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Daily Rules, Proposed Rules, and Notices of the Federal Government

ENVIRONMENTAL PROTECTION AGENCY

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

[FRL-7143-3]

RIN 2050-AE79

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: On September 30, 1999, EPA promulgated standards to control emissions of hazardous air pollutants from incinerators, cement kilns and lightweight aggregate kilns that burn hazardous wastes. A number of parties sought judicial review of the rule. On July 24, 2001, the United States Court of Appeals for the District of Columbia Circuit (the Court) granted the Sierra Club's petition for review and vacated the challenged portions of the rule. In its decision, the Court invited EPA or any of the parties that challenged the regulations to file a motion with the Court to request either that the current standards remain in place, or that EPA be allowed time to develop interim standards, pending further time in which EPA develops standards complying with the Court's opinion. On October 19, 2001, EPA, together with all other petitioners, jointly moved the Court to stay the issuance of its mandate for four months to allow EPA time to develop interim standards. The motion contemplates that EPA will issue final standards by June 14, 2005. The joint motion also details other actions EPA intends to take. These actions include promulgating, by February 14, 2002, a rule with amended interim emission standards and several compliance and implementation amendments to the rule which EPA proposed on July 3, 2001. The Court has granted this motion and stayed issuance of its mandate until February 14, 2002.

Today's rule amends the September 1999 emission standards, with certain provisions amended as set out in the parties' joint motion. The rule also adopts the compliance and implementation amendments described in that motion. Although this Interim Standards Rule results in emission reductions that are less stringent than those of the September 1999 rule, we believe it achieves most of the emission gains of that rule. Promulgation of the rule now, before the Court issues its mandate, also avoids the severe problems relating to developing the Maximum Achievable Control Technology (MACT) on a source-by-source basis pursuant to section 112(j)(2) of the Clean Air Act, which applies if there are no national standards in place. We believe that adopting this Interim Standards Rule now best fulfills the statutory requirement to have national emission standards in place by a specified time, while avoiding unnecessary disruption and burden to regulated industry and affected state and federal administrative agencies.

DATES: Effective Date: This final rule is effective on February 13, 2002.

Compliance Date: You are required to comply with these promulgated standards by September 30, 2003.

ADDRESSES: You may view the docket to this rulemaking in the RCRA Information Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The docket number is F-2002-RC7F-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, we recommend that you make an appointment by calling (703) 603-9230. You may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15/page.
FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). Callers within the Washington Metropolitan Area must dial 703-412-9810 or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open Monday-Friday, 9 am to 4 pm, Eastern Standard Time. For more information, contact Frank Behan at 703-308-8476,behan.frank@epa.gov,or Michael Galbraith at 703-605-0567,galbraith.michael@epa.gov,or write to them at the Office of Solid Waste, 5302W, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
SUPPLEMENTARY INFORMATION: Acronyms Used in the Rule APCD—Air pollution control device ASME—American Society of Mechanical Engineers CAA—Clean Air Act CEMS—Continuous emissions monitors/monitoring system COMS—Continuous opacity monitoring system CFR—Code of Federal Regulations DOC—Documentation of Compliance DRE—Destruction and removal efficiency dscf—Dry standard cubic feet dscm—Dry standard cubic meter EPA/USEPA—United States Environmental Protection Agency gr—Grains HAP—Hazardous air pollutant HWC—Hazardous waste combustor MACT—Maximum Achievable Control Technology NESHAP—National Emission Standards for HAPs ng—Nanograms NIC—Notice of Intent to Comply NOC—Notification of compliance OPL—Operating parameter limit PM—Particulate matter POHC—Principal organic hazardous constituent ppmv—Parts per million by volume RCRA—Resource Conservation and Recovery Act TEQ—Toxicity equivalence

Official Record.The official record is the paper record maintained at the address inADDRESSESabove.

Supporting Materials Availability on the Internet.Supporting materials are available on the Internet. To access the information electronically from the World Wide Web, typehttp://www.epa.gov/epaoswer/hazwaste/combust.

Table of Contents Part One—What Events Led Up to This Rule? I. What Is the Background? A. What Is the Phase I Rule? B. How Did the Court's Opinion To Vacate Challenged Portions of the Rule and the Parties' Joint Motion To Stay the Mandate Affect Phase I and Today's Rule? II. Good Cause for Issuing the Rule A. Failure to Control Area Sources B. No National Standards for Major Sources for a Long Period C. Case-by-Case Permit Standards Delaying Compliance With More Stringent National Standards D. Inconsistent Permit Standards E. Adverse Consequences to Regulated Sources F. Administrative Burdens III. What Is Included in This Rule? Part Two—What Revisions Are We Making in This Rule? I. What Are the Interim Standards? A. New and Existing Incinerators B. New and Existing Cement Kilns C. New and Existing Lightweight Aggregate Kilns II. What Are the Revisions to the Startup, Shutdown, and Malfunction Requirements? A. What Are the Revised Requirements for Malfunctions? B. Why Does the Revised Rule Require You To Include the Automatic Waste Feed Cutoff Requirements in the Startup, Shutdown, and Malfunction Plan? C. What Are the Revised Requirements for Burning Hazardous Waste During Startup and Shutdown? D. What Are the Conforming Revisions to the Emergency Safety Vent Opening Requirements? III. What Changes Are We Making to the Performance Testing Requirements for the Interim Standards Rule? A. Why Are We Revising the Data in Lieu Provisions? B. Why Are We Waiving Periodic Comprehensive Performance Testing Under the Interim Standards? C. Why Are We Waiving the Dioxin/Furan Confirmatory Test Under the Interim Standards? IV. Why Are We Deleting the Minimum Power Requirement for Ionizing Wet Scrubbers? V. What Are the Monitoring Requirements for Carbon Beds? VI. Can a Source Be Granted an Extension of Compliance for the Interim Standards? VII. Why Are We Repromulgating the Hourly Rolling Average Temperature Limit at a Dry Particulate Matter Control Device To Control Dioxin/Furan Emissions? Part Three—What Are the Analytical and Regulatory Requirements? I. Executive Order 12866: Regulatory Planning and Review II. What Are the Potential Costs and Benefits of Today's Final Rule? III. What Consideration Was Given to Small Entities under the Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.? IV. Was the Unfunded Mandates Reform Act Considered in This Final Rule? V. Were Equity Issues and Children's Health Considered in This Final Rule? VI. What Consideration Was Given to Tribal Governments in This Final Rule? VII. Were Federalism Implications Considered in Today's Final Rule? VIII. Were Energy Impacts Considered? IX. Paperwork Reduction Act X. National Technology Transfer and Advancement Act of 1995 XI. Is Today's Rule Subject to Congressional Review? Part Four—What Are the State Authorization and Delegation Implications? I. What Is the Authority for the Interim Standards Rule? II. How Is This Rule Delegated Under the CAA? III. How Would States Become Authorized Under RCRA? Part One—What Events Led Up to This Rule? I. What Is the Background? A. What Is the Phase I Rule?

Today's notice finalizes specific changes to the NESHAP: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I) rule, published September 30, 1999 (64 FR 52828). In the Phase I final rule, we adopted National Emissions Standards for Hazardous Air Pollutants, pursuant to section 112(d) of the Clean Air Act (CAA) to control toxic emissions from the burning of hazardous waste in incinerators, cement kilns, and lightweight aggregate kilns. These emission standards created a technology-based national cap for hazardous air pollutant emissions from the combustion of hazardous waste in these devices. Additional risk-based conditions necessary to protect human health and the environment may be imposed presently (assuming a proper, site-specific justification) under section 3005(c)(3) of the Resource Conservation and Recovery Act (RCRA) (and may ultimately be imposed under section 112(f) of the Clean Air Act as well).

Section 112(d) of the CAA requires emissions standards for hazardous air pollutants to be based on the performance of the Maximum Achievable Control Technology (MACT). These standards apply to the three major categories of hazardous waste burners—incinerators, cement kilns, and lightweight aggregate kilns. For purposes of today's rule, we refer to these three categories collectively as hazardous waste combustors (HWC).

B. How Did the Court's Opinion To Vacate Challenged Portions of the Rule and the Parties' Joint Motion To Stay the Mandate Affect Phase I and Today's Rule?

A number of parties, representing interests of both industrial sources and of the environmental community, sought judicial review of the Phase I rule. On July 24, 2001, the United States Court of Appeals for the District of Columbia Circuit (the Court) granted the Sierra Club's petition for review and vacated the challenged portions of the rule.Cement Kiln Recycling Coalition v. EPA,255 F. 3d 855 (D.C. Cir. 2001). The Court held that EPA had not demonstrated that the standards met the statutory requirement of being no less stringent than (1) the average emission limitation achieved by the best performing 12 percent of existing sources and (2) the emission control achieved in practice by the best controlled similar source for new sources. 255 F.3d at 861, 865-66. As a remedy, the Court, after declining to rule on most of the issues presented in the Industry petitions for review, vacated the “challenged regulations,” stating that: “[W]e have chosen not to reach the bulk of industry petitioners” claims, and leaving the regulations in place during remand would ignore petitioners' potentially meritorious challenges.”Id.at 872. Examples of the specific challenges the Court indicated might have merit were provisions relating to compliance during start up/shut down and malfunction events, including emergency safety vent openings, the dioxin standard for lightweight aggregate kilns, and the semi-volatile metal standard for cement kilns.Id.However, the Court stated, “[b]ecause this decision leaves EPA without standards regulating [hazardous waste combustor] emissions, EPA (or any of the parties to this proceeding) may file a motion to delay issuance of the mandate to request either that the current standards remain in place or that EPA be allowed reasonable time to develop interim standards.”Id.

Acting on this invitation, all parties moved the Court jointly to stay the issuance of its mandate for four months to allow EPA time to develop interim standards. The interim standards will replace the vacated standards temporarily, until final standards are promulgated.

The motion indicates that EPA would issue final standards which fully comply with the Court's opinion by June 14, 2005, and it indicates that EPA and Petitioner Sierra Club intend to enter into a settlement agreement requiring us to promulgate final rules by that date, and that date be judicially enforceable. The joint motion also details other actions we agreed to take, including issuing a one-year extension to the September 30, 2002 compliance date (66 FR 63313, December 6, 2001), and promulgating by February 14, 2002 several of the compliance and implementation amendments to the rule which we proposed on July 3, 2001 (66 FR 35126). These final amendments will be published in tomorrow'sFederal Register. The joint motion can be viewed and downloaded from EPA's Hazardous Waste Combustion Website:http://www.epa.gov/epaoswer/hazwaste/combust/preamble.htm.

We believe that implementation of today's interim standards will be beneficial to the regulated community, the state implementing programs, and the environment. Compliance with these interim standards will result in emissions reductions sooner than if the hazardous waste combustion standards were vacated. It also provides a more orderly transition to final standards than if the current rules were vacated without replacement standards being in place due to the operation of the so-called hammer provisions of section 112(j)(2) and 112(g)(2) of the CAA. These hammer provisions are discussed in the next section.

II. Good Cause for Issuing the Rule

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.1 EPA so finds here.2

1Section 553 of the Administrative Procedure Act does apply here, even though issues of rulemaking procedure under the Clean Air Act are normally controlled by CAA section 307(d). See CAA section 307(d)(1) final sentence, indicating that the CAA provisions do not apply to rules covered by section 553(b)(B) of the Administrative Procedure Act.

2EPA notes as well that certain of the provisions adopted today (those dealing with the revised standards and compliance provisions) are the subject of prior notice and opportunity for comment, so that no good cause finding is required for such provisions. In addition, for all of the provisions of the rule which we are repromulgating in existing form, notice and opportunity for comment is unnecessary since these provisions have already been the subject of exhaustive notice and comment rulemaking.

First, the regulated community and environmental community have had actual notice of the contents of this rule, and opportunity to comment upon it, due to the exhaustive negotiations leading to filing of the joint motion on October 19, 2001, which motion recited the projected contents of this Interim Standards Rule. It is well-settled that actual notice satisfies all obligations to provide notice and opportunity for comment as to those persons.Small Refiner Lead Phase-Down Task Forcev.EPA,705 F. 2d 506, 548 (D.C. Cir. 1983).

Second, with respect to entities that were not part of this negotiating process, EPA finds that there is good cause to issue the rule without prior proposal in order to avoid the consequences of not having a standard in place. The consequence of vacating the present rule before EPA promulgates a replacement rule is that the statutory “hammer” provisions would operate with respect to major sources, and that there would be no CAA standards for area sources.3 Congress required that EPA promulgate national standards to control emissions of hazardous air pollutants by designated dates. Congress also added the hammer provisions to create a strong incentive to assure that those standards are adopted and go into force. Section 112(j)(2) of the Act thus provides that “[i]n the event that the Administrator fails to promulgate a standard for a category * * * of major sources by the date established pursuant to subsection (e)(1) and (3) of this section,” prescribed consequences occur. 42 U.S.C. 7412(j)(2). The first of these is that “18 months after such date, the owner or operator of any major source in such category * * * shall submit a permit application.”Id.Permit writers (either federal or state) must then establish emission limitations for each major source which they “determin[e], on a case-by-case basis, to be equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner under subsection (d).”Id.42 U.S.C. 7412(j)(5). These site-specific permit limitations can be superseded by subsequently promulgated national standards. Should such a standard be promulgated, the permitting authority “shall revise such permit upon the next renewal to reflect the standard * * * providing such a reasonable time to comply, but no longer than 8 years after such standard is promulgated or 8 years after the date on which the source is first required to comply with the [site-specific emission standard], whichever is earlier.”Id.§ 7412(j)(6). Thus there could be considerable delay before sources are subject to a national CAA section 112(d) standard once a section 112(j)(5) permit is issued.

3EPA's interpretation that the hammer provisions apply is based on the statutory language and evident Congressional purpose to create a default mechanism whenever there are no national Clean Air Act section 112(d) standards in place on or after the hammer date. See alsoSteel Mfr's Ass'nv.EPA,27 F. 3d 642, 647-48 (D.C. Cir. 1994) holding that EPA reasonably construed analogous hammer provisions of the Resource Conservation and Recovery Act to apply if a rule is issued but vacated so as not to be in place on the hammer date.

There are significant adverse consequences of vacating the existing rule and allowing the section 112(j) hammer to operate:

A. Failure To Control Area Sources

The hammer requirement applies only to major sources of hazardous air pollutants. We determined, pursuant to CAA section 112(c)(3), however, that regulation of all hazardous waste combustor area sources (i.e.,sources below the major source threshold) is necessary because of the threat of potential adverse effects to human health or the environment posed by these sources. 64 FR at 52837-52838. If this Interim Standards Rule is not adopted now, before the mandate issues, these area sources would not be subject to any CAA standards for hazardous air pollutants until the compliance date for the projected 2005 rule.

B. No National Standards for Major Sources for a Long Period

If this Interim Standards Rule is not issued now, major hazardous waste combustor sources would not be subject to national CAA MACT standards for a prolonged period. Even if the case-by-case permitting process goes smoothly, permitting authorities have up to 18 months to issue such permits after a complete application is filed. See 40 CFR 70.4(b)(6). The permitting authority could then allow up to a 3-year compliance date (42 U.S.C. 7412(j)(5)), so that sources may not be subject to emission standards until 2006. Yet these sources were to have been subject to national standards no later than November 2003. CAA sections 112(e)(1) and (i)(3).

C. Case-by-Case Permit Standards Delaying Compliance With More Stringent National Standards

Case-by-case permit limitations do not have to be modified to reflect more stringent subsequent national standards until the permit is renewed or until 8 years from the date the national standard is promulgated or 8 years from the time the permit is issued, whichever is earlier. CAA section 112(j)(6). A scenario thus could result where major sources receive case-by-case permits in 2004 before EPA issues a national rule, and then might not have to comply with a national standard until 2012. This result is again far later than the expected 2003 date for compliance with national section 112(d) standards.

D. Inconsistent Permit Standards

The case-by-case permitting process, with its hundreds of separate determinations, necessarily raises the prospect of potentially inconsistent determinations. The general statutory scheme, however, is that sources in a category or subcategory will be subject to a common standard. Such inconsistency could also lessen the degree of emission reduction Congress contemplated in requiring that sources be subject to national technology-based standards developed pursuant to section 112(d).

E. Adverse Consequences to Regulated Sources

The case-by-case permitting process also poses adverse consequences for regulated sources. The immediate burden is to submit permit applications to federal or state permit-writing authorities. Some industry sources may also face the possibility that individual permit limits could be so inconsistent with later national standards that the source will have to develop a new strategy for achieving emission reductions (with consequent loss of investment in the equipment needed to comply with the case-by-case permit), and the prospect of continuing to comply with Resource Conservation andRecovery Act (RCRA) permit conditions for air emissions.

F. Administrative Burdens

The administrative burdens on EPA and on States administering CAA permit programs likewise will be significant if a case-by-case permitting process is triggered if this rule is not promulgated by the mandate issuance date. Processing many permit applications from hazardous waste combustors, and trying to develop standards equivalent to maximum achievable control technology on a case-by-case basis, can only further complicate an already exceedingly difficult permit-issuance task.

EPA notes further that in the scarce time between the Court issuing an order staying its mandate and the present, we have used best efforts to provide notice of this projected Interim Standards Rule. We posted the joint motion and appendices on websites, and also solicited comment on these documents in the section 112(g) settlement notice published in theFederal Registeron November 16, 2001. 66 FR 57715. We have responded to all of the comments received on that notice. However, it has proved impossible to provide further notice and opportunity for comment given the lack of time before issuance of the mandate, and the need for EPA to focus on development of the 2005 final standards, which will implement MACT for these sources.

Therefore, in light of the fact that Congress intended for national standards to already be in place for hazardous waste combustors, and that a case-by-case permitting regime for those combustors could have adverse consequences for regulated sources, state and federal permitting authorities, and for the environment, we believe that there is good cause for this rule to issue without additional notice and opportunity for comment.Small Refiner Lead Phase-Down Task Force,705 F.2d at 545-46 (inviting EPA to issue an interim standards rule to avoid a regulatory gap and noting that there probably exists “good cause” under 5 U.S.C. 553(b)(B) to issue the rule without prior notice and opportunity for comment). EPA also finds that good cause exists under U.S.C. 553(d)(3) for making this rule effective less than 30 days after publication in theFederal Register.

III. What Is Included in This Rule?

In this rulemaking, we are retaining the existing Part 63, Subpart EEE, regulations, except for the following changes:

• We are revising certain emission standards as follows: (a) The semi-volatile metals standard for new incinerators; (b) the semi-volatile metals standard for existing cement kilns; (c) the mercury standard for new cement kilns; (d) the dioxin standard for new and existing lightweight aggregate kilns; (e) the mercury standard for new and existing lightweight aggregate kilns; (f) the hydrochloric acid/chlorine gas standard for new and existing lightweight aggregate kilns.

• We are providing an alternative means for lightweight aggregate kilns and cement kilns to comply with the mercury standard to allow sources to comply with a hazardous waste mercury feedrate limit in lieu of complying with an emission standard. Sources electing to comply with this option will be required to notify the RCRA permitting authority that they are complying with this option.

• We are revising the startup, shutdown and malfunction (“SSM”) provisions to provide that emission standards and operating requirements set forth in the rule apply at all times except during periods of startup, shutdown and malfunction. The revised rule subjects hazardous waste combustors to the same general MACT SSM provisions that apply to most sources, except that revised automatic waste feed cutoff requirements continue to apply during most SSM events, and sources must determine whether the SSM plan should be revised if excessive exceedances of operating requirements when hazardous waste is in the system occur during these events. Such exceedances will not constitute violations of the operating requirements. In addition, owners and operators of hazardous waste combustors must select either RCRA option or a CAA option to control emissions from startup, shutdown, and malfunctions. Under the RCRA options, operating conditions in the RCRA permit will minimize emissions during these events. Under the CAA option, the SSM plan must be proactive in minimizing emissions from these events, and must be submitted to the delegated CAA authority for review and approval. Finally, we are revising the emergency safety vent (“AESV”) opening provisions to provide that if there is hazardous waste in the combustion chamber, and there is an ESV opening that is not a malfunction, the source must document whether it remains in compliance with applicable standards, and file a report if there is noncompliance.

In addition, we are making the following regulatory revisions to compensate for the possibility that sources may be required to comply with permanent replacement emission standards (i.e., the final standards that comply with the Court's opinion and that must be promulgated by June 14, 2005) that are significantly different than the Interim Standards in today's rulemaking. Such an outcome could result in loss of capital investment. As a result, we believe these provisions are appropriate since they could lessen this potentially negative financial impact.

• Amending the performance testing requirements of 40 CFR 63.1207 to allow previously collected data, regardless of age, to serve as documentation of compliance with the interim emission standards provided that these data meet quality assurance requirements and are sufficient to establish operating parameter limits;

• Amending the performance testing provisions such that all subsequent comprehensive performance tests (that is, those after the initial comprehensive performance test) for the interim standards are automatically waived; and,

• Amending the confirmatory performance testing provisions to eliminate the requirement to conduct confirmatory performance testing during the period that the interim standards are in effect.

Part Two—What Revisions Are We Making in This Rule? I. What Are the Interim Standards?

In today's rulemaking, we are replacing the vacated emission standards temporarily until final standards are promulgated by June 14, 2005.4 EPA notes that this Interim Standards Rule does not respond to the Court's mandate regarding the need to demonstrate that EPA's methodology reasonably predicts the performance of the average of the best performing twelve percent of sources (or best-performing source). EPA intends to address those issues in a subsequent rule, which will necessarily require a longer time to develop, propose, and finalize. However, some type of Interim Standards Rule is needed now, for the reasons explained in Part One, Section II above. These standards, to some degree, represent negotiated interim levels agreed to by the parties to the Joint Motion (both industry and environmental, as well as EPA). In EPA's view, these standards preserve critical parts of the September 30, 1999rule unchanged, and achieve approximately 93 percent of the emissions reductions for existing sources which the original rule would have attained. Given the need to expeditiously adopt an Interim Standards Rule to avoid outright vacature (with the attendant adverse consequences described in the previous section), and the fact that the Court indicated that some of the industry challenges had potential merit (so that repromulgating all of the September 30,1999 rule was not a realistic possibility), EPA believes that this rule represents a reasonable interim measure. The numerical values of most existing emission standards are being retained except for the changes outlined above and discussed below. Given that the emission standards will be vacated when the Court issues an order called a mandate (expected on or after February 14, 2002), we are repromulgating the emissions standards of §§ 63.1203 through 63.1205, not just those standards that are being revised.

4In a final rule published on December 6, 2001, we extended for one year the compliance date requirement of § 63.1206(a) for the interim emission standards until September 30, 2003. See 66 FR 63313.

A. New and Existing Incinerators

The interim emission standards for new and existing hazardous waste incinerators are identical to the standards promulgated on September 30, 1999, except that the semivolatile metals standard for new incinerators is revised to 120 μg/dscm. We are revising § 63.1203(b)(3) and repromulgating § 63.1203 accordingly.

We are also correcting two typographic errors in § 63.1203(c)(2). In the second sentence of this paragraph, we are replacing the word “tetro-” with the word “tetra-.” We are also inserting the word “to” before the word “calculate” in the third sentence of the paragraph.

The interim emission standards are summarized below.

Interim Standards for Existing and New Incinerators Hazardous air pollutant or hazardous air pollutant surrogate Interim emission standard1 Existing sources New sources Dioxin/Furan 0.20 ng TEQ2dscm; or 0.40 ng TEQ/dscm and temperature at inlet to the initial particulate matter control device ≤400° F 0.20 ng TEQ/dscm. Mercury 130 μg/dscm 45 μg/dscm. Particulate Matter 34mg/dscm (0.015gr/dscf) 34mg/dscm (0.015gr/dscf). Semivolatile Metals 240 μg/dscm 120 μg/dscm. Low Volatile Metals 97 μg/dscm 97 μg/dscm. Hydrochloric Acid/Chlorine Gas 77 ppmv 21 ppmv. Hydrocarbons3 4 10 ppmv (or 100 ppmv carbon monoxide) 10 ppmv (or 100 ppmv carbon monoxide). Destruction and Removal Efficiency For existing and new sources, 99.99% for each principal organic hazardous constituent (POHC) designated. For sources burning hazardous wastes F020, F021, F022, F023, F026, or F027, 99.9999% for each POHC designated Same as for existing incinerators. 1All emission levels are corrected to 7 percent oxygen. 2Toxicity equivalent quotient, the international method of relating the toxicity of various dioxin/furan congeners to the toxicity of 2,3,7,8-TCDD. 3Hourly rolling average. Hydrocarbons are reported as propane. 4Incinerators that elect to continuously comply with the carbon monoxide standard must demonstrate compliance with the hydrocarbon standard of 10 ppmv during the comprehensive performance test. B. New and Existing Cement Kilns

The interim emission standards for new and existing hazardous waste burning cement kilns are identical to the standards promulgated on September 30, 1999, with two exceptions. The semivolatile metals standard for existing cement kilns and the mercury standard for new cement kilns are revised to 330 μg/dscm and 120 μg/dscm, respectively. In today's rule, we are revising §§ 63.1204(a)(3) and (b)(2) and repromulgating § 63.1204 accordingly.

We are also correcting two typographic errors in § 63.1204(c)(2). In the second sentence of this paragraph, we are replacing the word “tetro-” with the word “tetra-.” We are also inserting the word “to” before the word “calculate” in the third sentence of the paragraph.

Finally, we are providing an alternative means for new and existing cement kilns to comply with the interim mercury standard. Under this alternative, new and existing cement kilns are allowed to comply with a hazardous waste maximum theoretical emissions concentration5 of mercury of 120 μg/dscm. This new operating requirement for mercury from cement kilns is conceptually similar to the alternative mercury standard provisions that we promulgated in the September 30, 1999 rule. See § 63.1206(b)(10) (alternative standard where source demonstrates that it cannot meet emission standard as a result of mercury levels in raw material feedstocks). The feedrate operating requirement alternative ensures that the hazardous waste mercury contribution to emissions—MACT control for cement kilns as promulgated in the final rule—will always be below the mercury standard.

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

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

The interim emission standards are summarized below.

Interim Standards for Existing and New Cement KILNS Hazardous air pollutant or hazardous air pollutant surrogate Interim emission standard1 Existing sources New sources Dioxin and Furan 0.20 ng TEQ/dscm; or 0.40 ng TEQ/dscm and control of flue gas temperature not to exceed 400°F at the inlet to the particulate matter control device 0.20 ng TEQ/dscm; or 0.40 ng TEQ/dscm and control of flue gas temperature not to exceed 400°F at the inlet to the particulate matter control device. Mercury 120 μg/dscm 120 μg/dscm. Particulate Matter2 0.15 kg/Mg dry feed and 20% opacity 0.15 kg/Mg dry feed and 20% opacity. Semivolatile Metals 330 μg/dscm 180 μg/dscm. Low Volatile Metals 56 μg/dscm 54 μg/dscm. Hydrochloric Acid and Chlorine Gas 130 ppmv 86 ppmv. Hydrocarbons: Kilns without By-pass3 6 20 ppmv (or 100 ppmv carbon monoxide)3 Greenfield kilns: 20 ppmv (or 100 ppmv carbon monoxide and 50 ppmv5hydrocarbons).
  • All others:
  • 20 ppmv (or 100 ppmv carbon monoxide)3.
  • Hydrocarbons: Kilns with By-pass; Main Stack.4 6 No main stack standard 50 ppmv5. Hydrocarbons: Kilns with By-pass; By-pass Duct and Stack.3 4 6 10 ppmv (or 100 ppmv carbon monoxide) 10 ppmv (or 100 ppmv carbon monoxide). Destruction and Removal Efficiency For existing and new sources, 99.99% for each principal organic hazardous constituent (POHC) designated. For sources burning hazardous wastes F020, F021, F022, F023, F026, or F027, 99.9999% for each POHC designated. 1All emission levels are corrected to 7% O2, dry basis. 2If there is an alkali by-pass stack associated with the kiln or in-line kiln raw mill, the combined particulate matter emissions from the kiln or in-line kiln raw mill and the alkali by-pass must be less than the particulate matter emissions standard. 3Cement kilns that elect to comply with the carbon monoxide standard must demonstrate compliance with the hydrocarbon standard during the comprehensive performance test. 4Measurement made in the by-pass sampling system of any kiln (e.g., alkali by-pass of a preheater and/or precalciner kiln; midkiln sampling system of a long kiln). 5Applicable only to newly-constructed cement kilns at greenfield sites (see discussion in Part Four, Section VII.D.9). The 50 ppmv standard is a 30-day block average limit. Hydrocarbons are reported as propane. 6Hourly rolling average. Hydrocarbons are reported as propane.
    C. New and Existing Lightweight Aggregate Kilns

    The interim emission standards for new and existing hazardous waste burning lightweight aggregate kilns are identical to the standards promulgated on September 30, 1999, with the following exceptions. The dioxin and furan standard for both new and existing lightweight aggregate kilns is revised to 0.20 ng TEQ/dscm or rapid quench of the combustion gas temperature at the exit of the (last) combustion chamber (or exit of any waste heat recovery system) to 400°F or lower. This interim emission standard for dioxin and furans preserves the intent of the standard promulgated on September 30, 1999. That is, the temperature limitation of 400°F ensures that each lightweight aggregate kiln will be operating, at a minimum, consistent with sound operational practices for controlling dioxin and furan emissions. Accordingly, we are revising §§ 63.1205(a)(1) and (b)(1). We are also revising the mercury standard for new and existing sources of §§ 63.1205(a)(2) and (b)(2) to 120 μg/dscm. Finally, we are revising the hydrochloric acid/chlorine gas standard for new and existing lightweight aggregate kilns to 600 ppmv. See revised §§ 63.1205(a)(6) and (b)(6).

    We are also correcting two typographic errors in § 63.1205(c)(2). In the second sentence of this paragraph, we are replacing the word “tetro-” with the word “tetra-.” We are also inserting the word “to” before the word “calculate” in the third sentence of the paragraph.

    Finally, we are providing the same alternative means for new and existing lightweight aggregate kilns to comply with the interim mercury standard as finalized in today's rule for cement kilns (discussed above). Under this alternative, new and existing lightweight aggregate kilns are allowed to comply with a hazardous waste maximum theoretical emissions concentration of mercury of 120 μg/dscm. See § 63.1206(b)(15).

    We are today repromulgating § 63.1205 with these changes, as summarized below.

    Interim Standards for Existing and New Lightweight Aggregate Kilns Hazardous air pollutant or hazardous air pollutant surrogate Interim emission standard1 Existing sources New sources Dioxin/Furan 0.20 ng TEQ/dscm; or rapid quench of the flue gas at the exit of the kiln to less than 400°F 0.20 ng TEQ/dscm; or rapid quench of the flue gas at the exit of the kiln to less than 400°F. Mercury 120 μg/dscm 120 μg/dscm. Particulate Matter 57 mg/dscm (0.025 gr/dscf) 57 mg/dscm (0.025 gr/dscf). Semivolatile Metals2 250 μg/dscm 43 μg/dscm. Low Volatile Metals3 110 μg/dscm 110 μg/dscm. Hydrochloric Acid/Chlorine Gas 600 ppmv 600 ppmv. Hydrocarbons2 3 20 ppmv (or 100 ppmv carbon monoxide) 20 ppmv (or 100 ppmv carbon monoxide). Destruction and Removal Efficiency For existing and new sources, 99.99% for each principal organic hazardous constituent (POHC) designated. For sources burning hazardous wastes F020, F021, F022, F023, F026, or F027, 99.9999% for each POHC designated. 1All emission levels are corrected to 7% O2, dry basis. 2Hourly rolling average. Hydrocarbons are reported as propane. 3Lightweight aggregate kilns that elect to continuously comply with the carbon monoxide standard must demonstrate compliance with the hydrocarbon standard of 20 ppmv during the comprehensive performance test. II. What Are the Revisions to the Startup, Shutdown, and Malfunction Requirements?

    The September 1999 final rule requires compliance with the emission standards and operating requirements at all times that hazardous waste is in the combustion system (i.e., before the hazardous waste residence time has transpired), including during startup, shutdown, and malfunctions. See § 63.1206(b)(1)(i). This requirement was intended to create an incentive to minimize exceedances when burning hazardous waste during startup, shutdown, and malfunctions. For example, to minimize the frequency and severity of exceedances during malfunctions, you could take various measures including providing for spare parts and redundant systems.

    Industry stakeholders note that requiring compliance with emission standards and operating requirements during startup, shutdown, and malfunctions is inconsistent with the General Provisions of Subpart A, Part 63, that apply to MACT sources.6 Although requirements for particular source categories can be more or less stringent than the General Provisions (which provisions serve as a default), stakeholders state that requiring compliance with emission standards and operating requirements during malfunctions is not appropriate. The purpose of the startup, shutdown, and malfunction plan required under § 63.1206(c)(2), and by reference § 63.6(e)(3), is: (1) To ensure that the combustor, including emission control equipment, is operated and maintained in a manner consistent with good air pollution control practices for minimizing emissions at least to the levels required by the standards; (2) to ensure that owners and operators are prepared to correct malfunctions as soon as practicable; and (3) to minimize the reporting burden associated with excess emissions. Stakeholders conclude that it is inappropriate to penalize a source for exceeding emission standards and operating requirements during malfunctions because some exceedances are unavoidable and they are already required to take the corrective measures prescribed in the startup, shutdown, and malfunction plan to minimize emissions.

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

    In response to stakeholder concerns, today's rule: (1) Exempts you from the Subpart EEE emission standards and operating requirements during startup, shutdown, and malfunctions; (2) continues to subject sources to RCRA requirements during malfunctions, unless they comply with alternative MACT requirements including expanding the startup, shutdown, and malfunction plan to minimize the frequency and severity of malfunctions, and submit the plan to the delegated CAA authority for review and approval; (3) continues to subject sources that burn hazardous waste during startup and shutdown to RCRA requirements for startup and shutdown, unless they comply with alternative MACT requirements, and requires them to include waste feed restrictions and operating conditions and limits in the startup, shutdown, and malfunction plan; (4) requires sources to include in the startup, shutdown, and malfunction plan a requirement to comply with the automatic hazardous waste feed cutoff system during startup, shutdown, and malfunctions; and (5) makes conforming revisions to the emergency safety vent opening requirements.

    A. What Are the Revised Requirements for Malfunctions?

    We agree with stakeholders that the startup, shutdown, and malfunction plan should minimize emissions during malfunctions and are revising the rule to conform with the General Provisions. The revised rule exempts you from the MACT emission standards and operating requirements during startup, shutdown, and malfunctions, even if hazardous waste is in the combustion system during such events. See revised § 63.1206(b)(1)(i).

    We are concerned, however, that even though following the corrective measures in response to malfunctions that you prescribe in the startup, shutdown, and malfunction plan should minimize emissions during these events, the plan may not minimize the frequency and severity7 of exceedances, and thus may not minimize emissions from these events. In other words, the startup, shutdown, and malfunction plan is largely reactive to malfunctions rather than proactive. Thus, we are concerned that our RCRA mandate to ensure protection of human health and the environment may not be achieved without additional controls. In fact, existing RCRA regulations require compliance with emission standards and operating requirements at all times that hazardous waste is in the combustion chamber (see § 264.345(a) for incinerators and § 266.102(e)(1) for cement and lightweight aggregate kilns), and EPA has found that this provision is necessary to protect human health and the environment.8 Thus, any replacement to the existing standards must (at a minimum) provide an equivalent degree of protection to satisfy RCRA requirements. Accordingly, today's rule gives you the option of complying with RCRA requirements or CAA requirements that achieve the equivalent objective of minimizing emissions during malfunctions.

    7The duration and magnitude of excess emissions from a particular type of malfunction can be minimized by proactive as well as reactive measures.

    8Specific hazardous wastes under specific conditions may be exempt from the emission standards and operating requirements, however. See § 264.340(c) for incinerators, and §§ 266.108 and 266.109 for cement and lightweight aggregate kilns.

    We discuss below how these options work for various RCRA permitting situations.

    1. Facilities With Existing RCRA Permits

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

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

    Similarly, the rule requires sources that are being reissued a RCRA permit for the combustion unit (and that have documented compliance with the MACT standards) to comply with options that parallel those discussed above to minimize emissions during malfunctions. See new §§ 270.235(a)(2).

    a. How Does the RCRA Option Work to Minimize Emissions during Malfunctions? Under the RCRA option to minimize emissions during malfunctions, a source with a RCRA permit (and that has documented compliance with the MACT standards) and that is requesting that duplicative RCRA permit conditions be removed from the permit must either: (1) Remain subject to the RCRA permit conditions implementing § 264.345(a) for incinerators and § 266.102(e)(1) for cement and lightweight aggregate kilns during malfunctions10 while hazardous waste is in the combustion chamber; or (2) request that the current RCRA permit conditions be revised to provide alternative means of ensuring that emissions from malfunctions are minimized.11 12See new §§ 270.235(a)(1)(i) and (a)(1)(ii).

    10When using the term “malfunction” with respect to RCRA requirements, we mean the definition of malfunction provided by § 63.2.

    11Please note a change to the design or operation of the combustor that could increase emissions of toxic compounds from burning hazardous waste during malfunctions must be approved through a permit modification under §§ 270.41(a) or 270.42. Under the permit modification, RCRA permit officials will determine whether the permit conditions relevant to controlling emissions from malfunction must be revised.

    12When retaining or revising RCRA permit conditions to control emissions during malfunctions, the delegated RCRA authority will ensure that the permit contains only those conditions relevant to controlling emissions during malfunctions. For example, under the option where RCRA permit conditions are revised, the permit could retain a subset of the RCRA emission standards and operating limits necessary to comply with §§ 264.345(a) and 266.102(e)(1) during malfunctions. But, permit officials could also consider whether the RCRA monitoring, recordkeeping and reporting requirements should be revised to be more consistent with the MACT requirements.

    The rule allows you to revise the current RCRA permit conditions to control emissions during malfunctions because, for example, you may want to request to comply with a subset of your existing permit conditions, or you may want to request to comply with a limit on the number of exceedances during malfunctions when hazardous waste is in the combustion chamber in lieu of complying with all of the RCRA emission standards and associated operating limits during malfunctions.

    Under this option when you request to revise your RCRA permit conditions, the permit writer will consider information including whether your startup, shutdown, and malfunction plan is both proactive and reactive, and the source's design and operating history. Because the permit writer's decision to revise your permit conditions addressing emissions from malfunctions is based, in part, on review of the startup, shutdown, and malfunction plan and the design of the source, the rule also requires that you notify the delegated RCRA authority in writing within 5 days of making a change to the plan or design of the source that may significantly increase emissions of toxic compounds13 from malfunctions. In addition, you must recommend revisions to permit conditions necessary as a result of the change to minimize emissions of toxic compounds from malfunctions. The delegated RCRA authority may revise the permit conditions as a result of these changes to ensure that emissions of toxic compounds are minimized from malfunctions upon permit renewal, or if warranted, by modifying the permit under §§ 270.41(a) or 270.42.

    13Compounds listed in Appendix VIII to Part 261.

    A source that is being reissued a permit for the combustor (and that has documented compliance with the MACT standards) must address RCRA permit conditions to control emissions during malfunctions under any of three options that parallel those discussed above for a permitted source that is requesting that duplicative RCRA permit conditions be removed from the permit. See new § 270.235(a)(2). Under “RCRA Option A,” the delegated RCRA authority will include in the (reissued) permit conditions that ensure compliance with § 264.345(a) for incinerators and § 266.102(e)(1) for cement and lightweight aggregate kilns during malfunctions. See § 270.235(a)(2)(i). Under “RCRA Option B,” the delegated RCRA authority will include in the permit conditions that ensure emissions of toxic compounds are minimized from malfunctions. These permit conditions could be a subset of the permit conditions that would be required to comply with §§ 264.345(a) or 266.102 (e)(1). Because permit officials will consider information including the startup, shutdown, and malfunction plan, you must notify the delegated RCRA authority of changes to the plan that may significantly increase emissions of toxic compounds from malfunctions. The notification procedures and consideration of permit revisions as a result of changes to the plan are identical to those discussed above. See § 270.235(a)(2)(ii).

    b. How Does the CAA Option Work to Minimize Emissions during Malfunctions? Under the CAA option, you must develop a proactive startup, shutdown, and malfunction plan and submit the plan to the delegated CAA authority for review and approval. Because the plan is both proactive and reactive, it is equivalent to the incentive provided by the RCRA options discussed above (i.e., exceedances of RCRA emission standards or associated operating limits while hazardous waste is in the combustion chamber is a violation) to minimize emissions of hazardous air pollutants from malfunctions when hazardous waste is in the combustion chamber.14 Accordingly, for a source with a RCRA permit (and that has documented compliance with the MACT standards) that selects this option to address emissions during malfunctions, the delegated RCRA authority will remove relevant permit conditions addressing malfunctions when the source requests that duplicative RCRA permit conditions be removed from the permit. See § 270.235(a)(1)(iii). Similarly, for a source that is in a permit reissuanceproceeding (and that has documented compliance with the MACT standards) and that selects this option to address emissions during malfunctions, the delegated RCRA authority will omit from the permit conditions addressing malfunctions upon permit reissuance. See § 270.235(a)(2)(iii).

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

    To implement this option, you include in the startup, shutdown, and malfunction plan a description of potential causes of malfunctions and actions you are taking to minimize the frequency and severity of malfunctions. See revised § 63.1206(c)(2)(ii). You may develop a fault tree analysis, for example, to identify malfunctions and develop measures to minimize the frequency and severity of those malfunctions. Examples of measures would be providing spare parts and redundant systems.

    In addition, you must submit the startup, shutdown, and malfunction plan to the delegated CAA authority for review and approval to ensure that it is complete and both proactive and reactive to minimize emissions of hazardous air pollutants from malfunctions. The delegated CAA authority also will ensure that the potential malfunctions identified in the plan are bona fide malfunctions. Malfunctions are events that are a sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless or improper operation (including improper or inadequate characterization of feedstreams) are not malfunctions.15 See definition of malfunction in § 63.2.

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

    The procedures for approving the startup, shutdown, and malfunction plan provide you the opportunity to revise the plan if the delegated CAA authority intends to disapprove the plan. The delegated CAA authority will notify you of approval or intention to deny approval within 90 calendar days after receipt of the approval request, and within 60 calendar days after receipt of any supplemental information that you submit. Before disapproving the plan, the delegated CAA authority will notify you of the intention to disapprove the plan together with the basis for intending to disapprove the plan and notice of opportunity for you to present additional information before final action on disapproval of the plan.

    Further, if you change the plan in a manner that may significantly increase emissions of hazardous air pollutants from malfunctions, you must request approval from the delegated CAA authority within 5 days after making the change, under the same procedures described above for initial approval of the plan.

    2. Interim Status Facilities

    Sources operating under the interim status standards of Part 265, Subpart O, or § 266.103 must comply with either of the following options to minimize emissions during malfunctions after they document compliance with the MACT standards by conducting a comprehensive performance test and submitting a Notification of Compliance: (1) A RCRA option where the source continues to comply with the interim status emission standards and operating requirements relevant to control of emissions from malfunctions and where those standards and requirements apply only during malfunctions; or (2) a CAA option where the owner or operator is exempt from the interim status standards relevant to control of emissions of toxic compounds during malfunctions upon submittal of written notification and documentation to the delegated RCRA authority that the startup, shutdown, and malfunction plan has been approved by the Administrator. See new § 270.235(b)(1). These options parallel the options discussed above and work as discussed above.

    When a source operating under the interim status standards of Part 265, Subpart O, or § 266.103 (and that has documented compliance with the MACT standards) submits a RCRA permit application, the source must comply with one of the three options provided for sources that are being reissued a RCRA permit, as discussed above. See new § 2