# Appendix — Cement Kiln Recycling Coalition v. Browner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1660%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 816 ## Text ~ ' =i sw 931936 JUN - 61% No. ——ogFice OF THE CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1993 CEMENT KILN RECYCLING COALITION, HOLNAM, INC., LONE STAR INDUSTRIES, INC., and SAFETY-KLEEN CoORP., Petitioners, ¥, CAROL M. BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, and U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit APPENDIX TO PETITION FOR WRIT OF CERTIORARI GENE A. LUCERO Counsel of Record for Petitioners LATHAM & WATKINS 633 W. Fifth Street Suite 4000 Los Angeles, CA 90071-2007 (213) 485-1234 WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 re a TABLE OF CONTENTS APPENDIX A Page Opinion of the United States Court of Appeals for the District of Columbia Circuit in Horsehead Re- source Development Co. v. Browner, Nos. 91-1221 Pe a ee Pr ee la APPENDIX B Final Rule: Technical Clarification Amendments and Corrections, 57 Fed. Reg. 38558 (Aug. 25, 1992) Sethi thae tedden Dah der ght SES en eed 50a APPENDIX C Final Rule, 56 Fed. Reg. 7134 (Feb. 21, 1991) ..... 64a APPENDIX D Proposed Rule, Supplemental Proposed Rule, Tech- nical Corrections, and Request for Comments, 55 Fed. Reg. 17862 (April 27, 1990) _.. ROSE APPENDIX E Supplement to Proposed Rule, 54 Fed. Reg. 43718 (Oct. 26, 1989) _............ TOE A pesecuietabiells 144a APPENDIX F Proposed Rule and Request for Comment, 52 Fed. | eee 173a APPENDIX G Order Denying Petitioners’ Petition for Rehear- ing, in Horsehead Resource Development Co. v. Browner, Nos. 91-1221 et al., Order Denying Peti- tioners’ Petition for Rehearing En Banc, in Horse- head Resource Development Co. v. Browner, Nos. I Ce ee) OR Pe ... 197a Note: A list of parties to the proceedings in the court below and a list of Petitioners’ parent companies and subsidiaries is provided in Section II of the Petition for Certiorari. ii TABLE OF CONTENTS—Continued APPENDIX H Regulations Involved: Excerpt from 57 Fed. Reg. 1992); Excerpt of 56 Fed. 38558, 38565 (Aug. 25, Reg. 7134, 7208-12, 7220-29 APPENDIX I Excerpt from Joint Brief of Industry Petitioners and Intervenors in Support, Filed in Horsehead Resource Development Co. v. Browner, Nos. 91- 1221 et al. la APPENDIX A UNITED STATES CCURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 25, 1993 Decided February 22, 1994 No. 91-1221 “COMPLEX” HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Petitioner V. CAROL M. BROWNER, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents RSR CORPORATION, INTERNATIONAL MILL SERVICE, Dow CHEMICAL COMPANY, B.F. GOODRICH COMPANY, AMERICAN IRON AND STEEL INSTITUTE, AMERICAN MINING CONGRESS, CHEMICAL WASTE MANAGEMENT, INC., ASSOCIATION OF BATTERY RECYCLERS, INC., EDISON ELECTRIC INSTITUTE, et al., SOLITE CORPORATION, CHEMICAL MANUFACTURERS ASSOCIATION, AMERICAN PETROLEUM ASSOCIATION, HAZARDOUS WASTE TREATMENT COUNCIL, CEMENT KILN RECYCLING COALITION, BATTERY COUNCIL INTERNATIONAL, AMERICAN COKE AND COAL CHEMICALS INSTITUTE, 2a CITIZENS FOR A SAFE ENVIRONMENT, ef al., MARINE SHALE PROCEssors, INC., STEEL MANUFACTURERS ASSOCIATION SPECIALTY STEEL INDUSTRY OF THE UNITED STATES, TENNESSEE EASTMAN COMPANY, CYPRUS MIAMI MINING CORPORATION, INTERNATIONAL METALS RECLAMATION COMPANY, INC.. Intervenors No. 91-1222 ASSOCIATION OF BATTERY RECYCLERS, INC., - Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Respondent No. 91-1223 RSR CorporatTION, » Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AG Respondent ENCY, No. 91-1230 SOLITE CORPORATION, _ Petitioner CAROL M. BROowNER, ADMINISTRATOR, UNITED STATES ENVIRONMEN rAL PROTECTION AGEN AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents CY, , . 3 tes Pee 3a No. 91-1234 AKJ INDusTRIEsS, INC., y Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 91-1237 MARINE SHALE PROCESSORS, INC., ¥. Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 91-1238 TENNESSEE EASTMAN COMPANY, . Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 93-1240 CITIZENS For A SAFE ENVIRONMENT, et al., . Petitioners UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Respondent AKJ INDUSTRIES, INC., Intervenor ta No. 91-1241 CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 91-1244 AMERICAN IRON AND STEEL INSTITUTE, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent AMERICAN COKE AND COAL CHEMICALS INSTITUTE, Intervenor No. 91-1245 CEMENT KILN RECYCLING COALITION, Petitioner Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 91-1572 CEMENT KILN RECYCLING COALITION, Petitioner Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent Sa ASSOCIATION OF BATTERY RECYCLERS, INC., EDISON ELECTRIC INSTITUTE, et al., HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Dow CHEMICAL COMPANY, INTERNATIONAL MILL SERVICE, INC., AMERICAN MINING CONGRESS, AMERICAN IRON AND STEEL INSTITUTE, Intervenors No. 91-1575 SOLITE CORPORATION, ) Petitioner CAROL M. BROWNER, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents ASSOCIATION OF BATTERY RECYCLERS, INC., EDISON ELECTRIC INSTITUTE, et al., AMERICAN MINING CONGRESS, Dow CHEMICAL COMPANY, INTERNATIONAL MILL SERVICE, INC., HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., AMERICAN IRON AND STEEL INSTITUTE, Intervenors No. 91-1576 TENNESSEE EASTMAN COMPANY, Petitioner Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent 6a ASSOCIATION OF BATTERY RECYCLERS, INC., MORSEHEAD RESOURCE DEVELOPMENT COMPANY, INc., Dow CHEMICAL COMPANY, INTERNATIONAL MILL SERVICE, INC., AMERICAN MINING CONGRESS, AMERICAN IRON AND STEEL INSTITUTE, EDISON ELECTRIC INSTITUTE, ef al., Intervenors No. 92-1392 CONTINENTAL CEMENT COMPANY, LONE STAR INDUSTRIES. INC., HOLNAM INC.,, SAFETY-KLEEN CORPORATION, Petitioners Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent No. 92-1459 CEMENT KILN RECYCLING COALITION, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent EDISON ELECTRIC INSTITUTE, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, AMERICAN PUBLIC PowER ASSOCIATION, UTILITY SOLID WASTE ACTIVITIES GROUP, AMERICAN MINING CONGRESS, Intervenors Ta No. 92-1601 LAFARGE CORPORATION, ¥ Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent EDISON ELECTRIC INSTITUTE, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, AMERICAN PUBLIC Power ASSOCIATION, UTILITY SoLIp WAsTE ACTIVITIES GROUP, Intervenors No. 92-1610 GIANT Group, LTD., 7 Petitioner UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent EDISON ELECTRIC INSTITUTE, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, AMERICAN PUBLIC PowER ASSOCIATION, UTILITY SOLID WASTE ACTIVITIES GROUP, Intervenors Petitions for Review of an Order of the Environmental Protection Agency Before: WaLtp, Epwarps and BUCKLEY, Circuit Judges. Opinion for the Court filed Per Curiam. Per Curiam: This case involves challenges by indus- ty and environmentalist petitioners to an Environmental Protection Agency (“EPA”) rule interpreting section 8a 3004(q) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6924(q) (1988), which directs the agency to regulate facilities burning hazardous waste as fuel. The rule, entitled “Burning of Hazardous Waste in Boilers and Industrial Furnaces” (“BIF Rule”), 56 Fed. Reg. 7,134 (1991) (codified as amended by subse- quent corrections and technical amendments at 40 C.F.R. Parts 260, 261, 264, 265, 266, 270, 271 (1992)), is principally designed to establish air emissions require- ments for facilities burning hazardous waste as fuel. The BIF Rule also integrates the mandates of section 3004(q) and the Bevill Amendment, the latter of which is a RCRA provision that excludes certain types of waste from RCRA Subtitle C’s hazardous waste management regime until the EPA completes several studies and submits their results to Congress. See 42 U.S.C. § 6921(b)(3)(a) (1988). Petitioners attack the BIF Rule on three grounds.’ First, both groups of petitioners contend that the BIF Rule fails to adhere to what they regard as Congress’ clear expres- sion of its intent in the Bevill Amendment. There are two types of “Beville wastes” at issue in this case: cement kiln dust (“ckd”); and combustion residues produced when BIF’s burn fuel consisting primarily of coal, oil, and other fossil fuels. Although the Bevill Amendment states that ckd and fossil fuel combustion residues are exempt from Subtitle C pending completion of the required studies, the BIF Rule provides that these Bevill wastes can under some circumstances be regulated as Subtitle C hazardous wastes when they are produced by BIF’s burning fuel which contains hazardous waste. Industry Petitioners contend that the Bevill Amendment exempts ckd and fos- sil fuel combustion residues from Subtitle C regardless of whether they are the product of hazardous waste fuels. Environmentalist petitioners, Citizens for a Safe Environ- 1 The two groups of petitioners originally offered twelve separate challenges to the BIF Rule; however, all but three of these issues were resolved by settlements between the parties on the eve of oral argument. We address only the three remaining challenges. 9a ment, et al. (“CASE petitioners”), make the opposite ar- gument, contending that Bevill wastes produced by BIF’s burning any quantum of hazardous waste are automati- cally subject to Subtitle C. We reject both of these chal- lenges and uphold the BIF Rule as a permissible interpre- tation of RCRA § 3004(q) and the Bevill Amendment. Second, we uphold the BIF Rule insofar as it regulates air emissions from BIF’s burning mixtures of hazardous waste and non-waste fuel. Industry petitioners contend that the rule is invalid because non-waste fuels are outside the EPA’s jurisdiction under RCRA. We hold, however, that RCRA § 3004(q) gives the EPA the authority to regulate facilities which burn hazardous waste, not merely the hazardous waste component of the fuel they burn. The EPA contends that it is not technologically feasible to distinguish air emissions generated solely by the haz- ardous waste component of mixed fuels. Because BIF’s that burn hazardous waste are “treating” that waste as that term is defined in RCRA, we can find no error in the EPA’s position that air emissions from the co-process- ing mixed hazardous waste and non-waste fuels have a sufficiently close nexus to waste treatment to justify the regulation at issue. In addition, we hold that the agency’s failure explicitly to respond to the specific alternatives proposed by Industry petitioners was not arbitrary and capricious because the EPA’s general discussion of its de- cision to regulate non-waste fuels provided a sufficient response to Industry petitioners’ proposals. Finally, Industry petitioners challenge the EPA’s pur- ported regulation of products of incomplete combustion (“PICs”) produced when BIFs burn hazardous waste fuel. We remand “Tier III” of the PIC provisions of the BIF Rule on the grounds that the regulation was promul- gated without adequate notice and comment, and because the disputed rule lacks an adequate basis in the rulemak- ing record; however, we uphold the Tier I and Tier II standards. I 10a 1. BACKGROUND Subtitle C of RCRA establishes a comprehensive “cradle-to-grave” regulatory program for the treatment, storage, and disposal of hazardous waste. United Tech- nologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir. 1987). For RCRA purposes, burning hazardous waste constitutes “treatment” of it,” thus giving the EPA the authority to regulate this activity. The EPA promulgated the BIF Rule pursuant to the mandate of RCRA section 3004(q), which directs the agency to establish standards which will “protect human health and the environment” governing facilities that burn fuel containing hazardous waste. 42 U.S.C. § 6924(q) (1988).° Hazardous waste is burned for three purposes: to de- stroy the waste (incineration), to serve as fuel (energy 2See 42 U.S.C. §6903(34) (1988) (“treatment” means “any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or com- position of any hazardous waste... .”); 40 C.F.R. § 260.10 (1922) (“treatment” includes “any method, technique, or process ... de- signed to... recover energy or material resources from [hazard- ous] waste... .”); see also Shell Oil Co. v. EPA, 950 F.2d 741, 752-56 (D.C. Cir. 1991) (upholding the EPA’s decision to incor- porate resource recovery within the regulatory definition of “treat- ment”). 3 The relevant portion of RCRA § 3004(q) reads: (q) Hazardous waste used as fuel (1) Not later than two years after November 8, 1984, and after notice and opportunity for public hearing, the Adminis- trator shall promulgate regulations establishing such— (A) * # & (B) standards applicable to the owners of facilities which burn, for purposes of energy recovery, any fuel [produced from or mixed with hazardous waste or] which otherwise contains any hazardous waste identified or listed under section 6921 of this title. ... * &£ & & as may be necessary to protect human health and the environment. 42 U.S.C. § 6924(q) (1988). lla recovery), and to recover usable materials such as metals ‘materials recovery). Hazardous waste often has a great ueal of heat value when used as a fuel; and this use also has the benefit of destroying or at least reducing the vol- ume of the waste, thereby reducing reliance on landfilling. In its early attempts to implement Subtitle C, the EPA was particularly concerned that its regulations not dis- courage beneficial uses of hazardous wastes, such as en- ergy recovery and recycling. See 45 Fed. Reg. 33,804 at 33.092-94 & 33,120 (1980). For this reason, in 1981, the EPA deferred regulating air emissions from BIF’s burning hazardous waste as fuel or for materials recov- ery, but did adopt rules controlling emissions from haz- ardous waste incinerators, which burn waste primarily in order to destroy it. 46 Fed. Reg. 7,666. 7,678 (1981). Exempting facilities that burned hazardous waste for energy recovery from Subtitle C’s requirements created a regulatory “loophole” by means of which over half of the hazardous waste generated in the United States came to be burned in BIF’s not subject to RCRA. H.R. Rep. No. 198, 98th Cong., Ist Sess., pt. 1, at 39 (1983). Con- gress closed this loophole by enacting RCRA section 3004(q) as part of the Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, § 204, 98 Stat. 3221. Section 3004(q) set a deadline of November 8 1986 for the EPA to promulgate regulations governing the burning of hazardous waste for energy recovery. In 1985, in response to section 3004(q), the EPA im- posed its first controls on the marketing and burning of hazardous waste fuels. 50 Fed. Reg. 665 (1985); 50 Fed. Reg. 49,164 (1985). These regulations provide that hazardous waste or fuels containing hazardous waste are subject to transportation and storage controls under Sub- title C prior to being burned as fuel or being blended or processed for use as fuel. In 1987, again pursuant to section 3004(q), the EPA published its proposed BIF Rule for public comment. 52 12a Fed. Reg. 16,982-17,050 (1987). The EPA issued a Supplemental rulemaking proposal in 1989. 54 Fed. Reg. 43.718-63 (1989). The final BIF Rule, which we review in the instant case, was published in the Federal Register in 1991. 56 Fed. Reg. 7,134-240 (1991). The EPA sub- sequently promulgated a series of technical amendments and clarifications to the BIF Rule. See Corrections and Technical Amendments, 56 Fed. Reg. 32,688-852 (1991); Technical Amendments, 56 Fed. Reg. 42,504-17 (1991): echnical Clarification Amendments and Corrections, 57 Fed. Reg. 38 558-66 (1992), II. Discussion A. Standard of Review The standard of review in this case is the familiar two- part framework of Chevron U.S.A., Inc. v. Natural Re- sources Defense Council, 467 U.S. 837 (1984). First. the court asks whether Congress “has directly spoken to the precise question at issue.” Id. at 842. If so, then the intent of Congress is controlling. If, however, the mean- ing of the statute is ambiguous, then we will uphold the agency's interpretation so long as it is “based on a per- missible construction of the Statute.” Jd. As this court explained in Natural Resources Defense Council v. Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993): [I]t is only legislative intent to delegate such au- thority that entitles an agency to advance its own statutory construction for review under the deferen- tial second prong of Chevron. See Chevron, 467 U.S. at 843-44. “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority. . . . Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a Case, a court may not substitute its own construction of a Statutory provi- sion for a reasonable interpretation made by the ad- ministrator of an agency.” /d. 13a CASE petitioners and Industry petitioners attack the BIF Rule’s interpretation of the Bevill Amendment from opposite directions, both relying on Chevron step one to argue that Congress’ clearly expressed intent requires the outcome they advocate. CASE petitioners argue that the EPA may not exempt any co-processed Bevill wastes from Subtitle C because Congress did not intend for the Bevill Amendment to cover combustion residues or ckd pro- duced by fuel that contains hazardous waste. Industry petitioners argue that when Congress enacted the Bevill Amendment it was aware that Bevill devices and BIF’s burned hazardous waste, and that the amendment was intended to exempt ckd and residues without regard to the type of fuel that produced them. The EPA contends, and we agree, that the language of the Bevill Amendment does not unambiguously address the issue of hazardous waste fuels burned in Bevill devices, and that its regula- tion is a permissible interpretation of the statute under Chevron step two. B. Interpretation of the Bevill Amendment Under the BIF Rule 1. The Bevill Amendment The Bevill Amendment * to RCRA limits the authority of the EPA to regulate certain enumerated types of solid * 42 U.S.C. § 6921 (b) (3) (a) (1988) : [E]ach waste listed below shall, except as provided in sub- paragraph (B) of this paragraph, be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subchapter until at least six months after the date of submission of the applicable study required to be conducted under subsection (f), (n), (0), or (p) of section 6982 of this title and after promulgation of regulations in accordance with subparagraph (C) of this paragraph: (i) Fly ash waste, bottom ash waste. slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels. f Continued | l4a wastes until it completes studies concerning them and sub- mits the results of those studies to Congress. The EPA has yet to complete the relevant studies, although the stat- utory deadlines expired in 1982 and 1983. See 42 U.S.C. § 6982(n), (0) (1988). Two classes of Bevill wastes are relevant to the dispute before us: cement kiln dust or “ckd.” which is the particulate matter emitted in the ex- haust gases of cement kilns that is collected by emission control devices such as fabric filters or electrostatic pre- cipitators; and combustion residues, such as ash and par- ticulates, which are generated primarily from the combus- tion of coal or other fossil fuels. This court has described the Origins of the Bevill Amendment at length in three previous decisions concern- ing the provision for mining wastes, 42 U.S.C. § 6924 (b) (3) (a) (ii) (1988). See Solite Corp. v. EPA, 952 F.2d 473, 477-82 (D.C. Cir. 1991); Environmental De- fense Fund v. EPA, 852 F.2d 1316, 1318-21 (D.C. Cir. 1988), cert. denied, 489 U.S. 1011 (1989) (“EDF IT’); Environmental Defense Fund vy. EPA, 852 F.2d 1309, 1310-12 (D.C. Cir. 1988), cert. denied, 489 US. 1011 (1989) (“EDF I”). Here we need only summarize our earlier holdings as to Congress’ intent in enacting the Amendment. In 1978. in its first proposal for regulation of hazard- ous waste under Subtitle C, the EPA proposed to create a category of “special wastes.” among which were ckd and combustion residues produced by utilities, for which spe- cial, less stringent standards might be appropriate. See 43 Fed. Reg. 58,946, 58.992 (1978). The EPA had not yet fully studied these special wastes, but the agency be- lieved they potentially presented unique problems because * [Continued] (ii) Solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore. iii) Cexent kiln dust waste. 15a they were generated in very large volumes but posed rela- tively low hazards to human health. Because of the large volumes of these wastes, the EPA was concerned that it might be impractical to dispose of them in facilities that fully complied with Subtitle C of RCRA. However, the EPA eventually decided to abandon the concept of “spe- cial wastes.” The agency pointed out that the definition of hazardous waste in its final regulations was less strin- gent than the one it had initially proposed (meaning fewer special wastes would qualify as hazardous wastes), and that the final waste management standards were more flexible than those it had originally proposed. Thus, it was felt that there was no need for a category of “special wastes.” See 45 Fed. Reg. 33,084, 33,174-75 (1980): EDF II, 852 F.2d at 1319; EDF I, 852 F.2d at 1311. One month before the 1980 Subtitle C regulations were to take effect, Congress enacted the Bevill Amendment as part of the Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat. 2334, 2337 $7. In response, the EPA amended its hazardous waste rezula- tions in November 1980 to incorporate the Bevill Amend- ment’s exemption of ckd, mining wastes and fossil fuel combustion residues from the requirements of Subtitle C. 45 Fed. Reg. 76,618 (1980). In EDF /1, this court held that “it is clear that Congress intended the Bevill exclusion to encapsulate the ‘special waste’ concept articulated by the EPA in 1978.” EDF II, 852 F.2d at 1329. That case held that the EPA was not permitted simply to exempt from Subtitle C all mining wastes potentially within the scope of the Bevill Amend- ment, but rather was required to comply with Congress’ clearly expressed intent that the agency exempt only those mining wastes that would have fallen within the category of “special wastes.” EDF I] thus required the EPA to develop criteria to determine whether potentially exempt mining wastes were “high volume, low hazard” wastes. such as the EPA had proposed to include in the “special waste” category in 1978. Jd. at 1331. Accordingly, this l6a court also held that the EPA could not continue to grant a Bevill exemption from Subtitle C to six types of smelter wastes that the agency had found to be low volume and high hazard, because such wastes were outside the scope of the Bevill Amendment. /d. at 1329-30, 1329). This court went on to hold, however, that Con- gress had not directly addressed “the appropriate delinea- tion of the ‘special waste’ concept, and the attendant ‘high volume’ and ‘low hazard’ Criteria... .” Jd. at 482 (em- phasis added). Our review of the EPA’s volume and hazard criteria for mining waste thus was limited to the (citing Chevron, 467 U.S. at 843). 2. The Integration of the Bevill A mendment and Section 3004(q) Mandates Under the BIF Rule The EPA has adopted a two-part definition of “hazard- Ous wastes” that are Subject to Subtitle C. “Characteristic hazardous wastes” are substances exhibiting one or more of four hazardous characteristics: ignitability, corrosivity, mixed with other wastes—a provision known as the “mix- ture rule.” 40 CFR. § 261.3(a) (2) (iv) (1992). A listed waste also remains a hazardous waste for Subtitie C purposes even after it is “treated” in some fashion—the so-called “derived-from” rule. 40 C.F.R. § 261.3(c) (2) MOREE 6 17a (1), (d)(2) (1992). As noted above, for RCRA pur- poses, the burning of a hazardous waste for any purpose, whether for fuel, materials recovery or destruction, con- stitutes “treatment” 42 U.S.C. § 6903(34) (1988).° All parties to this litigation agree that ckd and combus- tion residues from Bevill devices burning hazardous waste fuel would be subject to Subtitle C by operation of the derived-from rule absent the Bevill Amendment; this is so because they would contain residues from the burning of hazardous waste. The question before this court is the extent to which the Bevill Amendment does or does not exempt ckd and combustion residues produced by burning fossil fuels mixed with hazardous waste from the operation of the derived-from rule. The BIF Rule integrates the mandates of the Bevill Amendment and section 3004(q) by providing both quan- titative and qualitative requirements which Bevill wastes must satisfy in order to retain their exemption from Sub- title C. 40 C.F.R. § 266.112 (1992). The quantitative aspect of the rule requires that in order for cd to retain its Bevill exemption, the kiln producing it mus: process at least fifty percent by weight of ordinary, non-hazardous waste raw matcrials. Jd. § 266.112(a)(3). The EPA noted in its statement accompanying the final BIF Rule that although the Bevill Amendment refers to devices burning “primarily” fossil fucls, it does not explicitly so limit the Subtitle C exclusion for ckd. The agency deter- mined, however, that. to retain its Bevill exclusion, a cement kiln must burn chiefly non-hazardous waste mate- 5 In 1991, in Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991), this court vacated the mixture and derived-from rules for failure to give adequate opportunity for notice and comment. The Shell Oil decision suggested, however, that the EPA repromulgate the rules on an interim basis under the APA’s good cause exemption, id. at 752, and the agency did so on March 3, 1992. 47 Fed. Reg. 7,628 (1992). The interim rule has been challenged in Mobil Oil Corp. ». EPA, No. 92-1211, currently scheduled for oral argument before this court on March 8, 1994. 18a rials. See 56 Fed. Reg. 7,134, 7,197-98 (1991). This provision apparently is intended to prevent cement kilns frem effectively becoming hazardous waste incinerators by burning far more waste than actually necessary to fuel cement making. The EPA interpreted the Bevill Amend- ment’s exclusion for residues “primarily from the combus- tion of coal or other fossil fuels” as exempting only residues from BIF’s burning at least fifty percent coal.* Residues from BIFs burning oil or gas mixed with any quantity of hazardous waste are not covered by the Bevill Amendment because oil and gas generally produce very little combustion residue, sc any residue from the co- processing of these fucls with hazardous waste would necessarily be “significantly affected” by the hazardous waste. /d. at 7,198 n.87. The BIF Rule’s qualitative requirements provide that Bevill wastes which meet the foregoing quantative criteria remain exempt from Subtitle C so long as they have not been “significantly affected” by the burning of hazardous waste. The EPA has established a test to be performed on a case-by-case basis at each facility to determine whether co-processed Bevill wastes have been “significantly affected.” See 56 Fed. Reg. 7,196-99 (1991). The agency considered adopting uniform baseline levels rather than requiring site-specific testing, but determined that it did not have sufficient data to do so. See id. at 7,198: 54 Fed. Reg. 43,718 at 43,734 & 43,735-36 (1989). The “significantly affected” test consists of two parts. First, a Bevill device operator may opt to determine whether concentration of specified toxic compounds in co-processed residue are significantly higher than in resi- dues produced from burning solely non-hazardous-waste fuels. 40 C.F.R § 266.112(b)(1) (1992). If the co- processed Bevill wastes are sufficiently similar to ordinary Bevill wastes, the wastes remain exempt from Subtitle C. * The percentage of coal burned in a BIF may be measured on a “total heat input or mass input basis, whichever results in the greater mass feed rate of coal.” 40 C.F.R. § 266.112(a) (1) (1992). ee 19a Second, the operator may determine whether toxic com- pounds are present in the waste in levels that exceed so- called “health based limits”—levels that “could pose a Significant risk to human health.” 56 Fed. Reg. 7,134 at 7,198 & 7,199 (1992): see 40 C.F.R. § 266.112(b)(2) (1992). The first part of the qualitative test need not be conducted if the residue does not exceed the health-based limits. 40 C.F.R. § 266.112(b) (1992). If, however, the residue exceeds the health-based limits, it is exempted from Subtitle C only if it is sufficiently similar to normal resi- due to pass the first test. eee oe I ; The EPA noted in its statement accompanying the final BIF Rule that it believed that it had struck a “reasonable } balance between the terms of the Bevill amendment and other provisions and regulations relating to hazardous waste management.” 56 Fed. Reg. 7,134, 7,197 (1991). The agency observed that to disqualify co-processed resi- dues from the Bevill exclusion in cases in which the resi- due was not “significantly affected” would exalt form over substance by barring from Bevill eligibility a residue that was not discernably affected by burning hazardous waste. Given that such mate- rial could be exactly the high volume/low hazard resi- due that Congress told the Agency to study before regulating, EPA does not agree with an interpretation that automatically forecloses it from Bevill status. In addition, use of Bevill devices provides needed treatment capacity for a number of hazardous wastes, and the Agency would be reluctant to adopt an inter- pretation that discouraged safe processing of hazard- ous waste... .. Id. (footnote omitted). The EPA also pointed out that air emissions from Bevill devices, as opposed to combus- tion residues, would be subject to the requirements of the BIF Rule in all cases; and that the facilities at which Bevill devices were located would be subject to Subtitle C’s corrective action requirements in the event hazardous 20a constituents were released into the environment in ways or quantities not contemplated by the facilities’ RCRA permits. Id.; see also American Iron & Steel Inst. v. EPA, 886 F.2d 390, 393-96 (D.C. Cir. 1989) (holding Bevill wastes are not exempt from RCRA corrective action re- quirements because those requirements apply to hazardous constituents, not merely to hazardous wastes), cert. de- nied, 497 U.S. 1003 (1990). 3. Industry Petitioners’ Challenge to the BIF Rule’s Interpretation of the Bevill Amendment Industry petitioners contend that Congress intended that Bevill wastes be exempt from Subtitle C without regard to the materials burned by the device that produced them.’ We hold that such an interpretation of the Bevill Amend- ment would be both irrational and contrary to the law of this circuit as defined by Solite and EDF II, and accord- ingly we deny the petitions for review on this point. Industry petitioners make much of the fact that RCRA section 3004(q) specifically provides that: “Nothing in this subsection shall be construed to affect or impair the provisions of [the Bevill Amendment].” 42 U.S.C. § 6924 (q)(1)(C) (1988). According to Industry petitioners, this clause evinces a congressional intent to exclude from Subtitle C all Bevill wastes that are the product of burn- ing hazardous waste fuels. This argument begs the ques- tion, however. We agree that section 3004(q) plainly does not overrule or modify the Bevill Amendment; the question before us is how to integrate the two provisions. We are concerned in this case not with whether the Bevill Amendment retains its vitality, but with what it means. * The attack on the regulation of ckd was submitted by Industry petitioners Cement Kiln Recycling Coalition; Giant Group, Ltd.; Lafarge Corporation and Solite Corporation. Industry petitioners’ challenge to the regulation of combustion residues was submitted on behalf of Chemical Manufacturers Association and Tennessee Eastman Company. 2la As we noted above, this court held in EDF II that the EPA was required to limit Bevill wastes excluded from Subtitle C to those wastes that are high volume/low haz- ard. In Solite we held that the EPA had discretion to define the “high volume” and “low hazard” criteria so long as its definitions were permissible interpretations of the Bevill Amendment. In the instant case a “high volume” criterion is not at issue. However, the two-part “signifi- cantly affected” test under the BIF Rule is plainly a means to limit the Bevill exclusion to wastes that are in fact low hazard; we therefore review it under Chevron Step two. Neither Industry petitioners nor CASE petitioners chal- lenge the specific parameters the EPA has chosen for “health-based limits,” or the test the agency prescribes to determine whether Bevill wastes from devices burning haz- ardous waste fuel are significantly different from those produced by burning ordinary fuel. Thus, we consider the permissibility of the “significantly affected” test in the absence of any specific challenges to the test itself. Both groups of petitioners argue only that the EPA may not impose such a test at all, not that the test the EPA has promulgated is flawed in any way. Although the Solite and EDF II decisions involved only mining wastes under the Bevill Amendment, the analyses in those opinions are wholly applicable to the instant case as well. Industry petitioners suggest that our earlier deci- sions permitted the EPA to impose hazard and volume cri- teria only because such guidelines were necessary to im- plement the mining waste exemption under the Bevill Amendment, which did not specifically enumerate the wastes it covered, but simply referred to “{slolid waste from the extraction, beneficiation, and processing of ores and minerals.” 42 U.S.C. § 6921(b)(3)(A) (ii) (1988). However, we find nothing in our prior decisions to suggest that Congress did not intend to apply the “special waste” framework to all of the wastes listed in the Bevill Amend- ment—indeed, ckd and combustion residues generated by utilities were among the wastes the EPA suggested for the 22a special waste category in its 1978 proposal. See EDF II, 852 F.2d at 1319. Further, it simply makes no sense to permit Bevill de- vices to become inadequately regulated dumping grounds for hazardous materials. According to a source cited by CASE petitioners, cement kilns alone now burn more than twice as much waste as RCRA-permitted incinera- tors, a figure that Industry petitioners do not attempt to refute. See Brief for Petitioners Citizens for a Safe Envi- ronment, et al. at 18-19. Industry petitioners would have us hold that Congress intended that cement kilns and other Bevill devices may burn anything—even spent nu- clear fuel, infectious medical waste, or discarded chemical weapons—without the resulting residues being subject to the hazardous waste regulation regime Congress created by enacting Subtitle C. This we are unwilling to do. The EPA’s interpretation of the Bevill Amendment is obviously a reasonable one. Under the BIF Rule, Bevill wastes retain their exemption from Subtitle C so long as they are not “significantly affected” by the hazardous waste fuel burned to produce them, or do not present a hazard to human health and the environment. The BIF Rule is designed to distinguish combustion residues and ckd from materials that are, in effect, very different sub- stances. Quite simply, if ckd from co-processing hazard- ous waste fuels is “significantly affected,” it is no longer just ckd, but ckd plus the products of combustion of haz- ardous waste. We therefore hold that the BIF Rule is a permissible interpretation of the Bevill Amendment’s low hazard criterion. 4. CASE Petitioners’ Challenge to the BIF Rule’s Interpretation of the Bevill Amendment a. CASE Petitioners’ Standing Industry intervenors contend that CASE petitioners lack standing to challenge the BIF Rule’s interpretation of the 23a Bevill Amendment.’ We need not linger long on this issue as we hold that CASE petitioners plainly do have standing. To support their standing argument, Industry inter- venors attempt to rely on this court’s decisions in Hazard- ous Waste Treatment Council v. EPA, 861 F.2d 270 (D.C. Cir. 1988) (“HWTC I’), and its companion case, Hazardous Waste Treatment Council v. EPA, 861 F.2d 277 (D.C. Cir. 1988), cert. denied, 490 US. 1106 (1989) (“HWTC II’). In HWTC II this court held that the Hazardous Waste Treatment Council (“HWTC’”), a trade association of firms engaged in the treatment of haz- ardous waste and one of the CASE petitioners in this case, lacked standing to challenge the EPA’s then-existing section 3004(q) regulations governing the burning of haz- ardous waste as fuel. HWTC contended in that case that it had standing because the alleged laxity of the EPA’s regulatory scheme would injure its members by diminish- ing the market for their waste management services. Among the injuries HWTC alleged was that because the EPA at that time exempted all Bevill residues from Sub- title C, HWTC’s members who operated hazardous waste incinerators were at a competitive disadvantage when sell- ing waste incineration services because they were forced to bear the costs of disposing of their combustion residues in compliance with Subtitle C. See HWTC II, 861 F.2d at 281. We found these allegations inadequate to estab- lish standing. See id. at 280-85. In the instant case, Industry intervenors contend that HWTC attempts to redress the same injury found inade- quate for standing in HWTC IJ. This argument is to no avail, however. Even assuming arguendo that Industry 8 This standing challenge was offered by Industry intervenors American Mining Congress, Cyprus Miami Mining Corporation, Edison Electric Institute, Solite Corporation and Tennessee East- man Company. The EPA did not contest CASE petitioners’ standing. 24a intervenors are correct as to HWTC, the environmental organizations who are also among the CASE petitioners clearly do have standing. As was the case in HWTC I, because we find that the environmental organizations among the CASE petitioners have standing, the question of HWTC’s standing raises a moot issue. See HWTC I, 861 F.2d at 273 (citing Bowen v. Kendrick, 487 U.S. 589, 620 n.15 (1988) ). Industry intervenors argue that the environmental or- ganizations among the CASE petitioners lack standing because the EPA’s health-based limits are designed to ensure protection of human health and the environment, and so petitioners cannot allege an actual injury. We disagree. The Supreme Court recently held that “the irre- ducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). First, a petitioner must have suf- fered an “injury in fact” that is both concrete and par- ticularized, and actual or imminent. Second, the injury must be fairly traceable to the challenged action of the defendant. Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favor- able decision.” Jd. (internal quotation omitted). CASE petitioners have alleged, and Industry intervenors do not dispute, that some of their members live in communities near Bevill devices of various types. In HWTC I we up- held the standing of an environmental group which as- serted that the EPA’s failure to regulate used oil as a Subtitle C hazardous waste constituted an injury-in-fact to its members living in communities potentially subject to incidents resulting from mismanagement of used oil. 861 F.2d at 273. Further, in that case this court also held that in the event the environmental group won its lawsuit, remanding the used oil regulations to the EPA for reconsideration of its subtitle C listing decision would be “likely to redress the injuries alleged.” Id. The instant case presents a standing inquiry identical in all relevant respects to the allegations we held adequate wert 25a for standing in HWTC I. The environmental groups among the CASE petitioners allege that the BIF Rule is an unlawful interpretation of the Bevill Amendment which exposes their members to greater risks than they would face if all Bevill wastes were regulated under Subtitle C. If the EPA were required to regulate Bevill wastes as Sub- title C hazardous wastes, those wastes would be subject to a more stringent regulatory regime than the current BIF Rule imposes, providing greater protection to peti- tioners’ members. Because the environmental organizations among the CASE petitioners have standing, we hold that the CASE petitioners as a group also have standing to challenge the BIF Rule. b. CASE Petitioners’ Interpretation of the Bevill Amendment CASE petitioners assert that the Bevill Amendment ex- empts from Subtitle C only Bevill wastes produced by facilities burning purely non-hazardous-waste fuel. As we discussed at length above, Congress intended the Bevill Amendment to enact the high volume/low hazard “special waste” concept. The plain language of RCRA section 3004(q) makes clear that Congress knew when it added that section that Bevill devices burned hazardous waste, and suggests that it expected they might be subject to a different regulatory regime than that imposed on other BIFs. Given these facts, we cannot hold that the legisla- ture clearly intended automatically to remove the Bevi exemption for all Bevill wastes generated from co- processing hazardous wastes. RCRA section 3004(q)(2)(C)(i) provides that “no fuel which contains any hazardous waste may be burned in any cement kiln which is located within” a city with a population of over five hundred thousand, unless the kiln complies with RCRA’s incinerator regulations. 42 U.S.C. § 6924(q)(2)(C)(i) (1988). This provision is incon- 26a trovertible evidence that Congress knew cement kilns and other Bevill devices burned hazardous waste. Further, the fact that Congress singled out cement kilns in large cities, but did not address other types of boilers or industrial furnaces that burn hazardous waste, Suggests that the legislature believed that cement kilns might be subject to a different regulatory regime than other BIFs, as there would be no reason to assume that if cement kilns were subject to the BIF Rule they would present hazards dis- tinguishable from other devices burning similarly hazard- Ous wastes. All the time Congress enacted section 3004(q) it was aware that Bevill devices burned hazardous waste. In that section it specifically reaffirmed the Bevill Amendnient, while at the same time ordering the EPA to regulate facili- ties burning hazardous waste as fuel. Nevertheless, no- where in section 3004(q), or anywhere else in RCRA, does Congress indicate how it wished the EPA to integrate the potentially conflicting provisions at issue in this case. Under these circumstances, we cannot hold that the legisla- ture has “directly addressed the precise question at issue.” Chevron, 467 U.S. at 843. The BIF Rule provides for the continued vitality of the Bevill Amendment, as section 3004(q) requires, by ensuring that high volume/low haz- ard criteria remain the standard for exemption of Bevill wastes from Subtitle C. At the same time, the rule recog- nizes that Bevill wastes that are not low hazard do come within section 3004(q)’s broad mandate that the EPA regulate the burning of hazardous waste. This result is a permissible interpretation of both section 3004(q) and the Bevill Amendment. c. CASE Petitioners’ Challenge to the EPA’s Exemption of Bevill Wastes from RCRA’s Land Disposal Restrictions CASE petitioners also challenge the EPA’s determina- tion that Bevill wastes that pass the BIF Rule’s “signifi- Re ta SAE I Sh, 27a cantly affected” test are not subject to RCRA’s land disposal restrictions (“LDR”). The LDR prohibit the landfilling of Subtitle C hazardous wastes unless the wastes are treated according to specified standards, or disposed of in a land disposal facility that meets RCRA’s “no migration” standard. See generally Chemical Waste Man- agement, Inc. v. EPA, 976 F.2d 2, 8-9 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993). Because the residues from the incineration of hazardous wastes remain hazard- ous waste by virtue of the derived-from rule, they ordi- narily must comply with the LDR. However, because the BIF Rule provides that Bevill wastes that are not “signifi- cantly affected” are exempt from Subtitle C, these wastes are not subject to the LDR by virtue of a 1986 EPA regu- lation which provides that wastes that are not Subtitle C hazardous wastes need not comply with RCRA’s land disposal restrictions. See 40 C.F.R. § 268.1(b) (1992) (non-hazardous wastes not subject to LDR); id. § 261.4 (b)(4), (7), (8) (Bevill wastes not hazardous waste unless “significantly affected”). CASE petitioners argue that the LDR attach irrevoca- bly to hazardous wastes at the moment they are generated. For example, waste solvents that are hazardous wastes ordinarily must be disposed of in keeping with the LDR. CASE petitioners contend that these same solvents should not be able to evade the LDR by being burned in a cement kiln, thereby potentially becoming Bevill wastes exempt from Subtitle C rather than “treated” hazardous waste. In addition, CASE petitioners argue that they were not given adequate notice or opportunity to comment on the EPA's decision to exclude some co-processed Bevill wastes from the LDR.’ The EPA counters that the LDR issue ® Chemical Waste Management also considered a challenge by the Natural Resources Defense Council (“NRDC”), one of the CASE petitioners, to a regulation providing that Bevill wastes were ex- empt from the LDR. The court vacated the LDR exemption on notice and comment grounds and remanded it for consideration in an ongoing rulemaking. 976 F.2d at 33 n.20. In response to the 28a was never at issue in the BIF rulemaking because the agency did not reopen the matter, but reopened only the question of whether the agency should exempt Beville wastes generated by co-processing hazardous waste from Subtitle C. According to the EPA, Bevill wastes that are not “significantly affected” are simply exempt from the LDR by operation of regulations that were in place before the BIF Rule was even proposed. The agency notcs fur- ther that it has initiated a Separate rulemaking to deal with the question of the LDR’s applicability to co- processed Bevill wastes. See 56 Fed. Reg. 55,160, 55,166 (1991). Because, we uphold the EPA’s decision to exempt some Bevill wastes from Subtitle C, we also hold that those residues that are excluded are not subject to the LDR as those provisions by their plain language do not apply to materials that are not hazardous waste. CASE petitioners’ argument that they were not provided ade- quate notice of, and opportunity to comment on, the LDR is thus moot, because the BIF Rule did not re-open or modify the LDR, but simply established the circumstances under which Bevill wastes would be subject in Subtitle C. The fact that the LDR do not apply to non-Subtitle C wastes is the result of the EPA’s 1986 regulation, not a consequence of the BIF Rule that the EPA was required to address in the BIF rulemaking. CASE petitioners base their argument that the EPA may not exempt hazardous wastes burned in Bevill de- vices from the LDR on this court’s decision in American vacation of the LDR exemption in Chemical Waste Management, the EPA asserted that its 1986 regulations, specifically 40 C.F.R. §§ 261.11(a) and 268.1(b), provided that wastes excluded from the definition of “solid waste” or “hazardous waste” were exempt from the LDR. Because the wastes exempited by these regulations in- cluded Bevill wastes, the EPA maintained that the vacation of the LDR exemption restored the status quo ante, which happened to dictate an identical result. Thus, despite NRDC’s “victory” in Chemical Waste Management, Bevill wastes which are not Subtitle C hazardous wastes remained exempt from the LDR. 24a Petroleum Institute v. EPA, 906 F.2d 729, 740-42 (D.C. Cir. 1990) (“API”), which held that the EPA erred in assuming that RCRA required it to cease regulating metal slag as a hazardous waste when it arrived at a reclamation facility. In that case, the EPA had assumed that the slag became a raw material rather than a “solid waste” when it was used for materials recovery. API strongly suggested, but did not decide, that the EPA could not reconcile its decision to cease regulating slag at the point of metals reclamation with RCRA’s “cradle- to-grave” regulatory structure. /d. CASE petitioners assert that AP/ requires the EPA un- : stintingly to regulate hazardous wastes under Subtitle C. | We need not resolve this sweeping question in order to : decide this case, however. Whatever RCRA might require in the case of other solid wastes, Congress has mandated : that high volume/low hazard Bevill wastes have a special a : eG Tel reales! octal alias 2G Allie LK status pending completion of the Bevill studies. It is permissible for the EPA to find that one aspect of that special status is exemption from the LDR. The EPA’s position on this issue is a simple syllogism: The LDR apply only to Subtitle C hazardous wastes; Bevill wastes that are not “significantly affected” are not hazardous wastes; therefore, Bevill wastes that are not hazardous waste are not subject to the LDR.” Because we uphold the EPA’s determination that Bevill wastes produced by co-processing hazardous waste are in some circumstances exempt from Subtitle C, we also uphold the agency’s deci- sion to exempt non-hazardous Bevill wastes from the LDR 1° We hold that this syllogism is a permissible interpretation of ; the Bevill Amendment, not that the EPA is required to so read the ’ statute. In its notice of proposed rulemaking requesting comments on the possibility of subjecting Bevill wastes to the LDR, the EPA suggested that our holding in American Iron & Steel Institute, 886 F.2d at 395-96, might permit the agency to apply the LDR even to Bevill wastes not subject to Subtitle C. 56 Fed. Reg. 55,160, 55,166 (1991). The permissibility of this alternative interpretation is not before us in this case, and we express no opinion as to that question. 30a as a permissible construction of the Bevill Amendment and of Subtitle C. C. The BIF Ru'e’s Regulation of Air Emissions Several of the Industry petitioners" contend that the BIF Rule exceeds the EPA’s Statutory authority under RCRA because it regulates materials that are not “hazard- ous waste.” The BIF Rule establishes 2 complex set of air emissions controls for toxic metals, chlorine, and hydrogen chloride emitted from BIFs burning hazardous waste fuel. The rule creates a three-tiered system of regulation in which the levels of emissions and feed rates allowed are proportional to the degree of sampling and analysis a BIF operator performs on the BIF’s emissions. See gen- erally 56 Fed. Reg. 7171-80 (1991). An owner or opera- tor has the option of satisfying the rule by demonstrating compliance with any one of the three tiers. The first tier of controls assumes that all of the regulated materials fed into the BIF are emitted into the air, without regard for any pollution control devices that may be present, and so provides stringent limits on the rate at which the metals, chlorine, and hydrogen chloride may be fed into the unit. The operator demonstrates compliance by analyzing the toxic content of the materials burned, rather than by measuring actual air emissions. Under the second tier, the BIF owner or operator demonstrates compliance through emissions testing. The third tier permits an owner or operator to conduct both emissions testing and site- specific dispersion modeling (which takes into account actual dispersion conditions at the facility) to show that the emissions do not exceed acceptable levels. The EPA expects most facilities to comply with the BIF Rule via the third tier. 56 Fed. Reg. 7173 (1991 ). Industry petitioners challenge the three-tiered approach because it obligates operators to measure either the rele- 11 Chemical Manufacturers Association, Marine Shale Processors, Inc., Tennessee Eastman Company, and the American Petroleum Institute. 3la vant constituents of, or the air emissions from, all fuels fed into the BIF and not just those which are hazardous waste. The EPA responds that RCRA enables the agency to regulate facilities that burn hazardous waste for fuel, not merely the hazardous waste components of the fuel itself. Because both the EPA and Industry petitioners base their arsuments on the first prong of Chevron, argu- ing that Congress has directly spoken to the precise ques- tion at issue, we begin by examining the relevant statutory language. Section 3004(q) of RCRA authorizes the EPA to “promulgate regulations establishing . . . standards ap- plicable to the owners and operators of facilities which burn, for purposes of energy recovery, any fuel [which is produced from hazardous waste or from hazardous waste and any other material] . . . or any fuel which otherwise contains any hazardous waste... .” 42 U.S.C. § 6924 (q)(1)(B) (emphasis added). In addition, § 3004(a) of RCRA directs the EPA to “promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, stor- age, or disposal of hazardous waste .. as may be neces- sary to protect human health and the environment.” 42 U.S.C. § 6924(a) (emphasis added). We agree with the EPA that the plain language of RCRA defeats Industry petitioners’ contentions. First, § 3004(q) applies to facilities, not just fuels, and there- fore the EPA may regulate BIF owners or operators who elect to burn “any fuel which . . . contains any hazardous waste.” 42 U.S.C. § 6924(q)(1)(B). No BIF is required to burn hazardous waste fuel, but if it chooses to do so, §$ 3004(q) permits the EPA to monitor total feed rates and air emissions; if a BIF elects not to burn hazardous waste, then the BIF Rule would not apply. Second, § 3004(a) allows the EPA to regulate owners and opera- tors of facilities that “treat” hazardous waste. As dis- cussed above, supra at 13 n.2, for RCRA purposes, burn- ing hazardous waste is considered “treatment” of hazard- ous waste. Therefore, $$ 3004(a) and (q) allow the 32a EPA to regulate facilities that burn non-waste fuels if those fuels are being burned with hazardous waste. Although they make a Chevron step I argument, In- dustry petitioners do not rely on RCRA’s statutory lan- guage. Instead, they focus on this court’s decision in American Mining Congress v. EPA, 824 F.2d 1177 American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) [hereinafter AMC 1], interpreting RCRA’s definitional section, 42 U.S.C. § 6903. Section 6903 de- fines “hazardous waste” as a subset of “solid waste.” 42 U.S.C. § 6903(27). AMC I held that the EPA does not have jurisdiction under RCRA to regulate materials re- used for materials recovery within an ongoing production process because such materials were never discarded and thus are not “solid waste.” Industry petitioners reason that the EPA lacks jurisdiction under RCRA to monitor the constituents of non-waste fuels burned with hazardous waste because these co-processed fuels too are not “haz- ardous waste.” However, the holding of AMC / is not dispositive here. AMC / involved an altogether different facet of waste disposal governed by a different Statutory section, i.e., the scope of the RCRA term “solid waste,” and not the EPA’s right under §§ 3004(a) and (q) to regulate facilities handling non-waste materials when the materials are co-processed with fuel that is unquestionably “hazardous waste” subject to RCRA. As discussed above, the plain language of §§ 3004(a) and (q) clearly auth- orizes the EPA to regulate facilities that burn a mixture of hazardous waste and non-waste. Even assuming that the language of RCRA does not unambiguously permit regulation of non-waste fuels when they are co-processed in a facility burning hazardous waste, the EPA’s decision to regulate such non-waste is a permissible construction of the statute under Chevron step II. While the EPA is not free to regulate non-hazardous raw materials at will, in this case the agency has demon- strated an adequate nexus between the three-tiered con- trols and the management of hazardous waste. See gen- HR ha Nir eee ARS Lawl 33a erally In the Matter of BP Chemicals America, Inc., 1991 RCRA LEXIS 23. *9 (Aug. 20, 1991). The EPA per- suasively argues that the BIF Rule’s regulation of the con- tent of non-waste fuels burned in a BIF along with haz- ardous waste is vindicated by the inherent difficulty in differentiating between the molecules of emissions gener- ated by the hazardous waste components of BIF fuel and those generated by the non-waste components. See 56 Fed. Reg. 7144. The health and environmental effects of BIF emissions from the mix are the same whatever the source of an individual molecule. The EPA also notes that because compliance with the BIF Rule is often dem- onstrated by monitoring emissions during a trial burn, feed rates of all inputs to the unit must be continuously controlled to assure that the results of the trial burn are representative of actual operations. Were the EPA to al- low BIF operators to demonstrate compliance on the basis of one trial burn alone, the operators might burn hazard- ous waste along with less toxic raw materials during the final burn and then increase the toxicity of the raw ma- terials in later burns. See 56 Fed. Reg. 7144 (1991). Finally, the EPA claims that limitations must be placed on non-waste feeds because co-processing of hazardous waste and raw materials can make the commingled emis- sions more toxic than the sum total of the individual emissions from the hazardous and non-hazardous mate- rials alone. See 56 Fed. Reg. 7157 (1991); see also 56 Fed. Reg. 7176 (1991) (BIF Rule limits metal feed rate for both hazardous waste and non-waste fuels because when added to emissions from hazardous waste, noncar- cinogenic materials can cause a maximum exposed indi- vidual (“MEI”) concentration that exceeds threshold level for protecting human health). Thus the EPA’s require- ment that BIF owners and operators monitor the consti- tuents of all their fuel inputs when they burn both haz- ardous waste and non-waste is a reasonable application of its RCRA authority under §S 3004(a) and (q). Industry petitioners argue, however, that the EPA failed to address precisely the alternatives they posed to non- 34a waste monitoring. A rulemaking will be overturned as arbitrary and capricious if “the EPA has failed to respond to specific challenges that are sufficiently central to its de- cision.” International Fabricare Inst. v. FPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (citing American Mining Congress v. EPA, 907 F.2d 1179, 1191 (D.C. Cir. 1990)); accord Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Life Ins. Co., 463 U.S. 29, 48 (1983) (alternative ways of achieving objectives of statute should be addressed and reasons given for abandonment). During the BIF rule- making, Industry petitioners suggested the following three ways to limit regulation of a BIF’s air emissions to those attributable to the burning of hazardous waste: (1) per- form a test burn using non-waste fuel ‘> determine the removal efficiencies of the BIF unit’s air pollution control devices (APCDs), and then apply those removal efficien- cles to the emissions from the burning of hazardous Waste: (2) allow a BIF owner or operator to rely on the conservative removal efficiencies already specified by the EPA for various types of APCDs and then calculate back- wards to determine the allowable metals content for the hazardous waste feed: and (3) conduct baseline tests to characterize the relationship between waste feed composi- tion (i.e., proportion of hazardous waste in the fuel) and removal efficiency. See Comments of the Chemical Manu- facturers Ass'n on EPA’s Supplement to the Proposed RIF Rule, reprinted in Joint Appendix (“J.A.”) at 667-68. These proposals, however, occupied only three sentences of a voluminous notice and comment record and were not Supported by any evidence regarding their effectiveness at protecting human health and the environment. Although the EPA did not explicitly respond to the spe- cific suggestions of Industry petitioners, the agency did, as a general matter, explain the reasons underlying its decision to regulate non-waste fuels when they are co- processed with hazardous waste. As discussed above. the BIF Rule set forth three justifications for regulating non- waste fuels when they are burned with hazarodus waste ee ee 35a fuels: (1) the inadequacy for compliance purposes of test burns that do not impose limitations on the toxicity con- tent of non-waste fuels, (2) the difficulty of differentiat- ing between toxic air emissions from the burning of non- waste and hazardous waste, and (3) the phenomenon that co-processing non-waste and hazardous waste in a BIF can result in more toxic emissions. See 56 Fed. Reg. 7144 (1991). Implicit in the EPA’s discussion of the prob- lems embedded in regulating hazardous waste alone is a rejection of Industry petitioners’ alternative proposals. In light of the sketchy nature of these alternative proposals, we find that this portion of the BIF rulemaking (estab- lishing the three-tiered system of air emissions controls) survives arbitrary and capricious review. The BIF Rule’s regulation of non-waste fuels is well within RCRA’s grant of authority to the EPA to regulate facilities burning hazardous waste. Due to the difficulties associated with regulating emissions from hazardous waste fuels only, the EPA has reasonably decided to monitor the constituents of, and the air emissions from, all fuels burned in a BIF facility that burns hazardous waste. Al- though it would have been instructive for the EPA to have addressed more precisely the three proposals sug- gested by Industry petitioners, we conclude that the agency's general discussion of its decision to regulate non- waste adequately set forth its reasons for rejecting the proposals. D. Regulation of Products of Incomplete Combustion 1. Background Under RCRA, the EPA must develop standards to con- troi emissions from burning hazardous waste fuels “as may be necessary to protect human hea!th and the environ- ment.” RCRA § 3004()q)(1); 42 U.S.C. § 6924(q)(1). In response to this mandate, the EPA proposed standards for emissions of toxic organic compounds in the BIF rule- making. The BIF Rule, which was issued on February 36a 21, 1991, imposes three requirements on BIFs burning toxic organics: (1) a 99.99% destruction removal effi- ciency (“DRE”); (2) good combustion conditions in kilns and other regulated BIFs so as to control products of in- complete combustion (“PICs”); and (3) in certain cases, health risk assessments. See 56 Fed. Reg. 7,134, 7,146-71 (1991) (“Final Rule”). Here, Industry petitioners Lone Star Industries, Inc., Holnam, Inc., Safety-Kleen Corp., and the Cement Kiln Recycling Coalition (“cement kiln petitioners”) challenge the second of these requirements as applied to wet process kilns. Cylindrical in shape, a wet kiln rotates on its own axis and is slightly inclined so that raw materials intro- duced at the top end travel slowly to the lower end. The raw materials (such as clay, shale, limestone, and marl) are mixed in a slurry form and calcined, i.e., heated to a high temperature, as the slurry slides down the kiln to- wards the furnace at the lower, or “hot” end. Significantly, these raw materials contain widely varying amounts of or- ganic material that are driven off as the slurry mixture calcines. The furnace at the hot end of the wet kiln requires large amounts of fuel, which can be powdered coal or other fossil fuel or, alternately, high-BTU hazardous waste. One benefit of using hazardous waste in this manner is immediately obvious: It takes the place of scarce fossil fuels. Another benefit is that the high furnace tempera- tures (upwards of 2,500 degrees Fahrenheit) destroy the hazardous organic compounds contained in the waste. The drawback is that the burning of hazardous waste re- sults in the creation of incompietely burned organic com- pounds (i.e., PICs) that are emitted from the upper end of the kiln. A kiln’s utility as a means of destroying hazardous wastes turns on its ability to fully destroy them. In prac- tice, destruction of hazardous wastes in the fuel is a func- tion of the combustion efficiency of the kiln; Under poor ere eh 37a conditions of efficiency, the principal organic hazardous constituents (“POHCs”) of the toxic organic compounds contained in the hazardous waste fuel will be only par- tially broken down, thereby increasing the production of PICs. The health effects of PIC emissions are unclear— some are knowa carcinogens, other may be, and others are undetectable. See Final Rule, 56 Fed. Reg. 7,150, col. 1. This uncertainty led the EPA to regulate PICs in the BIF Rule, for “[g]iven the limited information about the hazards that PIC emissions may pose, EPA believes it is prudent to require that boilers and industrial furnaces operate at a high combustion efficiency to minimize PIC emissions.” Id. The EPA chose to monitor carbon monoxide (“CO”) and total hydrocarbon (“THC”) levels as indicators of combustion efficiency and required that one of three emis- sions standards be met: (1) a stack or by-pass duct CO level not to exceed 100 ppmv, 40 C.F.R. § 266.104(b) (“Tier I standard”); (2) a_ stack or by-pass duct CO level above 100 ppmv so long as the stack or by-pass duct levels of THC are below 20 ppmv, § 266.104(c) (“Tier II standard”): or (3) for those industrial furnaces not having a by-pass duct (i.e., wet kilns), meeting an alternative THC limit that ensures that flue gas hydrocar- bon (“HC”) and CO concentrations when burning haz- ardous waste fuels are not greater than when not burning hazardous waste, § 266.104(f) (“Tier III standard”). The EPA’s rationale for monitoring CO as an indica- tor of combustion efficiency is based on the following un- derstanding of the mechanics of the combustion process: In the first stage of the combustion of hazardous waste fuel, the POHCs thermally decompose in the flame to form other, usually smaller, compounds termed products if [sic] incomplete combustion. In this first stage of combustion, these PICs also decom- pose to form CO. 38a The second stage of combustion involves the oxi- dation of CO to CO. (carbon dioxide). The CO to CO. step is the slowest (rate-controlling) step in the combustion process because CO is considered to be more thermally stable (difficult to oxidize) than other intermediate products of the combustion of hazard- Ous waste constituents. ... Thus, in the waste combustion process, the “de- struction” of POHCs is independent of flue gas CO levels. CO flue gas levels cannot be correlated with DREs for POHCs, and may also not correlate well with PIC destruction. Although some emissions data indicate a weak correlation between CO and PICs, the data generally indicate that there is a relation- ship between the two parameters: When CO is low, PIC emissions are relatively low. The converse may not hold: when CO is high, PICs may or may not be high. Low CO is an indicator of the status of the CO to CO, conversion process, the last rate-limiting oxida- tion process. Because oxidation of CO to CO. oc- curs after the destruction of a POHC and its (other) intermediates (PICs) the absence of CO is a useful indication of POHC and PIC destruction. Final Rule, 56 Fed. Reg. 7,150, col. 2 (emphasis in original). The choice of CO as an indicator of combustion effi- ciency creates a technical problem, that of restricting CO measurement to the CO emitted by the hazardous waste fuel. This is well-nigh impossible in wet kilns, for as the Slurry slides down the kiln, the organic materials in the slurry combust and CO is created (“slurry off-gases”). These CO emissions are unrelated to the CO produced by the combustion of hazardous waste at the lower end of the kiln (“combustion off-gases”). Moreover, there is no way of isolating the two chemical processes because, un- like dry kilns, which have a by-pass duct that permits the i 3 i i 39a diversion of the kiln off-gas into a separate flue before it is united with the emissions generated by the raw mate- rials, in a wet kiln the combustion off-gases combine with emissions from the slurry, and both exit from the upper end of the kiln. Thus background emissions of CO attrib- utable to the oxidation of the raw materials will enter into the measurement of CO emissions and may prevent wet kilns from meeting the Tier I standards regardless of their combustion efficiency. Recognizing this problem, on October 26, 1989, the EPA proposed to add a second alternative emissions stand- ard. See 54 Fed. Reg. 43,718, 43,722-27 (1989) (EPA’s first supplement to the proposed BIF Rule (“First Sup- plement”) ). The CO standard was to be retained (the Tier I standard), but an alternative standard was to be added (the Tier II standard). The Tier II standard was to be either technology-based (limits on THC emissions) or health-based (the facility would have to demonstrate that PIC emissions posed an acceptable risk to the maxi- mally exposed individual). See 54 Fed. Reg. 43,722, col. 2. Under the technology-based standard, THC emissions were not to exceed 20 ppmv. 54 Fed. Reg. 43,723, col. 3; 40 C.F.R. § 266.104(c). This standard was chosen on the basis of the data for hazardous waste incinerators and BIFs operating under good combustion conditions, as well as the EPA’s use of risk assessment methodology to show a 20 ppmv level was protective of human health. 54 Fed. Reg. 43,723, col. 3. Unfortunately, wet process kilns may be incapable of meeting the technology-based Tier II standards for the same reason that prevents them from meeting the Tier I standard. Indeed, oxidation of the organic materials con- tained in the slurry mixture produces not only CO, but also HC. These background emissions are independent of the emissions from the combustion of hazardous wastes at the lower end of the kiln. First Supplement, 54 Fed. Reg. 43,724, col. 1. Thus neither CO nor THC emissions are an accurate indicator of the combustion efficiency of wet 40a kilns due to the impossibility of isolating the two combus- tion processes occurring within the kiln. Reconsidering this problem, the EPA requested comments on the possi- bility of different THC limits as well as the feasibility of a third standard—a site-specific limit “where THC levels when burning hazardous waste would be limited to base- line THC levels without burning hazardous waste.” 54 Fed. Reg. 43,724, col. 1. The EPA continued discussions with the «affected industry well after the end of the com- ment period. Final Rule, 56 Fed. Reg. 7,155 n.28. In the final BIF Rule, the EPA adopted the Tier I and the technology-based Tier II standards and also promul- gated a Tier III standard. This last was aimed at the “6 to 10 [wet process kilns that] may not be able to com- ply with the HC limit of 20 ppmv even though they gen- erate minimal HC from sources other than raw materials.” 56 Fed. Reg. 7,155, col. 3, The Tier III standard is es- sentially a waiver provision that allows the EPA to for- mulate alternative CO and THC limits on a case-by-case basis if operators of wet kilns can meet certain condi- tions. 40 C.F.R. § 266.104(f)(1). To obtain a Tier III waiver, the wet kiln operator must, inter alia, (1) dem- onstrate that flue gas levels of CO and THC do not in- crease over baselines measured when the kiln is fired by non-hazardous fuels in a manner designed to minimize hydrocarbon emissicns, (2) identify POHCs in the kiln’s emissions, and (3) conduct a site-specific risk assessment to demonstrate that the maximum annual average ground level concentrations do not exceed listed levels. 40 C.F.R. §266.104(f) (3). It is this Tier III] standard that bears the brunt of the cement kiln petitioners’ challenges to the PIC standards. They argue both that the EPA gave insufficient notice and opportunity for comment on the Tier III stendard and that each of the three tiers is ar- bitrary and capricious as applied to wet process kilns. 4la 2. Did the EPA Provide Adequate Notice and Op- portunity for Comment on the Tier III Hydro- carbon Standard? The cement kiln petitioners contend that the EPA failed to accord adequate notice and opportunity for comment on the Tier III standard. The validity of this challenge turns on the relationship between the proposed regula- tions and the Tier III standard contained in the final BIF Rule. See Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir 1991) (“The relationship between the proposed regulation and the final rule determines the adequacy of notice.”). As we stated in Shell Oil, adequate notice is given when “the final rule is a ‘logical outgrowth’ of the one proposed.” Jd. at 747. Nevertheless, the “EPA un- doubtedly has authority to promulgate a final rule that differs in some particulars from its proposed rule.” Small Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 546 (D.C. Cir. 1983). The EPA certainly raised the possibility of a specific standard for wet kilns. In the First Supplement, the agency explicitly recognized that “[p]reheater and pre- calciner cement kilns, for example, may not be able to readily achieve such a low THC concentration for the same reason that they typically cannot achieve CO levels below 100 ppmv.” 54 Fed. Reg. 43,724, col. 1. It thus called for comments on (1) The types of industrial furnaces for which a THC level of 20 ppmv is representative of good com- bustion conditions; (2) whether alternative THC limits may be more appropriate for certain industrial furnaces; and (3) whether an approach to identify a site-specific THC limit representative of good oper- ating practices may be feasible (e.g.. where THC limits when burning hazardous waste would be lim- ited to baseline THC levels without burning hazard- ous waste.). In support of comments, we request data on emissions of CO and THC under baseline 42a and hazardous waste burning conditions, including characterization of the type and concentration of in- dividual organic compeunds omitted. Id. This placed the cement kiln petitioners on notice that a non-hazardous waste fuel THC baseline standard might be adopted for wet kilns. Moreover, the EPA held re- peated meetings with these petitioners as well as individ- ual cement kiln operators to discuss an alternative hydro- carbon limit for cement kilns burning hazardous waste fuel. 56 Fed. Reg. 7,155 & n.28. While the cement kiln petitioners may have had notice of the possibility of a THC standard for wet kilns, we are hard pressed to find any precursor to the dual-baseline/ health-based emissions testing standard actually embodied in the Tier III provision in any of the three proposed regulations preceding the final rule. See Proposed Rule, 52 Fed. Reg. 16,982, 16,997-17,000 (1987); First Sup- plement, 54 Fed. Reg. 43,718, 43,721-28; second supple- ment to the proposed rule, 55 Fed. Reg. 17,862, 17,880- 89 (1990) (“Second Supplement”). The EPA contends that the rulemaking proposals disclosed the central ele- ments of the final Tier III standard and attempts to predi- cate notice of the Tier III standard on mentions of its component parts. To this end, the EPA cites its determination in the First Supplement that THC could serve as a good indicator of combustion efficiency, 54 Fed. Reg. 43,722-24, which it reiterated in the Second Supplement, 55 Fed. Reg. 17,884- 86. The EPA also points to its call for comments on the possibility of a site-specific limit of THC levels to those experienced when burning non-hazardous waste fuel, 54 Fed. Reg. 43,724, col. 1, reiterated in the Second Supple- ment, 55 Fed. Reg. 17,885, col. 3. It also cites the deter- mination that both CO and THC could be measured on the basis of hourly rolling averages, 54 Fed. Reg. 43,726- 27, and the suggestion that a THC standard might be based on generic risk assessment. 54 Fed. Reg. 43,723, col. 1. SRD alata Leb esi Wedel aaah RR 43a Nowhere in the proposed rulemakings, however, does the agency indicate it is contemplating the possibility of dual CO and THC baselines. This omission is critical because notice of individual parts of a proposed rule is not necessarily notice of the whole. One purpose of notice is to promote informed decisionmaking, and com- ments addressed to one specific component part of the standard do not necessarily bear on the viability of Tier IIf as a whole. See Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991) (“Because comments ap- propriate to a determination of the hazards of radio- nuclides would not necessarily be appropriate to a deter- mination of the hazards of entities using or producing radionuclides, we conclude that the notice published by the EPA did not provide interested parties with an ade- quate opportunity to comment.”). Here, more notice should have been given of the form of the Tier III stand- ard, for while the “logical outgrowth” standard does not require the agency to assiduously lay out every detail of a proposed rule for comment, it does require that the “agency . . . publish notice of either the substance of a proposed rule or a ‘description of the subjects and issues’ covered by a proposed rule.” /d. at 1310-11 (quoting 5 U.S.C. § 553(b)(3)). Such a description must “provide sufficient detail and rationale for the rule to permit inter- ested parties to participate meaningfully.” /d. at 1311 (internal quotation marks and citations omitted). It is the possibility of meaningful participation that is lacking here, for while the EPA proposed individual ele- ments of the Tier III standard separately, the component parts were never collected together in such a fashion as to enable the parties to anticipate and adequately com- ment on the ultimate Tier III standard. The agency did request data on “emissions of CC and THC under base- line and hazardous waste burning conditions,” First Sup- plement, 54 Fed. Reg. 43,724, col. 1, but this gives no indication that a dual baseline was contemplated and could just as easily have been a call for data to support 44a the Tier I and Tier II standards. Notice of these two standards was exhaustive, while the cement kiln petitioners were only on notice that a site-specific THC standard was contemplated for wet process kilns. As we have stated before, general notice that a new standard will be adopted affords the parties scant oppor- tunity for comment. Small Ref. Lead Phase-Down Task Force, 705 F.2d at 549. The agency’s obligation is more demanding—it must “describe the range of alternatives being considered with reasonable specificity. Otherwise, interested parties will not know what to comment on, and notice will not lead to better-informed agency decision- making.” Jd. Here, the “range of alternatives” described by the EPA did not include the ultimate standard; nor can the ultimate standard be considered a “logical out- growth” of the individual component parts cited by the EPA. Ultimately, the EPA simply failed to give inter- ested parties sufficient notice of the form that the Tier III standard might take, undermining the aims of meaningful participation and informed decisionmaking. /d. at 547 (“[N]otice improves the quality of agency rulemaking by ensuring that agency regulations will be tested by ex- posure to diverse public comment.” (internal quotation marks omitted) ). The EPA makes much of the comments submitted on issues that were to become critical parts of the final rule, as well as the meetings it held with industry. While we have noted that insightful comments may be reflective of notice and may be adduced as evidence of its adequacy, see, e.g., Shell Oil, 950 F.2d at 751, we have rejected bootstrap arguments predicating notice on public com- ments alone. Ultimately, notice is the agency’s duty be- cause “comments by members of the public would not in themselves constitute adequate notice. Under the stand- ards of the APA, notice necessarily must come—if at all —from the Agency.” /d. (internal quotation marks and citations omitted). Here, moreover, the comments sub- mitted by the parties undercut the EPA’s argument for 45a they only go to the individual component parts of the final Tier III standard. Not one contemplates anything more than a standard measuring the amount of THC emissions over a non-hazardous fuel baseline combined with backup risk assessment. No mention is made of a dual CO/THC baseline in any of the comments, and at oral argument counsel for the EPA conceded that this indicated that no notice was provided of a possible CO baseline standard for wet kilns. In sum, the EPA cannot base notice of the Tier III standard on either submitted comments or pro- posals concerning individual parts of the ultimate stand- ard. The Tier III standard not being a logical outgrowth of any precursor proposal, it is vacated and remanded for further consideration. 3. Are the EPA’s Rules to Control PIC Emissions Reasonable? As discussed above, the EPA enacted a three-tiered pro- tective standard to control emissions from the burning of hazardous fuels. The cement kiln petitioners attack the rationale underlying these standards, contending that each is arbitrary and capricious. Under our familiar rubric, “(t]he scope of judicial review of agency decisionmaking under the arbitrary-and-capricious standard is narrow. Nonetheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Natural Resources Defense Coun- cil v. EPA, 859 F.2d 156, 209 (D.C. Cir. 1988) (foot- note and internal quotation marks omitted). a. The Tier III Standard These petitioners contend that the Tier III standard has no rational basis. First, they argue that the EPA articu- lated no basis for its conclusion that kilns could reliably quantify both CO and THC baselines when burning non- hazardous fuel. In the BIF Rule, the EPA adduced two pieces of support: “commenters[’] [assertions] that when 46a hazardous waste is burned, hydrocarbon levels do not in- crease and often decrease,” 56 Fed. Reg. 7,157, coi. 1, and the results of test runs on a single wet process cement kiln located at Hannibal, Missouri. 56 Fed. Reg. 7,157 col. 1, 7,163 col. 2. The results of the test runs allegedly demonstrated that emissions of THC are quantifiable and actually decrease when hazardous fuels are burned (in comparison to a non-hazardous waste burning baseline). Id.; Emissions Testing of a Wet Cement Kiln at Hannibal, Missouri, BBSP-SO147, reprinted in J.A. at 218, Table 4-13 at 4-22. Yet Table 4-13 reveals the very problem raised by the cement kiln petitioners: that the inhomoge- neity of the organic material in the saw materials pre- cludes the establishment of a reliable baseline, and thus the baselines are not a valid indicator of good combus- tion. At oral argument, moreover, counsel for the EPA disavowed reliance on the Hannibal test runs, admitting that they were conducted for a different purpose and could not be relicd on to support the Tier UI standard. Thus the supportive comments cited by the EPA are the sole evidence of the feasibility of the Tier III stand- ard. These comments, however, refer only to the possibil- ity of implementing a THC baseline and make no refer- ence to the possibility of simultaneously quantifying CO and THC baselines. The agency thus had no information on this issue and was relying on pure speculation when it decided that a standard of no increase of CO and THC Over quantifiable CO and THC baselines was achievable. See National Gypsum Co. v. EPA, 968 F.2d 40, 43-44 (D.C. Cir. 1992) (agency cannot “infer” facts not in the record); Natural Resources Defense Council, 859 F.2d at 210 (agency actions based upon speculation are arbitrary and capricious). Such speculation is an inadequate re- placement for the agency’s duty to undertake an exami- nation of the relevant data and reasoned analysis; thus the EPA’s action in promulgating the Tier III standard was arbitrary and capricious. See Specialty Equip. Mid. Ass'n v. Ruckelshaus, 720 F.2d 124, 137 (D.C. Cir. ee te ~ ae te) nel ew Ce ee 47a 1983) (agency's lack of justification demonstrates action was arbitrary and capricious). We note that, at oral argument, counsel for the cement kiln petitioners maintained that they had proposed three alternative methods by which the objectives of the Tier III standards could be met and that the EPA had failed to consider those comments. The EPA, of course, is obliged to respond to “relevant” and “significant” com- ments. Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977). We need not consider this argu- ment as grounds for remand, however, because the cement kiln petitioners failed to raise it prior to oral argument; thus we deem it waived. b. Tier 1 and Tier II Standards All BIFs are governed by the three-tiered standard; thus, even though we have vacated the Tier IIT standard, wet process kilns remain subject to the first two. The cement kiln petitioners do not contend that they were pro- vided with inadequate notice or opportunity for comment on the Tier I and Tier II standards, but they do argue that these standard are “fundamentally irrational” as ap- plied to wet kilns and must be vacated as arbitrary and capricious. The EPA argues that the three tiers implement its statu- tory duty, and that if wet kilns cannot comply with one of these standards, they should simply stop burning haz- ardous wastes as fuel. The EPA attests, and the cement kiln petitioners do not dispute, that there are dangers, known and unknown, associated with burning hazardous wastes. Ultimately, it is PIC emissions that are being reg- ulated, and from the standpoint of health and safety, there is no reason to distinguish between PICs emitted from the combustion of hazardous wastes and those emitted from the combustion of the slurry. The EPA has determined that 48a hazardous waste burning may affect the type and concentration of organic compounds emitted from an industrial furnace that has elevated HC concentra- tions attributable to raw materials. For example, the chlorine in the hazardous waste may result in higher concentrations of chlorinated organic com- pounds. 56 Fed. Reg. 7.157, col. 3. The EPA candidly admits that the use of CO and THC as indicators of combustion efficiency is problematic as applied to wet kilns, yet it contends that the existing PIC standards are the best ap- plication of existing scientific knowledge. “This court does not demand certainty when there is none[.] and the Agency here may apply its expertise to draw conclusions from . . . probative preliminary data not yet certifiable as fact and the like.” Solite Corp. v. EPA, 952 F.2d 473, 490 (D.C. Cir. 1991) (internal quotation marks and cita- tion omitted). As we have stated before, “[wle cannot of course substitute our judgment for that of the agency. What we do require is that the [agency] come to grips with the obvious ramifications of its approach and address them in a reasoned fashion.” Natural Resources Defense Council, 859 F.2d at 209-10 (internal quotation marks and footnotes omitted). In the instant case, the EPA has met this standard—it recognized the effects that the Tier I and Tier II stand- ards would have on wet kilns and attempted to accommo- date them in the Tier III standard. The lack of notice and a reasoned basis for the Tier III standard necessitates that it be vacated, but the inapplicability of the other two to wet kilns, standing alone, does not persuade us that their promulgation was arbitrary and capricious. The EPA issued those regulations as protective of human health and the environment; and if it is technologically impossible for wet process kilns to meet them, they can simply stop using hazardous waste as fuel. See id. at 206-09 (EPA has no duty to provide for variances from 49a water quality standards that may be technologically im- possible to achieve ). We thus vacate and remand the Tier If] standard while affirming the Tier I and Tier If standards. Nonetheless, we note that the EPA has recognized that the Tier I and Tier I] standards are inappropriate for wet process cement kilns. The agency may therefore wish to consider estab- lishing an interim replacement standard for Tier IIf under the “good cause” exemption of 5 U.S.C. § 553(b) (3) (B) pending full notice and opportunity for comment. See, e.g., Shell Oil, 950 F.2d at 752. Il]. CONCLUSION For the reasons given above, the BIF Rule is upheld in part, and the Tier If PIC standard is remanded to the EPA for reconsideration consistent with the terms of this opinion. So Ordered. 50a APPENDIX B ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 261, 264, 265, and 266 [EPA OSW-FR-92-SWH-FRL-4198-5] Burning of Hazardous Waste in Boilers and Industrial Furnaces AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; technical clarification amendments and corrections. SUMMARY : This action makes several technical clarifi- cation amendments and corrections to the final rule for boilers and industrial furnaces burning hazardous waste. The final rule was published on February 21, 1991 (56 FR 7134). These revisions provide clarification and cor- rect unintended consequences of the rule. EFFECTIVE DATE: August 11, 1992. ADDRESSES: The documents are available for viewing at the RCRA Information Center (docket identification number F-92-BBC3-FFFFF), located at: EPA RCRA In- formation Center, room: M2427, 401 M Street, SW, Wash- ington, DC 20460. The RCRA Information Center is open from 9 a.m. to 4 p.m. Monday through Friday, except for federal holli- days. The public must make an appointment to review docket materials. Call (202) 260-9327 for appointments. Copies cost $0.15 per page. FOR FURTHER INFORMATION CONTACT: | For general information, contact the RCRA _ Hotline at: (800) 424-9346 (toll free) or (703) 920-9810. 5la Shiva Garg, Office of Solid Waste (OS-322W), U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460, (703) 308-8459. SUPPLEMENTARY INFORMATION: Preamble Outline A. Technical Clarification Amendments 1. The Definition of Baseline Hydrocarbon Level for Industrial Furnaces Complying with the Alternative Hy- drocarbon Limits is Clarified to Require Consideration of Process Variability. 2. Industrial Furnaces Complying with the Alternative HC Limit May Comply with the Interim HC Limit Using a Conditioned Gas HC Monitoring System if They Dem- onstrate that a Heated System Is Impracticale. 3. Industrial Furnaces that Cannot Comply with the 20 ppmv HC Limit by Aug. 21, 1992, because of Organic Matter in Raw Materials May Apply for a Case-by-Case Time Extension to Make Physical Changes to the Facility in Order to Comply with that HC Limit. 4. The Metals and Total Chlorine and Chloride Feed Rate Operating Limits for Tier I or Adjusted Tier I Are Based on the Screening Limits, Not the Compliance Test. 5. Adjusted Tier I Feed Rate Screening Limits May Be Used in Dispersion Situations where the Tier I and Tier I Screening Limits Are Precluded. 6. Several Requirements Are Clarified to Account for Facilities that Comply with Adjusted Tier I Limits. 7. BIF Storage Units are Subject to the Air Emissions Standards of subparts AA and BB of parts 264 and 265. 8 The Definitions of Plasma Arc and Infrared Incin- erators Are Clarified to Include Only those Devices that Use an Afterburner. 52a 9. Facilities that Comply with the Tier I or Adjusted Tier | Metals and Chlorine Controls and that have Un- controlled Emissions that Meet the Particulate Matter Standard Need Not Establish a Limit on Production Rate during Interim Status. 10. Halogen Acid Furnaces that Burn Hazardous Waste as an Ingredient Are Subject to the BIF Rule. 11. When Comparing Levels of Nonmetal Constituents in Residue to the Health-Based Limits for the Bevill Ex- clusion, the Levels Cannot Exceed the Health-Based Limits or the Level of Detection, whichever Is Higher. 12. The Applicability of part 266 Is Clarified. 13. Conforming Revisions Are Made to the Applica- bility Sections of parts 264 and 265. 14. A Conforming Revision Is Made to the Rule- making Petitions Provision of part 260. B. Technical Corrections C. Immediate Effective Date A. Technical Clarification Amendments On February 21, 1991, the Agency published a final rule which regulates the burning of hazardous waste in boilers and industrial furnaces (BIFs). See 56 FR 7134. The rule controls emissions of toxic organic compounds, toxic metals, hydrogen chloride, chlorine gas, and particu- late matter from BFIs that burn hazardous waste. In addition, the rules subject owners and operators of BIFs to the general facility and permitting standards applicable to hazardous waste treatment, storage, and disposal facili- ties. After publication of the rule, the Agency received many questions and requests for clarification on certain provi- sions of the rule. In addition, in a number of cases, the Agency was questioned as to whether the rule as promul- 53a gated truly reflected the Agency’s intent. As a result of these questions and as a result of the Agency’s own re- view, the Agency published a technical amendment to the rule to clarify the operation of the regulation and to cor- rect certain unintended consequences. Those amendments were published at 56 FR 42504 on August 27, 1991. (Note that EPA had previously published several other technical corrections and amendments to the February 21 final rule (56 FR 32688 (July 17, 1991).) As facilities began to comply with the BIF rules, addi- tional questions have been raised about the way various provisions of the rule are intended to work. Today’s technical clarification amendments address those ques- tions. 1. The Definition of Baseline Hydrocarbon Level for Industrial Furnaces Complying With the Alternative Hydrocarbon Limit Is Clarified To Require Considera- tion of Process Variability The Cement Kiln Recycling Coalition (CKRC) has expressed concern to the Agency that the alternative hy- drocarbon (HC) provision of the rule is problematic for furnaces that feed raw materials containing naturally- occurring Organic matter." See § 266.104(f). That provi- sion was intended to allow furnaces that could not com- ply with the 20 ppmv HC limit because of organic matter in raw materials to comply with an alternative, higher HC limit. EPA’s rationale for the 20 ppmb limit was to en- sure good hazardous waste combustion conditions and, thus, control of emissions of products of incomplete com- bustion (PICs). However, because hydrocarbon emis- sions from organic matter in raw materials are not di- rectly related to fuel-generated hydrocarbons (i.e., from burning normal fuels and hazardous waste fuels), the ‘See the BIF docket for documentation of meetings and phone conversations and copies of correspondence. 54a Agency believed that these hydrocarbon should not be counted toward the 20 ppmv HC limit. See 56 FR 7155- 56. To implement the alternative HC limit, the final rule required such furnaces to establish an HC limit that would be applicable when burning hazardous waste as the HC level achieved when not burning hazardous waste and when the furnace is operated to “minimize” HC levels. See $ 266.104(f)(1). CKRC has noted that this provision could be read to limit fuel-generated hydrocarbons to approximately 2 to 5 ppmv—the HC levels that are achieved when cement kilns (and boilers, incinerators, and other industrial furnaces ) are operated under conditions to absolutely minimize HC levels. Therefore, although the Agency limits combustion- generated hydrocarbons from other combustion devices to 20 ppmyv, the rule could be read to limit fuel-related hydrocarbon levels from cement kiins to 2 to 5 ppmv. In particular, CKRC notes that the rule could be inter- preted to limit hydrocarbons when burning hazardous waste to the levels achieved when not burning hazardous waste (i.c., baseline conditions) and when kiln is operated to absolutely minimize HC levels and would not allow the facility to account for normal transient combustion conditions that occur because of factors such as mechani- cally handling coal. These conditions are elements of normal operating variability. Although these transient conditions cause combustion perturbations and momen- tary increases (i.e., spikes) in HC levels, these combus- tion-related HC levels do not generally exceed the 20 ppmv hourly rolling average limit that the Agency has established to control PICs. Nonetheless, the most literal-minded reading of the rule would preclude consideration of these normal combustion perturbations if the rule’s requirement that baseline HC levels be established when the kiln is operated to mini- mize HC levels is read to mean to operate constantly at (ae btinnd waink tn. wt 55a absolute peak performance.’ This literal-minded reading would lead to the result—not intended by EPA—that whenever such a normal combustion perturbation would occur (when the kiln is burning hazardous waste) and there is a spike in the HC level that causes the baseline HC level to be exceeded, the kiln would be required to stop burning hazardous waste and not restart the hazard- ous waste feed until the HC level falls below the baseline limit. Nor did EPA intend that industrial furnaces op- erate at an absolutely optimized performance in establish- ing a baseline ignoring normal operating variability (i.e., a performance level analogous to a New Source Perform- ance Standard rather than best available technology). In- deed, the rule refers to establishing a baseline when the industrial furnace “produces normal products under nor- mal operating conditions” (see § 266.104(f)(1)), and the analogous 20 ppmv HC limit itself is an “indicator of good combustion conditions” (see 55 FR 7155), not ab- solutely optimized combustion. Although EPA believes these readings take an unduly stringent view of the requirement that HC levels be mini- mized when establishing a baseline, we nevertheless think it best to clarify the text of the rule. Therefore, EPA is correcting the definition of the baseline HC level pro- vided by § 266.104(f)(1) to make it clear that the meas- ured baseline HC level must be adjusted as appropriate to consider the normal variability of hydrocarbon levels *Even if the rule were interpreted to allow normal combustion perturbations (i.e., perturbations that do not result in combustion generated hydrocarbons exceeding 20 ppmv on an hourly rolling average, and thus, are within the Agency’s definition of good com- bustion conditions) during baseline testing, establishing a baseline that includes such normal perturbations would be problematic. This is because the owner or operator cannot ensure that the perturbations that occur during the baseline testing are representa- tive (i.e., in frequency, magnitude, and duration) of normal pertur- bations. The occurrence of normal perturbations cannot always be predicted, and it would be difficult for the owner or operator to demonstrate that perturbations that could be artificially induced during baseline testing are representative of normal perturbations. 56a under good combustion operating conditions. Thus, the measured baseline level could be increased by a variability factor that considers normal transient combustion condi- tions (i.e., provided that the transient conditions do not result in combustion-generated HC that exceed the 20 ppmv limit provided by § 266.104(c)). Accordingly, to- day’s clarification amends the definition of the baseline HC level in § 266.104(f)(1) to read as follows: “The baseline HC level is defined as the average over all valid test runs of the highest hourly rolling average value for each run, adjusted as appropriate to consider the varia- bility of hydrocarbon levels under good combustion operat- ing conditions.” This HC variability factor would be determined on a case-by-case basis by the Director. As guidance in deter- mining what variability factor to apply, EPA believes that a factor of 10 ppmv would be appropriate in most situa- tions.* As indicated previously, the Agency believes that combustion-generated HC levels from cement kilns (and other furnaces eligible for the alternative HC limit) should be limited to 20 ppmv to ensure good combustion condi- tions. This is the same HC limit that applies to boilers, other furnaces, and incinerators, and provides a “level playing field” with respect to control of combustion- generated hydrocarbons. Thus, we recommend that the alternative HC limit be established as 20 ppmv plus the raw material-generated HC level. We do not believe that it is feasible, however, to measure only raw material- generated hydrocarbons; the HC monitor in the stack measures both hazardous waste combustion-generated and 3 We note that, if a variability of 10 ppmv is used to adjust he measured baseline HC level, facilities with measured HC levels of 11 ppmv or greater would be eligible for the alternative HC limit. This is because the baseline HC level, when adjusted for the 10 ppmvy variability factor, would be 21 ppmv or more and facilities with baseline HC levels exceeding 20 ppmv are eligible for the alternative HC limit. ——————————— | i 57a raw material-generated hydrocarbons. Therefore, to esti- mate the level of raw material-generated hydrocarbons, it is conservative and reasonable to assume that 10 ppmv * of the HC measured under baseline conditions (when the kiln must be operated to minimize combustion-generated hydrocarbons) is attributable to hazardous waste com- bustion. (Note that when the kiln is operated to absolutely minimize hazardous waste combustion-generated hydro- carbons, HC levels should be in the range of 2 to 5 ppmv. Thus, the recommended assumption that combustion- generated hydrocarbons are 10 ppmv during baseline test- ing is conservative.’ Under this approach, raw material- generated hydrocarbons are estimated to be the measured HC level during baseline testing minus 10 ppmv. The 20 ppmv combustion-generated HC allowance would then be added to the estimated raw material-generated hydro- carbons. The net effect would be simply to add 10 ppmv to the measured baseline HC level. As discussed above, the rational for adding a variability factor to the measured baseline HC level assumes that the baseline level is determined when the device is operated under conditions that generally minimize combustion- generated hydrocarbon.* Therefore, combustion-generated * Note that the assumption that 10 ppmv of HC during baseline testing is attributable to hazardous waste combustion is not the basis for the recommended 10 ppmv variability factor. As discussed in the text, however, this assumption leads to the Agency’s conclu- sion that a 10 ppmv variability factor is appropriate. *The assumption that combustion-generated HC is 10 ppmv during baseline testing is conservative because if, for example, we assumed that combustion-generated HC is 5 ppmv, the variability factor would be 15 ppmy, not 10 ppmv. This is because, the lower that the combustion-generated HC is assumed to be, the higher the raw material-generated HC is estimated to be, and the 20 ppmv allowance for combustion-generated HC is added to the estimated raw material-generated HC. * Although it is not practicable for an industrial furnace to operate continuously under conditions that minimize combustion- generated HC as discussed previously in the text, it is reasonable 58a hydrocarbon spikes causing a significant increase in the hourly rolling average HC level should not be allowed during baseline testing. To ensure that substantial varia- bility is not already included in the baseline HC level, the hourly rolling average hydrocarbon level should not vary during baseline testing by more than 5 ppmv when meas- ured HC levels are in the range of 10-30 ppmv. When measured HC levels exceed 30 ppmvy, then a higher allow- able range of HC levels (i.e., the difference between the highest and lowest hourly rolling average level) during baseline testing may be appropriate given that the abso- lute HC levels are higher and even minor perturbations could cause significant changes in HC levels.’ EPA is interested in obtaining further information on whether this recommended approach is reasonable to es- tablish an alternative HC limit for devices that cannot meet the 20 ppmv HC limit because of organic matter in raw materials. EPA therefore invites all interested persons to submit any relevant information on this issue. 2. industrial Furnaces Complying With the Alternative HC Limit May Comply With the Interim HC Limit Using a Conditioned Gas HC Monitoring System if They Demonstrate That a Heated System Is Imprac- ticable Section 266.103(c)(5) of the rule allows owners and operators of BIFs, other than those that obtain a time extension, to certify compliance with the 20 ppmv HC limit using a conditioned gas (i.e., cold) HC monitoring system rather than a heated monitoring system. Although and necessary to require the facility to operate during baseline testing under conditions that generally minimize combustion- generated HC. This is because, otherwise, a variability factor would be added to a baseline HC level that may already include substantial variability. 7 Baseline testing should consist of a minimum of three test runs, with each run having a minimum duration of three hours. 59a the Agency prefers the heated system because a cold sys- tem may remove some hydrocarbons during gas condition- ing (e.g., chilling the gas sample line to condense water vapor can also remove hydrocarbons), the Agency recog- nized that heated systems are not in widespread use on BIFs and modifications to the monitoring systems may be necessary to address operation and maintenance prob- lems. See 56 FR 7162 (February, 21, 1991). Conse- quently, the Agency reasoned that facilities that comply with the HC limit on Aug. 21, 1992, should be allowed to use a cold system. On the other hand, he Agency rea- soned that those owners and operators who obtain a time extension should be required to certify compliance with a hot system given that the time extension should provide enough time to resolve operation and maintenance prob- lems. (Note that facilities that elect to certify compliance with a cold system on Aug. 21, 1992, must use a hot system when they recertify compliance under interim Status or obtain a RCRA operating permit. See § 266.103 (c)(5). The Agency did not anticipated the consequences that this requirement would have on cement kilns complying with the alternative hydrocarbon provision of $$ 266.104 (f) and 266.103(c)(7)(ii)(B). Under thoes require- ments, cement kilns must, prior to August 21, 1992, sub- mit a complete Part B permit application that includes documentation of the baseline HC level, and cbtain a time extension from the Director. Until the operating permit is issued, the facility must comply with an interim HC (and CO) limit effective no later than August 21, 1992, that is established as a condition of the time exten- sion. Consequently, although cement kilns complying with the alternative hydrocarbon provision must obtain a time extension, they must monitor hydrocarbons prior to Au- gust 21, 1992, in order to establish the baseline HC level. and must monitor hydrocarbons continuously beginning 60a August 21, 1992. Thus, § 266.103(c)(5) has the un- intended consequence of requiring such facilities to use a hot HC monitoring system on (and before) August 21, 1992. As discussed above, the Agency has already determined that this is infeasible (and therefore provided a condi- tioned (i.e., cold) monitoring option). Therefore, to give such facilities the time they may need to resolve operating and maintenance problems with hot monitoring systems, today’s technical correction revises § 266.103(c)(5) to enable the Director to approve on a case-by-case basis the use of a cold system for establishing the baseline HC level and complying with the alternative, interim HC limit. This correction is a logical and necessary adjunct to the existing regulation that allows the alternative use of cold HC monitoring systems. The Director’s approval will be based on a demonstration by the facility that it has made a good faith effort to install and operate a heated system but that it has determined that continuous operation is not practicable at this time. The Agency does not believe that this demonstration will be a burden on owners and operators because they have known since February 21, 1991, that a hot monitoring system was required by the rule and should have been attempting to operate continu- ously such systems for some time. In considering a request to use a conditioned gas moni- tor in lieu of a hot monitor, the Director may impose addi- tional requirements on the owner and operator of the fa- cility to ensure that a hot monitoring system is installed as soon as practicable. See § 266.103(c)(7)(ii)(A). For example, the Director may require the owner or op- erator to operate a hot monitoring system to the extent practicable concurrently with a conditioned gas monitor- ing system in order to meet specified milestones in activi- ties designed to resolve operational problems with a heated HC monitoring system, and to report periodically on : 6la progress toward achieving sustained operation of the hot monitoring system. This amendment does not extend the deadline for cer- tification of compliance. Owners and operators requesting to comply with the alternative hydrocarbon limit are re- quired to submit their request along with accompanying supporting materials in time to allow the Director to grant or deny the request by August 21, 1992. 3. Industrial Furnaces That Cannot Comply With the 20 PPMY HC Limit by August 21, 1992, Because of Organic Matter in Raw Materials May Apply for a Case-by-Case Time Extension To Make Physical Changes to the Facility in Order to Comply With That HC Limit The Agency is clarifying the rule to make it clear that industrial furnaces that cannot comply with the 20 ppmv HC limit for reasons beyond the owner’s or operator's control may request a time extension to certify compliance with the HC limit. The final rule allows facilities that elected to comply with the alternative hydrocarbon provi- sions of § 266.104(f) to obtain a time extension under $ 266.103(c)(7)(ii)(B). However, the Agency inad- vertently did not make it clear that owners and operators that elected to make physical changes to the facility to enable them to comply with the 20 ppmv HC limit (i.e., the usual HC limit, rather than an alternative limit estab- lished on a case-by-case basis) but who cannot do so by August 21, 1992, for reasons beyond their control are also eligible to request a time extension under § 266.103 (c)(7) (ii). EPA meant for § 266.103(c)(7)(ii)(B) to apply only to facilities that comply with the alternative HC limit, and believes that this intent is fairly clear in the existing regu- latory language since the provision (§ 266.103(c) (7) (ii) (B)(2)) references the procedure for establishing CO 62a and HC baseline levels (§ 266.104(f)(1)) applicable only to persons complying with the alternative HC limit. Conversely, the provisions make little sense for persons who intend to comply with the limit of 20 ppmv because the requirements in § 266.103(c)(7)(ii)(B) are related only to the alternative HC limit. Accordingly, today’s amendment revises § 266.103(c) (7) (ii) (B) to clarify that paragraph applies only to facili- ties that comply with the alternative HC limit. Thus, the general time extension provision of § 266.103(c) (7) (ii) applies to all other situations, including industrial furnaces that need time to modify the facility to comply with the 20 ppmv HC limit. Industrial furnaces such as cement kilns may elect to make physical modifications to the facility to enable them to certify compliance with the 20 ppmv HC limit rather than to comply with the alternative HC provisions of § 266.104(f). If those modifications cannot be completed in time to enable the facility to certify compliance by August 21, 1992, for reasons beyond the facility’s control, the owner or operator may request a time extension. If a time extension is granted, the Director will use the authority of § 266.103(c)(7)(ii) to establish operating conditions as necessary to reasonably ensure that emis- sions of toxic organic compounds do not pose a threat to human health and the environment. Operating conditions that may be applied may include limits on the type, quan- tity, and method of firing hazardous waste, and limits on combustion parameters such as oxygen, carbon monoxide, and hydrocarbons. Examples of physical changes that may be made to the facility in order to meet the 20 ppmv HC limit are: (1) Installation of a secondary combustion chamber to destroy organic compounds in the kiln off-gas; or (2) installation of a roaster to volatilize organic compounds from the raw material before feeding it to the kiln where hazardous 63a waste is burned. These changes may enable the owner or operator to demonstrate that stack gas concentrations do not exceed the 20 ppmv limit. At this time, the Agency has not evaluated the practicability of installing a second- ary combustion chamber or roaster to reduce HC emis- sions. The Agency is simply identifying these as conceiv- able changes that may enable a facility to meet the 20 ppmv HC limit. * * * * 64a APPENDIX C€C ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 261, 264, 265, 266, 270 and 271 [EPA/OSW-FR-9 1-012; SWH-FRL-3865-6] RIN 2050-AA72 Burning of Hazardous Waste in Boilers and Industrial Furnaces AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: Under this final rule, the Environmental Protection Agency (EPA) is expanding controls on haz- ardous waste combustion to regulate air emissions from the burning of hazardous waste in boilers and industrial furnaces. Currently, such burning is exempt from regula- tion. EPA is promulgating this final rule after considering public comment on rules proposed on May 6, 1987, plus the comments on EPA’s supplemental notices of October 26, 1989 and April 27, 1990. These rules control emissions of toxic organic com- pounds, toxic metals, hydrogen chloride, chlorine gas, and particulate matter from boilers and industrial furnaces burning hazardous waste. In addition the rules subject owners and operators of these devices to the general fa- cility standards applicable to hazardous waste treatment, Storage, and disposal facilities. Further, today’s final rule subjects hazardous waste storage units at regulated burner facilities to part 264 permit standards. Burner storage operations at existing facilities are generally now subject only to interim status standards under part 265. Finally, today’s rule takes final action on two pending petitions for rulemaking: (1) based on a petition by Dow Chemical Company, EPA is designating halogen acid A ; 3 : 3 65a furnaces as industrial furnaces under § 260.10; and (2) based on a petition by the American Iron and Steel Insti- tute, EPA is classifying coke and coal tar fuels produced by recycling coal tar decanter sludge, EPA Hazardous Waste No. KO87, as products rather than solid waste. The rule also makes several technical corrections to regu- lations dealing with loss of interim status for facilities that achieved interim status as of November 7, 1984. EFFECTIVE DATE: This final rule is effective on August 21, 1991. Technical corrections to § 270.73 are effective on publication. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 21, 1991. * * x “ II. Controls for Emissions of Toxic Organic Compounds Burning hazardous waste that contains toxic organic compounds (i.e., organic compounds listed in appendix VIII of 40 CFR part 261) under poor combustion condi- tions can result in substantial emissions of the toxic com- pounds originally present in the waste as well as other compounds, due to partial but incomplete combustion of the constituents in the waste. The quantity of toxic organic compounds emitted depends on the concentrations of the toxic compounds in the waste, the waste firing rate (i.e., the percentage of total fuel provided by the hazardous waste to the boiler or industrial furnace), and the com- bustion conditions under which the waste is burned. The risk posed by the emissions depends on the quantity and toxicity of the compounds emitted and on the ambient levels to which persons are exposed. Hypothetical risk assessments show that under poor combustion conditions that achieve only 99 percent or 99.9 percent destruction and removal efficiency (DRE) of organic compounds, risks to the maximum exposed individual (MEI) from 66a unburned carcinogenic organics found in hazardous waste can result in increased lifetime cancer risks of 10.” The Agency is controlling the emissions of toxic or- ganic compounds from boilers and industrial furnaces that burn hazardous waste with two performance standards. First, a 99.99 percent destruction and removal efficiency (DRE) standard for principal organic hazardous consti- tuents (POHCs) in waste feeds will ensure that constitu- ents in the waste are not emitted at levels that could pose a significant risk in virtually all scenarios of which the Agency is aware.’' Second, limits on flue gas concentra- tion of carbon monoxide (CO) and, where specified, hy- drocarbons (HC) will ensure that combustion devices op- erate continuously at high combustion efficiency and emit products of incomplete combustion (PICs) at levels that will not pose adverse effects on public health and the en- vironment. The basis for these standards is discussed below. A. DRE Standard As proposed, the Agency is promulgating a 99.9999% DRE standard * for those acutely hazardous wastes listed ® We note, moreover, that some boilers and many industrial fur- naces are already subject to a particulate matter (PM) standard under a NSPS, SIP, or PSD program and the applicable PM stand- ard is generally more stringent than the 0.08¢r/dscf standard pro- vided by today’s rules. Thus, these devices are already under a regulatory compliance program for a PM standard. We note fur- ther that the more str [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1660%3A2. Public record. Not legal advice.