessment
of the trial burn data over most of the operational life of the
facility.
Last, several commenters raised the concern that EPA's proposal to
codify the authority to require SSRAs on a case-by-case basis and add
conditions to RCRA permits based on SSRA results, violates the due
process protections afforded under the current structure, where SSRAs
are required and performed pursuant to RCRA Sec. 3005(c)(3) omnibus
authority. Commenters were further concerned that the proposed language
in Sec. 270.10(l) would remove existing procedural safeguards by
allowing the Agency to require a very expensive SSRA before the draft
permit is even issued, thus violating EPA's own procedural standards as
well as due process. It appears as though commenters believe that the
procedures (and procedural protections) currently applicable whenever
an SSRA is conducted are unique to circumstances in which the
permitting authority proceeds under the authority of RCRA Sec.
3005(c)(3)--the ``omnibus'' provision. This is incorrect. All of the
specific procedural requirements the commenters have raised would be
applicable whether the permitting authority proceeded under Sec.
270.10(l), as EPA proposed, or pursuant to RCRA Sec. 3005(c)(3) and
Sec. 270.10(k), as is the current practice.
All of the requirements established in Part 124 continue to apply,
whether EPA proceeds under Sec. 270.10(l) or under Sec. 270.10(k). As
we discussed in the proposal, the basis for the decision to conduct a
risk assessment, or to request additional information to evaluate risk
or determine whether a risk assessment is necessary, must be included
in the administrative record for the facility and made available to the
public during the comment period for the draft permit. See 40 CFR 124.7
[statement of basis]; 124.9 [administrative record for draft permit];
124.18 [administrative record for final permit]. If the facility, or
any other party, files comments on a draft permit decision objecting to
the permitting authority's conclusions regarding the need for a risk
assessment, the permitting authority must respond fully to the
comments. Any permit conditions determined to be necessary based either
on the SSRA, or because the facility declined to conduct an SSRA, also
must be documented and supported in the administrative record.
The commenters' concern that Sec. 270.10(l) allows the permitting
authority to require the SSRA prior to the issuance of a draft permit,
and therefore the applicant would have no opportunity to comment or
challenge that determination, is equally unfounded. There is
effectively no practical or substantive distinction between the
circumstance when a permit authority communicates the decision that an
SSRA is necessary to issue the permit prior to issuing the draft
permit, or as part of the draft permit. In either case, if a facility
refuses to provide a risk assessment or data to support a risk
assessment requested under this provision, the regulations at part 124
make clear that the appropriate recourse is for the permit authority to
deny the permit (See 40 CFR 124.3(d); 124.6(b) and 270.10(c). The basis
for the denial would essentially be the same in either case--that the
information before the agency gives rise to a concern that the MACT may
not be sufficiently protective,
[[Page 59508]]
which the agency is unable to dispel based on the information before
it. Consequently, the permit authority cannot determine that the permit
meets RCRA's standard for permit issuance. An as noted above, all of
the requirements of Part 124 would apply to actions taken in accordance
with Sec. 270.10(l). For additional discussion on this issue, please
refer to the Response to Comments background document for this final
rule.\238\
---------------------------------------------------------------------------
\238\ See final Response to Comment to the HWC MACT Standards,
Volume 5, Miscellaneous.
---------------------------------------------------------------------------
Despite the many reasons offered by commenters opposing our
proposal, we continue to believe that our proposed approach is
appropriate. As discussed in the proposal (69 FR 21327) and in the
previous subsection, although the Phase 1 Replacement and Phase 2
standards provide a high level of protection (i.e., they are generally
protective) to human health and the environment, thereby allowing us to
nationally defer the RCRA emission requirements to MACT, additional
controls may be necessary on an individual source basis to ensure that
adequate protection is achieved in accordance with RCRA. Until today,
we have relied exclusively upon RCRA Sec. 3005(c)(3) and its
associated regulations at Sec. 270.10(k) when conducting or requiring
an SSRA. We continue to believe that Sec. 3005(c)(3) and its
associated regulations provide the authority to require and perform
SSRAs and to write permit conditions based on SSRA results. In fact, as
the next subsection will explain, EPA will likely continue to include
permit conditions based on the omnibus authority in some circumstances
when conducting these activities, and state agencies in states with
authorized programs will continue to rely on their own authorized
equivalent. However, because SSRAs are likely to continue to be
necessary at some facilities, we are finalizing the authority to
require them on a case-by-case basis and add conditions to RCRA permits
based on SSRA results under the authority of RCRA Sec. Sec. 3004(a)
and (q) and 3005(c). Therefore, we are finalizing Sec. Sec. 270.10(l)
and 270.32(b)(3) with some minor modifications to provide further
clarification of the Agency's intent.
D. How Will the New SSRA Regulatory Provisions Work?
The new regulatory provisions are finalized under both base program
authority (Sec. 3004(a) and Sec. 3005(b)) and HSWA authority (Sec.
3004(q)). That is, changes made to regulations applicable to boilers
are promulgated under HSWA authority, whereas changes made to
regulations applicable to incinerators are promulgated under non-HSWA
authority. Consequently, when it is determined that an SSRA is needed,
the applicability of these provisions will vary according to the type
of combustion unit (whether it is regulated under 3004(q), or only
3004(a) and 3005(b)), and the authorization status of the state.
Depending on the facts, the new authority would be applicable, or the
omnibus provision would remain the principal authority for requiring
SSRAs and imposing risk-based conditions where appropriate. See 69 FR
21327.
According to the state authorization section of this preamble (see
Part Five, Section IV.), EPA does not consider these provisions to be
either more or less stringent than the pre-existing federal program,
since they simply make explicit an authority that has been and remains
available under the omnibus authority and its implementing regulations.
Thus, states with authorized equivalents to the federal omnibus
authority will not be required to adopt these provisions, so long as
they interpret their omnibus authority broadly enough to require risk
assessments where necessary.\239\
---------------------------------------------------------------------------
\239\ Authorized states are required to modify their programs
only when EPA enacts federal requirements that are more stringent or
broader in scope than existing federal requirements. This applies to
regulations promulgated under both HSWA and non-HSWA authorities.
---------------------------------------------------------------------------
The provisions of Sec. Sec. 270.10(l) and 270.32(b)(3) adopted in
today's rule are substantially similar to the provisions EPA proposed.
Section 270.10(l) continues to explicitly provide that a permit
authority has the authority to evaluate, on a case-by-case basis, the
need for an SSRA. EPA has also retained its proposed language that
explicitly provides that, where an SSRA is determined to be necessary,
the permit authority may require a permittee or an applicant to conduct
an SSRA, or to provide the regulatory agency with the information
necessary to conduct an SSRA on behalf of the permittee/applicant. The
final provision also essentially retains the standard laid out in the
proposal: that a permit authority may decide that an SSRA is warranted
based on a conclusion that additional controls beyond those required
pursuant to 40 CFR parts 63, 264, 265, or 266 may be needed to ensure
protection of human health and the environment under RCRA. In Sec.
270.32(b)(3), EPA has also explicitly codified the authority for permit
authorities to require that the applicant provide information, if
needed, to make the decision of whether an SSRA should be required.
However, EPA has adopted some further clarifications to the final
provisions in response to comments. In response to comments that the
regulatory language EPA had proposed still fails to provide the
regulated community with adequate notice that an SSRA might be
required, and what that might entail, EPA has included additional
language to address those issues. Specifically, EPA has included a
sentence stating that the information required under Sec. 270.10(l)
can include the information necessary to evaluate the potential risk to
human health and/or the environment resulting from both direct and
indirect exposure pathways. EPA has also added language to remind
permit authorities that the determination that the MACT standards may
not be sufficiently protective is to be based only on factors relevant
to the potential risk from the hazardous waste combustion unit at the
site, and has provided a list of factors to guide the permit authority
in making that determination. See subsections E. and F. for further
discussion. The applicability language of Sec. Sec. 270.19, 270.22,
270.62, and 270.66 also has been amended to allow a permit authority
that has determined that an SSRA is necessary to continue to apply the
relevant requirements of these sections on a case-by-case basis and as
they relate to the performance of the SSRA after the source has
demonstrated compliance with the MACT standards.
As previously noted, the requirements at 40 CFR Part 124 continue
to apply to actions taken to implement Sec. 270.10(l). Thus, if the
permitting authority concludes that a risk assessment or additional
information is necessary for a particular combustor, the permitting
authority must provide the factual and technical basis for its decision
in the permit's administrative record and must make it available to the
public during the comment period for the draft permit. If the facility
or any other party files comments on a draft permit decision objecting
to the permitting authority's conclusions regarding the need for an
SSRA, the authority must respond fully to the comments. In addition,
the SSRA must be included in the administrative record and made
available to the public during the comment period. Any additional
conditions and limitations determined to be necessary as a result of
the SSRA must be documented and supported in the administrative record
as well.\240\
---------------------------------------------------------------------------
\240\ Additional clarification on the appropriate use of the
SSRA policy and technical guidance is provided in the April 10, 2003
memorandum from Marianne Lamont Horinko entitled ``Use of the Site-
Specific Risk Assessment Policy and Guidance for Hazardous Waste
Combustion Facilities.'' (See Docket # OAR-2004-0022-0083).
---------------------------------------------------------------------------
[[Page 59509]]
E. What Were Commenters' Reactions to EPA's Proposed Decision Not To
Provide National Criteria for Determining When an SSRA Is or Is Not
Necessary?
In the proposal, we stated that we were not proposing national
criteria (e.g., guiding factors) for determining when an SSRA is
necessary. Although we had developed a list of qualitative guiding
factors for permit authorities to consult when considering the need for
an SSRA in the September 1999 final rulemaking (revised from the April
1996 NPRM), we never intended for them to comprise an exclusive list
for several reasons. Mainly, we felt that the complexity of multi-
pathway risk assessments precluded the conversion of the qualitative
guiding factors into more definitive criteria. See 69 FR 21328.
Commenters generally agreed that the risk assessment guidance and
policy should not be codified. They agreed in principle that it is
important to keep the decision to require an SSRA flexible because
factors vary from facility to facility. However, several commenters
raised the concern that the proposed language of Sec. 270.10 (l) was
too vague. For example, one commenter suggested that any additional
guidance clarifying how risk assessments should be performed and that
providing standards or goals to be achieved by the operating conditions
would be helpful. Another commenter felt that EPA should identify
specific factors that the regions and authorized states should
consider, and specific criteria that should be met, before requiring an
SSRA or additional emission controls or other standards. We agree with
commenters that additional guidance would be beneficial and have taken
a number of actions in this regard. First, EPA is adopting a more
detailed regulatory provision that provides a non-exclusive list of
guiding factors for permit authorities to use in determining whether
the MACT will be sufficiently protective at an individual site, and
consequently, whether an SSRA is warranted. Section 270.10(l) now
requires that the permit writer's evaluation of whether compliance with
the standards of 40 CFR part 63, Subpart EEE alone is protective of
human health or the environment be based on factors relevant to the
potential risk from a hazardous waste combustion unit, including, as
appropriate, any of the specifically enumerated factors. These factors
reflect the eight guiding factors that EPA has discussed in several
rule preambles. See 61 FR 17372, 64 FR 52842, and 69 FR 21328. However,
EPA has also incorporated a few minor revisions to reflect the
standards promulgated today, and to reflect the fact that the factors
will be codified.
EPA has revised the language of the factors so that the language is
consistent between the provisions. Consistency of phrasing is generally
more important in regulations, which are binding, than in guidance. For
example, some of the factors listed in the 1999 preamble used the
phrase ``presence or absence'' while other used the phrase ``identities
and quantities.'' EPA has adopted the phrase ``identities and
quantities,'' on the grounds that it more precisely expresses the
concept intended by both phrases. EPA has also made minor revisions to
reduce redundant text, and to shorten the provisions, in the interests
of clarity. For example, rather than addressing the proximity of
receptors in two factors, EPA addresses this issue in a single factor.
However, nothing contained in either of the original factors was
deleted as part of this revision. None of the revisions described here
substantively change the issues to be considered from those contained
in the original eight guiding factors.
In addition to these minor technical revisions, EPA has included
language to clarify that one potentially relevant factor for
consideration is the ``identities and quantities of persistent,
bioaccumulative or toxic pollutants considering enforceable controls in
place to limit those pollutants.'' This reflects changes made between
the proposed and final MACT standards (e.g., the proposed rule called
for beyond-the-floor dioxin limits for some sources; those were not
promulgated in the final rule).
Another change is the EPA has deleted the factor that listed
``concerns raised by the public.'' The regulation will allow the
decision to be based on any one of the listed factors, and public
concern, unaccompanied by an identifiable risk, would not provide an
adequate basis for determining that an SSRA was warranted.
Finally, as discussed previously in subsection B., EPA has added an
additional factor to indicate that a previously conducted risk
assessment would be relevant in evaluating changes in conditions that
may lead to increased risk. The factor reads as follows: ``Adequacy of
any previously conducted risk assessment, given any subsequent changes
in conditions likely to affect risk.'' See Sec. 270.10(l)(1).
One commenter raised the concern that the eight guiding factors the
Agency specified in its Federal Register notice at 64 FR 52842
(September 30, 1999) did not adequately focus on the central question
of whether there are likely to be emissions that would be uncontrolled
under the Subpart EEE final rule. They argued that, as an example,
under guiding factor #5, if the waste containing highly toxic
constituents are being addressed by the Subpart EEE standards, the fact
that there might be such wastes should not justify an SSRA. The
commenter apparently misunderstands that the factors were not intended
to function as stand-alone criteria for requiring an SSRA--i.e., to use
their example, the commenter believes that the mere fact that highly
toxic constituents are present in the waste would justify an SSRA
without consideration of whether the MACT emission standards were
sufficiently protective. This is an incorrect reading of EPA's proposed
regulation. Rather, the factors were always intended to function as
considerations that might be relevant to the determination of whether
the MACT was sufficiently protective. However, the regulatory structure
EPA has adopted in the final rule makes perfectly clear that the
critical determination is that ``compliance with the standards of 40
CFR part 63, Subpart EEE alone may not be protective of human health or
the environment.'' Further, the provision states that this
determination is to be based only on factors relevant to the potential
risk from the hazardous waste combustion unit, including, as
appropriate, the listed factors. EPA believes that these provisions
make clear that the determination of whether to require an SSRA is to
be based on consideration of the conditions at the facility site,
including, for example, an evaluation of all enforceable controls in
place to limit emissions. Further discussion of EPA's revised
provisions can be found in subsection F.
Second, as discussed in more detail below, EPA is issuing a revised
risk assessment guidance document that we believe will provide
additional insight to help users. While clearly delineating between
risk management and risk assessment, the HHRAP explains in great detail
a recommended process for performing and reporting on cost-effective,
scientifically defensible risk assessments. It includes numerous
recommended defaults, while at the same time is flexible enough to
incorporate site-specific values. Although the HHRAP provides numerous
recommendations, it remains merely guidance and consequently leaves the
final decisions up to the permitting authority. We believe that
[[Page 59510]]
the revised HHRAP guidance will provide further assistance to permit
writers, risk assessors and facilities in determining whether or not to
conduct an SSRA and what and how much information is required for the SSRA.
F. What Are EPA's Responses to the Cement Kiln Recycling Coalition's
Comments on the Proposal and What is EPA's Final Decision on CKRC's
Petition?
In the proposal, we provided a lengthy discussion in response to
CKRC's petition for rulemaking (69 FR 21325-21331). In its petition,
CKRC presented two requests with respect to SSRAs: (1) That EPA repeal
the existing SSRA policy and technical guidance because CKRC believes
that the policy and guidance ``are regulations issued without
appropriate notice and comment rulemaking procedures''; and (2) after
EPA repeals the policy and guidance, ``should EPA believe it can
establish the need to require SSRAs in certain situations, CKRC urges
EPA undertake an appropriate notice and comment rulemaking process
seeking to promulgate regulations establishing such requirements.''
Additionally, CKRC stated that it does ``not believe that these SSRAs
are in any event necessary or appropriate'' and that they disagree with
EPA's use of the RCRA omnibus provision as the authority to conduct
SSRAs. Finally, CKRC raised three general concerns: (1) Whether an SSRA
is needed for hazardous waste combustors that will be receiving a RCRA
permit when the combustor is in full compliance with the RCRA boiler
and industrial furnace regulations and/or with the MACT regulations;
(2) how an SSRA should be conducted; and (3) what is the threshold
level for a ``yes'' or ``no'' decision that additional risk-based
permit conditions are necessary. We believe our tentative decision in
the proposal addressed each request and concern presented in their
petition. However, in its comments, CKRC has restated many of the same
issues with new emphasis. Thus, we believe it is appropriate to address
their major comments in the following paragraphs.\240a\
---------------------------------------------------------------------------
\240a\ CKRC provided numerous comments organized by subtitles.
Rather than relying on this format in the preamble, we have
organized the comments and responses according to the concerns
initially raised in the petition, and consistent with the discussion
presented in the proposal.
---------------------------------------------------------------------------
1. Whether SSRAs Are Necessary for Facilities in Full Compliance With
BIF or MACT Regulations
In its comments, CKRC continues to question the need for any SSRAs
at facilities that are in full compliance with the MACT EEE standards.
CKRC also states that ``[our]
Petition challenged EPA to explain why,
if there is any need for SSRAs at all under RCRA, there is a rational
basis for why it has limited the entire SSRA program to hazardous waste
combustors.'' They argue that, ``The point is that if the ``omnibus''
words in RCRA mean what EPA says they mean for hazardous waste
combustors, why do they not mean the same thing for all of the other
TSD facilities that also pose the same kind of ``what-if''
hypotheticals that EPA throws out in its preamble?''
As discussed above in subsection B., and in greater detail below,
EPA believes that risk assessments will continue to be necessary at
some facilities. For example, based on the inconclusive results from
the national risk assessment conducted for the 1999 final rule and the
comparative risk analysis conducted for today's rule, EPA is not able
to conclude that all MACT standards will be sufficiently protective for
every facility (e.g., non-dioxin PICs not previously modeled, no
numerical dioxin/furan emission standard for solid fuel-fired boilers,
liquid fuel-fired boilers with wet or no APCDs, and hydrochloric acid
production furnaces, etc.). EPA also provided examples of site-specific
factors that might lead risk assessors to decide that the MACT
standards may not be sufficiently protective, and therefore an SSRA may
be necessary (e.g., if a source's emissions are comprised of persistent
bioaccumulative or toxic contaminants). EPA also discussed this issue
at length in both the 2004 proposal, and the 1999 rule preamble. See 69
FR 21326 and 64 FR 52842. Given these uncertainties, the SSRA provides
significant support for the Agency's 1006(b) determination supporting
the elimination of separate RCRA emission standards for MACT EEE facilities.
We disagree that our discussion of standards (and site-specific
factors) that may warrant a risk evaluation at certain types of
facilities are mere ``what-if'' hypotheticals. The examples that we
discussed in both the earlier preambles and above were based on the
1999 national risk assessment and a comparative risk analysis, which
concluded that either there was not enough information to make a
definitive protectiveness determination or that uncertainty in cancer
and other health effects levels of dioxin and furans, for instance,
make it difficult to draw conclusions about potential risks.
Furthermore, the discussions with respect to the protectiveness of
certain standards (i.e., some are less stringent today than the 1999
standards) in subsection B., present a reasonable basis for permitting
authorities to consider whether or not risk should be evaluated. In
support of our position that the examples we have provided in the 1999
final rule preamble, the 2004 proposed rule preamble, and this final
rule, are more than ``what-if'' hypotheticals, we have placed copies of
completed risk assessments where risk-based limits were found to be
necessary in the docket for today's final rule (see OAR-2004-0022).
The CKRC fails to acknowledge that there are many aspects of
hazardous waste combustors and the combustion process itself, which
make this category of TSD facilities different from others, and which
factor heavily into our SSRA policy. Consider that many combustion
facilities feed a wide array of waste streams comprised of many
hazardous constituents. The combustion of these constituents results in
complex chemical processes (which are difficult to predict) occurring
throughout the combustion unit. The end product is stack emissions
comprised of a variety of compounds different from those that enter the
process, and thus are difficult to predict because they can vary
greatly based on the many variables of the individual combustion unit,
making them difficult to address (i.e., there are no specific emissions
standards to limit certain compounds such as products of incomplete
combustion). For example, in attempting to maximize the destruction of
organic compounds, products of incomplete combustion are often
generated as a consequence. Further, due to stack dispersion, hazardous
waste combustors have the potential to affect several square miles.
Other types of TSD facilities' operations typically do not encompass
such complex processes or have the potential to adversely affect
receptors for several square miles.
It should be noted that hazardous waste combustors are not the only
type of TSD subjected to site-specific evaluations of risk. We take a
site-specific approach to regulating miscellaneous units under Part
264, subpart X. Because it is not possible to develop performance
standards and emission limits for each type of treatment unit that may
fall under this broad category, we rely on general environmental
performance standards to meet our mandate under Sec. Sec. 3004 (a) and
(q) that standards governing the operation of hazardous waste
facilities be protective of human health and the environment. For
example, Sec. 264.601(c) requires ``Prevention of any release that may
have adverse effects on human
[[Page 59511]]
health or the environment due to migration of waste constituents in the
air, considering: * * * (6) the potential for health risks caused by
human exposure to waste constituents; and * * *'' For all intents and
purposes, subparts X units are subject to SSRAs as well.
In addition, the question of whether an SSRA continues to be
necessary is partly a function of the fact that EPA is seeking to rely
on CAA MACT standards in order to eliminate RCRA emissions standards
for these facilities. As noted above, because the MACT is technology-
based, and because of uncertainties in our national risk assessments,
permit writers' ability to conduct an SSRA in individual cases provides
important support for our deferral.
RCRA Sec. Sec. 3004(a) and (q) mandate that standards governing
the operation of hazardous waste combustion facilities be protective of
human health and the environment. To meet this mandate, we originally
developed national combustion standards under RCRA, taking into account
the potential risk posed by direct inhalation of the emissions from
these sources. With advancements in risk assessment science since
promulgation of the original national standards (i.e., 1981 for
incinerators and 1991 for boilers and industrial furnaces), it became
apparent that the risk posed by indirect exposure (e.g., ingestion of
contaminants in the food chain) to long-term deposition of metals,
dioxins/furans and other organic compounds onto soils and surface
waters should be assessed in addition to the risk posed by direct
inhalation exposure to these contaminants. We also recognized that the
national assessments performed in support of the original hazardous
waste combustor standards did not take into account unique and site-
specific considerations which might influence the risk posed by a
particular source. Therefore, until EPA was able to revise its
regulations, to ensure the RCRA mandate was met on a facility-specific
level for all hazardous waste combustors, we strongly recommended that
site-specific risk assessments (SSRAs), including evaluations of risk
resulting from both direct and indirect exposure pathways, be conducted
as part of the RCRA permitting process. In those situations where the
results of an SSRA showed that a facility's operations could pose an
unacceptable risk (even after compliance with the RCRA national
regulatory standards), additional risk based, site-specific permit
conditions could be imposed pursuant to RCRA's omnibus authority, Sec.
3005(c)(3).
Rather than establish separate emission standards under RCRA, EPA
decided to coordinate its revisions to the RCRA emissions standards for
hazardous waste combustors with the adoption of the MACT standards
pursuant to Sec. 112(d) of the CAA. See 64 FR 52832. In the rulemaking
establishing the MACT standards for incinerators, cement kilns and
lightweight aggregate kilns (Phase 1 sources), relying on RCRA Sec.
1006(b), EPA determined that in most cases, the MACT standards would be
sufficiently protective that separate RCRA emission standards and
operating conditions would not need to be included in the facility's
RCRA permit. However, for a variety of reasons, EPA lacked sufficient
factual basis to conclude that a complete deferral of RCRA requirements
could be supported for all facilities.
Section 1006(b) conditions EPA's authority to reduce or eliminate
RCRA requirements on the Agency's ability to demonstrate that the
integration meets RCRA's protectiveness mandate (42 U.S.C. 6005(b)(1)).
See Chemical Waste Management v. EPA, 976 F.2d 2, 23, 25 (D.C. Cir.
1992). To support its RCRA Sec. 1006(b) determination, EPA conducted a
national evaluation of both direct and indirect human health and
ecological risks to determine if the MACT standards would satisfy the
RCRA mandate to protect human health and the environment. That
evaluation, however, did not quantitatively assess the proposed
standards with respect to mercury and nondioxin products of incomplete
combustion. This was due to a lack of adequate information regarding
the behavior of mercury in the environment and a lack of sufficient
emissions data and parameter values (e.g., bioaccumulation values) for
nondioxin products of incomplete combustion. Since it was not possible
to suitably evaluate the proposed standards for the potential risk
posed by mercury and nondioxin products of incomplete combustion, in
order to support our 1006(b) determination, we continued to recommend
that SSRAs be conducted for some facilities as part of the permitting
process until we could conduct a further assessment once final MACT
standards were promulgated and implemented. Specifically, we
recommended that for hazardous waste combustors subject to the Phase 1
MACT standards--hazardous waste burning incinerators, cement kilns and
light-weight aggregate kilns--permitting authorities should evaluate
the need for an SSRA on a case-by-case basis. We further stated that
while SSRAs are not anticipated to be necessary for every facility,
they should be conducted where there is some reason to believe that
operation in accordance with the MACT standards alone may not be
protective of human health and the environment. For hazardous waste
combustors not subject to the Phase 1 standards, we continued to
recommend that SSRAs be conducted as part of the RCRA permitting
process. See 64 FR 52841. As discussed in subsection B., EPA believes
that SSRAs may continue to be necessary for some Phase 1 facilities.
For the Phase 2 sources, our comparative risk analysis generally
indicates that, although the MACT standards for Phase 2 sources are
appreciably more stringent than the current RCRA BIF standards, an SSRA
may be necessary to confirm that a facility will operate in a way that
is protective of human health and the environment.
Thus, for both Phase 1 and Phase 2 sources, we continue to believe
that SSRAs may be necessary for some facilities.\241\ We generally
believe the MACT standards will be protective; in most cases they are
substantially more protective than the existing RCRA part 264, 265, and
266 requirements. However, because HWCs manage hazardous waste and
process it by burning and emitting the by-products into the air, a
multitude of potential exposure pathways exist. These exposure pathways
can also vary substantially based on site-specific factors associated
with an individual combustion unit and the surrounding site. Such
factors make it difficult for the Agency to conclude that a single,
national risk assessment provides adequate factual support for its
determination that the technology-based MACT standards will be
sufficiently protective. This is further complicated by the fact that,
for certain parameters, the Agency lacked sufficient information to
quantitatively assess the risk, but is relying on a combination of
quantitative and qualitative assessments of the MACT standards'
protectiveness.
---------------------------------------------------------------------------
\241\ As discussed in section B., we expect that facilities that
have previously conducted an SSRA will not need to conduct another
in consideration of today's final standards. Only those facilities
newly subject to the RCRA permitting requirements, or existing
sources where changes in conditions could lead to increased risk,
may need to conduct or modify an existing SSRA.
---------------------------------------------------------------------------
Nonetheless, EPA does not believe that the uncertainty is so great
that it would preclude a deferral under 1006(b) for the affected
categories of facilities; nor does EPA believe that these uncertainties
necessarily support requiring a risk assessment for all such
facilities. Conditions at the facility
[[Page 59512]]
might confirm that the MACT standards are sufficiently protective,
without the need for a facility-wide risk assessment. For example, if
the results of the MACT testing demonstrated that the facility's dioxin
emissions fall below the levels estimated in the database EPA used for
its comparative risk assessment, the uncertainties in EPA's comparative
risk assessment would not, by itself, support a decision to require an
SSRA. Such decisions require an evaluation of the conditions at the
site, and EPA believes it important to retain the flexibility for
permit authorities to take these conditions into account. Accordingly,
EPA believes that the regulatory structure adopted in today's rule
strikes the appropriate balance between these competing factors.
In response to EPA's statement in the proposal that non-HAP
emissions, which were beyond the direct scope of MACT, may pose risk
which could necessitate an SSRA (69 FR 21326), CKRC pointed out that
the same could be said for other types of TSDs, such as landfills, land
treatment systems, etcetera, and EPA has not addressed this point in
its preamble. As previously noted, combustion units are distinct from
other types of TSDs due to the wide array of waste streams being fed to
the unit, the complex chemical processes throughout the combustion
unit, stack emissions comprised of a wide variety of compounds that are
difficult to address, and the potential to impact receptors for several
square miles due to stack dispersion. A further distinction is that EPA
is seeking to rely on the MACT standards to eliminate national RCRA
stack emissions standards under Sec. 1006(b). Unless EPA can
affirmatively demonstrate that RCRA's protectiveness standards are met,
the Agency cannot eliminate RCRA requirements. A number of
uncertainties remain concerning the protectiveness of the MACT
standards based on the uncertainties remaining in the supporting
national risk assessment and comparative analysis, and the variability
of site-specific factors from one facility to another. Permitting
authorities' ability to resolve these uncertainties through the use of
the SSRA, where appropriate, provides important support for the
Agency's 1006(b) finding. Furthermore, as we have noted, under omnibus,
to the extent permitting authorities believe there are problems with
other types of TSDs, they can impose requirements and request
additional information, including an SSRA in accordance with Sec.
270.10(k). Also as previously noted, Part 264, subpart X specifically
incorporates site-specific consideration of risk into its regulatory
framework.
Next, CKRC comments that EPA has a non-discretionary duty under CAA
Sec. 112(f) to address and take care of any ``residual risk'' from
MACT facilities in the future in any event. We discussed why we do not
believe that the residual risk process should or can take the place of
an SSRA under RCRA in subsection C. of this SSRA preamble, as well as
in the 1999 rule preamble (64 FR 52843). In short, because the residual
risk standards have not yet been established, permit writers cannot
rely on this process in reaching current permitting decisions or in
acting on currently pending permit applications.
2. Codification of EPA's Technical Guidance
In response to our explanation in the proposal that risk assessment
guidelines should be flexible and reflect current science, CKRC gave
three comments: (1) Not a word of the current SSRA guidelines has been
changed in 3 years; (2) it is easy to write regulations that have
provisions that might be applied differently in different situations,
and at least many basic, fundamental points can go in regulations,
while some details can be in guidance--EPA writes regulations
accompanied by ``fill in the small details'' guidance all the time; and
(3) EPA seems to have no real problems with regulatory fixes anyway. In
addition, CKRC provides several comments related to the previous three
throughout their comment document, which are addressed below.
None of these comments address the specific issue EPA raised, which
is that, while it certainly is possible to codify our risk assessment
guidance, for a variety of reasons, we disagree that it would be
appropriate to issue these technical recommendations as a regulation.
As we previously explained, risk assessment--especially multi-pathway,
indirect exposure assessment--is a highly technical and evolving field.
Any regulatory approach EPA might codify in this area is likely to
become outdated, or at least artificially constraining, shortly after
promulgation in ways that EPA cannot anticipate now. In support of
this, we noted specific examples of problems we experienced in
implementing the BIF regulations. See 69 FR 21330. Further, we
explained that at the time of codification, BIF risk assessments were
not intended to address indirect routes of exposure, thus making the
parameters easier to implement. Today, however, risk assessments are
more complex due to the necessary inclusion of multi-pathway and
indirect exposure routes. Given the complexity of multi-pathway and
indirect exposure assessments and the fact that risk science is
continuously evolving, it would be difficult and again, overly
constraining, to codify risk parameters today. We note as well, in this
regard, that several commenters agreed that codification of EPA's risk
assessment guidance would be too constraining for both the agency and
the regulated community.
We also believe that a guidance approach is consistent with the
fact that permit authorities must make site-specific decisions whether
to do risk assessments at all. We think that it makes little sense to
allow this kind of flexibility regarding whether to do a risk
assessment and for what purposes, while prescribing how one must be
conducted if one is required. In fact, permitting authorities, in some
cases, have developed their own guidance methodologies responsive to
the specific needs associated with their facilities. For example, North
Carolina, Texas, and New York have each developed their own risk
assessment methodologies. Further, facilities that choose to conduct
SSRAs themselves can choose alternative approaches in applying
methodologies as well. We think this flexibility employed in the field
supports our judgment that risk assessment methodologies should not be
codified. CKRC's comments failed to address any of these issues.
Turning to the remainder of CKRC's specific points--CKRC's
assertion that the technical guidance has not been amended in the past
three years is inaccurate. A revised HHRAP guidance, that has been
amended to take into account the technical recommendations from both
the public comments and peer review, is published in conjunction with
this rule. In addition, as noted above, in some cases, permitting
authorities have developed their own methodologies responsive to the
specific needs associated with their facilities.
With respect to CKRC's third point, the regulatory corrections made
to the MACT rules were necessary either to fix an error or omission or
to resolve potential legal issues. To codify technical tools and
chemical information pertinent to the risk process simply is not
prudent, as this information is continually changing and would almost
always be out of date. Granted, when this information is presented in
guidance, it can just as easily become outdated, however, facilities
and risk assessors are free to use the most up-to-date air modeling
tools and toxicity values available (i.e., they would not be bound to
regulations requiring the use of obsolete tools and
[[Page 59513]]
information). We continue to believe that publishing our technical
recommendations as regulation would remove much of the flexibility that
is important in evaluating risk on a site-specific basis.
CKRC discounts EPA's statement that codification of risk assessment
is the exception arguing that ``Neither TSCA or CERCLA, however,
specifically commands EPA to define the type of information necessary
for a permit application through the rulemaking process as RCRA does.
Moreover, the TSCA and CERCLA examples EPA cites are not analogous to
the situation where a permit applicant can be denied a permit--or at
least strung through months or years of tortuous and costly
submissions, revision, and resubmission--to obtain a permit.''
Even if TSCA and CERCLA were not considered to be analogous, that
does not change EPA's fundamental rationale that codification of highly
technical risk assessment guidance is not appropriate. EPA does not
believe that RCRA Sec. 3005(b) requires EPA to codify an exhaustive
list of every possible piece of information that might be required in a
permit. To some extent, that is the reason for having a permit
process--to allow site specific conditions to be taken into account.
Nevertheless, EPA has revised part 270, pursuant to RCRA Sec. 3004(a)
and Sec. 3005(b) to specifically provide that a risk assessment may be
necessary, where there is reason to believe that the MACT standards may
not be sufficiently protective. This was done wholly to address the
petitioner's concern that the current regulations do not adequately
provide notice that an SSRA might be necessary as part of a permit
application. This provision, while it does not provide as much detail
as the petitioner wishes, clearly ``defines the type of information
necessary for a permit application.''
CKRC complains that the Agency did not address in its proposed
response the petitioner's discussion of the ``strong case law
compelling the conclusion that `guidance' documents EPA has issued for
conducting SSRAs must be subjected to notice-and-comment rulemaking.''
EPA has chosen not to respond to CKRC's legal interpretation because we
believe that it is clear that the guidance documents do not impose
mandatory requirements, and therefore need not be issued by notice and
comment rulemaking. Nevertheless, EPA notes that in the proposal, the
Agency explained that we were in the process of reviewing the guidance
documents, and, to the extent we found language that could be construed
as limiting discretion, we committed to revise the documents to make
clear that they are non-binding. See 69 FR 21329. We specifically noted
that CKRC indicated in its petition that, in its view, the documents
contain language that could be construed as mandatory. While EPA does
not necessarily agree, and believes that, in context, it is clear that
the recommendations in the documents are discretionary, EPA nonetheless
reviewed the documents to ensure that they are carefully drafted.
Consequently, under the standards articulated in Appalachian Power Co.
v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) and subsequent case law, the
final HHRAP guidance is truly guidance and does not require notice-and-
comment rulemaking. The HHRAP explains in great detail an acceptable
process for performing and reporting on cost-effective, scientifically
defensible risk assessments. It includes numerous recommended defaults,
while at the same time provides the risk assessor or facility full
opportunity to incorporate site-specific values in place of the
defaults. The HHRAP offers numerous recommendations, but requires
nothing. EPA has placed a copy of the final guidance document in the
docket for today's action (see OAR-2004-0022).
CKRC believes that EPA's technical guidance imposes information
requirements upon the RCRA permit applicant that are not contained in
any regulations and in fact exceed by orders of magnitude any
information requirements contained in the part 270 regulations. We
disagree that anything contained in HHRAP is ``required'' in any way.
Moreover, to the extent any individual facility believes the
information requested is inappropriate or unnecessary, they can
challenge that as part of the permitting process.
Lastly, CKRC argues that ``The procedures EPA has been using to
issue and revise the SSRA guidance do not by any measure comply with
the full panoply of procedures and protections offered by the APA
process. Most critically, when EPA merely solicits comments on draft
guidance documents, it has no duty to respond to comments and provide a
rational basis and justification in defense of its choices in the face
of comments. EPA is essentially running its entire SSRA program on the
basis of ``draft'' guidance versions for which EPA has never to this
day prepared any response to comments.'' As previously noted, EPA
believes the final HHRAP is merely guidance and therefore, EPA is not
required to proceed through notice and comment rulemaking pursuant to
Sec. 553 of the APA. However, because we want the HHRAP guidance to be
useful and clear, we have solicited public review and comment. As a
result, it has been improved over the years by including revisions to
the guidance based upon feedback from users of the guidance and from
experience in the field. A response to comments document has been
prepared and released along with the final HHRAP and final MACT rules,
even though the Agency was not required to do so. More to the point,
because it is only guidance, sources will have the opportunity to raise
questions or comments on anything in the guidance as part of the
permitting process and the permitting authority will be required to
respond to those comments as part of the permitting process. See 40 CFR
part 124. Sources will also have the right to challenge the responses
or use of the guidance as part of the permitting process.
3. Codification of Criteria for Determining That Additional Risk-Based
Permit Conditions or an SSRA Is Necessary
CKRC argues that EPA's proposed regulatory changes should not be
considered as a partial grant because EPA has not codified specific
criteria in the proposed regulations for permit authorities to use to
decide whether to require an SSRA; to set the risk levels that are
deemed protective; or to otherwise provide any further definition as to
what it means to protect human health and the environment.
In its petition, CKRC requested that after we repeal the policy and
guidance (per the first request), ``should EPA believe it can establish
the need to require SSRAs in certain situations, CKRC urges EPA to
undertake an appropriate notice and comment rulemaking process seeking
to promulgate regulations establishing such requirements.'' As
discussed at length in both the proposal (69 FR 21325-21327) and the
preceding paragraphs, we believe that we have established certain
circumstances where the MACT standards may not be protective and that
an SSRA may be warranted, based on relevant site-specific factors
associated with an individual combustion unit. Consequently, we are
finalizing regulations that explicitly authorize permitting authorities
to conduct or require an SSRA on a site-specific basis. This, in our
view, grants the second of CKRC's requests. Our response directly
addresses a number of CKRC's concerns: (1) Through a notice and comment
rulemaking process, EPA has established circumstances in which an SSRA
may be necessary; and (2) EPA's regulations will now explicitly
[[Page 59514]]
acknowledge that an SSRA might be necessary as part of the permitting
process, thereby addressing the petitioner's concern that EPA's past
approach of relying on RCRA's omnibus authority to implement this
policy violates the requirements of RCRA Sec. 3005(b). And as
discussed further below, EPA has codified criteria for permit
authorities to use to determine whether to require an SSRA.
While it does not provide exactly what CKRC requested, the
regulated community has had a full opportunity to comment on the need
for an SSRA both as part of the 1999 rulemaking and, again, as part of
this rulemaking to adopt the provisions of Sec. 270.10(l), which
contain an explicit reference to the potential need for an SSRA as part
of the permitting process pursuant to RCRA Sec. 3004(a) and Sec.
3005(b). As previously explained, Sec. 270.10(k) does not explicitly
mention the potential for an SSRA to be required. Although the rule
does not identify a priori that an SSRA will be required in an
individual circumstance, but defers that determination to the
permitting process, the final rule reflects EPA's findings that an SSRA
is not anticipated to be necessary in every circumstance--only where
site-specific conditions give the permit authority reason to believe
that additional controls beyond those required pursuant to 40 CFR parts
63, 264, 265, or 266 may be necessary to protect human health and the
environment.
CKRC argues that EPA's decision not to codify national criteria
renders the regulation impermissibly vague, and therefore, ``in their
view totally deficient as a legal matter.'' The petitioner argues that
the rule is essentially ``a bootstrap attempt to avoid rulemaking
requirements by establishing `rules' that give no more guidance or
direction than general terms in the statute and in no way channel the
decision maker's discretion or put the public on notice of anything.''
According to CKRC, this unbridled discretion is manifest in three ways:
(1) No criteria explain how a permit writer is to decide whether to
require an SSRA; need merely to conclude ``reason to believe''; (2)
there are absolutely no limits on what type of information or
assessments the permit writer may demand and the proposed reg. does not
even hint at what type of information or assessments might be demanded;
and (3) there is not a word of guidance or specification as to what it
means to ``ensure protection of human health and the environment.'' The
petitioner argues that as a consequence, the proposed Sec. 270.10(l)
would be struck down as a ``standardless regulation.''
EPA disagrees that the provisions at Sec. 270.10(l) are
impermissibly vague, or otherwise inconsistent with the cases the
petitioner cites. In the cited cases the courts found that the
regulated entity bore the entire burden of determining how to comply
with the challenged regulation in the complete absence of a government-
generated standard or guidance. See Maryland v. EPA, 530 F.2d 215, 220
(4th Cir. 1975); South Terminal Corp v. EPA, 504 F.2d 646, 670 (1st
Cir. 1974). This is entirely distinct from the regulations codified at
Sec. 270.10(l).
In Sec. 270.10(l) EPA identified the standard for when a risk
assessment may be necessary: where the regulatory authority identifies
factors or conditions at the facility that indicate that the MACT
standards may not be sufficiently protective, and defers the
articulation of the more precise requirement to the permitting process,
where the onus falls on the permitting authority to identify the basis
for its determination. Until the permitting authority provides this
further guidance, the regulated entity incurs no obligation. The mere
fact that specific factors or facility conditions that form the basis
for the determination that an SSRA is warranted will be subsequently
identified through the permitting process does not invalidate the
regulation. See Ethyl Corp v. EPA, 306 F.3d 1144, 1149-1150 (D.C. Cir.
2002).
The regulation also identifies the categories of information that
might be required for MACT EEE facilities: The information must be
necessary to determine whether additional controls are needed to ensure
protection of human health and the environment; it can include the
information necessary to evaluate the potential risk from both direct
and indirect exposure pathways; or it can include the information
necessary to determine whether such an assessment is necessary. Here as
well, EPA's reliance on the permitting process to provide further
specification of the required information is not improper.
Moreover, as discussed above in subsection C., in response to
commenters' concerns, EPA has revised Sec. 270.10(l) to provide more
detail, both with respect to the basis for the determination that an
SSRA is necessary, and with respect to the type of information the
permit authority might need. EPA has added language to remind permit
authorities that the determination that the MACT standards may not be
sufficiently protective is to be based only on factors relevant to the
potential risk from the hazardous waste combustion unit at the site.
EPA has also added language to Sec. 270.10(l) to identify guiding
factors for permitting authorities to consult in determining whether
the MACT will be sufficiently protective at an individual site.
Although the list of guiding factors is not all-inclusive, they offer a
structure for risk managers (as well as the regulated community) to use
to frame the evaluation of whether a combustor's potential risk may or
may not be acceptable.
Finally, we note that, unlike the circumstances in the cited cases,
Sec. 270.10 is promulgated in the context of an existing permitting
regime. The regulatory standards at 40 CFR part 124 provide further
structure for both the regulated community and the permit authority.
For similar reasons, EPA disagrees that the cited cases compel the
Agency to establish risk levels that are deemed protective, or to
otherwise provide any further definition as to what it means to protect
human health and the environment. We discussed at length throughout the
proposal the reasons we believe it would not be appropriate to codify
either an exclusive set of national criteria for determining that an
SSRA (or additional risk-based permit conditions) would be necessary,
or a uniform risk level. The decision to require an SSRA is inherently
site specific, thus permitting authorities need to have the flexibility
to evaluate a range of factors that can vary from facility to facility.
See 69 FR 21328-21331. CKRC has neither presented new factual or policy
reasons that would cause the Agency to reconsider the tentative
decisions presented in the proposal, nor specifically addressed the
issues underlying EPA's decision. Instead, the petitioner has merely
reiterated the concerns presented in its petition and its general
disagreement with EPA's decision.
EPA also disagrees that its new regulatory structure grants permit
writers unbridled discretion for many of the same reasons that EPA does
not believe that Sec. 270.10(l) is impermissibly vague. As EPA has
previously explained, the requirements at Part 124 continue to apply to
actions taken to implement Sec. 270.10(l). Moreover, the language of
Sec. 270.10(l) makes clear that the onus initially falls on the
permitting authority to identify the basis for its conclusion that the
MACT standards may not be sufficiently protective. As both part 124 et.
seq., and EPA's preamble discussions make clear, facilities will
continue to have the opportunity to comment on and challenge the
determination. See Sec. Sec. 124.10, 124.11, and 124.19. The
[[Page 59515]]
regulatory structure adopted in Sec. 270.10(l) mirrors the structure
Congress established in sections 3004 and 3005; although 3004 directs
EPA to establish national standards, section 3005 recognizes that those
standards will be applied on a case-by-case basis through the
permitting process, to allow site-specific conditions to be taken into
account, and to supplement those standards as necessary.
EPA has also provided recommendations through guidance on how an
SSRA can be conducted. Although the recommendations are not binding,
they provide risk managers (as well as the facility) with a starting
point from which to determine whether a combustor's potential risk may
or may not be acceptable.
CKRC argues that it appears that rather than following the
statutory authorities and requirements to review and amend regulations
every 3 years as necessary (RCRA Sec. 2002(b)), EPA decided to take
the easy way out and impose, through non-rulemaking ``guidance'',
massive, costly, and confusing requirements leaving unbridled
discretion to its permit writers.
We disagree that the Agency has attempted to avoid rulemaking in
this context. EPA has conducted several rulemakings to amend our
regulations. The first was in 1999, when we adopted revised emission
standards under the authority of both Sec. 112(d) of the CAA and RCRA
to more rigorously control toxic emissions from burning hazardous waste
in incinerators, cement kilns, and lightweight aggregate kilns. See 64
FR 52828. At the time, we noted that ``today's rule fulfills our 1993
and 1994 public commitments to upgrade emission standards for hazardous
waste combustors.'' We have continued to revise our regulations
consistent with and based on the facts before the Agency, taking into
account the arguments presented in CKRC's petition. As explained above,
we believe that the facts do not support granting all of CKRC's
requests. Rather we believe that the MACT standards will generally be
protective, and that permit authorities should reach the decision to
require an SSRA based on a variety of factors and concerns specific to
their sites. In addition, as previously addressed, we believe that our
risk assessment guidance should remain as guidance. Several other
commenters agree that the guidance should not be codified.
The petitioner argues that the regulation EPA has proposed to adopt
is so vague, that it is essentially not a regulation, and that
consequently, even if finalized, it would not be sufficient to comply
with the requirement in RCRA Sec. 3005(b) to specify in regulations,
the information necessary to obtain a permit. They compare the level of
detail in Sec. 270.10(l) to the lengthy regulations (codified in 40
CFR part 270) specifying in great detail the information required when
one is submitting a RCRA permit application, arguing that ``these
regulations cover 75 pages of fine print in Code of Federal
Regulations,'' to demonstrate that this regulation would be
insufficient under RCRA Sec. 3005(b). In further support of this
argument, CKRC cites Ethyl Corporation v. EPA, 306 F.3d 1144 (D.C. Cir.
2002).
EPA disagrees that its regulations are in any way inconsistent with
the decision in Ethyl Corp. At issue in that case was a regulation
issued pursuant to section 206(d) of the CAA. Section 206(d) provides
that EPA ``shall, by regulation, establish methods and procedures for
making tests under this section.'' 42 U.S.C. 7525(d). The court found
that ``with CAP 2000, [the challenged regulation]
the EPA does not
claim to have itself articulated even a vague durability test. Rather
CAP 2000 requires that `the manufacturer shall propose a durability
program' for EPA approval. 40 CFR 86.182301(a). It thus falls on the
forbidden side of the line.'' Ethyl Corp., 306 F.3d at 323-324. The
Court distinguished the challenged regulation from the situation in
which an agency issues a ``vague'' regulation, and relies on subsequent
proceedings to flesh out the specific details. And as the court
explained, where ``Congress had not specified the level of specificity
expected of the agency, we held that the agency was entitled to broad
deference in picking the suitable level.'' 306 F.3d at 323 (citing
American Trucking Associations v. DOT, 166 F.3d 374 (D.C. Cir. 1999)
and New Mexico v. EPA, 114 F.3d 290 (D.C. Cir. 1997).
In Sec. 270.10(l) EPA has articulated the standard for when a risk
assessment may be necessary: where the regulatory authority has
identified factors or conditions at the facility that indicate that the
MACT standards may not be sufficiently protective. EPA has also adopted
a list of factors on which permit writers are to rely in reaching this
determination. EPA has also identified the categories of information
that might be required for MACT EEE facilities: The information must be
necessary to determine whether additional controls are needed to ensure
protection of human health and the environment; it can include the
information necessary to evaluate the potential risk from both direct
and indirect exposure pathways; or it can include the information
necessary to determine whether such an assessment is necessary. While
it does not provide as much detail as the petitioner wishes, this
provision unquestionably ``defines the type of information necessary
for a permit application.''
Thus, the issue turns on the level of specificity that RCRA Sec.
3005(b) requires, and EPA does not believe that RCRA Sec. 3005(b)
requires EPA to publish a list of every possible piece of information
that might be required in a permit. Section 3005(b) merely establishes
a broad directive that ``each application for a permit under this
section shall contain such information as may be required under
regulations promulgated by the Administrator,'' and that it shall
include the information contained in subsections (1) and (2), leaving
to EPA's discretion to determine the level of specificity at which to
promulgate regulations. To some extent, this reflects the reason for
having a permit process--to allow site specific conditions to be taken
into account. The regulatory structure adopted in Sec. 270.10 mirrors
the structure Congress established in RCRA Sec. 3004 and Sec. 3005.
Despite the petitioner's comparison to the length of part 270, the
length of these provisions are not indicative of any determination of
the precise level of detail that Sec. 3005(b) requires, but reflects
the fact that EPA has adopted requirements specific to individual types
of units. Moreover, notwithstanding the petitioner's characterization,
the language at Sec. 270.10(l) is comparable to many other provisions
in 40 CFR part 270. See, for example: Sec. Sec. 270.14(b)(8);
270.16(h)(1)-(2); 270.22(a)(6)(i)(C); 270.22(c).
Lastly, CKRC argues that the proposed regulation is particularly
problematic, because it extends beyond ``information'' that may already
exist. CKRC says that it is one thing to demand that a party go out and
gather existing information, but another thing to demand that an
applicant conduct ``assessments.'' Moreover, nothing in the regulations
prohibits a permit authority from demanding revised assessments, and
even more revised assessments. We agree that permit authorities have
the authority to require facilities to provide additional information
beyond that which already exists. However, based on feedback from EPA
Regional permit writers, SSRAs generally represent a one-time cost. We
do not expect that facilities that have conducted risk assessments will
have to repeat them. As discussed in the 1999 final rule preamble,
changes to comply with the MACT standards should not cause an increase
in risk for the vast majority of facilities given that the changes, in all
[[Page 59516]]
probability, will be the addition of pollution control equipment or a
reduction in the hazardous waste being burned (see 64 FR 52842).
Instances where a facility may need to repeat a risk assessment would
be related to changes in conditions that would likely lead to increased
risk.\242\ In such situations, we would anticipate that the risk
assessment would not have to be entirely redone. It may be as limited
as collecting relevant new data for comparison purposes, leading to a
decision not to repeat any portion of a risk assessment. Or, it may be
more inclusive such that modifications would be made to specific inputs
to or aspects of the risk assessment using data from a previous risk
assessment, risk burn or comprehensive performance test. As discussed
in subsection B., we have added a new regulatory provision to indicate
a previously conducted risk assessment would be relevant in evaluating
changes in conditions that may lead to increased risk. The factor reads
as follows: ``Adequacy of any previously conducted risk assessment,
given any subsequent changes in conditions likely to affect risk.''
---------------------------------------------------------------------------
\242\ For example, hazardous waste burning cement kilns that
previously monitored hydrocarbons in the main stack may elect to
install a mid-kiln sampling port for carbon monoxide or hydrocarbon
monitoring to avoid restrictions on hydrocarbon levels in the main
stack. Thus, their hydrocarbon emissions may increase. (64 FR 52843,
footnote 29.) Another example would be if the only change at a
facility relates to the exposed population; what was acceptable in a
previous risk assessment may not be any longer.
---------------------------------------------------------------------------
4. EPA's Cost Estimates for SSRAs
CKRC raised several objections to our cost estimates for conducting
an SSRA, and provided higher cost estimates ($200K to $1M, with upper
bound of $1.3M). We suggested in the proposal, that the higher cost
figures provided by CKRC were likely incurred prior to the 1998 release
of the Human Health Risk Assessment Protocol (HHRAP) guidance document.
We believe our lower cost estimates can be attributed to the fact that
we based them on the conduct of future SSRAs that will benefit from
substantially better guidance and commercially available software.
Multiple issues regarding the cost information we provided in the
proposal are raised by CKRC. The first of five issues is that CKRC
believes that EPA's methods for calculating costs associated with
future SSRAs do not include data gathering costs, QA/QC, third party
consultants in addition to risk assessors and plant personnel time to
coordinate and review SSRA efforts and collect facility data. We
disagree with this statement in part; the estimates developed by the
Agency do include data gathering costs, QA/QC, and third-party
consultants. (Refer to the proposed rule's support document entitled:
Preliminary Cost Assessment for Site Specific Risk Assessment, November
2003, Docket # OAR-2004-0022; and the Assessment of the
Potential Costs, Benefits, and Other Impacts of the Hazardous Waste
Combustion MACT Replacement Standards--Final Rule, October 12, 2005,
for a description of how the estimates were arrived at.) However, we
agree with CKRC that the method used to develop SSRA costs does not
capture facility time associated with data collection and management
related to the SSRA. Consequently, we have adjusted our SSRA cost
estimates to account for these activities by incorporating costs
associated with time needed for facility data collection and management
efforts associated with the SSRA, and will assume that engineering
staff are required to perform these tasks.
The second issue concerns the extent to which cement kiln SSRAs are
consistent with EPA's ``normal'' assumptions. We do not question the
accuracy of the costs submitted by CKRC. However, it is not clear that
the costs submitted by CKRC represent typical future costs for SSRA
implementation at all facilities in the universe. Certain of the CKRC
cost estimates (e.g., those submitted by Ash Grove and Holcim) reflect
implementation of SSRAs over a number of years in the 1990s, while SSRA
implementation was in its early stages. In other cases (e.g., estimates
provided by Solite) costs appear to be consistent with EPA estimates.
While we do not dispute the accuracy of these costs, earlier costs are
likely to reflect the deliberative process common with early SSRAs.
For the third issue, CKRC's points out that EPA's estimate of 20
percent additional cost for adding a risk burn during a trial burn may
be low; CKRC asserts that additional test costs can add up to 40
percent depending on the circumstances. We agree with this and have
adjusted the range of total SSRA costs as necessary to assure that a
range of additional test costs for separate risk burns (20 to 40
percent incremental cost) are included. For revised figures, see
background document, Assessment of the Potential Costs, Benefits, and
Other Impacts of the Hazardous Waste Combustion MACT Replacement
Standards--Final Rule, October 12, 2005.
CKRC's fourth issue is that EPA does not appear to include more
than evaluations of stack emissions in its estimates of SSRA costs. We
disagree with this comment. The estimates of SSRA costs developed by
the Agency reflect total contractor costs for performing an SSRA at a
facility under different sets of conditions, and are not limited to
stack emissions.
In the fifth cost-related issue, CKRC asserts that EPA's average
estimates might be reasonable if the SSRA process were limited to the
submission and acceptance of one SSRA effort. CKRC contends, however,
that its members' experiences with SSRAs have involved coordination
with state and regional offices and multiple revisions and submissions.
Again, we do not question the experiences and costs of specific
facilities. However, we anticipate that the 2003 Memorandum, Use of the
Site-Specific Risk Assessment Policy and Guidance for Hazardous Waste
Combustion Facilities, and the Human Health Risk Assessment Protocol
for Hazardous Waste Combustion Facilities guidance, which is finalized
and released in conjunction with today's rule, will provide facilities
and regulators with a clearer understanding of SSRA policy and guidance
and will support a more efficient SSRA process. EPA's future SSRA cost
estimates are based on current or recent cost data from multiple
practitioners, and likely reflect a more efficient process than that
experienced by some CKRC members in the 1990s.
X. Permitting
As discussed in the proposal, we believe that the permitting
approach we adopted in the 1999 final rule is still the most
appropriate means to avoid duplication to the extent practicable and to
streamline requirements. Thus, both Phase 1 and Phase 2 sources will
comply with their RCRA emission limits and operating requirements until
they demonstrate compliance with the MACT standards by conducting a
comprehensive performance test (CPT), submitting a Notification of
Compliance (NOC) documenting compliance to the Administrator or
delegated state, and then requesting to have their RCRA permits
modified to remove the duplicative RCRA requirements (unless a sunset
clause had been added previously that inactivates specified
requirements upon compliance with MACT).\243\ Ultimately, the MACT air
emissions and related operating requirements will reside in the CAA
Title V permit, while all other aspects
[[Page 59517]]
of the combustion unit and the facility (e.g., corrective action,
general facility standards, other combustor specific concerns such as
material handling, risk-based emission limits and operating
requirements, and other hazardous waste management units) will remain
in the RCRA permit. A new pictorial timeline has been provided to
highlight milestones of the MACT compliance process. See figure 1 at
the end of this section.
---------------------------------------------------------------------------
\243\ Although we expect that the vast majority of Phase 1
sources will have had their RCRA permits modified by the time this
rule is promulgated, we acknowledge that there may be a few permits
yet to be modified.
---------------------------------------------------------------------------
A. What is the Statutory Authority for the RCRA Requirements Discussed
in this Section?
EPA is finalizing amendments to modify RCRA permits in today's rule
pursuant to sections 1006(b), 2002, 3004, 3005 and 7004(b) of RCRA. 42
U.S.C. Sec. Sec. 6905(b), 6912, 6924, 6905, and 6074. Our approach is
likewise consistent with section 112(n)(7) of the Clean Air Act which
indicates that EPA should strive to harmonize requirements under
section 112 and RCRA requirements for hazardous waste combustion
sources. With respect to the regulatory framework that is discussed in
this section, we are finalizing the process to eliminate the existing
RCRA stack emissions national standards for hazardous air pollutant for
Phase 2 sources as we had done for Phase 1 sources in the 1999 final
rule. That is, after submittal of the NOC established by today's rule
and, where applicable, once RCRA permit modifications are completed at
individual facilities, RCRA national stack emission standards will no
longer apply to these hazardous waste combustors (unless risk-based
permit conditions are determined necessary).
We originally issued emission standards under the authority of
section 3004(a) and (q) of RCRA, which calls for EPA to promulgate
standards ``as may be necessary to protect human health and the
environment.'' We believe that the final MACT standards are generally
protective of human health and the environment, and that separate RCRA
emission standards are not needed to protect human health and the
environment. See Part Seven, How Does the Final Rule Meet the RCRA
Protectiveness Mandate? for a discussion of this topic. RCRA section
1006(b) directs EPA to integrate the provisions of RCRA for purposes of
administration and enforcement and to avoid duplication, to the maximum
extent practicable, with the appropriate provisions of the Clean Air
Act (and other federal statutes). This integration must be done in a
way that is consistent with the goals and policies of these statutes.
Therefore, based on its findings regarding the protectiveness of the
MACT standards, and pursuant to section 1006(b), EPA is generally
eliminating the existing RCRA stack emission standards to avoid
duplication with the new MACT standards. The amendments made today to
allow new combustion units to comply with the MACT standards upon
start-up, versus the RCRA stack emissions national standards, are based
on the principle of avoiding duplication between programs.
We are not stating that RCRA permit conditions to control emissions
from these sources will never be necessary, only that the national RCRA
standards appear to be unnecessary. Under the authority of RCRA's
``omnibus'' clause section 3005(c)(3); (see Sec. Sec. 270.32(b)(2) and
(b)(3)), RCRA permit authorities may impose additional terms and
conditions on a site-specific basis as may be necessary to protect
human health and the environment. Thus, if MACT standards are not
protective in an individual instance, RCRA permit writers will
establish permit limits that are protective.
In RCRA, Congress gave EPA broad authority to provide for public
participation in the RCRA permitting process. Section 7004(b) of RCRA
requires EPA to provide for, encourage and assist public participation
in the development, revision, implementation, and enforcement of any
regulation, guideline, information, or program under the Act.
B. Did Commenters Express any Concerns Regarding the Current Permitting
Requirements?
Generally speaking, commenters favor maintaining the permitting
approach and requirements referred to above. This approach was
finalized in the 1999 rule and has been implemented, and in a few cases
is currently being implemented, for Phase 1 sources complying with the
Interim Standards Rule. However, several commenters raised similar
concerns regarding certain aspects of the transition process from RCRA
to MACT and Title V permitting.
1. Removal of Duplicative RCRA Permit Conditions
One comment is in regard to Phase 1 sources that have been fully
transitioned (i.e., have had duplicative RCRA permit conditions and
requirements removed or that have been ``sunsetted'') to compliance
with the Interim Standards that may need to make upgrades to comply
with the revised Phase 1 MACT Standards. The concern is that Phase 1
sources needing to make upgrades for MACT should be able to do so
without a RCRA permit modification (unless risk-based conditions are
present). We agree with the commenters that as long as the technology
upgrades (e.g., equipment changes to upgrade air pollution control
equipment) do not affect any remaining conditions in the RCRA permit,
the regulations do not require a permit modification. For those Phase 1
sources that need to make upgrades to comply with the revised
standards, they should address the specific upgrades in their draft
Notification of Intent to Comply (NIC) and during the informal NIC
public meeting so that the regulatory authority and public are aware of
the source's activities and plans for compliance. We encourage early
communication between the source and the RCRA permit writer to ensure a
common understanding of whether a RCRA permit modification will be needed.
Additionally, Phase 1 sources must comply with the provisions of
Sec. 63.1206(b)(5) for changes in facility design. We do not
anticipate that upgrades made to comply with the Replacement Standards
will adversely affect a source's compliance with the Interim Standards.
Therefore, consistent with Sec. 63.1206(b)(5)(ii), sources must
document the change in their operating record, revise their NOC and
resubmit it to the permitting authority (per Sec. 63.9(h)), and, as
necessary, revise their start-up, shutdown, and malfunction plan.\244\
---------------------------------------------------------------------------
\244\ The requirements in Sec. 63.1206(b)(5)(ii) call for
sources to revise (as necessary) the performance test plan, DOC,
NOC, and start-up, shutdown, and malfunction plan. For sources
complying with the Interim Standards, it is not necessary to revise
the performance test plan or the DOC, since they were developed in
preparation for compliance with the Interim Standards.
---------------------------------------------------------------------------
Several commenters felt that we should re-emphasize the importance
of removing duplicative RCRA permit conditions and requirements. We
agree with the commenters that this is an important action for
regulatory agencies. In addition to comments received, we also have
learned through the implementation process for the Interim Standards,
that some state agencies are not removing duplicative requirements from
the RCRA permit. We have clearly stated in several preambles and
guidance documents that we believe it is appropriate to retain only the
RCRA risk-based conditions that are more stringent than the applicable
MACT limits (i.e., if the RCRA condition has been determined to limit
risk to an acceptable level and is necessary to protect human health
and the environment) in the RCRA permit after
[[Page 59518]]
compliance with MACT.\245\ However, we also acknowledge that in certain
cases it may not be clear which compliance requirement is more
stringent. For example, standards under MACT are expressed as
concentration based limits (micrograms/dry standard cubic meter) while
certain RCRA standards are expressed as mass emission rate limits
(grams/second). Also, averaging times between the two programs differ:
MACT requires hourly rolling averages whereas RCRA requires
instantaneous values. This is an unfortunate consequence of moving
compliance from a risk-based program to a technology-based program.
Because we cannot definitively say when a RCRA requirement is more
stringent than a MACT requirement and consistently apply it to all
sources, we are relying on sources and permitting agencies to work
together to determine which requirement is more stringent. If the MACT
requirement is determined to be more stringent, the permitting agency
can remove the requirement from the RCRA permit.
---------------------------------------------------------------------------
\245\ As an example, a RCRA permit could specify a higher
minimum operating temperature than what is necessary for the
facility to achieve compliance with MACT. The lower minimum
operating temperature under MACT may be sufficient, unless the RCRA
permit authority determines that the higher RCRA temperature is
necessary to limit risk to an acceptable level for that facility.
There should be a connection between the RCRA limit and protection
of human health and the environment when retaining a RCRA limit.
---------------------------------------------------------------------------
In adopting a permitting approach to place the MACT air emissions
and related operating requirements in the CAA Title V permit and to
keep all other aspects of the combustion unit and the facility in the
RCRA permit, our intent was and still is, to minimize duplication to
the extent practicable and to eliminate the potential for dual
enforcement. We view it as an unnecessary duplication of effort between
programs as well as an unnecessary expenditure of resources and costs
for both facilities and regulatory authorities to maintain a RCRA
permit and a Title V permit that contain duplicative requirements, when
there are viable mechanisms (i.e., Class 1 modification procedure at
270.42 Appendix I, section A.8, or Class 2 or 3 if a state has not
adopted the Class 1 procedure) in place to avoid doing so.
Nevertheless, we believe that states should have the flexibility to
decide how they will allocate their resources, which is why we did not
include a single transition approach for implementing agencies to
follow in the 1999 rule or in today's rule. So, in such cases where a
state agency chooses not to adopt the transition language (i.e. the
Class 1 modification procedure at 270.42 Appendix I, section A.8) into
their state requirements (e.g., because the state's procedures are
broader in scope or more stringent than the federal requirements) or is
unable to reach an agreement between its RCRA and air programs
regarding which standards are more stringent, the Title V permitting
authority should document these issues, including any continuing RCRA
permit requirements, in the title V permit's statement of basis (40 CFR
Sec. Sec. 70.7(a)(5) and 71.7(a)(5)). This will help to ensure that
the source is clear regarding its compliance obligations, which is a
main goal of the Title V program. Further, for purposes of
clarification and as a matter of courtesy, we urge regulatory
authorities that choose to impose dual compliance requirements, to also
provide a written justification to the source explaining the reasons
for their decisions.
2. Transition of Interim Status Phase 2 Units From RCRA to CAA Permits
In response to our discussion in the proposal regarding RCRA
permitting for interim status Phase 2 units (69 FR 21324), two
commenters suggest that EPA establish policy and/or regulation that
discourage further RCRA permitting work for interim status Phase 2
sources. Their comments are directed our statement in the proposal that
the RCRA combustion permitting procedures in 40 CFR part 270 also
continue to apply until you demonstrate compliance. As noted in this
statement, we intended for Phase 2 sources to continue to be subject to
RCRA permitting requirements for air emissions standards and related
operating parameters, including trial burn planning and testing, until
they have demonstrated compliance with the MACT standards by conducting
a comprehensive performance test and submitting an NOC to the Agency.
However, we also provided several factors that should be taken into
consideration when determining whether to proceed with the RCRA permit
process such as: the facility's permit status at the time the MACT rule
becomes final, the facility's anticipated schedule for MACT compliance,
the priorities and schedule of the regulatory agency, and the level of
environmental concern at a given site (69 FR 21324).
To support their position, the commenters noted that time and
resources would be conserved and duplicative and overlapping activities
could be minimized if Phase 2 sources were permitted solely via Title
V. Also, they argued that it would avoid expending resources to modify
the RCRA permit once the source has demonstrated compliance with MACT.
We agree with commenters that every effort should be made to conserve
resources and avoid duplication to the extent possible. However, we do
not believe it is appropriate to establish policy or regulation that
permitting authorities must suspend the RCRA permit process (whether it
pertains to interim status or renewals), especially in cases where
considerable time and effort has been invested and the permit is close
to final issuance. As before, we strongly encourage sources and
regulatory authorities to work together to establish an approach that
will provide for the most practical transition. For example, we
strongly recommend that sunset provisions be included in a permit that
will be issued well in advance of compliance with MACT to avoid
duplication and a later modification to remove the duplicative RCRA
conditions. Also, it would make more sense to transition a source to
MACT compliance prior to issuing the RCRA permit if it will comply with
MACT early.
3. Transition From Compliance With the Interim Standards to the
Replacement Standards
A specific question that has been raised relates to the applicable
standards and operating parameters that the source must comply with
during the period between the rule's effective date for the Phase 1
Replacement Standards and submission of their new NOC. Upon the
publication date of the rule, the Replacement Standards (and Phase 2
Standards) will become effective and sources will have 3 years to come
into compliance. During this 3-year period, Phase I sources' existing
title V permits will either be reopened to include the Replacement
Standards, or the permitting authority will have incorporated the
Replacement Standards during permit renewal. In this example, a Phase 1
source's Title V permit has been reopened, revised, or renewed and
includes the Replacement Standards, the compliance date has not yet
passed, no new documentation of compliance (DOC) for the replacement
standards has been included in the operating record, and the source has
not yet conducted a comprehensive performance test and submitted a new
NOC (therefore it still has an NOC containing the operating parameters
for compliance with the Interim Standards).
In the above scenario, the question asked is whether the source
should comply with the Interim Standards in the current NOC or the
Replacement Standards in the Title V permit. The
[[Page 59519]]
source should comply with the Interim Standards until the compliance
date of the Replacement Standards. Although the Title V permit now
includes the Replacement Standards, the permit will also include the
Replacement Standards' future compliance date. With regard to the
transition from the Interim Standards NOC to the Replacement Standards
DOC, we are revising the regulations at Sec. 63.1211(c) to render the
NOC, which documented compliance with the Interim Standards,
inapplicable upon inclusion of the DOC for the Replacement Standards in
the operating record by the compliance date. Thus, the source will not
be placed in a situation where it must continue to ensure compliance
with the operating parameters established in the NOC for the Interim
Standards, while seeking to comply with the Replacement Standards and
operating parameters in its DOC. Although it can be assumed that the
source would still be able to comply with its Interim Standard-based
NOC because the Replacement Standards are the same as or more stringent
than the Interim Standards, we believe that the revision to render the
previous NOC inapplicable provides a clearer and more sensible approach.
4. Changes to Title V Permits
Both the Replacement Standards and the Phase 2 Standards will
necessitate permit reopenings or revisions to some existing title V
permits; other permits will incorporate the requirements upon renewal.
40 CFR Sec. Sec. 70.7 and 71.7 include the requirements for Title V
permit revisions, reopenings, and renewals. Also, approved Title V
permitting authorities may have additional requirements. Please refer
to the appropriate permitting authority and its individual Title V
permits program to determine the necessary requirements and procedures.
With respect to incorporating minor revisions into the Title V
permit, one commenter had asked, for example, whether revisions made to
the NOC to reflect minor operating changes could be incorporated into
the permit by reference rather than through the reopening procedures.
Determining the appropriate Title V permit reopening or revision
requirements is based on the nature of the change and the source
specific permit terms and conditions, and is therefore difficult to
generalize. We recommend that sources work with their Title V permit
authorities to determine the appropriate requirements and procedures
that are applicable to any specific situation. However, we would like
to note that, when incorporating requirements by reference into the
Title V permit is appropriate, this does not necessarily obviate the
need for permit revisions if the material incorporated by reference is
subsequently revised. For more information on incorporation by
reference, please refer to the Office of Air Quality Planning and
Standards' ``White Paper Number 2 for Improved Implementation of the
Part 70 Operating Permits Program'' (March 5, 1996), Section II.E.2.c.
This paper can be found at:
http://www.epa.gov/ttn/oarpg/t5/memoranda/wtppr-2.pdf.
C. Are There Any Changes to the Proposed Class 1 Permit Modification
Procedure?
In the NPRM, we proposed a new Class 1, with prior Agency approval,
permit modification procedure to help further minimize potential
conflicts between the RCRA permit requirements and MACT requirements.
See 69 FR 21384 and proposed Sec. 270.42(k). During implementation of
the Interim Standards for Phase 1 sources, it became evident that there
are two significant instances where RCRA permit limits may overlap with
MACT requirements: during initial (and future) performance testing and
during the period between placement of the documentation of compliance
(DOC) in the operating record and the final modification of the RCRA
permit after receipt of the NOC. We discussed several existing
approaches (e.g., a class 2 or 3 modification, request for approval
submitted via the RCRA trial burn plan or coordinated MACT/RCRA test
plan, or through a temporary authorization) for addressing these
instances, noting that none provided an optimal solution.
All commenters agreed that the new Class 1 modification procedure
is the appropriate and most efficient method to enable specific RCRA
permit conditions to be waived during instances of overlap referred to
above. However, a few commenters were concerned with the requirements
in proposed Sec. 270.42(k)(2)(ii) and (k)(3), that require sources to
submit their permit modification request upon approval of the test plan
and the requirement for the Director to approve or deny the request
within 30 days, or within 60 days with an extension. This timeframe is
feasible only for those sources that have received approval of their
test plans at least 60 days prior to their scheduled date for
commencing their performance test. We acknowledged the potential
impracticality of this requirement in the proposal, but at the time
believed that few sources, if any, would conduct their performance
tests without an approved test plan. While this still may be true, we
have learned that sources who received extensions for testing (so that
they would have an approved plan), typically commenced their test
shortly after approval. Consequently, this still would not allow enough
time to review and approve the permit modification before the test
begins. Thus, the new Class 1 modification would be of no benefit to
facilities that conduct their tests without an approved test plan, or
to facilities that received extensions and need to begin their tests
upon or shortly after approval of the test plan. Also, we found one
other circumstance where the timeframes could be problematic: If a
permitting agency has allowed sources to begin pretesting/testing upon
approval of the test plan. Again, a source would not be able to have
RCRA permit requirements waived in time to begin its test.
We agree with commenters that the proposed requirements in
270.42(k)(2)(ii) and (iii) do not provide any flexibility to waive RCRA
permit limits for sources that (1) do not have an approved test plan
but choose to conduct their test; (2) are granted an extension to their
test date because they do not yet have an approved test plan; and (3)
may begin testing upon approval of their test plans. Our original
intent to require prior Agency approval for the new Class 1 permit
modification procedure was to ensure that the proposed test conditions
would be sufficiently protective when specific RCRA requirements are
waived and that a source has met the regulatory requirements for
performance test plans. We still believe that review and approval is an
important step; however, we also believe it should not be a barrier and
therefore, should occur in advance of a source commencing its
performance test. As a result, we have revised the proposed regulatory
language in 270.42(k)(2)(i) to specify that sources submit their permit
modification requests with their test plans, to allow potentially up to
one year for approval (i.e., the performance test plan is due one year
before the test is to begin). Also, so that approval does not impede
the commencement of the performance test, we have revised the proposed
language in 270.42(k)(2)(ii) so that the Director can choose whether to
issue approval of the permit modification request contingent upon
approval of the performance test plan.\246\ In that respect,
[[Page 59520]]
the RCRA permit authority would continue to have an extra measure of
assurance in circumstances that may demand it.
---------------------------------------------------------------------------
\246\ In all likelihood, we anticipate that the RCRA permit
authority will have reviewed the modification request along with the
test plans, worked with its Air counterparts and the source to
resolve any concerns, and have prepared the permit modification
approval prior to issuance of the test plan approval.
---------------------------------------------------------------------------
D. What Permitting Approach Is EPA Finalizing for New Units?
1. Why Did EPA Propose a Separate Permitting Approach?
As discussed in the proposal, the current RCRA regulations at
Sec. Sec. 264.340, 265.340, 266.100, 270.19, 270.22, 270.62, and
270.66 do not address how or when new combustion units will comply with
the MACT standards. Consequently, the part 270 regulations imply that a
new unit must obtain a complete RCRA permit before it can demonstrate
compliance with the MACT standards. It was never our intent for new
units to develop a trial burn plan and provide suggested conditions for
the various phases of operation in the RCRA permit application, given
that these conditions will become inactive or need to be removed from
their permits upon demonstrating compliance with MACT. To rectify our
previous omission, we suggested several options that would allow units
newly entering the RCRA permit process \247\ (and that will comply with
the Subpart EEE requirement upon start-up) to forego certain RCRA
permit requirements and performance standards. In developing the
options that would enable new units to forego certain RCRA
requirements, we noted the importance of public participation
opportunities under the MACT/CAA framework equivalent to those provided
under the RCRA framework. Thus, each option was constructed in such a
way that would streamline the RCRA requirements, but continue to
provide early and frequent public participation commensurate with the
requirements of the RCRA Expanded Public Participation Rule (60 FR
63417, December 11, 1995).
---------------------------------------------------------------------------
\247\ Units ``newly'' entering the RCRA permit process refers to
a newly constructed facility, thus newly constructed hazardous waste
combustion unit; an existing facility that constructs a new unit; or
an existing facility that converts a non-hazardous fuel combustion
unit to a hazardous waste fuel combustion unit.
---------------------------------------------------------------------------
2. What Options Did EPA Propose for Permitting New Units?
In our preferred approach, we proposed that new units not be
required to develop a trial burn plan and provide suggested conditions
for the various phases of operation in their RCRA permit application.
Instead, new units would only be required to address the remaining RCRA
activities at the facility in their permit application (or modification
request) including corrective action, general facility standards, other
combustor specific concerns such as materials handling, risk-based
emission limits and operating requirements, and other hazardous waste
management units. While this approach appears to be ideal from the
standpoint of reducing the regulatory burden to sources and RCRA permit
authorities, we noted that even though a new unit will be required to
meet the RCRA public participation requirements as part of the permit
application process, the operations and emission information specific
to the combustor would no longer be provided. Thus, we focused on
certain compliance activities under the MACT/CAA framework (i.e., the
Notification of Intent to Comply requirements) that would allow for
combustor-specific information to be made available to the public as it
would have been under the full RCRA permit process.
Regarding the three additional approaches or ``options'', each
considered a different point in the RCRA permit process where a new
unit could ``transition'' to compliance with the MACT standards (see 69
FR 21319). Under the first option, a new unit could transition to MACT
compliance after it had submitted its RCRA Part B application. The Part
B however, would not include the trial burn plan information. The new
unit would only be required to discuss the compliance activities
related to the combustor as part of the RCRA informal public meeting.
In the second option, we proposed that a new unit would transition
after its RCRA permit has been issued. Here, the new unit would be
required to develop a trial burn plan which provided its proposed
operations and emissions information and to discuss its compliance
activities via the RCRA informal public meeting. Then, a permit would
be issued, but it would not contain operating and emissions
requirements in order to avoid a future modification to remove them.
For the third option, the transition point would have been after the
new unit places the DOC in its operating record, which is the
compliance point for MACT. This option is more inclusive than the
second because it requires the new unit to have a draft permit that
covers the construction and shakedown period.
3. Which Option Is EPA Finalizing?
For today's final rule, we are adopting our preferred, proposed
approach: new units will not be required to follow the full RCRA
permitting process for establishing combustor operations and emissions.
Thus, new units are not subject to the combustor-specific RCRA permit
requirements and performance standards (i.e., to develop a trial burn
plan, provide suggested conditions for the various phases of operation
in their permit application, and subsequently operate under those
conditions). However, because these units remain hazardous waste
treatment units, they are still required to obtain a RCRA permit, or to
modify an existing RCRA permit to include a new unit, prior to
construction. They need only address the remaining hazardous waste
management activities at the facility in their permit application (or
modification request) including corrective action, general facility
standards, other combustor specific concerns such as materials
handling, risk-based emission limits and operating requirements, and
other hazardous waste management units. As we noted in the previous
section and will discuss again more thoroughly in the next section, we
are relying on the NIC process to provide the public with the
combustor-specific information that previously would have been provided
under the full RCRA permit process.
Almost all commenters supported our preferred approach to not
require that new units complete the full RCRA permit process and to
rely on the NIC requirements and the MACT/CAA framework to provide a
level of public participation that is commensurate with the
requirements under RCRA. Commenters generally agreed that our preferred
approach achieves this goal while streamlining the RCRA permit process
for new units. One commenter felt that the Title V and New Source
Review programs (NSR) provide sufficient requirements to regulate new
combustion units. We disagree that either or both of those programs
fully address the hazardous waste and public participation components
commensurate with that provided by the approach we are finalizing
today. For instance, a unit may be constructed and operating before a
Title V permit is issued, which directly conflicts with RCRA's early
public participation requirements. Also, in some instances, public
participation may not be a required component of state issued NSR
permits (see footnote regarding public participation and SIPs below).
However, we do believe that the NSR program will play an important role
regarding the exchange of information, as we will discuss in the
section below. With respect to the remaining three options presented in
the proposal (69 FR 21319-
[[Page 59521]]
21320) that suggested a transitional approach (i.e., each option
explored progressive points in the RCRA permit process where facilities
could transfer over to MACT without fully completing the RCRA process),
nearly all commenters were in agreement that they would require more
work to implement than is necessary and consequently oppose them.
4. How Will Permitting for New Units Work?
In the proposed rule, we created an approach that utilizes the NIC
requirements and the MACT/CAA framework with the intent of ensuring
that the requirements of the RCRA Expanded Public Participation Rule
would continue to be fulfilled. The four requirements for public
participation as they relate to hazardous waste combustion units are:
(1) Permit applicants must hold an informal public meeting before
applying for a permit; (2) permit agencies must announce the submission
of a permit application which will tell community members where they
can view the application while the agency reviews it; (3) permitting
agencies may require a facility to set up an information repository at
any point during the permitting process if warranted; and (4)
permitting agencies must notify the public prior to a trial (or test) burn.
As discussed in the preamble to the proposal (69 FR 21318), we
believe that the NIC process addresses the first two RCRA public
participation requirements. The NIC process requires a source to make
its draft NIC, which discusses the source's plan for coming into
compliance with the MACT standards, available for public review and to
hold an informal public meeting to discuss the activities contained in
the NIC. While the NIC process gives the public an early opportunity to
participate in the unit's compliance planning process early on, a few
components are still missing before we can consider the first 2 RCRA
public participation requirements to be fulfilled under the MACT
framework. One component is that there is no permit action associated
with the NIC requirements. However, the NSR program can provide a
permit mechanism that will determine whether or not a source may be
constructed.\248\ The steps associated with obtaining an NSR permit, or
a ``pre-construction'' permit, are similar, but not necessarily
identical to that required under RCRA. They are: (1) Preparation of the
permit application (sources must provide the location, design,
construction, and operation information) and participation in pre-
application meetings; (2) issuance of permit application completeness
determination by the State; (3) development and negotiation of draft
permit; (4) opportunity for public notice and comment on the draft
permit; (5) response of permitting authority to public comments; (6)
possible administrative and judicial appeals; and (7) permit issuance/
denial.\249\
---------------------------------------------------------------------------
\248\ We believe that the majority of new units will be
classified as major sources for NSR permitting (requiring either
prevention of significant deterioration or nonattainment permits),
however, those that do not, will likely be required to obtain a
minor NSR permit. In few cases, new sources (e.g., newly constructed
as opposed to modified) may not be required to obtain an NSR permit
if its potential to emit does not exceed the NSR threshold level.
\249\ With respect to numbers 4 and 5, many States omitted the
public participation steps in their federally approved SIPs. This
was the reason why Sierra Club had been opposed to our efforts to
simply rely on NSR permitting to provide public participation
opportunities that would have been otherwise provided under the
traditional RCRA permit process for new units. Today, however, many
SIPs have been revised to address public participation requirements.
---------------------------------------------------------------------------
A second component is that the NIC does not provide the information
on the proposed combustor operations or emissions information that
would normally be available as part of the RCRA process. To address
these gaps between RCRA and MACT, we are requiring an approach similar
to that which was proposed. New sources must: (1) Prepare a draft NIC
and make it available to the public at the same time as their RCRA pre-
application meeting notice; (2) provide a draft of their comprehensive
performance test (CPT) plan (to the public) to coincide with the draft
NIC and RCRA pre-application meeting notices; and (3) hold their NIC
public meeting with their RCRA informal public meeting. The first two
requirements ensure that the public is provided with most of the same
information that would have been available via the RCRA trial burn plan
prior to the source burning hazardous waste. Other information not
required by the NIC or CPT plan, such as the combustion unit's design
specifications will, in most cases, be available to the public through
the NSR permit application. We recommend that sources submit a copy of
their NSR permit application to the RCRA permit authority so that this
information is readily available for development of the RCRA permit.
The third requirement allows the public to inquire and comment on both
the new unit's proposed activities and operations. By requiring new
sources to develop, notice, and hold a combined public meeting that
encompasses the NIC, draft CPT plan, and RCRA pre-application notice
information, the public will be provided with all information related
to the combustor's compliance plans as well as its operating plans and
emissions estimates prior to burning hazardous waste. See new
requirements in Sec. 63.1212.
With respect to the requirements we are finalizing today, we
received only one comment that expressed concern. The concern is that
the requirement to submit the CPT plan is too early in the compliance
process. For example, the RCRA application is submitted approximately
2-3 years before start-up whereas the CPT plan is required 1.5 years
after the final NIC is due.\250\ The commenter feels that the facility
would not have enough time to learn about the ``detailed nuances of the
system''. However, the commenter does note that it is possible to
submit the CPT plan, but it will not be as complete or refined as it
would be if it was submitted according to the deadline for existing
units. We agree with the commenter that a considerable amount of
planning is required of the source to be able to draft the CPT plan at
such an early stage, but we are only requiring that a draft of the CPT
plan be made available, with the final CPT plan due 6 months prior to
the source's compliance date. Moreover, at this early stage, we liken
the development of the draft CPT plan to the development of the trial
burn plan. Even though it may not be as complete or refined as it will
be when the final CPT plan is due, we believe that it will still be of
benefit to the public and the regulatory authority, but also to the
source in terms of advance planning for the design of the unit through
start-up of the unit.
---------------------------------------------------------------------------
\250\ Comprehensive performance test plans are required to be
submitted one year in advance of the scheduled test. The submittal
date would be as late as 2.5 years after the effective date of the
rule assuming no extensions are granted.
---------------------------------------------------------------------------
The components thus far, have satisfied the first (2) two RCRA
public participation requirements. The third RCRA public participation
requirement enables a regulatory authority to evaluate the need for and
require a facility to establish and maintain an information repository.
The establishment of an information repository is typically required
only when there are concerns or unique information needs of a
community. The purpose of the information repository is to make
information regarding the facility (and combustion unit) available to
the public during the permit issuance process and during the life of
the permit. In the preamble, we noted that
[[Page 59522]]
although the Title V permit process contains a provision that any
materials relevant to the permit decision be made available to
interested persons (see Sec. 70.7(h)(2) and Sec. 71.11(d)), the
information may not be made available until well after the combustor is
constructed and operating. Consequently, we have chosen to adopt
additional provisions under the NIC requirements that parallel the
requirements of Sec. 124.33.
We had proposed two options that would allow a regulatory authority
to require, on a case-by-case basis, a source to establish an
information repository specific to the combustor. The first option was
to place such a provision in the NIC regulations and the second option
was to amend the applicability language in Sec. 124.33 to include
combustion sources that will comply with Part 63, subpart EEE upon
start-up. Two commenters felt that the second option would create
problems as far as organization (i.e., by modifying the RCRA
regulations to include a provision solely for new units complying with
MACT). We agree that the second option could be confusing and that it
would be more appropriate to keep all new requirements for new units in
one set of regulations. Therefore, we are finalizing a provision that
will allow for an information repository to be established specific to
the combustor (recall that a repository established pursuant to the
RCRA permit will include documents relevant to the facility only), if
deemed appropriate, under the NIC regulations. See new Sec.
63.1212(c). Under the NIC regulations, the repository could include the
NIC, test plans, draft Title V permit and application, reports, et cetera.
The fourth and final RCRA public participation requirement to be
fulfilled is for the regulatory authority to notify the public of an
impending trial burn or test burn. As discussed in the RCRA Expanded
Public Participation Rule, the RCRA permit authority will typically
provide the notice at least 30 days in advance of the test (60 FR
63426, December 11, 1995). Similarly, the MACT regulations require an
existing or new unit to provide notice to the public that the CPT plan
(and the continuous monitoring system performance evaluation test plan)
is available for review. The regulations in Sec. 63.1207(e)(2) fulfill
this requirement. Although the CPT plan may not be approved before the
public is notified, the intent is to provide notice to the public of a
future test. We believe that the MACT regulations provide public notice
of the test plans that are commensurate with the RCRA regulations and
thus, no additional regulatory revisions or amendments are needed.
4.a. Process for New Units Seeking an Initial RCRA Permit
We anticipate that the process for new units seeking an initial
permit will work as follows. Any new unit would begin the process by
developing and compiling the information necessary for the RCRA draft
permit (e.g., information required for the part A application at Sec.
270.13, the relevant general information for the part B application
according to Part 270) and the applicable NSR permit.\251\ The
information needed to compile the draft NIC and draft CPT plan would be
gathered simultaneously, as if the source were developing the trial
burn plan. When the source has compiled its RCRA permit application,
draft NIC and draft CPT plan, it would submit a RCRA pre-application
meeting notice at least 30 days prior to the date scheduled for the
RCRA informal public meeting according to Sec. Sec. 124.31(b) and (d).
At the time of the RCRA pre-application meeting notice, the source
would also issue notice of the NIC public meeting (at least 30 days
prior to the NIC meeting) according to Sec. 63.1210(c)(3), so that the
two meetings can occur at the same time. In order for the public to be
able to view all information relevant to the combustor before the
combined RCRA pre-application and NIC public meeting, the source would
make the draft NIC and draft CPT plan available to the public for
review at the same time the notices for the meetings are issued. To aid
the RCRA permit authority in its development of the draft RCRA permit
(i.e., mainly for purposes of evaluating risk), we strongly recommend
that the source also provide copies of the draft NIC, draft CPT plan,
and NSR application (if applicable) to the RCRA permit authority. It is
our hope that the availability of information will expedite the
development of the draft permit. All notices should be presented to the
public in sufficient time to allow for a combined RCRA informal public
meeting and NIC public meeting.
---------------------------------------------------------------------------
\251\ Because the information required for NSR permit is less
comprehensive than a RCRA permit, it allows for a much shorter time
period for issuance. The average time for issuing a PSD permit, for
example, after receiving an application is slightly more than 7
months, but varies depending upon public involvement and negotiation
of the application content. USEPA. Docket A-2001-19, Document II-A-
01. NSR 90-Day Review Background Paper, June 22, 2001.
---------------------------------------------------------------------------
Following the combined public meeting, the source will submit its
RCRA permit application and the RCRA regulatory authority will prepare
and issue a draft permit. The public will then have an opportunity to
comment on the draft permit and request a public hearing. Upon
resolution of any issues surrounding the draft permit, a final RCRA
permit will be issued. The RCRA process is the same as before, but
should be reasonably shorter. Finally, the new unit may begin burning
hazardous waste when it can assure it will operate in compliance with
the MACT standards (i.e., by placing a documentation of compliance in
its operating record on the day it begins burning hazardous waste). See
new regulatory language at Sec. 63.1212(c). To aid readers in
understanding the above process, we have included a pictorial timeline.
Please see figure 2.
Finally, it may also be feasible to combine an NSR pre-application
meeting and public notice of the draft NSR permit with the process
described above. Thus, we recommend that sources work closely with
their Air and RCRA permit agencies so that the NSR public notices and
meetings may be coordinated with the RCRA and NIC notices and meetings
so time and resources are efficiently utilized.
4.b. Process for New Units Modifying an Existing RCRA Permit
The process of adding a new unit to an existing permit is
accomplished through a Class 3 permit modification (see Sec. 270.42
(c) for requirements). The requirements governing public notices of the
draft NIC, draft CPT plan, and holding a combined public meeting are
essentially the same as new units seeking an initial permit. The
process is as follows. The source prepares and submits its RCRA permit
modification request (and if applicable, NSR application). It must then
publish a notice of the modification request seven days later, followed
by a public meeting no earlier than 15 days after publication of the
notice for the modification request, and no later than 15 days before
the close of the 60-day comment period. As with new units that are
submitting an initial RCRA permit application, it is also important for
sources seeking to modify their permit to coordinate their NIC public
meeting with their RCRA permit modification public meeting. This is
made possible due to the flexibility of the NIC public meeting; it can
be held any time prior to the 10 month deadline. After the combined
public meeting and the close of the comment period, the permit
authority will either grant or deny the modification request. If
approved, the source may then begin construction or modification of the
unit. To aid readers in understanding the timing of the
[[Page 59523]]
above process, we have included a pictorial timeline. Please see figure 2.
Again, it may be feasible to combine an NSR pre-application meeting
and public notice of the draft NSR permit with the process described
above. Thus, we recommend that sources work closely with their Air and
RCRA permit agencies so that the NSR public notices and meetings may be
coordinated with the RCRA and NIC notices and meetings so time and
resources are efficiently utilized.
E. What Other Permitting Requirements Were Discussed in the Proposal?
At proposal, we discussed where most Phase 1 sources would be in
terms of their transition from their RCRA permit requirements to
compliance with the MACT Interim Standards (see 69 FR 21321). The
transition process was discussed with respect to both the RCRA permit
and the Title V permit. However, when we discussed the Title V permit
requirements in the proposal, we did not elaborate on the transition
between the Interim Standards and Replacement Standards. Because we
believe that such a discussion would be helpful to readers, we have
included general information describing how the transition process
would work for most sources in Section B. Did Commenters Express any
Concerns Regarding the Current Permitting Requirements?, subsections 3
and 4.
For Phase 2 sources, we proposed the same permitting approach as we
did for Phase 1 sources. Today, we are finalizing as proposed, the
following for Phase 2 sources: (1) the new Phase 2 emissions standards
will be placed only in the CAA regulations at 40 CFR part 63, subpart
EEE, and be implemented through the air program; (2) with few
exceptions, the analogous standards in the RCRA regulations no longer
apply once a facility demonstrates compliance with the MACT standards
in subpart EEE and any duplicative requirements have been removed from
the RCRA permit; and (3) the new standards will be incorporated into
operating permits issued under Title V of the CAA rather than be
incorporated into RCRA permits. Consequently, we are finalizing the
proposed changes to Sec. Sec. 270.22 and 270.66 to implement the
above. Also applicable to Phase 2 sources via today's final rule are
the changes and additions we finalized in the 1999 final rule for Phase
1 sources. These include a streamlined RCRA permit modification
procedure to allow sources to make upgrades to comply with MACT
(Sec. Sec. 270.42(j) and 270.42 appendix I, section L.9), a second
streamlined RCRA permit modification procedure to remove conditions
from a permit that are no longer applicable (Sec. 270.42 appendix I,
section A.8), an addition to Sec. 270.235 to specify conditions for
start-up, shutdown, and malfunction plan and integrate them with the
CAA program, and an amendment to the interim status regulations at
Sec. 270.72 to exempt interim status facilities from the
reconstruction limitation when making upgrades to comply with MACT.
Also, we are finalizing three new permitting changes that are
applicable to both Phase 1 and 2 sources. Two have been discussed
previously in this section and are: (1) A new streamlined RCRA permit
modification procedure designed to reduce overlap during the transition
from RCRA to MACT (Sec. Sec. 270.42(k) and 270.42, appendix I, L.10);
and (2) regulatory provisions stating that new units are no longer
subject to the full array of RCRA combustion permitting requirements.
The third change is discussed above in Section IX. Site-Specific Risk
Assessment Under RCRA and finalizes our response to a petition for
rulemaking with respect to site-specific risk assessments (SSRAs). As
part of this change we have decided to adopt regulatory language that
specifically provides clarification of authority for RCRA permit
writers to evaluate the need for and, where appropriate, require SSRAs
and to add conditions to RCRA permits that they determine, based on the
results of an SSRA, are necessary to protect human health and the
environment.
Last, as explained in part four section II.A, we are finalizing our
decision to regulate emissions of dioxin/furans, mercury, polycyclic
organic matter, and polychlorinated biphenyls from Phase 2 area sources
under section 112(d).\252\ This means that Phase 2 area sources are
subject to MACT standards only for these hazardous air pollutants (HAP)
in the final rule. To reiterate, they are: Dioxin/furans, mercury, and
polycyclic organic matter (controlled by the surrogates DRE and carbon
monoxide/hydrocarbon). For the remaining HAP (hydrogen chloride and
chlorine gas and metals other than mercury), Phase 2 area sources may
either comply with the MACT standards for Phase 2 major sources or
continue complying with the RCRA standards and requirements of their
RCRA permit.
---------------------------------------------------------------------------
\252\ As explained in the Comment Response Document vol. V,
although Sec. 502(a) allows EPA to exempt area sources from title V
permitting requirements if EPA finds that those requirements would
be (among other things) ``unnecessarily burdensome'', we believe
that Title V requirements remain appropriate for these sources given
the highly toxic nature of the HAP and the importance of affording
opportunity for public participation as provided for in the Title V
permit issuance process.
---------------------------------------------------------------------------
In the 2004 proposal, we stated that we were not making a positive
area source finding for Phase 2 area sources as we have for Phase 1
area sources (69 FR 21212 and 21325). Regardless of this, however, the
Phase 2 area sources are still subject to the requirement to obtain a
Title V permit because they are subject to section 112 standards under
this subpart. See Sec. 502(a) of the CAA and 40 CFR Sec. Sec.
70.3(b)(2) and 71.3(b)(2).
It is important to note that the Title V applications for the Phase
2 area sources will need to contain emissions information relative to
all regulated air pollutants (to determine applicable requirements,
fees, etc.) that are being emitted from the units subject to the MACT
standards, not just the specific HAP pollutants regulated by the MACT
standards (see Sec. Sec. 70.5(c)(3)(i) and 71.5(c)(3)(i)). Although,
the permit itself would contain standards only for the HAP subject to
MACT standards (the Sec. 112(c)(6) HAP). A Phase 2 area source which
chooses to control hydrogen chloride, chlorine gas, and metals other
than mercury by continuing to comply with the relevant RCRA standards
and the requirements of its RCRA permit should note this choice in its
Title V application and cite to the relevant requirements of this
subpart. This will help ensure that the permitting authority is aware
that these requirements apply in lieu of the MACT standards for Phase 2
major sources. The permitting authority should also document this
choice in the statement of basis for the source's Title V permit. See
Sec. Sec. 70.7(a)(5) and 71.7(a)(5). Finally, for the units at a
source which are subject to the subpart EEE MACT standards, all CAA
applicable requirements to which these units are subject, e.g., State
Implementation Plan requirements, not just the relevant Subpart EEE
requirements, must be included in the Title V permits issued to these
sources. See Sec. Sec. 70.3(c)(2) and 71.3(c)(2). For more information
regarding Sec. 112(c)(6) and how it relates to Phase 2 area sources,
see Part Four, Section II.A., ``Area Source Boilers and Hydrochloric
Acid Production Furnaces''.
BILLING CODE 6560-50-P
[[Page 59524]]
[GRAPHIC]
[TIFF OMITTED]
TR12OC05.004
[[Page 59525]]
[GRAPHIC]
[TIFF OMITTED]
TR12OC05.005
[[Page 59526]]
Part Five: What Are the CAA Delegation Clarifications and RCRA State
Authorization Requirements?
I. Authority for This Rule
Today's rule amends the promulgated standards located at 40 CFR
part 63, subpart EEE. It amends the standards for the Phase 1 source
categories--incinerators, cement kilns, and lightweight aggregate kilns
that burn hazardous waste, and it also amends subpart EEE to establish
MACT standards for the Phase 2 source categories--boilers and
hydrochloric acid production furnaces that burn hazardous waste.
Additionally, this rule amends several RCRA regulations located in 40
CFR part 270 to reflect changes in applicability, addition of a new
permit modification procedure, and additions related to site-specific
assessments and permitting.
II. CAA Delegation Authority
Before discussing the clarifications being finalized today, it is
important to first highlight a few key aspects of delegation authority.
Recall from the proposal that a state, local, or tribal (S/L/T) agency
must be delegated authority under CAA section 112(l) before it can
exercise the delegable provisions' authorities. The delegable
authorities can be found in 40 CFR 63.91(g)(1)(i), also known as
Category I Authorities. A S/L/T agency that has applied for and
received delegation authority can approve: test plans, requests for
minor and in most cases, intermediate changes to monitoring and test
methods, performance test waivers, and several other Category I
Authorities. Please note that even though a S/L/T agency may have an
approved Title V permit program, it cannot exercise delegable
authorities or be the primary enforcement authority if it has not
received delegation authority under CAA section 112(l). Moreover, when
a S/L/T agency has not taken delegation of a section 112 standard, the
agency can only incorporate the section 112 standard's requirements
into its Title V permits, (and then implement and enforce these
requirements through its title V permits) when it has adequate
authority under State, local, or tribal law which allows it to conduct
the above actions without delegation. See, e.g., the proposed Federal
Plan for Commercial and Industrial Solid Waste Incinerators, November
25, 2002 (67 FR 70640, 70652). Please also refer to 69 FR 21335 of the
proposal and the fact sheet entitled, Clean Air Act Delegation for the
HWC NESHAP at: http://www.epa.gov/epaoswer/hazwaste/combust/toolkit/
factshts.htm to learn more about the advantages of receiving delegation
authority.
Also, we would like to point out that there are several delegation
options that S/L/T agencies can receive. Regardless, many S/L/T
agencies choose the ``straight delegation'' option when applying for
delegation approval. Straight delegation means that these agencies have
agreed to implement and enforce federal MACT standards as they have
been written in the promulgated requirements. As a result, many EPA
Regions and states have established memoranda of agreement that
essentially provide automatic delegation of each future MACT, as
opposed to the state applying for delegation of each future MACT, which
requires a rulemaking to implement. For more information related to the
delegation options and procedures, please refer to the fact sheet,
Clean Air Act Delegation for the HWC NESHAP at: http://www.epa.gov/
epaoswer/hazwaste/combust/toolkit/factshts.htm and EPA's delegation
website at: http://www.epa.gov/ttnatw01/112(l)/112-lpg.html.
III. Clarifications to CAA Delegation Provisions for Subpart EEE
In the proposal, we discussed the need to provide additional
clarification for the delegable and non-delegable authorities within
Subpart EEE based upon our implementation experience with the Phase 1
Interim Standards and the Clarifications to Existing National Emissions
Standards for Hazardous Air Pollutants Delegation' Provisions final
rule published on June 23, 2003 (68 FR 37334). Although the June 23,
2003 final rule provided clarification and streamlined the delegable
provisions for each existing NESHAP, it overlooked several non-
delegable and delegable authorities within Subpart EEE. It provided
clarification on the non-delegable authorities of Subpart EEE as they
relate to major alternatives to the standards themselves and to test
methods, monitoring, or recordkeeping and reporting under the General
Provisions.\254\ However, it omitted major alternatives specific to
Subpart EEE such as: test methods under Sec. Sec. 63.1208(b) and
63.1209(a)(1); monitoring under Sec. 63.1209(a)(5) and; recordkeeping
and reporting under Sec. 63.1211(a) through (d). Therefore, the
following paragraphs will explain which authorities in Subpart EEE are
delegable and are not delegable to S/L/T agencies that have been
delegated authority and will provide some examples of or references to
alternative requests associated with each delegable or non-delegable
provisions authority.
---------------------------------------------------------------------------
\254\ For example, the final rule included approval of
alternatives to requirements in Sec. Sec. 63.1200, 63.1203, through
63.1205, and 63.1206(a); approval of major alternatives to test
methods under Sec. 63.7(e)(2)(ii) and (f); approval of major
alternatives to monitoring under Sec. 63.8(f) and; approval of
major alternatives to recordkeeping and reporting under Sec.
63.10(f).
---------------------------------------------------------------------------
To review, the regulations at 40 CFR 63.90 define three types of
alternative requests. Alternative requests or ``changes'' to a
particular delegable or non-delegable provision are classified as
major, intermediate, or minor depending upon the degree (i.e.,
potential to be nationally significance, potential to reduce the
stringency of the standard, etc.) of change being requested. An
alternative request that qualifies as a major change is not delegable
to S/L/T agencies, even when they have delegation authority. These
requests must be sent to the EPA Region or, if it concerns a test
method under Sec. Sec. 63.7(e)(2)(ii) and (f), 63.1208(b) and
63.1209(a)(1) or a standard under Sec. Sec. 63.1200, 63.1206(a), or
63.1216-63.1221, then it must be sent to our Office of Air Quality
Planning and Standards (OAPQS).\255\ An alternative request that
qualifies as an intermediate or minor change is delegable. However, the
EPA Region may choose whether or not they will delegate authority to S/
L/T agencies to approve intermediate and, even some minor changes
during the delegation approval process. In addition to the regulations,
the guidance document entitled, How to Review and Issue Clean Air Act
Applicability Determinations and Alternative Monitoring (EPA 305-B-99-
004, February 1999) provides a listing of delegable and non-delegable
authorities in Tables 1 and 2, as well as descriptions and examples of
major, intermediate, and minor changes in Attachment 1.
---------------------------------------------------------------------------
\255\ For contact information, please visit
http://www.epa.gov/ttn/emc/staffdir.html.
---------------------------------------------------------------------------
A. Alternatives to Requirements
Any change to a promulgated standard is considered a major change
and as noted above, must be sent to OAQPS (see contact information in
footnote). The reason why a change to a standard must be sent to EPA
Headquarters is because the change must be established through national
rulemaking, regardless of the degree of change sought. Thus, only OAQPS
can approve alternative requests for changes to standards.
Additionally, any change to applicability requirements and compliance
dates (e.g., requirements that ensure that the standards are achieved
as EPA intended) are also
[[Page 59527]]
considered major and also must be sent to OAQPS for approval. Specific
to Subpart EEE, alternative requirement requests including those
pursuant to Sec. Sec. 63.1200, 63.1206(a), or 63.1216-63.1221 are
considered major changes and consequently are non-delegable. The
regulations at Sec. 63.1214(c) correctly identified the requirements
in Subpart EEE, however we have revised them today (as we proposed) to
reflect the new sections that house the Phase 1 Replacement Standards
and Phase 2 Standards.
There are a few exceptions to the above, however. Subpart EEE
incorporates specific provisions for sources to request alternative
standards which are delegable because they have been established
through rulemaking. In fact, several alternative standards are self-
implementing meaning that the source only need specify in their DOC
which standard it will comply with. The alternative to the particulate
matter standard in Sec. 63.1206(b)(14) and the emissions averaging
standards for cement kilns with in line kiln raw mills and preheater or
preheater/precalciner kilns with dual stacks in Sec. 63.1204(d) and
(e) are three examples. There are also alternative standards that
sources may petition to comply with. They include: Alternatives to the
standards for existing and new LWAKs at Sec. 63.1206(9) and cement
kilns at Sec. 63.1206(b)(10) and the alternative risk-based standard
for total chlorine at Sec. 63.1215. Sources choosing to comply with
these alternative standards must receive approval from their delegated
S/L/T agency prior to implementing them.\256\ With respect to changes
to compliance dates, requests under Sec. 63.1213 specifically allow
sources to request an extension to the compliance date for the
installation of pollution prevention or waste minimization controls.
Again, because this provision has been specified in subpart EEE, it is
not considered a major change and is delegable.
---------------------------------------------------------------------------
\256\ The alternative risk-based standard for total chlorine at
Sec. 63.1215 requires sources to submit their eligibility
demonstration to both the delegated S/L/T agency and to the Risk and
Exposure Assessment Group in Research Triangle Park, NC for review,
even though the delegated S/L/T agency can grant or deny approval.
---------------------------------------------------------------------------
B. Alternatives to Test Methods
With respect to test methods, we noted above that the final
delegations rule stated that major alternatives to the test methods at
Sec. Sec. 63.7(e)(2)(ii) and (f) were not delegable. Therefore, as we
proposed, it is necessary to add major alternatives to 63.1208(b),
which specifies the test methods sources must use to determine
compliance with subpart EEE. Also, we are adding the CEMS monitoring
requirement under Sec. 63.1209(a)(1). It is regarded as a test method
because it serves as a benchmark method for demonstrating compliance
with the emission standards. Both sections are delegable to S/L/T
agencies as long as they have been delegated authority and as long as
the alternative requests comprise minor or intermediate changes.
However, a major change to either of these test method sections must be
sent to OAQPS for approval.\257\ Only OAQPS can approve major changes
to test methods because they are designated in the standard as the
means for determining compliance with an emission standard. The
proposed revisions to Sec. 63.1214 are finalized today to include
major alternatives to test methods under Sec. Sec. 63.1208(b) and
63.1209(a)(1) as non-delegable authorities.
---------------------------------------------------------------------------
\257\ For contact information, please visit
http://www.epa.gov/ttn/emc/staffdir.html.
---------------------------------------------------------------------------
C. Alternatives to Monitoring
For monitoring, the final delegations rule stated that major
alternatives to monitoring at Sec. 63.8(f) were not delegable, but did
not reference monitoring specific to subpart EEE. In subpart EEE, the
monitoring requirements are located in Sec. 63.1209. This section also
includes two provisions specific to alternative monitoring, thus
removing some of the ``guesswork'' when trying to discern whether a
request for change is minor, intermediate, or major. One is located at
Sec. 63.1209(a)(5), Petitions to use CEMS for other standards and the
other is located at Sec. 63.1209(g)(1), Alternative monitoring
requirements other than continuous emissions monitoring systems. Each
is discussed in the following paragraphs.
In the proposal, we explained that a request to use other
monitoring in lieu of a CEMS is always considered a major change due to
CEMS generally being considered a more accurate measure of compliance.
However, if a source requests to use a CEMS in lieu of a required
operating parameter, it may be considered an intermediate change. Since
publication of the proposal, performance specifications have been
promulgated for PM CEMS (and mercury CEMS).\258\ Consequently, today we
view requests per Sec. 63.1209(a)(5) to use PM CEMS as intermediate
changes to monitoring. Although the implementation of PM CEMS according
to PS-11 (69 FR 1786 and 40 CFR part 60, Appendix B; January 12, 2004)
and Procedure 2 (see also 40 CFR part 60, Appendix F) is largely
``self-implementing,'' sources wishing to apply to use of PM CEMS
should develop and submit QA/QC plans specifying audit frequencies to
account for site-specific stack conditions. We believe that other site-
specific issues that may need to be addressed prior to use of the CEMS,
such as a source's request to deviate from PS-11 or a source's
selection of the correct correlation curve(s), are properly addressed
under EPA's established policies and procedures for alternative method
requests. We believe that a petition to use PM CEMS under Sec. 63.8(f)
is still the appropriate mechanism, but that sources can submit their
petitions to their delegated S/L/T agency for review and approval, and
we recommend that EPA Regional offices work with these agencies to
monitor implementation. Thus, with the exception of petitions to use PM
CEMS in lieu of an operating parameter which is considered an
intermediate change, we are finalizing our proposed revision to Sec.
63.1214(c) to include major alternatives to monitoring under Sec.
63.1209(a)(5) as a non-delegable authority.
---------------------------------------------------------------------------
\258\ Although performance specifications have been promulgated
for mercury CEMS, there has not been as much experience in
implementing these devices for hazardous waste combustion sources
(or similar sources) as there has been for PM CEMS at this time.
Therefore, we believe it appropriate to continue sending requests to
use mercury CEMS in lieu of an operating parameter to the
appropriate EPA Region for review and approval.
---------------------------------------------------------------------------
Section 63.1209(g)(1), Alternative monitoring requirements other
than continuous emissions monitoring systems, contains the other
alternative monitoring provision. This provision allows sources to
request alternative monitoring methods to monitor compliance, except
for those standards that must be monitored with a CEMS (e.g., those in
Sec. 63.1209(a)(1)), and to request a waiver of an operating parameter
limit. We provided several examples of alternative parameter monitoring
for which a request may be submitted under this section in the proposal
at 69 FR 21337. They include use of: a different detector, different
monitoring location, a different method as recommended by the
manufacturer, or a different averaging period that is more stringent
than the applicable standard. In the proposal, we stated that we
believe the majority of requests submitted pursuant to Sec.
63.1209(g)(1) are not major and discussed in the preamble amending the
language in Sec. 63.1209(g)(1) so that these types of changes could be
reviewed and approved by the delegated S/L/T agency. However, when we
added
[[Page 59528]]
language to Sec. 63.1209(g)(1) to allow for the above, we
inadvertently referred to an approved Title V program instead of a S/L/
T agency which has taken delegation of subpart EEE. We have corrected
and finalized the proposed language. Therefore, whether minor or
intermediate, requests under Sec. 63.1209(g)(1) may be sent to your
delegated S/L/T agency for review and approval.
Please note that 63.1209(g)(1) cannot be used when requesting major
changes to the monitoring required by the standard. Such changes
typically involve new unproven monitoring methods. Unproven monitoring
methods refer to those where the technology or procedures are not
generally accepted by the scientific community (Sec. 63.90(a)). If you
are uncertain whether your request constitutes a new unproven
monitoring method, which is considered a major change, you should
submit your request to your EPA Region. The regulatory language in
63.1209(g)(1) has been revised to reflect this clarification.
D. Alternatives to Recordkeeping and Reporting.
As with the others, the final delegation provisions' rule only
cited the waiver of recordkeeping and reporting requirements of Sec.
63.10(f) as a non-delegable provision. Thus, it is necessary to add the
relevant subpart EEE recordkeeping and reporting requirements of Sec.
63.1211. Section 63.1211 is delegable in its entirety to S/L/T agencies
unless an alternative request is determined to be a major change. An
alternative request that is a major change, such as decreases in record
retention for all records, must be sent to your EPA Region for review
and approval. Similar to the monitoring section, Sec. 63.1211 contains
a specific alternative provision. Section 63.1211(d) Data Compression,
allows sources to request to use data compression techniques to record
data from CMS and CEMS on a frequency less than that required by Sec.
63.1209. We view the alternative request to be a minor change because
available guidance provides criteria for defining fluctuation and data
compression limits. See 64 FR 52961 and 52962, September 30, 1999.
Therefore, requests submitted under 63.1211(d) can be consistently
evaluated by delegated S/L/T agencies. Section 63.1214(c) has been
revised to specify that major alternatives to 63.1211(a)--(c) are non-
delegable authorities.
E. Other Delegation Provisions
Although not discussed in the proposal, it is important to note
that issuing applicability determinations is another delegable
authority. The EPA document How to Review and Issue Clean Air Act
Applicability Determinations and Alternative Monitoring (EPA 305-B-99-
004, February 1999) provides guidance regarding who has the lead for
issuing applicability determinations. In general, Regions may delegate
the authority to issue applicability determinations to S/L/T agencies
when the determinations are routine in nature. However, delegation of
authority for certain applicability determinations should be retained
by the Regions. These include applicability determinations that: (1)
Are unusually controversial or complex; (2) have bearing on more than
one state or district (are multi-Regional); (3) appear to create
conflict with previous policy or determinations; (4) are a legal issue
which has not previously been considered (a matter of first
impression); or (5) raise new policy questions. It is recommended that
Regional offices require notification when S/L/T agencies issue
applicability determinations.
IV. RCRA State Authorization and Amendments to the RCRA Regulations
Under section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
Part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a State with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new federal requirements did
not take effect in an authorized state until the state adopted the
federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
We discussed in the proposal which RCRA regulations we intended to
amend and their impact on state authorization procedures. Today, we are
finalizing those amendments in Sec. Sec. 270.10, 270.22, 270.32,
270.42, 27062, 270.66, and 270.235. In addition, we are amending the
regulations in Sec. Sec. 264.340 and 266.100 to reflect changes that
have been made based upon comments. Today's amendments fall under both
HSWA and non-HSWA authorities. That is, changes made to regulations
applicable to boilers and industrial furnaces are promulgated under
HSWA authority, whereas changes made to regulations applicable to
incinerators are promulgated under non-HSWA authority. \259\ All of the
amendments made today are considered to be either less stringent or
equivalent to the existing Federal program, which means that states are
not required to adopt and seek authorization for these provisions
regardless of whether they are finalized under non-HSWA or HSWA
authorities. Nevertheless, we strongly encourage states to become
authorized for today's amendments.
[[Page 59529]]
Experience has shown that when states have been authorized for previous
amendments (i.e., those finalized in the 1999 rule) that were intended
to facilitate the transition from the RCRA program to MACT and the CAA
Title V program, the process has proven to be less cumbersome. For a
more detailed discussion of non-HSWA and HSWA authorities with respect
to how and when they take effect, please refer to the proposal's
preamble discussion at 69 FR 21338.
---------------------------------------------------------------------------
\259\ When new requirements and prohibitions (that are more
stringent than the previous federal regulations) are imposed under
non-HSWA authority, the new federal requirements do not take effect
in an authorized state until the state adopts the federal
requirements as law. Conversely, when imposed under HSWA authority,
the new federal requirements are federally enforceable in an
authorized state until the necessary changes to a state's
authorization are approved by EPA.
---------------------------------------------------------------------------
Several RCRA sections that have been enacted as part of HSWA apply
to today's rule: 3004(o), 3004(q), and 3005(c)(3). Thus, if a state is
not authorized for the boiler and industrial furnace regulations, these
provisions are federally enforceable in an authorized state until the
necessary changes to a state's authorization are approved by us. See
RCRA section 3006, 42 U.S.C. 6926. We are adding today's requirements
to Table 1 in 271.1(j) where rulemakings promulgated pursuant to HSWA
authority are identified.
Part Six: Impacts of the Final Rule
I. What Are the Air Impacts?
Table 1 below shows the emissions reductions achieved by the final
rule for all existing hazardous waste combustors. For Phase I sources--
incinerators, cement kilns, and lightweight aggregate kilns--the
emission reductions represent the difference in emissions between
sources controlled to today's standards and estimated emissions when
complying with the interim MACT standards promulgated on February 13,
2002. Thus, the significant emissions reductions already achieved by
the interim standards are not reflected in the estimates shown in Table
1.\260\ For Phase II sources--solid fuel boilers, liquid fuel boilers,
and hydrochloric acid production furnaces--the reductions represent the
difference in emissions between today's standards and the current
baseline of control provided by 40 CFR part 266, subpart H.
---------------------------------------------------------------------------
\260\ USEPA, ``Final Technical Support Document for HWC MACT
Standards, Volume V: Emission Estimates and Engineering Costs,''
Section 3, July 1999.
---------------------------------------------------------------------------
Nationwide baseline HAP and particulate matter emissions from
hazardous waste combustors are estimated to be approximately 12,650
tons per year at the current baseline level of control. Depending on
the number of facilities demonstrating compliance with health-based
compliance alternatives for total chlorine, the total reduction of HAP
and particulate matter for existing sources could be between
approximately 2,260 and 3,380 tons per year. A discussion of the
emission estimates methodology and results are presented in ``Technical
Support Document for HWC MACT Replacement Standards, Volume V: Emission
Estimates and Engineering Costs'' that is available in the docket.
Table 1.--Nationwide Annual Emissions Reductions of HAP and Other
Pollutants
------------------------------------------------------------------------
Estimated
emission
Pollutant reductions
(tons per
year)
------------------------------------------------------------------------
Dioxin/furans\1\........................................ 0.20
All HAP metals.......................................... 19.5
Mercury................................................. 0.21
Semivolatile metals (Cd, Pb)............................ 2.9
Low volatile metals (As, Be, Cr)........................ 6.5
Other metals (Co, Mn, Ni, Sb, Se)....................... 9.9
HCl and chlorine gas\2\................................. 1220
Particulate matter...................................... 2,140
------------------------------------------------------------------------
\1\ Dioxin/furan emission reductions are expressed as grams TEQ per year.
\2\ We are promulgating health-based compliance alternatives for total
chlorine for hazardous waste combustors other than hydrochloric acid
production furnaces in lieu of the MACT technology-based emission
standards (see Part Four, Section VII of the preamble for details).
Given that a number of sources may elect to comply with the health-
based compliance alternatives, the estimated reductions of total
chlorine represent an upper bound estimate.
II. What Are the Water and Solid Waste Impacts?
We estimate that water usage for existing sources will increase
between 400 million and 1.6 billion gallons per year as a result of
today's rule. The upper range estimate represents the water usage
assuming no sources elect to comply with the health-based compliance
alternatives for total chlorine, while the lower range estimate
represents water usage assuming all sources elect the alternative.
Water usage increases are estimated for reducing combustion gas
temperatures with evaporated spray coolers for dioxin/furan control as
well as for new particulate matter and acid gas air pollution control
equipment. The increased water usage will also result in an increase in
wastewater generation. Depending on the number of sources that elect to
comply with the health-based compliance alternatives for total
chlorine, we also estimate that up to 775 million gallons of wastewater
may be generated.
We estimate that the generation of solid waste will increase
between approximately 8,700 tons and 12,200 tons per year depending on
the number of sources that elect to comply with the health-based
compliance alternatives for total chlorine. Of these totals,
approximately 250 tons per year will be classified as hazardous waste
subject to RCRA Subtitle C regulations. We estimate the remainder--
between 8,450 and 11,950 tons per year--will be classified and managed
as a non-hazardous industrial waste subject to Subtitle D of RCRA. The
costs associated with these disposal and water requirements are
accounted for in the annualized compliance cost estimates. A discussion
of the methodology used to estimate impacts is presented in ``Technical
Support Document for HWC MACT Replacement Standards, Volume V: Emission
Estimates and Engineering Costs'' that is available in the docket. We
note that the nonair quality health and environmental impacts effects
for both floor and beyond-the-floor options are discussed in the
technical support document and are part of our consideration of such
factors under section 112(d)(2).
III. What Are the Energy Impacts?
We estimate that the national annual energy usage as a result of
this rule will increase between approximately 73 million and 85 million
kilowatt hours (kWh) depending on the number of sources that elect to
comply with the health-based compliance alternatives for total
chlorine. The increase results from the electricity required to operate
air pollution control equipment installed to meet the standards. The
increase energy usage costs are accounted for in the annualized
compliance cost estimates. A discussion of the methodology used to
estimate impacts is presented in ``Technical Support Document for HWC
MACT Replacement Standards, Volume V: Emission Estimates and
Engineering Costs.'' We note that the energy effects for both floor and
beyond-the-floor options are discussed in the technical support
document and are part of our consideration of such factors under
section 112(d)(2).
IV. What Are the Control Costs?
Control costs, as presented in this section, refer only to
engineering, operation, and maintenance costs associated with unit/
system upgrades necessary to meet the final standards. These costs do
not incorporate any market-based adjustments. All costs presented in
this section are annualized estimates in 2002 dollars.
[[Page 59530]]
We estimate there are a total of 267 sources \261\ that may be
subject to requirements of this final rule. Of this total, there are
116 boilers (104 liquid fuel boilers plus 12 solid fuel boilers), 92
on-site incinerators, 25 cement kilns, 15 commercial incinerators, nine
(or seven) lightweight aggregate kilns, and ten hydrochloric acid (HCl)
production furnaces.
---------------------------------------------------------------------------
\261\ For purposes of this discussion, a source is defined as
the air pollution control system associated with one or more
hazardous waste combustion unit(s). A facility may operate one or
more sources. Note that this total includes two LWAK units limited
by system burn constraints. Exclusion of these two units results in
a total of 265 independent sources.
---------------------------------------------------------------------------
Total national private sector engineering costs for the final
standards are estimated at $40.2 million per year.\262\ This estimate
reflects total non market adjusted upgrade costs (engineering, plus
administrative and permitting), excluding chlorine control costs.\263\
All Phase II sources combined (liquid fuel boilers, coal fired boilers,
and HCl production furnaces) represent 86 percent of this total. The
average private sector engineering cost, excluding permitting and
administrative, is projected to be highest for liquid fuel boilers, at
$256,300 per source. Coal fired boilers are second at approximately
$170,246 per source. Total engineering costs to cement kilns and HCl
production furnaces are estimated to average $113,600, and $16,645 per
source, respectively. Commercial incinerators are projected to
experience engineering costs averaging $12,300 per source. On-site
incinerators and LWAKs will face the lowest engineering costs at
$10,200 and $3,330, respectively.
---------------------------------------------------------------------------
\262\ Not included here are total annual government costs. These
costs, with or without chlorine control, are approximately $0.5
million/year.
\263\ We are finalizing the incorporation of section 112(d)(4)
of the Clean Air Act to establish risk-based standards for total
chlorine for hazardous waste combustors (except for hydrochloric
acid production furnaces). The low-end of this cost range assumes
all facilities emit total chlorine levels below risk-based levels of
concern. Under this scenario, no total chlorine controls are assumed
to be necessary. The total engineering cost with chlorine control is
estimated at $46.7 million/year.]
---------------------------------------------------------------------------
For all Phase I sources (141 sources; commercial incinerators, on-
site incinerators, cement kilns, and lightweight aggregate kilns),
total average annualized non market-adjusted compliance costs
(including permitting and administrative \264\) are estimated at
$39,700 per source. The combined Phase II sources (126 sources; solid
and liquid fuel-fired boilers and hydrochloric acid production
furnaces) have total average annualized non market-adjusted compliance
costs of approximately $274,500 per source. Across all sectors covered
by today's rule (Phase I and Phase II sources), total annualized
compliance costs were found to average $150,500 per source.
---------------------------------------------------------------------------
\264\ See Exhibit 4-3 in the economic assessment background document.
---------------------------------------------------------------------------
Private sector engineering costs (control) costs have also been
assessed on a per ton (U.S.) basis. Captive energy recovery sources
(solid and liquid fuel-fired boilers, and hydrochloric acid production
furnaces) burned a total of 944,667 tons of hazardous waste in 2003.
These facilities are projected to experience the highest average
incremental control costs, at approximately $37 per ton of waste
burned. Commercial energy recovery sources (cement kilns and LWAKs),
burning an estimated 999,076 tons in 2003, are projected to experience
average incremental control costs of approximately of $3.00 per ton.
Captive (on-site) and commercial incinerators burn an estimated 925,828
tons and 447,524 tons per year, respectively. These sources are
estimated to experience average incremental engineering costs of $2.15
per ton and $0.80 per ton, respectively.
The aggregate control costs presented in this section do not
reflect the anticipated real world cost burden on the economy. Any
market disruption, such as the requirements in this final rule, will
cause a short-term disequilibrium in the hazardous waste burning
market, resulting in a natural economic process designed to reach the
new market equilibrium. Actual cost impacts to society are more
accurately measured by taking into account market adjustments in the
targeted industry, plus secondary (societal) costs. Total market-
adjusted costs plus secondary costs are commonly termed Social Costs,
and are generally less than total engineering costs due to efficiencies
implemented during the market adjustment process. Social Costs
theoretically represent the total real world costs of all goods and
services society must give up in order to gain the added protection to
human health and the environment. Social Costs are presented in Part VI
of this Section.\265\
---------------------------------------------------------------------------
\265\ Beyond-the-Floor standards were assessed for all floors.
These findings are available in Appendix F and G of the engineering
background document: See: Final Technical Support Document for HWC
MACT Standards, Volume V--Emissions Estimates and Engineering Costs.
---------------------------------------------------------------------------
V. What Are the Economic Impacts?
Economic impacts may be measured through several factors. This
section presents estimated economic impacts relative to market exits,
waste reallocations, and employment impacts. Economic impacts presented
in this section are distinct from social costs, which correspond only
to the estimated monetary value of market disturbances.
A. Market Exit Estimates
The hazardous waste combustion industry operates in a dynamic
market, with systems entering and exiting the market on a routine
basis. Our analysis defines ``market exit'' as ceasing to burn
hazardous waste. We have projected post-rule hazardous waste combustion
system market exits based on economic feasibility only. Social,
liability, and informational issues are not incorporated into our
market exit analysis.
Market exit estimates are derived from a breakeven analysis
designed to determine system viability. This analysis is subject to
several assumptions, including: Cost assumptions concerning the per
sector baseline cost of hazardous waste burning, cost estimates for
necessary pollution control devices (including operation and
maintenance), prices for combustion services, and estimated waste
quantities burned at these facilities. It is important to note that,
for most sectors, exiting the hazardous waste combustion market is not
equivalent to closing a plant. (Actual plant closure may occur only in
the case of a commercial incinerator closing all systems.)
We estimate that 39 systems, representing about 15 percent of the
total affected universe, may stop burning hazardous waste in response
to the final standards. Approximately 59,000 tons of hazardous waste
may be diverted from these closed systems.
These estimates assume no chlorine controls are put in place as a
direct result of the rule.\266\ Of the estimated 39 market exits, 26
are projected to be on-site incinerators and 8 are liquid fuel boilers.
Three commercial incinerator systems may exit the market in response to
the final rule. However, these systems are considered economically
marginal in the baseline. Two coal-fired boiler systems are also
projected to exit the market. No cement kilns, lightweight aggregate
kilns, or HCl production furnaces are projected to exit the market as a
result of the final rule. Market exit estimates were found to be identical
[[Page 59531]]
when the cost of chlorine control is included in the model.
---------------------------------------------------------------------------
\266\ Even though we are allowing sources (except hydrochloric
acid production furnaces) to invoke Sec. 112(d)(4) in lieu of MACT
chlorine control requirements, we have not attempted to estimate the
following: (1) The total number of sources that may elect to
implement this provision, and, (2) what level of control may be
necessary following a Sec. 112(d)(4) risk-based determination,
since this would vary on a site-by-site basis.
---------------------------------------------------------------------------
B. Waste Reallocations
Some on-site combustion systems (sources) may no longer be able to
cover their hazardous waste burning costs as a result of final rule
requirements. These sources are projected to divert or reroute their
wastes to different hazardous waste combustion sources (usually some
type of commercial unit).\267\ For multiple system facilities, this
diversion may include on-site (non-commercial) waste consolidation
among fewer systems at the same facility. Under current market
conditions, non-combustion alternatives are generally not economically
feasible, and in any case, would normally be unable to achieve the RCRA
Land Disposal Restriction Treatment standards, which are based on the
performance of combustion technology (which optimizes destruction of
organic HAP).
---------------------------------------------------------------------------
\267\ This analysis includes the cost of waste transport to
alternative combustion sources, burning fees, and purchase of
alternative fuels (if appropriate).
---------------------------------------------------------------------------
As mentioned above, our economic model indicates that approximately
59,000 tons (U.S.) of hazardous waste may be reallocated. This figure
represents approximately 1.8 percent of the total 2003 quantity of
hazardous waste burned at all sources. On-site consolidations account
for nearly 24 percent (13,915 tons) of all diverted waste. Commercial
incinerators are projected to receive the vast majority (42,722 tons,
or 73 percent) of all off-site waste reallocations. Cement kilns and
LWAKs are projected to receive the remaining reallocation (2,289 tons).
Currently, there is more than adequate capacity to accommodate all off-
site hazardous waste diversions.
C. Employment Impacts
Today's rule is projected to induce employment shifts across all
affected sectors. These shifts may occur as specific combustion
facilities find it no longer economically feasible to keep all of their
systems running, or to stay in the hazardous waste market at all. When
this occurs, workers at these locations may lose their jobs or
experience forced relocations. At the same time, the rule is projected
to result in positive employment impacts, as new purchases of pollution
control equipment stimulate additional hiring in the pollution control
manufacturing sector, and as additional staff are required at selected
combustion facilities to accommodate reallocated waste and/or various
compliance activities.
1. Employment Impacts--Dislocations (Losses)
Employment dislocations in the combustion industry are projected to
occur when facilities consolidate waste into fewer systems, or when a
facility exits the hazardous waste combustion market altogether.
Operation and maintenance labor hours are expected to be reduced for
each system that stops burning hazardous waste. For each facility that
completely exits the market, employment dislocations may also include
supervisory and/or administrative personnel.
Total employment dislocations resulting from implementation of the
final standards are estimated at 310 full-time-equivalent (FTE) jobs.
On-site incinerators account for about 62 percent of this total,
followed by commercial incinerators (about 24 percent), and liquid-fuel
boilers (about 12 percent). The large number of on-site incinerators
drives the impacts within this sector.
2. Employment Impacts--Positive
In addition to employment dislocations, our analysis indicates that
today's rule may also result in positive employment impacts. These
positive impacts are projected to occur to both the air pollution
control industry and to combustion firms as they hire personnel to
accommodate reallocated waste and/or comply with the various
requirements of the rule. Hazardous waste combustion sources are
projected to need additional operation and maintenance personnel for
the new pollution control equipment and other compliance activities,
such as new reporting and record keeping requirements.
The total annual positive employment impact associated with the
final standards is estimated at 323 FTEs. Positive employment impacts
to the air pollution control industry \268\ are projected at 93 FTEs,
or about 29 percent of this total. At 183 jobs, liquid-fuel boilers are
projected to experience the greatest positive employment impact among
all combustors.
---------------------------------------------------------------------------
\268\ Manufacturers and distributors of air pollution control
devices are projected to increase sales as a result of this action.
---------------------------------------------------------------------------
While it may appear that our analysis suggests overall net positive
employment impacts, such a conclusion would be inappropriate. Because
the positive employment impacts and employment dislocations occur in
different sectors of the economy, they should not be added together.
Doing so would mask important distributional effects of the rule. In
addition, these employment estimates reflect within sector impacts only
and therefore do not account for potential displacements across
sectors. This may occur if investment funds are diverted from other
areas of the larger economy.
VI. What Are the Social Costs and Benefits of the Final Rule?
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. Our economic assessment
conducted in support of today's final rule evaluated compliance
(control) costs, and economic impacts, as discussed above. The
Assessment also analyzed social costs, benefits, small entity impacts,
and other impacts (e.g., children's health, unfunded mandates). To
conduct this analysis, we examined the current combustion market and
practices, developed and implemented a methodology for examining
compliance and social costs, applied an economic model to analyze
industry economic impacts (discussed above), examined benefits, and
followed appropriate guidelines and procedures for examining equity
considerations, children's health, and other impacts. The data applied
in this analysis were the most recently available at the time of the
analysis. Because our data were limited, the findings from these
analyses should be more accurately viewed as national estimates.
A. Combustion Market Overview
The hazardous waste industry consists of three key segments:
hazardous waste generators, fuel blenders/intermediaries, and hazardous
waste burners. Hazardous waste is combusted at four main types of
facilities: commercial incinerators, on-site incinerators, waste
burning kilns (cement kilns and lightweight aggregate kilns), and
industrial boilers. Commercial incinerators are generally larger in
size and designed to manage virtually all types of solids, as well as
liquid wastes. On-site incinerators are more often designed as liquid-
injection systems that handle liquids and pumpable solids. Waste
burning kilns and boilers generally burn hazardous wastes to generate
heat and power for their manufacturing processes.
As discussed above, we have identified a total of 267 hazardous
waste burning sources (systems) currently in operation in the United
States. Liquid fuel-boilers account for 104 sources, followed by on-
site incinerators at 92 sources. Cement kilns, hydrochloric acid
production furnaces, and commercial incinerators account for 25, 10,
and 15 sources, respectively. Solid
[[Page 59532]]
fuel boilers and lightweight aggregate kilns make up the remainder, at
12 and nine systems, respectively. These 267 sources are operated at a
total of 145 different facilities. A single facility may have one or
more combustion systems. Facilities with multiple systems may have
different types of hazardous waste burning units. Combustion systems
operating at chemical manufacturing facilities (NAICS 325) were found
to account for about 70 percent of the total number of facilities and
manage about 58 percent of all hazardous waste burned in 2003.
The EPA Biennial Reporting System (BRS) reports a total demand for
all combusted hazardous waste, across all facilities, at 3.32 million
tons (U.S. ton) in 2003. Commercial energy recovery (cement kilns and
lightweight aggregate kilns) burned about 30 percent of this total.
Hazardous waste destruction at on-site incinerators and commercial
incinerators accounted for 28 percent and 13 percent, respectively.
Captive energy recovery accounted for the remainder, at 29 percent of
the total.
About 65 percent of all hazardous waste burned in 2003 was organic
liquids. This is followed by solids (14 percent), inorganic liquids (11
percent), and sludges (10 percent). Hazardous gases were found to
represent a negligible portion, at about 0.08 percent of the total
quantity burned in 2003. In terms of hazardous waste generating
sources, the Basic Organic Chemical Manufacturing e sector (NAICS 325)
generated approximately 32 percent of all hazardous waste burned in
2001, followed by pesticides and agricultural chemicals, business
services, organic fibers, medicinal chemicals, pharmaceuticals,
plastics materials and resins, petroleum, and miscellaneous.
Companies that generate large quantities of uniform hazardous
wastes generally find it more economical and efficient to combust these
wastes on-site using their own noncommercial systems. Commercial
incineration facilities manage a wide range of hazardous waste streams
generated in small to medium quantities by diverse industries. Cement
kilns, lightweight aggregate kilns, and boilers derive heat and energy
by burning high-Btu (solvents and organics) liquid hazardous
wastes.\269\ Sometimes these wastes are blended with fossil fuels where
system operators choose to not derive all of their energy input from
hazardous waste.
---------------------------------------------------------------------------
\269\ Many cement kilns are also able to burn a certain level of
non liquid waste.
---------------------------------------------------------------------------
Regulatory requirements, liability concerns, and economics
influence the demand for hazardous waste combustion services.
Regulatory forces influence the demand for combustion by mandating
certain hazardous waste treatment standards (land disposal restriction
requirements, etc.). Liability concerns of waste generators affect
combustion demand because combustion, by destroying organic wastes,
greatly reduces the risk of future environmental problems. Finally, if
alternative waste management options are more expensive, hazardous
waste generators will likely choose to send their wastes to combustion
facilities in order to increase overall profitability.
Throughout much of the 1980s, hazardous waste combustors enjoyed a
strong competitive position and generally maintained a high level of
profitability. During this period, EPA regulations helped stimulate a
greatly expanded market. In addition, federal permitting requirements,
as well as powerful local opposition to siting of new incinerators,
constrained the entry of new combustion systems. As a result,
combustion prices rose steadily, ultimately reaching record levels in
1987. The high profits of the late 1980s induced many firms to enter
the market, in spite of the difficulties and delays anticipated in the
permitting and siting process.
Hazardous waste markets have changed significantly since the late
1980s. In the early 1990s, substantial overcapacity resulted in fierce
competition, declining prices, poor financial performance, numerous
project cancellations, system consolidations, and facility closures.
Since the mid 1990s, several additional combustion facilities have
closed, while many of those that have remained open have consolidated
their operations. Available (prior to this final rule) excess
commercial capacity is currently estimated at about 21 percent of the
total 2003 quantity combusted.
B. Baseline Specification
Proper and consistent baseline specification is vital to the
accurate assessment of incremental costs, benefits, and other economic
impacts associated with today's rule. The baseline essentially
describes the world absent the rule. The incremental impacts of today's
rule are evaluated by predicting post MACT compliance responses with
respect to the baseline. The baseline, as applied in this analysis, is
the point at which today's rule is promulgated. Thus, incremental cost
and economic impacts are projected beyond the standards established in
the February 13, 2002 Interim Standards Final Rule.
C. Analytical Methodology and Findings--Social Cost Analysis
Total social costs include the value of resources used to comply
with the standards by the private sector, the value of resources used
to administer the regulation by the government, and the value of output
lost due to shifts of resources away from the current market
equilibrium. To evaluate these shifts in resources and changes in
output requires predicting changes in behavior by all affected parties
in response to the regulation, including responses of directly-affected
entities, as well as indirectly-affected private parties.
For this analysis, social costs are grouped into two categories:
Economic welfare (changes in consumer and producer surplus), and
government administrative costs. The economic welfare analysis
conducted for today's rule uses a simplified partial equilibrium
approach. In this analysis, changes in economic welfare are measured by
summing the changes in consumer and producer surplus. This simplified
approach bounds potential economic welfare losses associated with the
rule by considering two scenarios: Compliance costs assuming no market
adjustments, and market adjusted compliance costs.
The annualized private sector compliance (engineering) costs of
$40.2 million, as presented in Section IV, assume no market
adjustments. Our best estimate of total social costs incorporates
rational market adjustments and all government costs. Under this
scenario, increased compliance (engineering) costs are examined in the
context of likely incentives hazardous waste combustion facilities have
to continue burning, and the competitive balance in the market.
Total annualized market-adjusted net private-sector costs are
estimated at $22.1 million. \270\ In addition to the net private sector
costs, total annual government costs are approximately $0.50 million.
Thus, our best estimate of total social costs of this final rule is
$22.6 million per year.
---------------------------------------------------------------------------
\270\ We are finalizing alternative risk-based total chlorine
standards for hazardous waste combustors (ecept for hydrochloric
acid production furnaces). The net private sector costs of $22.1
million/year may be considered a lower-bound estimate that assumes
facilities emit total chlorine (TCI) below risk-based levels of
concern (i.e., no TCI controls are assumed to be necessary). Total
net private sector market-adjusted costs would increase to
approximately $28.1 million per year if we were to assume all
sources were to comply with technology-based TCI standards (as
opposed to the risk-based standards).
---------------------------------------------------------------------------
The $22.1 million figure incorporates a net gain to selected Phase
I sources and an estimated $3.6 million cost
[[Page 59533]]
(price) increase to pre-existing customers of commercial hazardous
waste combustion facilities. On-site incinerators are projected to
experience total market-adjusted cost increases of approximately $1.5
million/year. All phase II sources account for approximately $31.9
million in increased costs. Our economic model indicates that, of the
Phase I source categories, commercial incinerators, cement kilns, and
LWAKs would experience net gains following all market adjustments. The
total net gain for these three source categories is estimated at $14.8
million per year. Commercial incinerators would receive about 98
percent of the total gain ($14.5 million/year). Gains to commercial
facilities occur due to marginally higher prices, increased waste
receipts, and relatively low upgrade costs, when compared to the other
sources.
D. Analytical Methodology and Findings--Benefits Assessment
This section discusses the monetized and non monetized benefits to
human health and the environment potentially associated with today's
final rule. Monetized human health benefits are derived from reductions
in particulate matter (PM) and dioxin/furan exposure, and are based on
a Value of Statistical Life (VSL) estimate of $6.2 million. \271\ Non
monetized benefits are associated with human health, ecological, and
waste minimization factors.
---------------------------------------------------------------------------
\271\ Monetized benefits associated with avoided premature
mortality reflect a VSL range of $1.1 million to $11.4 million, with
a central VSL estimate of $6.2 million. These values are derived
from willingness-to-pay based VSL estimates presented in U.S. EPA,
Regulatory Impact Analysis for the Final Clean Air Interstate Rule,
March 2005.
---------------------------------------------------------------------------
1. Monetized Benefits
Total monetized human health benefits for the final standards are
estimated to range from $5.61 million/year to $6.31 million/year. This
estimate includes human health benefits associated with avoided PM and
dioxin/furans exposure. The range is driven by alternative discount
rate assumptions (no discount rate, 3 percent, or 7 percent) for
mortality valuation. PM benefits represent 99 percent of the total
monetized human health benefits.
Particulate Matter
Results from our risk assessment extrapolation procedure \272\ are
used to evaluate incremental human health benefits potentially
associated with particulate matter emission reductions from hazardous
waste combustion facilities. This analysis applied avoided human health
benefits factors from the March 2004 Assessment document,\273\ combined
with more recent emissions estimates for particulate matter.
---------------------------------------------------------------------------
\272\ Inferential Risk Analysis in Support of Standards for
Emissions of Hazardous Air Pollutants from Hazardous Waste Combustors.
\273\ Assessment of the Potential Costs, Benefits, and Other
Impacts of the Hazardous Waste Combustion MACT Replacement
Standards: Proposed Rule, March 2004 (Chapter 6), and Addendum to
the Assessment.
---------------------------------------------------------------------------
Reduced PM emissions are estimated to result in monetized human
health benefits of approximately $6.29 million per year. This is an
undiscounted figure. Avoided PM morbidity cases account for $3.42
million of this total, and include: respiratory illness, cardiovascular
disease, chronic bronchitis, work loss days, and minor restricted
activity. Chronic bronchitis accounts for approximately 89 percent of
the total value of avoided PM morbidity cases. All morbidity cases are
assumed to be avoided within the first year following reduced PM
emissions and are not discounted under any scenario.
Avoided premature deaths (mortality) are valued at $2.87 million
per year, undiscounted. Assuming a discount rate of three and seven
percent, PM mortality benefits would be $2.52 million and $2.19
million, respectively. Our discounted analysis of PM mortality benefits
assumes that 30 percent of premature mortalities occur during the first
year, 50 percent occur evenly from the second through the fifth years,
and the remaining 20 percent occur evenly from the sixth through the
twentieth years.\274\ Due to limitations in the risk analysis, this
assessment of PM benefits does not consider corresponding health
benefits associated with the reduction of HAP metals carried by the PM.
---------------------------------------------------------------------------
\274\ See: U.S. EPA. March 2005. Regulatory Impact Analysis for
the Final Interstate Air Quality Rule.
---------------------------------------------------------------------------
Dioxin/furan--Dioxin/furan emissions are projected to be reduced by
a total of 0.2 grams per year under the final standards. In the July
23, 1999 Addendum to the Assessment, cancer risk reductions linked to
consumption of dioxin-contaminated agricultural products accounted for
the vast majority of the 0.36 cancer cases per year that were expected
to be avoided due to the 1999 standards. Cancer risk reductions
associated with the final standards are expected to be less than 0.36
cases per year, but greater than zero.
At this time, the Agency is still using a cancer risk slope factor
of 1.56 x 105 [mg/kg/day]-1 for dioxin. This
cancer slope factor is derived from the Agency's 1985 health assessment
document for polychlorinated dibenzo-p-dioxins \275\ and represents an
upper bound 95th percentile confidence limit of the excess cancer risk
from a lifetime exposure. For the past several years the Agency has
been conducting a reassessment of the human health risks associated
with dioxin and dioxin-like compounds. In October of 2004 this
reassessment \276\ was delivered to the National Academy of Sciences
(NAS) for review.
---------------------------------------------------------------------------
\275\ USEPA, 1985. Health Assessment Document for
Polychlorinated Dibenzo-p-Dioxins. EPA/600/8-84/014F. Final Report.
Office of Health and Environmental Assessment. Washington, DC.
September, 1985.
\276\ U.S.EPA. Exposure and Human Health Reassessment of
2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and Related Compounds
National Academy Sciences (NAS) Review Draft, December 2003. [Note:
Toxicity risk factors presented in this document should not be
considered EPA's official estimate of dioxin toxicity, but rather
reflect EPA's ongoing effort to reevaluate dioxin toxicity].
---------------------------------------------------------------------------
Evidence compiled from this draft reassessment indicates that the
carcinogenic effects of dioxin/furans may be six times as great as
believed in 1985, reflecting an upper bound cancer risk slope factor of
1 x 106 [mg/kg/day]-1 for some individuals.
Agency scientists' more likely (central tendency) estimates (derived
from the ED01 rather than the LED01) result in
slope factors and risk estimates that are within 2-3 times of the upper
bound estimates (i.e., between 3 x 105 [mg/kg/
day]-1 and 5 x 10\5\ [mg/kg/day]-1) based on the
available epidemiological and animal cancer data. However, risks could
be as low as zero for some individuals. Use of the alternative upper
bound cancer risk slope factor could result in a higher human health
monetized health benefit associated with premature cancer deaths
avoided in response to the final standard for dioxin/furans. The
assessment of upper bound cancer risk using this alternative slope
factor should not be considered current Agency policy. The standards
for dioxin in today's final rule were not based on this draft reassessment.
Total non-discounted human health benefits associated with
projected dioxin reductions are estimated at $0.02 million/year. These
benefits may range from $0.01 million/year to nearly zero, applying a
discount rate of 3 percent and 7 percent, respectively. Our discounted
estimates incorporate an assumed latency period of 21 and 34 years from
exposure to death.
2. Non-Monetized Benefits
We examined, but did not monetize human health benefits potentially
associated with reduced exposure to lead, mercury, and total chlorine.
Non monetized ecological benefits
[[Page 59534]]
potentially associated with reductions in dioxin/furan; selected
metals, total chlorine, and particulate matter were also examined.
Finally, waste minimization is examined as a non-monetized benefit.
Lead--The final standards are expected to reduce lead emissions by
approximately 2.5 tons per year. In comparison, the 1999 standards were
expected to reduce lead emissions by 89 tons per year, and were
expected to reduce cumulative lead exposures for two children, ages
zero to five, to less than 10 [mu]g/dL. The lead benefits associated
with these final standards are therefore expected to be modest. The
final standards will also result in reduced lead levels for children of
sub-populations with especially high levels of exposure. Children of
subsistence fishermen, commercial beef farmers, and commercial dairy
farmers who face the greatest levels of cumulative lead exposure may
also experience comparable reductions in overall exposure as a result
of the MACT standards.
Mercury--The HWC MACT final standards are expected to reduce
mercury emissions by approximately 0.21 tons per year, approximately 93
percent less than the four-ton reduction expected under the 1999
Standards. We do not attempt to quantify the mercury-related benefits
associated with today's final standards. However, because the reduction
in mercury emissions represents a fraction of the reduction expected
under the 1999 Standards, the mercury-related benefits of the final
standards are likely to be less than the corresponding benefits under
the 1999 Standards.
To characterize the benefits associated with reduced mercury
emissions, the 1999 Assessment measured changes in hazard quotients for
populations living near hazardous waste combustion facilities. For any
given population, the hazard quotient is the ratio of the actual level
of exposure to a safe level of exposure. A hazard quotient greater than
one implies that a population is potentially at risk. The exposure
quotient analysis in the 1999 Assessment found that the measurable
benefits of reduced mercury emissions under the 1999 Standards were
likely to be small because baseline exposures were relatively low. In
addition, many of the studies examining the adverse health effects of
mercury are inconclusive. Over the past several years, however,
scientists have conducted three large-scale studies of individuals in
the Faroe Islands, New Zealand, and the Seychelles Islands examining
the relationship between mercury exposure in women and the neuro-
development of their unborn children.\277\ The New Zealand and Faroe
Islands studies both found a statistically significant relationship
between maternal methylmercury exposure and IQ decrements in the unborn
children of these women. In its 2000 report on the toxicological
effects of methylmercury, the National Research Council suggested that
integrating the results of all three studies could be useful for risk
assessment purposes.\278\ Such an integrative risk assessment, later
published by Ryan et al. in 2005, served as the basis of the Agency's
health effects analysis for the Clean Air Mercury Rule (CAMR).\279\ The
regulatory impact analysis for CAMR summarizes several of the adverse
health effects that may be linked to mercury and reviews the
epidemiological literature examining the link between these effects and
exposure to mercury.\280\
---------------------------------------------------------------------------
\277\ Grandjean, P., K. Murata, E. Budtz-Jorgensen, and P.
Weihe. 2004. ``Autonomic Activity in Methylmercury Neurotoxicity:
14-Year Follow-Up of a Faroese Birth Cohort.'' Journal of
Pediatrics.144:169-76; Kjellstrom, T., P. Kennedy, S. Wallis, A.
Stewart, L. Friberg, B. Lind, P. Witherspoon, and C. Mantell. 1989.
Physical and mental development of children with prenatal exposure
to mercury from fish. Stage 2: Interviews and psychological tests at
age 6. National Swedish Environmental Protection Board Report No.
3642; Crump, K.S., T. Kjellstrom, A.M. Shipp, A. Silvers, and A.
Stewart. 1998. ``Influence of prenatal mercury exposure upon
scholastic and psychological test performance: benchmark analysis of
a New Zealand cohort.'' Risk Analysis. 18(6):701-713; Davidson,
P.W., G.J. Myers, C. Cox, C. Axtell, C. Shamlaye, J. Sloane-Reeves,
E. Cernichiari, L. Needham, A. Choi, Y. Wang, M. Berlin, and T.W.
Clarkson. 1998. ``Effects of prenatal and postnatal methylmercury
exposure from fish consumption on neurodevelopment: outcomes at 66
months of age in the Seychelles Child Development Study.'' Journal
of the American Medical Association. 280(8):701-707; and Myers,
G.J., P.W. Davidson, C. Cox, C.F. Shamlaye, D. Palumbo, E.
Cernichiari, J. Sloane-Reeves, G.E. Wilding, J. Kost, L.S. Huang,
and T.W. Clarkson. 2003. ``Prenatal methylmercury exposure from
ocean fish consumption in the Seychelles child development study.''
Lancet. 361(9370):1686-92.
\278\ National Research Council of the National Academy of
Sciences, Toxicological Effects of Methylmercury. 2000, p. 299.
\279\ Ryan, L.M. Effects of Prenatal Methylmercury on Childhood
IQ: A Synthesis of Three Studies. Report to the U.S. Environmental
Protection Agency, 2005; U.S. EPA. Regulatory Impact Analysis of the
Clean Air Mercury Rule: Final Report. March 2005.
\280\ U.S. EPA. Regulatory Impact Analysis of the Clean Air
Mercury Rule: Final Report. March 2005.
---------------------------------------------------------------------------
Total Chlorine--We were not able to quantify the benefits
associated with reductions in total chlorine emissions. Total chlorine
is a combination of hydrogen chloride and chlorine gas. The final
standards are projected to reduce total annual chlorine emissions by
about 107 tons per year \281\ (HCl production furnaces only). Hydrogen
chloride is corrosive to the eyes, skin, and mucous membranes. Acute
inhalation can cause eye, nose, and respiratory tract irritation and
inflammation, and pulmonary edema. Chronic occupational inhalation has
been reported to cause gastritis, bronchitis, and dermatitis in
workers. Long term exposure can also cause dental discoloration and
erosion. Chlorine gas inhalation can cause bronchitis, asthma and
swelling of the lungs, headaches, heart disease, and meningitis. Acute
exposure causes more severe respiratory and lung effects, and can
result in fatalities in extreme cases. The exposure levels established
under 112(d)(4) are expected to reduce chlorine exposure for people in
close proximity to hazardous waste combustion facilities, and are
therefore likely to reduce the risk of all associated health effects.
Ecological Benefits--We examined ecological benefits through a
comparison of the 1999 Assessment and today's final standards.
Ecological benefits in the 1999 Assessment were based on reductions of
approximately 100 tons per year in dioxin/furans and selected metals.
Lead was the only pollutant of concern for aquatic ecosystems, while
mercury appeared to be of greatest concern for terrestrial ecosystems.
Dioxin/furan and lead emission reductions also provided some potential
benefits for terrestrial ecosystems. The final standards are expected
to reduce dioxin/furan and selected metal emissions by about 12 percent
to 13 percent of the 1999 estimate, resulting in fewer incremental
benefits than those estimated for the 1999 Assessment (and later, for
the 2002 Interim Standards). However, the 1999 Assessment did not
estimate the ecological benefits of MACT standards for hazardous waste
burning industrial boilers and HCl production furnaces. These systems
were excluded from the universe in 1999 but are part of the universe
addressed by today's final standards. As a result, while the total
ecological benefits of the final rule are likely to be modest, areas
near facilities with boilers may enjoy more significant ecological
benefits under the final standards than areas near facilities that have
already complied with the 2002 Interim standards.
---------------------------------------------------------------------------
\281\ This is a lower bound estimate that assumes all other
sources will implement 112(d)(4) and will not move to reduce TCl
emissions from current baseline levels.
---------------------------------------------------------------------------
Mercury, lead, and chlorides are among the HAPs that can cause
damage to the health and visual appearance of
[[Page 59535]]
plants.\282\ While the total value of forest health is difficult to
estimate, visible deterioration in the health of forests and plants can
cause a measurable change in recreation behavior. Several studies that
measure the change in outdoor recreation behavior according to forest
health have attempted to place a value on aesthetic degradation of
forests.\283\ Although these studies are available, additional research
is needed to fully understand the effects of these Haps on the forest
ecosystem. Thus, these benefits are not quantified in this analysis.
---------------------------------------------------------------------------
\282\ Although the primary pollutants which are detrimental to
vegetation aesthetics and growth are tropospheric ozone, sulfur
dioxide, and hydrogen fluoride (three pollutants which are not
regulated in the MACT standards), some literature exists on the
relationship between metal deposition and vegetation health.
(Mercury Study Report to Congress Volume VI, 1997) (Several studies
are cited in this report.)
\283\ See, for example, Brown, T.C. et al. 1989, Scenic Beauty
and Recreation Value: Assessing the Relationship, In J. Vining, ed.,
Social Science and Natural Resources Recreation Management, Westview
Press, Boulder, Colorado; this work studies the relationship between
forest characteristics and the value of recreational participation.
Also see Peterson, D.G. et al. 1987, Improving Accuracy and Reducing
Cost of Environmental Benefit Assessments. Draft Report to the U.S.
EPA, by Energy and Resource Consultants, Boulder, Colorado; Walsh et
al. 1990, Estimating the public benefits of protecting forest
quality, Journal of Forest Management, 30:175-189., and Homes et al.
1992, Economic Valuation of Spruce-Fir Decline in the Southern
Appalachian Mountains: A comparison of Value Elicitation Methods.
Presented at the Forestry and the Environment: Economic Perspectives
Conference, March 1, 1992 Jasper, Alberta, Canada for estimates of
the WTP of visitors and residents to avoid forest damage.
---------------------------------------------------------------------------
Emissions that are sufficient to cause structural and aesthetic
damage to vegetation are likely to affect growth as well. Little
research has been done on the effects of compounds such as chlorine,
heavy metals (as air pollutants), and PM on agricultural
productivity.\284\ Even though the potential for visible damage and
production decline from metals and other pollutants suggests the final
standards could increase agricultural productivity, we have not
monetized the benefits of these changes.
---------------------------------------------------------------------------
\284\ MacKenzie, James J., and Mohamed T. El-Ashry, Air Pollution's
Toll on Forests and Crops (New Haven, Yale University Press, 1989).
---------------------------------------------------------------------------
3. Waste Minimization Benefits
Facilities that burn hazardous waste and remain in operation
following implementation of the final standards are expected to
experience marginally increased costs as a result of these standards.
This will result in an incentive to pass these increased costs on to
their customers in the form of higher combustion prices. In the 1999
Assessment we conducted a waste minimization analysis to inform the
expected price change. The analysis concluded that the demand for
hazardous waste combustion is relatively inelastic. While a variety of
waste minimization alternatives are available for managing hazardous
waste streams that are currently combusted, the costs of these
alternatives generally exceed the cost of combustion. When the
additional costs of compliance with the MACT standards are taken into
account, waste minimization alternatives still tend to exceed the
higher combustion costs. This relative inelasticity suggests that, in
the short term, large reductions in the amount of hazardous waste
requiring combustion are not likely to occur. However, over the longer
term (i.e. as production systems are updated), companies may continue
to seek alternatives to expensive hazardous waste-management. This may
include process adjustments that result, to some degree in source
reduction of hazardous waste and the increased generation of non
hazardous waste. To the extent that increases in combustion prices
provide additional incentive to adopt more efficient processes, the
final standards may contribute to longer term process-based hazardous
waste minimization efforts.
No hazardous waste minimization impacts are captured in our
quantitative analysis of costs and benefits.\285\ A quantitative
assessment of the benefits associated with waste minimization may
result in double-counting of some of the benefits described earlier.
For example, waste minimization may reduce emissions of hazardous air
pollutants and therefore have a positive effect on public health.
Furthermore, emission reductions beyond those necessary for compliance
with the final standards are not addressed in the benefits assessment.
In addition, waste minimization is likely to result in specific types
of benefits not captured in this Assessment. For example, waste
generators that engage in waste minimization may experience a reduction
in their waste handling costs and could also reduce the risk related to
waste spills and waste management. Finally, waste minimization
procedures potentially stimulated by today's action may result in
additional costs to facilities that implement these technologies. These
factors have not been assessed in our analysis but are likely to at
least partially offset corresponding benefits.
---------------------------------------------------------------------------
\285\ Note that this rule does, in fact, consider hazardous
waste feed control. Feed control can be implemented by each source
through waste minimization procedures. See: Final Technical Support
Document for HWC MACT Standards, Volume V-Emissions Estimates and
Engineering Costs.
---------------------------------------------------------------------------
4. Conclusion
Total non-discounted monetized human health benefits associated
with the final standards are estimated at $6.31 million/year.
Annualized discounted benefits were found to range from $5.61 million
to $5.95 million/year. The range reflects an alternative discount rate
of 3 percent and 7 percent for mortality benefits.
It is important to emphasize that monetized benefits represent only
a portion of the total benefits associated with this rule. A
significant portion of the benefits are not monetized, as discussed
above, due to data and analytical limitations. Specifically, ecological
benefits, and human health benefits associated with reductions in
chlorine, mercury, and lead are not quantified or monetized. In some
regions these benefits may be significant. In addition, specific sub-
populations near combustion facilities, including children and minority
populations, may be disproportionately affected by environmental risks
and may therefore enjoy more significant benefits. Visibility benefits
associated with reduced PM are also expected from this final rule. For
a complete discussion of the methodology, data, findings, and
limitations associated with our benefits analysis the reader is
encouraged to review the Assessment document,\286\ and the Addendum to
the Assessment.
---------------------------------------------------------------------------
\286\ Assessment of the Potential Costs, Benefits, and Other
Impacts of the Hazardous Waste Combustion MACT Final Rule Standards.
September 2005.
---------------------------------------------------------------------------
Part Seven: How Does the Final Rule Meet the RCRA Protectiveness Mandate?
As discussed in more detail below, we believe today's final
standards are generally protective of human health and the environment.
We therefore finalize and apply these standards, in most instances, in
lieu of the RCRA air emission standards applicable to these sources.
I. Background
Section 3004(a) of RCRA requires the Agency to promulgate standards
for hazardous waste treatment, storage, and disposal facilities as
necessary to protect human health and the environment. The standards
for hazardous waste incinerators generally rest on this authority. In
addition, Sec. 3004(q) requires the Agency to promulgate standards for
emissions from facilities that burn
[[Page 59536]]
hazardous waste fuels (e.g., cement and lightweight aggregate kilns,
boilers, and hydrochloric acid production furnaces) as necessary to
protect human health and the environment. Using RCRA authority, the
Agency has established emission (and other) standards for hazardous
waste combustors that are either entirely risk-based (e.g., site-
specific standards for metals under the Boiler and Industrial Furnace
rule), or are technology-based but determined by a generic risk
assessment to be protective (e.g., the DRE standard for incinerators
and BIFs).
The MACT standards finalized today implement the technology-based
regime of CAA Sec. 112(d). There is, however, a residual risk
component to air toxics standards. Section 112(f) of the Clean Air Act
requires the Agency to impose, within eight years after promulgation of
the technology-based standards promulgated under Sec. 112(d) (i.e.,
the authority for today's final standards), additional controls if
needed to protect public health with an ample margin of safety or to
prevent adverse environmental effect.
RCRA Sec. 1006(b) directs that EPA ``integrate all provisions of
[RCRA]
for purposes of administration and enforcement and * * * avoid
duplication, to the maximum extent possible, with the appropriate
provisions of the Clean Air Act * * * '' Thus, although considerations
of risk are not ordinarily part of the MACT process, in order to avoid
duplicative standards where possible, we have evaluated the
protectiveness of the standards finalized today.
As noted above, under RCRA, EPA must promulgate standards ``as may
be necessary to protect human health and the environment.'' RCRA Sec.
3004(a) and (q). Technology-based standards developed under CAA Sec.
112 do not automatically satisfy this requirement, but may do so in
fact. See 59 FR at 29776 (June 6, 1994) and 60 FR at 32593 (June 23,
1995) (RCRA regulation of secondary lead smelter emissions unnecessary
at this time given stringency of technology-based standard and pendency
of Sec. 112(f) determination). If the MACT standards, as a factual
matter, are sufficiently protective to also satisfy the RCRA mandate,
then no independent RCRA standards are required. Conversely, if MACT
standards are inadequate, the RCRA authorities would have to be used to
fill the gap.
II. Evaluation of Protectiveness
For the purpose of satisfying the RCRA statutory mandates, the
Agency has conducted an evaluation of the degree of protection afforded
by the MACT standards being finalized today. We have not conducted a
comprehensive risk assessment for this rulemaking as was done for
incinerators, cement kilns, and lightweight aggregate kilns in the 1999
MACT rule where we concluded that the promulgated standards were
generally protective and therefore, the RCRA standards need not be
retained. However, we noted that in certain instances, permit
authorities may invoke the omnibus authority (RCRA Sec. 3005(c)(3) and
its implementing regulations at Sec. 270.10(k)) if there is some
reason to believe that additional controls beyond those required
pursuant to 40 CFR parts 63, 264, 265, and 266 may be needed to ensure
protection of human health and the environment under RCRA.
For this final rule, we instead compared the risk-related
characteristics of the sources covered by the 1999 rule to the sources
covered by today's rule (e.g., estimated emissions, stack
characteristics, meteorology, and population). For a description of the
methodology and technical discussion of its application, see
``Inferential Risk Analysis in Support of Standards for Emissions of
Hazardous Air Pollutants from Hazardous Waste Combustors,'' in the
docket for today's rule. We performed a large array of statistical
comparisons and from these we attempted to make inferences about
whether risks would be expected to be about the same, less than, or
greater than the risks estimated for 1999 rule. We think the
comparative analysis lends additional support to our view that today's
final standards are generally protective. We received no comments
either in support of or in opposition to our use of the comparative
analysis to evaluate the protectiveness of the standards being
finalized today or our view that the standards are generally protective.
While we regard the final standards as generally protective, the
comparative analysis suggests some concern for solid fuel-fired boilers
(SFBs) with regard to the particulate matter standard (and certain
metals such as antimony and thallium), mercury, and total chlorine
standards (other than the alternative risk-based chlorine standards).
The analysis also suggests some concern for hydrochloric acid (HCl)
production furnaces with regard to the dioxin/furan standard, where
carbon monoxide and total hydrocarbon serve as surrogate control.
However, because both SFBs and HCl production furnaces comprise such
small source categories (4 SFB facilities and 8 HCl production
facilities), it is difficult to reach firm conclusions. For example,
for SFBs it was not possible to conduct hypothesis tests that could be
considered valid involving correlations among variables for a number of
variables in the analysis because of the small number of data points
and the power of the tests to detect differences for those that were
conducted was very low, which greatly diminishes the value of the
results. (Indeed, no differences in correlations were found for SFBs at
the 0.1 significance level--the level of significance that was used in
the analysis.) Similarly, for HCl production furnaces the power of the
tests to detect differences in correlations was quite low. It must be
noted that the comparative analysis methodology was not intended for
comparisons that involve relatively few facilities because it is
grounded in tests of hypotheses and levels of statistical significance
which generally require substantial amounts of data to produce firm
conclusions. Nevertheless, in consideration of the indications of
possible risks for the aforementioned standards, permit authorities may
want to consider site-specific factors in determining whether or not
the MACT standards are sufficiently protective for facilities that fall
into these categories.
The comparative analysis may also raise possible concerns for
lightweight aggregate kilns (LWAKs) and liquid fuel-fired boilers
(LFBs) with dry APCDs with regard to the dioxin/furan standards, in
view of the ongoing uncertainty in cancer and other health effects
levels for chlorinated dioxins and furans. In particular, some recent
estimates of the carcinogenicity of these compounds that consider both
human and animal data, are higher than earlier estimates derived from
animal data alone. However, like SFBs and HCl production furnaces,
LWAKs and LFBs with dry APCDs both comprise small source categories (3
LWAK facilities and 7 dry APCD LFB facilities). This makes it very
difficult to reach firm conclusions and suggests the need to consider
site-specific factors in determining whether the MACT standards are
sufficiently protective in these instances.
Except as noted, we believe today's final standards provide a
substantial degree of protection to human health and the environment.
We therefore do not believe that we need to retain the existing RCRA
standards for boilers and hydrochloric acid production furnaces (just
as we found that existing RCRA standards for incinerators, cement
kilns, and lightweight aggregate kilns were no longer needed after the
1999 rule). However, as previously discussed in
[[Page 59537]]
more detail in Part Four, Section IX, site-specific risk assessments
may be warranted on an individual source basis to ensure that the MACT
standards provide adequate protection in accordance with RCRA.
Part Eight: Statutory and Executive Order Reviews
I. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)]
the
Agency, in conjunction with OMB's Office of Information and Regulatory
Affairs (OIRA), must determine whether a regulatory action is
``significant'' and therefore subject to OMB review and the full
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, or 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 entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because this action may raise novel legal or policy issues due to the
methodology applied in development of the final standards. As such,
this action was submitted to OMB for review. Changes made in response
to OMB suggestions or recommendations are documented in the public record.
The total social costs for this rule are estimated at $22.6 million
per year \287\. This figure is significantly below the $100 million
threshold established under point number one above. Thus, this rule is
not considered to be an economically significant action. However, in an
effort to comply with the spirit of the Order, we have prepared an
economic assessment in support of today's final rule. This document is
entitled: Assessment of the Potential Costs, Benefits, and Other
Impacts of the Hazardous Waste Combustion MACT Final Rule Standards,
September 2005. We have also prepared an Addendum to this Assessment
entitled: Addendum to the Assessment of the Potential Costs, Benefits,
and Other Impacts of the Hazardous Waste Combustion MACT Final Rule
Standards, September 2005. This Addendum captures changes made to the
rulemaking following completion of the full Assessment document. The
Assessment and Addendum were designed to adhere to analytical
requirements established under Executive Order 12866, and corresponding
Agency and OMB guidance; subject to data, analytical, and resource
limitations. Findings presented under Part Six of this Preamble were
developed in accordance with this guidance. The RCRA docket established
for today's rulemaking maintains a copy of the Assessment and Addendum
for public review. Interested persons are encouraged to read both
documents to gain a full understanding of the analytical methodology,
findings, and limitations associated with this report.
---------------------------------------------------------------------------
\287\ This figure includes approximately $0.5 million/year in
total government costs. Total social costs would increase to
approximately $28.6 million per year if we were to assume all
sources were to comply with technology-based TC1 standards.
---------------------------------------------------------------------------
II. Paperwork Reduction Act
We have prepared an Information Collection Request (ICR) document
(ICR No. 1773.08) listing the information collection requirements of
this final rule, and have submitted it for approval to the Office of
Management and Budget (OMB) under the provisions of the Paperwork
Reduction Act, U.S.C. 3501 et seq. OMB has assigned a control number
2050-0171 for this ICR. This ICR is available for public viewing in the
EPA Docket Center, Room B102, 1301 Constitution Avenue NW., Washington,
DC. Copy may also be obtained from the EDOCKET on the EPA Web site, or
by calling (202) 566-1744. The information collection requirements are
not enforceable until OMB approves them.
The public burden associated with this final rule is projected to
affect 238 HWC units and is estimated to average 211 hours per
respondent annually. The reporting and recordkeeping cost burden is
estimated to average $5,640 per respondent annually.
Burden means total time, effort, or financial resources expended by
persons to generate, maintain, retain, disclose, or provide information
to or for a Federal agency. That includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9. When this ICR is approved by
OMB, the Agency will publish a technical amendment to 40 CFR part 9 in
the Federal Register to display the OMB control number for the approved
information collection requirements contained in this final rule.
The EPA requested comments (see 70 FR 20748, Apr. 21, 2005) on the
need for this information, the accuracy of the provided burden
estimates, and any suggested methods for minimizing respondent burden,
including through the use of automated collection techniques.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., 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. This analysis must be completed unless the agency is
able to certify that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions.
The RFA provides default definitions for each type of small entity.
Small entities are defined as: (1) A small business as defined by the
Small Business Administration's (SBA) regulations at 13 CFR 121.201;
(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 final rule on
small entities, I certify that this action will not
[[Page 59538]]
have a significant economic impact on a substantial number of small
entities. We have determined that hazardous waste combustion facilities
are not owned by small governmental jurisdiction or nonprofit
organizations. Therefore, only small businesses were analyzed for small
entity impacts. For the purposes of the impact analyses, small entity
is defined either by the number of employees or by the dollar amount of
sales. The level at which a business is considered small is determined
for each North American Industrial Classification System (NAICS) code
by the Small Business Administration.
Affected individual waste combustors (incinerators, cement kilns,
lightweight aggregate kilns, solid and liquid fuel-boilers, and
hydrochloric acid production furnaces) will bear the impacts of today's
rule. These units will incur direct economic impacts (positive or
negative) as a result of today's rule. Few of the hazardous waste
combustion facilities affected by this rule were found to be owned by
small businesses, as defined by the Small Business Administration
(SBA). From our universe of 145 facilities, we identified eight
facilities that are currently owned by small businesses. Four of these
facilities are liquid boilers, two are on-site incinerators, one is a
cement kiln, and one is a lightweight aggregate kiln (LWAK). Our
analysis indicates that none of these facilities are likely to incur
annualized compliance costs greater than one percent of gross annual
corporate revenues. Cost impacts of the final standards were found to
range from less than 0.01 percent to 0.46 percent of annual gross
corporate revenues.
The reader is encouraged to review our regulatory flexibility
screening analysis prepared in support of this determination. This
analysis is incorporated as Appendix H of the Assessment document, and
updated in the Addendum.
IV. Unfunded Mandates Reform Act of 1995
Signed into law on March 22, 1995, the Unfunded Mandates Reform Act
(UMRA) calls on all federal agencies to provide a statement supporting
the need to issue any regulation containing an unfunded federal mandate
and describing prior consultation with representatives of affected
state, local, and tribal governments.
Today's final rule is not subject to the requirements of sections
202, 204 and 205 of UMRA. In general, a rule is subject to the
requirements of these sections if it contains ``Federal mandates'' that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more in
any one year. Today's final rule does not result in $100 million or
more in expenditures for any of these categories. The aggregate
annualized social cost for today's rule is estimated at $22.6 million.
V. 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.''
Under Executive Order 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the regulation.
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in the Order. The rule focuses on requirements for
facilities burning hazardous waste, without affecting the relationships
between Federal and State governments. Thus, Executive Order 13132 does
not apply to this rule. Although section 6 of Executive Order 13132
does not apply to this rule, EPA did include various State
representatives on our Agency workgroup. These representatives
participated in the development of this rule.
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments (59 FR 22951, November 9, 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.'' Our Agency workgroup for this rule included
Tribal representation. We have determined that this final rule does not
have tribal implications, as specified in the Order. No Tribal
governments are known to own or operate hazardous waste combustors
subject to the requirements of this final rule. Furthermore, this rule
focuses on requirements for all regulated sources without affecting the
relationships between tribal governments in its implementation, and
applies to all regulated sources, without distinction of the
surrounding populations affected. Thus, Executive Order 13175 does not
apply to this rule.
VII. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
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 E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. Today's
final rule is not subject to the Executive Order because it is not
economically significant as defined under point one of the Order, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
VIII. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001)). This rule,
as finalized, will not seriously disrupt energy supply, distribution
patterns, prices, imports or exports. Furthermore, this rule is not an
economically significant action under Executive Order 12866.
[[Page 59539]]
IX. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking involves environmental monitoring or measurement.
Both Performance Based Measurement System (PBMS) and specific
measurement methods are finalized under this rule. The PBMS approach is
intended to be more flexible and cost-effective for the regulated
community; it is also intended to encourage innovation in analytical
technology and improved data quality. Where allowed, EPA is not
precluding the use of any method, whether it constitutes a voluntary
consensus standard or not, as long as it meets the performance criteria
specified.
X. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations' (February
11, 1994) requires us to complete an analysis of today's rule with
regard to equity considerations. The Order is designed to address the
environmental and human health conditions of minority and low-income
populations. This section briefly discusses potential impacts (direct
or disproportional) today's rule may have in the area of environmental
justice.
We have recently analyzed demographic data from the U.S. Census,
and have previously examined data from two other reports: ``Race,
Ethnicity, and Poverty Status of the Populations Living Near Cement
Plants in the United States'' (EPA, August 1994) and ``Race, Ethnicity,
and Poverty Status of the Populations Living Near Hazardous Waste
Incinerators in the United States'' (EPA, October 1994). These reports
examine the number of low-income and minority individuals living near a
relatively large sample of cement kilns and hazardous waste
incinerators and provide county, state, and national population
percentages for various sub-populations. The demographic data in these
reports provide several important findings when examined in conjunction
with the risk reductions projected from today's rule.
We find that combustion facilities, in general, are not located in
areas with disproportionately high minority and low-income populations.
However, there is evidence that hazardous waste burning cement kilns
are somewhat more likely to be located in areas that have relatively
higher low-income populations. Furthermore, there are a small number of
commercial hazardous waste incinerators located in highly urbanized
areas where there is a disproportionately high concentration of
minorities and low-income populations within one and five mile radii.
The reduced emissions at these facilities due to today's rule could
represent meaningful environmental and health improvements for these
populations. Overall, today's rule should not result in any adverse or
disproportional health or safety effects on minority or low-income
populations. Any impacts on these populations are likely to be positive
due to the reduction in emissions from combustion facilities near
minority and low-income population groups. The Assessment document
available in the RCRA docket established for today's rule discusses our
Environmental Justice analysis.
XI. Congressional Review
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Prior to publication of the final rule in
the Federal Register, we will submit all necessary information to the
U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. Under the CRA, a major rule cannot take
effect until 60 days after it is published in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Incorporation by reference, Reporting and recordkeeping
requirements.
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 264
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements.
40 CFR Part 266
Environmental protection, Energy, Hazardous waste, Recycling,
Reporting and recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 271
Administrative practice and procedure, Hazardous materials
transportation, Hazardous waste, Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: September 14, 2005.
Stephen L. Johnson,
Administrator.
? For the reasons set out in the preamble, title 40, chapter I, of the
Code of Federal Regulations is amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
? 1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2,
[[Page 59540]]
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4,
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
? 2. Section 9.1 is amended in the table under center heading ``National
Emission Standards for Hazardous Air Pollutants for Source Categories''
by adding entry ``63.1200-63.1221'' in numerical order to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB control No.
------------------------------------------------------------------------
* * * * * * *
------------------------------------
National Emission Standards for Hazardous Air Pollutants for Source
Categories \3\
------------------------------------------------------------------------
* * * * * * *
63.1200-63.1221.................... 2050-0171
------------------------------------------------------------------------
\3\ The ICRs referenced in this section of the table encompass the
applicable general provisions contained in 40 CFR part 63, subpart A,
which are not independent information collection requirements.
* * * * *
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
? 1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
? 2. Section 63.14 is amended by:
? a. Removing paragraphs (i)(1) and (i)(2).
0
b. Redesignating paragraph (i)(3) as (i)(1).
? c. Adding and reserving new paragraph (i)(2).
? d. Revising paragraph (k).
The revisions and additions read as follows:
Sec. 63.14 Incorporations by reference.
* * * * *
(i) * * *
(2) [Reserved]
* * * * *
(k) The following materials are available for purchase from the
National Technical Information Service (NTIS), 5285 Port Royal Road,
Springfield, VA 22161, (703) 605-6000 or (800) 553-6847; or for
purchase from the Superintendent of Documents, U.S. Government Printing
Office, Washington, DC 20402, (202) 512-1800:
(1) The following methods as published in the test methods
compendium known as ``Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods,'' EPA Publication SW-846, Third Edition. A
suffix of ``A'' in the method number indicates revision one (the method
has been revised once). A suffix of ``B'' in the method number
indicates revision two (the method has been revised twice).
(i) Method 0023A, ``Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary
Sources,'' dated December 1996 and in Update III, IBR approved for
Sec. 63.1208(b)(1) of Subpart EEE of this part.
(ii) Method 9071B, ``n-Hexane Extractable Material (HEM) for
Sludge, Sediment, and Solid Samples,'' dated April 1998 and in Update
IIIA, IBR approved for Sec. 63.7824(e) of Subpart FFFFF of this part.
(iii) Method 9095A, ``Paint Filter Liquids Test,'' dated December
1996 and in Update III, IBR approved for Sec. Sec. 63.7700(b) and
63.7765 of Subpart EEEEE of this part.
(2) [Reserved]
? 3. Section 63.1200 is amended by:
? a. Revising the introductory text.
? b. Revising paragraph (a)(2).
? c. Adding entry (4) in Table 1 in paragraph (b).
The revisions and additions read as follows:
Sec. 63.1200 Who is subject to these regulations?
The provisions of this subpart apply to all hazardous waste
combustors: hazardous waste incinerators, hazardous waste cement kilns,
hazardous waste lightweight aggregate kilns, hazardous waste solid fuel
boilers, hazardous waste liquid fuel boilers, and hazardous waste
hydrochloric acid production furnaces. Hazardous waste combustors are
also subject to applicable requirements under parts 260 through 270 of
this chapter.
(a) * * *
(2) Both area sources and major sources subject to this subpart,
but not previously subject to title V, are immediately subject to the
requirement to apply for and obtain a title V permit in all States, and
in areas covered by part 71 of this chapter.
(b) * * *
Table 1 to Sec. 63.1200.--Hazardous Waste Combustors Exempt From
Subpart EEE
------------------------------------------------------------------------
If And If Then
------------------------------------------------------------------------
* * * * * * *
(4) You meet the definition of ................. You are not subject
a small quantity burner under to the requirements
Sec. 266.108 of this of this subpart
chapter (Subpart EEE).
------------------------------------------------------------------------
* * * * *
? 4. Section 63.1201 is amended in paragraph (a) by revising the
definitions of ``Hazardous waste combustor'', ``New source'', and
``TEQ'', and adding definitions for ``Btu'', ``Hazardous waste
hydrochloric acid production furnace'', ``Hazardous waste liquid fuel
boiler'', ``Hazardous waste solid fuel boiler'', and ``System removal
efficiency'' in alphabetical order to read as follows:
[[Page 59541]]
Sec. 63.1201 Definitions and acronyms used in this subpart.
(a) * * *
Btu means British Thermal Units.
* * * * *
Hazardous waste combustor means a hazardous waste incinerator,
hazardous waste burning cement kiln, hazardous waste burning
lightweight aggregate kiln, hazardous waste liquid fuel boiler,
hazardous waste solid fuel boiler, or hazardous waste hydrochloric acid
production furnace.
* * * * *
Hazardous waste hydrochloric acid production furnace and Hazardous
Waste HCl production furnace mean a halogen acid furnace defined under
Sec. 260.10 of this chapter that produces aqueous hydrochloric acid
(HCl) product and that burns hazardous waste at any time.
* * * * *
Hazardous waste liquid fuel boiler means a boiler defined under
Sec. 260.10 of this chapter that does not burn solid fuels and that
burns hazardous waste at any time. Liquid fuel boiler includes boilers
that only burn gaseous fuel.
* * * * *
Hazardous waste solid fuel boiler means a boiler defined under
Sec. 260.10 of this chapter that burns a solid fuel and that burns
hazardous waste at any time.
* * * * *
New source means any affected source the construction or
reconstruction of which is commenced after the dates specified under
Sec. Sec. 63.1206(a)(1)(i)(B), (a)(1)(ii)(B), and (a)(2)(ii).
* * * * *
System removal efficiency means [1 - Emission Rate (mass/time) /
Feedrate (mass/time)]
X 100.
* * * * *
TEQ means the international method of expressing toxicity
equivalents for dioxins and furans as defined in U.S. EPA, Interim
Procedures for Estimating Risks Associated with Exposures to Mixtures
of Chlorinated Dibenzo-p-dioxins and -dibenzofurans (CDDs and CDFs) and
1989 Update, March 1989.
* * * * *
? 5. Section 63.1203 is amended by:
? a. Revising an undesignated center heading above the section heading.
? b. Revising the section heading.
? c. Revising paragraph (c)(3)(2).
The revisions and additions read as follows:
Interim Emissions Standards and Operating Limits For Incinerators,
Cement Kilns, and Lightweight Aggregate Kilns
Sec. 63.1203 What are the standards for hazardous waste incinerators
that are effective until compliance with the standards under Sec. 63.1219?
* * * * *
(c) * * *
(3) * * *
(ii) You must specify one or more POHCs that are representative of
the most difficult to destroy organic compounds in your hazardous waste
feedstream. You must base this specification on the degree of
difficulty of incineration of the organic constituents in the hazardous
waste and on their concentration or mass in the hazardous waste feed,
considering the results of hazardous waste analyses or other data and
information.
* * * * *
? 6. The section heading to Sec. 63.1204 and paragraph (c)(3)(ii) are
revised to read as follows:
Sec. 63.1204 What are the standards for hazardous waste burning
cement kilns that are effective until compliance with the standards
under Sec. 63.1220?
* * * * *
(c) * * *
(3) * * *
(ii) You must specify one or more POHCs that are representative of
the most difficult to destroy organic compounds in your hazardous waste
feedstream. You must base this specification on the degree of
difficulty of incineration of the organic constituents in the hazardous
waste and on their concentration or mass in the hazardous waste feed,
considering the results of hazardous waste analyses or other data and
information.
* * * * *
? 7. The section heading to Sec. 63.1205 and paragraph (c)(3)(ii) are
revised to read as follows:
Sec. 63.1205 What are the standards for hazardous waste burning
lightweight aggregate kilns that are effective until compliance with
the standards under Sec. 63.1221?
* * * * *
(c) * * *
(3) * * *
(ii) You must specify one or more POHCs that are representative of
the most difficult to destroy organic compounds in your hazardous waste
feedstream. You must base this specification on the degree of
difficulty of incineration of the organic constituents in the hazardous
waste and on their concentration or mass in the hazardous waste feed,
considering the results of hazardous waste analyses or other data and
information.
* * * * *
? 8. Section 63.1206 is amended by:
? a. Revising paragraph (a).
? b. Revising paragraphs (b)(1)(ii), (b)(6) introductory text,
(b)(7)(i)(A), (b)(7)(ii), (b)(9)(i) introductory text, (b)(9)(i)(A),
(b)(9)(iv)(A), (b)(9)(vi), (b)(9)(vii) introductory text,
(b)(9)(viii)(D), (b)(9)(ix)(D), (b)(10)(i) introductory text,
(b)(10)(i)(A), (b)(10)(vi), (b)(10)(vii) introductory text,
(b)(10)(viii)(D), (b)(10)(ix)(D), (b)(11), (b)(13)(i) introductory
text, (b)(13)(ii), and (b)(14).
? c. Adding paragraph (b)(16).
? d. Revising paragraphs (c)(1)(i) introductory text, (c)(3)(iv),
(c)(6)(iii)(B) introductory text, (c)(6)(iv) introductory text, and (c)(7).
? e. Adding paragraphs (c)(8) and (c)(9).
The revisions and additions read as follows:
Sec. 63.1206 When and how must you comply with the standards and
operating requirements?
(a) Compliance dates. (1) Compliance dates for incinerators, cement
kilns, and lightweight aggregate kilns that burn hazardous waste. (i)
Compliance date for standards under Sec. Sec. 63.1203, 63.1204, and
63.1205. (A) Compliance dates for existing sources. You must comply
with the emission standards under Sec. Sec. 63.1203, 63.1204, and
63.1205 and the other requirements of this subpart no later than the
compliance date, September 30, 2003, unless the Administrator grants
you an extension of time under Sec. 63.6(i) or Sec. 63.1213.
(B) New or reconstructed sources. (1) If you commenced construction
or reconstruction of your hazardous waste combustor after April 19,
1996, you must comply with the emission standards under Sec. Sec.
63.1203, 63.1204, and 63.1205 and the other requirements of this
subpart by the later of September 30, 1999 or the date the source
starts operations, except as provided by paragraph (a)(1)(i)(B)(2) of
this section. The costs of retrofitting and replacement of equipment
that is installed specifically to comply with this subpart, between
April 19, 1996 and a source's compliance date, are not considered to be
reconstruction costs.
(2) For a standard under Sec. Sec. 63.1203, 63.1204, and 63.1205
that is more stringent than the standard proposed on April 19, 1996,
you may achieve compliance no later than September 30, 2003 if you
comply with the standard proposed on April 19, 1996 after September 30,
1999. This exception does not apply, however, to new or
[[Page 59542]]
reconstructed area source hazardous waste combustors that become major
sources after September 30, 1999. As provided by Sec. 63.6(b)(7), such
sources must comply with the standards under Sec. Sec. 63.1203,
63.1204, and 63.1205 at startup.
(ii) Compliance date for standards under Sec. Sec. 63.1219,
63.1220, and 63.1221. (A) Compliance dates for existing sources. You
must comply with the emission standards under Sec. Sec. 63.1219,
63.1220, and 63.1221 and the other requirements of this subpart no
later than the compliance date, October 14, 2008, unless the
Administrator grants you an extension of time under Sec. 63.6(i) or
Sec. 63.1213.
(B) New or reconstructed sources. (1) If you commenced construction
or reconstruction of your hazardous waste combustor after April 20,
2004, you must comply with the new source emission standards under
Sec. Sec. 63.1219, 63.1220, and 63.1221 and the other requirements of
this subpart by the later of October 12, 2005 or the date the source
starts operations, except as provided by paragraph (a)(1)(ii)(B)(2) of
this section. The costs of retrofitting and replacement of equipment
that is installed specifically to comply with this subpart, between
April 20, 2004, and a source's compliance date, are not considered to
be reconstruction costs.
(2) For a standard under Sec. Sec. 63.1219, 63.1220, and 63.1221
that is more stringent than the standard proposed on April 20, 2004,
you may achieve compliance no later than October 14, 2008, if you
comply with the standard proposed on April 20, 2004, after October 12,
2005. This exception does not apply, however, to new or reconstructed
area source hazardous waste combustors that become major sources after
October 14, 2008. As provided by Sec. 63.6(b)(7), such sources must
comply with the standards under Sec. Sec. 63.1219, 63.1220, and
63.1221 at startup.
(2) Compliance dates for solid fuel boilers, liquid fuel boilers,
and hydrogen chloride production furnaces that burn hazardous waste for
standards under Sec. Sec. 63.1216, 63.1217, and 63.1218. (i)
Compliance date for existing sources. You must comply with the
standards of this subpart no later than the compliance date, October
14, 2008, unless the Administrator grants you an extension of time
under Sec. 63.6(i) or Sec. 63.1213.
(ii) New or reconstructed sources. (A) If you commenced
construction or reconstruction of your hazardous waste combustor after
October 12, 2005, you must comply with the new source emission
standards of this subpart by the later of October 12, 2005, or the date
the source starts operations, except as provided by paragraph
(a)(2)(ii)(B) of this section. The costs of retrofitting and
replacement of equipment that is installed specifically to comply with
this subpart, between April 20, 2004, and a source's compliance date,
are not considered to be reconstruction costs.
(B) For a standard in the subpart that is more stringent than the
standard proposed on April 20, 2004, you may achieve compliance no
later than October 14, 2008, if you comply with the standard proposed
on April 20, 2004, after October 12, 2005. This exception does not
apply, however, to new or reconstructed area source hazardous waste
combustors that become major sources after October 14, 2008. As
provided by Sec. 63.6(b)(7), such sources must comply with this
subpart at startup.
(3) Early compliance. If you choose to comply with the emission
standards of this subpart prior to the dates specified in paragraphs
(a)(1) and (a)(2) of this section, your compliance date is the earlier
of the date you postmark the Notification of Compliance under Sec.
63.1207(j)(1) or the dates specified in paragraphs (a)(1) and (a)(2) of
this section.
(b) * * *
(1) * * *
(ii) When hazardous waste is not in the combustion chamber (i.e.,
the hazardous waste feed to the combustor has been cut off for a period
of time not less than the hazardous waste residence time) and you have
documented in the operating record that you are complying with all
otherwise applicable requirements and standards promulgated under
authority of sections 112 (e.g., 40 CFR part 63, subparts LLL, DDDDD,
and NNNNN) or 129 of the Clean Air Act in lieu of the emission
standards under Sec. Sec. 63.1203, 63.1204, 63.1205, 63.1215, 63.1216,
63.1217, 63.1218, 63.1219, 63.1220, and 63.1221; the monitoring and
compliance standards of this section and Sec. Sec. 63.1207 through
63.1209, except the modes of operation requirements of Sec.
63.1209(q); and the notification, reporting, and recordkeeping
requirements of Sec. Sec. 63.1210 through 63.1212.
* * * * *
(6) Compliance with the carbon monoxide and hydrocarbon emission
standards. This paragraph applies to sources that elect to comply with
the carbon monoxide and hydrocarbon emissions standards of this subpart
by documenting continuous compliance with the carbon monoxide standard
using a continuous emissions monitoring system and documenting
compliance with the hydrocarbon standard during the destruction and
removal efficiency (DRE) performance test or its equivalent.
* * * * *
(7) * * * (i) * * *
(A) You must document compliance with the Destruction and Removal
Efficiency (DRE) standard under this subpart only once provided that
you do not modify the source after the DRE test in a manner that could
affect the ability of the source to achieve the DRE standard.
* * * * *
(ii) Sources that feed hazardous waste at locations other than the
normal flame zone. (A) Except as provided by paragraph (b)(7)(ii)(B) of
this section, if you feed hazardous waste at a location in the
combustion system other than the normal flame zone, then you must
demonstrate compliance with the DRE standard during each comprehensive
performance test;
(B)(1) A cement kiln that feeds hazardous waste at a location other
than the normal flame zone need only demonstrate compliance with the
DRE standard during three consecutive comprehensive performance tests
provided that:
(i) All three tests achieve the DRE standard in this subpart; and
(ii) The design, operation, and maintenance features of each of the
three tests are similar;
(iii) The data in lieu restriction of Sec. 63.1207(c)(2)(iv) does
not apply when complying with the provisions of paragraph (b)(7)(ii)(B)
of this section;
(2) If at any time you change your design, operation, and
maintenance features in a manner that could reasonably be expected to
affect your ability to meet the DRE standard, then you must comply with
the requirements of paragraph (b)(7)(ii)(A) of this section.
* * * * *
(9) * * * (i) You may petition the Administrator to request
alternative standards to the mercury or hydrogen chloride/chlorine gas
emission standards of this subpart, to the semivolatile metals emission
standards under Sec. Sec. 63.1205, 63.1221(a)(3)(ii), or
63.1221(b)(3)(ii), or to the low volatile metals emissions standards
under Sec. Sec. 63.1205, 63.1221(a)(4)(ii), or 63.1221(b)(4)(ii) if:
(A) You cannot achieve one or more of these standards while using
maximum achievable control technology (MACT) because of raw material
contributions to emissions of mercury, semivolatile metals, low
[[Page 59543]]
volatile metals, or hydrogen chloride/chlorine gas; or
* * * * *
(iv) * * * (A) The alternative standard petition you submit under
paragraph (b)(9)(i)(A) of this section must include data or information
documenting that raw material contributions to emissions prevent you
from complying with the emission standard even though the source is
using MACT, as defined under paragraphs (b)(9)(viii) and (ix) of this
section, for the standard for which you are seeking relief.
* * * * *
(vi) You must include data or information with semivolatile metals,
low volatile metals, and hydrogen chloride/chlorine gas alternative
standard petitions that you submit under paragraph (b)(9)(i)(A) of this
section documenting that semivolatile metals, low volatile metals, and
hydrogen chloride/chlorine gas emissions attributable to the hazardous
waste only will not exceed the emission standards of this subpart.
(vii) You must not operate pursuant to your recommended alternative
standards in lieu of emission standards specified in this subpart:
* * * * *
(viii) * * *
(D) For hydrogen chloride/chlorine gas, a hazardous waste chlorine
feedrate corresponding to an MTEC of 2,000,000 [mu]g/dscm or less, and
use of an air pollution control device with a hydrogen chloride/
chlorine gas removal efficiency of 85 percent or greater.
(ix) * * *
(D) For hydrogen chloride/chlorine gas, a hazardous waste chlorine
feedrate corresponding to an MTEC of 14,000,000 [mu]g/dscm or less, and
use of an air pollution control device with a hydrogen chloride/
chlorine gas removal efficiency of 99.6 percent or greater.
(10) * * * (i) You may petition the Administrator to request
alternative standards to the mercury or hydrogen chloride/chlorine gas
emission standards of this subpart, to the semivolatile metals emission
standards under Sec. Sec. 63.1204, 63.1220(a)(3)(ii), or
63.1220(b)(3)(ii), or to the low volatile metals emissions standards
under Sec. Sec. 63.1204, 63.1220(a)(4)(ii), or 63.1220(b)(4)(ii) if:
(A) You cannot achieve one or more of these standards while using
maximum achievable control technology (MACT) because of raw material
contributions to emissions of mercury, semivolatile metals, low
volatile metals, or hydrogen chloride/chlorine gas; or
* * * * *
(vi) You must include data or information with semivolatile metals,
low volatile metals, and hydrogen chloride/chlorine gas alternative
standard petitions that you submit under paragraph (b)(10)(i)(A) of
this section documenting that emissions of the regulated metals and
hydrogen chloride/chlorine gas attributable to the hazardous waste only
will not exceed the emission standards in this subpart.
(vii) You must not operate pursuant to your recommended alternative
standards in lieu of emission standards specified in this subpart:
* * * * *
(viii) * * *
(D) For hydrogen chloride/chlorine gas, a hazardous waste chlorine
feedrate corresponding to an MTEC of 720,000 [mu]g/dscm or less.
(ix) * * *
(D) For hydrogen chloride/chlorine gas, a hazardous waste chlorine
feedrate corresponding to an MTEC of 420,000 [mu]g/dscm or less.
(11) Calculation of hazardous waste residence time. You must
calculate the hazardous waste residence time and include the
calculation in the performance test plan under Sec. 63.1207(f) and the
operating record. You must also provide the hazardous waste residence
time in the Documentation of Compliance under Sec. 63.1211(c) and the
Notification of Compliance under Sec. Sec. 63.1207(j) and 63.1210(d).
* * * * *
(13) * * *
(i) Cement kilns that feed hazardous waste at a location other than
the end where products are normally discharged and where fuels are
normally fired must comply with the carbon monoxide and hydrocarbon
standards of this subpart as follows:
* * * * *
(ii) Lightweight aggregate kilns that feed hazardous waste at a
location other than the end where products are normally discharged and
where fuels are normally fired must comply with the hydrocarbon
standards of this subpart as follows:
(A) Existing sources must comply with the 20 parts per million by
volume hydrocarbon standard of this subpart;
(B) New sources must comply with the 20 parts per million by volume
hydrocarbon standard of this subpart.
(14) Alternative to the particulate matter standard for
incinerators. (i). General. In lieu of complying with the particulate
matter standards under Sec. 63.1203, you may elect to comply with the
following alternative metal emission control requirements:
(ii) Alternative metal emission control requirements for existing
incinerators. (A) You must not discharge or cause combustion gases to
be emitted into the atmosphere that contain cadmium, lead, and selenium
in excess of 240 [mu]g/dscm, combined emissions, corrected to 7 percent
oxygen; and,
(B) You must not discharge or cause combustion gases to be emitted
into the atmosphere that contain antimony, arsenic, beryllium,
chromium, cobalt, manganese, and nickel in excess of 97 [mu]g/dscm,
combined emissions, corrected to 7 percent oxygen.
(iii) Alternative metal emission control requirements for new
incinerators. (A) You must not discharge or cause combustion gases to
be emitted into the atmosphere that contain cadmium, lead, and selenium
in excess of 24 [mu]g/dscm, combined emissions, corrected to 7 percent
oxygen; and,
(B) You must not discharge or cause combustion gases to be emitted
into the atmosphere that contain antimony, arsenic, beryllium,
chromium, cobalt, manganese, and nickel in excess of 97 [mu]g/dscm,
combined emissions, corrected to 7 percent oxygen.
(iv) Operating limits. Semivolatile and low volatile metal
operating parameter limits must be established to ensure compliance
with the alternative emission limitations described in paragraphs
(e)(2) and (e)(3) of this section pursuant to Sec. 63.1209(n), except
that semivolatile metal feedrate limits apply to lead, cadmium, and
selenium, combined, and low volatile metal feedrate limits apply to
arsenic, beryllium, chromium, antimony, cobalt, manganese, and nickel,
combined.
* * * * *
(16) Compliance with subcategory standards for liquid fuel boilers.
You must comply with the mercury, semivolatile, low volatile metal, and
total chlorine standards for liquid fuel boilers under Sec. 63.1217 as
follows:
(i) You must determine the as-fired heating value of each batch of
hazardous waste fired by each firing system of the boiler so that you
know the mass-weighted heating value of the hazardous waste fired at
all times.
(ii) If the as-fired heating value of the hazardous waste is 10,000
Btu per pound or greater, you are subject to the thermal emission
concentration standards (lb/million Btu) under Sec. 63.1217.
(iii) If the as-fired heating value of the hazardous waste is less
than 10,000 Btu/lb, you are subject to the mass or volume emission
concentration
[[Page 59544]]
standards ([mu]g/dscm or ppmv) under Sec. 63.1217.
(iv) If the as-fired heating value of hazardous wastes varies above
and below 10,000 Btu/lb over time, you are subject to the thermal
concentration standards when the heating value is 10,000 Btu/lb or
greater and the mass concentration standards when the heating value is
less than 10,000 Btu/lb. You may elect to comply at all times with the
more stringent operating requirements that ensure compliance with both
the thermal emission concentration standards and the mass or volume
emission concentration standards.
* * * * *
(c) * * * (1) * * * (i) You must operate only under the operating
requirements specified in the Documentation of Compliance under Sec.
63.1211(c) or the Notification of Compliance under Sec. Sec.
63.1207(j) and 63.1210(d), except:
* * * * *
(3) * * *
(iv) Failure of the AWFCO system. If the AWFCO system fails to
automatically and immediately cutoff the flow of hazardous waste upon
exceedance of a parameter required to be interlocked with the AWFCO
system under paragraph (c)(3)(i) of this section, you have failed to
comply with the AWFCO requirements of paragraph (c)(3) of this section.
If an equipment or other failure prevents immediate and automatic
cutoff of the hazardous waste feed, however, you must cease feeding
hazardous waste as quickly as possible.
* * * * *
(6) * * *
(iii) * * *
(B) Be trained under the requirements of, and certified under, one
of the following American Society of Mechanical Engineers (ASME)
standards: QHO-1-1994, QHO-1a-1996, or QHO-1-2004 (Standard for the
Qualification and Certification of Hazardous Waste Incinerator
Operators). If you elect to use the ASME program:
* * * * *
(iv) Control room operators of cement kilns, lightweight aggregate
kilns, solid fuel boilers, liquid fuel boilers, and hydrochloric acid
production furnaces must be trained and certified under:
* * * * *
(7) Operation and maintenance plan--(i) You must prepare and at all
times operate according to an operation and maintenance plan that
describes in detail procedures for operation, inspection, maintenance,
and corrective measures for all components of the combustor, including
associated pollution control equipment, that could affect emissions of
regulated hazardous air pollutants.
(ii) The plan must prescribe how you will operate and maintain the
combustor in a manner consistent with good air pollution control
practices for minimizing emissions at least to the levels achieved
during the comprehensive performance test.
(iii) This plan ensures compliance with the operation and
maintenance requirements of Sec. 63.6(e) and minimizes emissions of
pollutants, automatic waste feed cutoffs, and malfunctions.
(iv) You must record the plan in the operating record.
(8) Bag leak detection system requirements. (i) If your combustor
is equipped with a baghouse (fabric filter), you must continuously
operate either:
(A) A bag leak detection system that meets the specifications and
requirements of paragraph (c)(8)(ii) of this section and you must
comply with the corrective measures and notification requirements of
paragraphs (c)(8)(iii) and (iv) of this section; or
(B) A particulate matter detection system under paragraph (c)(9) of
this section.
(ii) Bag leak detection system specification and requirements. (A)
The bag leak detection system must be certified by the manufacturer to
be capable of continuously detecting and recording particulate matter
emissions at concentrations of 1.0 milligrams per actual cubic meter
unless you demonstrate, under Sec. 63.1209(g)(1), that a higher
detection limit would routinely detect particulate matter loadings
during normal operations;
(B) The bag leak detection system shall provide output of relative
or absolute particulate matter loadings;
(C) The bag leak detection system shall be equipped with an alarm
system that will sound an audible alarm when an increase in relative
particulate loadings is detected over a preset level;
(D) The bag leak detection system shall be installed and operated
in a manner consistent with available written guidance from the U.S.
Environmental Protection Agency or, in the absence of such written
guidance, the manufacturer's written specifications and recommendations
for installation, operation, and adjustment of the system;
(E) The initial adjustment of the system shall, at a minimum,
consist of establishing the baseline output by adjusting the
sensitivity (range) and the averaging period of the device, and
establishing the alarm set points and the alarm delay time;
(F) Following initial adjustment, you must not adjust the
sensitivity or range, averaging period, alarm set points, or alarm
delay time, except as detailed in the operation and maintenance plan
required under paragraph (c)(7) of this section. You must not increase
the sensitivity by more than 100 percent or decrease the sensitivity by
more than 50 percent over a 365 day period unless such adjustment
follows a complete baghouse inspection which demonstrates the baghouse
is in good operating condition;
(G) For negative pressure or induced air baghouses, and positive
pressure baghouses that are discharged to the atmosphere through a
stack, the bag leak detector shall be installed downstream of the
baghouse and upstream of any wet acid gas scrubber; and
(H) Where multiple detectors are required, the system's
instrumentation and alarm system may be shared among the detectors.
(iii) Bag leak detection system corrective measures requirements.
The operating and maintenance plan required by paragraph (c)(7) of this
section must include a corrective measures plan that specifies the
procedures you will follow in the case of a bag leak detection system
alarm. The corrective measures plan must include, at a minimum, the
procedures used to determine and record the time and cause of the alarm
as well as the corrective measures taken to correct the control device
malfunction or minimize emissions as specified below. Failure to
initiate the corrective measures required by this paragraph is failure
to ensure compliance with the emission standards in this subpart.
(A) You must initiate the procedures used to determine the cause of
the alarm within 30 minutes of the time the alarm first sounds; and
(B) You must alleviate the cause of the alarm by taking the
necessary corrective measure(s) which may include, but are not to be
limited to, the following:
(1) Inspecting the baghouse for air leaks, torn or broken filter
elements, or any other malfunction that may cause an increase in
emissions;
(2) Sealing off defective bags or filter media;
(3) Replacing defective bags or filter media, or otherwise
repairing the control device;
(4) Sealing off a defective baghouse compartment;
(5) Cleaning the bag leak detection system probe, or otherwise
repairing the bag leak detection system; or
(6) Shutting down the combustor.
(iv) Excessive exceedances notification. If you operate the
[[Page 59545]]
combustor when the detector response exceeds the alarm set-point more
than 5 percent of the time during any 6-month block time period, you
must submit a notification to the Administrator within 30 days of the
end of the 6-month block time period that describes the causes of the
exceedances and the revisions to the design, operation, or maintenance
of the combustor or baghouse you are taking to minimize exceedances. To
document compliance with this requirement:
(A) You must keep records of the date, time, and duration of each
alarm, the time corrective action was initiated and completed, and a
brief description of the cause of the alarm and the corrective action taken;
(B) You must record the percent of the operating time during each
6-month period that the alarm sounds;
(C) In calculating the operating time percentage, if inspection of
the fabric filter demonstrates that no corrective action is required,
no alarm time is counted; and
(D) If corrective action is required, each alarm shall be counted
as a minimum of 1 hour.
(9) Particulate matter detection system requirements for
electrostatic precipitators and ionizing wet scrubbers. If your
combustor is equipped with an electrostatic precipitator or ionizing
wet scrubber, and you elect not to establish under Sec.
63.1209(m)(1)(iv) site-specific control device operating parameter
limits that are linked to the automatic waste feed cutoff system under
paragraph (c)(3) of this section, you must continuously operate a
particulate matter detection system that meets the specifications and
requirements of paragraph (c)(9)(i) through (iii) of this section and
you must comply with the corrective measures and notification
requirements of paragraphs (c)(9)(iv) through (v) of this section.
(i) Particulate matter detection system requirements.--(A) The
particulate matter detection system must be certified by the
manufacturer to be capable of continuously detecting and recording
particulate matter emissions at concentrations of 1.0 milligrams per
actual cubic meter unless you demonstrate, under Sec. 63.1209(g)(1),
that a higher detection limit would routinely detect particulate matter
loadings during normal operations;
(B) The particulate matter detector shall provide output of
relative or absolute particulate matter loadings;
(C) The particulate matter detection system shall be equipped with
an alarm system that will sound an audible alarm when an increase in
relative or absolute particulate loadings is detected over the set-point
(D) You must install, operate, and maintain the particulate matter
detection system in a manner consistent with the provisions of
paragraph (c)(9) of this section and available written guidance from
the U.S. Environmental Protection Agency or, in the absence of such
written guidance, the manufacturer's written specifications and
recommendations for installation, operation, maintenance and quality
assurance of the system;
(E) You must include procedures for installation, operation,
maintenance, and quality assurance of the particulate matter detection
system in the site-specific continuous monitoring system test plan
required under Sec. 63.8(e)(3) of this chapter.
(F) Where multiple detectors are required to monitor multiple
control devices, the system's instrumentation and alarm system may be
shared among the detectors.
(G) You must establish the alarm set-point as provided by either
paragraph (c)(9)(ii) or paragraph (c)(9)(iii) of this section.
(ii) Establishing the alarm set-point without extrapolation. (A)
The alarm set-point is the average of the test run averages of the
detector response achieved during the comprehensive performance test
demonstrating compliance with the particulate matter emission standard.
(B) During the comprehensive performance test, you may simulate
emission concentrations at the upper end of the range of normal
operations by means including feeding high levels of ash and detuning
the emission control equipment.
(C) You must comply with the alarm set-point on a 6-hour rolling
average, updated each hour with a one-hour block average that is the
average of the detector responses over each 15-minute block;
(iii) Establishing the alarm set-point with extrapolation. You may
extrapolate the average of the test run averages of the detector
response achieved during the comprehensive performance test as provided
by paragraph (c)(9)(iii)(A) of this section to establish an alarm level
after you approximate the correlation of the detector response to
particulate matter concentration as prescribed by paragraph
(c)(9)(iii)(B) of this section. You must comply with the extrapolated
alarm set-point on a 6-hour rolling average, updated each hour with a
one-hour block average that is the average of the detector responses
over each 15-minute block.
(A) You may extrapolate the detector response up to a particulate
matter concentration that is 50% of the particulate matter emission
standard or 125% of the highest particulate matter concentration used
to develop the correlation under paragraph (c)(9)(iii)(B) of this
section, whichever is greater. The extrapolated emission concentration
must not exceed the particulate matter emission standard.
(B) To establish an approximate correlation of the detector
response to particulate matter emission concentrations, you should use
as guidance Performance Specification-11 for PM CEMS (40 CFR Part 60,
Appendix B), except that you need only conduct 5 runs to establish the
initial correlation under Section 8.6 of Performance Specification 11.
(C) For quality assurance, you should use as guidance Procedure 2
of Appendix F to Part 60 of this chapter and the detector
manufacturer's recommended procedures for periodic quality assurance
checks and tests, except that:
(1) You must conduct annual Relative Response Audits as prescribed
by Procedure 2 of Appendix F to Part 60 of this chapter (Section 10.3(6));
(2) You need only conduct Relative Response Audits on a 3-year
interval after passing two sequential annual Relative Response Audits.
(D) An exceedance of the particulate matter emission standard by a
particulate matter detection system for which particulate emission
concentrations have been approximately correlated with the detector
response under paragraph (c)(9)(iii) of this section is not evidence
that the standard has been exceeded. The approximate correlation is
used for compliance assurance to determine when corrective measures
must be taken rather than for compliance monitoring.
(iv) Particulate matter detection system corrective measures
requirements. The operating and maintenance plan required by paragraph
(c)(7) of this section must include a corrective measures plan that
specifies the procedures you will follow in the case of a particulate
matter detection system alarm. The corrective measures plan must
include, at a minimum, the procedures used to determine and record the
time and cause of the alarm as well as the corrective measures taken to
correct the control device malfunction or minimize emissions as
specified below. Failure to initiate the corrective measures required
by this paragraph is failure to ensure compliance with the emission
standards in this subpart.
[[Page 59546]]
(A) You must initiate the procedures used to determine the cause of
the alarm within 30 minutes of the time the alarm first sounds; and
(B) You must alleviate the cause of the alarm by taking the
necessary corrective measure(s) which may include shutting down the
combustor.
(v) Excessive exceedances notification. If you operate the
combustor when the detector response exceeds the alarm set-point more
than 5 percent of the time during any 6-month block time period, you
must submit a notification to the Administrator within 30 days of the
end of the 6-month block time period that describes the causes of the
exceedances and the revisions to the design, operation, or maintenance
of the combustor or emission control device you are taking to minimize
exceedances. To document compliance with this requirement:
(A) You must keep records of the date, time, and duration of each
alarm, the time corrective action was initiated and completed, and a
brief description of the cause of the alarm and the corrective action taken;
(B) You must record the percent of the operating time during each
6-month period that the alarm sounds;
(C) In calculating the operating time percentage, if inspection of
the emission control device demonstrates that no corrective action is
required, no alarm time is counted; and
(D) If corrective action is required, each alarm shall be counted
as a minimum of 1 hour.
? 9. Section 63.1207 is amended by:
? a. Revising paragraph (b)(1).
? b. Adding paragraph (b)(3).
? c. Revising paragraphs (c)(1) and (c)(2)(iii).
? d. Adding paragraph (c)(3).
? e. Revising paragraph (d)(4)(i).
? f. Revising paragraphs (e)(2) and (e)(3)(iv).
? g. Revising paragraphs (f)(1)(ii)(D), (f)(1)(x) introductory text,
(f)(1)(xiii), (f)(1)(xiv), (f)(1)(xvi), and (f)(1)(xxv).
? h. Adding paragraph (f)(1)(xv).
? i. Revising paragraph (h)(2)(i).
? j. Revising paragraph (j)(3).
? k. Revising paragraph (l)(1) introductory text.
? l. Revising paragraph (m)(2) introductory text.
The revisions and additions read as follows:
Sec. 63.1207 What are the performance testing requirements?
* * * * *
(b) * * *
(1) Comprehensive performance test. You must conduct comprehensive
performance tests to demonstrate compliance with the emission standards
provided by this subpart, establish limits for the operating parameters
provided by Sec. 63.1209, and demonstrate compliance with the
performance specifications for continuous monitoring systems.
* * * * *
(3) One-Time Dioxin/Furan Test for Sources Not Subject to a
Numerical Dioxin/Furan Standard. For solid fuel boilers and
hydrochloric acid production furnaces, for lightweight aggregate kilns
that are not subject to a numerical dioxin/furan emission standard
under Sec. 63.1221, and liquid fuel boilers that are not subject to a
numerical dioxin/furan emission standard under Sec. 63.1217, you must
conduct a one-time emission test for dioxin/furan under feed and
operating conditions that are most likely to reflect daily maximum
operating variability, similar to a dioxin/furan comprehensive
performance test.
(i) You must conduct the dioxin/furan emissions test no later than
the deadline for conducting the initial comprehensive performance test.
(ii) You may use dioxin/furan emissions data from previous testing
to meet this requirement, provided that:
(A) The testing was conducted under feed and operating conditions
that are most likely to reflect daily maximum operating variability,
similar to a dioxin/furan compliance test;
(B) You have not changed the design or operation of the source in a
manner that could significantly affect stack gas dioxin/furan emission
concentrations; and
(C) The data meet quality assurance objectives that may be
determined on a site-specific basis.
(iii) You may use dioxin/furan emissions data from a source to
represent emissions from another on-site source in lieu of testing
(i.e., data in lieu of testing) if the design and operation, including
hazardous waste feed and other feedstreams, of the sources are identical.
(iv) You must include the results of the one-time dioxin/furan
emissions test with the results of the initial comprehensive
performance test in the Notification of Compliance.
(v) You must repeat the dioxin/furan emissions test if you change
the design or operation of the source in a manner that may increase
dioxin/furan emissions.
(c) * * * (1) Test date. Except as provided by paragraphs (c)(2)
and (c)(3) of this section, you must commence the initial comprehensive
performance test not later than six months after the compliance date.
(2) * * * (iii) The data in lieu test age restriction provided in
paragraph (c)(2)(i)(A) of this section does not apply for the duration
of the interim standards (i.e., the standards published in the Federal
Register on February 13, 2002, 67 FR 6792). See 40 CFR parts 63, 264,
265, 266, 270, and 271 revised as of July 1, 2002. Paragraph
(c)(2)(i)(A) of this section does not apply until EPA promulgates
permanent replacement standards pursuant to the Settlement Agreement
noticed in the Federal Register on November 16, 2001 (66 FR 57715).
* * * * *
(3) For incinerators, cement kilns, and lightweight aggregate
kilns, you must commence the initial comprehensive performance test to
demonstrate compliance with the standards under Sec. Sec. 63.1219,
63.1220, and 63.1221 not later than 12 months after the compliance date.
(d) * * *
(4) * * * (i) Waiver of periodic comprehensive performance tests.
Except as provided in paragraph (c)(2) of this section, you must
conduct only an initial comprehensive performance test under the
interim standards (i.e., the standards published in the Federal
Register on February 13, 2002); all subsequent comprehensive
performance testing requirements are waived under the interim
standards. The provisions in the introductory text to paragraph (d) and
in paragraph (d)(1) of this section do not apply until EPA promulgates
permanent replacement standards pursuant to the Settlement Agreement
noticed in the Federal Register on November 16, 2001.
* * * * *
(e) * * *
(2) You must make your site-specific test plan and CMS performance
evaluation test plan available to the public for review no later than
60 calendar days before initiation of the test. You must issue a public
notice to all persons on your facility/public mailing list (developed
pursuant to 40 CFR 70.7(h), 71.11(d)(3)(i)(E) and 124.10(c)(1)(ix))
announcing the availability of the test plans and the location where
the test plans are available for review. The test plans must be
accessible to the public for 60 calendar days, beginning on the date
that you issue your public notice. The location must be unrestricted
and provide access to the public during reasonable hours and provide a
means for the public to obtain copies. The notification must include
the following information at a minimum:
[[Page 59547]]
(i) The name and telephone number of the source's contact person;
(ii) The name and telephone number of the regulatory agency's
contact person;
(iii) The location where the test plans and any necessary
supporting documentation can be reviewed and copied;
(iv) The time period for which the test plans will be available for
public review; and
(v) An expected time period for commencement and completion of the
performance test and CMS performance evaluation test.
(3) * * *
(iv) Public notice. At the same time that you submit your petition
to the Administrator, you must notify the public (e.g., distribute a
notice to the facility/public mailing list developed pursuant to 40 CFR
70.7(h), 71.11(d)(3)(i)(E) and 124.10(c)(1)(ix)) of your petition to
waive a performance test. The notification must include all of the
following information at a minimum:
(A) The name and telephone number of the source's contact person;
(B) The name and telephone number of the regulatory agency's
contact person;
(C) The date the source submitted its site-specific performance
test plan and CMS performance evaluation test plans; and
(D) The length of time requested for the waiver.
(f) * * *
(1) * * *
(ii) * * *
(D) The Administrator may approve on a case-by-case basis a
hazardous waste feedstream analysis for organic hazardous air
pollutants in lieu of the analysis required under paragraph
(f)(1)(ii)(A) of this section if the reduced analysis is sufficient to
ensure that the POHCs used to demonstrate compliance with the
applicable DRE standards of this subpart continue to be representative
of the most difficult to destroy organic compounds in your hazardous
waste feedstreams;
* * * * *
(x) If you are requesting to extrapolate metal feedrate limits from
comprehensive performance test levels under Sec. Sec. 63.1209(l)(1)(v)
or 63.1209(n)(2)(vii):
* * * * *
(xiii) For cement kilns with in-line raw mills, if you elect to use
the emissions averaging provision of this subpart, you must notify the
Administrator of your intent in the initial (and subsequent)
comprehensive performance test plan, and provide the information
required by the emission averaging provision;
(xiv) For preheater or preheater/precalciner cement kilns with dual
stacks, if you elect to use the emissions averaging provision of this
subpart, you must notify the Administrator of your intent in the
initial (and subsequent) comprehensive performance test plan, and
provide the information required by the emission averaging provision;
(xv) If you request to use Method 23 for dioxin/furan you must
provide the information required under Sec. 63.1208(b)(1)(i)(B);
(xvi) If you are not required to conduct performance testing to
document compliance with the mercury, semivolatile metals, low volatile
metals, or hydrogen chloride/chlorine gas emission standards under
paragraph (m) of this section, you must include with the comprehensive
performance test plan documentation of compliance with the provisions
of that section.
* * * * *
(xxv) If your source is equipped with a dry scrubber to control
hydrogen chloride and chlorine gas, you must document in the
comprehensive performance test plan key parameters that affect
adsorption, and the limits you establish for those parameters based on
the sorbent used during the performance test, if you elect not to
specify and use the brand and type of sorbent used during the
comprehensive performance test, as required by Sec.
63.1209(o)(4)(iii)(A); and
* * * * *
(h) * * *
(2) * * *
(i) Operations when stack emissions testing for dioxin/furan,
mercury, semivolatile metals, low volatile metals, particulate matter,
or hydrogen chloride/chlorine gas is being performed; and
* * * * *
(j) * * *
(3) See Sec. Sec. 63.7(g), 63.9(h), and 63.1210(d) for additional
requirements pertaining to the Notification of Compliance (e.g., you
must include results of performance tests in the Notification of
Compliance).
* * * * *
(l) Failure of performance test--(1) Comprehensive performance
test. The provisions of this paragraph do not apply to the initial
comprehensive performance test if you conduct the test prior to your
compliance date.
* * * * *
(m) * * *
(2) You are not required to conduct performance tests to document
compliance with the mercury, semivolatile metals, low volatile metals,
or hydrogen chloride/chlorine gas emission standards under the
conditions specified in this paragraph (m)(2). You are deemed to be in
compliance with an emission standard if the twelve-hour rolling average
maximum theoretical emission concentration (MTEC) does not exceed the
emission standard:
* * * * *
? 10. Section 63.1208 is amended by removing and reserving paragraph (a)
and revising paragraphs (b)(1)(i) and (b)(5) to read as follows:
Sec. 63.1208 What are the test methods?
(a) [Reserved]
(b) * * *
(1) * * * (i) To determine compliance with the emission standard
for dioxins and furans, you must use:
(A) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofurans emissions from Stationary
Sources, EPA Publication SW-846 (incorporated by reference-- see Sec.
63.14); or
(B) Method 23, provided in appendix A, part 60 of this chapter,
after approval by the Administrator.
(1) You may request approval to use Method 23 in the performance
test plan required under Sec. 63.1207(e)(i) and (ii).
(2) In determining whether to grant approval to use Method 23, the
Administrator may consider factors including whether dioxin/furan were
detected at levels substantially below the emission standard in
previous testing, and whether previous Method 0023 analyses detected
low levels of dioxin/furan in the front half of the sampling train.
(3) Sources that emit carbonaceous particulate matter, such as
coal-fired boilers, and sources equipped with activated carbon
injection, will be deemed not suitable for use of Method 23 unless you
document that there would not be a significant improvement in quality
assurance with Method 0023A.
* * * * *
(5) Hydrogen chloride and chlorine gas--(i) Compliance with MACT
standards. To determine compliance with the emission standard for
hydrogen chloride and chlorine gas (combined), you must use:
(A) Method 26/26A as provided in appendix A, part 60 of this chapter; or
(B) Methods 320 or 321 as provided in appendix A, part 63 of this
chapter, or
[[Page 59548]]
(C) ASTM D 6735-01, Standard Test Method for Measurement of Gaseous
Chlorides and Fluorides from Mineral Calcining Exhaust Sources--
Impinger Method to measure emissions of hydrogen chloride, and Method
26/26A to measure emissions of chlorine gas, provided that you follow
the provisions in paragraphs (b)(5)(C)(1) through (6) of this section.
ASTM D 6735-01 is available for purchase from at least one of the
following addresses: American Society for Testing and Materials (ASTM),
100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA
19428-2959; or ProQuest, 300 North Zeeb Road, Ann Arbor, MI 48106.
(1) A test must include three or more runs in which a pair of
samples is obtained simultaneously for each run according to section
11.2.6 of ASTM Method D6735-01.
(2) You must calculate the test run standard deviation of each set
of paired samples to quantify data precision, according to Equation 1
of this section:
[GRAPHIC]
[TIFF OMITTED]
TR12OC05.001
Where:
RSDa = The test run relative standard deviation of sample
pair a, percent.
C1a and C2a = The HCl concentrations, milligram/
dry standard cubic meter (mg/dscm), from the paired samples.
(3) You must calculate the test average relative standard deviation
according to Equation 2 of this section:
[GRAPHIC]
[TIFF OMITTED]
TR12OC05.002
Where:
RSDTA = The test average relative standard deviation, percent.
RSDa = The test run relative standard deviation for sample
pair a.
p = The number of test runs, >=3.
(4) If RSDTA is greater than 20 percent, the data are invalid and
the test must be repeated.
(5) The post-test analyte spike procedure of section 11.2.7 of ASTM
Method D6735-01 is conducted, and the percent recovery is calculated
according to section 12.6 of ASTM Method D6735-01.
(6) If the percent recovery is between 70 percent and 130 percent,
inclusive, the test is valid. If the percent recovery is outside of
this range, the data are considered invalid, and the test must be repeated.
(ii) Compliance with risk-based limits under Sec. 63.1215. To
demonstrate compliance with emission limits established under Sec.
63.1215, you must use Method 26/26A as provided in appendix A, part 60
of this chapter, Method 320 as provided in appendix A, part 63 of this
chapter, Method 321 as provided in appendix A, part 63 of this chapter,
or ASTM D 6735-01, Standard Test Method for Measurement of Gaseous
Chlorides and Fluorides from Mineral Calcining Exhaust Sources--
Impinger Method (following the provisions of paragraphs (b)(5)(C)(1)
through (6) of this section), except:
(A) For cement kilns and sources equipped with a dry acid gas
scrubber, you must use Methods 320 or 321 as provided in appendix A,
part 63 of this chapter, or ASTM D 6735-01 to measure hydrogen
chloride, and the back-half, caustic impingers of Method 26/26A as
provided in appendix A, part 60 of this chapter to measure chlorine
gas; and
(B) For incinerators, boilers, and lightweight aggregate kilns, you
must use Methods 320 or 321 as provided in appendix A, part 63 of this
chapter, or ASTM D 6735-01 to measure hydrogen chloride, and Method 26/
26A as provided in appendix A, part 60 of this chapter to measure total
chlorine, and calculate chlorine gas by difference if:
(1) The bromine/chlorine ratio in feedstreams is greater than 5
percent; or
(2) The sulfur/chlorine ratio in feedstreams is greater than 50 percent.
* * * * *
? 11. Section 63.1209 is amended by:
? a. Revising paragraphs (a)(1)(ii), (a)(1)(iv)(D), (a)(1)(v)(D), and
(a)(5).
? b. Revising paragraph (b)(2)(ii).
? c. Revising the heading of paragraph (g)(1) introductory text and
paragraph (g)(1)(i).
? d. Adding paragraph (g)(1)(iv).
? e. Revising paragraphs (k)(1)(i) and (k)(2)(i).
? f. Revising paragraph (l)(1).
? g. Revising paragraphs (m)(1)(iv) introductory text and (m)(3).
? h. Revising paragraph (n)(2).
? i. Revising the heading of paragraph (o) introductory text and
paragraph (o)(1).
? j. Adding paragraph (r).
The revisions read as follows:
Sec. 63.1209 What are the monitoring requirements?
(a) * * *
(1) * * *
(ii) (A) Cement kilns under Sec. 63.1204--Except as provided by
paragraphs (a)(1)(iv) and (a)(1)(v) of the section, you must use a COMS
to demonstrate and monitor compliance with the opacity standard under
Sec. Sec. 63.1204(a)(7) and (b)(7) at each point where emissions are
vented from these affected sources including the bypass stack of a
preheater or preheater/precalciner kiln with dual stacks.
(B) Cement kilns under Sec. 63.1220--Except as provided by
paragraphs (a)(1)(iv) and (a)(1)(v) of the section and unless your
source is equipped with a bag leak detection system under Sec.
63.1206(c)(8) or a particulate matter detection system under Sec.
63.1206(c)(9), you must use a COMS to demonstrate and monitor
compliance with the opacity standard under Sec. Sec. 63.1220(a)(7) and
(b)(7) at each point where emissions are vented from these affected
sources including the bypass stack of a preheater or preheater/
precalciner kiln with dual stacks.
(C) You must maintain and operate each COMS in accordance with the
requirements of Sec. 63.8(c) except for the requirements under Sec.
63.8(c)(3). The requirements of Sec. 63.1211(c) shall be complied with
instead of Sec. 63.8(c)(3); and
(D) Compliance is based on a six-minute block average.
* * * * *
(iv) * * *
(D) To remain in compliance, all six-minute block averages must not
exceed the opacity standard.
(v) * * *
(D) To remain in compliance, all six-minute block averages must not
exceed the opacity standard.
* * * * *
(5) Petitions to use CEMS for other standards. You may petition the
Administrator to use CEMS for compliance monitoring for particulate
matter, mercury, semivolatile metals, low volatile metals, and hydrogen
chloride and chlorine gas under Sec. 63.8(f) in lieu of compliance
with the corresponding operating parameter limits under this section.
* * * * *
(b) * * *
(2) * * *
[[Page 59549]]
(ii) Accuracy and calibration of weight measurement devices for
activated carbon injection systems. If you operate a carbon injection
system, the accuracy of the weight measurement device must be < plus-
minus> 1 percent of the weight being measured. The calibration of the
device must be verified at least once each calendar quarter at a
frequency of approximately 120 days.
* * * * *
(g) * * *
(1) Requests to use alternatives to operating parameter monitoring
requirements. (i) You may submit an application to the Administrator
under this paragraph for approval of alternative operating parameter
monitoring requirements to document compliance with the emission
standards of this subpart. For requests to use additional CEMS,
however, you must use paragraph (a)(5) of this section and Sec.
63.8(f). Alternative requests to operating parameter monitoring
requirements that include unproven monitoring methods may not be made
under this paragraph and must be made under Sec. 63.8(f).
* * * * *
(iv) Dual Standards that incorporate the Interim Standards for HAP
metals. (A) Semivolatile and Low Volatile Metals. You may petition the
Administrator to waive a feedrate operating parameter limit under
paragraph (n)(2) of this section for either the emission standards
expressed in a thermal emissions format or the interim standards based
on documentation that the feedrate operating parameter limit is not
needed to ensure compliance with the relevant standard on a continuous
basis.
(B) Mercury. You may petition the Administrator to waive a feedrate
operating parameter limit under paragraph (l)(1) of this section for
either the feed concentration standard under Sec. Sec.
63.1220(a)(2)(i) and (b)(2)(i) or the interim standards based on
documentation that the feedrate operating parameter limit is not needed
to ensure compliance with the relevant standard on a continuous basis.
* * * * *
(k) * * *
(1) * * * (i) For sources other than a lightweight aggregate kiln,
if the combustor is equipped with an electrostatic precipitator,
baghouse (fabric filter), or other dry emissions control device where
particulate matter is suspended in contact with combustion gas, you
must establish a limit on the maximum temperature of the gas at the
inlet to the device on an hourly rolling average. You must establish
the hourly rolling average limit as the average of the test run averages.
* * * * *
(2) * * * (i) For sources other than cement kilns, you must measure
the temperature of each combustion chamber at a location that best
represents, as practicable, the bulk gas temperature in the combustion
zone. You must document the temperature measurement location in the
test plan you submit under Sec. Sec. 63.1207(e) and (f);
* * * * *
(l) Mercury. * * *
(1) Feedrate of mercury. (i) For incinerators and solid fuel
boilers, when complying with the mercury emission standards under
Sec. Sec. 63.1203, 63.1216 and 63.1219, you must establish a 12-hour
rolling average limit for the total feedrate of mercury in all
feedstreams as the average of the test run averages.
(ii) For liquid fuel boilers, when complying with the mercury
emission standards of Sec. 63.1217, you must establish a rolling
average limit for the mercury feedrate as follows on an averaging
period not to exceed an annual rolling average:
(A) You must calculate a mercury system removal efficiency for each
test run and calculate the average system removal efficiency of the
test run averages. If emissions exceed the mercury emission standard
during the comprehensive performance test, it is not a violation
because the averaging period for the mercury emission standard is (not-
to-exceed) one year and compliance is based on compliance with the
mercury feedrate limit with an averaging period not-to-exceed one year.
(B) If you burn hazardous waste with a heating value of 10,000 Btu/
lb or greater, you must calculate the mercury feedrate limit as follows:
(1) The mercury feedrate limit is the emission standard divided by
[1 - system removal efficiency].
(2) The mercury feedrate limit is a hazardous waste thermal
concentration limit expressed as pounds of mercury in hazardous waste
feedstreams per million Btu of hazardous waste fired.
(3) You must comply with the hazardous waste mercury thermal
concentration limit by determining the feedrate of mercury in all
hazardous waste feedstreams (lb/hr) at least once a minute and the
hazardous waste thermal feedrate (MM Btu/hr) at least once a minute to
calculate a 60-minute average thermal emission concentration as
[hazardous waste mercury feedrate (lb/hr) / hazardous waste thermal
feedrate (MM Btu/hr)].
(4) You must calculate a rolling average hazardous waste mercury
thermal concentration that is updated each hour.
(5) If you select an averaging period for the feedrate limit that
is greater than a 12-hour rolling average, you must calculate the
initial rolling average as though you had selected a 12-hour rolling
average, as provided by paragraph (b)(5)(i) of this section. You must
calculate rolling averages thereafter as the average of the available
one-minute values until enough one-minute values are available to
calculate the rolling average period you select. At that time and
thereafter, you update the rolling average feedrate each hour with a
60-minute average feedrate.
(C) If you burn hazardous waste with a heating value of less than
10,000 Btu/lb, you must calculate the mercury feedrate limit as follows:
(1) You must calculate the mercury feedrate limit as the mercury
emission standard divided by [1 - System Removal Efficiency].
(2) The feedrate limit is expressed as a mass concentration per
unit volume of stack gas ([mu]g/dscm) and is converted to a mass
feedrate (lb/hr) by multiplying it by the average stack gas flowrate of
the test run averages.
(3) You must comply with the feedrate limit by determining the
mercury feedrate (lb/hr) at least once a minute to calculate a 60-
minute average feedrate.
(4) You must update the rolling average feedrate each hour with
this 60-minute feedrate measurement.
(5) If you select an averaging period for the feedrate limit that
is greater than a 12-hour rolling average, you must calculate the
initial rolling average as though you had selected a 12-hour rolling
average, as provided by paragraph (b)(5)(i) of this section. You must
calculate rolling averages thereafter as the average of the available
one-minute values until enough one-minute values are available to
calculate the rolling average period you select. At that time and
thereafter, you update the rolling average feedrate each hour with a
60-minute average feedrate.
(D) If your boiler is equipped with a wet scrubber, you must comply
with the following unless you document in the performance test plan
that you do not feed chlorine at rates that may substantially affect
the system removal efficiency of mercury for purposes of establishing a
mercury feedrate limit based on the system removal efficiency during
the test:
(1) Scrubber blowdown must be minimized during a pretest
conditioning period and during the performance test:
(2) Scrubber water must be preconditioned so that mercury in the
[[Page 59550]]
water is at equilibrium with stack gas at the mercury feedrate level of
the performance test; and
(3) You must establish an operating limit on minimum pH of scrubber
water as the average of the test run averages and comply with the limit
on an hourly rolling average.
(iii) For cement kilns:
(A) When complying with the emission standards under Sec. Sec.
63.1220(a)(2)(i) and (b)(2)(i), you must:
(1) Comply with the mercury hazardous waste feed concentration
operating requirement on a twelve-hour rolling average;
(2) Monitor and record in the operating record the as-fired mercury
concentration in the hazardous waste (or the weighted-average mercury
concentration for multiple hazardous waste feedstreams);
(3) Initiate an automatic waste feed cutoff that immediately and
automatically cuts off the hazardous waste feed when the as-fired
mercury concentration operating requirement is exceeded;
(B) When complying with the emission standards under Sec. Sec.
63.1204, 63.1220(a)(2)(ii) and (b)(2)(ii), you must establish a 12-hour
rolling average limit for the total feedrate of mercury in all
feedstreams as the average of the test run averages;
(C) Except as provided by paragraph (l)(1)(iii)(D) of this section,
when complying with the hazardous waste feedrate corresponding to a
maximum theoretical emission concentration (MTEC) under Sec. Sec.
63.1220(a)(2)(iii) and (b)(2)(iii), you must:
(1) Comply with the MTEC operating requirement on a twelve-hour
rolling average;
(2) Monitor and record the feedrate of mercury for each hazardous
waste feedstream according to Sec. 63.1209(c);
(3) Monitor with a CMS and record in the operating record the gas
flowrate (either directly or by monitoring a surrogate parameter that
you have correlated to gas flowrate);
(4) Continuously calculate and record in the operating record a
MTEC assuming mercury from all hazardous waste feedstreams is emitted;
(5) Initiate an automatic waste feed cutoff that immediately and
automatically cuts off the hazardous waste feed when the MTEC operating
requirement is exceeded;
(D) In lieu of complying with paragraph (l)(1)(iii)(C) of this
section, you may:
(1) Identify in the Notification of Compliance a minimum gas
flowrate limit and a maximum feedrate limit of mercury from all
hazardous waste feedstreams that ensures the MTEC calculated in
paragraph (l)(1)(iii)(B)(4) of this section is below the operating
requirement under paragraphs Sec. Sec. 63.1220(a)(2)(iii) and
(b)(2)(iii); and
(2) Initiate an automatic waste feed cutoff that immediately and
automatically cuts off the hazardous waste feed when either the gas
flowrate or mercury feedrate exceeds the limits identified in paragraph
(l)(1)(iv)(D)(1) of this section.
(iv) For lightweight aggregate kilns:
(A) When complying with the emission standards under Sec. Sec.
63.1205, 63.1221(a)(2)(i) and (b)(2)(i), you must establish a 12-hour
rolling average limit for the total feedrate of mercury in all
feedstreams as the average of the test run averages;
(B) Except as provided by paragraph (l)(1)(iv)(C) of this section,
when complying with the hazardous waste feedrate corresponding to a
maximum theoretical emission concentration (MTEC) under Sec. Sec.
63.1221(a)(2)(ii) and (b)(2)(ii), you must:
(1) Comply with the MTEC operating requirement on a twelve-hour
rolling average;
(2) Monitor and record the feedrate of mercury for each hazardous
waste feedstream according to Sec. 63.1209(c);
(3) Monitor with a CMS and record in the operating record the gas
flowrate (either directly or by monitoring a surrogate parameter that
you have correlated to gas flowrate);
(4) Continuously calculate and record in the operating record a
MTEC assuming mercury from all hazardous waste feedstreams is emitted;
(5) Initiate an automatic waste feed cutoff that immediately and
automatically cuts off the hazardous waste feed when the MTEC operating
requirement is exceeded;
(C) In lieu of complying with paragraph (l)(1)(iv)(B) of this
section, you may:
(1) Identify in the Notification of Compliance a minimum gas
flowrate limit and a maximum feedrate limit of mercury from all
hazardous waste feedstreams that ensures the MTEC calculated in
paragraph (l)(1)(iv)(B)(4) of this section is below the operating
requirement under paragraphs Sec. Sec. 63.1221(a)(2)(ii) and
(b)(2)(ii); and
(2) Initiate an automatic waste feed cutoff that immediately and
automatically cuts off the hazardous waste feed when either the gas
flowrate or mercury feedrate exceeds the limits identified in paragraph
(l)(1)(iv)(C)(1) of this section.
(v) Extrapolation of feedrate levels. In lieu of establishing
mercury feedrate limits as specified in paragraphs (l)(1)(i) through
(iv) of this section, you may request as part of the performance test
plan under Sec. Sec. 63.7(b) and (c) and Sec. Sec. 63.1207 (e) and
(f) to use the mercury feedrates and associated emission rates during
the comprehensive performance test to extrapolate to higher allowable
feedrate limits and emission rates. The extrapolation methodology will
be reviewed and approved, as warranted, by the Administrator. The
review will consider in particular whether:
(A) Performance test metal feedrates are appropriate (i.e., whether
feedrates are at least at normal levels; depending on the heterogeneity
of the waste, whether some level of spiking would be appropriate; and
whether the physical form and species of spiked material is
appropriate); and
(B) Whether the extrapolated feedrates you request are warranted
considering historical metal feedrate data.
* * * * *
(m) * * *
(1) * * *
(iv) Other particulate matter control devices. For each particulate
matter control device that is not a fabric filter or high energy wet
scrubber, or is not an electrostatic precipitator or ionizing wet
scrubber for which you elect to monitor particulate matter loadings
under Sec. 63.1206(c)(9) of this chapter for process control, you must
ensure that the control device is properly operated and maintained as
required by Sec. 63.1206(c)(7) and by monitoring the operation of the
control device as follows:
* * * * *
(3) Maximum ash feedrate. Owners and operators of hazardous waste
incinerators, solid fuel boilers, and liquid fuel boilers must
establish a maximum ash feedrate limit as a 12-hour rolling average
based on the average of the test run averages. This requirement is
waived, however, if you comply with the particulate matter detection
system requirements under Sec. 63.1206(c)(9).
(n) * * *
(2) Maximum feedrate of semivolatile and low volatile metals. (i)
General. You must establish feedrate limits for semivolatile metals
(cadmium and lead) and low volatile metals (arsenic, beryllium, and
chromium) as follows, except as provided by paragraph (n)(2)(vii) of
this section.
(ii) For incinerators, cement kilns, and lightweight aggregate
kilns, when complying with the emission standards under Sec. Sec.
63.1203, 63.1204, 63.1205, and 63.1219, and for solid fuel boilers when
complying with the emission standards
[[Continued on page 59551]]
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090513044225im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}