[Federal Register: June 19, 1998 (Volume 63, Number 118)]
[Rules and Regulations]               
[Page 33781‑33829]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn98‑33]

[[Page 33781]]

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Part IV

Environmental Protection Agency

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40 CFR Parts 63, 261, and 270

Hazardous Waste Combustors; Revised Standards; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 261, and 270

[EPA F‑98‑RCSF‑FFFFF; FRL‑6110‑3]
RIN 2050‑AE01
 
Hazardous Waste Combustors; Revised Standards; Final Rule‑‑Part 
1: RCRA Comparable Fuel Exclusion; Permit Modifications for Hazardous 
Waste Combustion Units; Notification of Intent To Comply; Waste 
Minimization and Pollution Prevention Criteria for Compliance 
Extensions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On April 19, 1996, EPA proposed revisions for air emission  standards for certain hazardous waste combustion units. Today's rule  finalizes some elements of that proposal. These elements include a  conditional exclusion from RCRA for fuels which are produced from a  hazardous waste, but which are comparable to some currently used fossil  fuels; a new RCRA permit modification provision which is intended to  make it easier for facilities to make changes to their existing RCRA  permits when adding air pollution control equipment or making other  changes in equipment or operation needed to comply with the upcoming  air emission standards; notification requirements for sources which  intend to comply with the final rule; and allowances for extensions to  the compliance period to promote the installation of cost effective  pollution prevention technologies to replace or supplement emission  control technologies for meeting the emission standards.  EFFECTIVE DATE: This rule is effective on June 19, 1998.  ADDRESSES: The public docket for this rulemaking is available for  public inspection at EPA's RCRA Docket, located at Crystal Gateway,  First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The  regulatory docket for this final rule contains a number of background  materials. To obtain a list of these items, contact the RCRA Docket at  703‑603‑9230 and request the list of references in EPA Docket #F‑98‑ RCSF‑FFFFF.  FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9:00 a.m.‑ 6:00 p.m. EST, at 800‑424‑9346 (toll‑free); 703‑412‑9810 (from  Government phones or if in the Washington, D.C. local calling area); or  800‑553‑7672 (for the hearing impaired). For more detailed information  on specific aspects of the rulemaking, contact Mary Jo Krolewski on the  comparable fuel exclusion at (703) 308‑7754, Tricia Buzzell on permit  modifications at (703) 308‑8632, James Lounsbury on waste minimization  and pollution prevention at (703) 308‑8463, David Hockey on the  notification of intent to comply at (703) 308‑8846, or by writing, to  U.S. Environmental Protection Agency, Office of Solid Waste, Permits  and State Programs Division, 401 M St., S.W. (Mailcode 5303W),  Washington, D.C. 20460.  SUPPLEMENTARY INFORMATION: This rule is available on the Internet.  Please follow these instructions to access the rule electronically: From the World Wide Web (WWW), type either     http://www.epa.gov/epaoswer/hazwaste/combust/fastrack.      EPA's ``Pollution Prevention Facility Planning Guide'' (May, 1992;  NTIS #PB92‑213206) describes the series of analytical steps that are  often used by companies to identify waste minimization measures.  Additional EPA references include: ``Waste Minimization Opportunity  Assessment Manual (EPA 625/7‑88/003, July 1988), Interim Final  ``Guidance to Hazardous Waste Generators on the Elements of a Waste  Minimization Program In Place,'' (May 1993), ``An Introduction to  Environmental Accounting As a Business Management Tool'' (EPA 742‑R‑95‑ 001, June 1995), the ``P2/Finance User's Manual: Pollution Prevention  Financial Analysis and Cost Evaluation System for Lotus 1‑2‑3 (EPA 742‑ B‑94‑003, January 1994), and Enviro$ense, an electronic library of  information on pollution prevention, technical assistance, and  environmental compliance. Many of these and other documents can be  accessed by contacting the RCRA Hotline toll‑free at 1‑800‑424‑9346.  Enviro$ense can be accessed by contacting a system operator at (703)  908‑2007, or on the Internet at http://wastenot.inel.gov/enviro‑sense.  Information on State waste minimization programs can be obtained  through Enviro$ense, directly from the State pollution prevention  program offices, or from the National Pollution Prevention Roundtable  at E‑mail address 75152.1416@compuserve.com, by phone at 202‑466‑7272  in Washington, D.C.     The official record for this action is kept in a paper format.  Accordingly, EPA has transferred all electronic comments received into  paper form and placed them into the official record, with all the  comments received in writing. The official record is maintained at the  address in the ADDRESSES section at the beginning of this document.   

 EPA's responses to comments have been incorporated in a ``Response  to Comments'' document, which has been placed into the official record  for this rulemaking. The major comments and responses are discussed in  the Response to Comment sections of this preamble.     The contents of today's preamble are listed in the following  outline:  
I. Authority
  II. Scope of Final Rule
  III. Comparable Fuels Exclusion 
 A. EPA's Approach to Establishing Benchmark Constituent Levels     1. The Benchmark Approach     2. Selection of the Benchmark Fuels
 B. Options for the Benchmark Approach     1. Selection of Percentile Level     2. Composite v. Individual Specifications 
C. Parameters for the Comparable Fuel Specification     1. Physical Specifications     2. General Constituent Specifications     3. Individual Hazardous Constituent Specifications 
D. Parameters for the Synthesis Gas Fuel Exclusion     1. Physical Specifications     2. General Constituent Specifications     3. Individual Hazardous Constituent Specifications 
E. Meeting the Comparable Fuel Specifications     1. Potential Applicability of Today's Rule to Specific Waste  Codes     2. General     3. Blending     4. Treatment 
F. Meeting the Syngas Fuel Specifications 
G. Sampling and Analysis     1. Use of Process Knowledge     2. Waste Analysis Plan     3. Methods to Analyze Comparable Fuels     4. Syngas Waste Analysis Plan and Analysis Methods     5. Non‑detects H. Notification, Certification, and Documentation     1. Who Must Make the Exclusion Notification     2. Notification Requirements I. Exclusion Status J. Recordkeeping     1. General     2. Off‑site Shipment K. Transportation and Storage L. Comparable Fuels Exclusion and Waste Minimization     1. Introduction     2. Major Concerns of Commenters  IV. RCRA Permit Modifications for Hazardous Waste Combustion Units  A. Introduction B. Overview     1. Background on RCRA Permit Modification Procedures     2. Shortcomings of the Current Procedures  [[Page 33783]]      3. How Today's Rule Impacts the Procedures C. Discussion of RCRA Permit Modification Procedures for Facilities  Coming Into Compliance With MACT Requirements     1. Summary of Proposed Options     2. Summary of Public Comments     3. Response to Comments and Discussion of Final Provisions D. Summary of Public Comments E. Response to Comments F. RCRA Changes in Interim Status Procedures  V. Notification of Intent to Comply and Progress Report  A. Background B. Summary of Final Provisions C. Discussion of Public Comments and Final NIC Provisions     1. General     2. Purpose of the NIC     3. Timing     4. NIC Meeting     5. Relation Between NIC and Other Notification Requirements D. Discussion of Public Comments and Progress Report     1. Overview     2. Summary of Progress Report Requirements E. Certification F. Extension of the Compliance Date G. Sources Which Become Affected After the Effective Date of This  Subpart  VI. Waste Minimization and Pollution Prevention  A. Overview B. Background C. Summary of Proposed Pollution Prevention/Waste Minimization  Incentives and Comments Received D. Waste Minimization Incentives Contained in Today's Rule  VII. State Authority  A. RCRA State Authorization B. Program Delegation under the Clean Air Act  VIII. Administrative Requirements/Compliance With Executive Order  A. Regulatory Impact Analysis Under Executive Order 12866 B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Unfunded Mandates  IX. Submission to Congress and the General Accounting Office  X. Environmental Justice  A. Applicability of Executive Order 12898 B. Potential Effects  XI. Children's Health  XII. National Technology Transfer and Advancement Act  I. Authority      These regulations are being finalized under the authority of  sections 1004, 1006, 2002, 3001, 3004, 3005, and 7004 of the Solid  Waste Disposal Act of 1965, as amended, including amendments by the  Resource Conservation and Recovery Act.  II. Scope of the Final Rule      On April 19, 1996, EPA proposed rules to control emissions of HAPs  from hazardous waste‑burning incinerators, cement kilns, and light  weight aggregate kilns. (61 FR 17358) After promulgation of the  proposal, the Agency issued the following notices of data availability  (NODA): NODA 1 (Peer review and Comparable fuels)‑‑August 23, 1996: 61  FR 43501; NODA 2 (Revised emissions database)‑‑January 7, 1997: 62 FR  960; Continuous Emissions Monitoring Systems (CEMS) NODA‑‑March 21,  1997: 62 FR 13775; NODA 3 (MACT standards and implementation)‑‑May 2,  1997: 62 FR 24212; and NODA 4 (Comparable fuels data)‑‑September 9,  1997: 62 FR 47402.     Today's final rule addresses four elements of the April 19, 1996  (61 FR 17358) proposal to revise the standards for hazardous waste  combustors. The remaining issues of the proposal will be addressed in  final rules in the near future.  III. Comparable Fuels Exclusion      Under this final rule, EPA is excluding from the regulatory  definition of solid waste hazardous waste‑derived fuels that meet  specification levels comparable to fossil fuels for concentrations of  hazardous constituents and for physical properties that affect  burning.\1\ The exclusion would apply to the comparable fuel from the  point it is generated and would be claimed by the person generating the  comparable fuel (which person can include a hazardous waste treater).  With respect to the fuels, generators of the comparable fuel would have  to comply with sampling and analysis, notification and certification,  and recordkeeping requirements in order for their fuels to be excluded.  The exclusion potentially applies to gaseous and liquid hazardous  waste‑derived fuels. However, this exclusion does not apply to solids  or to used oil, which is subject to special standards under 40 CFR Part  279. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \1\ We note that DOW Chemical Company (Dow) in a petition to the  Administrator, dated August 10, 1995, specifically requested that  the Agency develop a generic exclusion for ``materials that are  burned for energy recovery in on‑site boilers which do not exceed  the levels of fossil fuel constituents* * *.'' (Petition, at p.3).  This final rule also responds to that petition. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      Today's rule is consistent with EPA's goal to develop a comparable  fuel specification which is of use to the regulated community but  assures that an excluded waste‑derived fuel is similar in composition  to commercially available fuel and therefore poses no greater risk than  burning fossil fuel. Accordingly, EPA is using a ``benchmark approach''  to identify a specification that would ensure that constituent  concentrations and physical properties of excluded waste‑derived fuel  are comparable to those of fossil fuels.     The rationale for the Agency's approach is that if a hazardous  waste‑derived fuel is comparable to a fossil fuel in terms of hazardous  and other key constituents and has a heating value indicative of a  fuel, EPA has discretion to classify such material as a fuel product,  not as a waste. Given that a comparable fuel would have legitimate  energy value and the same hazardous constituents in comparable  concentrations to those in fossil fuel (and satisfies other parameters  related to comparability as well), classifying such material as a fuel  product and not as a waste promotes RCRA's resource recovery goals  without creating any risk greater than those posed by the commonly used  commercial fuels. Under these circumstances, EPA can permissibly  classify a comparable fuel as a non‑waste. See 46 FR 44971 (August 8,  1981) (exemption from Subtitle C regulation for spent pickle liquor  used as a wastewater treatment agent in part because of its similarity  in composition to the commercial acids that would be used in its  place); 50 FR 49180, 49181, 49183 (November 29, 1985) (explanation of a  similar type of benchmark approach in establishing used oil fuel  specification); 53 FR at 31164 (August 18, 1988) (exemption for certain  hazardous waste‑derived fertilizers due to similarity to the commercial  fertilizers that would be used in their place).     Put another way, EPA can reasonably determine that a material which  is a legitimate fuel and which contains hazardous constituents at  levels comparable to fossil fuels is not being ``discarded'' within the  meaning of RCRA section 1004 (27). ``Discarded'' itself is an ambiguous  term, see American Petroleum Inst. v. EPA, 906 F. 2d 729, 741 (D.C.  Cir. 1990). EPA's interpretation that hazardous waste‑derived fuels  which are comparable to fossil fuels need not be considered to be  ``discarded'' serves the statutory objective of encouraging resource  recovery. RCRA section 1003 (a) (10). In addition, burning of such  fuels does not present the element of discarding hazardous constituents  through combustion that underlies the typical classification of  hazardous waste‑derived fuels as a solid waste. 50 Fed. Reg. at 629‑630  (Jan. 4, 1985). This is because, as noted, hazardous constituent  concentration levels are comparable to those in fossil fuels.  [[Page 33784]]      The case law further makes clear that EPA may classify secondary  materials as ``discarded'' based, at least in part, upon whether such  materials may be considered part of the waste management problem.  American Mining Congress v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990).  Today's rule contains conditions to assure that burning of comparable  fuels will not become part of the waste management problem. The chief  condition is limitation on burning to industrial furnaces (as defined  in 260. 10), industrial and utility boilers, and hazardous waste  incinerators. Another condition prevents specification limits for  hazardous constituents being achieved by means of dilution, so that the  total volume of hazardous constituents emitted from burning comparable  fuels would remain comparable to those from burning fossil fuels. The  rule also contains notification and record keeping conditions which  assure that the fuels meet the specification and will be burned in the  requisite type of unit, and that this can be verified objectively by  third persons.     EPA notes that today's final rule is consistent with the main  approach discussed in the Dow petition (see footnote 1 above), which  also points out a number of benefits that would result from  promulgating this type of exclusion: (1) Support for the statutory goal  of promoting beneficial energy recovery and resource conservation; (2)  reduction of unnecessary regulatory burden and allowing all parties to  focus resources on higher permitting and regulatory priorities; and (3)  demonstration of a common‑sense approach to regulation. Dow's petition  contained data on the chemical and physical aspects of the fuel for  which the petition was submitted. Based on these data and additional  data submitted during the comment period, it appears that the waste  petitioned for exclusion by Dow meets the individual physical and  chemical comparable fuel specifications set forth in this rule. Today's  rule does not exclude Dow's wastestreams or other wastestreams for  which commenters submitted data that may meet the specifications of the  final rule. It remains the responsibility of the generator to comply  with the specifications of the comparable fuel exclusion stipulated by  the State RCRA implementing authority.  A. EPA's Approach to Establishing Benchmark Constituent Levels  1. The Benchmark Approach     EPA considered using risk to human health and the environment as  the way to determine the scope and levels of a ``clean fuels''  specification. However, the Agency encountered several technical and  implementation problems using a purely risk‑based approach to develop a  national rule. Specifically, EPA has insufficient data relating to the  types of waste burned and the risks they pose to develop a fully  protective and complete ``clean fuels'' exemption. EPA also does not  have sufficient data to determine the relationship between the amount  of ``clean fuel'' burned and emissions, especially of dioxins and other  non‑dioxin PICs. EPA also does not know how emissions (likely  uncontrolled) at the multitude of actual facilities that would burn an  excluded fuel would compare to emissions from the example facilities  that EPA would use to derive a ``clean fuel'' specification. (Emissions  and/or risks at a given facility could be higher than those of the  example facilities given site‑specific considerations.) Without  considering all reasonable, possible emission scenarios, which is not  feasible for the Agency at this time, the Agency is not prepared today  to address these potential risks \2\. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \2\ It is possible to determine on an individual basis that  particular waste‑derived fuel should be excluded from RCRA on risk‑ based grounds. See 63 FR at 18533 (April 15, 1998) where EPA  finalized such an exclusion for a waste fuel which could be  generated by the pulp and paper industry. However, EPA cautions that  making such a demonstration is difficult (because of potential  uncertainties regarding combustion conditions and exposure patterns)  and resource‑intensive for the Agency to evaluate, and would still  involve rulemaking. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      The Chemical Manufacturers Association (CMA) submitted a proposal  to exempt certain ``clean'' liquid wastes from RCRA regulation. (61 FR  at 17469) Unlike EPA's benchmark‑based comparable fuel approach, the  CMA approach would establish ``clean fuel'' specifications for mercury,  LVM, and SVM metals based on the technology‑based MACT emissions  standards proposed for hazardous waste combustors on April 19, 1996. As  just discussed above, EPA is concerned about using risk to establish a  ``clean fuel'' specification. EPA does not have data available  documenting that emissions from burning a ``clean fuel'' would not pose  a significant risk for the potential combustion and management  scenarios in which the clean fuel exclusion from RCRA might be used.  Therefore, EPA will not be adopting CMA's proposal in today's rule, but  may address aspects of the CMA concept in future actions if appropriate  and feasible.     The Agency instead developed a comparable fuel specification, based  on the level of hazardous and other constituents normally found in  fossil fuels. EPA refers to this as the benchmark approach. For this  approach, EPA set a comparable fuel specification such that  concentrations of hazardous constituents in the comparable fuel could  be no greater than the concentration of hazardous constituents normally  occurring in commercial fossil fuels. Thus, EPA expects that the  comparable fuel would pose no greater risk when burned than a fossil  fuel and would at the same time be physically comparable to a fossil  fuel, leading to the conclusion that EPA may classify these materials  as products, not wastes. See proposal for more details (61 FR 17460,  April 19, 1996).     Some commenters argued that by using a benchmark approach, EPA had  failed to assess potential risks to human health and the environment  resulting from the exclusion. Commenters argued that EPA cannot  determine that there are no adverse risks by the comparison to fossil  fuels. EPA disagrees with commenters conclusions concerning the need to  determine absolute risk. In this final rule, EPA is setting a  comparable fuel specification with concentrations of hazardous  constituents no greater than the concentrations of hazardous  constituents occurring in fossil fuels. Thus, EPA reasonably expects‑‑ based on the methodology used to establish the specification‑‑that the  comparable fuel will pose no greater risk when burned than a fossil  fuel and concomitant energy recovery benefits will be realized from  reusing the waste to displace fossil fuels. The Agency concludes it has  discretion in exercising jurisdiction over hazardous waste‑derived  fuels that are essentially the same as fossil fuel, since there would  likely not be environmental benefits from regulating those hazardous  waste‑derived fuels (i.e., burners would likely just choose to burn  fossil fuels). Indeed, as explained below, many commercial fuels could  be less ``clean'' than the comparable fuels, so that substitution of  some commercial fuels could be a net deterrent. See 50 FR at 49186  (November 29, 1985) where EPA discussed similar considerations when  developing a specification for used oil fuel. See also discussion above  as to why such fuels need not be considered to be ``discarded''. EPA  has therefore decided not to regulate comparable hazardous waste‑ derived fuels meeting the benchmark specifications as hazardous waste  under RCRA.     Furthermore, the Agency notes that the comparable fuel exclusion  promulgated today is the first phase in addressing the ``clean fuels''  issue. Although EPA has identified problems with commenters'  alternatives, there is  [[Page 33785]]  room for further expansion of the comparable or clean fuel concept. EPA  will continue to work with the regulated community to identify areas to  expand the approach taken in today's final rulemaking. 2. Selection of the Benchmark Fuels     Since commercially available fossil fuels are diverse, EPA  considered a range of fuels upon which to base its benchmark fuel  selection. Available fuels ranged from gases, such as natural gas and  propane, to liquids (such as gasoline and fuel oils) to solids (such as  coal, coke, and peat). The Agency proposed a benchmark based on liquid  fossil fuels (gasoline, No.2 fuel oil, and No.6 fuel oil). (61 FR at  17462)     Commenters argued that EPA should consider solid fossil fuels in  developing the benchmark specifications. Commenters believe that  materials such as coal are fuels that are widely used throughout the  U.S. and failing to consider these materials ignores legitimate fuels  used by certain industries. EPA disagrees with commenters' requests to  include solid fossil fuels in its benchmark specification. From an  environmental standpoint, the comparable fuel specification, which  would exclude a hazardous waste‑derived fuel from RCRA subtitle C  regulation, should not be based on fossil fuels that have high levels  of toxic constituents that will not be destroyed or detoxified by  burning (e.g., metals and halogens). Data show that solid fossil fuels  have comparatively higher metal \3\ and possibly halogen levels than  liquid fossil fuels \4\. Metals and halogens are not destroyed in the  combustion process unlike organic constituents which are commonly  destroyed or detoxified through combustion. Comparison with this type  of fuel could easily result in a least common denominator approach  whereby a hazardous waste‑derived fuel would be ``comparable'' if it  was no more dangerous to burn than the most contaminated fossil fuels.  Such ``comparability'' is not congruent with the overall objective of  RCRA to protect human health and the environment and is inconsistent  with the specific directive to regulate combustion of hazardous waste‑ derived fuels where necessary to protect human health and the  environment. (RCRA section 3004(q)). Thus, while EPA has chosen to use  a benchmark rather than a risk‑based approach, the Agency has chosen  benchmark fuels that, in general, have lower contaminant levels for  constituents that are not destroyed. Therefore, in today's rule, EPA is  not using solid fossil fuels as part of the comparative benchmark. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \3\ A smaller fraction of metals in coal partitions to emissions  than for liquid fuels. Given that most potentially comparable fuels  are liquids, allowing metals at the concentrations present in coal  could result in substantially higher metals emissions.     \4\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Standards, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      EPA also will not be using a gas fuels as benchmarks. Basing the  comparable fuel specification on a gas fuel would be overly  conservative and have no utility to the regulated industry. (The reader  should note that EPA is promulgating an exclusion for a particular type  of hazardous waste‑derived fuel, namely a type of synthesis gas  (``syngas'') meeting particular specifications (see Section D below).  This hazardous waste derived gas can be used as a fuel and an exclusion  provides beneficial resource recovery.) Liquid fuels, on the other  hand, are widely used by industry, readily combusted, and do not  present the inconsistencies of solid or gaseous fuels. Simply put, the  Agency, in assessing comparability, is not required to base a  specification on either the most or least contaminated fossil fuels,  but may reasonably choose a median, in this case, representative fuel  oils. In this final rule, EPA is selecting only liquid fuels for its  benchmark fuel specification.     With regard to liquid fuels, commenters argued that EPA should  consider as benchmark fuels non‑petroleum liquid based fuels such as  turpentine and tall oil. One commenter recommended that EPA identify  turpentine as a benchmark fuel because it has a very high Btu value and  is used as a fuel (and a manufacturing feedstock) both within and  outside the forest products industry. Another commenter pointed out  that tall oil is not only used in commerce as a traditional fuel, but  that EPA has previously noted that tall oil is a legitimate non‑waste  fuel under the BIF rule low risk waiver exemption (LRWE) and DRE trial  burn exemptions (56 FR 7193, February 21, 1991).     While EPA is interested in establishing a broad‑based benchmark of  liquid fuels, EPA disagrees that turpentine should be included in the  benchmark specification. Turpentine is not a widely used commercial  fuel. There are no ASTM standards for turpentine fuel which specify the  minimum properties which must be met for the product to be considered  as a commercial fuel. By contrast, there are ASTM specifications for  each of the petroleum fossil fuels EPA is using as a benchmark.     EPA does agree with the commenter that tall oil is used in commerce  as a traditional fuel and could be used as a benchmark fuel. At the  time of the proposal, EPA had no data on tall oil. The commenter did  submit one set of data that EPA was unable to use because it did not  meet EPA data quality standards. Therefore, at this time, EPA will not  include tall oil in its benchmark fuels.     Finally, some commenters did not support the use of gasoline for  setting comparable fuel specifications, because it is not typically  utilized in industrial boilers and furnaces. Gasoline is typically  limited used in internal combustion engines, and the commenter did not  anticipate that industry or individuals will utilize hazardous waste‑ derived fuels in automobiles, trucks and buses. EPA disagrees that  gasoline should be excluded as one of the benchmark fuels. The Agency  notes that gasoline is a widely used, commercially available, liquid  fuel and EPA does not believe that our selection is necessarily limited  to fuel burned in boilers or industrial furnaces. EPA has chosen its  benchmark fuels so that the resulting comparable fuel when substituted  would have hazardous constituents lower than the fuel it replaces.  However, because the comparable fuel will not be substituted for use in  gasoline applications (the exclusion is restricted to air regulated  stationary combustion units, see Section H below), the rationale for  the inclusion of gasoline differs. The Agency believes that gasoline  provides a reasonable upper boundary for volatile organics, which are  fuel‑worthy constituents. The Agency notes that unlike some solid  fuels, gasoline has low concentrations of metals. When compared to  lighter fuel oils (e.g., No. 2 fuel oil), the gasoline specification  has higher specifications for only the detected volatile organics,  which are readily burnable compounds.  B. Options for the Benchmark Approach      At proposal, EPA presented several options for deciding what fossil  fuel(s) data to use as the benchmark. The options range from developing  a suite of comparable fuel specifications based on individual benchmark  fuels (i.e., gasoline, No. 2, No. 4, No. 6) to basing the specification  on composite values derived from the analysis of all benchmark fuels.  (61 FR at 17643).     EPA took comment on individual benchmark fuel specifications based  on gasoline, No. 2, and No. 6 fuel oil, using the 90th percentile  values for the basis of the individual specifications. Under this  approach, individual fuel specification(s) could be implemented  [[Page 33786]]  in one of two ways. First, a facility could use any of the individual  benchmark specifications, without regard to what fuel it currently  burns. The second approach is to link the comparable fuel specification  to the type of fuel burned at the facility and being displaced by the  comparable fuel. Under a composite fuel benchmark approach, EPA took  comment on using: (1) The 90th percentile aggregate values for the  benchmark fuels; and (2) the 50th percentile aggregate values for the  benchmark fuels. (61 FR at 17643). 1. Selection of Percentile Level     To calculate benchmark specifications, EPA obtained 27 fossil fuel  samples, comprised of eight gasoline, eleven No. 2, one No. 4, and  seven No. 6 fuel oil samples. Due to the small sample sizes of each  fuel type, EPA initially used a nonparametric rank order statistical  approach to analyze the fuel data. Rank order involved ordering the  data for each constituent from lowest to highest concentration,  assigning each data point a percentile value from lowest to highest  percentile, respectively. Results were then calculated from the data  percentiles. Because there were different numbers of samples for each  fuel type, EPA was concerned that the fuel with the largest number of  samples would dominate the composite database. To address this issue,  EPA's statistical analysis ``normalized'' the number of samples, i.e.,  treated each fuel type in the composite equally without regard to the  number of samples taken.<SUP>5</SUP> See Kennecott v. EPA, 780 F.2d  445, 457 (4th Cir. 1985) (upholding this statistical methodology). The  fuel samples were weighted equally because this weighting reflects the  fact that benchmark fuels can be used interchangeably in stationary  combustion units. In addition, as noted in the next section, equal  weighting prevented over‑estimation of either metals and semi‑volatiles  in No. 6 fuel oil or volatiles in the higher end fractions. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \5\ For the gasoline sample analysis, the resulting detection  limits for volatile organic compounds were an order of magnitude  higher than the other fuel specifications. EPA believes analysis of  comparable fuels will more likely result in detection limits much  lower than gasoline and similar to those associated with analysis of  fuel oils. To address this issue, EPA has performed an analysis of a  fuel oil‑only composite (one which does not include gasoline in the  composite) to use as a surrogate for the volatile organic gasoline  non‑detect values. Therefore, the volatile organic gasoline non‑ detect values used in the development of the composite and  individual gasoline specification were based on this fuel oil‑only  composite. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      One commenter argued that EPA's proposed constituent‑by‑constituent  comparison approach is flawed because it ignores the compounding effect  of joint probability. The commenter has examined the rank order  statistics technique EPA used and has concluded that the percentile  values for the individual constituents must be set higher for all of  them to meet the overall percentile value simultaneously. For example,  a candidate comparable fuel taken from the same reservoir as a  benchmark fuel would, because of random variability in constituent  concentrations, have a 23 percent chance of ``failing'' a comparison to  a benchmark (at the 90th percentile) that has 14 constituents above the  detection limits. Thus the commenter argued that the proposed  constituent‑by‑constituent comparison would have little utility to the  regulated community.     While EPA believes there is some interdependence among individual  constituents and that the principle of joint probability cannot be  strictly applied, EPA is inclined to agree with the commenter. At the  time of proposal, EPA believed that a 50th percentile analysis  represented a midpoint of potential benchmark fuels that were studied.  EPA also believed that a 90th percentile analysis represented a  reasonable upper bound of what is found in all fuels capturing  variability both with each fuel category and in the case of the  composite approach, between categories. However, when the individual  fuel samples were compared to the benchmark specifications, EPA found  that at the 50th percentile composite none of the virgin fuel samples  met the specification and at the 90th percentile composite only 40  percent met the specification. This appears to confirm the commenter's  concern over joint probability, and reflects on the degree to which the  comparable fuels exclusion would actually be useable. It was EPA's goal  to base the comparable fuel specifications on the 99th percentile, a  level near which 90 percent of EPA's individual fuel samples would meet  the specification. However, the size of the data base precluded the  calculating of a 99th percentile constituent specification. Therefore,  in this case, the Agency used the largest measured value to approximate  an upper percentile. In the future, EPA may choose alternative methods  of evaluating any new data that may be submitted suggesting that these  specifications need to be modified. After re‑calculating the  specification taking joint probability into account, the composite at  the largest value more closely represents what EPA intended to propose  with the 90th percentile, a reasonable upper bound that is also useable  in practice. The 90th percentile closely represents what EPA intended  with the proposed 50th percentile, i.e., a midpoint.     Some commenters did support the 50th percentile because they argued  it was more protective. The majority of commenters supported the 90th  percentile and some commenters argued for the use of a higher  percentile, i.e., 95th or 99th. Because none of EPA's own fuel samples  meet this specification, the 50th percentile is overly conservative. If  EPA selected the 50th percentile, comparable fuels would have to be  ``cleaner'' than all commercial liquid fuels (or at least all of those  in the Agency's current database), which would greatly restrict the  utility of the provision. Also, with such a strict approach, additional  quantities of virgin oils with higher contaminant levels would be  burned, leading to greater emissions than if a higher percentile was  chosen. Therefore, EPA agrees with commenters that a higher percentile  better reflects the liquid fossil fuels burned nationally and is a  better benchmark.     After considering the issue of joint probability, EPA has decided  to promulgate a composite specification based on the largest measured  value to approximate what 90 percent of individual benchmark fuels are  likely to meet. This approach has the virtue of being representative of  a range of fuels that are burned nationally in combustion devices.     Based on the proposal, EPA had the option of choosing between an  individual fuel specification approach and a composite approach. The  majority of commenters supported using the composite specification plus  the suite of individual fuel specifications that could be used  irrespective of the fuel displaced.     The composite approach has advantages over the individual fuel  specification approach. One issue associated with the single fuel  specification approach is that gasoline has relatively higher levels of  volatile organic compounds while No. 6 fuel oil has higher levels of  semi‑volatile organic compounds and metals. If a potential comparable  fuel were to have a volatile organic constituent concentration below  the gasoline specification but higher than the others and a particular  metal concentration lower than the No. 6 fuel oil specification but  higher than gasoline, it would not be a comparable fuel since it meets  no single specification entirely. Therefore, EPA is concerned that  establishing specifications under this  [[Page 33787]]  option would significantly limit the utility of the exclusion without  any obvious advantage in terms of the technical basis of the  specifications themselves.     Compositing all the fuels has the advantage that it may better  reflect the range of fuel choices and potential for fuel‑switching  available nationally to burners. A facility would be allowed to use the  composite fuel specification regardless of which fuel(s) it burns. In  addition, the composite well represents the constituent makeup of  liquid fossil fuels currently burned nationally. Because allowing  individual specifications would unnecessarily complicate the Agency's  implementation oversight, EPA has decided not to allow the individual  specifications as an alternative. Furthermore, EPA notes that because  it has chosen to promulgate constituent standards for comparable fuels  based on the largest measured value, the composite approach will  provide industry with greater flexibility in using the exclusion. A  composite specification provides a simpler regulatory framework, which  would facilitate implementation of the exclusion. Therefore, in this  final rule, EPA is promulgating a composite specification for  comparable fuels.  C. Parameters for the Comparable Fuel Specification      Using the benchmark approach discussed above, EPA is promulgating a  set of technical specifications. The specifications address the  following <SUP>6</SUP>: ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \6\ Note that ppmw is an alternate way of expressing the units  mg/kg. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑  (1) Physical specifications:  ‑‑Heating value (BTU/lb); ‑‑Kinematic viscosity (centistokes, cs, as‑fired),  (2) General constituent specifications for:  ‑‑Total Halogens (ppmw, expressed as Cl) ‑‑Nitrogen, total (ppmw), and  (3) Individual hazardous constituent specifications, for:  ‑‑Individual Metals (ppmw), ‑‑Individual Appendix VIII Toxic Organics (ppmw)  The constituent specifications and heating value would apply to both  gases and liquids. The kinematic viscosity would not apply to gases.  (See Section D, below, which discusses synthesis gases specifically.) 1. Physical Specifications     a. Heating Value. The Agency is concerned with the acceptability of  the potential fuel and wants to ensure that comparable fuels have a  legitimate use as a fuel. As discussed below, the comparable fuels  exclusion only applies to waste fuels that are ultimately burned. In  addition, the Agency has relied on a heating value of 5,000 Btu/lbm  (11,500 J/g) as a reasonable heating value specification for  determining if a waste is being burned for energy recovery; that is,  wastes with this Btu value or higher are considered to be burned for  energy recovery. (See Sec. 266.103(c)(2)(ii). 50 FR at 49173n.24  (November 29, 1985)). <SUP>7</SUP> This type of minimum Btu value  specification is appropriate here as well as for the overall fuel (note  that this is a different issue than finding the appropriate Btu value  by which to correctly determine if the individual constituent  specifications are being met, discussed below). EPA is thus setting a  5,000 Btu/lbm limit today as a minimum heating value for a comparable  fuel to ensure that comparable fuels are in fact legitimate fuels. See  Sec. 261.38(a)(1)(i). ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \7\  The 5,000 Btu/lb measure is not, however, an unvarying  measure of legitimate versus insufficient energy recovery. See,  e.g., 48 FR at 1158 (March 16, 1983). ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      b. Kinematic viscosity. Viscosity is an important specification to  help ensure that a comparable fuel is as readily burnable as the  benchmark fuel. Viscosity is important to the proper atomization and  feed to the burning device and is an important design specification of  the burner assembly. EPA proposed two options for setting a viscosity  specification: (1) Using a value derived from the analyses EPA  conducted; or (2) using the ASTM viscosity specification for fuel oil.  (61 FR at 17465). Under the ASTM option for the composite fuel  viscosity specification, EPA took comment on using the second highest  ASTM viscosity specification. This would have the effect of not  considering the extremes, viscosity of No. 6 fuel oil (50.0 cs at  100 deg.C) and using as the specification the viscosity of No. 4 fuel  oil (24.0 cs at 40 deg.C).     Given the choice of EPA‑derived viscosity values and ASTM values,  the majority of commenters supported the use of the ASTM physical  specification for viscosity. In addition, several commenters argued  that the viscosity specification should apply at the point  (temperature) that the fuel is fired rather than the point of  generation. Commenters pointed out that it is common practice to reduce  the as‑fired viscosity to promote good atomization and combustion  through blending with less viscous fuels or by warming the fuel to  above‑ambient temperature before firing. For example, while No. 6 fuel  oil has an elevated viscosity at ambient conditions, it is typically  stored and fired at temperatures which promote atomization and  combustion.     EPA is persuaded by commenters that basing our viscosity  specification on No. 4 fuel oil would possibly limit comparable fuels  similar to No. 6 fuel oil (one of the benchmark fuels) from qualifying  for the exclusion. EPA agrees that the viscosity specification should  be based on ASTM standard for No. 6 fuel oil (50 cs at 100 deg.C). The  ASTM standard represents the typical temperature and viscosity at which  No.6 fuel oil is fired. Thus, it is appropriate for a comparable fuel,  when fired, to have the same viscosity as No. 6 fuel when fired. This  will allow for a specification that is achievable for all liquid fossil  fuels.     Therefore, in this final rule, EPA is promulgating a kinematic  viscosity specification of 50 cs, as‑fired . The specification for  viscosity will only pertain to non‑gaseous fuels, because gases are  inherently less viscous than liquids. See Sec. 261.38(a)(1)(ii).     c. Flashpoint (proposed, but not promulgated). EPA proposed two  options for setting a minimum flashpoint specification: (1) Using a  value derived from the analyses EPA conducted; or (2) using the  requirements for flashpoint specified by ASTM. Under the ASTM option  for the composite fuel flashpoint specification, EPA took comment on  using the second lowest flash point as the specifications. (61 FR at  17465). This would have the effect of not considering the extremes,  flash point of gasoline (‑42 deg.C) and using as the specification the  flash point of No. 2 fuel oil (38 deg.C).     Several commenters opposed setting specifications for flash point.  Commenters argued that DOT and OSHA have developed and promulgated  regulations that control the hazards such materials can pose.  Commenters also argued that the specification would preclude burning  materials that are normally fuels such as methanol. EPA agrees with  commenters that DOT (49 CFR Parts 171 through 180) and OSHA (29 CFR  Part 1910) regulations adequately address the transportation and  handing of low flashpoint material and setting a flashpoint  specification under RCRA would be unnecessarily redundant with no  ostensible gain in protectiveness. In addition, by limiting the  exclusion to units subject to Federal/State/local air emission  requirements, comparable fuels will be burned in units subject to OSHA  requirements. (See Section H, below,  [[Page 33788]]  which discusses this requirement.) Therefore, EPA is not establishing a  flashpoint specification for the final rule. 2. General Constituent Specifications     In determining general constituent specifications and in  determining individual hazardous constituent specifications (see  following discussion), the Agency is concerned with the overall  environmental loading. Comparable fuels could have lower heating value  than the fossil fuels they would displace. In these situations, more  comparable fuel would be burned to achieve the same heat input, with  the result that more hazardous constituents would be fired and emitted  (e.g., halogenated organic compounds and metals) than if fossil fuel  were to be burned. This would lead to greater environmental loading of  potentially toxic substances, which is not in keeping with the intent  of the comparable fuels exclusion nor with RCRA's overall  protectiveness goals.     To address environmental loading, the approach used in this final  rule is to establish a minimum heating value specification comparable  to the BTU content of the benchmark fossil fuel(s). The Agency is  establishing the specification(s) for comparable fuels at a heating  value of 10,000 BTU/lb, which is near to what liquid commercial fuels  contain.<SUP>8</SUP> EPA chose 10,000 BTU/lb because it is typical of  current hazardous waste burned for energy recovery.<SUP>9</SUP>  However, candidate comparable fuels when generated initially can have  heating values very different than 10,000 BTU/lb. Therefore, under this  final rule, when determining whether a waste meets the comparable fuel  constituent specifications, a generator must first correct the  constituent levels in the candidate waste to a 10,000 BTU/lb heating  value basis prior to comparing them to the comparable fuel  specification tables. In this way, a facility that burns a comparable  fuel would not be feeding more total mass of hazardous constituents  than if it burned fossil fuels.<SUP>10</SUP> ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \8\ Constituent levels presented in today's final rule have been  corrected from the fuel's heating value (approximately 20,000 BTU/ lb) to 10,000 BTU/lb.     \9\ Consult USEPA, ``Final Technical Support Document for HWC  MACT Standards, Development of Comparable Fuels Specifications'',  May 1998.     \10\ Note that the heating value correction would apply only to  allowable constituent levels in fuels, not to detection limits.  Detection limits would not be corrected for heating value. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      a. Specification Levels for Halogenated Compounds. I. Summary. For  the final rule, EPA is using its composite benchmark approach to  establish a total halogen specification and allowing compliance with a  total organic halogen limit in lieu of complying with limits on  individual Appendix VIII halogenated compounds. Therefore, a comparable  fuels generator would have the option of complying: (a) with a total  organic halogen specification of 25 ppm plus the total PCB  specification or (b) with the all of the individual Appendix VIII  specifications for halogen compounds. In addition, in both cases, the  generator would also have to comply with the total halogen limit (which  includes both organic and inorganic halogens) of 540 ppm and with a  total PCB specification (non‑detect at a minimum required detection  limit of 1.4 ppm). See Sec. 261.38(a)(2), Table 1.     Compliance with a total organic halogen specification in lieu of  limits on individual halogenated compounds will ensure that measurable  levels of halogenated compounds will be no greater than in benchmark  fuels. In addition, the total organic halogen specification will result  in less sampling and analysis costs. Finally, the total halogen limit  (both organic and inorganic) will create a presumption that halogenated  products of incomplete combustion (PICs) generated from burning a  comparable fuel will not be emitted at higher levels than from burning  a benchmark fossil fuel.     ii. Total Halogen Rationale. Although total halogens are not listed  in Appendix VIII, Part 261, EPA proposed a total halogen specification  to establish a presumption that halogenated products of incomplete  combustion (PICs) generated from burning a comparable fuel would not be  emitted at higher levels than from burning a benchmark fossil fuel. See  proposal (61 FR at 17461) and subsequent notices of data availability  (61 FR 43502, August 23, 1996 and 61 FR 47402, September 9, 1997). PICs  resulting from the burning of halogenated organic compounds can pose a  particular hazard to human health and the environment.<SUP>11</SUP>  Using the benchmark approach, EPA proposed a composite fuel total  halogen limit of 25 ppm. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \11\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Standards, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      At the time of the proposal, EPA intended to establish a total  halogen limit that included both organic and inorganic halogens.  However, the total halogen data used by EPA in the proposed rule for  its No. 4 and No. 6 fuel oils were based on analytical methods  measuring only total organic halogens, not both organic and inorganic  halogens. Commenters raised concerns about including total halogen data  that did not include inorganic halogens because it did not represent  typical halogen content found in benchmark fuels. EPA was persuaded by  commenters' arguments and noticed additional total halogen data  gathered from its own database (i.e., Certifications of Compliance  (CoC) required by the Boilers and Industrial Furnace Rule) and data  submitted by one commenter. In addition, EPA will continue to use its  original gasoline and No. 2 fuel oil halogen data, which included both  organic and inorganic halogens. Using the additional data, the total  halogen specification would be 540 ppm for the composite benchmark  data. For further discussion, see NODA 61 FR at 47402.     In response to EPA's NODA, commenters argued that some of the data  should not be used to establish the total halogen specification due to  the use of inappropriate analytic methods. In particular, commenters  believe that CoC data from two facilities (Huntsman Polypropylene  Corporation and American Cyanamid) should not be included because the  analytical method used measured organic halogens only. In addition,  commenters believe that CoC data from another facility (Dow Chemical)  should not be included because the detection limit of the method used  to analyze for total halogens (ASTM Standard D 808) is not sensitive  below 1000 ppm, and unless some other, more sensitive analytical method  were followed afterward, the method could not have been effective at  the levels reported. EPA is persuaded by these commenters' arguments  and has excluded the data from these three facilities from its halogen  data set. Using this revised data set, the total halogen specification  would be 540 ppm for the composite benchmark data. For the final rule,  EPA is promulgating a total halogen specification of 540 ppm.     In response to the initial proposal, some commenters argued that  EPA should consider solid fuels like wood and coal in the development  of a total halogen specification. As discussed above, EPA has decided  not to include solid fuels in its benchmark specification. Thus, EPA is  not inclined to consider using solid fuels to set one of the  specifications. Also, EPA is concerned about the formation of  halogenated PICs from comparable fuels containing halogens. At this  time, EPA has no data to support a conclusion that the higher halogen  levels in solid fuels would not cause an increase in  [[Page 33789]]  halogenated PIC formation compared to benchmark fuels.     The Agency also received comment on an emissions‑based equivalency  determination to qualify for the total halogen specification. One  commenter argued that the Agency should consider the commenter's  candidate comparable fuel as a comparable fuel even though it cannot  meet the comparable fuel specification for total halogens. The Agency  considered the situation but, as indicated in the September 9, 1997  NODA (62 FR at 47403), continues to maintain that an emissions‑based  equivalency determination to the halogen specification on a national  regulatory basis would be inappropriate and infeasible at this time.     In response to EPA's NODA, the commenter argued that an equivalency  determination would not be administratively complex and that it could  involve a demonstration by the person applying for the equivalency  determination that the chemistry of the fuel is such that it is  incapable of forming halogenated PICs. EPA is not persuaded by the  commenter's arguments. For hydrocarbon‑based fuels, combustion  conditions (such as oxygen level, mixing, temperature, etc.) will have  an impact on non‑chlorinated and/or chlorinated PIC emissions.  Additionally, chlorine in both inorganic and organic forms in the waste  fuel can contribute to chlorinated PIC emissions. Dioxin/furans and  other chlorinated PICs have been detected from sources burning both  inorganic (e.g., salts) and/or organic chloride (e.g., plastics)  containing wastes.<SUP>12</SUP> Furthermore, if the Agency were to  develop an equivalency determination for total halogens, the  implementation details needed in a national regulation to ensure proper  combustion of halogenated wastes would be numerous, including, for  example, provisions on burner operating parameters, performance  testing, and monitoring. These details would almost certainly result in  a complicated conditional exclusion from the definition of solid waste  that is viewed as both potentially unworkable and very difficult to  implement on a national basis. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \12\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Standards, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      Therefore, EPA is not inclined at this time to consider developing  any national equivalency determination to the total halogen  specification. At some future point, perhaps as the Agency's  understanding of cause‑and‑effect relationships regarding emissions  from a wider variety of sources grows, EPA may be able to address  aspects of the commenter's recommendations if appropriate and feasible.     iii. Total Organic Halogen Rationale. As an additional part of its  proposal, EPA invited comment on whether a total halogen specification  could act as a surrogate for limits on individual halogenated compounds  found in Appendix VIII. In this case, EPA's proposed limit of 25 ppm  for total organic halogens would act as the surrogate for the  individual halogenated organics. Commenters supported the surrogate  approach and indicated that it would reduce the testing and  recordkeeping costs on the regulated community. EPA agrees that this  approach will simplify the comparable fuels specification and possibly  mean fewer and less costly sampling and analyses of comparable fuel  streams for generators.     However, some commenters raised concerns that a total halogen  analysis will not be an effective screen for some of the more hazardous  halogenated Appendix VIII constituents which could constitute a  potential risk at low detection levels (e.g., tetrachlorodibenzo‑p‑ dioxins). EPA calculated the equivalent constituent concentrations  using the minimum detection limit values for these hazardous  halogenated organics and determined that the 25 ppm total organic  halogen limit will be an effective screen for all of the chlorinated  dibenzofurans and chlorinated dibenzodioxins (i.e., the tetra‑ through  octa‑congeners). The minimum detection limits calculated for these  congeners ranged from 30 to 150 ppm and the 25 ppm organic halogen  specification will limit these congeners' concentrations to below those  minimum detection limits. Additional factors in this decision to use  the 25 ppm halogen limit as a screen for dioxins include the following:     (1) In particular, waste codes F020, F021, F022, F023, F026 and  F028 have been designated as ``inherently waste‑like'' under 40 CFR  261.2(d) and therefore are not eligible for the comparable fuel  exclusion;     (2) Wastes listed because they contain dioxins would also be  expected to contain significant levels of other halogenated organics.  (The reader should note that the compounds in question are typically  formed from the breakdown and reaction of other halogenated organics.)  The higher concentrations of these other halogenated organics would  drive the total organic halogen content of the waste up and, thus, the  contribution of any chlorinated dibenzofurans and dioxins would have to  be significantly less than the 25 ppm limit; and     (3) Waste codes expected to contain significant levels of other  halogenated organics can be readily discerned from their list  descriptions in 40 CFR 261 Subpart D (e.g., F001 and F002 solvent  wastes are defined as halogenated solvents; F024 includes waste from  production of halogenated organics.) In addition, Appendix III to Part  268 lists the halogenated organics typically found in hazardous wastes  and that are subject to land disposal restrictions under 40 CFR 268.32.  By comparing these, a person implementing today's rule could easily  determine the most likely waste codes that could contain halogenated  organics in excess of the 25 ppm limit, and thus easily identify wastes  not eligible for the comparable fuels exclusion. See also Section E  below for point of generation and blending/treatment discussions.     Commenters are also concerned that the use of a total organic  halogen surrogate will possibly mask illegal PCB disposal. Since low  analytical detection limits for PCBs (i.e., 1.4 ppm) in the benchmark  fuel matrices have been well‑demonstrated, the 25 ppm total organic  halogen limit would not be a sufficient screen. Since PCBs are  relatively common halogenated contaminants in fuel‑like wastes and the  probability of finding them is non‑trivial, EPA is keeping the limits  on PCBs to ensure levels no greater than from benchmark fuels. EPA also  points out that there are several relatively inexpensive analytical  screening methods that have been developed specifically for the  determination of total PCBs.     With regard to analysis methodology, commenters have indicated that  the test method (ASTM Method 4929) used by EPA to analyze for organic  halogens may not be appropriate to analyze their candidate comparable  fuel. EPA recognizes that the methods used in its own analysis of the  benchmark fuels may not be appropriate for some candidate comparable  fuels. Thus, in the final rule EPA is allowing the use of alternate  methods or modifications to current methods that meet the performance  based criteria in section Sec. 261.38(c)(7). It is the responsibility  of the generator to ensure that the sampling and analysis is unbiased,  precise, and representative of the waste. For further details, see  Section G. Sampling and Analysis, below.     b. Specification Levels for Nitrogenated Compounds. Although total  nitrogen is not listed on Appendix VIII, Part 261, EPA proposed a total  [[Page 33790]]  nitrogen specification to ensure that nitrogenated products of  incomplete combustion (PICs) from burning a comparable fuel would not  be emitted at higher levels than from burning a benchmark fossil fuel.  See proposal (61 FR at 17462) and a subsequent notice of data  availability (61 FR 43502, August 23, 1996). PICs resulting from  burning nitrogenated organic compounds can also pose a particular  hazard to human health and the environment.<SUP>13</SUP> ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \13\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Standards, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      Commenters generally did not address the issue of formation of  nitrogenated PICs. Instead, most commenters disagreed with the need to  establish a specification for nitrogen under RCRA's comparable fuel  specification when this pollutant (as NOx) is controlled under the  Clean Air Act (CAA). Commenters argued that EPA has the authority under  the CAA to control certain criteria pollutants, such as nitrogen oxides  and, in fact, has promulgated primary and secondary National Ambient  Air Quality Standards (NAAQS) for oxides of nitrogen. EPA believes that  a total nitrogen specification is necessary. The counter‑arguments  advanced do not address EPA's rationale for establishing a total  nitrogen limit. The CAA NAAQS do not themselves ensure control of  individual combustion units in a manner that prevents formation of  nitrogenated PICs, nor do they ensure that a hazardous waste‑derived  fuel would contain no greater amounts of nitrogenated compounds than  fossil fuels. EPA is therefore establishing a total nitrogen  specification to ensure that concentrations of nitrogenated PICs in  comparable fuels will be no greater than in benchmark fuels.     As an additional part of its proposal, similar to total halogens,  EPA invited comment on whether a total nitrogen specification could act  as a surrogate for limits on individual nitrogenated compounds found in  Appendix VIII. EPA believes that a surrogate approach would simplify  the comparable fuels specification and possibly mean fewer and less  costly sampling and analyses of comparable fuel streams for generators.  However, analysis of EPA's composite data results in a total nitrogen  specification of 4,900 ppm. The detection limits for EPA's analysis of  individual nitrogenated compounds in its benchmark fuels ranged from 1  to 2200 ppm. Since detection limits for nitrogenated compounds in the  benchmark fuels have been demonstrated well below 4,900 ppm, a total  nitrogen specification would not be a sufficient screen for individual  Appendix VIII nitrogenated compounds.     Therefore, for nitrogen compounds, EPA is promulgating a total  nitrogen specification of 4,900 ppm with individual Appendix VIII  nitrogen specifications. See Sec. 261.38(a)(2), Table 1. This approach  ensures that levels of individual nitrogenated compounds and the total  nitrogen concentration are no greater than the benchmark fuels and  creates a presumption that concentrations of nitrogenated PICs from  burning a comparable fuel are no greater than burning a benchmark fuel. 3. Individual Hazardous Constituent Specifications     To limit the Part 261, Appendix VIII constituents in comparable  fuels to those found in benchmark fossil fuels, the Agency calculated  concentration limits using the Agency's analysis of individual  benchmark fuel samples. Where EPA did not detect a particular Appendix  VIII constituent in the benchmark fuel, the Agency set the constituent  specification using one of two approaches. For constituents that the  Agency did not detect and did not have reason to believe would be  present in a benchmark fuel (e.g., halogenated organics), the  comparable fuel specification is ``non‑detect'' with an associated,  specified minimum required detection limit for each compound. The  detection limit is a statistically‑derived level based on the  quantification limit determined for each sample. While these  constituents should not be present, the Agency will allow non‑detects  lower than the detection limits that EPA was able to obtain. However,  EPA will not allow measured or quantified results below the specified  minimum required detection limit where ``non‑detect'' is the comparable  fuel specification. For metals, hydrocarbons, and oxygenates, the  Agency followed a different approach, which is described below.     a. Individual CAA and Appendix VIII Metals. EPA proposed  concentration levels or minimum required detection limits for all CAA  metals and RCRA Appendix VIII metals (61 FR at 17460). Commenters  argued that the Agency should modify its approach with respect to non‑ detect levels and allow the hazardous constituent to be present in the  comparable fuel up to the detection limit. In particular, commenters  argued that metals are expected to be present in petroleum products,  resulting from the formation process or the production process, and,  therefore, it is reasonable to assume that non‑detect metals in EPA's  benchmark analysis would be present up to the detection limit. EPA  agrees that metals could be present in fossil fuels but below EPA's  detection limits. Therefore, the final rule allows metals to be present  at any concentration less than or equal to the detection limits in  EPA's analysis.     In addition, as proposed, EPA is setting limits for two metals that  are not found on Part 261, Appendix VIII: cobalt and manganese. EPA  included these metals in the analysis because they are listed in the  Clean Air Act as hazardous air pollutants (HAPs). See CAA, section  112(b) and proposal (61 FR at 17460). By including these metal HAPs and  the RCRA metals listed on Appendix VIII, Part 261, the Agency will  ensure that the specification limits all toxic metals of concern in  hazardous wastes to levels present in the benchmark fossil fuels.  Therefore, EPA is promulgating constituent levels for the all CAA  metals and RCRA Appendix VIII metals at the largest value composite of  EPA fossil fuel data. See Sec. 261.38(a)(2), Table 1.     b. Individual Appendix VIII Toxic Organics. EPA is promulgating  constituent levels or minimum required detection limits for all Part  261, Appendix VIII, toxic organic constituents, unless otherwise noted.  See Sec. 261.38(a)(2), Table 1. Some Appendix VIII compounds were not  analyzed because a routine analytical method is not available. Because  EPA did not analyze for some compounds in Appendix VIII, EPA will not  be promulgating standards for these remaining Appendix VIII  constituents. These compounds are not listed in today's specifications,  and a comparable fuel generator will not have to comply with  specifications for these compounds. EPA believes it highly unlikely  that a hazardous waste‑derived fuel would contain only these  undetectable Appendix VIII constituents.     i. Specification Levels for Undetected Pure Hydrocarbons. EPA  proposed allowing pure hydrocarbons on Appendix VIII to be present at  any concentration less than or equal to the detection limits in EPA's  analysis. Since fossil fuels are comprised almost entirely of pure  hydrocarbons <SUP>14</SUP> in varying concentrations, it is possible  that many pure hydrocarbons in Appendix VIII, Part 261, could be  present in fossil fuel but below detection limits. These materials,  which include compounds such as fluoranthene, might not even be  considered solid wastes when burned in  [[Page 33791]]  their pure carbon form since they are themselves products. See  Sec. 261.2(c)(2)(ii), and see proposal (61 FR at 17461). ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \14\ Excluding sulfur, carbon and hydrogen comprise 99.6 to 100%  of liquid fossil fuels. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      Some commenters argued that no comparable fuels specifications  should be established for pure hydrocarbon compounds because pure  hydrocarbons will burn cleanly. EPA disagrees for the purpose of  today's rule because establishing no limits for Appendix VIII  hydrocarbons would depart from the basic comparable benchmark approach  and even relatively clean‑burning compounds may produce some toxic  emissions. EPA's analysis confirms that these compounds are not present  in the benchmark fuels above the minimum detection limits. However, it  is reasonable to assume that the ``non‑detect'' pure hydrocarbons could  in fact be present in fossil fuels up to the detection limit since  fossil fuels are comprised entirely of pure hydrocarbons. Therefore,  the final rule allows hydrocarbons in Appendix VIII to be present at  any concentration less than or equal to the detection limits in EPA's  analysis. See Sec. 261.38(a)(2), Table 1.     Some commenters argued that toluene, a typical fuel component,  should be allowed without limitation in comparable fuels. As discussed  above for all hydrocarbons, EPA disagrees with not establishing any  limits on toluene, or establishing a different specification not based  on fuel data, because this would depart from the comparable benchmark  approach. EPA has established the toluene specification at the fuel  data‑based concentration found in its benchmark fuel analysis. However,  because toluene can be a fuel component, setting a different data‑based  specification for toluene may be warranted at some point in the future,  and therefore EPA will continue to remain open to considering further  action.     ii. Specification Levels for Undetected Oxygenates. In addition to  the pure hydrocarbon compounds, EPA invited comment on whether  oxygenates should be allowed up to the detection limits in EPA's  analysis and on what would be an appropriate minimum oxygen‑to‑carbon  ratio to identify an oxygenate. (61 FR at 17461). Oxygenates are  organic compounds comprised solely of hydrogen, carbon, and oxygen and  can serve as fuels or fuel additives. Examples of oxygenates (not in  Appendix VIII and thus not RCRA regulated) include alcohols such as  ethanol, and ethers such as methyl tert‑butyl ether (MTBE). Appendix  VIII oxygenates are not routinely found in fossil fuels and only a few  oxygenates were detected in EPA's sampling and analysis program.     Several commenters supported allowing oxygenates at any  concentration less than or equal to the detection limit but also argued  that EPA should go a step further and set no specification limits for  oxygenated compounds. Commenters argued that oxygenates (like isobutyl  alcohol) burn well and promote good combustion of other constituents in  a fuel. Again, for the purpose of today's rule, EPA disagrees with not  establishing any limits on oxygenates because this would depart from  the basic comparable benchmark approach. EPA's analysis confirms that  these compounds are not present in the benchmark fuel above the minimum  detection limits and establishing a specification without fuel data  containing oxygenates would depart from the comparable fuel approach.  Furthermore, oxygenates are listed on Appendix VIII for their toxicity  and in particular, one group of organic oxygenates, organic peroxides,  can be extremely hazardous to manage. However, since most oxygenates  burn well and are not likely to produce significant PICs, EPA will  allow these compounds at any concentration less than or equal to the  detection limits found in EPA's analysis.     EPA notes that the Clean Air Act provides for the use of some  oxygenates (like isobutyl alcohol) as additives in unleaded gasoline  and it may be appropriate to consider their use in a comparable fuel.  However, at the time of this final rulemaking, EPA had no fuel data in  which these oxygenates were used as gasoline additives and thus was not  able to set a specification different than in today's final rule. As  discussed above, any approach without using fuel data would depart from  the comparable fuel approach. However, setting data‑based  specifications for certain oxygenates may be warranted at some point in  the future, and therefore EPA will continue to remain open to  considering further action.     With regard to a minimum oxygen‑to‑carbon ratio to define an  oxygenate, one commenter recommended defining oxygenates simply as  aliphatic compounds comprised of carbon, hydrogen, and oxygen. If EPA  was intent on defining an oxygen‑to‑carbon ratio, other commenters  recommended a ratio of 0.266, which is the ratio for MTBE. Defining an  oxygenate with a minimum oxygen‑to‑carbon ratio or limiting the  definition to only aliphatics is more conservative than necessary.  Instead, EPA is defining an oxygenate as any compound comprised solely  of hydrogen, carbon, and oxygen.     In summary, the final rule allows oxygenates, defined as any  compound comprised solely of hydrogen, carbon, and oxygen, at any  concentration less than or equal to the detection limits in EPA's  analysis. See Sec. 261.38(a)(2), Table 1.  D. Parameters for the Synthesis Gas Fuel Exclusion      In today's final rule, EPA is also excluding from the regulatory  definition of solid waste (and, therefore regulation as hazardous  waste) a particular type of hazardous waste‑derived fuel, namely a type  of synthesis gas (``syngas'') fuel meeting particular specifications.  The exclusion applies to syngas that results from the thermal reaction  of hazardous wastes by a process designed to generate both hydrogen gas  (H<INF>2</INF>) and carbon monoxide (CO) as usable fuel. See proposal  (61 FR at 17465).     Some commenters stated that synthesis gas fuels are beyond EPA's  regulatory authority because they are uncontained gases. EPA has broad  statutory authority to regulate fuels produced from hazardous wastes.  RCRA section 3004 (q) (1); see also Horsehead Resource Development Co.  v. Browner, 16 F. 3d 1246, 1262 (D.C. Cir. 1994) (broadly construing  this authority). The fact that syngas (by definition) is a gas, rather  than a solid or liquid, does not appear to raise jurisdictional issues.  It is still produced from the hazardous wastes that are being processed  thermally. See Sec. 261. 2 (c) (2) (A) and (B) (defining such materials  as solid wastes). EPA believes its authority to be clear under these  provisions.     EPA also received a number of comments from persons operating  synthetic gasification processes within the petroleum industry. These  comments also argued that the Agency was without legal authority to  regulate the fuel output of these processes even if the processes use  hazardous waste as a feed material. The Agency has in fact adjudicated  the status under existing regulations of such a unit, indicating that  while both the process and the fuel output are within RCRA subtitle C  jurisdiction, the process is a type of exempt recycling unit under 40  CFR 261.6(c)(1) and the fuel is also exempt under Sec. 261.6(a)(3).  Letter of Michael Shapiro (Director of Office of Solid Waste) to  William Spratlin (Director RCRA Division EPA Region VII) (May 25,  1995).     Upon reflection, it appears that these petroleum gasification  operations may be similar to other within‑petroleum industry recycling  activities that EPA has proposed to exclude from Subtitle C  jurisdiction in the petroleum listing rule  [[Page 33792]]  proposed on November 20, 1995. 60 FR 57747. It therefore appears more  appropriate to consider this overall jurisdictional issue in the  context of that rulemaking. However, EPA is not at this time limiting  the synthetic gas fuel exclusion insofar as it potentially applies to  the output of gasification operations conducted as part of normal  petroleum refining (SIC Code 2911). Thus, these syngas fuels can also  be eligible for the exclusion in today's rule.     To ensure that any excluded hazardous waste‑derived syngas contains  low levels of hazardous compounds relative to levels in fossil fuels,  the Agency is setting a series of syngas specifications addressing: (1) physical specifications:  ‑‑Minimum Btu value (Btu/scf);  (2) general constituent specifications for:  ‑‑Total halogen (ppmv) ‑‑Total nitrogen (ppmv) ‑‑Hydrogen Sulfide (ppmv)  (3) individual hazardous constituent specifications, for:  ‑‑Individual Appendix VIII constituents (ppmv) 1. Physical Specifications     a. Minimum Btu value. Like the comparable fuel specification, EPA  proposed that syngas fuel have a minimum Btu value of 5,000 Btu/lb.  Commenters had several concerns with this specification. First,  commenters noted that the heating value of a gas is almost universally  measured in units of Btu per unit volume (``scf''). Second, commenters  argued that due to the efficiencies of combustion, a gas can be used as  a fuel even though its heating value, when expressed in terms of Btu  per pound, is less than 5000. Commenters argued that using fuels with  significantly higher Btu per scf could actually degrade efficiency of  gas turbine electric generation systems and increase air emissions. For  example, syngas with a heating value of 5000 Btu per pound would have  to be diluted to reduce its heating value to enable a combustion  turbine to meet NO<INF>X</INF> emission limits. Furthermore, commenters  argued that in many potential applications, syngas produced from  hazardous waste would be used as a substitute for syngas produced from  fossil fuels or syngas produced from non‑hazardous secondary materials.  Syngas produced from coal, coke, and certain types of secondary  materials, with heating values less than 5000 Btu per pound (when  expressed in these terms), are currently used as fuels.     EPA agrees with commenters' concerns with regard to the heating  value of syngas. To set an appropriate heating value, EPA investigated  the heating values of syngas currently manufactured for use as a  fuel.<SUP>15</SUP> For fuel usage related purposes, syngas is  classified as either medium‑ or low‑Btu gases (medium‑Btu generally  being produced with pure oxygen, low‑Btu generally with air). Medium‑ Btu syngas generated from the gasification of fuels (including coal,  fuel oil, biomass, municipal solid wastes, plastics, etc.) with pure  oxygen typically has heating values from 200 to 400 Btu/scf. Medium‑Btu  syngas can typically be used as a fuel for power production in a gas  turbine. Low‑Btu syngas generated from the gasification of fuels with  air has heating values from about 100 to 200 Btu/scf. In most cases,  low‑Btu syngas does not achieve temperature and expansion ratios needed  for thermodynamically efficient power generation. Low‑Btu syngas is  usually mixed with higher energy sources and is not generally desired  for most applications. However, EPA notes that there are certain  specifically designed gas turbines (with very large ``silo'' combustion  chambers) that can handle very low‑Btu (100 Btu/scf) syngases for power  generation. Thus, a heating value of 100 Btu/scf is reasonable for  syngas because it represents fuels used as legitimate energy sources.  Therefore, EPA is establishing a minimum Btu value of 100 Btu/scf for  synthesis gas. See Sec. 261.38(b)(1). ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \15\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Standards, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑  2. General Constituent Specifications     a. Total Halogen Specification. As proposed, EPA is promulgating a  total halogen specification for synthesis gas fuels of less than 1  ppmv. Like comparable fuels, EPA is establishing a total halogen  specification to limit the formation of halogenated PICs from the  burning of the hazardous waste‑derived syngas fuel. EPA has looked at  syngas manufactured from non‑hazardous waste sources, such as coal, and  concludes that 1 ppmv is a reasonable specification for total halogen  for a synthesis gas fuel. See Sec. 261.38(b)(2).     b. Total Nitrogen Specification. EPA proposed a total nitrogen  specification of less than 1 ppmv of total nitrogen, other than  diatomic nitrogen (N<INF>2</INF>). Like comparable fuels, EPA was  concerned about the formation of nitrogenated PICs from the nitrogen  contained in the hazardous waste‑derived syngas fuel. Commenters argued  that regardless of whether nitrogen is present in the syngas, when  syngas is burned, NO, NO<INF>2</INF> and NO<INF>X</INF> will always  form, as nitrogen present in the air combines with oxygen in the  syngas, the air or both. In addition, commenters argued that the Agency  or authorized states already regulate the emissions of these air  pollutants through the issuance of air permits. Furthermore, commenters  argued that nitrogen in the syngas would not lead to the formation of  PICs.     EPA disagrees with the commenters that a total nitrogen  specification is unnecessary and believes that the comments did not  address EPA's rationale for a total nitrogen limit. EPA is establishing  a total nitrogen specification to limit the formation of nitrogenated  PICs. Diatomic nitrogen is not included in a total nitrogen  specification because only organic‑bound nitrogen compounds are  expected to form PICs. However, a total nitrogen specification based on  syngas used as a fuel is a more appropriate specification. EPA has  looked at syngas currently manufactured for use as a fuel to establish  a total nitrogen specification. Nitrogen compounds in syngas (other  than N<INF>2</INF>) are mostly in the form of HCN or NH<INF>3</INF>.  Syngas manufactured from coal can have HCN and NH<INF>3</INF> levels of  100 to 300 ppmv.<SUP>16</SUP> A total nitrogen specification of 300  ppmv would ensure that concentrations of nitrogenated PICs in waste‑ derived syngas will be no greater than syngas manufactured from coal.  Therefore, in today's final rule, EPA is promulgating a total nitrogen  specification of 300 ppmv, other than diatomic nitrogen (N<INF>2</INF>)  for synthesis gas fuel. See Sec. 261.38(b)(3). ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \16\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Rule, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      c. Hydrogen Sulfide Specification. EPA proposed a hydrogen sulfide  (H<INF>2</INF>S) specification of 10 ppmv for syngas fuels. Commenters  argued that the H<INF>2</INF>S specification is not necessary because  the Clean Air Act has specifications that restrict the amount of sulfur  that can be emitted by sources that would likely burn syngas fuel  (i.e., boilers, combustion turbines). In addition, commenters argued  that the potential of facilities that burn syngas as a fuel to emit  sulfur compounds is low in comparison to facilities burning fossil  fuels. For example, facilities that produce power by burning syngas  produced from the gasification of coal emit approximately one‑fifth of  the level of sulfur compounds emitted by similar facilities burning  coal.     EPA disagrees with the commenters that no hydrogen sulfide  specification  [[Page 33793]]  should be promulgated. EPA is establishing the syngas exclusion by  limiting Part 261 Appendix VIII constituents, one of which is hydrogen  sulfide. However, a more appropriate specification would be based on  current applications where syngas is used as a fuel, rather than the  proposed specification of 10 ppmv. To set an appropriate hydrogen  sulfide specification, EPA investigated the hydrogen sulfide levels in  syngases currently manufactured from non‑hazardous waste sources for  use as a fuel.     The sulfur content of the material used to produce the syngas is  converted to almost entirely H<INF>2</INF>S in the gasification  process, with smaller amounts of carbonyl sulfide (COS). Syngas  produced from low sulfur content material does not contain appreciable  H<INF>2</INF>S. The H<INF>2</INF>S content of high sulfur coal‑based  syngas can be over 1000 ppmv. However, in these cases, H<INF>2</INF>S  is removed during the gasification process. The amount of  H<INF>2</INF>S removal is dependent on how the syngas will be used. In  the case of syngas used for chemical feedstock, the H<INF>2</INF>S  removal can be to a level under 1 ppmv. For the case of syngas used for  fuel, H<INF>2</INF>S removal can range to levels between 50 and 200  ppmv (above 200 ppmv leads to corrosion of down stream gas handling  equipment, such as turbine blades.<SUP>17</SUP> Thus, 200 ppmv  represents the level of H<INF>2</INF>S in gas currently used in  applications where syngas is used as a fuel. Therefore, in this final  rule, EPA is promulgating a H<INF>2</INF>S specification of 200 ppmv  for synthesis gas fuels. See Sec. 261.38(b)(4). EPA further notes that  H<INF>2</INF>S removal is considered as part of the gasification  process and a syngas generator is required to meet the H<INF>2</INF>S  specification after this removal process. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \17\ For further discussion see USEPA, ``Final Technical Support  Document for HWC MACT Rule, Development of Comparable Fuels  Specifications'', May 1998. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑  3. Individual Hazardous Constituent Specifications     As proposed, EPA is promulgating specifications of less than 1 ppmv  for each hazardous constituent listed in Appendix VIII of part 261  (that could reasonably be expected to be in the gas). Having received  no comments to the contrary, this a reasonable specification for  Appendix VIII constituents in a synthesis gas fuel. See  Sec. 261.38(b)(5). Since EPA is promulgating a total halogen  specification for syngas and since this specification ensures that the  excluded syngas has less than 1 ppmv of individual halogenated  compounds, a syngas generator would not be expected to analyze for the  individual halogenated compounds in Appendix VIII. However, a syngas  generator would be expected to analyze for the individual nitrogenated  compounds in Appendix VIII since a total nitrogen specification of 300  ppmv would not ensure that individual nitrogenated compounds would be  limited to 1 ppmv. In addition, a syngas generator would be expected to  analyze for the Appendix VIII constituents identified in the comparable  fuels specification. See Sec. 261.38(a)(2) Table 1.  E. Meeting the Comparable Fuel Specifications  1. Potential Applicability of Today's Rule to Specific Waste Codes     The probability of today's rule being applicable to any specific  hazardous waste is highly dependent upon the waste codes assigned to  that waste as well as the industry generating the waste. In developing  the Land Disposal Restrictions (40 CFR part 268) and in developing the  listings of hazardous wastes (40 CFR part 261), the majority of the  listed hazardous wastes were analyzed for concentrations of specific  hazardous constituents. EPA has already determined that the majority of  listed hazardous wastes (i.e., those having codes beginning with ``F'',  ``K'', ``U'' or ``P'') are known to contain at least one of the  hazardous constituents that are restricted by today's rule to ``non‑ detect'' levels. Appendix VII to Part 261 provides a partial list of  hazardous constituents that are known to be present in each Listed  Waste code, and the Treatment Standards for Hazardous Wastes (40 CFR  268.40) indicate constituents (and concentrations) that are  specifically regulated for land disposal for each waste code. The  majority of these constituents and waste codes are restricted to ``non‑ detect'' levels in today's rule and so a potential comparable fuel  containing these constituents either could not be used, or would have  to be treated so that the hazardous constituents are removed or  destroyed to non‑detect levels. See treatment discussion below, Section  E.4. It is possible, however, that an organic solvent or oil could  carry one of these codes, based on the derived‑from rule only, and  could comply with the limits in today's rule. As such, EPA did not  restrict the application of today's rule to any waste code, except in  the case of wastes listed for the presence of dioxins or furans. See  261.38(c)(12). However, EPA does not expect that corrosive or reactive  wastes would be candidate comparable fuels because of the detrimental  impacts on the burning unit that would occur.     At the same time, there are specific listed waste codes that EPA  expects to contain only those constituents for which today's rule sets  maximum allowable concentrations. As such, some wastes with these codes  would be likely candidates for compliance with the corresponding  constituent limits. These applicable wastes are primarily expected to  be: ignitable solvent wastes (F003 and F005), wastes from petroleum  production (F037, F038, and K048‑51), and wastes from coking operations  (K060, K087, K141‑145, K147 and K148). Table 1 also lists a set of U  waste codes and their corresponding constituents that may be applicable  depending upon their concentrations.     It is expected that today's rule will primarily be applied to  wastes that are classified as hazardous only because they exhibit the  hazardous characteristic of ignitability (D001) and/or corrosivity  (D002). In comparing the regulatory levels for characteristic metal  wastes (D004‑D011) and the corresponding allowable limits for these  metals in today's rule, there is an extremely small window of  applicability for some wastes identified as D006 (cadmium) or D009  (mercury) and likewise a relatively small window of applicability for  some D008 wastes (lead). All other characteristic metal wastes fail the  limit restrictions for metals. D003 wastes that are classified as  hazardous due to their cyanide (CN) content are expected, for the most  part, to fail to meet the specification for total nitrogen. Except for  D018 wastes (benzene), wastes that are characteristic for organics  (D012‑D043) are also expected to be unable to comply with either the  limits or the ``non‑detect'' requirements.     All wastes consisting primarily of alcohols (e.g., ethanol or  isopropanol), petroleum distillates, oils, or other ignitable organic  liquids) are the most likely candidates for applying today's rule. This  is quite logical in that these chemicals tend to have good fuel value  when compared to the fuels examined for today's rule. The most probable  listed wastes that are expected to be able to comply with today's rule  are F003 and F005 solvents (except those F005 wastes containing carbon  disulfide, pyridine, or nitrobenzene). There are an additional number  of ``U'' wastes identified in Table 2 that are also good candidates for  compliance with today's rule. These chemicals are either hydrocarbons  or oxygenated hydrocarbons for which today's rule does not establish  any limits.     Because of the potential for cross‑contamination, wastes from  facilities  [[Page 33794]]  (e.g., pesticide manufacturers and halogenated solvent manufacturers)  known to manufacture concentrated forms of the chemicals restricted by  today's rule, are the most likely to require closer scrutiny and  testing. However, wastes generated by these facilities that are not  expected to be cross‑contaminated would include non‑contact solvents,  hydraulic or lubricating oils, and solvent‑based wastes from the  production of unregulated constituents.     Table 1.‑‑Listed ``U'' Wastes With Corresponding Constituent Limits   ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑    Constituent for which the code was listed           Waste  code       ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Acetophenone..................................  U004                     Benz[a]anthacene..............................  U018                     Benzene.......................................  U019                     Benzo(a)pyrene................................  U022                     Bis(2‑ethylhexyl) phthalate...................  U028                     Chrysene......................................  U050                     Creosote......................................  U051                     Cresol cresylic acid (total cresols)..........  U052                     Dibenz[a,h]anthracene.........................  U063                     Di‑n‑butyl phthalate..........................  U069                     Diethyl phthalate.............................  U088                     7,12‑Dimethylbenz[a]anthracene................  U094                     Di‑n‑octyl phthalate..........................  U107                     Fluoranthene..................................  U120                     Indeno(1,2,3‑cd) pyrene.......................  U137                     3‑Methylcholanthrene..........................  U157                     Naphthalene...................................  U165                     Toluene.......................................  U220                     Acrolein......................................  P003                     Allyl alcohol.................................  P005                     Endothall.....................................  P088                     Propargyl alcohol.............................  P102                     Ethyl methacrylate............................  U118                     Isobutyl alcohol..............................  U140                     Isosafrole....................................  U141                     Methyl ethyl ketone [2‑Butanone] [MEK]........  U159                     Methyl methacrylate...........................  U162                     1,4‑Naphthoquinone............................  U166                     Phenol........................................  U188                     Safrole.......................................  U203                     2‑Ethoxyethanol [Ethylene glycol monoethyl      U359                      ether].                                                                 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑    Table 2.‑‑Listed ``U'' Wastes With No Corresponding Constituent Limits  ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑   Constituent for which the waste was listed           Waste code        ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Acetaldehyde [Ethanal]........................  U001                     Acetone [2‑Propanone].........................  U002                     2‑Acetylaminofluorene [2‑AAF].................  U005                     Acrylic acid..................................  U008                     Benz[c]acridine...............................  U016                     n‑Butyl alcohol [n‑Butanol]...................  U031                     Carbon oxyfluoride............................  U033                     Crotonaldehyde................................  U053                     Cumene [Isopropyl benzene]....................  U055                     Cyclohexane...................................  U056                     Cyclohexanone.................................  U057                     Dibenzo[a,i]pyrene............................  U064                     1,2:3,4‑Diepoxybutane [2,2'‑Bioxirane]........  U085                     <variable>,<variable>‑Dimethyl benzyl           U096                      hydroperoxide.                                                          2,4‑Dimethylphenol............................  U101                     Dimethyl phthalate............................  U102                     1,4‑Dioxane [1,4‑Diethyleneoxide].............  U108                     Ethyl acetate.................................  U112                     Ethyl acrylate................................  U113                     Ethylene oxide................................  U115                     Ethyl ether...................................  U117                     Formaldehyde..................................  U122                     Formic Acid...................................  U123                     Furan.........................................  U124                     Furfural......................................  U125                     Glycidylaldehyde..............................  U126                     Maleic anhydride..............................  U147                     Methanol......................................  U154                     Methyl ethyl ketone peroxide..................  U160                     Methyl isobutyl ketone [4‑Methyl‑2‑pentanone].  U161                     Paraldehyde...................................  U182                     1,3‑Pentadiene................................  U186                     Phthalic anhydride............................  U190                     Quinone [p‑Benzoquinone]......................  U197                     Resorcinol....................................  U201                     Tetrahydrofuran...............................  U213                     Xylenes, mixed isomers [Xyenes, total]........  U239                     ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑  2. General     The proposal provided several methods by which a hazardous waste  could qualify as a comparable fuel. The final rule retains these  methods and adds clarifying conditions to ensure that the methods do  not violate existing policy with regard to blending and treatment. The  person claiming that a hazardous waste meets the exclusion criteria of  this rule will be referred to as the ``comparable fuel generator,'' in  the case of excluded liquid fuel, or ``syngas fuel generator,'' in the  case of excluded syngas fuel. In today's final rule, a hazardous waste  can meet the comparable fuel hazardous constituent, heating value and  viscosity specifications of Sec. 261.38(a) in several ways. However, in  each case, the generator claiming the exclusion is responsible for  demonstrating eligibility. In addition, just meeting the hazardous  constituent, heating value and viscosity specifications would not  qualify a hazardous waste for the exclusion. The implementation  requirements of Sec. 261.38(c) (e.g., notification, certification,  sampling and analysis, recordkeeping) must also be satisfied for a  hazardous waste to be excluded as a comparable fuel.     A waste can meet the Sec. 261.38(a)(2) hazardous constituent  specification if the hazardous waste ``as generated,'' i.e. without any  processing, blending or other alteration: (a) Meets the hazardous  constituent specification; or (b) does not meet the hazardous  constituent specification, but undergoes treatment, pursuant to  Sec. 261.38(c)(4), so that the hazardous constituents of concern are  destroyed or removed to concentrations that meet the exclusion  specification.     A waste can meet the Sec. 261.38(1)(i) heating value specification  if the hazardous waste as generated without processing: (a) Meets the  heating value specification; or (b) does not meet the hazardous  constituent specification, but undergoes treatment, pursuant to  Sec. 261.38(c)(4), that destroys or removes material to increase the  heating value to meet the exclusion specification.     A waste can meet the Sec. 261.38(a)(1)(ii) viscosity specification  if the hazardous waste as generated without processing: (a) Meets the  viscosity specification; (b) does not meet the viscosity specification,  but through blending, pursuant to Sec. 261.38(c)(3) with fossil fuel,  another excluded comparable fuel, or other non‑waste changes the  viscosity to meet the exclusion specification; or (c) does not meet the  viscosity specification, but undergoes treatment, pursuant to  Sec. 261.38(c)(4) that destroys or removes material to decrease the  viscosity to meet the exclusion specification. 3. Blending     Commenters supported allowing the blending of a hazardous waste  that meets the constituent and heating value specifications for the  purpose of decreasing viscosity. However, commenters were concerned  that blending could dilute toxic constituents and said that blending  should only be allowed if toxic constituents in the hazardous waste  would not be diluted. In today's final rule, the Agency allows an as‑ generated hazardous waste, which meets the hazardous constituent and  heating value specifications, but does not meet the viscosity  specification, to be blended to meet the viscosity specification (see  Sec. 261.38(a)). The generator must document that the hazardous waste,  as generated without processing, meets the hazardous constituent and  heating value specifications prior to any blending. It is also the  responsibility of the generator to document that the blending does not  violate the dilution prohibition of Sec. 261.38(c)(6). This provision  states that the hazardous constituent and heating  [[Page 33795]]  value specifications cannot be met through dilution; i.e. they can only  be met through treatment which destroys or removes hazardous  constituents, or by the waste as‑generated. See generally 61 FR at  15586‑87 (April 8, 1996) (extending dilution prohibition in Sec. 268.3  to include combustion of inorganic wastes). Allowing blending to meet  the hazardous constituent or heating value specification simply  increases the amounts of hazardous constituents emitted when the fuels  are burned, and would increase these amounts above those emitted if  fossil fuels were burned instead. This is at inconsistent with the  whole premise of comparable fuels, and also is inconsistent with the  section 3004(m) hazardous waste treatment provisions (which, although  not directly applicable, articulate important overall statutory  objectives) which require hazardous constituents to be removed or  destroyed by treatment, not diluted. Chemical Waste Management v. EPA,  976 F. 2d 2, 16 (D.C. Cir. 1992). As noted earlier, such burning can be  viewed as part of the waste management problem, and EPA may validly  condition the exclusion to prevent that result.     Blending of a hazardous waste pursuant to Sec. 261.38(c)(3) to  meets the viscosity specification obviously may be performed only in  regulated units: at a permitted RCRA treatment, storage facility; a  regulated interim status treatment, storage facility; or at a 90‑day  generator unit meeting the requirements of Sec. 262.34. 4. Treatment     Commenters also supported the proposal to allow a hazardous waste  to be treated to meet the comparable fuel specifications. Many of the  same commenters also expressed concerns that any treatment allowed  should reduce emissions of hazardous constituents, i.e. treatment must  destroy or remove the constituents or materials of concern. The Agency  agrees, and Sec. 261.38(c)(4) specifically states that only treatment  which destroys or removes hazardous constituents or materials is  permissible. Moreover, as noted above, the waste remains subject to  subtitle C control during treatment and thus treatment can only occur  in regulated units. (Treatment by blending to meet the viscosity  specification likewise can only occur in regulated units, for the same  reason.)     It is the responsibility of the generator claiming the exclusion to  demonstrate eligibility. See generally Sec. 261.2(f). It should be  noted that just meeting the hazardous constituent, heating value and  viscosity specifications would not qualify a hazardous waste for the  exclusion; the implementation requirements of Sec. 261.38(c) (e.g.,  notices, certification, sampling and analysis, recordkeeping, etc.)  also must be satisfied for a hazardous waste to be excluded as a  comparable fuel. The person that treats the hazardous waste to generate  a comparable fuel must also demonstrate that the treatment of the  hazardous waste destroys or removes the hazardous constituents or  materials of concern from the waste. The treater must: (1) Document  that the unit that will treat the hazardous waste has been demonstrated  to effectively remove or destroy the hazardous constituents (at the  levels present in the waste) or materials of concern from the type of  waste being treated; or (2) treat the waste in a unit that removes or  destroys the constituents of concern, then reanalyze the waste, in  accordance with the requirements of Sec. 261.38(c)(8), to document that  the constituent specifications have been satisfied.     If a hazardous waste is treated to produce a comparable fuel, only  the waste‑derived fuel would be excluded from RCRA subtitle C  regulation upon a determination that it met the specification. The  hazardous waste would be regulated under Subtitle C from the point of  generation until the generation of a comparable fuel that meets the  exclusion specifications and implementation requirements. This means  that the generation, transport, storage, and treatment of the hazardous  waste, until exclusion as a comparable fuel, remains subject to  applicable Subtitle C regulations.     In addition, residuals from the treatment of a hazardous waste  remain solid waste and, if hazardous, are subject to applicable  Subtitle C regulations. Thus, if comparable fuel is produced from  treatment of listed hazardous waste, the wastes from that process are  automatically hazardous by virtue of the derived from rule. (See the  derived‑from rule in Sec. 261.2(d).)  F. Meeting the Syngas Specifications      Commenters felt the proposal was not very specific in describing  ways in which a syngas fuel could be generated from hazardous waste.  The final rule makes clear that a hazardous waste can meet the syngas  fuel constituent and heating value specifications through the treatment  of the hazardous waste. As with comparable fuels, it is the  responsibility of the generator claiming the exclusion to demonstrate  eligibility. The treatment of a hazardous waste to generate a syngas  fuel can occur in either: (1) A unit subject to applicable Subtitle C  treatment, storage and disposal requirements (i.e., Parts Sec. 264,  Sec. 265 or Sec. 262.34); or (2) a recycling unit exempt under  Sec. 261.6(c).     The generator of the syngas fuel must demonstrate that the  treatment of the hazardous waste destroys or removes the hazardous  constituent of concern from the waste. A generator of syngas fuel from  the treatment of hazardous waste must: (1) Document that the unit that  will process the hazardous waste has been demonstrated to effectively  remove or destroy the hazardous constituents of concern from the type  of waste being treated; and (2) process the hazardous waste in a unit  that removes or destroys the constituents of concern, then analyze the  waste in accordance with the requirements of Sec. 261.38(c)(8) to  document that the exclusion specifications have been satisfied. If a  hazardous waste is processed to produce a syngas fuel that meets the  exclusion specifications, only the syngas fuel would be excluded from  RCRA subtitle C regulation.     In addition, residuals from the treatment of a hazardous waste to  generate an excluded syngas fuel remain solid waste and are subject to  applicable Subtitle C regulations if they are also hazardous wastes.  Residuals from the treatment of a listed hazardous waste to generate a  syngas fuel remain hazardous wastes due to the derived‑from rule: the  residuals are derived from treatment of listed hazardous wastes.  G. Sampling and Analysis      Commenters expressed concern that the Agency proposed: (1) To  initially require sampling and analysis for all Appendix VIII  constituents; (2) to require the use of SW‑846 methods to conduct  sampling and analysis of Appendix VIII constituents; and (3) to also  require the use of the same methods for syngas as for comparable fuels.  In response to commenters concerns, the Agency is finalizing the  following approaches to sampling and analysis of comparable fuel and  syngas fuel. 1. Use of Process Knowledge     A majority of commenters believed that EPA should allow the use of  process knowledge under limited circumstances in determining which  constituents to test for in the initial scan as well as any follow up  testing. The Agency agrees with commenters. Generators of hazardous  wastes should have adequate knowledge of their waste to allow the use  of process knowledge in determining which constituents may and may not  be present in their waste.     The use of process knowledge may only be used by the original  generator of  [[Page 33796]]  the hazardous waste. If the generator of the hazardous waste and  generator of the comparable/syngas fuel are different, then the  generator of the comparable/syngas fuel may not use process knowledge  to determine that constituents are not present in the waste. The  generator of the comparable/syngas fuel, if not the original generator  of the hazardous waste, must test for all of the constituents and  properties in Sec. 261.38(a)(2) Table 1 of the regulations. This is  because the Agency believes that only the original generator may have  intimate knowledge of the constituents in the waste to make such a  determination. See Sec. 268.7, where EPA uses the same approach for  analyzing compliance with LDR treatment standards; see also Hazardous  Waste Treatment Council v. EPA, 886 F. 2d 355, 368‑71 (D.C. Cir. 1989)  (upholding this approach).     Therefore, the final rule allows the use of process knowledge under  certain circumstances. Today's rule requires testing for all  constituents except those the initial generator of the hazardous waste  determines should not be present in the waste. The following cannot be  determined to ``not be present'' in the waste: (1) A hazardous  constituent that causes the waste to exhibit the toxicity  characteristic for the waste or hazardous constituents that were the  basis for the listing of the waste; (2) a hazardous constituent  detected in previous analysis of the waste; (3) a hazardous constituent  introduced into the process that generates the waste; or (4) a  hazardous constituent that is a byproduct or side reaction to the  process that generates the waste.     It is the responsibility of the original generator/comparable fuel  generator to document their claim that specific hazardous constituents  meet the exclusion specifications based on process knowledge.  Regardless of which method a generator uses, testing or process  knowledge, the generator is responsible for ensuring that the waste  meets all constituent specifications at all times. If at any time the  comparable fuel fails to meet any of the specifications, that fuel is  in violation of Subtitle C requirements. 2. Waste Analysis Plan     As in the proposal, the final rule requires comparable fuel  generators to develop a waste analysis plan prior to sampling and  analysis of their hazardous waste to determine if the waste meets the  exclusion specifications. This is consistent with the usual requirement  throughout the Subtitle C rules that persons generating and treating  hazardous waste must prepare a waste analysis plan. See, e.g.  Sec. 264.13 (general waste analysis plans) and Sec. 268.7(a)(4)  (requiring even generators using 90‑day units for treatment to prepare  waste analysis plans with respect to hazardous waste prohibited from  land disposal). To ensure that the chemical/physical measurements of  the waste are sufficient, accurate and precise, the Agency is requiring  comparable fuel generators to develop a waste analysis plan, and  suggest doing so in accordance with Agency guidance. Chapter Nine of  ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods''  (SW‑846) addresses the development and implementation of a  scientifically credible sampling plan. Chapter One of SW‑846 describes  the basic elements to be included in a Quality Assurance Project Plan  (QAPP), as well as information describing basic quality assurance (QA)  and quality control (QC) procedures. Chapter Two of SW‑846 aids the  analyst in choosing the appropriate methods for samples, based upon  sample matrix and the analytes to be determined.     Comparable fuel generators may want to follow the SW‑846 guidance  in developing their waste analysis plans. As specified in the  recordkeeping section of the rule (Sec. 261.38(c)(10)) the generator  also must have documentation of the: (1) Sampling, analysis, and  statistical analysis protocols that were employed; (2) sensitivity and  bias of the measurement process; (3) precision of the analytical  results for each batch of waste tested; and (4) results of the  statistical analysis. 3. Methods To Analyze Comparable Fuels     In the proposal, EPA required the use of SW‑846 methods for the  sampling and analysis of wastes to determine if the waste meets the  comparable fuel exclusion constituent specifications. Based on  commenter response and the Agency's overall increased use of  alternative methods to those specified in SW‑846, the final rule allows  the use of alternate methods that meet the performance based criteria  in section Sec. 261.38(c)(8).     The approach allows comparable/syngas fuel generators to use any  reliable analytical method to demonstrate that no constituent of  concern is present at concentrations above the specification levels. It  is the responsibility of the generator to ensure that the sampling and  analysis is unbiased, precise, and representative of the waste. For the  waste to be eligible for exclusion, a generator must demonstrate that:  (1) Each constituent of concern is not present above the specified  specification level at the 95% upper confidence limit around the mean;  and (2) the analysis could have detected the presence of the  constituent at or below the specified specification level at the 95%  upper confidence limit around the mean. (See Guidance for Data Quality  Assessment‑‑Practical Methods for Data Analysis, EPA QA/G‑9, January  1998, EPA/600/R‑96/084).     The Agency will consider that the exclusion level was achieved in  the waste matrix if an analysis in which the constituent is spiked at  the exclusion level indicates that the analyte is present at that level  within analytical method performance limits (e.g., bias and precision).  In order to determine the performance limits for a method, EPA  recommends following the quality control (QC) guidance provided in  Chapters One and Two of SW‑846, and the additional QC guidance provided  in the individual methods.     The Office of Solid Waste's (OSW) standing policy on the  Appropriate Selection and Performance of Analytical Methods for Waste  Matrices Considered to be ``Difficult‑to‑Analyze'' was stated in a  January 31, 1996 memorandum from Barnes Johnson, Director of the  Economics, Methods, and Risk Assessment Division, to James Berlow,  Director of the Hazardous Waste Minimization and Management Division.  The following excerpts are appropriate to this rulemaking.     Inadequate recovery of target analytes from the RCRA‑regulated  waste matrices of concern demonstrates that the analytical conditions  selected are inappropriate for the intended application. Proper  selection of an appropriate analytical method and analytical conditions  (as allowed by the scope of that method) are demonstrated by adequate  recovery of spiked analytes (or surrogate analytes) and reproducible  results. Quality control data obtained must also reflect consistency  with the data quality objectives and intent of the analysis.     (a) For extractable organics in standard RCRA matrices, e.g.,  groundwater, aqueous leachates, soils, OSW considers a sample  preparation method appropriate for use if it generates an analyte  recovery of 70% or greater (Method 8270C, Sec. 1.1). For extractable  organics in ``difficult matrices'', e.g., sludges, ash, stabilized  wastes, OSW considers a sample preparation method appropriate for use  if it generates an analyte recovery of 50% or greater.     (b) For volatile organics, using relative recoveries, i.e.,  standard curves established by purge‑and‑trap, or other  [[Page 33797]]  techniques for the preparation of standards, OSW considers a sample  preparation method appropriate if it generates a relative analyte  recovery of 80% or greater (Methods 8260B, 8015B).     (c) For inorganic analytes in almost all matrices, an absolute  recovery and precision of 80‑120% can generally be achieved with the  proper choice of acid digestion procedure and determinative method for  the analyte of interest.'' 4. Syngas Waste Analysis Plan and Analysis Methods     a. General. EPA is concerned that tested and generally accepted  methods may not exist for the sampling and analysis of gases from  pressurized systems that will ensure an accurate, unbiased, and precise  representation of the hazardous constituents present in the gas.     Hazardous constituents present in a gas at high pressure and high  temperature may be difficult to analyze accurately due to possible  physical and chemical changes in the constituents when a sample is  drawn into a low pressure and temperature environment for analysis. For  example, some constituents, while present as a gas under high pressure  and temperature, may solubilize into liquids that have condensed or  adhere to the sampling components as the pressure and temperature drops  in the sampling device. If this were to occur, the analysis of the  sampled gas would not accurately represent the concentrations of the  constituents in the original gas.     The Agency also shares the general concern stated in comments that  enforcement of the exclusion specifications could be compromised  because of the difficulty in applying or potential absence of accepted  sampling and analysis methods for these gases. Therefore, the final  rule requires syngas generators to submit for approval, prior to  sampling and analysis, a waste analysis plan to the appropriate  regulatory authority (see Sec. 261.38(c)(7)(iii)). At a minimum, the  plan must specify: (1) The parameters for which each hazardous waste  will be analyzed and the rationale for the selection of those  parameters; (2) the test methods which will be used to test for these  parameters; (3) the sampling method which will be used to obtain a  representative sample of the waste to be analyzed; and (4) the  frequency with which the initial analysis of the waste will be reviewed  or repeated to ensure that the analysis is accurate and up to date; and  (5) if process knowledge is used in the waste determination, any  information prepared by the facility owner or operator in making such  determination.     b. Analysis. A syngas fuel generator also may use the performance‑ based approach (Sec. 261.38(c)(8)) to demonstrate that the performance  of the methods selected is appropriate to meet the exclusion  specifications (as described in 3 above). Guidance on demonstration of  appropriate method performance can be found in Chapter One of SW‑846  and the Quality Control sections of the individual methods. 5. Non‑Detects     EPA proposed that for a waste to meet a non‑detect standard, the  analysis must achieve a detection limit equal to or less than the EPA  specified number and also not detect the constituent of concern in the  waste (61 FR 17358). However, some commenters believe that the Agency  should develop numerical levels for each parameter in the benchmark  where results are ``non‑detect.'' They are concerned that a potential  comparable fuel that has any measurable levels of Appendix VIII  constituents below the Agency's detection limits would not qualify as a  comparable fuel.     The final rule maintains the proposed approach for non‑detect  constituent specifications, except in the case of metals, hydrocarbons  and oxygenates (see Section C. above). The Agency believes that  allowing concentrations of constituents not found in the benchmark  fuels to be present in the comparable fuel is counter to the comparable  approach and could allow higher emissions of toxic compounds from  burning excluded waste than from benchmark fuels. Additionally,  commenters noted that the detection limit, referenced as the  ``maximum'' detection limit, should more accurately be referred to as  the ``minimum'' detection limit that must be achieved. The Agency  agrees and the final rule requires that analysis for a constituent with  a specification of non‑detect must: (1) Meet a detection limit at or  less than the minimum required detection limit listed for the  constituent; and (2) not detect the constituent of concern in the waste  (see Sec. 261.38(a) and (b)).     Commenters also indicated that it may be difficult to achieve the  detection limits specified for the non‑detect specifications. The  Agency continues to believe that the detection limits can be met. This  is due in part to the fact that the detection limits are primarily  based on the limits found for the No. 6 fuel oil analysis. EPA believes  that the matrix for No. 6 fuel oil is a more difficult matrix to  analyze than what the Agency believes will be the matrix for the  majority of comparable fuels‑‑a light solvent matrix. In addition, to  assist generators who may have difficult matrices to analyze, the final  rule provides the latitude to use any method that will ensure an  unbiased and precise analysis of the waste.  H. Notification, Certification, and Documentation  1. Who Must Make the Exclusion Notification     The person claiming that a hazardous waste meets the exclusion  criteria of this rule is known as the ``comparable fuel generator'' in  the case of excluded liquid fuel or ``syngas fuel generator'' in the  case of excluded syngas fuel. The comparable/syngas fuel generator need  not be the person who originally generates the hazardous waste. The  comparable/syngas fuel generator can be the first person who documents  and certifies that a specific hazardous waste meets the exclusion  criteria. 2. Notification Requirements     Most commenters agreed with the proposal that a one‑time  notification was appropriate; however, some commenters said that the  exclusion should not be self‑implementing and should require some type  of review and approval by the implementing authority. The Agency  continues to believe that a one‑time notification in combination with  the other requirements of this section, gives sufficient notice to the  regulating officials (i.e., State RCRA and CAA officials). Since this  is a self‑implementing exclusion, in order to ensure delivery, the  notification must be sent certified mail and until the notification of  exclusion is received the waste is still a hazardous waste and must be  managed as such. Only after the receipt of such notification that the  hazardous waste‑derived fuel meets the requirements of this rule is the  waste excluded and free to be managed in accordance with the  requirements for a comparable or syngas fuel. If a comparable/syngas  fuel generator loses its exclusion, the generator must renotify for the  exclusion, after coming into compliance with the requirements of this  section. If necessary the generator must also comply with any  applicable Subtitle C requirements for the waste.     a. EPA Regional or State Notification. Prior to managing any waste  as an excluded comparable/syngas fuel under this section, the generator  must send to, in States not authorized to implement this Section, the  EPA Regional RCRA and CAA Directors, and, in authorized States, to the  State RCRA and CAA Directors. The notification of the exclusion claim  should be sent via  [[Page 33798]]  certified mail, or other mail service that provides written  confirmation of delivery. Notification of the RCRA and CAA Directors  will provide notification of the exclusion and appropriate  documentation to both the RCRA and CAA implementing officials. The  Agency's intent is for copies of the exclusion information to reach  both the RCRA and CAA implementing officials because of the nature of  this exclusion‑‑a RCRA excluded waste being burned in CAA regulated  units. If the comparable/syngas is to be burned in a State other than  the generating State, then the comparable/syngas fuel generator must  also provide notification to that State's or Region's RCRA and CAA  Directors.     The notification shall contain the following items: (1) The name,  address, and RCRA ID number of the person/facility claiming the  exclusion; (2) the applicable EPA Hazardous Waste Codes for the  hazardous waste; (3) the name and address of the units, meeting the  requirements of Sec. 261.38(c)(2), that will burn the comparable/syngas  fuel; and (4) the following statement signed and submitted by the  person claiming the exclusion or his authorized representative:     ``Under penalty of criminal and civil prosecution for making or  submitting false statements, representations, or omissions, I certify  that the requirements of 40 CFR 261.38 have been met for all waste  identified in this notification. Copies of the records and information  required at 40 CFR 261.38(c)(10) are available at the comparable/syngas  fuel generator's facility. Based on my inquiry of the individuals  immediately responsible for obtaining the information, the information  is, to the best of my knowledge and belief, true, accurate, and  complete. I am aware that there are significant penalties for  submitting false information, including the possibility of fine and  imprisonment for knowing violations.''     b. Public Notification. As a self‑implementing exclusion effective  upon receipt of the notification by the implementing authority, there  is no decision prior to exclusion being made by the implementing  authority regarding the waste. The opportunity exists at all times for  the public to bring to the implementing authority's attention any  circumstance that might aid that authority in its monitoring and  enforcement efforts. The public, furthermore, would have the ability to  bring a citizen suit for a claimant's failure to comply with any  requirement of the exclusion. Based on comments received on the  proposal, the Agency believes that requiring the comparable/syngas fuel  burner to provide a simple public notification of an exclusion claim  would aid the public in its efforts. In most cases, the Agency believes  the burner will also be the generator of the fuel.     Therefore, under the final rule, the comparable/syngas fuel burner  must submit for publication in a major newspaper of general circulation  local to the site where the comparable/syngas fuel will be burned, a  notice entitled ``Notification of Burning of Comparable/Syngas Fuel  Excluded Under the Resource Conservation and Recovery Act'' containing  the following information: (1) Name, address, and RCRA ID number of the  claimant's facility; (2) name and address of the unit(s) that will burn  the comparable/syngas fuel; (3) a brief, general description of the  manufacturing, treatment, or other process generating the comparable/ syngas fuel; (4) an estimate of the average and maximum monthly and  annual quantity of the waste claimed to be excluded; (5) name and  mailing address of the State or Regional Directors to whom the claim is  being submitted. This notification must be published in the newspaper  prior to the burning of the comparable/syngas fuel. Notification is  only necessary once for each waste stream excluded.     c. Burner Certification. As proposed, the final rule requires  comparable/syngas fuel to be burned only in units subject to Federal/ State/local air emission requirements. The Agency believes that  limiting the burning of comparable/syngas fuels to industrial furnaces  or industrial boilers, or hazardous waste incinerators, along with a  certification from the burner, would ensure that the fuel was burned in  a unit subject to Federal/State/local air emission regulations.  Industrial furnaces or industrial boilers, or hazardous waste  incinerators are believed to be a universe of units that are capable of  handling comparable/syngas fuels and that would be subject to Federal/ State/local air emission requirements. In response to comments, the  Agency believes that these excluded hazardous wastes are best handled  and burned in the types of units specified in Sec. 261.38(c)(2). To  ensure that comparable/syngas fuels burned off‑site are burned in a  unit specified in Sec. 261.38(c)(2) (see discussion below), the Agency  is requiring the generator to obtain from the burner a one‑time  written, signed certification that: (1) The comparable/syngas fuel will  be burned only in an industrial furnace or boiler, or hazardous waste  incinerator subject to Federal, State, or local air emission  requirements; (2) identifies the name and address of the units that  will burn the comparable/syngas fuel; and (3) the state in which the  burner is located is authorized to exclude wastes as comparable fuels  (i.e., under the provisions of Sec. 261.38). This requirement coupled  with the requirement to notify the State or Regional Directors will  enable regulatory officials to take any measure that may be appropriate  to ensure that excluded fuel is burned in conformance with applicable  regulations and so does not become part of the waste management  problem.     If the generator or burner intends to change the unit where the  comparable/syngas fuel is burned (i.e., burn a comparable/syngas fuel  in a unit that has not previously been included in a certification),  then prior to burning, the generator must again follow the requirements  for: (1) Obtaining a burner certification; (2) notifying the public;  and (3) submitting a revised notification to the State or Regional  Directors. Once the revised notification has been received by the State  or Regional Directors and the notification has been published in the  newspaper, the generator/burner may burn the fuel as an excluded waste.  I. Exclusion Status      Some commenters requested clarification of the regulatory status of  the comparable/syngas fuel if the conditions of the exclusion were not  met. After the exclusion for a waste has become effective, the  conditions of the exclusion must continue to be met in order to  maintain the exclusion.     Separate and distinct from any requirement or condition established  in this final rule, all generators‑‑including comparable/syngas fuel  generators under this exclusion‑‑have a continuing obligation to  identify whether they are generating a hazardous waste and to notify  the appropriate government official if they are generating a hazardous  waste. Section 3010; 40 CFR 262.11. If a comparable fuel claimed as  excluded under today's rule fails to meet the exclusion requirements of  sections Sec. 261.38(a)‑(c), that comparable/syngas fuel and  subsequently generated comparable/syngas fuel would be required to be  managed as a hazardous waste‑‑including compliance with all  notification requirements‑‑until testing demonstrated that the waste  was below the exclusion specifications.     A comparable/syngas fuel that is not ultimately burned remains a  hazardous waste and is subject to all applicable Subtitle C regulations  (unless another exclusion from RCRA applies). As stated  [[Page 33799]]  in the proposal, the only allowable treatment or disposal method for a  comparable/syngas fuel is burning. Any disposal method other than  burning is a RCRA violation, unless the comparable/syngas fuel is  properly managed as a hazardous waste meeting applicable Subtitle C  regulations. The implications of not burning are that any prior  management of the waste was subject to Subtitle C requirements.     Excluded comparable/syngas fuel generators, transporters and  burners are subject to the speculative accumulation requirements under  Sec. 261.2(c)(4). Thus, there must be turnover of a given percentage of  comparable fuel stock each calendar year, and the persons holding such  fuels must be able to demonstrate that such turnover is occurring. See  Sec. 261.2(f). Since ultimate users are notified that they are  receiving comparable fuels, they may feasibly comply with this  requirement by documenting how much such fuel is received when it is  burned.     If a generator knows or should have known that a waste fails to  meet the constituent specifications, the exclusion ends as of the point  of determination and the material must be managed as a hazardous waste.  J. Recordkeeping  1. General     Some commenters believed that the recordkeeping requirements in the  proposal were excessive, while others felt they were too lenient. The  Agency, however, believes that because of the self‑implementing nature  of this exclusion, maintenance of the proper information on‑site is  essential to the proper implementation of the exclusion.     The final rule requires the comparable/syngas fuel generator to  maintain the following files (see Sec. 261.38(c)(10)) at the facility  generating the fuel: (1) All information required to be submitted to  the State RCRA and CAA Directors as part of the notification of the  claim: (i) the name, address, and RCRA ID number of the person claiming  the exclusion; (ii) the applicable EPA Hazardous Waste Codes for the  hazardous waste; (2) a brief description of the process that originally  generated the hazardous waste and process that generated the excluded  fuel; (3) an estimate of the average and maximum monthly and annual  quantities of each waste claimed to be excluded; (4) documentation for  any claim that a constituent is not present in the hazardous waste as  required under Sec. 261.38(8); (5) the results of all analyses and all  quantitation limits achieved for the fuel; (6) documentation as  required for the treatment or blending of a waste to meet the exclusion  specifications; (7) a certification from the burner if the waste is to  be shipped off‑site; and (8) the certification signed by the person  claiming the exclusion or his authorized representative.     The generator must also maintain documentation of the waste  analysis plan and the results of the sampling and analysis that  includes the following: (1) the dates and times waste samples were  obtained, and the dates the samples were analyzed; (2) the names and  qualifications of the person(s) who obtained the samples; (3) a  description of the temporal and spatial locations of the samples; (4)  the name and address of the laboratory facility at which analyses of  the samples were performed; (5) a description of the analytical methods  used, including any clean‑up and sample preparation methods; (6) all  quantitation limits achieved and all other quality control results for  the analysis (including method blanks, duplicate analyses, matrix  spikes, etc.), laboratory quality assurance data, and description of  any deviations from analytical methods written in the plan or from any  other activity written in the plan which occurred; (7) all laboratory  analytical results demonstrating that the exclusion specifications have  been met for the waste; and (8) all laboratory documentation that  support the analytical results, unless a contract between the claimant  and the laboratory provides for the documentation to be maintained by  the laboratory for the period specified in Sec. 261.38(c)(11) and also  provides for the availability of the documentation to the generator  upon request. These records and those required for off‑site shipments  must be maintained for the period of three years. A generator must  maintain a current waste analysis plan during that three year period. 2. Off‑Site Shipments     The final rule requires that for each shipment of comparable/syngas  fuel a generator sends off‑site for burning in an industrial furnace or  boiler, or hazardous waste incinerator, a record of the shipment must  be kept by the generator on‑site. Because these fuels are not required  to be accompanied by a manifest, it is the Agency's belief, supported  by commenters, that to ensure that comparable/syngas fuels are  transported to and burned in only those units approved for such burning  some type of tracking mechanism is warranted. Therefore, the final rule  requires for off‑site shipments the following information be maintained  by the generator on‑site: (1) The name and address of the facility  receiving the comparable/syngas fuel for burning; (2) the quantity of  comparable/syngas fuel delivered; (3) the date of shipment or delivery;  (4) a cross‑reference to the record of comparable/syngas fuel analysis  or other information used to make the determination that the  comparable/syngas fuel meets the specifications; and (5) the one‑time  certification by the burner.  K. Transportation and Storage      Commenters concurred with the Agency's belief that the Department  of Transportation (DOT) and the Occupational Safety and Health Agency  (OSHA) requirements for the transportation and handling of comparable/ syngas fuels will be adequate to ensure the safe management of these  excluded fuels. The final rule does not require comparable/syngas fuel  handlers to comply with the RCRA storage and transportation  requirements. It should be noted that excluded comparable/syngas fuel  transporters are required to comply with all applicable requirements  under the U.S. Department of Transportation regulations in 49 CFR parts  171 through 180.     Anyone who stores an excluded comparable/syngas fuel (e.g.,  generator, transporter, burner) is required to comply with all  applicable requirements under the Occupational Safety and Health Agency  regulations in 29 CFR part 1910. The occupational safety and health  standards for flammable and combustible liquids can be found in Subpart  H‑‑Hazardous Materials section 1910.106 and standards for compressed  gases in section 1910.101.  L. Comparable Fuels Exclusion and Waste Minimization  1. Introduction     In its April 1996 NPRM (61 FR 17464), EPA solicited comment on the  effects of the comparable fuels provision on facilities' efforts to  promote pollution prevention and waste minimization measures (i.e.,  source reduction and environmentally sound recycling). In particular,  EPA wanted to determine the extent to which companies might: (1) Shift  from hazardous waste recycling practices to burning wastes as fuel in  broader markets; (2) continue to recycle these wastes for product  recovery; (3) undertake source reduction for those wastes currently  failing the comparable fuel specifications; or (4) continue to burn the  excluded waste fuel in either an hazardous waste incinerator, light  weight aggregate kiln, or cement kiln.     EPA received many comments on this issue, most of which indicated  there  [[Page 33800]]  would probably be a shift from recycling toward combustion, but the  Agency received very little quantitative information that would allow  the Agency to assess the extent and impact of potential shifts.  Consequently, EPA used data from the RCRA Biennial Reporting System,  which is a census of waste stream information from all large quantity  hazardous waste generators, and the National Hazardous Waste  Constituent Survey (NHWCS), which contains data on the composition and  properties of waste streams for certain industries, to develop two  approaches for assessing the impacts of the comparable fuels provision  on pollution prevention and recycling. This approach is described in  the next section.     The results of EPA's analysis conclude that about three‑fourths of  hazardous wastes now meeting the comparable fuels specifications are  already being combusted; the remainder (about one‑fourth) is recycled.  The 70,000 tons of hazardous wastes, that qualify for the comparable  fuels exclusion and are currently recycled annually, could shift to the  comparable fuels market, if all generators responded the same way, a  possibility which seems unlikely. This figure represents less than a  one percent annual increase in the amount of hazardous waste combusted,  but it represents a decrease of about 20% in the amount of hazardous  wastes recycled annually.     If the comparable fuels provision were implemented alone, a 20%  decrease in recycling might appear to have a negative effect on  pollution prevention and waste minimization. However, as one commenter  pointed out, some generators will install pollution prevention and  waste minimization measures (i.e., to prevent high levels of  constituents from becoming part of the waste) in order to qualify for  the comparable fuels exclusion. This would have the effect of  increasing pollution prevention. Furthermore, EPA fully expects that  the increased cost of upcoming MACT standards will cause the regulated  community to seek cost effective pollution prevention and waste  minimization solutions to offset the higher costs (a response seen, for  example, in the RCRA land disposal restrictions program). EPA is  examining this effect in the regulatory impact analysis for the  upcoming MACT standards. On balance, the impact of the comparable fuels  provision on pollution prevention and waste minimization in the context  of MACT standards appears to be negligible. 2. Major Concerns of Commenters     EPA received comments generally expressing either concerns or  support for the exclusion. There was some concern that the comparable  fuels exclusion would lead to combustion of spent solvents and other  high‑energy wastes low in halogens and metals that would otherwise be  recovered as product. Conversely, others supported the exclusion  pointing to incentives it may create to source reduce and conserve  resources by replacing fossil fuels with comparable fuels. In addition,  concerns were raised over the role of energy recovery in the waste  management hierarchy, and the impact of fuel blending on comparable  fuels.     Impact on Source Reduction and Recycling: Several commenters stated  that EPA failed to investigate whether the comparable fuels exclusion  would encourage combustion of wastes now being recycled. Some of these  commenters took positions on how the comparable fuels exclusion would  impact the recycling‑combustion balance. One group claimed that the  comparable fuels exclusion would encourage combustion at the expense of  recycling. A smaller group of commenters stated that the comparable  fuels exclusion would offer an incentive for generators to use more  source reduction to lower the levels of toxic constituents to the  specification levels. The commenters provided little quantitative  information describing these changes.     As noted above, EPA used data from the RCRA Biennial Reporting  System (BRS), which is a census of waste stream information from all  large quantity hazardous waste generators, and the National Hazardous  Waste Constituent Survey (NHWCS), which contains data on the  composition and properties of waste streams for certain industries, to  develop two approaches for assessing the impacts of the comparable  fuels provision on pollution prevention and recycling. Results from  both analyses indicate that about three‑fourths of wastes likely to  meet the comparable fuel specifications are already combusted rather  than recycled, and that the remaining wastes could shift from the  current recycling market to the comparable fuels depending on the  economics and individual company preferences. The methodologies used  are summarized below. A full discussion of these analyses is provided  in the docket.     Analysis #1: EPA searched the 1993 BRS data to identify waste  streams that would be most likely contain wastes that could meet  comparable fuel specifications for energy value and low levels of  contaminants. EPA focused its search on D001/ignitable wastes because  this waste typically contains spent nonhalogenated solvents. EPA also  used the BRS data to determine how these wastes were managed after  generation, and found that about three‑fourths of D001 wastes are  combusted, while the remaining one‑fourth goes to recycling for solvent  recovery.     Analysis #2: Using waste stream specific laboratory analysis data  from the NHWCS, EPA identified those waste streams in the survey that  meet the comparable fuels specifications for about half of the recycled  wastes reported in the BRS. Using this data, EPA was able to estimate  the total amount of recycled wastes that could be comparable fuels, and  how much waste currently sent to combustion meets the comparable fuels  specifications. Analysis of these estimates indicates that about 75% of  waste streams meeting the comparable fuels criteria is combusted while  the remainder is recycled.     The ``Economic Analysis Report for the Combustion MACT Fast‑Track  Rulemaking'' (contained in the docket) predicts savings to generators  who can begin to combust hazardous wastes as comparable fuels rather  than as hazardous wastes. EPA believes this offers generators  incentives to achieve the comparable fuels specifications through  source reduction. However, since the costs of source reduction  initiatives vary widely from facility to facility, EPA could not  reliably estimate net cost savings that facilities could achieve by  turning hazardous wastes into comparable fuels through upstream source  reduction. Therefore we did not attempt such an estimation.     In addition, many solvent recycling facilities could begin to  combust streams meeting the comparable fuels specifications instead of  continuing to recycle them. EPA's comparison of recycling costs and  revenues with costs for combusting these streams as comparable fuels  indicate that in many cases facilities may find the combustion option  more economical. Since solvent recycling costs and revenues vary  considerably from facility to facility and also fluctuate in time  according to the market values of virgin solvent (fuel costs also  fluctuate), EPA could not and did not estimate the extent of this  shift. Individual facilities may continue to recycle wastes rather than  combust them as comparable fuels.     Recycling and the Waste Management Hierarchy: Some commenters  stated that letting wastes similar to fuels be burned is evidence of an  Agency preference for  [[Page 33801]]  combustion over recycling. EPA disagrees: The comparable fuels  exclusion is based on the fact that some hazardous waste fuels very  closely resemble fossil fuels and do not warrant the full slate of RCRA  Subtitle C controls. This does not suggest that the Agency has altered  its commitment to the hierarchy. The underpinning of the comparable  fuels exclusion is simply a determination on the degree of regulatory  oversight needed for fuel‑like waste materials, which does not  translate to any change of view on the waste management hierarchy.     Burning for Energy Recovery: Some commenters claim that burning for  energy recovery is waste minimization. While EPA is clearly providing  greater flexibility to burn wastes that closely resemble virgin fuels,  EPA distinguishes this from waste minimization. Waste minimization  includes source reduction and environmentally sound recycling, but does  not include any ``method, technique, or process, including  neutralization, designed to change the physical, chemical or biological  character or composition of any hazardous waste so as to neutralize  such waste, or so as to recover energy or material resources from the  waste, or so as to render such waste non‑hazardous, or less hazardous;  safer to transport, store or dispose of; or amenable for recovery,  amenable for storage, or reduced in volume.'' (40 CFR 260.10)(emphasis  added).     Blenders and Third Parties: Some commenters expressed concern that  EPA would allow blending of hazardous wastes to meet the concentration  specifications for a comparable fuel, thereby raising the issue of  dilution to avoid RCRA regulation. Similarly, commenters objected to  allowing third parties, such as fuel blenders, to handle and blend  wastes between generation and combustion. Commenters pointed out that  blending and third‑party involvement would constitute impermissible  dilution. It would also undermine any incentive to minimize the volume  or toxicity of these wastes. The Agency agrees that blending hazardous  wastes to bring them within the comparable fuels concentration  specifications would constitute dilution which is not only  impermissible but also would likely inhibit waste minimization. Today's  rule explicitly prohibits any blending or other ``treatment'' which  does not remove or destroy hazardous constituents. Blending of two  wastes already meeting the comparable fuels specifications is, however,  allowed only to achieve the viscosity specification. The rationale for  this limited use of blending is discussed in that section of today's  preamble.     Opportunities for Source Reduction: One commenter commented that  the Standards for the Management of Used Oil (40 CFR Part 279) offered  generators an incentive for keeping used oil streams clean by requiring  oil exceeding certain concentration specifications for metals and  chlorine to be managed as hazardous waste, and predicts that the  comparable fuels exclusion will result in similar incentives for source  reductions to achieve the comparable fuel exclusion criteria,  particularly for generators of D001 (ignitable) wastes. EPA agrees with  this view, but did not receive industry‑specific information from  commenters with which to complete an analysis of this issue.  IV. RCRA Permit Modifications for Hazardous Waste Combustion Units  A. Introduction      The Clean Air Act (CAA) sets a maximum time frame of three years  for facility owners or operators to comply with Maximum Achievable  Control Technology (MACT) emission standards once final standards are  published in the Federal Register. EPA expects that many facility  owners or operators will need to make changes to their process(es) in  order to come into compliance with the new standards. For facilities  operating under a RCRA permit, these changes may have to be  incorporated into the permit before they may be put in place at the  facility. To facilitate meeting the three year deadline, EPA is  revising the RCRA permit modification procedures to explicitly address  changes to a facility's design or operations that are necessary to  comply with the new MACT emission standards. The revised modification  process offers streamlined procedures that will help facility owners  and operators meet two compliance concerns‑‑compliance with their RCRA  permits and compliance with the new MACT standards.     EPA anticipates that a substantial number of requests to modify  facility design or operations will be submitted in a relatively short  period of time following promulgation of the final MACT standards.  Although the states could always use their current modification  process, the revised procedures offer a potentially more viable way for  states to handle the anticipated volume of requests in a more timely  manner.     In most cases, state permitting agencies have been authorized by  EPA to issue and modify RCRA permits. Authorized states that wish to  implement the revised procedures may have to modify their state  procedures, consistent with today's rule, before they may use the  streamlined procedures to respond to MACT‑related modification requests  from facility owners or operators. Once the final MACT standards are  promulgated, facility owners and operators have three years to begin  operating under the lower emissions levels. The Agency believes that  these three years are better used for processing modification requests,  and subsequently implementing the necessary changes, than for modifying  state regulations and going through the authorization process. By  promulgating the revised procedures on an expedited schedule (i.e.,  before the final MACT standards), EPA hopes to provide ample time for  states to develop comparable standards and obtain EPA authorization  before they need to process MACT‑related modification requests from  facility owners or operators. It should be noted that states which  currently have temporary authorization procedures equivalent to the  federal 40 CFR 270.42(e) procedures may also use these, in many cases,  to approve facility changes needed to come into compliance with MACT  standards. However, these procedures would allow operation under the  modified conditions only up to 180 days (with a possible extension of  up to 180 additional days), followed by a full class 2 or 3 permit  modification. Therefore, EPA encourages states to adopt procedures  comparable to those in today's rule.     Combining the streamlined modification procedures with the  expedited schedule for promulgating them sets up a procedural framework  to promote compliance with the MACT standards. But even this  combination does not guarantee that other factors will not ultimately  interfere with a facility's efforts to comply. As part of a common  sense approach to implementing, and enforcing, its programs, EPA would  like to make sure that the consequences of non‑compliance are  commensurate with the causes. With regard to the three‑year deadline  for operating under the lower emissions levels required by MACT, EPA is  further examining potential consequences of non‑compliance,  particularly if the causes are beyond the facility's control (e.g., a  permitting agency's administrative procedures or workload cause delays,  necessary equipment is back ordered, or testing contractors are  unavailable). For example, the Agency is looking into the possibility  of using standard  [[Page 33802]]  enforcement procedures under the Clean Air Act (CAA), rather than  requiring more stringent consequences through regulations (e.g.,  requiring a facility to stop burning hazardous waste until it receives  a permit or revoking a permit). The potential consequences of non‑ compliance are discussed in more detail in the Revised Technical  Standards for Hazardous Waste Combustion Facilities; Proposed Rule,  Notice of Data Availability (62 FR 24212, May 2, 1997).     EPA is not going to pursue any of the three companion  implementation options discussed in the proposed rule (see 61 FR 17456,  April 19, 1996). Those options were intended to address possible permit  implementation conflicts which may have occurred if a State did not  become authorized to carry out the provisions of the proposed MACT rule  in time to handle necessary modifications. By promulgating the revised  modification procedures prior to the remainder of the proposed rule,  EPA anticipates that States will have adequate time to receive  authorization to process the requisite modifications. Thus, the need to  put in place a separate implementation mechanism no longer exists.  Today's rule does not address any of the longer‑term implementation  options discussed in the proposed rule (e.g., placing the MACT  standards in a Clean Air Act permit, in a RCRA permit, or in both  permits). Implementation will be discussed in the final rule  promulgating revised standards for hazardous waste combustors.  B. Overview  1. Background on RCRA Permit Modification Procedures     Section 3004 of RCRA requires owners and operators of facilities  that treat, store, or dispose of hazardous waste to comply with  standards that are ``necessary to protect human health and the  environment.'' EPA, or EPA‑authorized States, implement these standards  by issuing RCRA permits to these types of facilities. Once a permit has  been issued to a facility, the facility must operate in compliance with  the conditions in the permit; any subsequent changes to the facility's  design or operations are incorporated into the permit in accordance  with the Agency's, or authorized State's, permit modification  procedures.     EPA's regulations concerning permit modifications requested by  facility owners or operators are set forth in 40 CFR 270.42. The  regulations break the types of potential modifications into three  classes (see Sec. 270.42 Appendix I). Class 1 modifications cover  administrative or routine changes, including replacing equipment with  functionally equivalent equipment. They are relatively straightforward  and in most cases do not require Agency approval before being made.  Class 2 modifications cover somewhat more complex changes, for example,  to address common variations in the types and quantities of wastes  managed, where the changes can be implemented without substantially  altering the design specifications or management practices prescribed  by the permit. Class 3 modifications involve substantial changes to  facility operating conditions or waste management practices and are  subject to principally the same review and public participation  procedures as permit applications. Each class of modification request  requires varying degrees of facility preparation, Agency review time,  and public involvement. The various degrees have a significant impact  on the amount of time needed to put the change into effect. For  example, Class 1 modifications typically can be implemented in a very  short time, where Class 2 and 3 modifications may take several years.     Prior to promulgating the Class 1, 2, 3 procedures, modifications  were divided into two categories, major and minor. States authorized to  implement the RCRA program were not required to adopt the Class 1, 2, 3  procedures, since they were considered less stringent than the  predecessor major/minor system. As a result, both systems are in use  today. EPA would like to point out that, in converting to the new  system, many of the modifications that had been designated as minor  were placed into Class 1, or Class 1 with prior Agency approval. EPA  presumes that modifications listed in Appendix I as Class 1, or Class 1  requiring prior Agency approval, are most likely processed as minor  modifications in states that continue to use that system. 2. Shortcomings of the Current Procedures     EPA did not consider, in developing the modification classes and  procedures, that changes to RCRA permit conditions might be necessary  in order to comply with other environmental statutes. Similarly, the  Agency did not anticipate changes to comply with upgrades to existing  regulations (although the process was developed to include changes for  new regulations). EPA developed the Class 1 through 3 modification  scheme within the context of the RCRA program to provide both  incentives to facility owners and operators to pursue facility changes  that lead to improved management of hazardous wastes, and greater  flexibility for timely processing of change requests, e.g., by  tailoring the level of review to the type of change (see Permit  Modifications for Hazardous Waste Management Facilities; Final Rule, 53  FR 37912, September 28, 1988). EPA is now concerned, however, that the  RCRA permit modification procedures, as a practical matter, will not  allow enough time to meet statutory deadlines for implementing new  standards under the Clean Air Act. 3. How Today's Rule Impacts the Procedures     EPA proposed several options for amending RCRA permit modification  procedures to accommodate the Clean Air Act requirement that facilities  comply with MACT standards within three years of publishing a final  rule in the Federal Register (61 FR 17454, April 19, 1996). In all five  of the proposed options, the Agency tried to balance the need to  develop a process that would enable facilities to comply with more  stringent emissions standards within the allotted time with the need to  provide adequate opportunities for public participation in the process.  The level of regulatory oversight that would take place under each  option was also discussed. The Agency requested comments on the  proposed options, as well as on any combinations thereof, or any other  feasible approaches.     EPA has decided to finalize, with some adjustments, its originally  proposed recommended approach, i.e., to establish a new section in the  permit modification table for changes to existing permit conditions  necessary to come into compliance with MACT standards. This approach  best meets the Agency's objective of implementing a process that  enables facilities to meet the three year statutory deadline. This  approach also allows for public notification of the modification  request.     Today's final rule establishes a new section in Appendix I of 40  CFR 270.42 for technology changes that are necessary for a facility to  achieve compliance with the MACT standards. The new section is  designated as Class 1 modifications, with prior Agency approval. As  such, the Agency will have an opportunity to review the proposed  physical and operational changes to the facility before they are  implemented, in order to ensure that these changes do not have other  undesirable consequences. Agency experience suggests that steps  intended to reduce emissions may not, in all cases, lead to overall  enhanced environmental protection. For example, decreasing combustion  temperature as a way to  [[Page 33803]]  decrease air pollution control device (ACPD) inlet temperature, in  order to reduce dioxin emissions could increase organic emissions by  allowing poor combustion.     The new section in 40 CFR 270.42 Appendix I, specifically, section  L(9) ``Technology Changes Needed to Meet MACT Standards Under 40 CFR  Part 63 Subpart EEE‑‑National Emissions Standards for Hazardous Air  Pollutants From Hazardous Waste Combustors,'' is limited to technology  changes to existing permits to allow a facility to come into compliance  with the new Part 63 standards. General retrofitting changes outside  the framework of meeting MACT‑related technology, or subsequent changes  for maintaining compliance with Part 63 standards, are outside the  scope of this category. The permitting agency director will determine  whether the types of modifications requested qualify as ``technology  changes needed to meet standards under 40 CFR part 63 Subpart EEE.''  The Agency anticipates that the distinction between technology changes  necessary to allow a facility to operate under the lower emissions  levels and general retrofitting changes will be clear. EPA expects that  the same types of changes to comply with the MACT standards will be  needed at most facilities, thus the requests submitted under section  L(9) should be fairly uniform.     EPA, in response to public comments, is also incorporating a time  default into the modification procedures for changes requested under  section L(9) only. Section 270.42(a) is being amended to add a  paragraph specifying that the permitting agency Director has 90 days,  with a possible one‑time 30 day extension, to make a decision about  modifications requested under section L(9). If the Director does not  make a decision, then the permittee may consider the request approved.  EPA is also requiring owners or operators to comply with the  requirements for the Notification of Intent to Comply (NIC) (see 40 CFR  63.1211) in order to benefit from the streamlined modification process.  C. Discussion of RCRA Permit Modifications Procedures for Facilities  Coming Into Compliance With MACT requirements  1. Summary of Proposed Options     EPA is in the process of developing final MACT standards imposing  more stringent (lower) emissions levels for hazardous waste combustion  activities; facilities will have to operate in compliance with these  standards within three years of their promulgation, with a possible one  year extension (for a total of four years). The Agency expects that a  large number of facilities will need to modify their design or  operations to meet the more stringent emissions standards required  under MACT. For example, incinerators that currently operate above the  MACT emissions standard for particulate matter (PM) might have to add  electrostatic precipitators (ESP) or baghouses to reduce emissions;  similarly, incinerators that need to reduce dioxin emissions to meet  the MACT standards may need to implement additional controls on  temperature or employ carbon injection; or light weight aggregate kilns  (LWAKs) with high acid gas emissions may need to add a control  technology, such as wet scrubbers.     For these facilities to remain in compliance with their RCRA  permits, they will need to modify their permits to allow any design or  operational changes needed to achieve compliance with the MACT  standards. The Agency proposed five options for handling these ``MACT  related'' RCRA permit modifications. The options, which varied with  regard to the level of procedural requirements and administrative  review required, were: (1) Provide facilities with ``self‑ implementing'' authority to proceed with necessary changes without  Agency review; (2) categorize the changes needed to comply with MACT  standards as Class 1 modifications that do not require prior Agency  approval; (3) categorize the changes as Class 1 modifications that do  require prior Agency approval (this option was discussed in the  proposal as the recommended option); (4) categorize the changes as  Class 1 modifications requiring prior Agency approval, but give the  Director authority to elevate change requests to Class 2; and, (5)  retain the current scheme for modifying the RCRA permits. Under the  current scheme, the MACT‑related changes would likely be categorized as  Class 2 or 3 modifications. 2. Summary of Public Comments     In general, there were three recurring themes in the comments  received by the Agency in this area. First, commenters expressed  concern about being able to meet the three year time frame. They cited,  as reasons, (1) that three years are insufficient to allow state  agencies to obtain authorization for the rule and to subsequently  process the anticipated volume of modification requests, and (2) that  the modification procedures themselves are too long. Secondly,  commenters emphasized the need to allow sufficient public  participation, but with the caveat that the modification process not be  unduly delayed by public participation activities (this being yet  another factor in potentially being unable to meet the three year  deadline). Finally, commenters were concerned that the consequences of  non‑compliance are too severe (e.g., having to stop burning), given  that delays in achieving compliance could be the result of permitting  agencies being unable to process modification requests in a timely  manner (and not a consequence of the facility's activities).     The Agency received a wide variety of comments on the options  themselves. Each of the proposed options received support, with most  commenters favoring the first three options for their more streamlined  procedures. A few commenters suggested that incorporating a time limit  into the modification review process would aid in coming into  compliance with the MACT standards. Many commenters expressed the  importance of developing a streamlined permit modification process that  would allow facilities to make the necessary technology upgrades in a  timely fashion, while retaining enough regulatory oversight to ensure  that the changes have a proper degree of ``buy‑in'' by the permitting  agency. Some commenters expressed concern that options 4 and 5 would  delay implementation of MACT‑related changes beyond the three year  deadline mandated by Congress. A few commenters preferred options 4 and  5 since they incorporate a greater degree of public participation into  the review process. Additionally, some commenters thought that options  4 and 5 might be more readily accepted by and implemented in authorized  States that chose to remain with the original permit modification  structure composed of minor and major changes. [Note: States were not  required to adopt the Class 1, 2, 3 structure since it was determined  to be less stringent than the major/minor structure.]     Finally, some commenters requested that the Agency consider as a  possible alternative that a Class 3 modification could be reclassified  as Class 2 for the purposes of MACT compliance. 3. Response to Comments and Discussion of Final Provisions     EPA agrees with commenters that streamlined modification procedures  for MACT‑related changes are essential. The three year time frame for  complying with the MACT standards has been set by Congress; it is the  Agency's responsibility to ensure that facilities are able to comply  with those  [[Page 33804]]  requirements without violating other areas of their environmental  responsibilities, like their RCRA permit. As discussed earlier, EPA  anticipates that many facilities will need to make some changes to meet  the lower emissions levels imposed by MACT, and that these changes will  have to be incorporated into their RCRA permits. EPA does not want the  RCRA permit modification procedures to hinder a facility's ability to  comply with MACT.     As discussed in the Section B.1. Background on RCRA Permit  Modifications Procedures, Class 1 modifications may be done quickly,  whereas Class 2 or 3 modifications may take several years to process.  The combination of the time normally required to completely process  Class 2 or 3 modification requests, and the anticipated volume of  requests from facilities striving to meet MACT emission levels, would  make meeting the three year deadline unrealistic. Permitting agencies  would not have the resources to meet the workload demand. This leads  EPA to concur with commenters on the need to embrace a more streamlined  approach than would be provided by options 4 or 5. Similarly, EPA chose  not to pursue the option suggested by some commenters to reclassify  changes from Class 3 to Class 2. A streamlined approach is consistent  with general efforts within the Agency (e.g., through the Permits  Improvement Team) to improve the permitting process by focusing on  performance standards rather than on a detailed review of the  technology requirements.     The Agency acknowledges the validity of the concerns expressed by  some commenters that the options offering the more streamlined  procedures offer fewer opportunities for public participation. It is  important to strike an appropriate balance between streamlined  modification procedures that promote coming into compliance sooner with  more stringent standards and public participation. The Agency has  repeatedly emphasized its commitment to a common‑sense approach to  permitting‑‑one that minimizes regulatory burden and provides  flexibility to tailor activities to specific situations. In carrying  this commitment to today's rule, EPA wants to ensure three things; (1)  that the permit modification process is not an obstacle for complying  with the MACT standards; (2) that facilities are not forced to operate  outside of their permitted conditions in order to comply with MACT  standards; and (3) that public participation is not streamlined out of  the process.     EPA believes that Option 3, with some modifications, provides the  best framework for meeting these objectives and responding to public  comments. This option was supported by many commenters, particularly  because the streamlined procedures will facilitate meeting the three  year deadline for complying with the more stringent emission levels.  There has been a precedent set in the past for streamlining the  modifications process. To ensure that facilities implemented timely  changes necessary to meet land disposal restriction (LDR) levels for  newly listed or newly identified hazardous waste, the Agency designated  the modifications needed to meet the LDR levels for newly identified  wastes as Class 1 modifications (see 54 FR 9596, March 7, 1989).     The prior agency approval under Option 3 provides the regulatory  oversight requested by commenters, since the permitting agency will  have the opportunity to review the proposed physical and operational  changes to the facility before they are implemented. EPA concurs with  commenters who encouraged retaining some amount of regulatory oversight  in the modifications. As discussed previously, sometimes changes to one  part of a facility's design or operations that have a positive effect,  like reducing one type of emissions, may cause detrimental effects to  other parts of the facility's operations. It is important for  permitting agencies to have the opportunity to review proposed changes  to make sure they do not lead to other undesirable impacts.     Some commenters expressed concern, however, that a facility's  ability to begin implementing the change(s) might be delayed by  requiring regulatory oversight (i.e., if the Agency failed to respond  to the request in a timely manner). EPA recognizes the validity of this  concern, given the anticipated volume of requests from facilities  striving to meet the new emissions standards; therefore, the Agency is  incorporating a time default for reviewing the requests into the final  modification process. The time default for review, codified in a new  paragraph 270.42(a)(4), specifies that if a determination to approve or  deny the Class 1 permit modification request submitted under item L(9)  is not made within 90 days (with the possibility of a one‑time  extension for up to 30 days) from the time the request was received by  the permitting agency, the request is to be considered approved, and  the facility can proceed with the modification(s). In some situations,  the Director of the permitting agency may deny a request, for example,  if the request contained insufficient information upon which to base a  decision. The permittee could revise its request to address the  shortfalls and resubmit it to the permitting agency. Such a resubmittal  would initiate a new 90 day review period.     EPA anticipates that the incorporation of the time default, coupled  with the fact that the revised modification procedures are being  promulgated on an expedited schedule, will alleviate commenters'  concerns about non‑compliance. Although the consequences of non‑ compliance are outside the scope of this rule, this approach  (streamlined modification procedures coupled with expedited  promulgation) establishes a procedural framework through which there is  a greater chance that permitting agencies will not cause undue delays  in facilities' compliance with the MACT standards. Under the new  streamlined process, permitting agencies should be able to process the  modification requests with sufficient time remaining for facility  owners or operators to make the changes within the three year time  frame.     Some commenters expressed concern that option 3 does not provide  the same levels of public participation that would be available through  options 4 and 5. Those options would require facilities to request  Class 2 or 3 permit modifications for MACT‑related changes. The  procedures for Class 2 and 3 modifications include public meetings,  notices, and comment periods. Class 1 modifications, even those  requiring prior Agency approval, only require that the facility owner  or operator send a notice of the change to the facility mailing list  within 90 days of approval being given.     EPA is committed to enhancing public participation in all of its  processes, and has established additional requirements in today's rule  to provide opportunities, beyond the public notice requirements  associated with Class 1 (with prior approval) modifications, to involve  the public in permitting changes required to comply with MACT  standards. These opportunities are being incorporated into requirements  for a Notification of Intent to Comply (NIC), discussed in more detail  in Section V. One goal of the NIC development process is to promote  interaction between the facility and its host community, for example,  by requiring the facility to host an informal meeting with the  community before submitting the final NIC to the permitting agency.  Since the NIC must describe anticipated activities for coming into  compliance with the MACT  [[Page 33805]]  standards, the technology changes that trigger the RCRA permit  modification would be a natural component of the NIC and the public  meeting. EPA expects that the meeting will be similar in style and  intent to the pre‑application meetings required under 40 CFR 124.31.     The final rule requires facility owners or operators to complete  the NIC in order to benefit from the streamlined modification  procedures. This requirement means that owners or operators will need  to submit a final NIC either before, or at the same time as, they  submit the modification request. If they do not comply with the NIC  requirements, they will need to follow the otherwise applicable  modification scheme, i.e., the permitting agency Director will likely  reclassify their request to Class 2 or 3. EPA is not requiring  documentation in the modification request that the permittee completed  the NIC. Since both items are submitted to the permitting agency, EPA  assumes the permitting agency will be aware of whether the permittee  has indeed complied with the NIC requirements.     EPA expects that information about anticipated changes to facility  design or operations to comply with the more stringent standards will  be included in the NIC, and thus will be available for public review  and discussion during the NIC public meeting. Through this meeting,  communities have an early vehicle for learning, among other things,  about potential changes to facility design and operations necessary to  meet the lower emission levels. Of course, in accordance with the  current requirements concerning Class 1 modifications, the permittee  must also inform the public about the modifications within 90 days of  their approval by the permitting agency (see 40 CFR 270.42(a)(1)(ii)).     EPA would like to point out that although similar information about  facility design or operation changes may be included in both the NIC  and the modification request, the Agency does not believe it is  redundant to have both documents. The two have different purposes, and  the formats and levels of detail may differ accordingly. The  modification request would most likely differ from the NIC, since the  request has to tie directly to the permit itself. For example, the NIC  may talk in general terms about adding baghouses to reduce emissions,  but the modification request would have to specifically cite the  section(s) of the permit being modified to include information on the  baghouses.     Today's requirements would not, of course, preclude additional  public participation activities beyond the regulations, where  appropriate on a facility‑specific basis. At certain RCRA facilities,  in fact, permitting agencies and facilities have implemented a variety  of public involvement activities, such as additional fact sheets or  information availability sessions, that have helped affected  communities to understand and participate in permit decision‑making.  EPA has published a practical how‑to guidance manual designed to help  all stakeholders in the permitting process (permit writers, industry,  and communities) determine what types of public participation  activities might be helpful. The RCRA Public Participation Manual  (EPA530‑R‑96‑007, September 1996) also offers tips on how to conduct a  wide variety of activities. Supplemental public participation  activities on a site‑specific level, geared for a particular facility's  operations and tailored to meet the host community needs, could be used  to augment community understanding of the changes taking place to  comply with MACT standards. In closing, EPA would like to reiterate  that facilities are making changes to meet more stringent standards.  Requiring facilities to comply with lower emissions levels in a  relatively short time frame does offer significant benefits to public  health and the environment that the Agency believes communities will  generally welcome.     In response to the comments that options 4 and 5 might be more  compatible with permit modification procedures in authorized states,  EPA is aware that States have to evaluate new regulations in terms of  their specific structures. Promulgating the revised modification  procedures in today's rule, however, will provide ample time for states  to obtain authorization before they actually begin processing  modification requests following promulgation of the final MACT  standards. EPA encourages states to expedite their requests for  authorization to implement the provisions in today's rule. EPA expects  that States using the Class 1, 2, 3 modification system would  incorporate the provisions by reference, and that States using the  major/minor system would incorporate the provisions as minor  modifications. As discussed in Section B.1. Background on RCRA Permit  Modification Procedures, many changes that were formerly classified as  minor were converted to Class 1, or Class 1 requiring prior Agency  approval. Thus, EPA believes it is consistent for states using the  major/minor system to incorporate this category of changes into the  minor classification.     If the states cannot adopt an approach that ensures expeditious  implementation of the MACT standards, however, then the Agency expects  that changes necessary to comply with MACT standards may well be  accomplished under a compliance order, with a specified schedule to  come into compliance.  F. RCRA Changes in Interim Status Procedures      RCRA facilities operating under interim status are allowed to  implement certain facility changes in accordance with requirements and  procedures set forth in 40 CFR 270.72(a). (Note: EPA anticipates that  the types of changes a facility may need to make to comply with the  MACT standards would be allowable under this section). Section  270.72(b) imposes a limit, however, by stating that the changes cannot  amount to ``reconstruction'' (defined in the regulation as ``when the  capital investment in the changes to the facility exceeds 50 percent of  the capital cost of a comparable entirely new hazardous waste  management facility''). As discussed in the preamble to the proposed  rule, the Agency does not anticipate that the costs to perform facility  changes necessary to come into compliance with the MACT standards would  exceed the 50 percent reconstruction limit. However, since the limit is  cumulative for all changes at the interim status facility, there could  conceivably be situations where the cost for MACT‑related changes might  push a facility over the limit.     To ensure that the reconstruction clause does not present an  obstacle for interim status facilities trying to implement changes to  meet the new emissions levels, the Agency proposed adding a new  paragraph to Sec. 270.72(b) exempting changes necessary to comply with  the MACT standards from the reconstruction limit. The Agency did not  receive any adverse comments, and so is finalizing this provision in  today's rule.     It is important to note that facilities operating under interim  status will, like permitted facilities, be required to comply with the  NIC requirements. Thus, the public will have the opportunity to review  planned changes as part of the NIC and to participate in the public  meeting. EPA anticipates that owners or operators of interim status  facilities will hold the meeting and complete the NIC before proceeding  with any changes to facility design or operations necessary to comply  with the MACT standards.  [[Page 33806]]  V. Notification of Intent To Comply and Progress Report  A. Background      In the proposed rule (61 FR 17358), the Agency requested comments  on strategies to identify and encourage or require affected sources to  comply with the final emission standards at the earliest possible date.  The Agency also asked for views on how best to determine when a source  can realistically conclude whether it will comply with the final  standards. A number of commenters suggested that the Agency require a  submission from affected sources that would identify whether the  facility intends to comply with the final standards, and outline the  procedures the facility would employ to achieve compliance. This  primary purpose of this submission (referred to by the commenters as a  ``Notification of Intent to Comply'') would be to identify the sources  that will choose as a compliance strategy to stop burning hazardous  waste, so that those sources could be required to terminate waste  burning activities as soon as possible following the effective date of  the final Hazardous Waste Combustor (HWC) rule.     Other commenters suggested that EPA require submission of a plan  that outlines the procedures a facility will follow to comply with the  final standards. However, the purpose of this submission would be to  begin an early process of communication between the public and the  facility through the public disclosure of the facility's compliance  strategy to meet the final HWC standards.     The Agency reviewed these comments and found the suggestions for an  early notification persuasive. In the Notice of Data Availability  (NODA) published in the Federal Register on May 2, 1997 (Revised  Technical Standards for Hazardous Waste Combustion Facilities; Proposed  Rule, 62 FR 24241), EPA described its strategy to promote early  compliance planning through a Public and Regulatory Notice of Intent to  Comply (PRNIC). The discussion laid out a process by which an affected  source would be required to develop a draft document including  anticipated plans for coming into compliance with the new emissions  standards, hold an informal meeting with the public to discuss the  draft planning document, and to subsequently provide a final planning  document to the permitting agency. The information to be covered in the  document and during the meeting would include such topics as a  description of waste minimization and pollution control technique(s)  being considered and their effectiveness, a description of emission  monitoring techniques being considered, and an outline of key dates for  activities the source would need to accomplish in order to operate  within the MACT standards.     The intended purpose of the PRNIC, as described in the NODA, was  twofold. First, the PRNIC was intended to provide for public  involvement in a source's compliance planning process. EPA envisioned  that this involvement would also serve to offset public participation  opportunities that may be ``lost'' if a source is able to take  advantage of the new streamlined RCRA modification procedures for HWCs,  since modifications required under RCRA would naturally be part of the  source's overall plan for achieving compliance with the standards.  Secondly, the PRNIC would provide an expeditious notice to the  permitting Agency as to whether sources would be able to come into  compliance with the new standards. Having information about plans for  compliance might prove helpful to permitting agencies in planning the  most efficient use of their resources during the three year compliance  period.  B. Summary of Final Provisions      EPA is moving forward with an early compliance planning  requirement. However, the final rule contains certain changes from the  PRNIC discussed in the NODA; the Agency has revised the requirements  based on public comments received following the NODA's publication and  based as well on the original proposal. EPA is finalizing new  requirements in Sec. 63.1211 for facility owners and operators to  develop and submit a Notification of Intent to Comply (NIC), and in  Sec. 63.1212 to develop and submit a Progress Report. Section 63.9(h)  ``notification of compliance status'' requires facilities to submit  such notification when a source becomes subject to a relevant CAA  standard. As such, today's requirement is an enhancement of this  requirement to give notification of intent to comply prior to the three  year compliance date of the emissions standards. The source can use the  NIC to notify either the source's intent to come into compliance with  the new standards, or the source's intent not to come into compliance  with the new standards. The NIC must be submitted to the permitting  agency within a year of the final standards being promulgated, and the  Progress Report within two years.     As proposed, the primary purpose of the NIC is to serve as a  planning and outreach tool for achieving compliance with the MACT  standards. The contents of the NIC, set forth in Sec. 63.1211(a)(1),  are similar to those presented in the NODA discussion on the PRNIC with  modifications based on comments received on the NODA. Also as discussed  in the NODA, sources will have to make a draft of the document  available to the public as part of the process of developing the NIC.  They will also have to provide notice of and conduct an informal  meeting with the public to discuss anticipated plans for achieving  compliance with the standards. The purpose of the Progress Report is to  help permitting agencies determine if sources are making reasonable  headway in their efforts to come into compliance. In deciding on this  approach to compliance planning‑‑the NIC followed by the Progress  Report‑‑EPA determined (1) that one year is sufficient time for a  source to establish its general ``plan of attack'' for achieving  compliance, and (2) that during the second year a source should be well  on its way to making necessary modifications, if it plans to meet the  MACT limits, or to making alternate arrangements for handling the  hazardous waste, if it does not intend to meet the MACT limits.     The final rule does not contain provisions for updates to the final  NIC following a significant change in the facility's implementation  strategy, as considered in the NODA. Since the Agency decided to  implement a requirement for a Progress Report at the end of the second  year, there is no purpose served by having a revised NIC. EPA  anticipates that any significant changes to a facility's compliance  plan would necessarily be reflected in the Progress Report.  C. Discussion of Public Comments and Final NIC Provisions  1. General.     The majority of commenters supported the concept of early  compliance planning, particularly with regard to the public involvement  component. Those advocating early involvement indicated that the PRNIC  concept appears reasonable, not overly burdensome, and represents a  positive step to ensure public involvement in the MACT process. Many  lauded the Agency's effort to bring the spirit of the recently  promulgated RCRA enhanced public participation requirements (see 69 FR  63417 (Dec. 11, 1995)) to the MACT arena and the strong RCRA goal of  public participation for decisions involving permitted hazardous waste  management facilities (RCRA section 7004(b)). Commenters opposing the  [[Page 33807]]  additional public involvement required as part of the PRNIC development  process stated that the activities (e.g., the public meeting) would  create more controversy and impose additional burdens on both sources  and permitting agencies at a time when they will be faced with a  substantial workload. Some commenters expressed concern that the  additional activities would provide no real benefit, since neither the  permitting agencies nor the public have authority to disapprove of a  source's chosen control options, as long as the source operates within  the MACT limits. One commenter noted that the concept of a PRNIC was  unprecedented for CAA sources; they said a PRNIC was not required under  the CAA and it was beyond EPA's authority to impose such a requirement.     The Agency agrees with commenters who recognize the value of early  public involvement. EPA has repeatedly emphasized its commitment to  enhancing public participation in all of its programs (see National  Waste Minimization and Combustion Strategy and Enhanced Public  Participation Rule). Experience has shown that hazardous waste  combustors spark a tremendous amount of legitimate public interest;  many communities have expressed a desire to be involved at all stages  of combustor operations and permitting activities. Given this  background, EPA fully expects the promulgation of the final MACT  standards to receive significant and appropriate public scrutiny. As  one commenter points out, HWCs are already subject to RCRA regulations,  and many of them operate under risk‑based permits that were subject to  extensive public review. EPA anticipates that the fact that HWCs will  now be regulated under CAA is likely to remain of vital interest.  People will know that new emissions limits are being imposed, and will  want to know how the source plans on meeting them. The NIC provides  this information, and the NIC meeting opens the door for the public to  communicate directly with the owners or operators.     EPA does not share the concern expressed by commenters that the  public involvement activities impose a substantial burden with no  commensurate benefit. The effort associated with drafting a NIC and  holding the NIC meeting is not overly burdensome. Facilities will most  likely need to compile the information for their own uses, in order to  effectively decide which compliance option(s) they will pursue. Making  the information available to the public and discussing it during an  informal meeting could provide benefits in many areas, even if the  permitting agency and the public do not have the authority to approve  or disapprove of the compliance method(s) ultimately selected. For  example, it could save time and money at the end of the permitting  process. Talking to people early on about what can and cannot be  accomplished in a given situation, asking their input on decisions that  need to be made, and explaining the rationale behind decisions that  have already been made, can lead to fewer challenges on draft permit  conditions. EPA also believes the public could provide useful  information to owners or operators that might contribute to a quality  plan for achieving compliance with the MACT standards. The level of  knowledge on environmental matters exhibited by the public (at public  meetings, in correspondence, for example) appears to be increasing. As  the public's knowledge base grows, so might the quality of input they  can provide into technical decisions.     EPA disagrees also that there is no precedent for the concepts  inherent in the NIC, and that EPA does not have authority to impose  such a requirement. Since EPA has chosen to provide the maximum amount  of time for compliance allowed under the CAA (3 years), requiring  sources to identify their compliance plans is particularly appropriate.  As stated before, EPA is committed to enhancing public involvement in  environmental matters. Providing the compliance plans to the public is  one of many ways the Agency is implementing this policy. Precedent for  early public involvement has been set both in the Agency's Hazardous  Waste Minimization and Combustion Strategy and in the enhanced RCRA  public participation requirements promulgated in December, 1995 (see 69  FR 63417, December 11, 1995). 2. Purpose of the NIC     As discussed in the background part of this section, the original  purpose of the PRNIC was to promote public involvement and to assist in  compliance planning. Commenters supported these goals, which continue  to be the compelling motives for adopting the NIC requirement. The  primary purpose of the NIC is thus to serve as a planning tool for  achieving compliance with the MACT standards. In other words, the NIC  is designed to ensure that facility owners or operators get an early  start on evaluating their options for meeting the new standards, and to  serve as a vehicle for public involvement. EPA's intent is to  facilitate dialogue regarding a facility's compliance strategy. The NIC  also serves the purpose of having sources identify to the regulators  and the public their intent to comply or not to comply with the  applicable emission control requirements of this Subpart. The NIC and  public meeting will foster mutual understanding of the compliance  options, including consideration of both technical (e.g., equipment  changes to upgrade air pollution control devices) and operational (e.g,  process changes to minimize waste generation) alternatives. Ideally, it  will also result in the selection of a method that will meet the goals  of both the facility and the community.     The NIC will not serve as a basis for requiring facilities to cease  burning hazardous waste if they intend to comply with the emission  standards of this Subpart. If, however, a facility indicates in its NIC  that it does not intend to meet the emission standards of this Subpart,  then the source must stop burning hazardous waste within two years of  the standards being promulgated. This requirement is discussed in more  detail in Section D. Discussion of Public Comments and Progress Report.  EPA would like to clarify that its intent has never been to shut a  source down completely. The source might be required to cease burning  hazardous waste; however, it would not be precluded from burning non‑ hazardous waste or other alternative fuels. However, those sources who  indicate in the NIC their intent not to comply with the applicable  emission control requirements of this Subpart will be required to stop  burning hazardous waste within two years of the effective date of the  emission control requirements.     Although the NIC will not be used to cause sources to stop burning,  there are enforceable requirements associated with it. Sources must  provide a draft NIC for public review, advertise and conduct an  informal meeting, and submit a final NIC to the permitting agency. If  these activities do not take place within the time frames specified in  the regulations, sources will be in violation of the requirements, and  subject to appropriate enforcement action. The key milestone dates  contained in the schedule submitted with the NIC are not enforceable,  however; the requirement to submit a schedule containing key dates is  the enforceable requirement.     Finally, one commenter suggested that the NIC be used to identify  RCRA permit conditions that would ``disappear'' when MACT limits are  set. EPA is not using the NIC for this purpose. EPA will address  permitting  [[Page 33808]]  schemes, and the process for transitioning from a RCRA permit to a  Title V permit, in the final rule promulgating MACT standards for HWCs.  The NIC is not the appropriate vehicle for accomplishing this task. 3. Timing     In the PRNIC discussion in the May 2, 1997 NODA, EPA said that the  final PRNIC would be due to the permitting agency within 270 days  following the effective date of the final MACT standards. A draft of  the document would have to be available within 210 days, and at least  30 days before the informal public meeting was to be held.     Although several of commenters considered the time frame too long,  many others said it would be difficult to prepare a quality compliance  planning document so quickly. They also expressed concern about meeting  with the public at such an early stage. The commenters' position was  that any draft plan put together within 7 months after the standards  are finalized would be tentative only. They were reluctant to go to the  public with a tentative plan that was likely to change significantly  before it was final.     EPA agrees with commenters that the time frames are tight. In order  to be operating within the new limits by the end of the compliance  period, it is imperative to start the planning process immediately. In  recognition of commenters' concerns about preparing the draft plan, EPA  is extending the time frames in the final rule. In accordance with the  provisions in Sec. 63.1211, the final NIC will be due to the permitting  agency within one year of promulgation of the final standards. The NIC  meeting must be held no later than 10 months following promulgation,  and the draft NIC made available at least 30 days before the meeting is  held. So, facilities basically have 2 extra months to prepare a draft  document, and 3 extra months to submit a final NIC to the permitting  agency. The revised time frames should provide sufficient time not only  to prepare the initial draft, but also to revise it, as appropriate, to  reflect discussions from the public meeting and final engineering  decisions about the source's operation.     The Agency understands the concerns expressed by commenters about  sharing draft material with the public. However, EPA does not expect,  nor should facilities or the public expect, the draft NIC to describe  all of the technical aspects of the compliance options in extensive  detail. Similarly, discussion of the options at the public meeting  should not focus on minute details. The purpose of sharing the draft  and discussing the options at the public meeting is to capture major  ideas in a planning document, to facilitate dialogue regarding a  facility's compliance strategy, and to discuss possible courses of  action. The information in the draft NIC should be sufficient to  stimulate this level of discussion. The more in‑depth technical  discussion can be incorporated into the final document. Since all  sources are required to have the final NIC submitted to the permitting  agency one year after the final standards are promulgated, anyone may  request a copy of it from the permitting agency at that time. 4. NIC Meeting     EPA is requiring facilities to provide notice of and host an  informal meeting with the community to discuss anticipated plans for  complying with the MACT emissions standards (see Sec. 63.1211(b)). The  meeting must take place within 10 months of the final standards being  promulgated. At least 30 days before the meeting takes place, the  facility must provide public notice of the meeting, and must make the  draft NIC available for public review.     Commenters were generally supportive of EPA's intent to require a  public meeting to discuss compliance planning. Some commenters had  specific concerns, ranging from the timing issues addressed above, to  the methods for providing notice, and the potential for being required  to conduct several redundant meetings to meet various purposes.     EPA had listed three mechanisms in the NODA for providing notice of  the public meeting: a display ad in a newspaper, a sign at the  facility, and a broadcast announcement. These were the same mechanisms  used to provide notice of the RCRA pre‑application meeting, and EPA  believes they are appropriate for the NIC meeting as well. At least one  commenter thought the mechanisms were too broad, and that a notice via  newspaper and a sign at the facility would be enough. Another commenter  suggested that a notice be sent to the facility mailing list as well.  EPA decided not to limit the notice methods for the NIC meeting, but  did add the facility mailing list to the methods in Sec. 63.1211(b)(3).  Each of these notices must include the date, time and location of the  meeting, a brief description of the purpose, a brief description of the  facility, a statement asking people who need special access to notify  the facility in advance, the name of a contact for the NIC, and a  statement describing how the draft NIC can be obtained.     Commenters who were concerned about redundant public meetings  described a few possible scenarios. For example, in states that do not  adopt the streamlined RCRA modification procedures a facility might be  required to conduct a public meeting as part of a Class 2 or 3 RCRA  modification, as well as the NIC meeting. Federal facilities might have  public meeting requirements under the National Environmental Policy Act  (NEPA). Other facilities might be facing RCRA pre‑application meetings,  either for initial permits or those up for renewal. Or, some facilities  might have routine meetings scheduled with communities as part of  Responsible Care or Good Neighbor agreements.     It is not EPA's intent in imposing the NIC meeting requirement to  create duplicative requirements for public meetings. To do so would  burden both the facility and the public. Everyone's time is valuable,  and most people would probably prefer not to go to several meetings if  one will do. EPA recognizes this, and would like to clarify that  nothing in today's rule precludes a facility from combining meetings as  long as the purposes of each are served. EPA sees combining events,  particularly public involvement activities, as a first step in moving  towards a multi‑media approach to environmental management. Thus, if a  facility has to complete a class 2 or 3 RCRA modification because it is  located in a state that has not adopted the RCRA streamlined  modification process, EPA would expect, and fully encourage, the  facility to set up one meeting that would serve both the RCRA  requirements and the CAA NIC requirements. The same is true for  combining the NIC meeting with a RCRA pre‑application meeting, if the  facility has to host one for either an initial RCRA permit or because  its permit is up for renewal, or with other types of public meetings  the facility may have scheduled.     A few commenters expressed concerns about responding to public  comments on the draft NIC, either during or following the public  meeting. They cited time as the driving reason for this concern; they  suggested their time would be better spent finalizing their plans for  complying than formally responding to comments. One commenter noted  that it was unclear in the NODA whether the draft NIC would be  available prior to the meeting. In response, EPA would like to clarify  that facilities are not required to formally respond to any comments,  oral or written. However, it is important to keep in mind that the  public may request a copy of the final NIC, and will  [[Page 33809]]  be reviewing the facility's final plans for coming into compliance.  Facilities must also submit a summary of the meeting to the permitting  agency as part of the final NIC, so the permitting agency will be  apprised of the discussions that took place. EPA believes that this  provides incentive for the facility to address any significant issues  raised by the public in the NIC meeting.     EPA expects that the exchange between the facility and the  community that takes place during the meeting will be much like it is  for RCRA pre‑application meetings. That is, the Agency intends for the  meeting to provide an open, flexible and informal occasion for the  facility and the public to discuss various aspects of the facility's  compliance strategy. The Agency anticipates that the facility and the  public will share ideas, and build a framework for a solid working  relationship. The final NIC should reflect, to the extent appropriate,  ideas or suggestions raised by the public.     The final provisions in Sec. 63.1211 clarify that the draft NIC  must be made available to the public at least 30 days before the  meeting is to take place. This will provide sufficient time for people  to review the facility's intended strategy. EPA did not prescribe in  the regulations the manner in which the draft NIC must be provided.  There is not a ``one‑size‑fits‑all'' approach to getting information  out to the public. It is more logical to allow the facility to make  that decision in the context of their particular situations. For  example, if a facility has an information repository established, the  draft NIC may be made available there. Or they could make it available  upon request, since the name, phone number, and address of the NIC  contact must be in the meeting notice. 5. Relation Between NIC and Other Notification Requirements     The requirements for the NIC are being promulgated in a new subpart  applicable to HWCs in the Part 63 CAA regulations. Several commenters  did not believe it necessary to add these new requirements, arguing  that existing provisions under both the CAA and RCRA would fulfill the  purpose of the NIC. They cited the initial notification requirements in  Sec. 63.9(b), the notifications of compliance status in Sec. 63.9(h),  Title V permit application requirements in Sec. 70.5(c), and RCRA  public involvement requirements in Sec. 270.42 (permit modification  procedures).     EPA has reviewed the requirements in each of these sections, and is  not persuaded that the information or the timing of the submittals are  sufficient to meet the objectives of the NIC. In terms of the  information, the NIC actually seems to fall between the initial  notification and the notification of compliance status. The information  included in the NIC supplements the initial notification requirements  in 40 CFR Part 63.9(b). The initial notification requirements in  Sec. 63.9(b) address basic information such as name and address of the  owner and the source, and a brief description of the source. The focus  is on the source as it exists, not as it may need to be modified to  meet new standards. The information in the NIC provides this next  step‑‑it focuses on what types of changes might have to take place in  order to achieve the emission limits set by MACT. The types of changes  may be physical, such as adding or replacing air pollution control  devices, or they may be operational, for example, achieving lower  emissions by minimizing the waste generated elsewhere that is  subsequently used as fuel for the combustor.     The information required in the NIC will enable the public to  engage in a meaningful dialogue about the facility's compliance  strategy, including a discussion of the various options under  consideration. For example, when a facility identifies and describes  the type of control technique(s) being considered, it would be ideal  for the facility to have examined all of the waste minimization and/or  pollution control options available, including emission control through  process modification, feed restriction, and pollution control  equipment, (e.g., Hg control by production process changes, recovery,  segregation, feedrate restriction, carbon injection, carbon bed, wet  scrubbing, etc.). The compliance notification requirements in  Sec. 63.9(h), on the other hand, have a different objective. They focus  not on options for coming into compliance, but rather on how compliance  will be demonstrated and monitored.     EPA chose not to tie the NIC requirements to the Title V permitting  process. In terms of timing, the Title V process may not always be  appropriate. It is important to keep in mind that MACT standards set  forth in Part 63 are self‑implementing; activities associated with them  often take place outside of the permitting process. When MACT standards  are promulgated, sources must begin adhering to the regulations,  regardless of where they stand in the Title V permit process. For  example, sources that already have Title V permits do not have to  reopen them until renewal, if they are within 3 years of the expiration  date. This time frame obviously is too long to meet the goals of the  NIC. In addition, Title V permits contain all applicable requirements  for all sources at a facility. To use the Title V process just for  hazardous waste combustors is not practical.     The Agency has also determined that the information requirements  for Title V applications do not meet the spirit of the NIC. Like the  Sec. 63.9(h) compliance notification requirements, the Title V  information does not address options for achieving compliance,  particularly with regard to waste minimization and pollution prevention  techniques being considered. Of course, the NIC is not intended to be  the primary vehicle for waste minimization or pollution prevention  planning. EPA expects that these are ongoing areas of exploration for  facilities. EPA does expect, however, that to the extent these may be  used to achieve compliance with the MACT standards, facilities will  investigate them as viable options and will discuss them as such with  the public.     Some commenters suggested that facilities having to follow Class 2  or 3 RCRA permit modification procedures (e.g., because they are  located in states that do not adopt the RCRA streamlined modification  procedures) not be required to submit a NIC, since public meetings are  a required step in those procedures. Another suggested that RCRA  interim status facilities not be subject to NIC requirements, because  they are not ``losing'' any public involvement in a modification  process (since they have no permit to modify). EPA disagrees with these  suggestions. The NIC is broader in scope than just facility  modifications that may have to be incorporated into a RCRA permit or  that may be accomplished by following the procedures in 40 CFR  270.72(a) for allowable changes under interim status. The NIC is  intended to lay out for discussion the source's overall plan for  achieving compliance; this goal is relevant regardless of whether the  facility is operating under a permit or under interim status. Facility  changes under RCRA would just be one piece of the overall document, and  one segment of the public discussion. As stated in the previous  section, however, there is nothing in today's rule that precludes a  facility having to follow Class 2 or 3 permit modification procedures  from combining the public meeting required as part of the modification  process with the public meeting required as part of the NIC process.  EPA would expect, and fully encourage, a facility in this situation to  set up one meeting that would serve both purposes.  [[Page 33810]]  D. Discussion of Public Comments and Progress Report  1. Overview      The Clean Air Act requires the Administrator to establish a  compliance date or dates for each category or subcategory of existing  sources, which shall provide for compliance as expeditiously as  practicable, but in no event later than 3 years after the effective  date of such standard, except as provided via a one year extension. CAA  section 112(i)(3). EPA believes that compliance as expeditiously as  practicable will have numerous benefits for human health and the  environment. In particular, for those sources that do not intend to  ultimately come into compliance with the emission standards of this  Subpart, expeditious compliance would be achieved by ceasing to burn  hazardous waste. The Agency anticipates that numerous sources will  choose not to come into compliance with the requirements of this rule,  and will cease burning hazardous waste prior to issuance of the rule or  at some later date, but prior to the compliance date. This section is  intended to expeditiously limit the burning of hazardous waste by those  sources who do not intend to come into compliance with the requirements  of the emission standards of this Subpart, but continue to burn  hazardous waste after the effective date of the emission standards of  this Subpart. These sources are, quite simply, able to meet the  standards earlier than the three years allowed for sources which will  continue to burn hazardous waste. Thus, for this class of facilities,  EPA is creating a means of compliance ``as expeditiously as  practicable'' (CAA section 112(i)(3)).     In the April 1996 proposal, the Agency invited comment on how  sources could be identified and strategies that could be used to  encourage or require these types of sources to comply at the earliest  possible date. Several commenters suggested methods to require sources  to identify their intent to comply or not comply with the emission  standards soon after the promulgation of the final rule for these  standards. They also suggested that those sources that did not intend  to come into compliance would be required to stop burning hazardous  waste. 2. Summary of Progress Report Requirements     The Agency has adopted in the final rule a variation of the concept  commenters suggested along the lines of the April 1996 concept EPA  proposed. The final rule requires those sources subject to the rule to  signify in their NIC an intent to comply or not to comply with the  requirements of the emission standards of this Subpart. Sources who  make the decision not to comply with the rule must stop burning  hazardous waste on or before two years after the effective date of the  emission standards of this Subpart. The Agency believes that two years  is an adequate length of time for these sources to arrange for  alternate management of their hazardous waste through process changes  to minimize the waste, use of alternate on‑site management, or the use  of off‑site management. Those sources who intend to come into  compliance with the emission standards will have the full three years  to come into compliance as intended by the statute.     The sources who do not intend to comply with this rule must include  in their NIC a schedule that includes key dates for the steps to be  taken to stop burning hazardous waste. Key dates include the date for  submittal of RCRA closure documents. The types of closure documents  that would need to be submitted will most likely vary depending on the  source's status. For example, if a source is in interim status, it may  need to submit a closure plan. If the source is permitted, it will  probably need to update its closure plan (that is part of the permit);  thus, the ``document'' may be a permit modification request.     a. Submittal. Commenters suggested that sources submit progress  reports to track source's actions toward compliance. The Agency also  believes that a progress report would be a useful tool to evaluate a  source's progress toward compliance. In the final rule, EPA requires  those sources to submit to the regulatory authority a progress report  on or before two years after the effective date of the emission  standards of this Subpart. Any sources burning waste on and/or after  two years following the effective date of the emission standards of  this Subpart will be required to submit a progress report.     b. Demonstration. The Agency believes that any source which intends  to come into compliance with the emission standards of this Subpart,  except for those sources in compliance on the effective date of the  emission standards of this Subpart, will be required to make  modifications to the source to come into compliance. To gauge the  progress of these modifications, the final rule requires sources to  submit with their progress report information demonstrating that the  source has: (1) Completed engineering design for any physical  modifications to the source needed to comply with the emissions  standards of this Subpart; (2) Submitted applicable construction  applications to the applicable regulatory authority; and (3) Entered  into a binding contractual commitment to purchase, fabricate, and  install any equipment, devices, and ancillary structures needed to  comply with the emission requirements of this Subpart. Those sources  which fail to make this demonstration in their progress report or who  fail to submit a progress report shall stop burning hazardous waste on  or before the date two years after the effective date of this Subpart.     Because the types of modifications that sources will have to make  are anticipated to require the commitment of substantial resources,  sources are required to demonstrate that they have entered into a  binding contractual commitment to purchase the resources necessary to  make those modifications. Some examples of binding contractual  commitments follow; however, EPA may judge other demonstrations  adequate on a case‑by‑case basis. In some cases, EPA will allow  evidence of an in‑house construction plan to satisfy the demonstration.  If on‑site labor by facility personnel will be used, a statement of  commitment must be provided by upper management, and such other  evidence of a commitment as is available, such as company memoranda or  annual budgets committing funds, purchase orders, or copies of  contracts with any suppliers of equipment or materials. EPA expects  that, in most cases, sources will use off‑site resources in their  modifications. To demonstrate commitment in these cases, sources must  provide copies of binding contracts with companies to perform tasks or  supply equipment that will facilitate bringing the source into  compliance.     There may be a limited number of sources who intend to come into  compliance, but will not need to undertake any of the activities  identified in the demonstration criteria above to do so. These sources  are required to submit instead documentation: (1) Demonstrating that  the source, at the time of the progress report, is in compliance with  the emissions requirements; or (2) specifying the steps that will be  taken to bring the source into compliance, without undertaking any of  the activities identified in the demonstration criteria. The Agency  anticipates that few if any sources will not need to enter into binding  contracts in order to come into compliance with the emission standards  of this Subpart.     Those sources who indicated in the NIC their intent not to comply  with the  [[Page 33811]]  emission control requirements of this Subpart must still submit a  progress report. These sources, however, must only indicate that they  have stopped burning hazardous waste and have submitted the required  RCRA closure documents.     c. Schedule. To determine that facilities are undertaking the steps  necessary to come into compliance by the compliance date, the progress  report shall contain a schedule. This schedule must take into account  the key dates listed in 63.1211(a)(1)(ii) for projects that will bring  the source into compliance with the emission standards. The schedule  must cover the time frame from the submittal of the progress report  through the compliance date of the emission standards. EPA is requiring  that the following key dates, as applicable to each source, be  contained in their schedule: (1) Bid and award dates for construction  contracts and equipment supply contractors; (2) milestones such as  ground breaking, completion of drawings and specifications, equipment  deliveries, intermediate construction completions, and testing; (3) the  dates on which applications were submitted for or obtained operating  and construction permits or licenses; (4) the dates by which approvals  of any permits or licenses applied for are anticipated; and (5) the  projected date by which the source will be in compliance with emission  standards. The Agency anticipates that many sources will be able to  update the schedule included with their NIC in submitting a schedule  for the progress report.     d. Sources That Do Not Intend To Comply. The Agency anticipates  that some facilities, which intended to comply at the time of their NIC  submittal, may make the determination not to comply based on  engineering studies or evaluations by the time of their progress report  submittal. Those sources that signify in their progress report,  submitted on or any time before two years after the effective date of  the emission standards of this Subpart, their intention not to comply  with the requirements of this Subpart must stop burning hazardous waste  on or before the date two years after the effective date of the  emissions standards of this Subpart. Sources who, at the time of their  NIC submittal, have any belief or concern that they may decide not to  comply with the emission standards should consider planning alternate  waste management alternatives well in advance of the two year stop  burning deadline.     e. Facilities with Multiple Sources. Commenters stated that some  facilities may have multiple units at the same site subject to the MACT  requirements. These facilities may decide to bring a portion of the  sources into compliance and cease burning hazardous waste in the other  portion of their sources. If a facility did decide to upgrade one or  more units, it may be necessary to utilize the remaining unit, in which  it intended to stop burning hazardous waste prior to the compliance  date, to handle the capacity of the unit being upgraded until the  installation of controls was complete. The commenters believed that it  was unjustified to close a source at the two year deadline in the case  where a source: (1) Was designated for closure at or before the three  year compliance date; and (2) was handling the waste from another on‑ site source being upgraded to comply with the MACT standards or in  order to install source reduction modifications eliminating the need  for further combustion of wastes.     The Agency agrees that the intent of the requirement for sources  that did not intend to comply to stop burning hazardous waste should  not apply to these types of sources. Therefore, the requirement to stop  burning hazardous waste at the two year deadline does not apply to a  source if: (1) The source was designated in the NIC as a source that  would stop burning hazardous waste on or before the compliance date;  and (2) the source was shown in the NIC to be necessary to handle the  capacity of another on‑site source while that source was unable to  handle the waste and undergoing modifications to come into compliance  with the emission standards of this Subpart or in order to install  source reduction modifications eliminating the need for further  combustion of wastes.  E. Certification      To ensure that information submitted by a source is true and  accurate, all NIC and progress reports submitted shall contain the  following certification signed and dated by an authorized  representative of the source: ``I certify under penalty of law that I  have personally examined and am familiar with the information submitted  in this document and all attachments and that, based on my inquiry of  those individuals immediately responsible for obtaining the  information, I believe that the information is true, accurate, and  complete. I am aware that there are significant penalties for  submitting false information, including the possibility of fine and  imprisonment.''     An authorized representative should be a responsible corporate  officer (for a corporation), a general partner (for a partnership), the  proprietor (of a sole proprietorship), or a principal executive officer  or ranking elected official (for a municipality, State, Federal, or  other public agency).  F. Extension of the Compliance Date      The CAA provides sources that intend to come into compliance, but  because of the need to install controls will not meet the compliance  date, the ability to request an extension of the compliance date for  one year. The Agency believes facilities that choose to install process  changes (which are essentially pollution prevention or waste  minimization measures) and/or other controls that are appropriate for  meeting MACT standards are eligible to request a one year extension of  the compliance date to install these controls (CAA Section  112(i)(3)(B)). Facilities that request an extension to install  pollution prevention and/or waste minimization measures may use part  63.1216 below, which describes the pollution prevention related  information to be submitted. Facilities that request an extension for  installing only end‑of‑pipe emission controls may use part 63.6(i)(4)  requirements. In either case, the extension request shall be filed at  least one year prior to the compliance date of this Subpart.  G. Sources Which Become Affected Sources After the Effective Date of  This Subpart      The Agency is concerned that there may be sources who become  subject to the emission standards of this Subpart after the effective  date of the emission standards of this Subpart. The following is  intended to clarify the requirements and time frames that must be met  by such sources. A source which begins to burn hazardous waste after  the effective date of the emission standards of this Subpart, therefore  becoming an affected source, but prior to 9 months after the effective  date of the emission standards of this Subpart, shall comply with all  the requirements of this section and associated time frames for public  meetings and document submittals.     A source which intends to begin burning hazardous waste after 9  months after the effective date of the emission standards of this  Subpart, therefore becoming an affected source, shall meet all the  requirements concerning the NIC and progress report prior to burning  hazardous waste. Such sources shall make a draft NIC available, notice  their public meeting, hold their public meeting, and submit a final NIC  prior to burning hazardous waste. Such sources also shall submit their  progress report at  [[Page 33812]]  the time of the submittal of their final NIC.  VI. Waste Minimization and Pollution Prevention  A. Overview      Pollution prevention is widely recognized as the most preferable  form of environmental management. Indeed, the Clean Air Act, the  Pollution Prevention Act, and the Resource Conservation and Recovery  Act explicitly make pollution prevention the preferred tool in our  nation's environmental management toolbox. The States have been strong  leaders as well in moving pollution prevention to the forefront. Over  the past decade, 30 states have passed legislation that promotes  pollution prevention.<SUP>18</SUP> Those States have embarked on a  variety of programs that move pollution prevention more into the  mainstream of their environmental management strategies‑‑ranging from  pollution prevention based permits and inspections, to mandatory  pollution prevention planning programs, to voluntary partnerships and  technical assistance. Nearly every State operates some form of  pollution prevention technical assistance program to help companies  reduce as much waste as possible at the source. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \18\ Pollution Prevention 1997, A National Progress Report  (June, 1997). U.S. Environmental Protection Agency, EPA 742‑R‑97‑00,  Washington, D.C. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      EPA has embarked on several experimental programs, including, for  example, Project XL and the Common Sense Initiative, to identify  barriers in Federal regulations that impede cleaner, cheaper, smarter  environmental solutions, and to demonstrate ways of redrafting  regulations to provide greater flexibility in solving environmental  problems.     In 1994, EPA began an extensive outreach effort to begin  identifying pollution prevention barriers and incentives affecting  hazardous waste combustion. Over the course of the past four years, EPA  has worked extensively with the States, industry, environmental groups,  and citizens, in many dozens of discussions and correspondences to  explore a broad range of approaches to pollution prevention in the  combustion arena. Today's rulemaking puts in place several incentive  based pollution prevention and waste minimization incentives that  derive from that long term effort, and that will provide the regulated  community with additional flexibility to use pollution prevention  technologies where it makes sense to do so. Some barriers were  identified that are not easily solvable within the limits of the Clean  Air Act, such as time limits on compliance that sometimes force  companies to install end‑of‑pipe emission controls, instead of  pollution prevention process changes, because they are faster and less  risky to install. Nevertheless, today's rule suggests an approach that  can address even this problem.     Today's rule contains incentives that provides the regulated  community:  ‑‑several months of planning time before the MACT compliance period  begins to explore cost effective pollution prevention alternatives that  might reduce the cost of hazardous waste combustion, ‑‑the opportunity to extend the compliance period by one year where the  additional time is needed to install pollution prevention controls that  reduce the amount of hazardous waste entering combustion units, and ‑‑the opportunity to engender public support on pollution prevention  alternatives that reduce the amount of waste that will be combusted.      The six pollution prevention alternatives EPA published for  comment, the comments received and a description of the incentives  contained in today's rule are discussed further below.  B. Background      The goals of the Clean Air Act clearly express Congress' intent to  use pollution prevention as a fundamental tool for protecting our  nation's air resources:     ``A primary goal of this chapter is to encourage or otherwise  promote reasonable Federal, State, and local government actions,  consistent with the provisions of this chapter, for pollution  prevention.'' (Clean Air Act, Section 101 (c)).''     ``Air pollution prevention (that is, the reduction or elimination ,  through any measures, of the amount of pollutants produced or created  at the source) * * * is the primary responsibility of States and local  governments.'' (Clean Air Act, Section 101 (a)(3)).''     Congress' intent in the CAA is consistent, if not identical, to the  policies set in the Pollution Prevention Act of 1990 (PPA) and the  Hazardous and Solid Waste Amendments to RCRA of 1984, RCRA Section  1003(b) and Section 6602 (a).     More specifically, we note the definition of pollution prevention  as used in the CAA is best captured in the operational definition used  in Section 112 (d)(2). This section requires EPA to consider pollution  prevention techniques in addition to ``end of pipe'' emission controls  and other methods in the setting of MACT standards. Pollution  prevention is used here to include: ``measures, processes, methods,  systems, or techniques including, but not limited to, measures which *  * * (A) reduce the volume of, or eliminate emissions of, such  pollutants through process changes, substitutions of materials or other  modifications, * * * or (D) are design, equipment, work practice, or  operational standards (including requirements for operator training or  certification) * * *''     To avoid some of the historical confusion that has occurred over  the definitions of pollution prevention and waste minimization, it is  useful to compare the CAA definition to those in the PPA and in the  Hazardous and Solid Waste Amendments to RCRA of 1984.     The PPA (at Section 6603(5)(A)) defines pollution prevention as  source reduction activities, which includes any practice that reduces  the amount of hazardous substance, pollutant or contaminant entering a  waste stream, or otherwise prior to recycling, treatment or disposal.  It includes such activities as: equipment or technology modifications,  reformulation or redesign of products, substitution of raw materials,  improvements in work practices, maintenance, training, and inventory  control. The meaning contained in the PPA is essentially the same  meaning referred to in Section 112(d)(2) of the CAA. Both focus on  reducing waste generation at the source by making changes in the way  things are manufactured.     The PPA excludes from pollution prevention any practice which  ``alters the physical, chemical, or biological characteristics or the  volume of a hazardous substance, pollutant, or contaminant through a  process or activity which itself is not integral to and necessary for  the production of a product or the providing of a service.'' (Section  6603(5)(B). In essence, this definition excludes waste management,  recycling (except for closed loop recycling that is integrated into  production processes), burning for energy recovery, waste treatment,  and disposal.     Since many of the facilities affected by today's rulemaking are  simultaneously regulated by RCRA, it is important to also explain the  use of the term waste minimization, under RCRA.     Waste minimization includes pollution prevention (or source  reduction) and environmentally sound recycling, i.e., recycling that  does not constitute disposal (see 40 CFR 261.1(c)). It does not include  treatment‑‑i.e, any ``method, technique, or process, including  neutralization,  [[Page 33813]]  designed to change the physical, chemical or biological character or  composition of any hazardous waste so as to neutralize such waste, or  so as to recover energy or material resources from the waste, or so as  to render such waste non‑hazardous, or less hazardous; safer to  transport, store or dispose of; or amenable for recovery, amenable for  storage, or reduced in volume.'' (40 CFR 260.10). RCRA also contains  requirements for hazardous waste generators and permitted waste  management facilities to make routine certifications that they have a  ``waste minimization program in place,'' and large generators must also  report waste minimization activities biennially.     The environmental literature and public statements of many  companies provide strong evidence of the potential benefits to industry  and the environment that result from using pollution prevention over  waste generation and management. For example, pollution prevention  techniques can help companies reduce the amount of raw materials  purchased and the amount of waste generated. These reductions can  reduce the amount spent on waste management and can also reduce worker  exposure to hazardous substances. Pollution prevention can help  companies improve product yield and find ways to recover materials that  might otherwise be destroyed or landfilled.     The literature also points to barriers that may impede a company's  ability to pursue pollution prevention. Barriers may include, for  example: little or no access to technical information on pollution  prevention technologies, concern over the impact of process changes on  product quality, a lack of access to capital, requirements in existing  environmental regulations that conflict with pollution prevention  objectives.     Today's regulation focuses on reducing several potential regulatory  barriers that could interfere with pollution prevention solutions. The  incentive based approach contained in today's rule is explained further  below.  C. Summary of Proposed Pollution Prevention/Waste Minimization  Incentives and Comments Received      EPA requested comment on six alternatives for promoting pollution  prevention and waste minimization at hazardous waste incinerators,  cement kilns and LWAKs. Three were proposed in the Agency's April 1996  NPRM and three were proposed in the Agency's Notice of Data  Availability (NODA) published in the Federal Register on May 2, 1997  (Revised Technical Standards for Hazardous Waste Combustion Facilities;  Proposed Rule, 62 FR 24241). All six incentive based alternatives were  designed to promote the identification and installation of pollution  prevention and waste minimization techniques that reduce or eliminate  the amount and/or toxicity of hazardous wastes entering combustion  feedstreams, either as an alternative to end‑of‑pipe combustion  measures, or in combination with combustion measures, to meet MACT  standards.     Two of the six alternatives proposed focused on using waste  minimization facility planning as a tool that would cause regulated  facilities to identify pollution prevention/waste minimization measures  that could be used to reduce the amount and/or the toxicity of  hazardous wastes entering combustion feedstreams. Two additional  alternatives focused on extending compliance deadlines to allow  additional time for companies to fully explore pollution prevention/ waste minimization measures and combustion measures that may be  necessary to meet MACT standards. A fifth alternative requested comment  on an approach that would harness the power of public involvement  during the initial stage of corporate compliance planning. The sixth  alternative proposed promulgating pollution prevention and waste  minimization incentives several months before the MACT standards are  promulgated‑‑which would provide companies several months of advance  planning time before the MACT compliance period begins. The  alternatives were not designed to be exclusive. Today's rule  promulgates a combination of three of these options, encourages States  to adopt two others, and recommends an alternative voluntary approach  for the sixth. The options, comments received and EPA's response to  major comments are discussed below. EPA's response to each comment is  contained in the docket.     EPA received over 40 comments on the options contained in the April  1996 NPRM and the NODA. Most of the commenters addressed one or more of  the following topics:  ‑‑Time‑based incentives, including the opportunity to enter into  enforcement agreements beyond four years, ‑‑The effectiveness of pollution prevention planning and planning  criteria, ‑‑Perceived effectiveness of pollution prevention in the context of  this rulemaking, ‑‑Setting MACT standards based on pollution prevention/waste  minimization, ‑‑Public review of pollution prevention and waste minimization, ‑‑The role of pollution prevention and waste minimization in waste  management, ‑‑The definition of pollution prevention and waste minimization, and ‑‑Applicability of pollution prevention incentives to commercial  facilities.      EPA asked for comments on the appropriateness of two options  requiring pollution prevention/waste minimization facility planning.  One option would require facilities to complete a waste minimization  facility plan that identifies alternatives for reducing the amount of  hazardous waste managed by combustion. While this approach would not  require facilities to select any particular pollution prevention  technology, it presumes that going through the process of exploring  alternatives would cause a company to consider more pollution  prevention options than they would have otherwise and select any that  are cost‑effective.     In the second waste minimization planning option, EPA proposed to  allow States and EPA Regions (in cases where States are do not have an  approved CAA Title V program) to require pollution prevention planning  on a case‑by‑case basis. Determining which facilities should be  required to complete a pollution prevention/waste minimization facility  plan could take into account several factors, including, for example,  whether an existing state program had already accomplished this  objective, the extent to which this requirement may be too burdensome  for some states, and the extent to which facility specific conditions  indicate emissions could be controlled by feed stream management and  waste minimization at the source.     A variety of commenters addressed this issue. Four states and one  state association commented pollution prevention/waste minimization  should be the highest priority waste management approach, though they  had diverse and sometimes conflicting opinions about the specific  options proposed. One State commented that mandatory planning should be  required for all facilities that generate and combust waste on‑site,  and that planning should be required on a case‑by‑case basis for  commercial off‑site combustion facilities. One State and the State  association stated that the mandatory planning requirement should be  expanded to include all facilities that generate waste managed by  combustion. A fourth State said that no waste minimization incentives  should be included in this rule because the  [[Page 33814]]  regulated community has had many years to reduce waste generation  through pollution prevention/ waste minimization, and should have  already considered waste minimization as an approach to compliance. One  state did not comment specifically on the pollution prevention planning  options but was in favor of encouraging pollution prevention incentives  in this rule.     This diversity of opinion among States leads EPA to believe that  the pollution prevention/waste minimization incentives contained in  this rule must allow broad flexibility for State programs. EPA is also  aware, from discussions outside the context of this rulemaking, that  some states are specifically opposed to mandatory pollution prevention  requirements, and a few states have not yet established pollution  prevention programs.     Several dozen comments were received from industry. Most of the  comments from companies who generate and combust waste on‑site were in  favor of pollution prevention/waste minimization as the most desirable  form of waste management. However, most were opposed or silent  regarding required pollution prevention planning. Only one argued that  mandatory pollution prevention planning is not appropriate, and that  the case by case option provides greater flexibility and is therefore  more appropriate.     Commercial combustion facilities generally oppose pollution  prevention planning requirements because they have virtually no control  over what types or how much waste their customers generate for  combustion. However, one company argued strongly for the Agency to  require mandatory pollution prevention planning by all regulated units  to identify pollution prevention alternatives that eliminate or reduce  the amount and toxicity of combusted wastes. The commenter further  argued that pollution prevention should be used to leverage the closing  of combustion units where wastes could more effectively be eliminated  or reduced. Another commercial company believes EPA should implement  ``good actor'' incentives for companies that educate their customers  regarding available waste minimization resources. Such incentives could  include reduced inspection frequencies, reduced performance testing,  and a recognition program. This approach was not suggested by any other  commenters. EPA believes this approach might be appropriate for further  exploration at a later time. One Federal agency commented in favor of a  case‑by‑case approach.     EPA considered several factors regarding this approach. First, the  CAA clearly envisions States as the primary implementers of the Title V  program, and the pollution prevention programs operated by the States  are clearly diverse. While 15 States have enacted mandatory pollution  prevention planning programs, the remaining States continue to  emphasize voluntary pollution prevention programs and technical  assistance to encourage pollution prevention.     Available data shows that mandatory pollution prevention planning  can be an effective State tool. It is not clear how effective this  approach would be for a broad array of states. In a review of seven  states that have chosen to implement mandatory pollution prevention  planning programs, the National Pollution Roundtable concludes that  mandatory pollution prevention planning produces beneficial results for  the regulated community and the environment, and encourages other  states to consider this direction.<SUP>19</SUP> However, New Jersey  (one of the seven States reviewed) notes in a separate report that its  companies began making significant reductions through pollution  prevention well before the State passed legislation requiring mandatory  pollution prevention planning. In this case, the State is not able to  pinpoint why this occurred.<SUP>20</SUP> ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \19\ ``Facility Pollution Prevention Planning Requirements: An  Overview of State Program Evaluations,'' National Pollution  Prevention Round table (August 8, 1997), Washington, D.C. 20036.     \20\ Aucott, M., Wachspress, D., & Herb J., (May, 1996).  ``Industrial Pollution Prevention in New Jersey,'' New Jersey  Department of Environmental Protection, Trenton, N.J. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      Of the 21 commercial hazardous waste incinerators and the 141 on‑ site hazardous waste incinerators (i.e., incinerators co‑located with a  company manufacturing facilities), 58 percent are located in states  which have legislated pollution prevention programs already in place.  Nearly all of the remaining facilities are located in States that  provide pollution prevention technical assistance. In addition, all of  these facilities are co‑regulated by RCRA and have been required since  1984 to certify on an annual basis, that they have a waste minimization  program in place. Therefore, it is not clear what additional pollution  prevention benefits would result from a mandatory requirement. Based on  its analysis, EPA believes that a federal requirement for pollution  prevention planning is not appropriate.     EPA also considered the impact Federal pollution prevention  planning requirements would have on the Agency's paperwork reduction  commitments. EPA is committed to decreasing its information collection  request budget. In light of the baseline requirements and voluntary  programs States have already established in this area, EPA concludes  this requirement would increase federal paperwork without necessarily  creating a commensurate improvement in environmental quality.     EPA has also expanded the availability of voluntary pollution  prevention incentives available‑‑which in turn reduce the need for  mandatory federal pollution prevention requirements. For example, EPA  has recently released the ``Waste Minimization Prioritization Tool.''  <SUP>21</SUP> This tool is an easy‑to‑use computer program that allows  industrial, government and public users to quickly identify their  highest hazard wastes as targets for pollution prevention efforts. The  tool allows the user to enter information on particular waste streams  and develop a screening‑level assessment of chemicals based on their  persistence, bioaccumulation potential, and human and ecological  toxicity. The system ranks about 900 chemicals that have ``complete''  data on chemical persistence, bioaccumulation potential, and human and  ecological toxicity, and it includes partial data for 3,800 others.  This tool has received much review and is targeted for widespread  distribution in the regulated community. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      \21\ ``Waste Minimization Prioritization Tool, Version 1.0:  User's Guide and System Documentation,'' (EPA 530‑R‑97‑019, June,  1997). U.S. Environmental Protection Agency, Washington, D.C. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑      EPA continues to provide $5‑$8 million dollars per year in grant  funds to States that develop innovative pollution prevention  approaches, and EPA is promoting pollution prevention innovation in  States through the National Environmental Performance Partnership  System (NEPPS). NEPPS agreements give the States flexibility to combine  individual program grants to maximize achieve environmental goals,  including using funds for pollution prevention that have historically  been used for end‑of‑pipe pollution controls. Texas, New Jersey, and  Ohio (which oversee a total of 45 hazardous waste incinerators) are  among the states that signed NEPPS agreements in 1996. Thirty states  were scheduled to negotiate NEPPS agreements in 1997.     In addition, a variety of government‑industry partnerships are  producing pollution prevention results. For example, 163 industry  members of Texas' Clean Industries 2000 program  [[Page 33815]]  are committed to reducing emissions of Toxic Release Inventory (TRI)  chemicals by 50 percent by the year 2000. A twenty‑nine percent  reduction was reached by the year 1994.     Balancing all of the above factors, EPA believes mandatory and  case‑by‑case pollution prevention planning approaches are not necessary  to achieve the pollution prevention goals of the CAA. A combination of  strong incentives and broad flexibility for States and the regulated  community, including some of the options discussed below and contained  in today's rule, will accomplish the pollution prevention goals of the  CAA.     Two options were proposed that would allow the MACT compliance  period to be extended for facilities that demonstrate the need for  extra time to install pollution prevention measures. One of these  options would allow facilities to apply for a one‑year compliance  extension to the MACT compliance period under Section 112(i)(3)(B)  where additional time is needed to install pollution prevention or  waste minimization measures that reduce or eliminate hazardous wastes  entering the combustion feedstreams of regulated facilities. Of course,  such applications must still be evaluated on a case‑by‑case basis CAA  112(b)(3). However, the following discussion provides an indication of  how EPA might evaluate such applications based on pollution prevention.     Facilities that apply for this one‑year extension would be required  to provide a description of the pollution prevention/waste minimization  measures that would significantly reduce or eliminate the volume and/or  toxicity of hazardous wastes entering combustion feedstreams, a  reduction goal (i.e., how much waste will no longer enter combustion  feedstreams of the regulated unit(s)), a discussion of additional  combustion or other treatment technology that will be installed to meet  MACT standards, and a schedule of milestones necessary to achieve  compliance. The pollution prevention/waste minimization measures  installed could be used either alone to meet MACT standards (e.g., in  cases where elimination of certain combusted waste streams will either  achieve MACT standards for the regulated unit(s), or will eliminate the  need for the regulated unit(s)), or in combination with combustion or  other treatment technologies that enable the facility to comply with  MACT standards. We emphasize that identifying expected reductions in  combustion feedstreams is required, but identifying reductions in  emissions as a result of installing pollution prevention measures is  not required. EPA recognizes this would not be practical. The  compliance date for facilities that are granted a one year extension by  the permitting agency would be four years after the promulgation of  MACT standards, rather than three years after the date of promulgation.     EPA recognized in its proposal that States operate very diverse  pollution prevention programs. However, to ensure some degree of  consistency in granting one year extensions, EPA proposed four flexible  factors to be considered in approving or denying requests for one‑year  compliance extensions for hazardous waste burning incinerators, LWAKs,  and cement kilns. These factors included: (1) The extent to which the  process changes (including waste minimization measures) proposed as a  basis for the extension reduce or eliminate hazardous wastes entering  combustion feed streams and are technologically and economically  feasible, (2) whether the magnitude of the reductions in hazardous  wastes entering combustion feed streams through process changes are  significant enough to warrant granting an extension, (3) a clear  demonstration that reductions of hazardous wastes entering combustion  feed streams are not shifted as increases in pollutants emitted through  other regulated media, and (4) a demonstration that the design and  installation of process changes, which include waste minimization  measures, and other measures that are necessary for compliance cannot  otherwise be installed within the three year compliance period.     EPA received no adverse comments on the four factors for ensuring  consistency. Companies that operate on‑site units (many of which are  large chemical plants which operate complex production processes and  which generate diverse and complex waste streams) commented that they  prefer to use pollution prevention and waste minimization measures  wherever they are cost effective. However, in the instant rulemaking,  the dual tasks of designing, testing and installing pollution  prevention process changes and combustion or other treatment equipment  is not practical in a three year compliance period plus a one‑year  extension. Some commented that meeting the compliance date may often  force companies to install combustion controls at great expense and  forego exploration of pollution prevention options.     The four states and one State association that commented on the  compliance extension options had diverse opinions. Two states commented  that pollution prevention/waste minimization should be encouraged in  this rulemaking. However, they believe three years plus a one‑year  extension may not be enough time for companies to identify and install  waste minimization measures. A third State said that pollution  prevention/waste minimization incentives should not be included in this  rule because companies have had more than ample time to pursue  pollution prevention/waste minimization as an approach to compliance. A  fourth State and State association commented that facilities have had  ample time to identify and install pollution prevention solutions‑‑ however, one year compliance extensions should be considered in cases  where it will promote further pollution prevention.     Two commercial hazardous waste treatment organizations commented  that a one‑year extension for pollution prevention/waste minimization  purposes is not appropriate since the companies generating the waste  have had several years to consider pollution prevention and waste  minimization measures as a waste management alternative.     EPA believes that compliance extensions provide a strong incentive  for pollution prevention, and provide States additional flexibility.  EPA agrees that, in some cases, three years plus a one‑year extension  may not be sufficient time to identify and install waste minimization  measures that achieve compliance. However, the one year extension is  the maximum allowable under the CAA. EPA disagrees with the commenters  opposing the extension because pollution prevention and waste  minimization should be viewed as an on‑going process that adopts new  pollution prevention technologies as they become available. In some  cases, the economics of complying with new MACT standards may make  pollution prevention more cost‑effective than it would have otherwise  been.     In today's rule, EPA has chosen to implement the one‑year  compliance extension approach. In evaluating extension requests, EPA  urges permitting agencies to give first preference to facilities that  request the extra time to install pollution prevention measures (either  alone or in addition to combustion controls) over facilities that  request an extension only for installing combustion controls. EPA has  also simplified the factors that must be considered by permitting  agencies in making determinations for one year extensions by making  them identical to  [[Page 33816]]  the factors facilities must include in requests for extensions.     In its 1997 NODA, EPA encouraged facilities that wish to apply for  a one‑year extension to coordinate the development the application for  extension with the information contained in Notice of Intent to Comply  (NIC), which is also described in today's rulemaking. Based on the  comments received from industry and States noting the need for extra  time to consider and then install pollution prevention measures, EPA  would expect to see a reasonable degree of consistency between  pollution prevention alternatives discussed in the NIC and pollution  prevention technologies identified in a subsequent request for a one  year extension to install pollution prevention technologies. Requests  for a one‑year compliance extension from facilities who did not address  pollution prevention in the NIC should be viewed with caution to guard  against last minute attempts to delay compliance.     The second compliance extension option, proposed in the 1997 NODA,  would allow certain facilities to enter into a written consent  agreement or consent order in cases where pollution prevention/waste  minimization technologies would significantly reduce wastes entering  combustion feed streams, but would take more than four years (i.e.,  three years plus a one‑year extension). EPA could use this alternative  using the principles articulated in the Agency's ``Policy on  Encouraging Self‑Policing and Voluntary Correction'' (also known as the  ``Audit Policy'' 60 FR 66706, December 22, 1995).     Very few commenters addressed this option. Some industry commenters  expressed limited interest in this approach, since entering into a  consent agreement would provide no shield against citizen suits.     EPA agrees that longer than four years may be needed in some cases.  However, based on the comments received and after further evaluation,  the Agency has decided not to pursue this proposal as part of this  rulemaking. Instead, EPA believes its Project XL program provides a  better opportunity for EPA to work with companies who are interested in  undertaking projects which hold the promise of superior environmental  results in exchange for regulatory flexibility. The XL program is also  designed to include public involvement early in the process, which  would hopefully reduce the likelihood of citizen suits. Project XL  proposals should be developed and submitted well in advance of the  deadline for meeting this MACT standard, possibly before the  promulgation of MACT standards. See the May 22, 1995 Federal Register  Notice [FRL‑5197‑9] for further information on developing and  submitting a proposal.     EPA proposed a fifth pollution prevention/waste minimization  incentive in the 1997 NODA which focused on harnessing the power of  public involvement to encourage companies to consider pollution  prevention alternatives. The NODA proposed to require facilities to  make public, within ten months after promulgation of the MACT  standards, a draft Notice of Intent to Comply (NIC) that contains a  description of technologies that will be used to achieve compliance  with MACT standards, including pollution prevention and waste  minimization technologies. Regulated facilities would also be required  to hold a public meeting on its compliance plan and to submit a final  NIC to the permitting agency no later than one year after the  promulgation of standards. In this setting, the public would be able to  review a company's draft compliance plan and make known its concerns  and views regarding the use of pollution prevention, combustion or  other treatment methods.     Several commenters responded to the pollution prevention/waste  minimization components of the NIC proposal. One industry trade  organization commented that the NIC requirements are unnecessary since  its members already participate in a responsible care program that  includes pollution prevention and community involvement. Another  commenter argued strongly that the public involvement opportunity  provided by the NIC process is inadequate, and that the point at which  the public interacts with the facility is too late to influence  decisions to encourage the installation of pollution prevention  technology that may reduce or eliminate the need for combustion.     It is crucial to provide the public with information and a public  meeting on the pollution prevention/waste minimization and combustion  measures that are planned at individual facilities. The NIC process  occurs early enough in the compliance process to provide meaningful  public involvement, and the NIC process provides a strong lever for  citizens to voice their opinions. The pollution prevention aspects of  the NIC requirements are further discussed in the NIC portion of  today's preamble.     The sixth pollution prevention/waste minimization option proposed  involved promulgating a ``fast track'' rule in advance of MACT  standards to provide the regulated community time to explore, plan and  possibly begin implementation of pollution prevention and waste  minimization measures several months before the promulgation of MACT  standards.     One commenter strongly urged this option because it provides  facilities with additional planning time to identify pollution  prevention options before the MACT compliance period begins. Although  no other commenters specifically addressed this option, EPA believes it  provides States additional flexibility, and comports with the variety  of comments that expressed general support for pollution prevention as  a top priority environmental management strategy.  D. Waste Minimization Incentives Contained in Today's Rule      Today's rulemaking provides three incentives to encourage the use  of pollution prevention measures to reduce or amount and/or toxicity of  hazardous wastes entering combustion feedstreams. Wastes that cannot be  reduced at the source should be recycled in an environmentally sound  manner, i.e., in a manner that does not constitute disposal. Wastes  that cannot be reduced at the source or recycled should be either  burned for energy recovery, treated, or disposed in accordance with  environmental standards. Today's incentive based approach encourages  and rewards facilities that significantly reduce the amount of  combusted hazardous waste using pollution prevention measures as a  method for achieving MACT standards, and it provides the flexibility  needed by the States to build on or expand existing pollution  prevention programs.     Today's rule (at Section 63.1216) allows owners/operators of  hazardous waste burning incinerators, cement kilns and lightweight  aggregate kilns to request a one‑year extension to the MACT compliance  period in cases where additional time is needed to install pollution  prevention and waste minimization measures that reduce the amount of  hazardous waste entering combustion feedstreams. The Administrator or  State with an approved Title V program is authorized to grant one‑year  extensions for this purpose under Section 112(i)(3)(B) of the CAA.  Pollution prevention and waste minimization measures that can be  considered in this determination include: process changes (including  closed loop recycling), raw material substitutions, design changes,  equipment changes, work practice changes, changes in operational  standards or other similar measures that  [[Page 33817]]  EPA or State permitting agencies may determine is pollution prevention  or waste minimization. Waste minimization activities that may be  considered for an extension include pollution prevention activities and  recycling measures, as defined in 40 CFR 261.1(c) and conducted in  accordance with RCRA regulations.     The term recycling, as defined in defined in 40 CFR 260.10 does not  include burning for energy recovery or treatment activities. Therefore,  burning for energy recovery will not be considered for an extension.  Companies who burn for energy recovery are presumed, in accordance with  their RCRA waste minimization program in place certification (discussed  above), to have determined that wastes burned for energy recovery could  not be economically source reduced or recycled prior to burning. EPA  believes this approach is completely consistent with past Agency policy  and provides the regulated community with greater flexibility in  managing its non‑product outputs.     Requests for a one‑year extension must reasonably document that the  waste minimization measures, and whatever additional compliance  measures are necessary to achieve compliance, could not otherwise be  installed in time to meet the three‑year compliance period. Stronger  consideration should be given to requests that contain, for example:  (1) A schedule to redesign a production process that eliminates the use  of solvents and the generation of spent solvents (which are currently  combusted in an on‑site hazardous waste incinerator), (2) a commitment  to reduce by 25% the amount of hazardous wastes entering the  incinerator feedstream (as a result of the waste minimization process  change), (3) a description and schedule for designing and installing  combustion controls to treat remaining wastes, and (4) evidence that  the extension reflects the reality that the design specs and schedule  for the remaining combustion controls can not be completed or installed  without first having information on waste minimization related  feedstream changes. In contrast, requests that propose to simply send  wastes off‑site for recycling, for example, without first exploring on‑ site process changes or operating practices, should receive little or  no consideration for an extension because there is nothing in this  action that would require extensive time.     Decisions to grant one‑year extensions will be made by EPA or state  programs that have delegated the authority to implement and enforce the  emission standard for that source. In light of the wide range of  approaches States employ regarding waste minimization planning, it is  appropriate to encourage some degree of consistency in how these  decisions are made, without superseding State approaches. Therefore,  EPA is requiring that permitting agencies must consider all of the  information required in Section 63.1216 in approving or denying  requests for one‑year compliance extensions for hazardous waste burning  incinerators, LWAKs, and cement kilns. EPA will also work with States  to develop separate guidance, with examples, of how to review requests  for an extension, based on pollution prevention/waste minimization  efforts.     The second pollution prevention/waste minimization incentive  promulgated in today's rule is the requirement for regulated facilities  to include in their Notice of Intent to Comply (NIC) a description of  pollution prevention and waste minimization activities proposed to  reduce the amount and/or toxicity of hazardous waste entering the  facility's combustion feedstream(s). This approach will harness the  power of public involvement, through the NIC review and public meeting  process, to encourage facilities to consider pollution prevention  measures in their MACT compliance plan. The requirements for the NIC  process are described in today's preamble.     It is important to note here that companies should consider  coordinating the development of a NIC process with any subsequent  requests for a one year extension. For example, it would seem logical  that pollution prevention measures identified in the NIC (prepared in  the first year of the compliance period), would also appear in a  subsequent request for a one year extension (prepared in the second  year of the compliance period). In contrast, requests for a one year  extension from companies that did not consider pollution prevention in  their NIC might be looked at with more caution.     As a third pollution prevention incentive, EPA is promulgating  today's rule several months in advance of promulgating MACT standards  to provide companies with several valuable months of advance planning  time to identify waste minimization measures can be used to meet, or  assist in meeting MACT standards. The timing of today's rule,  therefore, serves as a valuable pollution prevention incentive.     Taken together, the tailored incentives contained in today's rule  provide strong encouragement for regulated companies to pursue cost  effective pollution prevention and waste minimization measures in their  individual approaches to meeting MACT standards.     As a final note, a substantial amount of free technical  information, assistance and guidance on pollution prevention and waste  minimization is available from the Federal government and States, and  from a variety of private sources. EPA's ``Pollution Prevention  Facility Planning Guide'' (May, 1992; NTIS <SUP><greek‑i></SUP> PB92‑ 213206) describes the series of analytical steps that are often used by  companies to identify waste minimization measures. Additional EPA  references include: ``Waste Minimization Opportunity Assessment Manual  (EPA 625/7‑88/003, July 1988), Interim Final ``Guidance to Hazardous  Waste Generators on the Elements of a Waste Minimization Program In  Place,''(May 1993), ``An Introduction to Environmental Accounting As a  Business Management Tool'' (EPA 742‑R‑95‑001, June 1995), the ``P2/ Finance User's Manual: Pollution Prevention Financial Analysis and Cost  Evaluation System for Lotus 1‑2‑3 (EPA 742‑B‑94‑003, January 1994), and  Enviro$ense, an electronic library of information on pollution  prevention, technical assistance, and environmental compliance. Many of  these and other documents can be accessed by contacting the RCRA  Hotline toll‑free at 1‑800‑424‑9346. Enviro$ense can be accessed by  contacting a system operator at (703) 908‑2007, or on the Internet at  http://wastenot.inel.gov/enviro‑sense. Information on State waste  minimization programs can be obtained through Enviro$ense, directly  from the State pollution prevention program offices, or from the  National Pollution Prevention Roundtable at E‑mail address  75152.1416@compuserve.com, by phone at 202‑466‑7272 in Washington, D.C.  VII. State Authority  A. RCRA State Authorization      Under RCRA section 3006, EPA may authorize a State to administer  and enforce the RCRA hazardous waste program. See 40 CFR part 271.  After receiving authorization, the State administers the program in  lieu of the Federal government, although EPA retains enforcement  authority under RCRA sections 3008, 3013, and 7003. Because the new  Federal requirements in today's final rule are promulgated under non‑ HSWA authority, they are not Federally enforceable in an authorized  State until the State has adopted equivalent (or more stringent)  standards under its authorized laws and regulations, and those changes  have  [[Page 33818]]  been approved by EPA. See RCRA section 3006, 42 U.S.C. 6926. Thus, upon  their effective date, these requirements will be applicable only in  those States that do not have authorization.     It should be noted that authorized States are only required to  modify their programs when EPA promulgates Federal standards that are  more stringent or broader in scope than existing Federal standards.  RCRA section 3009 allows States to impose standards that are more  stringent than those in the Federal program (see also 40 CFR  271.1(i)(1)). Thus, for those Federal changes that are less stringent,  or reduce the scope of the Federal program, States are not required to  modify their programs. The revisions to the Federal RCRA Subtitle C  program that are promulgated today are considered to be less stringent  than the existing Federal regulations. However, EPA believes that their  adoption by States will greatly enhance the implementation of the  upcoming MACT standards, and ease the permitting burden on the States.  Thus, EPA strongly urges States to adopt all aspects of today's final  rule as quickly as their legislative and regulatory processes will  allow.  B. Program Delegation Under the Clean Air Act      Today's final rule adds notification procedures for hazardous waste  combustors under Title III. Specifically, today's rule requires sources  to provide to the permitting agency a Notification of Intent to Comply  (NIC) within a year following promulgation of new emissions standards  in 40 CFR part 63 Subpart EEE, and a Progress Report within two years.  As part of the process of developing a NIC, the source is also required  to conduct additional public involvement activities, in particular an  informal meeting with the community. Section 112(l) of the Clean Air  Act allows EPA to approve State rules or programs for the  implementation and enforcement of emission standards and other  requirements for air pollutants subject to section 112. Under this  authority, EPA has developed delegation procedures and requirements  located at 40 CFR Part 63, Subpart E, for NESHAPS under Title III of  the CAA (See 57 FR 32250, July 21, 1992).     Submission of rules or programs by States under 40 CFR Part 63 is  voluntary. Once a State receives approval from EPA for a standard under  section 112(l) of the CAA, the State is delegated the authority to  implement and enforce the approved State rules or programs in lieu of  the otherwise applicable federal rules (the approved State standard  would be federally enforceable). States may also apply for a partial  Title III program, such that the State is not required to adopt all  rules promulgated in 40 CFR Part 63. EPA will administer any rules  federally promulgated under section 112 of the CAA that have not been  delegated to the State.  VIII. Administrative Requirements/Compliance With Executive Order  A. Regulatory Impact Analysis Under Executive Order 12866      Under Executive Order No. 12866, (58 FR 51735 (October 4, 1993))  the Agency must determine whether the regulatory action is  ``significant'' and therefore subject to formal review by the Office of  Management and Budget (OMB) and to the requirements of the Executive  Order, which include assessing the costs and benefits anticipated as a  result of the proposed regulatory action. The Order defines  ``significant regulatory action'' as one that is likely to result in a  rule that may: (1) Have an annual effect on the economy of $100 million  or more or adversely affect in a material way the economy, a sector of  the economy, productivity, competition, jobs, the environment, public  health or safety, or State, local, or tribal governments or  communities; (2) create serious inconsistency or otherwise interfere  with an action taken or planned by another agency; (3) materially alter  the budgetary impact of entitlements, grants, user fees, or loan  programs or the rights and obligations of recipients thereof; or (4)  raise novel legal or policy issues arising out of legal mandates, the  President's priorities, or the principles set forth in the Executive  Order.     EPA has determined that today's final rule is not ``significant''  under points one through three above. The Agency is sensitive, however,  to interpretations that may define today's action as ``significant''  under point number four above, due to the nature of the policy issues  raised and recognizes today's action as significant. The Agency has  examined economic impacts potentially associated with the three key  elements of today's action: the comparable fuel exclusion, waste  minimization incentives, and streamlined RCRA permitting modifications.  The comparable fuels exclusion in today's final rule will result in  national annual cost savings to generators ranging from approximately  $11 to $36 million, net of the cost of gaining the exclusion. Blending  and combustion facilities, however, are estimated to experience reduced  receipts for managing hazardous wastes, coupled with the costs of  replacing these materials with more expensive substitutes. The combined  impact is estimated to cost these firms an additional $3 to $13 million  per year. Today's action also allows sources to apply for up to a one  year extension of the three‑year compliance period for implementation  of waste minimization procedures. Overall, this extension is likely to  provide a greater incentive for facilities with on‑site combustion  units to implement waste minimization options rather than to continue  burning hazardous wastes and implement appropriate control  technologies. The degree to which this incentive will change the waste  burning behavior of combustion facilities is undetermined. EPA is also  implementing streamlined procedures for modifying RCRA permits at  hazardous waste combustion units. Only those states that regulate  combustion units and choose to adopt the streamlined modification  system would have to undergo rulemaking and authorization for the  streamlined permitting process. The Agency estimates that approximately  half of the states with MACT‑regulated combustion units will not alter  their current permitting system. Based on the average cost to a state  for rulemaking and authorization, the Agency estimates aggregate  national costs for those states that would modify their systems at a  one‑time cost of no more than $685,000. In addition to rulemaking and  authorization costs, the aggregate national cost for permit review may  be as high as $3.8 million. For more information on the cost impacts of  today's final rule, see the Economic Analysis Report for the Combustion  MACT Fast‑Track Rulemaking, March 1998, which is part of the docket for  this rule.  B. Regulatory Flexibility Act      The Regulatory Flexibility Act (RFA) of 1980 requires Federal  agencies to consider ``small entities'' throughout the regulatory  process. Section 603 of the RFA requires an initial screening analysis  to be performed to determine whether small entities will be adversely  affected by the regulation. If affected small entities are identified,  regulatory alternatives must be considered to mitigate the potential  impacts. Small entities as described in the Act are only those  ``businesses, organizations and governmental jurisdictions subject to  regulation.''     EPA has determined that today's rule will primarily affect large  scale facilities. Furthermore, since today's final notice generally  provides savings  [[Page 33819]]  over current requirements, EPA believes that any small entities engaged  in activity covered by the rule will not be adversely affected.  Therefore, EPA provides the following certification under the  Regulatory Flexibility Act, as amended by the Small Business Regulatory  Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C., I  hereby certify that this rule will not have a significant economic  impact on a substantial number of small entities. A more detailed  discussion of small entity impacts is presented in the Economic  Analysis Report.  C. Paperwork Reduction Act      The Office of Management and Budget (OMB) has approved the  information collection requirements contained in this rule under the  provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and  has assigned OMB control number 2050‑0073.     The incremental annual public reporting and record keeping burden  for this collection of information is estimated to be 55,196 hours at a  cost of about $5,164,000. For those generators applying for the  comparable/syngas fuel exclusion, the average annual respondent  reporting burden is estimated to be 0.5 hours per facility and the  average annual record keeping burden is estimated to be 47.3 hours per  facility. For burners of comparable/syngas fuels, there is no reporting  burden and the annual record keeping burden is 8.0 hours per facility.  For HWCs complying with the notification of intent to comply  regulations, the average annual reporting burden is 300.5 hours per  facility and the average annual record keeping burden is 9.0 hours per  facility.     This estimate includes the time needed to review instructions;  develop, acquire, install, and utilize technology and systems for the  purpose of collecting, validating, and verifying information,  processing and maintaining information, and disclosing and providing  information; adjust the existing ways to comply with any previously  applicable instructions and requirements; train personnel to respond to  collection of information; search existing data sources; complete and  review the collection of information; and transmit or otherwise  disclose the information.     During its review of the proposed rule ICR, OMB offered comments  concerning the burdens associated with the proposed testing  requirements and records retention for the comparable fuel/syngas  exclusion. In the final rule, EPA is allowing generators to use process  knowledge and requiring testing for only those constituents the  generator determines should be in the waste. The frequency of the  testing will be specified by the generator in the waste analysis plan.  With regards to records retention, the final rule will require the  retention of records of all comparable and syngas fuel‑related  information for three years. EPA also received several public comments  on the final rule ICR which was noticed on January 28, 1998 at 63 FR  4249. EPA has responded to those comments in the supporting statement  for the ICR.     EPA estimates that the addition of the comparable fuels exclusion  will cause the BIF universe to decrease by 25 facilities. Although the  burden reduction is not reflected in the ICR, EPA expects reporting and  recordkeeping requirements for BIFs to decrease by 70,743 hours (18  percent) and $7,493,221 (15 percent) annually. EPA will revise the ICR  to reflect this burden reduction when it finalizes the emissions  standards for hazardous waste combustors.     EPA is also amending the table of currently approved ICR control  numbers issued by OMB for various regulations. This amendment updates  the table to display accurately this final rule. This display of the  OMB control numbers and their subsequent codification in the Code of  Federal Regulations (CFR) at 40 CFR Part 9 satisfies the requirements  of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's  implementing regulations at 5 CFR Part 1320.     An Agency may not conduct or sponsor, and a person is not required  to respond to a collection of information unless it displays a  currently valid OMB control number. The OMB control numbers for EPA's  regulations are displayed in 40 CFR Part 9.     Send comments regarding the burden estimates or any other aspect of  this collection of information, including suggestions for reducing this  burden to Chief, OPPE Regulatory Information Division; U.S.  Environmental Protection Agency (2136); 401 M Street, S.W.; Washington,  DC 20460; and to the Office of Information and Regulatory Affairs,  Office of Management and Budget, Washington, DC 20503, marked  ``Attention: Desk Officer for EPA.'' Include the ICR number in any  correspondence.  D. Unfunded Mandates      Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.  104‑4, establishes requirements for Federal agencies to assess the  effects of their regulatory actions on State, Tribal, and local  governments and the private sector. Under section 202 of the UMRA, EPA  generally must prepare a written statement, including a cost‑benefit  analysis, for proposed and final rules with ``Federal mandates'' that  may result in expenditures to State, local, and Tribal governments, in  the aggregate, or to the private sector, of $100 million or more in any  one year. When a written statement is needed for an EPA rule, section  205 of the UMRA generally requires EPA to identify and consider a  reasonable number of regulatory alternatives and adopt the least  costly, most cost‑effective, or least burdensome alternative that  achieves the objectives of the rule. The provisions of section 205 do  not apply when they are inconsistent with applicable law. Moreover,  section 205 allows EPA to adopt an alternative other than the least  costly, most cost‑effective or least burdensome alternative if the  Administrator publishes with the final rule an explanation why that  alternative was not adopted. Before EPA establishes any regulatory  requirements that may significantly or uniquely affect small  governments, including Tribal governments, it must have developed under  section 203 of the UMRA a small government agency plan. The plan must  provide for notifying potentially affected small governments, giving  them meaningful and timely input in the development of EPA regulatory  proposals with significant Federal intergovernmental mandates, and  informing, educating, and advising them on compliance with the  regulatory requirements.     EPA has determined that this rule does not contain a Federal  mandate that may result in expenditures of $100 million or more for  State, local, and Tribal governments, in the aggregate, or the private  sector in any one year. EPA has estimated that the total potential cost  to State, local, and Tribal governments would not exceed approximately  $4.5 million over ten years. Thus, today's rule is not subject to the  requirements of sections 202 and 205 of the UMRA.  IX. Submission to Congress and the General Accounting Office      Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business  Regulatory Enforcement Fairness Act of 1996, EPA submitted a report  containing this rule and other required information to the U.S. Senate,  the U.S. House of Representatives and the Comptroller General of the  General Accounting Office prior to publication of the rule in today's  Federal Register. This rule is not a ``major rule'' as defined by 5  U.S.C. 804(2), therefore, the effective date of the rule is not  affected.  [[Page 33820]]  X. Environmental Justice  A. Applicability of Executive Order 12898      EPA is committed to address environmental justice concerns and is  assuming a leadership role in environmental justice initiatives to  enhance environmental quality for all residents of the United States.  The Agency's goals are to ensure that no segment of the population,  regardless of race, color, national origin, or income bears  disproportionately high and adverse human health and environmental  effects as a result of EPA's policies, programs, and activities, and  all people live in clean and sustainable communities.  B. Potential Effects      Today's final rule is not expected to cause any disproportionate  impacts to minority or low income communities versus affluent or non‑ minority communities.  XI. Children's Health      Executive Order 13045: The Executive Order 13045 applies to any  rule that EPA determines (1) ``economically significant'' as defined  under Executive Order 12866, and (2) the environmental health or safety  risk addressed by the rule has a disproportionate effect on children.  If the regulatory action meets both criteria, the Agency must evaluate  the environmental health or safety effects of the planned rule on  children; and explain why the planned regulation is preferable to other  potentially effective and reasonably feasible alternatives considered  by the Agency     This final rule is not subject to E.O. 13045, entitled ``Protection  of Children from Environmental Health Risks and safety Risks (62 FR  19885, April 23, 1997), because: (a) ``This is not an economically  significant regulatory action as defined by E.O. 12866.''  XII. National Technology Transfer and Advancement Act      Under section 12(d) of the National Technology Transfer and  Advancement Act, the Agency is directed to use voluntary consensus  standards in its regulatory activities unless to do so would be  inconsistent with applicable law or otherwise impractical. Voluntary  consensus standards are technical standards (e.g., materials  specifications, test methods, sampling procedures, business practices,  etc.) that are developed or adopted by voluntary consensus standard  bodies. Where available and potentially applicable voluntary consensus  standards are not used by EPA, the Act requires the Agency to provide  Congress, through the Office of Management and Budget, an explanation  of the reasons for not using such standards.     EPA is not finalizing any new test methods or other technical  standards as part of today's final rule. Thus, the Agency has no need  to consider the use of voluntary consensus standards in developing this  final rule.  List of Subjects  40 CFR Part 63      Administrative practice and procedure, Air pollution control,  Hazardous substances, Intergovernmental relations, Reporting and  recordkeeping requirements.  40 CFR Part 261      Hazardous waste, Recycling, Reporting and record keeping  requirements.  40 CFR Part 270      Administrative practice and procedure, Confidential business  information, Emergency responses, Hazardous materials transportation,  Hazardous waste, Permit application requirements, Permit modifications,  Reporting and recordkeeping requirements.      Dated: June 5, 1998. Carol M. Browner, Administrator.      For the reasons set forth in the preamble, 40 CFR Parts 63, 261,  and 270 are amended as follows:  PART 63‑‑NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS  FOR SOURCE CATEGORIES      1. The authority citation for part 63 continues to read as follows:      Authority: 42 U.S.C. 7401 et seq.      2. Part 63 is amended by adding Subpart EEE, to read as follows:  Subpart EEE‑‑National Emission Standards for Hazardous Air  Pollutants From Hazardous Waste Combustors  Sec. 63.1200‑63.1210  [Reserved] 63.1211  Notification requirements. 63.1212  Progress reports. 63.1213  Certification. 63.1214  Extension of the compliance date. 63.1215  Sources that become affected sources after the effective  date of this subpart. 63.1216  Extension of compliance date to install pollution  prevention or waste minimization controls.   Sec. 63.1211  Notification requirements.      (a) Notification of Intent To Comply (NIC). (1) All hazardous waste  combustors subject to this subpart shall prepare a Notification of  Intent to Comply that includes the following information:     (i) General information:     (A) The name and address of the owner/operator and the source;     (B) Whether the source is a major or an area source;     (C) Waste minimization and emission control technique(s) being  considered;     (D) Emission monitoring technique(s) being considered;     (E) Waste minimization and emission control technique(s)  effectiveness;     (F) A description of the evaluation criteria used or to be used to  select waste minimization and/or emission control technique(s); and     (G) A statement that the source intends to comply with this subpart  by controlling emissions from the combustion of hazardous waste  pursuant to the standards of this subpart.     (ii) Information on key activities and estimated dates for these  activities that will bring the source into compliance with emission  control requirements of this subpart. The submission of key activities  and dates is not intended to be static and may be revised by the source  during the period the NIC is in effect. Revisions shall be submitted to  the regulatory authority and be made available to the public. The  following are the key activities and dates that shall be included:     (A) The dates for beginning and completion of engineering studies  to evaluate emission control systems or process changes for emissions;     (B) The date by which contracts for emission control systems or  process changes for emission control will be awarded, or the date by  which orders will be issued for the purchase of component parts to  accomplish emission control or process changes;     (C) The date by which construction applications will be submitted;     (D) The date by which on‑site construction, installation of  emission control equipment, or process change is to be initiated;     (E) The date by which on‑site construction, installation of  emission control equipment, or process change is to be completed; and     (F) The date by which final compliance is to be achieved. The  individual dates and milestones listed in paragraphs (a)(1)(ii)(A)  through (F) of this section as part of the NIC are not requirements and  therefore are not enforceable deadlines; the Agency is  [[Page 33821]]  requiring paragraphs (a)(1)(ii)(A) through (F) of this section as part  of the NIC only to inform the public of the source's intentions towards  coming into compliance.     (iii) A summary of the public meeting required under paragraph (b)  of this section.     (iv) For any source that does not intend to comply, but will not  stop burning hazardous waste as required under paragraph (c) of this  section, a certification that the designated source will:     (A) Stop burning hazardous waste on or before the compliance date  of the emission standards of this Subpart; and     (B) Be necessary to combust the hazardous waste from another on‑ site source, during the year prior to the compliance date of the  emission standards of this Subpart, because that other source is:     (1) Installing equipment to come into compliance with the emission  standards of this Subpart; or     (2) Installing source reduction modifications to eliminate the need  for further combustion of wastes.     (2) A draft of the NIC must be made available for public review no  later than 30 days prior to the public meeting required under paragraph  (b)(1) of this section.     (3) The final NIC must be submitted to the permitting agency no  later than one year following the effective date of the emission  standards of this subpart.     (b) NIC Public Meeting and Notice. (1) Prior to the submission of  the NIC to the permitting agency, and no later than 10 months after the  effective date of the emission standards of this subpart, the source  shall hold at least one informal meeting with the public to discuss  anticipated activities described in the draft NIC for achieving  compliance with the MACT standards promulgated in this subpart. The  source must post a sign‑in sheet or otherwise provide a voluntary  opportunity for attendees to provide their names and addresses.     (2) The source shall submit a summary of the meeting, along with  the list of attendees and their addresses developed under paragraph  (b)(1) of this section, and copies of any written comments or materials  submitted at the meeting, to the permitting agency as part of the final  NIC, in accordance with paragraph (a)(1)(iii) of this section.     (3) The source must provide public notice of the NIC meeting at  least 30 days prior to the meeting. The source shall provide public  notice in all of the following forms:     (i) Newspaper advertisement. The source shall publish a notice in a  newspaper of general circulation in the county or equivalent  jurisdiction of the source. In addition, the source shall publish the  notice in newspapers of general circulation in adjacent counties or  equivalent jurisdiction where such publication would be necessary to  inform the affected public. The notice must be published as a display  advertisement.     (ii) Visible and accessible sign. The source shall post a notice on  a clearly marked sign at or near the source. If the source places the  sign on the source's property, then the sign must be large enough to be  readable from the nearest spot where the public would pass by the  source.     (iii) Broadcast media announcement. The source shall broadcast a  notice at least once on at least one local radio station or television  station.     (iv) Notice to the facility mailing list. The source shall provide  a copy of the notice to the facility mailing list in accordance with  Sec. 124.10(c)(1)(ix) of this chapter.     (4) The notices required under paragraph (b)(3) of this section  must include:     (i) The date, time, and location of the meeting;     (ii) A brief description of the purpose of the meeting;     (iii) A brief description of the source and proposed operations,  including the address or a map (e.g., a sketched or copied street map)  of the source location;     (iv) A statement encouraging people to contact the source at least  72 hours before the meeting if they need special access to participate  in the meeting;     (v) A statement describing how the draft NIC can be obtained; and     (vi) The name, address, and telephone number of a contact person  for the NIC.     (c) Sources that do not intend to comply. Those sources subject to  the requirements of this subpart, except those sources meeting the  requirements of paragraph (a)(1)(iv) of this section:     (1) Who signify in their NIC an intent not to comply with the  requirements of this Subpart, must stop burning hazardous waste on or  before two years after the effective date of the emmission standards of  this subpart;     (2) Who do not intend to comply with this subpart must include in  their NIC a schedule that includes key dates for the steps to be taken  to stop burning hazardous waste. Key dates include the date for  submittal of RCRA closure documents.   Sec. 63.1212  Progress reports.      (a) General. Not later than two years after the effective date of  the emission standards of this subpart, all sources subject to this  Subpart except those hazardous waste combustion sources that comply  with paragraph (b)(2) of this section shall:     (1) Complete engineering design for any physical modifications to  the source needed to comply with the emissions standards of this  subpart;     (2) Submit applicable construction applications to the applicable  regulatory authority; and     (3) Enter into a binding contractual commitment to purchase,  fabricate, and install any equipment, devices, and ancillary structures  needed to comply with the emission requirements of this subpart.     (b) Demonstration (1) Hazardous waste combustion sources shall  submit to the regulatory authority a progress report on or before two  years after the effective date of the emission standards of this  subpart which contains information demonstrating that the source has  met the requirements of paragraph (a) of this section. This information  will be used by the regulatory authority to determine if the source has  made adequate progress towards compliance with the applicable emission  standards.     (2) Sources that intend to come into compliance with the emissions  standards of this subpart, but can do so without undertaking any of the  activities described in paragraph (a) of this section, shall submit  documentation either:     (i) Demonstrating that the source, at the time of the progress  report, is in compliance with the emissions requirements; or     (ii) Specifying the steps that will be taken to bring the source  into compliance, without undertaking any of the activities listed in  paragraphs (a)(1) through (3) of this section.     (3) Sources that fail to comply with paragraph (a) above or  paragraph (b)(2) of this section shall stop burning hazardous waste on  or before the date two years after the effective date of the emission  standards of this subpart.     (c) Schedule. (1) The progress report shall contain a detailed  schedule that lists key dates for all projects that will bring the  source into compliance with the requirements of this subpart (i.e., key  dates for the activities required under paragraphs (b)(1)(i) through  (iii) of this section). Dates shall cover the time frame from the  progress report through the compliance date of the emission standards  of this subpart.     (2) The schedule shall contain the following dates:     (i) Bid and award dates for construction contracts and equipment  supply contractors;  [[Page 33822]]      (ii) Milestones such as ground breaking, completion of drawings and  specifications, equipment deliveries, intermediate construction  completions, and testing;     (iii) The dates on which applications were submitted for or  obtained operating and construction permits or licenses;     (iv) The dates by which approvals of any permits or licenses are  anticipated; and     (v) The projected date by which the source will be in compliance  with the requirements of this subpart.     (d) Notice of intent to comply. The progress report shall contain a  statement that the source intends or does not intend to come into  compliance with the applicable emission control requirements of this  subpart.     (e) Sources that do not intend to comply. (1) Sources that:  indicated in their NIC their intent not to comply with this subpart and  stop burning hazardous waste prior to the submittal of a progress  report; or meet the requirements of paragraph (a)(1)(iv) of this  section are not required to include the requirements of paragraphs (b)  and (c) of this section to their progress report, but shall include in  their progress report: the date on which the source stopped burning  hazardous waste; and the date(s) on which RCRA closure documents were  submitted.     (2) Those sources that signify in the progress report, submitted  not later than two years after the effective date of the emission  standards of this subpart, their intention not to comply with the  requirements of this subpart must stop burning hazardous waste on or  before the date two years after the effective date of the emission  standards of this subpart.   Sec. 63.1213  Certification.      (a) The Notice of Intent to Comply (NIC) and Progress Report  submitted shall contain the following certification signed and dated by  an authorized representative of the source:      I certify under penalty of law that I have personally examined  and am familiar with the information submitted in this document and  all attachments and that, based on my inquiry of those individuals  immediately responsible for obtaining the information, I believe  that the information is true, accurate, and complete. I am aware  that there are significant penalties for submitting false  information, including the possibility of fine and imprisonment.      (b) An authorized representative should be a responsible corporate  officer (for a corporation), a general partner (for a partnership), the  proprietor (of a sole proprietorship), or a principal executive officer  or ranking elected official (for a municipality, State, Federal, or  other public agency).   Sec. 63.1214  Extension of the compliance date.      (a) A source that intends to come into compliance with the  requirements of this subpart, but due to the installation of controls  will not meet the compliance date, may request an extension of the  compliance date for one year.     (b) Sources subject to this subpart shall follow the requirements  of Sec. 63.6(i)(4) or Sec. 63.1216 to request an extension of the  compliance date.   Sec. 63.1215  Sources that become affected sources after the effective  date of the emission standards of this subpart.      (a) A source that begins to burn hazardous waste after the  effective date of the emission standards of this subpart, therefore  becoming an affected source, but prior to 9 months after the effective  date of the emission standards of this subpart shall comply with all  the requirements of Secs. 63.1211 through 63.1213 and associated time  frames for public meetings and document submittals.     (b) A source that intends to begin burning hazardous waste more  than 9 months after the effective date of the emission standards of  this subpart, therefore becoming an affected source, shall meet all the  requirements of Secs. 63.1211 through 63.1213 prior to burning  hazardous waste.     (1) Such sources shall make a draft NIC available, notice their  public meeting, hold their public meeting, and submit a final NIC prior  to burning hazardous waste.     (2) Such sources also shall submit their progress report at the  time of the submittal of their final NIC.   Sec. 63.1216  Extension of the compliance date to install pollution  prevention or waste minimization controls.      (a) Applicability. The owner or operator of any source subject to  the requirements of this subpart may request from the Administrator or  State with an approved Title V program an extension of one year to  comply with the emission standards in this subpart, if the owner or  operator can reasonably document that the installation of pollution  prevention or waste minimization measures will significantly reduce the  amount and/or toxicity of hazardous wastes entering the feedstream(s)  of the combustion device(s) subject to this subpart, and that the  facility could not otherwise install the necessary control measures and  comply within three years after the effective date of the emission  standards of this subpart.     (b) Requirements for requesting an extension. Requests for a one‑ year extension must be in writing, must be received not later than 12  months before the affected source's compliance date, and must contain  the following information:     (1) A description of pollution prevention or waste minimization  controls that, when installed, will significantly reduce the amount  and/or toxicity of hazardous wastes entering the feedstream(s) of the  combustion device(s) subject to this subpart. Pollution prevention or  waste minimization measures may include: equipment or technology  modifications, reformulation or redesign of products, substitution of  raw materials, improvements in work practices, maintenance, training,  inventory control, or recycling practices conducted as defined in 40  CFR 261.1(c);     (2) A description of other pollution controls to be installed that  are necessary to comply with the emission standards;     (3) A reduction goal or estimate of the annual reductions in  quantity and/or toxicity of hazardous waste(s) entering combustion  feedstream(s) that will occur by installing the proposed pollution  prevention or waste minimization measures;     (4) A comparison of reductions in the amounts and/or toxicity of  hazardous wastes combusted after installation of pollution prevention  or waste minimization measures to the amounts and/or toxicity of  hazardous wastes combusted prior to the installation of these measures;  and, if the difference is less than a fifteen percent reduction, a  comparison to pollution prevention and waste minimization reductions  recorded during the previous five years;     (5) Reasonable documentation that installation of the pollution  prevention or waste minimization changes will not result in a net  increase (except for documented increases in production) of hazardous  constituents released to the environment through other emissions,  wastes or effluents;     (6) Reasonable documentation that the design and installation of  waste minimization and other measures that are necessary for compliance  cannot otherwise be installed within the three year compliance period,  and     (7) The information required in 40 CFR 63.6(i)(6)(i)(B) through  (D).     (8) Documentation prepared under an existing State required  pollution prevention program that contains the information may be  enclosed with a  [[Page 33823]]  request for extension in lieu of paragraphs (b)(1) through (7) of this  section.     (c) Approval of request for extension of compliance. Based on the  information provided in any request made under paragraph (a) of this  section, the Administrator or State with an approved Title V program  may grant an extension of compliance with the emission standards  identified in paragraph (a) of this section. The extension will be in  writing in accordance with Secs. 63.6(i)(10)(i) through  63.6(i)(10)(v)(A). EPA and States must consider the information  required in paragraph (a) of this section in approving or denying  requests for one‑year compliance extensions.  PART 261‑‑IDENTIFICATION AND LISTING OF HAZARDOUS WASTE      1. The authority citation for part 261 continues to read as  follows:      Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.      2. Section 261.4 is amended by adding paragraph (a)(16) to read as  follows:   Sec. 261.4  Exclusions.      (a) * * *     (16) Comparable fuels or comparable syngas fuels (i.e., comparable/ syngas fuels) that meet the requirements of Sec. 261.38. * * * * *     3. Section 261.38 is added to read as follows:   Sec. 261.38  Comparable/Syngas Fuel Exclusion.      Wastes that meet the following comparable/syngas fuel requirements  are not solid wastes:     (a) Comparable fuel specifications.‑‑(1) Physical specifications.‑‑ (i) Heating value. The heating value must exceed 5,000 BTU/lbs. (11,500  J/g).     (ii) Viscosity. The viscosity must not exceed: 50 cs, as‑fired.     (2) Constituent specifications. For compounds listed in table 1 to  this section the specification levels and, where non‑detect is the  specification, minimum required detection limits are: (see Table 1).     (b) Synthesis gas fuel specification.‑‑Synthesis gas fuel (i.e.,  syngas fuel) that is generated from hazardous waste must:     (1) Have a minimum Btu value of 100 Btu/Scf;     (2) Contain less than 1 ppmv of total halogen;     (3) Contain less than 300 ppmv of total nitrogen other than  diatomic nitrogen (N<INF>2</INF>);     (4) Contain less than 200 ppmv of hydrogen sulfide; and     (5) Contain less than 1 ppmv of each hazardous constituent in the  target list of Appendix VIII constituents of this part.           Table 1 to Sec.  261.38: Detection and Detection Limit Values for Comparable Fuel Specification         ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑                                                                                                      Minimum                                                                     Concentration limit  (mg/kg at       required                    Chemical name                      CAS No.              10,000 BTU/lb)           detection limit                                                                                                      (mg/kg)     ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Total Nitrogen as N..........................              na  4900............................  ............... Total Halogens as Cl.........................              na  540.............................  ............... Total Organic Halogens as Cl.................              na  25 or individual halogenated      ...............                                                                 organics listed below.                           Polychlorinated biphenyls, total [Arocolors,        1336‑36‑3  Non‑detect......................              1.4  total] <SUP>a.                                                                                                       Cyanide, total...............................         57‑12‑5  Non‑detect......................              1.0 Metals:                                                                                                              Antimony, total..........................       7440‑36‑0  7.9.............................  ...............     Arsenic, total...........................       7440‑38‑2  0.23............................  ...............     Barium, total............................       7440‑39‑3  23..............................  ...............     Beryllium, total.........................       7440‑41‑7  1.2.............................  ...............     Cadmium, total...........................       7440‑43‑9  1.2.............................  ...............     Chromium, total..........................       7440‑47‑3  2.3.............................  ...............     Cobalt...................................       7440‑48‑4  4.6.............................  ...............     Lead, total..............................       7439‑92‑1  31..............................  ...............     Manganese................................       7439‑96‑5  1.2.............................  ...............     Mercury, total...........................       7439‑97‑6  0.24............................  ...............     Nickel, total............................       7440‑02‑0  58..............................  ...............     Selenium, total..........................       7782‑49‑2  0.15............................  ...............     Silver, total............................       7440‑22‑4  2.3.............................  ...............     Thallium, total..........................       7440‑28‑0  23..............................  ............... Hydrocarbons:                                                                                                        Benzo[a]anthracene.......................         56‑55‑3  1100............................  ...............     Benzene..................................         71‑43‑2  4100............................  ...............     Benzo[b]fluoranthene.....................        205‑99‑2  960.............................  ...............     Benzo[k]fluoranthene.....................        207‑08‑9  1900............................  ...............     Benzo[a]pyrene...........................         50‑32‑8  960.............................  ...............     Chrysene.................................        218‑01‑9  1400............................  ...............     Dibenzo[a,h]anthracene...................         53‑70‑3  960.............................  ...............     7,12‑Dimethylbenz[a]anthracene...........         57‑97‑6  1900............................  ...............     Fluoranthene.............................        206‑44‑0  1900............................  ...............     Indeno(1,2,3‑cd)pyrene...................        193‑39‑5  960.............................  ...............     3‑Methylcholanthrene.....................         56‑49‑5  1900............................  ...............     Naphthalene..............................         91‑20‑3  3200............................  ...............     Toluene..................................        108‑88‑3  36000...........................  ............... Oxygetes:                                                                                                         [[Page 33824]]                                                                                                                       Acetophenone.............................         98‑86‑2  1900............................  ...............     Acrolein.................................        107‑02‑8  37..............................  ...............     Allyl alcohol............................        107‑18‑6  30..............................  ...............     Bis(2‑ethylhexyl)phthalate [Di‑2‑                117‑81‑7  1900............................  ...............      ethylhexyl phthalate].                                                                                          Butyl benzyl phthalate...................         85‑68‑7  1900............................  ...............     o‑Cresol [2‑Methyl phenol]...............         95‑48‑7  220.............................  ...............     m‑Cresol [3‑Methyl phenol]...............        108‑39‑4  220.............................  ...............     p‑Cresol [4‑Methyl phenol]...............        106‑44‑5  220.............................  ...............     Di‑n‑butyl phthalate.....................         84‑74‑2  1900............................  ...............     Diethyl phthalate........................         84‑66‑2  1900............................  ...............     2,4‑Dimethylphenol.......................        105‑67‑9  1900............................  ...............     Dimethyl phthalate.......................        131‑11‑3  1900............................  ...............     Di‑n‑octyl phthalate.....................        117‑84‑0  960.............................  ...............     Endothall................................        145‑73‑3  100.............................  ...............     Ethyl methacrylate.......................         97‑63‑2  37..............................  ...............     2‑Ethoxyethanol [Ethylene glycol                 110‑80‑5  100.............................  ...............      monoethyl ether].                                                                                               Isobutyl alcohol.........................         78‑83‑1  37..............................  ...............     Isosafrole...............................        120‑58‑1  1900............................  ...............     Methyl ethyl ketone [2‑Butanone].........         78‑93‑3  37..............................                      Methyl methacrylate......................         80‑62‑6  37..............................                      1,4‑Naphthoquinone.......................        130‑15‑4  1900............................                      Phenol...................................        108‑95‑2  1900............................                      Propargyl alcohol [2‑Propyn‑l‑ol]........        107‑19‑7  30..............................                      Safrole..................................         94‑59‑7  1900............................                  Sulfoted Organics:                                                                                                   Carbon disulfide.........................         75‑15‑0  Non‑detect......................             37       Disulfoton...............................        298‑04‑4  Non‑detect......................           1900       Ethyl methanesulfonate...................         62‑50‑0  Non‑detect......................           1900       Methyl methanesulfonate..................         66‑27‑3  Non‑detect......................           1900       Phorate..................................        298‑02‑2  Non‑detect......................           1900       1,3‑Propane sultone......................       1120‑71‑4  Non‑detect......................            100       Tetraethyldithiopyrophosphate [Sulfotepp]       3689‑24‑5  Non‑detect......................           1900       Thiophenol [Benzenethiol]................        108‑98‑5  Non‑detect......................             30       O,O,O‑Triethyl phosphorothioate..........        126‑68‑1  Non‑detect......................           1900   Nitrogenated Organics:                                                                                               Acetonitrile [Methyl cyanide]............         75‑05‑8  Non‑detect......................             37       2‑Acetylaminofluorene [2‑AAF]............         53‑96‑3  Non‑detect......................           1900       Acrylonitrile............................        107‑13‑1  Non‑detect......................             37       4‑Aminobiphenyl..........................         92‑67‑1  Non‑detect......................           1900       4‑Aminopyridine..........................        504‑24‑5  Non‑detect......................            100       Aniline..................................         62‑53‑3  Non‑detect......................           1900       Benzidine................................         92‑87‑5  Non‑detect......................           1900       Dibenz[a,j]acridine......................        224‑42‑0  Non‑detect......................           1900       O,O‑Diethyl O‑pyrazinyl phophoro‑thioate         297‑97‑2  Non‑detect......................           1900        [Thionazin].                                                                                                    Dimethoate...............................         60‑51‑5  Non‑detect......................           1900       p‑(Dimethylamino)azobenzene [4‑                   60‑11‑7  Non‑detect......................           1900        Dimethylaminoazobenzene].                                                                                       3,3'‑Dimethylbenzidine...................        119‑93‑7  Non‑detect......................           1900       <greek‑a>,<greek‑a>‑                             122‑09‑8  Non‑detect......................           1900        Dimethylphenethylamine.                                                                                         3,3'‑Dimethoxybenzidine..................        119‑90‑4  Non‑detect......................            100       1,3‑Dinitrobenzene [m‑Dinitrobenzene]....         99‑65‑0  Non‑detect......................           1900       4,6‑Dinitro‑o‑cresol.....................        534‑52‑1  Non‑detect......................           1900       2,4‑Dinitrophenol........................         51‑28‑5  Non‑detect......................           1900       2,4‑Dinitrotoluene.......................        121‑14‑2  Non‑detect......................           1900       2,6‑Dinitrotoluene.......................        606‑20‑2  Non‑detect......................           1900       Dinoseb [2‑sec‑Butyl‑4,6‑dinitrophenol]..         88‑85‑7  Non‑detect......................           1900       Diphenylamine............................        122‑39‑4  Non‑detect......................           1900       Ethyl carbamate [Urethane]...............         51‑79‑6  Non‑detect......................            100       Ethylenethiourea (2‑Imidazolidinethione).         96‑45‑7  Non‑detect......................            110       Famphur..................................         52‑85‑7  Non‑detect......................           1900       Methacrylonitrile........................        126‑98‑7  Non‑detect......................             37       Methapyrilene............................         91‑80‑5  Non‑detect......................           1900       Methomyl.................................      16752‑77‑5  Non‑detect......................             57       2‑Methyllactonitrile [Acetone                     75‑86‑5  Non‑detect......................            100        cyanohydrin].                                                                                                   Methyl parathion.........................        298‑00‑0  Non‑detect......................           1900       MNNG (N‑Metyl‑N‑nitroso‑N'‑                       70‑25‑7  Non‑detect......................            110        nitroguanidine).                                                                                                1‑Naphthylamine, [<greek‑a>‑                     134‑32‑7  Non‑detect......................           1900        Naphthylamine].                                                                                                 2‑Naphthylamine, [<greek‑b>‑                      91‑59‑8  Non‑detect......................           1900        Naphthylamine].                                                                                                 Nicotine.................................         54‑11‑5  Non‑detect......................            100    [[Page 33825]]                                                                                                                       4‑Nitroaniline, [p‑Nitroaniline].........        100‑01‑6  Non‑detect......................           1900       Nitrobenzene.............................         98‑95‑3  Non‑detect......................           1900       p‑Nitrophenol, [p‑Nitrophenol]...........        100‑02‑7  Non‑detect......................           1900       5‑Nitro‑o‑toluidine......................         99‑55‑8  Non‑detect......................           1900       N‑Nitrosodi‑n‑butylamine.................        924‑16‑3  Non‑detect......................           1900       N‑Nitrosodiethylamine....................         55‑18‑5  Non‑detect......................           1900       N‑Nitrosodiphenylamine,                           86‑30‑6  Non‑detect......................           1900        [Diphenylnitrosamine].                                                                                          N‑Nitroso‑N‑methylethylamine.............      10595‑95‑6  Non‑detect......................           1900       N‑Nitrosomorpholine......................         59‑89‑2  Non‑detect......................           1900       N‑Nitrosopiperidine......................        100‑75‑4  Non‑detect......................           1900       N‑Nitrosopyrrolidine.....................        930‑55‑2  Non‑detect......................           1900       2‑Nitropropane...........................         79‑46‑9  Non‑detect......................             30       Parathion................................         56‑38‑2  Non‑detect......................           1900       Phenacetin...............................         62‑44‑2  Non‑detect......................           1900       1,4‑Phenylene diamine, [p‑                       106‑50‑3  Non‑detect......................           1900        Phenylenediamine].                                                                                              N‑Phenylthiourea.........................        103‑85‑5  Non‑detect......................             57       2‑Picoline [alpha‑Picoline]..............        109‑06‑8  Non‑detect......................           1900       Propythioracil [6‑Propyl‑2‑thiouracil]...         51‑52‑5  Non‑detect......................            100       Pyridine.................................        110‑86‑1  Non‑detect......................           1900       Strychnine...............................         57‑24‑9  Non‑detect......................            100       Thioacetamide............................         62‑55‑5  Non‑detect......................             57       Thiofanox................................      39196‑18‑4  Non‑detect......................            100       Thiourea.................................         62‑56‑6  Non‑detect......................             57       Toluene‑2,4‑diamine [2,4‑Diaminotoluene].         95‑80‑7  Non‑detect......................             57       Toluene‑2,6‑diamine [2,6‑Diaminotoluene].        823‑40‑5  Non‑detect......................             57       o‑Toluidine..............................         95‑53‑4  Non‑detect......................           2200       p‑Toluidine..............................        106‑49‑0  Non‑detect......................            100       1,3,5‑Trinitrobenzne, [sym‑                       99‑35‑4  Non‑detect......................           2000        Trinitobenzene].                                                                                            Halogenated Organics <SUP>b:                                                                                              Allyl chloride...........................        107‑05‑1  Non‑detect......................             37       Aramite..................................        104‑57‑8  Non‑detect......................           1900       Benzal chloride [Dichloromethyl benzene].         98‑87‑3  Non‑detect......................            100       Benzyl chloride..........................       100‑44‑77  Non‑detect......................            100       Bis(2‑chloroethyl)ether [Dichloroethyl           111‑44‑4  Non‑detect......................           1900        ether].                                                                                                         Bromoform [Tribromomethane]..............         75‑25‑2  Non‑detect......................             37       Bromomethane [Methyl bromide]............         74‑83‑9  Non‑detect......................             37       4‑Bromophenyl phenyl ether [p‑Bromo              101‑55‑3  Non‑detect......................           1900        diphenyl ether].                                                                                                Carbon tetrachloride.....................         56‑23‑5  Non‑detect......................             37       Chlordane................................         57‑74‑9  Non‑detect......................             14       p‑Chloroaniline..........................        106‑47‑8  Non‑detect......................           1900       Chlorobenzene............................        108‑90‑7  Non‑detect......................             37       Chlorobenzilate..........................        510‑15‑6  Non‑detect......................           1900       p‑Chloro‑m‑cresol........................         59‑50‑7  Non‑detect......................           1900       2‑Chloroethyl vinyl ether................        110‑75‑8  Non‑detect......................             37       Chloroform...............................         67‑66‑3  Non‑detect......................             37       Chloromethane [Methyl chloride]..........         74‑87‑3  Non‑detect......................             37       2‑Chlorophthalene [beta‑Chlorophthalene].         91‑58‑7  Non‑detect......................           1900       2‑Chlorophenol [o‑Chlorophenol]..........         95‑57‑8  Non‑detect......................           1900       Chloroprene [2‑Chloro‑1,3‑butadiene].....       1126‑99‑8  Non‑detect......................             37       2,4‑D [2,4‑Dichlorophenoxyacetic acid]...         94‑75‑7  Non‑detect......................              7.0     Diallate.................................       2303‑16‑4  Non‑detect......................           1900       1,2‑Dibromo‑3‑chloropropane..............         96‑12‑8  Non‑detect......................             37       1,2‑Dichlorobenzene [o‑Dichlorobenzene]..         95‑50‑1  Non‑detect......................           1900       1,3‑Dichlorobenzene [m‑Dichlorobenzene]..        541‑73‑1  Non‑detect......................           1900       1,4‑Dichlorobenzene [p‑Dichlorobenzene]..        106‑46‑7  Non‑detect......................           1900       3,3'‑Dichlorobenzidine...................         91‑94‑1  Non‑detect......................           1900       Dichlorodifluoromethane [CFC‑12].........         75‑71‑8  Non‑detect......................             37       1,2‑Dichloroethane [Ethylene dichloride].        107‑06‑2  Non‑detect......................             37       1,1‑Dichloroethylene [Vinylidene                  75‑35‑4  Non‑detect......................             37        chloride].                                                                                                      Dichloromethoxy ethane [Bis(2‑                   111‑91‑1  Non‑detect......................           1900        chloroethoxy)methane.                                                                                           2,4‑Dichlorophenol.......................        120‑83‑2  Non‑detect......................           1900       2,6‑Dichlorophenol.......................         87‑65‑0  Non‑detect......................           1900       1,2‑Dichloropropane [Propylene                    78‑87‑5  Non‑detect......................             37        dichloride].                                                                                                    cis‑1,3‑Dichloropropylene................      10061‑01‑5  Non‑detect......................             37       trans‑1,3‑Dichloropropylene..............      10061‑02‑6  Non‑detect......................             37       1,3‑Dichloro‑2‑propanol..................         96‑23‑1  Non‑detect......................             30       Endosulfan I.............................        959‑98‑8  Non‑detect......................              1.4     Endosulfan II............................      33213‑65‑9  Non‑detect......................              1.4  [[Page 33826]]                                                                                                                       Endrin...................................         72‑20‑8  Non‑detect......................              1.4     Endrin aldehyde..........................       7421‑93‑4  Non‑detect......................              1.4     Endrin Ketone............................      53494‑70‑5  Non‑detect......................              1.4     Epichlorohydrin [1‑Chloro‑2,3‑epoxy              106‑89‑8  Non‑detect......................             30        propane].                                                                                                       Ethylidene dichloride [1,1‑                       75‑34‑3  Non‑detect......................             37        Dichloroethane].                                                                                                2‑Fluoroacetamide........................        640‑19‑7  Non‑detect......................            100       Heptachlor...............................         76‑44‑8  Non‑detect......................              1.4     Heptachlor epoxide.......................       1024‑57‑3  Non‑detect......................              2.8     Hexachlorobenzene........................        118‑74‑1  Non‑detect......................           1900       Hexachloro‑1,3‑butadiene                          87‑68‑3  Non‑detect......................           1900        [Hexachlorobutadiene].                                                                                          Hexachlorocyclopentadiene................         77‑47‑4  Non‑detect......................           1900       Hexachloroethane.........................         67‑72‑1  Non‑detect......................           1900       Hexachlorophene..........................         70‑30‑4  Non‑detect......................           1000       Hexachloropropene [Hexachloropropylene]..       1888‑71‑7  Non‑detect......................           1900       Isodrin..................................        465‑73‑6  Non‑detect......................           1900       Kepone [Chlordecone].....................        143‑50‑0  Non‑detect......................           3600       Lindane [gamma‑Hexachlorocyclohexane]             58‑89‑9  non‑detect......................              1.4      [gamma‑BHC].                                                                                                    Methylene chloride [Dichloromethane].....         75‑09‑2  non‑detect......................             37       4,4'‑methylene‑bis(2‑chloroaniline)......        101‑14‑4  non‑detect......................            100       Methyl iodide [Iodomethane]..............         74‑88‑4  non‑detect......................             37       Pentachlorobenzene.......................        608‑93‑5  non‑detect......................           1900       Pentachloroethane........................         76‑01‑7  non‑detect......................             37       Pentachloronitrobenzene [PCNB]                    82‑68‑8  non‑detect......................           1900        [Quintobenzene] [Quintozene].                                                                                   Pentachlorophenol........................         87‑86‑5  non‑detect......................           1900       Pronamide................................      23950‑58‑5  non‑detect......................           1900       Silvex [2,4,5‑Trichlorophenoxypropionic           93‑72‑1  non‑detect......................              7.0      acid].                                                                                                          2,3,7,8‑Tetrachlorodibenzo‑p‑dioxin             1746‑01‑6  non‑detect......................             30        [2,3,7,8‑TCDD].                                                                                                 1,2,4,5‑Tetrachlorobenzene...............         95‑94‑3  non‑detect......................           1900       1,1,2,2‑Tetrachloroethane................         79‑34‑5  non‑detect......................             37       Tetrachloroethylene [Perchloroethylene]..        127‑18‑4  non‑detect......................             37       2,3,4,6‑Tetrachlorophenol................         58‑90‑2  non‑detect......................           1900       1,2,4‑Trichlorobenzene...................        120‑82‑1  non‑detect......................           1900       1,1,1‑Trichloroethane [Methyl chloroform]         71‑55‑6  non‑detect......................             37       1,1,2‑Trichloroethane [Vinyl trichloride]         79‑00‑5  non‑detect......................             37       Trichloroethylene........................         79‑01‑6  non‑detect......................             37       Trichlorofluoromethane                            75‑69‑4  non‑detect......................             37        [Trichlormonofluoromethane].                                                                                    2,4,5‑Trichlorophenol....................         95‑95‑4  non‑detect......................           1900       2,4,6‑Trichlorophenol....................         88‑06‑2  non‑detect......................           1900       1,2,3‑Trichloropropane...................         96‑18‑4  non‑detect......................             37       Vinyl Chloride...........................         75‑01‑4  non‑detect......................            37    ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ <SUP>a Absence of PCBs can also be demonstrated by using appropriate screening methods, e.g., immunoassay kit for PCB   in oils (Method 4020) or colorimetric analysis for PCBs in oil (Method 9079).                                  <SUP>b Some minimum required detection limits are above the total halogen limit of 540 ppm. The detection limits        reflect what was achieved during EPA testing and analysis and also analytical complexity associated with         measuring all halogen compounds on Appendix VIII at low levels. EPA recognizes that in practice the presence     of these compounds will be functionally limited by the molecular weight and the total halogen limit of 540       ppm.                                                                                                                (c) Implementation.‑‑Waste that meets the comparable or syngas fuel  specifications provided by paragraphs (a) or (b) of this section (these  constituent levels must be achieved by the comparable fuel when  generated, or as a result of treatment or blending, as provided in  paragraphs (c)(3) or (4) of this section) is excluded from the  definition of solid waste provided that the following requirements are  met:     (1) Notices‑‑For purposes of this section, the person claiming and  qualifying for the exclusion is called the comparable/syngas fuel  generator and the person burning the comparable/syngas fuel is called  the comparable/syngas burner. The person who generates the comparable  fuel or syngas fuel must claim and certify to the exclusion.     (i) State RCRA and CAA Directors in Authorized States or Regional  RCRA and CAA Directors in Unauthorized States.‑‑     (A) The generator must submit a one‑time notice to the Regional or  State RCRA and CAA Directors, in whose jurisdiction the exclusion is  being claimed and where the comparable/syngas fuel will be burned,  certifying compliance with the conditions of the exclusion and  providing documentation as required by paragraph (c)(1)(i)(C) of this  section;     (B) If the generator is a company that generates comparable/syngas  fuel at more than one facility, the generator shall specify at which  sites the comparable/syngas fuel will be generated;     (C) A comparable/syngas fuel generator's notification to the  Directors must contain the following items:     (1) The name, address, and RCRA ID number of the person/facility  claiming the exclusion;     (2) The applicable EPA Hazardous Waste Codes for the hazardous  waste;     (3) Name and address of the units, meeting the requirements of  paragraph (c)(2) of this section, that will burn the comparable/syngas  fuel; and  [[Page 33827]]      (4) The following statement is signed and submitted by the person  claiming the exclusion or his authorized representative:      Under penalty of criminal and civil prosecution for making or  submitting false statements, representations, or omissions, I  certify that the requirements of 40 CFR 261.38 have been met for all  waste identified in this notification. Copies of the records and  information required at 40 CFR 261.28(c)(10) are available at the  comparable/syngas fuel generator's facility. Based on my inquiry of  the individuals immediately responsible for obtaining the  information, the information is, to the best of my knowledge and  belief, true, accurate, and complete. I am aware that there are  significant penalties for submitting false information, including  the possibility of fine and imprisonment for knowing violations.      (ii) Public notice.‑‑Prior to burning an excluded comparable/syngas  fuel, the burner must publish in a major newspaper of general  circulation local to the site where the fuel will be burned, a notice  entitled ``Notification of Burning a Comparable/Syngas Fuel Excluded  Under the Resource Conservation and Recovery Act'' containing the  following information:     (A) Name, address, and RCRA ID number of the generating facility;     (B) Name and address of the unit(s) that will burn the comparable/ syngas fuel;     (C) A brief, general description of the manufacturing, treatment,  or other process generating the comparable/syngas fuel;     (D) An estimate of the average and maximum monthly and annual  quantity of the waste claimed to be excluded; and     (E) Name and mailing address of the Regional or State Directors to  whom the claim was submitted.     (2) Burning.‑‑The comparable/syngas fuel exclusion for fuels  meeting the requirements of paragraphs (a) or (b) and (c)(1) of this  section applies only if the fuel is burned in the following units that  also shall be subject to Federal/State/local air emission requirements,  including all applicable CAA MACT requirements:     (i) Industrial furnaces as defined in Sec. 260.10 of this chapter;     (ii) Boilers, as defined in Sec. 260.10 of this chapter, that are  further defined as follows:     (A) Industrial boilers located on the site of a facility engaged in  a manufacturing process where substances are transformed into new  products, including the component parts of products, by mechanical or  chemical processes; or     (B) Utility boilers used to produce electric power, steam, heated  or cooled air, or other gases or fluids for sale;     (iii) Hazardous waste incinerators subject to regulation under  subpart O of parts 264 or 265 of this chapter or applicable CAA MACT  standards.     (3) Blending to meet the viscosity specification.‑‑A hazardous  waste blended to meet the viscosity specification shall:     (i) As generated and prior to any blending, manipulation, or  processing meet the constituent and heating value specifications of  paragraphs (a)(1)(i) and (a)(2) of this section;     (ii) Be blended at a facility that is subject to the applicable  requirements of parts 264 and 265, or Sec. 262.34 of this chapter; and     (iii) Not violate the dilution prohibition of paragraph (c)(6) of  this chapter.     (4) Treatment to meet the comparable fuel exclusion  specifications.‑‑(i) A hazardous waste may be treated to meet the  exclusion specifications of paragraphs (a)(1) and (2) of this section  provided the treatment:     (A) Destroys or removes the constituent listed in the specification  or raises the heating value by removing or destroying hazardous  constituents or materials;     (B) Is performed at a facility that is subject to the applicable  requirements of parts 264 and 265, or Sec. 262.34 of this Chapter; and     (C) Does not violate the dilution prohibition of paragraph (c)(6)  of this seciton.     (ii) Residuals resulting from the treatment of a hazardous waste  listed in subpart D of this part to generate a comparable fuel remain a  hazardous waste.     (5) Generation of a syngas fuel.‑‑(i) A syngas fuel can be  generated from the processing of hazardous wastes to meet the exclusion  specifications of paragraph (b) of this section provided the  processing:     (A) Destroys or removes the constituent listed in the specification  or raises the heating value by removing or destroying constituents or  materials;     (B) Is performed at a facility that is subject to the applicable  requirements of parts 264 and 265, or Sec. 262.34 of this chapter or is  an exempt recycling unit pursuant to Sec. 261.6(c) of this chapter; and     (C) Does not violate the dilution prohibition of paragraph (c)(6)  of this chapter.     (ii) Residuals resulting from the treatment of a hazardous waste  listed in subpart D of this part to generate a syngas fuel remain a  hazardous waste.     (6) Dilution prohibition for comparable and syngas fuels.‑‑No  generator, transporter, handler, or owner or operator of a treatment,  storage, or disposal facility shall in any way dilute a hazardous waste  to meet the exclusion specifications of paragraph (a)(1)(i), (a)(2) or  (b) of this section.     (7) Waste analysis plans. The generator of a comparable/syngas fuel  shall develop and follow a written waste analysis plan which describes  the procedures for sampling and analysis of the hazardous waste to be  excluded. The waste analysis plan shall be developed in accordance with  the applicable sections of the ``Test Methods for Evaluating Solid  Waste, Physical/Chemical Methods'' (SW‑846). The plan shall be followed  and retained at the facility excluding the waste.     (i) At a minimum, the plan must specify:     (A) The parameters for which each hazardous waste will be analyzed  and the rationale for the selection of those parameters;     (B) The test methods which will be used to test for these  parameters;     (C) The sampling method which will be used to obtain a  representative sample of the waste to be analyzed;     (D) The frequency with which the initial analysis of the waste will  be reviewed or repeated to ensure that the analysis is accurate and up  to date; and     (E) If process knowledge is used in the waste determination, any  information prepared by the generator in making such determination.     (ii) The waste analysis plan shall also contain records of the  following:     (A) The dates and times waste samples were obtained, and the dates  the samples were analyzed;     (B) The names and qualifications of the person(s) who obtained the  samples;     (C) A description of the temporal and spatial locations of the  samples;     (D) The name and address of the laboratory facility at which  analyses of the samples were performed;     (E) A description of the analytical methods used, including any  clean‑up and sample preparation methods;     (F) All quantitation limits achieved and all other quality control  results for the analysis (including method blanks, duplicate analyses,  matrix spikes, etc.), laboratory quality assurance data, and  description of any deviations from analytical methods written in the  plan or from any other activity written in the plan which occurred;     (G) All laboratory results demonstrating that the exclusion  specifications have been met for the waste; and     (H) All laboratory documentation that support the analytical  results, unless a contract between the claimant and the laboratory  provides for the  [[Page 33828]]  documentation to be maintained by the laboratory for the period  specified in paragraph (c)(11) of this section and also provides for  the availability of the documentation to the claimant upon request.     (iii) Syngas fuel generators shall submit for approval, prior to  performing sampling, analysis, or any management of a syngas fuel as an  excluded waste, a waste analysis plan containing the elements of  paragraph (c)(7)(i) of this section to the appropriate regulatory  authority. The approval of waste analysis plans must be stated in  writing and received by the facility prior to sampling and analysis to  demonstrate the exclusion of a syngas. The approval of the waste  analysis plan may contain such provisions and conditions as the  regulatory authority deems appropriate.     (8) Comparable fuel sampling and analysis. (i) General. For each  waste for which an exclusion is claimed, the generator of the hazardous  waste must test for all the constituents on appendix VIII to this part,  except those that the generator determines, based on testing or  knowledge, should not be present in the waste. The generator is  required to document the basis of each determination that a constituent  should not be present. The generator may not determine that any of the  following categories of constituents should not be present:     (A) A constituent that triggered the toxicity characteristic for  the waste constituents that were the basis of the listing of the waste  stream, or constituents for which there is a treatment standard for the  waste code in 40 CFR 268.40;     (B) A constituent detected in previous analysis of the waste;     (C) Constituents introduced into the process that generates the  waste; or     (D) Constituents that are byproducts or side reactions to the  process that generates the waste.      Note to paragraph (c)(8): Any claim under this section must be  valid and accurate for all hazardous constituents; a determination  not to test for a hazardous constituent will not shield a generator  from liability should that constituent later be found in the waste  above the exclusion specifications.      (ii) For each waste for which the exclusion is claimed where the  generator of the comparable/syngas fuel is not the original generator  of the hazardous waste, the generator of the comparable/syngas fuel may  not use process knowledge pursuant to paragraph (c)(8)(i) of this  section and must test to determine that all of the constituent  specifications of paragraphs (a)(2) and (b) of this section have been  met.     (iii) The comparable/syngas fuel generator may use any reliable  analytical method to demonstrate that no constituent of concern is  present at concentrations above the specification levels. It is the  responsibility of the generator to ensure that the sampling and  analysis are unbiased, precise, and representative of the waste. For  the waste to be eligible for exclusion, a generator must demonstrate  that:     (A) Each constituent of concern is not present in the waste above  the specification level at the 95% upper confidence limit around the  mean; and     (B) The analysis could have detected the presence of the  constituent at or below the specification level at the 95% upper  confidence limit around the mean.     (iv) Nothing in this paragraph preempts, overrides or otherwise  negates the provision in Sec. 262.11 of this chapter, which requires  any person who generates a solid waste to determine if that waste is a  hazardous waste.     (v) In an enforcement action, the burden of proof to establish  conformance with the exclusion specification shall be on the generator  claiming the exclusion.     (vi) The generator must conduct sampling and analysis in accordance  with their waste analysis plan developed under paragraph (c)(7) of this  section.     (vii) Syngas fuel and comparable fuel that has not been blended in  order to meet the kinematic viscosity specifications shall be analyzed  as generated.     (viii) If a comparable fuel is blended in order to meet the  kinematic viscosity specifications, the generator shall:     (A) Analyze the fuel as generated to ensure that it meets the  constituent and heating value specifications; and     (B) After blending, analyze the fuel again to ensure that the  blended fuel continues to meet all comparable/syngas fuel  specifications.     (ix) Excluded comparable/syngas fuel must be re‑tested, at a  minimum, annually and must be retested after a process change that  could change the chemical or physical properties of the waste.     (9) Speculative accumulation. Any persons handling a comparable/ syngas fuel are subject to the speculative accumulation test under  Sec. 261.2(c)(4) of this chapter.     (10) Records. The generator must maintain records of the following  information on‑site:     (i) All information required to be submitted to the implementing  authority as part of the notification of the claim:     (A) The owner/operator name, address, and RCRA facility ID number  of the person claiming the exclusion;     (B) The applicable EPA Hazardous Waste Codes for each hazardous  waste excluded as a fuel; and     (C) The certification signed by the person claiming the exclusion  or his authorized representative.     (ii) A brief description of the process that generated the  hazardous waste and process that generated the excluded fuel, if not  the same;     (iii) An estimate of the average and maximum monthly and annual  quantities of each waste claimed to be excluded;     (iv) Documentation for any claim that a constituent is not present  in the hazardous waste as required under paragraph (c)(8)(i) of this  section;     (v) The results of all analyses and all detection limits achieved  as required under paragraph (c)(8) of this section;     (vi) If the excluded waste was generated through treatment or  blending, documentation as required under paragraph (c)(3) or (4) of  this section;     (vii) If the waste is to be shipped off‑site, a certification from  the burner as required under paragraph (c)(12) of this section;     (viii) A waste analysis plan and the results of the sampling and  analysis that includes the following:     (A) The dates and times waste samples were obtained, and the dates  the samples were analyzed;     (B) The names and qualifications of the person(s) who obtained the  samples;     (C) A description of the temporal and spatial locations of the  samples;     (D) The name and address of the laboratory facility at which  analyses of the samples were performed;     (E) A description of the analytical methods used, including any  clean‑up and sample preparation methods;     (F) All quantitation limits achieved and all other quality control  results for the analysis (including method blanks, duplicate analyses,  matrix spikes, etc.), laboratory quality assurance data, and  description of any deviations from analytical methods written in the  plan or from any other activity written in the plan which occurred;     (G) All laboratory analytical results demonstrating that the  exclusion specifications have been met for the waste; and     (H) All laboratory documentation that support the analytical  results, unless a contract between the claimant and the laboratory  provides for the documentation to be maintained by the laboratory for  the period specified in paragraph (c)(11) of this section and also  [[Page 33829]]  provides for the availability of the documentation to the claimant upon  request; and     (ix) If the generator ships comparable/syngas fuel off‑site for  burning, the generator must retain for each shipment the following  information on‑site:     (A) The name and address of the facility receiving the comparable/ syngas fuel for burning;     (B) The quantity of comparable/syngas fuel shipped and delivered;     (C) The date of shipment or delivery;     (D) A cross‑reference to the record of comparable/syngas fuel  analysis or other information used to make the determination that the  comparable/syngas fuel meets the specifications as required under  paragraph (c)(8) of this section; and     (E) A one‑time certification by the burner as required under  paragraph (c)(12) of this section.     (11) Records retention. Records must be maintained for the period  of three years. A generator must maintain a current waste analysis plan  during that three year period.     (12) Burner certification. Prior to submitting a notification to  the State and Regional Directors, a comparable/syngas fuel generator  who intends to ship their fuel off‑site for burning must obtain a one‑ time written, signed statement from the burner:     (i) Certifying that the comparable/syngas fuel will only be burned  in an industrial furnace or boiler, utility boiler, or hazardous waste  incinerator, as required under paragraph (c)(2) of this section;     (ii) Identifying the name and address of the units that will burn  the comparable/syngas fuel; and     (iii) Certifying that the state in which the burner is located is  authorized to exclude wastes as comparable/syngas fuel under the  provisions of this section.     (13) Ineligible waste codes. Wastes that are listed because of  presence of dioxins or furans, as set out in Appendix VII of this part,  are not eligible for this exclusion, and any fuel produced from or  otherwise containing these wastes remains a hazardous waste subject to  full RCRA hazardous waste management requirements.  PART 270‑‑EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE  PERMIT PROGRAM      1. The authority citation for part 270 continues to read as  follows:      Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and  6974.  Subpart D‑‑Changes to Permits      2. Section 270.42 is amended by adding a new paragraph (j) to read  as follows:   Sec. 270.42  Permit modification at the request of the permittee.  * * * * *     (j) Combustion facility changes to meet part 63 MACT standards. The  following procedures apply to hazardous waste combustion facility  permit modifications requested under Appendix I of this section,  section L(9).     (1) Facility owners or operators must comply with the Notification  of Intent to Comply (NIC) requirements of 40 CFR 63.1211 before a  permit modification can be requested under this section.     (2) If the Director does not approve or deny the request within 90  days of receiving it, the request shall be deemed approved. The  Director may, at his or her discretion, extend this 90 day deadline one  time for up to 30 days by notifying the facility owner or operator.     3. In Sec. 270.42 Appendix I is amended by adding entry L(9) to  read as follows:  Appendix I to Sec. 270.42‑‑Classification of Permit Modification  ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑                           Modification                            Class  ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ L. Incinerators, Boilers and Industrial Furnaces                   \1\ 1                                                                          *                  *                  *                  *                                 *                  *                  *                                                                                            9. Technology Changes Needed to meet Standards under 40 CFR part 63    (Subpart EEE‑‑National Emission Standards for Hazardous Air Pollutants      From Hazardous Waste Combustors), provided the procedures of Sec.                             270.42(i) are followed                                                                                                   *                  *                  *                  *                                 *                  *                  *                ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ \1\ Class 1 modifications requiring Agency prior approval.                * * * * *  Subpart G‑‑Interim Status      4. Section 270.72 is amended by adding paragraph (b)(8) to read as  follows:   Sec. 270.72  Changes during interim status.  * * * * *     (b) * * *     (8) Changes necessary to comply with standards under 40 CFR part  63, Subpart EEE‑‑National Emission Standards for Hazardous Air  Pollutants From Hazardous Waste Combustors.  [FR Doc. 98‑15843 Filed 6‑18‑98; 8:45 am] BILLING CODE 6560‑50‑P