National Emission Standards for Hazardous Air Pollutants: Site Remediation

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR 2002-0021; FRL-7549-3]

RIN 2060-AH-12

National Emission Standards for Hazardous Air Pollutants: Site Remediation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This action promulgates national emission standards for hazardous air pollutants (NESHAP) from site remediations. The final rule implements the Clean Air Act (CAA) section 112(d) to control hazardous air pollutants (HAP) emissions at major sources where remediation technologies and practices are used at the site to clean up contaminated environmental media (

e.g.

, soils, groundwaters, or surface waters) or certain stored or disposed materials that pose a reasonable potential threat to contaminate environmental media. Site remediations subject to the final rule are required to control emissions of organic HAP by meeting emissions limitations and work practice standards reflecting the application of maximum achievable control technology (MACT). The final rule applies to certain types of site remediation activities that are conducted at a facility where non-remediation sources are a major source of HAP emissions. Some site remediations already regulated by rules established under the Comprehensive Environmental Response and Compensation Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA) are not subject to the final rule.

The HAP emitted by site remediation activities can include benzene, ethyl benzene, toluene, vinyl chloride, xylenes, and other volatile organic compounds (VOC). The range of potential human health effects associated with exposure to these organic HAP and VOC include cancer, aplastic anemia, upper respiratory tract irritation, liver damage, and neurotoxic effects (

e.g.

, headache, dizziness, nausea, tremors).

EFFECTIVE DATE:

October 8, 2003.

ADDRESSES:

Docket.

The official public docket is the collection of materials used in developing the final rule and is available for public viewing at the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004.

FOR FURTHER INFORMATION CONTACT:

For information concerning applicability and rule determinations, contact your State or local representative or the appropriate EPA Regional Office representative. For information concerning the analyses performed in developing the final rule, contact Mr. Greg Nizich, Waste and Chemical Processes Group, Emission Standards Division (C439-03), U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-3078, facsimile number (919) 541-0246, electronic mail (e-mail) address

nizich.greg@epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities.

Categories and entities potentially regulated by this action include:

Category

NAICS

1

Examples of regulated entities

Industry

325211, 325192, 325188, 32411, 49311, 49319, 48611, 42269, 42271

Site remediation activities at businesses at which materials containing organic HAP currently are or have been in the past stored, processed, treated, or otherwise managed at the facility. These facilities include: organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, and other manufacturing facilities with co-located site remediation activities.

Federal Government

Federal agency facilities that conduct site remediation activities to clean up materials contaminated with organic HAP.

State/Local/Tribal Government

Tribal governments that conduct site remediation activities to clean up materials contaminated with organic HAP.

1

North American Industry Classification System (NAICS) code. Representative industrial codes at which site remediation activities have been or are currently conducted at some but not all facilities under a given code. The list is not necessarily comprehensive as to the types of facilities at which a site remediation cleanup may potentially be required either now or in the future.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action.

A comprehensive list of NAICS codes cannot be compiled for businesses or facilities potentially regulated by the final rule due to the nature of activities regulated by the source category. The industrial code alone for a given facility does not determine whether the facility is or is not potentially subject to the final rule. The final rule may be applicable to any type of business or facility at which a site remediation is conducted to clean up media contaminated with organic HAP and other hazardous material. Thus, for many businesses and facilities subject to the final rule, the regulated sources (

i.e.

, the site remediation activities) are not the predominant activity, process, operation, or service conducted at the facility. In these cases, the industrial code indicates a primary product produced or service provided at the facility rather than the presence of a site remediation performed to support the predominant function of the facility. For example, NAICS code classifications where site remediation activities are currently being performed at some but not all facilities include, but are not limited to, petroleum refineries (NAICS code 32411), industrial organic chemical manufacturing (NAICS code 3251xx), and plastic materials and synthetics manufacturing (NAICS code 3252xx). However, we are also aware of site remediation activities potentially subject to the final rule being performed at facilities listed under NAICS codes for refuse systems, waste management, business services, miscellaneous services, and nonclassifiable.

To determine whether your facility is regulated by the action, you should carefully examine the applicability criteria in the final rule. If you have questions regarding the applicability of the final rule to a particular entity, consult the person listed in the preceding

FOR FURTHER INFORMATION CONTACT

section.

Docket.

The EPA has established an official public docket for this action including both Docket ID No. A-99-20 and Docket ID No. OAR-2002-0021. The official public docket consists of the documents specifically referenced in

this action, any public comments received, and other information related to this action. All items may not be listed under both docket numbers, so interested parties should inspect both docket numbers to ensure that they have received all materials relevant to the final rule. Although a part of the official docket, the public docket does not include Confidential Business Information or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

Electronic Docket Access.

You may access the final rule electronically through the EPA Internet under the

Federal Register

listings at

http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at

http://www.epa.gov/edocket/

to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in the above section. Once in the system, select “search,” then key in the appropriate docket identification number.

Worldwide Web (WWW).

In addition to being available in the docket, an electronic copy of the final rule will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the final rule will be placed on the TTN's policy and guidance page for newly proposed or promulgated rules at

http://www.epa.gov/ttn/oarpg.

The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review.

The NESHAP for site remediation was proposed on July 30, 2002 (67 FR 49398). Today's final rule announces the EPA's decision on the final rule. Under CAA section 307(b)(1), judicial review of the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by December 8, 2003. Only those objections to the final rule which were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under CAA section 307(b)(2), the requirements that are the subject of today's final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.

Outline.

The information presented in this preamble is organized as follows:

I. Background

A. What is the statutory authority for the final rule?

B. How did we develop the final rule?

C. What criteria are used in the development of the final rule?

II. Summary of Final Rule

A. Who must comply with the final rule?

B. What are the affected sources?

C. What are my compliance options?

D. What are the emissions limitations and work practice standards?

E. What are the requirements for remediation material that is shipped off-site?

F. What are the general compliance requirements?

G. What are the initial compliance requirements?

H. What are the continuous compliance requirements?

I. What are the notification, recordkeeping, and reporting requirements?

J. What are the compliance deadlines?

K. How does the “once in, always in” policy apply?

III. Responses to Major Comments on Proposed Rule

A. Why are we promulgating a NESHAP to regulate HAP emissions from site remediation activities?

B. How did we select the HAP to be regulated by the final rule?

C. How do we define site remediation for the final rule?

D. Why does the final rule not apply to CERCLA Superfund and RCRA Corrective Action cleanups?

E. Why does the final rule potentially apply to State and voluntary cleanup programs?

F. How does the final rule apply to cleanups of leaking underground storage tanks?

G. How does the final rule apply to cleanups of radioactive mixed waste?

H. How does the final rule apply to short-term site remediations at affected facilities?

I. How does the final rule apply to remediation materials sent off-site from affected facilities?

IV. Summary of Environmental, Energy, and Economic Impacts

A. What are the air emission impacts?

B. What are the cost impacts?

C. What are the economic impacts?

D. What are the non-air health, environmental and energy impacts?

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer Advancement Act

J. Congressional Review Act

I. Background

A. What Is the Statutory Authority for the Final Rule?

Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Major sources of HAP are defined by CAA section 112(a)(1) as those sources that have the potential to emit greater than 10 tons per year (tpy) of any one HAP or 25 tpy of any combination of HAP. Area sources are stationary sources of HAP that are not major sources. The category of major sources covered by today's final NESHAP for site remediation, was listed on July 16, 1992 (57 FR 31576). We included site remediation on the source category list to address HAP emissions at major sources where remediation technologies and practices are used at the site to clean up contaminated environmental media (

e.g.

, soils, groundwaters, or surface waters) or certain stored or disposed materials that pose a reasonable potential threat to contaminate environmental media.

B. How Did We Develop the Final Rule?

We proposed the Site Remediation NESHAP on July 30, 2002 (67 FR 49398). A 60-day public comment period (July 30, 2002 to September 30, 2002) was provided for the public to submit their comments on the proposed rule. Also, we offered to hold a public hearing to allow any interested persons to present their oral comments on the proposed rule. However, we did not receive a request from anyone to speak at the public hearing, so a public hearing was not held.

We received a total of 51 comment letters and e-mails regarding the proposed rule. Two commenters affiliated with the U.S. Department of the Navy independently submitted the same set of comments; and two

commenters from the State of Alabama each submitted two separate and distinct sets of comments.

The final rule promulgated by this action reflects our full consideration of all the comments we received on the rule proposal. Our responses to all of the substantive public comments on the proposal are presented in the background information document (BID) titled, “National Emission Standards for Hazardous Air Pollutant (NESHAP) for Site Remediation: Background Information for Promulgated Standards.” The BID is available in Docket No. OAR-2002-0021.

C. What Criteria Are Used in the Development of the Final Rule?

Under CAA section 112(d), we are directed to establish NESHAP for the control of HAP from both new and existing major sources. The CAA requires that each NESHAP reflect the maximum degree of reduction in emissions of HAP that is achievable for the source category or subcategory. This level of control is commonly referred to as the maximum achievable control technology (MACT).

The MACT floor is the minimum control level allowed for NESHAP and is defined under CAA section 112(d)(3). Establishing the MACT floor ensures that each standard is set at a level that assures that all major sources within a source category or subcategory achieve a level of control at least as stringent as that already achieved by the better-controlled and lower-emitting sources in the applicable source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards established for existing sources can be less stringent than standards for new sources, but the existing source standards cannot be less stringent than the average emissions limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources).

In developing NESHAP, we also consider control alternatives that are more stringent than the MACT floor. Section 112(d)(2) of the CAA allows us to establish standards that are more stringent than those that would be established by the MACT floor level based on the consideration of costs to achieve the emissions reductions, any health and environmental impacts, and energy requirements.

To determine MACT for the affected sources regulated by the Site Remediation NESHAP, we established at proposal that the MACT floor for existing affected sources associated with site remediation activities is some level of air emission control beyond no controls. Also, we decided to not compute an emission limitation statistically or identify specific control technology that represents the MACT floor for the site remediation sources because of the uniqueness of the site remediation source category, the extent of information available to us, and the complexities of gathering additional meaningful information (see 67 FR 49414-49415). Instead, we relied on provisions of CAA section 112(d)(2) that allow us to select MACT for a source category that is more stringent than the MACT floor.

We chose to select the MACT technology directly from alternatives beyond the MACT floor for each affected source type selected to be subject to the Site Remediation NESHAP. To do this, we looked at the types of air emission controls demonstrated to achieve control levels required under national air standards for sources similar to those sources that potentially may be associated with site remediations (particularly the NESHAP for Off-Site Waste and Recovery Operations under 40 CFR part 63, subpart DD, and the air standards for RCRA hazardous waste treatment, disposal, and facilities (TSDF) under subparts AA, BB, and CC in 40 CFR parts 264 and 265). Because the air emission controls needed to achieve the control levels required under the rules applicable to sources similar to those sources subject to the final Site Remediation NESHAP are now being implemented by facility owners and operators, we concluded that this demonstrates that these control levels are technically achievable, the costs are reasonable, and there are no adverse non-air quality health, environmental impacts, or energy requirements associated with the selected control levels.

Following proposal, we reviewed our data sources to determine the availability of additional information on air pollution controls currently in use for site remediation activities. No new data or information to update and supplement our original data were provided by commenters on the proposed rule. We concluded that our original database remains the best available source of information available to us. The control levels established by the emission limitation and work practices established by the final Site Remediation NESHAP are the same controls levels being implemented at similar sources subject to other NESHAP and related national air rules.

II. Summary of Final Rule

The final rule amends 40 CFR part 63 by adding subpart GGGGG—National Emission Standards for Hazardous Air Pollutants for Site Remediation. At proposal, we received comments stating that the organization, reliance on presenting many rule requirements in an exclusively tabular format, and extensive cross-referencing to provisions in other subparts which we used for the proposed rule made it difficult to read and understand. We have written the final rule to reflect those comments. Many of the requirements that were presented exclusively in tables in the proposed rule have been moved back into the regulatory text of the final rule, and the applicable tables were deleted. While these editorial changes to the final rule make it appear substantially different from the proposed rule, most of the technical and administrative requirements remain the same as proposed.

A. Who Must Comply With the Final Rule?

We have written the applicability requirements to clarify our intent as to what is a site remediation activity and how the final rule applies to these activities. You are subject to the final rule if you own or operate a facility that is a major source of HAP emissions and where a site remediation is conducted that meets the definitions and conditions specified in the final rule. Certain types of site remediations are explicitly exempted from being subject to the final rule.

Applicability Definitions and Conditions

In the final rule, we have added a new definition for the term “site remediation” and written our proposed definition of “remediation material” to clarify the final rule's applicability and to improve implementation of the final rule's requirements. Site remediation means one or more activities or processes used to remove, destroy, degrade, transform, immobilize, or otherwise manage remediation material, as defined in the final rule. Monitoring or measuring of contamination levels in media, whether by using wells, sampling, or other means, is not considered to be a site remediation.

We have written the definition of remediation material to clarify the term's meaning consistent with our

intent that the final rule address HAP emissions from site remediations to clean up environmental media contaminated with HAP (

e.g.,

soils, groundwaters, surface waters), as well as clean up certain stored or disposed materials that contain HAP and pose a reasonable potential threat to contaminate environmental media. The final Site Remediation NESHAP is applicable to those site remediations that involve the cleanup of materials with the potential to emit the HAP we have listed in the final rule. Also, the revised definition of remediation material used in the final rule explicitly identifies two groups of materials considered to be remediation materials for the purpose of implementing the final rule.

Remediation material as defined for the final Site Remediation NESHAP must contain one or more of the HAP listed in Table 1 of the final rule. Table 1 of the final rule presents a list of 97 specific organic HAP compounds, isomers, and mixtures, and is the same list that we proposed with one correction. The compound 1-1 dimethyl hydrazine was incorrectly included on list published with the proposed rule, and this compound has been deleted from the list in the final rule. If your site remediation does not involve the cleanup of remediation material containing any of the HAP listed in Table 1 of the final rule, then you are not subject to the final Site Remediation NESHAP.

The first group of materials included in the definition of remediation material addresses air emissions from site remediations to clean up environmental media contaminated with HAP. These materials are found in environmental media such as soil, groundwater, surface water, and sediments, or a mixture of such materials with liquids, sludges, or solids which is inseparable by simple mechanical removal processes and is made up primarily of media. Our use of the term “media” for the final rule does not include debris as defined in 40 CFR 268.2.

The second group of materials included in the definition of remediation material addresses air emissions from site remediations to clean up materials containing HAP that are stored or disposed at a site and that pose a reasonable potential threat to contaminating environmental media. These are defined to be materials containing HAP that are found in intact or substantially intact containers, tanks, storage piles, or other storage units. Examples of these materials include solvents, oils, paints, and other volatile or semi-volatile organic liquids found in buried drums, cans, or other containers; gasoline, fuel oil, or other fuels in leaking underground storage tanks; and solid materials containing volatile or semi-volatile organics in unused or abandoned piles. We do not consider remediation material, for example, to include waste or residue generated by routine equipment maintenance activities performed at a facility such as tank bottoms and sludges removed during tank cleanouts; sludges and sediments removed from active wastewater treatment tanks, surface impoundments, or lagoons; spent catalyst removed from process equipment; residues removed from air pollution control equipment; and debris removed during heat exchanger and pipeline cleanouts. The removal and subsequent management of these types of waste and residue materials are not remediation activities, but instead, are good operating and maintenance practices that facility owners and operators perform to help sustain process and air pollution control equipment performance at the equipment's design specifications and to extend the equipment's service life.

Hereafter in this preamble, the term remediation material is used as defined in the final Site Remediation NESHAP. Not all site remediations to clean up remediation material are subject to the final Site Remediation NESHAP. Certain site remediations are explicitly exempted from being subject to the final rule. Of the site remediations not specifically exempted, only site remediations to clean up remediation material that meet both of the additional applicability conditions specified in the rule are subject to the final rule.

We have written the final rule to clarify the applicability conditions used to determine if your site remediation is subject to the final rule. These conditions have not changed from the proposed rule other than we have reworded the regulatory language to better describe the types of site remediations we intend the final rule to affect. If your site remediation is not included on the list of exempted site remediations in § 63.7881(b) of the final rule or you can qualify for the facility-wide small HAP content exemption in § 63.7881(c), then you make a determination of whether both of the applicability conditions specified in the final rule apply to your cleanup. If either of the applicability conditions do not apply to your cleanup, then your site remediation is not subject to the final Site Remediation NESHAP.

The first applicability condition is that a site remediation to clean up remediation material must be co-located with one or more stationary sources of HAP emissions within a contiguous area and under common control that meets an affected source definition specified for a source category that is regulated by another NESHAP in 40 CFR part 63. The re-wording of this condition in the final rule eliminated the need for the term “MACT activity” that was included in the proposed rule. That term no longer appears. This condition applies regardless of whether or not the non-remediation affected stationary sources at your site are subject to, or exempted from, the control standards under the applicable subpart. For example, if a site remediation is performed at a petroleum refinery subject to 40 CFR part 63, subpart CC—National Emission Standards for Hazardous Air Pollutants from Petroleum Refineries, then a site remediation to clean up remediation materials conducted at the facility meets this applicability condition. If there are no stationary sources that meet this applicability condition at the facility where a site remediation is conducted, then you are not subject to the final rule.

We provided this condition to simplify the applicability determination process whereby an owner or operator of a site remediation with low HAP potential can easily determine that they are not subject to the Site Remediation NESHAP without having to estimate potential HAP emissions. This is a reasonable approach since we believe that remediation activities that are not collocated with a stationary source, or sources, meeting the affected source definition of another NESHAP would not be major sources by themselves. The one possible exception could be some CERCLA sites, which might themselves be major sources without regard for collocation with a major source, but these sites are exempt from the final rule.

The other applicability condition is that the facility at which you conduct a site remediation to clean up remediation material must be a major source, as defined in § 63.2 of the General Provisions to 40 CFR part 63. Your facility is a major source if it emits or has the potential to emit HAP above the threshold levels of 10 tpy for any single HAP and 25 tpy for any combination of HAP. All potential emissions of HAP from the entire facility (

i.e.,

both the remediation activity and all other facility activity) must be considered in making this calculation. It is also important to note that the determination of the major source status of a given facility is determined based on all HAP listed pursuant to CAA section 112(b) (

i.e.,

not just the HAP listed in Table 1 of the final Site Remediation NESHAP).

A source that is not a major source is an area source. If your HAP emission determination shows that when you conduct the site remediation your site will remain an area source (

i.e.,

the total potential HAP emissions from the existing sources at your site plus the estimated HAP emissions from the site remediation activities to be performed for the cleanup are less than the major source threshold levels), then your site remediation is not subject to the final Site Remediation NESHAP. If your site is currently an area source, but will become a major source when you conduct the site remediation, then your site remediation is subject to the final Site Remediation NESHAP. However, for this situation because of the uniqueness of this source category and the nature of the activities regulated by the final rule, there is a special exception to the “once in, always in” NESHAP policy as related to your facility's NESHAP compliance obligations.

Site Remediation Applicability Exemptions

The final rule does not apply to certain site remediations that are explicitly exempted, regardless of the organic HAP content of the remediation materials or the status of other stationary sources at the locations where these site remediations are conducted. In general, these exemptions apply to site remediation activities regulated under other Federal rules and requirements or which have special circumstances that make application of requirements under the final rule unnecessary or problematic. The exempted site remediations are listed in § 63.7881(b) of the final rule. The final Site Remediation NESHAP does not apply to CERCLA Superfund and RCRA corrective actions to clean up hazardous substances, hazardous wastes, and hazardous constituents. In short, we view the Superfund program under CERCLA and the hazardous waste corrective action program under RCRA as the functional equivalents of the establishment of MACT standards under CAA section 112. These programs, as part of the ROD process for Superfund cleanups and the RCRA permitting process for corrective action cleanups, require consideration of the same HAP emissions that we do in establishing MACT standards, and provide opportunity for public involvement in these site-specific remediation determinations. The RCRA and CERCLA statues apply more specifically to the remediation process than does MACT under the CAA and, unlike the CAA, authorize site specific means of dealing with remediation activities and their associated HAP emissions. Consequently, we are exempting these activities from the MACT standards promulgated in the final rule.

In response to comments on the proposed exemptions for site remediations to clean up contamination from units managing radioactive mixed waste, we collected additional information and reviewed the basis for the proposed exemption. Because the technical issues related to safety concerns for containers and other storage units managing radioactive mixed wastes do not apply to site remediation treatment unit process vents and equipment leaks, the final Site Remediation NESHAP limits the exemption for radioactive mixed waste to only remediation material management units (a term explained fully below). Remediation activities (that meet the final rule applicability criteria) to clean up radioactive mixed waste are subject to standards for treatment unit process vents and equipment leaks under the final Site Remediation NESHAP. Also, we have written the final rule language to clarify the applicability of this exemption to site remediations involved with the cleanup of radioactive mixed wastes. To be consistent with the definitions used in RCRA, mixed waste is defined in the final rule as waste that contains both hazardous waste subject to RCRA and either source, special nuclear, or byproduct material subject to the Atomic Energy Act of 1954. Also, an additional reference to the Waste Isolation Pilot Plant Land Withdrawal Act (Public Law 102-579) is added to the final rule exemption language to include the management of mixed transuranic waste within the scope of the exemption.

Finally, the final rule maintains the other exemptions we proposed. The final rule does not apply to a site remediation to clean up leaking underground storage tanks located at a gasoline service station. The final rule does not apply to any site remediation conducted at a farm or residential site. Also, the final rule does not apply to a site remediation conducted at a research and development facility that meets the requirements of CAA section 112(c)(7).

The final rule retains the proposed exemption for site remediations of short duration. However, this exemption has been modified from the proposed exemption to address public comments we received and to resolve potential issues regarding the practical implementation and enforcement of the exemption.

Under the short-term site remediation exemption, a site remediation at a facility subject to the final rule is not subject to the emissions limitations and work practice standards in the final Site Remediation NESHAP if the site remediation can be completed within 30 consecutive calendar days as determined from the day on which you actually begin work at the site to physically clean up the remediation materials. Certain administrative and site preparation activities you need to perform before you can physically begin the cleanup are not counted as part of this 30-day exemption period. These pre-activities consist of the following: activities you perform to characterize the type and extent of the contamination by collecting and analyzing samples, obtaining any permits required by State or local authorities to conduct the site remediation, scheduling workers and necessary equipment, and arranging for any contractor assistance in performing the site remediation. To qualify for the short-term site remediation exemption, you must prepare and maintain at your facility written documentation describing the exempted site remediation and listing the initiation and completion dates for the site remediation.

B. What Are the Affected Sources?

The final rule designates three types of affected sources subject to requirements under the final rule: process vents on in-situ and ex-situ remediation treatment processes; units used to manage remediation materials (called remediation material management units” in the final rule); and equipment leaks from pumps, valves, and other ancillary equipment associated with the remediation activities. The affected source designations in the final rule are the same as proposed.

The affected source for process vents is the entire group of process vents associated with the in-situ and ex-situ remediation processes used at your site to remove, destroy, degrade, transform, or immobilize hazardous substances in the remediation material. Examples of process vents for in-situ remediation processes include the discharge vents to the atmosphere used for soil vapor extraction and underground bioremediation processes. Examples of process vents for ex-situ remediation processes include vents for thermal desorption, bioremediation, and stripping processes (air or steam stripping).

The term remediation material management unit is used in the final rule to refer collectively to any tank,

container, surface impoundment, oil-water separator, organic-water separator, or transfer system used to store, transfer, treat, or otherwise manage remediation material at the site. The affected source for remediation material management units is the entire group of tanks, surface impoundments, containers, oil-water separators, and transfer systems used for the site remediation activities involving clean up of remediation material.

The affected source for equipment leaks is the entire group of remediation equipment components (pumps, valves, etc.) that contain or contact remediation material having a total concentration of HAP listed in Table 1 of the final rule equal to or greater than 10 percent by weight, and are intended to operate for 300 hours or more during a calendar year.

C. What Are My Compliance Options?

Each site remediation subject to the final Site Remediation NESHAP must meet the applicable standards specified in the final rule for the types of the affected sources associated with the site remediation unless the site remediation qualifies for an exemption provided in the final rule. Separate sets of standards are established for each of the affected source groups. These standards and exemptions were included in the proposed rule. A new section has been added to the final rule titled “General Standards” to better delineate and clarify the overall compliance options and exemptions allowed under the final rule for each affected source group.

Process Vents

The general standards for affected process vents describe three compliance options. The first compliance option is to control HAP emissions from the affected process vents to meet the facility-wide emissions limitations and associated work practice standards established in the final rule.

The second compliance option is to determine that the average total volatile organic HAP (VOHAP) concentration in the remediation material treated or managed by the process that is vented through the affected process vents is less than 10 parts per million by weight (ppmw). The determination of the VOHAP concentration is based on the concentration of organic HAP listed in Table 1 of the final rule using sampling and analysis procedures specified in the final rule. Affected process vents that meet this option are not subject to air pollution control requirements under the final rule.

The third compliance option is for process vents that are already using air pollution controls to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. Under this option, you treat your remediation material in a process for which the HAP emissions from the affected process vent are controlled in compliance with the standards specified in the applicable subpart. This means you are complying with all applicable emissions limitations and work practice standards under the other subpart (

e.g.

, you install and operate the required air pollution control devices or have implemented the required work practice to reduce HAP emissions to levels specified by the applicable subpart). This provision only applies if the other subpart actually specifies a standard requiring control of HAP emissions from your affected process vents. It does not apply to any exemption of the affected source from using air pollution controls allowed by the other applicable subpart.

Remediation Material Management Units

The general standards for remediation material management units provide two compliance options that apply to all affected units. Two other compliance options are available to some affected remediation material management units that meet special conditions specified in the final rule.

The first compliance option available to all affected remediation material management units is to control HAP emissions from the affected remediation material management unit according to the emissions limitations and work practice standards specified in the final rule. Separate emissions limitations and work practice standards are established under the final rule for each type of remediation material management unit (

i.e.

, separate standards for tanks, separate standards for containers, etc.).

The second compliance option available to all affected remediation material management unit is to determine the average total VOHAP concentration of the organic HAP listed in Table 1 of the final rule that is contained in the remediation material. If the VOHAP concentration of the material is less than 500 ppmw, then the remediation material management units handling this material are not subject to the applicable emissions limitations and work practice standards established under the final rule. The VOHAP concentration determination is based on the organic HAP content of the remediation material at the “point-of-extraction” as measured or estimated using the procedures specified in the final rule. Point-of-extraction is a defined term in the final rule that means a point above ground where you can collect samples of a remediation material before or at the first point where organic constituents in the material have the potential to volatilize and be released to the atmosphere, and (in all instances) before placing the material in a remediation material management unit.

The final rule provides two other compliance options that apply to certain affected remediation material management units that operate under the special circumstances specified in the final rule. The first of these compliance options is available for any affected remediation material management unit also subject to another subpart under 40 CFR part 61 or 63. Under this option, you must control HAP emissions from the affected remediation material management unit in compliance with the standards specified in the applicable subpart. Implementation of this provision is the same as discussed above for process vents. The provision only applies to your affected remediation material management unit if the other subpart actually specifies a standard requiring control of organic HAP emissions from the same type of unit as your remediation material management unit (

i.e.

, if your affected remediation material management unit is a tank, then the other subpart must specify organic HAP emission control requirements for tanks). It does not apply to any exemption of the affected source from using air pollution controls allowed by the other applicable subpart (

e.g.

, if the other subpart exempts tanks with capacities less 10,000 gallons from the control requirements, that exemption does not apply to the affected tanks you use for your site remediation activities).

A final compliance option is available for a remediation material management unit that is an open tank or surface impoundment and is used for a biological treatment process. Under this compliance option, you must demonstrate that the treatment process meets one of HAP biodegradation or removal levels specified in the final rule.

The final rule includes a special site-specific exemption for remediation material management units that manage materials with small quantities of the organic HAP listed in Table 1 of the final rule. Due to the nature of the media contamination or other site-specific circumstances, the cleanup at a site may require use of specialized or custom equipment that meets the definition of a remediation material management unit under the final rule

but this equipment's design or configuration makes it technically problematic or very expensive to install and operate the air pollution controls required under the final rule for the particular type of remediation material management unit. Therefore, the final rule provides for a site-specific exemption from the applicable emissions limitations and work practice standards under the final rule to allow use of these remediation material management units in situations where the potential for HAP emissions is relatively low. A remediation material management unit can be exempted from the applicable emissions limitations and work practice standards under the final rule provided that the owner or operator determines that the total annual quantity of the organic HAP listed in Table 1 of the final rule that is contained in the remediation material placed in the unit remains at a level less than 1 Mg/yr.

Equipment Leaks

Under the final rule, you must control HAP emissions from equipment leaks from each equipment component that contains or contacts remediation material having a total concentration of the organic HAP listed in Table 1 of the final rule equal to or greater than 10 percent by weight, and are intended to operate for 300 hours or more during a calendar year. Control of these emissions is achieved by implementing a leak detection program and installing equipment.

D. What Are the Emissions Limitations and Work Practice Standards?

The emissions limitations and work practice standards established by the final Site Remediation NESHAP remain essentially the same as proposed. The standards are the same for existing, reconstructed, and new sources.

Process Vents

The process vent standards are the same regardless of whether the process is an in-situ or ex-situ treatment process. These standards apply to the entire group of affected process vents associated with all of the treatment processes used for your site remediation.

The first option is to reduce emissions of total organic HAP emissions listed in Table 1 of the final rule from all affected process vents at the facility to a level less than 1.4 kilograms per hour (kg/hr) and 2.8 Mg/yr, which is approximately 3.0 pounds per hour (lb/hr) and 3.1 tpy, respectively. You must achieve both the hourly and annual mass emissions limits to comply with this option under the final rule. If the total organic HAP emissions from all affected process vents associated with your site remediation exceed either the hourly or annual mass emissions limitations, then you must use appropriate controls to reduce the emission levels to comply with the emissions limits. If you can meet both the hourly and annual mass emissions limits using no controls, or with federally-enforceable controls, then no additional controls are required under the final rule for your affected process vents.

If you choose, you may demonstrate compliance with the hourly and annual emission limits based on total organic compounds (TOC) minus methane and ethane in place of total organic HAP. Because your compliance determinations based on TOC will be simpler and less expensive than if you use total organic HAP, it may be advantageous for your particular site-specific conditions to choose to comply with the emission limits based on TOC.

As an alternative, you may comply with an emission limit that requires that you reduce the total organic HAP emissions listed in Table 1 of the final rule from all of the affected process vents by at least 95 weight percent. Again, you may demonstrate compliance with this emission limit using TOC emissions (minus methane and ethane) in place of using total organic HAP emissions. At sites with multiple affected process vent streams, you may comply with this option by a combination of controlled and uncontrolled process vent streams that achieve the 95 percent reduction standard on an overall mass-weighted average. You may exclude certain low flow and low HAP concentration process vent streams explicitly specified in the final rule from the percent reduction calculation. Under this option, you must meet the operating limit and work practice standards specified in the final rule for each control device and closed vent system used to control your process vent streams.

Remediation Material Management Units

The air pollution control requirements for remediation material management units in the final Site Remediation NESHAP are based on using the applicable national emission standards established in other subparts of 40 CFR part 63 for specific types of equipment whenever available and appropriate to do so for this source category. For applications where appropriate NESHAP are not included in the final Site Remediation NESHAP, we have relied on establishing air emission control requirements that are consistent with the requirements under 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations. Subpart DD applies to facilities that are major sources of HAP; receive wastes, used oils, or used solvents generated at off-site locations; and manage and treat these materials in units and processes collectively referred to as off-site waste and recovery operations (OSWRO). The final rule has been written to directly cross-reference the appropriate subparts of 40 CFR part 63.

Tanks.

Under the final rule for those tanks managing remediation materials with a maximum HAP vapor pressure of the remediation material less than 76.6 kPa and required to meet the air emission control requirements, you must achieve the applicable level of control (Tank Level 1 or Tank Level 2) determined by the tank design capacity and the maximum HAP vapor pressure of the remediation material placed in the tank. For each tank required to use Tank Level 1 controls, you must use a fixed roof according to the requirements in 40 CFR part 63, subpart OO—National Emission Standards for Tanks—Level 1. For each tank required to use Tank Level 1 controls, you may also comply with the final rule by using Tank Level 2 controls if you choose to do so. For each tank required to use Tank Level 2 controls, you must comply with one of five compliance options: use a fixed roof with an internal floating roof, use an external floating roof, use a fixed roof vented to a control device, use a pressurized tank that operates as a closed system during normal operations, or locate an open tank inside a permanent total enclosure that is vented to a control device.

The final rule requirements for the Tank Level 2 internal and external floating roof control option requirements have been revised since proposal by replacing the cross-reference to the floating roof requirements in the 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations with a cross-reference to the floating roof control requirements in 40 CFR part 63, subpart WW—National Emission Standards for Storage Vessels (Tanks)—Control Level 2. The requirements for floating roofs in both rules are essentially the same. This change was made to be consistent with our format changes to the final Site Remediation NESHAP to directly cross-reference the applicable control

requirement where applicable to and appropriate for the type of remediation material management units (in this case tanks) regulated by the final rule.

We stated at proposal that the basis for the selection of tank control requirements in the final Site Remediation NESHAP is the tank control requirements in the 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations (67 FR 49415). We inadvertently omitted from the version of proposed Site Remediation NESHAP published in the

Federal Register

the tank control requirements for tanks managing remediation materials with a maximum HAP vapor pressure of 76.6 kPa or greater included under 40 CFR part 63, subpart DD. For the final rule, we have corrected this omission and have added to the air pollution control requirements for tanks managing these remediation materials. The controls required under the final Site Remediation NESHAP are the same requirements in 40 CFR part 63, subpart DD. Tanks managing remediation materials with a maximum HAP vapor pressure of 76.6 kPa or greater use one of the Tank Level 2 control options other than a floating roof.

Containers.

The final rule establishes emissions limitations and work practice standards to control organic HAP emissions from containers having a design capacity greater than 0.1 cubic meters (approximately 26 gallons). For those containers required to use air pollution controls, you must achieve the applicable level of control determined by the container design capacity, the organic content of the remediation material in the container, and whether the container is used for a waste stabilization process. You must comply with the specified requirements for the applicable control level in 40 CFR part 63, subpart PP—National Emission Standards for Containers.

Surface impoundments.

For each surface impoundment required to use air pollution controls, you must use a floating membrane cover or a cover vented to a control device according to the requirements in 40 CFR part 63, subpart QQ—National Emission Standards for Surface Impoundments.

Separators.

For each oil-water or organic-water separator required to use air pollution controls, you must use a fixed roof, use a floating roof, vent emissions to a control device, or use a pressurized separator according to the requirements in 40 CFR part 63, subpart VV—National Emission Standards for Oil-Water and Organic-Water Separators.

Transfer systems.

For each individual drain system required to use air pollution controls, you must comply with the requirements in 40 CFR part 63, subpart RR—National Emission Standards for Individual Drain Systems. For an affected transfer system other than individual drain systems, you are required to comply with one of three options: use covers, use continuous hard-piping, or use an enclosure vented to a control device.

Closed Vent Systems and Control Devices.

In final Site Remediation NESHAP we have added a separate series of sections (§§ 63.7925 through 63.7928) that specify in one part of the final rule all of the emissions limitations and work practice standards that apply to each closed-vent system and control device you use to meet the requirements in another section of the final rule. The same requirements for closed-vent systems and control devices that we proposed are now presented in these sections. Each control device you use to meet requirements under the final Site Remediation NESHAP (with the exception of the facility-wide process vent emission limits) must reduce emissions of total organic HAP listed in Table 1 of the final rule or the emissions of TOC (minus methane and ethane) by 95 percent by weight. If a combustion control device is used (thermal incinerator, catalytic incinerator, boiler, or process heater), a second compliance option available to you is for the control device to reduce the concentration of total HAP listed in Table 1 of the final rule or TOC (minus methane and ethane) to 20 parts per million by volume (ppmv) or less on a dry basis corrected to 3 percent oxygen. All control devices you use to meet requirements under the final rule (including any control devices you use to meet the facility-wide process vent emission limits) must meet operating limits for each type of control device and work practice standards for closed vent systems and certain types of control devices.

In addition, we have added to the final rule several more control device compliance options that are under 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations for emissions vented to a boiler, process heater, or fuel system but was not included in the proposed Site Remediation NESHAP. Under these compliance options, as an alternative to complying with the 95 percent reduction requirement for control devices, you may comply with any of the following work practice standards: introduce the vent stream into the flame zone of the boiler or process heater and maintain the conditions in the combustion chamber at a residence time of 0.5 seconds or longer and at a temperature of 760°C or higher, or introduce the vent stream with the fuel that provides the predominant heat input to the boiler or process heater (

i.e.

, the primary fuel), or introduce the vent stream to a boiler or process heater for which you either have been issued a final permit under 40 CFR part 270 and complies with the requirements of 40 CFR part 266, subpart H—Hazardous Waste Burned in Boilers and Industrial Furnaces; or has certified compliance with the interim status requirements of 40 CFR part 266, subpart H.

Equipment Leaks

The final rule establishes work practice standards to control organic HAP emissions from leaks in pumps, compressors, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, flanges and other connectors, and product accumulator vessels that either contain or contact a regulated material that is a fluid (liquid or gas) and has a total concentration of the organic HAP listed in Table 1 of the final rule equal to or greater than 10 percent by weight. These work practice and equipment standards do not apply to equipment that operates less than 300 hours per calendar year. You have the option of complying with the provisions of either 40 CFR part 63, subpart TT—National Emission Standards for Equipment Leaks—Control Level 1 or 40 CFR part 63, subpart UU—National Emission Standards for Equipment Leaks—Control Level 2. Both of these subparts require you to implement a leak detection and repair program (LDAR) and to make certain equipment modifications.

E. What Are the Requirements for Remediation Material That Is Shipped Off-Site?

Under the final rule, where remediation material that will be required to be managed in either remediation material management units or treatment processes equipped with process vents is shipped to an off-site facility, you may need to meet certain requirements before transferring the material and maintaining records for the transferred materials. We have written the final regulatory language for the requirements for transfer of remediation wastes to reflect our original objective in establishing the requirements. Also, we have simplified the reporting and recordkeeping requirements in the final

rule related to some off-site transfers of remediation materials. Finally, we have included in the final rule an explicit provision stating that the acceptance by a facility owner or operator of remediation material from a site remediation subject to the final Site Remediation NESHAP does not, by itself, require the facility owner or operator to obtain a title V permit.

F. What Are the General Compliance Requirements?

Under the final rule, you must meet each applicable emission limitation and work practice standard in the final rule at all times, except during periods of startup, shutdown, and malfunction. You must develop and implement a written startup, shutdown, and malfunction plan for your site remediation according to the provisions of 40 CFR 63.6(e)(3). You also must develop and implement a site-specific monitoring plan for each continuous monitoring system required by the final rule. The plan must address installation location, performance and equipment specifications, and procedures for performance evaluations, operation and maintenance, data quality assurance, and recordkeeping and reporting. We have deleted the proposed operation and maintenance requirements for continuous parameter monitoring systems from the final rule. We are planning to develop and promulgate a single set of operation and maintenance requirements for continuous parameter monitoring systems applicable to all NESHAP under 40 CFR part 63.

G. What Are the Initial Compliance Requirements?

Initial compliance with the emissions limitations and work practice standards for process vents is achieved by demonstrating compliance with the selected set of emission limits (

i.e.

, mass emission limit or percent reduction). If a control device is used to achieve compliance with the emission limits, you also must establish your operating limits for the control device based on the values measured during the performance test or determined by the design evaluation.

Initial compliance with the emissions limitations and work practice standards for remediation material management units is achieved by demonstrating that the unit meets all applicable air emission control requirements for the unit. If a control device is used, initial compliance is determined by either: performing a performance test according to 40 CFR 63.7 and using specific EPA reference test methods, or performing a design evaluation according to procedures specified in the final rule. You also must establish your operating limits for the control device based on the values measured during the performance test or determined by the design evaluation.

H. What Are the Continuous Compliance Provisions?

To demonstrate continuous compliance with the applicable emissions limitations and work practice standards under the final rule, you must perform periodic inspections and continuous monitoring of certain types of air pollution control equipment you use to comply with the final rule. In those situations when a deviation from the operating limits specified for a control device is indicated by the monitoring system or when a damaged or defective component is detected during an inspection, you must implement the appropriate corrective measures.

To demonstrate continuous compliance with an emission limitation for a given affected source, you must continuously monitor air emissions or operating parameters appropriate to the type of control device you are using to comply with the standard, and keep a record of the monitoring data. Compliance is demonstrated by maintaining each of the applicable parameter values within the operating limits established during the initial compliance demonstration for the control device.

There are different requirements for demonstrating continuous compliance with the work practice standards, depending on which standards are applicable to a given affected source. To ensure that the control equipment used to meet an applicable work practice standard is properly operated and maintained, the final rule requires that you periodically inspect and monitor this equipment.

I. What Are the Notification, Recordkeeping, and Reporting Requirements?

The final rule requires that you keep records and file reports consistent with the notification, recordkeeping, and reporting requirements in 40 CFR part 63, subpart A. Two basic types of reports are required: initial notification and semiannual compliance reports. The initial notification report advises the regulatory authority of applicability for existing sources or of construction for new sources.

The initial compliance report demonstrates that compliance has been achieved. This report contains the results of the initial performance test or design evaluation, which includes the determination of the reference operating parameter values or range and a list of the processes and equipment subject to the standards. Subsequent compliance reports describe any deviations of monitored parameters from reference values; failures to comply with the startup, shutdown, and malfunction plan (SSMP) for control devices; and results of LDAR monitoring and control equipment inspections.

Records required under the proposed standards must be kept for 5 years, with at least the 2 most recent years being kept on the facility premises. These records include copies of all reports that you have submitted to the responsible authority, control equipment inspection records, and monitoring data from control devices demonstrating that operating limits are being maintained. Records from the LDAR program and storage vessel inspections, and records of startups, shutdowns, and malfunctions of each control device are needed to ensure that the controls in place are continuing to be effective.

J. What Are the Compliance Deadlines?

Each affected source associated with a site remediation is an existing source if you commenced construction or reconstruction of the source before July 30, 2002. Each affected source associated with a site remediation is a new source if you commenced construction or reconstruction of the affected source on or after July 30, 2002. An affected source is reconstructed if it meets the definition of “reconstruction” in 40 CFR 63.2.

Existing sources associated with a site remediation subject to the final Site Remediation NESHAP must comply with the final rule requirements by October 9, 2006. New sources, with the exception of those new sources managing remediation material that is a radioactive mixed waste, must be in compliance with the final rule requirements on the final rule's effective date or, if it is not yet operational, upon initial startup of the source.

Under the final Site Remediation NESHAP, remediation activities (which meet the final rule applicability criteria) that clean up radioactive mixed waste are subject to standards for treatment unit process vents and equipment leaks. If you have a new affected source that manages remediation material that is a radioactive mixed waste, and its initial startup date is on or before October 8, 2003, you must be in compliance with the final rule requirements no later than October 9, 2006. If the affected source's initial startup date is after October 8, 2003, you must be in compliance with

the final rule requirements upon initial startup.

K. How Does the “once in, always in” Policy Apply?

We explained at proposal why site remediation is a unique source category (see 67 FR 49400-49401). Because of its uniqueness, we specifically evaluated how the final Site Remediation NESHAP could be implemented within the framework of our existing policies for implementing the MACT standards promulgated under CAA section 112. Our “once in, always in” policy is that once a facility or source is subject to a MACT standard, it remains subject to that standard as long as the affected source definition or criteria are met. In the preamble to the proposed rule, we discussed our decision that the once in, always in policy should not apply to the site remediation source category for those facilities that are area sources prior to and after, but not during, the cleanup activity. We received many public comments supporting this decision. We are reiterating here how we will apply the once in, always in policy to facilities that conduct site remediations in situations where a facility is an area source prior to the remediation activity, but where addition of the potential HAP emissions from the remediation activities increases the facility's potential to emit (PTE) to levels such that the facility exceeds the 10 or 25 ton HAP thresholds for a major source.

Because the facility is then a major source of HAP, another operation at the facility, such as a manufacturing process, would be subject to NESHAP for other source categories located at their facility. Furthermore, after the remediation is completed, the facility would, in terms of potential emissions, essentially be back to where it was as an area source (assuming no change in the facility plant operations). Under the once in, always in policy, the facility would remain subject to the NESHAP that was triggered by the limited duration change of source status from area to major brought about by the increase in PTE from the site remediation activity.

In the situation described above, the once in, always in policy would create an obvious disincentive for owners or operators to engage in site remediations, particularly since voluntary remediation would be affected by the final rule. Our intent is to not adopt requirements that create incentives to avoid a cleanup or result in the selection of less desirable or less protective remediation approaches. Therefore, we have determined that the once in, always in policy does not apply where a facility's status changes from area source to major source, solely as a result of remediation activities regulated by the Site Remediation NESHAP, where the facility returns to area source status after the cleanup activity.

III. Responses to Major Comments on Proposed Rule

Our responses to all of the substantive public comments on the proposal are presented in the BID which is available in Docket No. OAR-2002-0021.

A. Why Are We Promulgating NESHAP To Regulate HAP Emissions From Site Remediation Activities?

Comment:

Several commenters disagreed with our decision to establish a NESHAP regulating HAP emissions from site remediation activities. The commenters argued that such a NESHAP is not needed for several reasons: the level of HAP emissions from the sources that would be subject to the final rule is too low to warrant regulation by a NESHAP, adequate air emissions controls already are imposed at sites subject to risk assessment, and a NESHAP discourages site owners and operators from initiating and conducting voluntary cleanups.

Response:

Section 112 of the CAA requires that we establish MACT standards for the control of HAP from both new and existing major sources of HAP. Section 112(a)(1) defines a “major source” as “ * * * any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. * * * ” We have codified essentially this same definition into § 63.2 of the General Provisions to part 63. We have long interpreted this definition as requiring that all sources of HAP within a plant site must be aggregated, so long as the sources are geographically adjacent and under common control (see

e.g.

, 59 FR 12412, March 16, 1994). This interpretation was sustained by the court in

National Mining Ass'n

v.

EPA,

59 F. 3d 1351, 1355-1359 (D.C. Cir. 1995). A consequence, then, is that sources of HAP which are part of a major source, but which would not themselves (viewed separately) be major sources, are still classified as major sources and are subject to the requirements of CAA section 112(c) and (d), which command us to list all categories of major sources and establish technology-based standards for those sources. The result, for purposes of site remediation activities, is that all such remediations conducted at locations which, taken as a whole are major sources, are themselves required to be controlled by MACT standards in the final rule.

We determined that there are major sources of HAP where site remediations are now being conducted or may be conducted in the future to clean up contaminated environmental media or certain stored or disposed materials that pose a reasonable potential threat to contaminate environmental media. The levels of HAP emissions from remediation activities at a given cleanup site depend on a combination of site-specific factors including the type of remediation processes used and activities conducted; the quantity, HAP composition, and other characteristics of the remediation material; and the time required to complete the cleanup. We recognize that at some cleanup sites the levels of HAP emissions from the remediation activities will be low. However, at other cleanup sites the potential level of HAP emissions from the remediation activities can be substantial and appropriate air pollution controls are needed to protect public health and the environment.

We already have established requirements under our RCRA hazardous waste corrective action and CERCLA Superfund programs which address the air emissions from certain remediation activities based largely on site-specific risk assessments. However, these requirements do not apply universally to all site remediations with the potential to emit HAP. There are site remediations not subject to these federally-enforceable requirements. To meet our congressional directive under CAA section 112, we are promulgating the final Site Remediation NESHAP applicable to those site remediations not subject to federally-enforceable requirements that will effectively control HAP emissions.

Finally, the fundamental objective of a site remediation is to mitigate a detected risk to public health or the environment by successfully completing the cleanup of media or other materials at the site that is contaminated by a hazardous substance. It is commendable when a site owner or operator voluntarily initiates and conducts a cleanup. However, the fact that a cleanup is being conducted voluntarily as opposed to being conducted to comply with a Federal or State regulatory requirement or fulfill a court directive does not obviate or excuse the use of appropriate air pollution controls to those site remediation activities with

the potential to emit substantial quantities of HAP.

B. How Did We Select the HAP To Be Regulated by the Final Rule?

Comment:

Several commenters requested that we reconsider our selection of which HAP are regulated under the final rule to include metals and inorganic compounds listed as HAP. In particular, the commenters stated that beryllium and other heavy metals should be included because these HAP cause harm to public health and welfare. Other commenters supported our decision not to regulate remediation activities that emit metal HAP or other inorganic HAP. One commenter stated that the final rule should be based on a HAP list developed specifically for site remediation instead of using the list under 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations.

Response:

A site remediation potentially could be required at any of a wide variety of industrial facilities, manufacturing plants, waste treatment and disposal facilities, and other types of sites. Consequently, the contaminating substances at a site requiring cleanup could be any of the organic, metal, or inorganic chemicals or groups of chemicals that are listed as HAP pursuant to CAA section 112(b). However, some of these contamination substances that are also listed as HAP have no or minimal potential to be emitted to the atmosphere from the site remediation activities performed at the site to clean up the contamination (notwithstanding that metal and other inorganic HAP may be present in the material being remediated).

In developing the proposed Site Remediation NESHAP, we considered all of the HAP listed pursuant to CAA section 112(b) for regulation by the proposed rule (see 67 FR 49413). Based on the information available to us at proposal regarding the cleanup of media contaminated with metals or other inorganic HAP, many of the remediation techniques used for these cleanups do not release the metals or inorganic HAP to the atmosphere. In cases where remediation material containing a metal or inorganic HAP is burned in an incinerator or other combustion unit, the combustion unit must already meet air standards under the CAA and RCRA that limit organic, particulate matter, metals, and chloride emissions. Therefore, we concluded that metals and other inorganic compounds listed as HAP pursuant to CAA section 112(b) do not need to be regulated by the final Site Remediation NESHAP. We specifically requested comment at proposal on our conclusion. We received some additional information from commenters supporting our decision not to include any metal or inorganic HAP on our list of regulated HAP for the final Site Remediation NESHAP. We received no information from commenters to support a determination that metal or inorganic HAP are being emitted from site remediation activities. Therefore, we continue to believe that metal and other inorganic compounds HAP do not need to be addressed by the final Site Remediation NESHAP.

In selecting the organic HAP to be regulated by the final Site Remediation NESHAP, we chose at proposal to be consistent with the approach we used for under 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations as well as other NESHAP promulgated for source categories with large diversity in the organic chemical constituents present in the materials managed at any given facility. Under this approach, a specific list of pollutants is selected that reasonably ensures MACT control of the organic HAP emitted from the source. We used this approach to develop the HAP list for under 40 CFR part 63, subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations by evaluating each chemical or chemical group listed as a HAP in CAA section 112(b) with respect to its potential to be emitted from a waste management or recovery operation (see 59 FR 1921).

Subpart DD under 40 CFR part 63 does not apply to OSWRO sources managing wastes received from site remediations. However, the data base that we used to select the list of HAP for subpart DD under 40 CFR part 63 included remediation wastes sent to hazardous waste TSDF. We concluded that this data base is also representative of the range of organic HAP chemicals having the potential to be emitted from the sites requiring cleanup of media contaminated with volatile or semi-volatile organics and other remediation material. Therefore, we proposed that same list of organic HAP used for the subpart DD under 40 CFR part 63 also be used for the final Site Remediation NESHAP. We requested comment at proposal regarding the use of this list of organic HAP for the final Site Remediation NESHAP. We received no new data from commenters, and have not ourselves found additional data since proposal to cause us to alter our conclusion. These data are the best information available representative of the range of organic HAP chemicals having the potential to be emitted from site remediation activities, and that it is most appropriate to use also the HAP list from subpart DD under 40 CFR part 63 for the Site Remediation NESHAP.

When we developed the HAP list for subpart DD under 40 CFR part 63, we evaluated each organic chemical or chemical group listed as a HAP in CAA section 112(b) with respect to its potential to be emitted from a waste management or recovery operation (see 59 FR 51921). The criteria used to characterize and evaluate emission potential was based on a chemical constituent's Henry's law constant, evaluation of the aqueous and organic volatility characteristics of the chemical, and the ability of the analytical test methods to quantitate the chemical. Based on our evaluation, we developed the list of specific organic HAP compounds or compound groups to be regulated under the final rule (Table 1 in subpart DD under 40 CFR part 63). We later decided to delete eight chemicals from our initial list because we concluded that there is low potential for these compounds to be emitted from OSWRO (see 61 FR 34153). Dimethyl hydrazine was one of the eight compounds we removed from the list. Table 1 in the proposed Site Remediation NESHAP inadvertently included dimethyl hydrazine as one of the regulated HAP. We have corrected Table 1 in the final Site Remediation NESHAP to accurately reflect our intent by deleting dimethyl hydrazine from the list.

C. How Do We Define Site Remediation in the Final Rule?

Comment:

Commenters expressed the concern that, as proposed, the final rule applicability provisions are unclear and circular. Several commenters requested that we clearly define the term “remediation” or the remediation activities subject to the final rule. Commenters also stated that routine waste management activities (

e.g.

, tank clean-outs, removing spent catalyst from reactors, cleaning heat exchangers and other piping, etc.) are not site remediation activities and should be distinguished from site remediation activities subject to the final rule.

Response:

We have written the regulatory language in the applicability section of the final rule to clarify our intent as to what is a site remediation for the purpose of implementing the Site Remediation NESHAP. The basis for all of our revisions to the proposed rule is consistency with our intent that the

final rule address HAP emissions from activities to clean up environmental media contaminated with HAP as well as clean up certain stored or disposed materials at a site that contain HAP and pose a reasonable potential threat to contaminating environmental media. It was never our intention that the final rule be interpreted to apply to activities at a facility required for management of waste generated by routine equipment maintenance activities or other types of activities necessary to continue day-to-day operations at a facility.

D. Why Does the Final Rule Not Apply to CERCLA Superfund and RCRA Corrective Action Cleanups?

Comment:

We received comments supporting our proposal that site remediations conducted for CERCLA Superfund and RCRA corrective action cleanups not be subject to the final Site Remediation NESHAP. These commenters believe that these RCRA and CERCLA cleanup programs do have appropriate provisions which provide for the protection of public health and the environment from air pollutants emitted from site remediation activities on a site-specific basis. Other commenters opposed the exclusion of these site remediations from being subject to the final Site Remediation NESHAP because they assert that neither of the RCRA and CERCLA programs have air emission standards for site remediation activities and that the requirement of CAA section 112 is to establish NESHAP for HAP emissions from these activities. Among other things, such control could address any regulatory gaps in RCRA and CERCLA requirements.

Response:

The RCRA hazardous waste corrective action and CERCLA Superfund programs do not establish national air standards for site remediations. These programs, however, do have provisions which provide for the protection of public health and the environment from air pollutants emitted from these activities on a site-specific basis. As we stated at proposal, the established Federal requirements provide an appropriate and effective regulatory approach to address air emissions from those remediation activities performed under CERCLA authority as a remedial action or a non-time critical removal action, or under RCRA authority at permitted or Federal Order RCRA corrective action sites.

The Superfund program is designed to protect public health and the environment while providing the flexibility to use effective and innovative remediation approaches that best suit the site-specific conditions at each CERCLA site (CERCLA section 121). The Superfund program conducts extensive evaluation of the contamination at each CERCLA site (see 40 CFR 300.430). As part of the evaluation process, a decision document (

i.e.

, Record of Decision (ROD)) is developed for response actions, documenting the extent of contamination and the cleanup method(s) to be used at the site. Under this process, a site-specific analysis, considering the impacts to air, soil and groundwater, is conducted and an appropriate remedy is selected. During the ROD process, the general public is given the opportunity for input in the decision-making process through public hearings and submission of written comments. The public plays an important role in identifying and characterizing site-specific factors, such as the type of contaminants, the level and extent of contamination and other site-specific factors. We believe this procedure results in selection of the best plan for cleaning up each site and achieving the program's goals.

As implemented under the requirements of RCRA, hazardous waste treatment, storage and disposal facilities must obtain a permit specifying requirements for managing hazardous waste. As a condition of obtaining this permit, facilities are required to undertake corrective action addressing releases of hazardous waste and hazardous constituents from units at the facility which do not themselves require RCRA permits (solid waste management units) (RCRA section 3004(u)). For such designated contamination areas at TSDF, requirements for the cleanup of the contamination are included in the facility's RCRA permit, or Federal Order where applicable. Such cleanup activities are known as “corrective actions.” Although RCRA is a separate program from Superfund, the RCRA permitting or Federal Order process for TSDF share several significant characteristics with Superfund cleanup activities at CERCLA sites. First, it is also the intent of the RCRA corrective action program to protect public health and the environment while allowing flexibility in choosing solutions to eliminate or reduce site contamination. Second, RCRA permitting and Federal Order procedures involve the public in the decision-making process through informal public meetings, public hearings or written comment. Finally, an extensive site-specific evaluation is performed at the RCRA facility to evaluate the extent of the contamination, while considering appropriate remedies through a multi-media (

i.e.

, air, soil, groundwater) perspective (see 67 FR 49406 for additional explanation).

E. Why Does the Final Rule Potentially Apply to State and Voluntary Cleanup Programs?

Comment:

Many commenters requested that in addition to CERCLA Superfund and RCRA corrective action cleanups, that other cleanups conducted under Federal or State oversight not be subject to the final rule, where such cleanups are conducted following CERCLA or RCRA requirements. The commenters argued that these cleanups conducted under State Superfund, Brownfield, voluntary cleanup, or other similar programs are subject to emissions controls and requirements that are substantially similar to those in the CERCLA or RCRA programs.

Response:

The final Site Remediation NESHAP applies only to site remediations that meet the three applicability conditions specified in the final rule. We have determined that site remediations at those sites that meet these applicability conditions warrant the implementation of air pollution controls to reduce the emission of organic HAP to the atmosphere. As discussed in our previous response, we are exempting from the final rule requirements those sites that meet the final rule applicability conditions where the site remediations are conducted for CERCLA (Superfund) or RCRA corrective action cleanups. This includes the site remediations in one of 39 States that the EPA has authorized to oversee cleanups at TSDF under RCRA corrective action. Site remediations administered under these federally-enforceable programs address the organic HAP emissions from the site remediations on a site-specific basis.

The overall objective of any site remediation, whether it be a Federal required, State required, or voluntary cleanup, is to remove the threat to human health and the environment posed by the presence of hazardous substances in the contaminated media and wastes that can potentially contaminate the media at the site. However, the actions taken at a given contamination site that remove the hazardous substances from water or soil by transferring those substances to the air is not in the best interest of protecting human health and the environment from exposure to these hazardous substances. Unlike CERCLA or RCRA corrective action cleanups, State regulatory and voluntary cleanup programs are not uniform on a national basis, any requirements imposed on a given site remediation are not federally-

enforceable by the EPA, and the programs may not specifically address site remediation air emissions. For these reasons, we cannot view these activities as the functional equivalent of MACT, and, therefore, we cannot justify extending the same exemption we provide for CERCLA Superfund or RCRA corrective action cleanups to site remediations conducted for State regulatory and voluntary cleanup programs. Therefore, we are maintaining the applicability of the final rule to those site remediations conducted for State regulatory and voluntary cleanup programs where the site remediation meets the applicability conditions specified in the final rule.

F. How Does the Final Rule Apply to Cleanups of Leaking Underground Storage Tanks?

Comment:

Many commenters agreed with the decision to modify the site remediation source category listing to exclude remediation activities at leaking underground storage tanks (UST) located at gasoline service stations. However, commenters argued that because the types, sizes and purpose of UST used for the storage of motor fuels or heating oils at all types of commercial and industrial properties are comparable to those located at gasoline service stations, then remediation activities associated with any UST contamination cleanups regardless of location also should not be subject to the Site Remediation NESHAP.

Response:

The rationale for our decision to modify description for the site remediation source category to exclude remediation activities from leaking UST located at gasoline service stations is based on our estimates of the total HAP emissions from a typical cleanup of contamination from the size and types of underground tanks commonly used at gasoline service station sites. These estimates indicate that the level of HAP emissions from these sites would be significantly below the major source threshold levels (

i.e.

, less than 10 tpy of a single HAP or 25 tpy of all HAP) (see 67 FR 49400). Gasoline service station sites are area sources. Site remediation was listed as a source category for MACT standard development to address HAP emissions at major sources where remediation technologies and practices also are used at the site to clean up contaminated environmental media (

e.g.

, soils, groundwaters, or surface waters) or other materials that pose a reasonable potential threat to contaminate environmental media. Our decision was not based on a determination that UST contamination cleanups regardless of location should not be included in the site remediation source category. Therefore, we believe that if a leaking UST cleanup is conducted at a major source site then it is appropriate (and indeed mandated) to require the cleanup activities comply with the final Site Remediation NESHAP requirements.

G. How Does the Final Rule Apply to Cleanups of Radioactive Mixed Waste?

Comment:

Six commenters opposed the proposal that any site remediation involving the cleanup of radioactive mixed waste not be subject to the Site Remediation NESHAP. These commenters argued that the existing Federal regulations for mixed waste are not adequately addressing the HAP emissions from remediation activities at existing facilities managing these types of wastes. Two commenters expressed support for the proposal because they believe that mixed wastes are already appropriately and protectively managed under the Atomic Energy Act and Nuclear Waste Policy Act.

Response:

Radioactive mixed wastes (RMW) are wastes that contain radioactive materials as well as wastes listed or identified as hazardous under RCRA. Radioactive mixed wastes must be managed according to RCRA subtitle C regulations. In addition, these wastes are subject to standards administered by the Nuclear Regulatory Commission (NRC) under the Atomic Energy Act (AEA) and Nuclear Waste Policy Act (NWPA) of 1982 that address the safe handling and disposal of radioactive waste.

In developing the air standards under CAA authority for stationary sources that potentially may manage wastes also subject to requirements under other legislative authorities, we consider the management practices required for these wastes to avoid inconsistencies between any CAA requirements that might be established and existing requirements under the other applicable authorities. We reviewed the special nature of existing requirements for managing radioactive mixed wastes with respect to requirements for the control of organic HAP emissions we proposed to establish under the final Site Remediation NESHAP. In certain cases, the air pollution controls used as the basis for the standards under the final Site Remediation NESHAP are not compatible with the NRC requirements for safe handling of radioactive mixed wastes. For example, drums used to store radioactive mixed waste cannot be sealed with vapor leak-tight covers because of unacceptable pressure buildup of hydrogen gas to levels that can potentially cause rupture of the drum or create a potentially serious explosion hazard (a hazard which, by any commonsense measure, exceeds risk posed by emission of organic HAP). (See Air Docket ID No. OAR-2002-0021; see also S. Rep. No 228, 101st Cong. 1st sess. at 168 (“* * * In cases where control strategies for two or more different pollutants are in actual conflict, the Administrator shall apply the same principle—maximum protection of human health shall be the objective test. * * *”).)

The generation of hydrogen gas is a result of the radiolytic decomposition of organic compounds (

i.e.

, plastics) and/or aqueous solutions within the container. Plastics are commonly used as a barrier to alpha radiation both in handling operations and in waste packaging. Over time, the alpha particle causes the hydrolysis of chemical bonds within the plastic material which results in the release of hydrogen gas. Likewise, hydrolysis of aqueous solutions will yield hydrogen. Additionally, radiation-induced degradation and biodegradation of organic low-exchange resin waste, which are also RMW, generated during water treatment at nuclear facilities, can result in the production of gaseous products (

i.e.

, hydrogen and carbon dioxide) which in turn can result in pressure buildup and failure of the container. Consequently, a drum used for storage of radioactive mixed wastes must be continuously vented through special filters in accordance with technical guidance issued by the NRC to prevent the hydrogen concentration in the drum from reaching dangerous levels. Because of pressure build-up inside the container, a vent for gaseous compounds is necessary to prevent failure of a high-integrity container (

i.e.

, vent designs incorporated into high integrity containers restrict the release of radionuclides from the container into the environment while allowing the gas to be vented). (See RCRA Docket Items F-91-CESP-00046 and F-94-CESF-S0001, which are part of the administrative record for the final rule.)

In accordance with the Waste Isolation Pilot Plant (WIPP), Carlsbad, New Mexico, Waste Acceptance Plan (WAP), wastes that are to be shipped to the WIPP must be in containers that are vented to prevent the buildup of pressure. The container vents must be filtered to ensure that no radioactive waste components are released. For example, the Hazardous Waste Permit for the WIPP, dated November 25, 2002, in section M1-1d describing container management practices states on page M1-8 “* * * Because containers at the WIPP will contain radioactive waste,

safety concerns require that containers be continuously vented to obviate the buildup of gases within the container. These gases could result from radiolysis, which is the breakdown of moisture by radiation. The vents, which are nominally 0.75 in. (1.9 centimeters) in diameter, are generally installed on or near the lids of the containers. These vents are filtered so that gas can escape while particulates are retained. * * *” In addition, the permit in the section describing the requirements for the standard transuranic mixed waste drums states on page M1-2, “* * * One or more filtered vents (as described in section M1-1d) will be installed in the drum lid to prevent the escape of any radioactive particulates and to eliminate any potential of pressurization. * * *”

To comply with these requirements, the drum lid is punctured to release any buildup of potentially explosive hydrogen gas and a specially-designed, carbon composite membrane filter vent is attached. The function of this filter vent is to retain radionuclides inside a container while allowing hydrogen and other gases (

e.g.

, VOC) to pass through to the atmosphere. In particular, the carbon composite membrane used in the filter vent does not inhibit the passing of VOC from the container into the atmosphere.

Because it was judged an unsafe practice to store RMW drums and other containers with tight covers, and because the WIPP Waste Analysis Plan requires that containers be vented for shipment to the WIPP, we determined that many Department of Energy facilities may be unable to meet the tight cover control device criteria for containers as specified in the proposed Site Remediation NESHAP. In addition, we were unable to determine, if there were any available technologies that could be applied to the RMW containers that would control organic air emissions in a safe and cost-effective manner while also complying with WIPP and other AEA and NWPA requirements.

Information gathered and reviewed following proposal of the Site Remediation NESHAP does not indicate that the situation regarding the safety issue related to storage of RMW has changed since proposal. The potentially conflicting requirements for containers (and other storage units) to be vented under one set of rules versus the requirements for closed, tight fitting covers under the CAA rules remains to be resolved. We are not aware of any available device to control organic air emissions (such as an activated carbon filter) that can be used in combination with the carbon composite membrane filter vent on a RMW container. No available technologies have been identified that could be applied to the RMW containers that would control organic air emissions in a safe and cost-effective manner while also complying with WIPP and other AEA and NWPA requirements. With no known controls in place on these sources, the MACT floor for RMW sources (

e.g.

, RMW containers) appears to be no control beyond that already provided by the NRC and other applicable regulations. Codifying the same level of control already established under another regulatory authority as a MACT standard seems a needless expenditure of resources since it would not change existing practice or otherwise provide benefits not already provided by the existing regulations. Therefore, we have retained in the final rule an exemption from the air pollution control requirements under the final Site Remediation NESHAP for remediation material management units (

e.g.

, tanks, containers, and surface impoundments) managing RMW.

Although the technical information and data we have collected support inclusion of an exemption for remediation material management units managing RMW from the air pollution control requirements under the final Site Remediation NESHAP, we concluded from our review of this information that this is not the case for site remediation treatment process vents and equipment leaks. The technical and safety concerns for the required controls for organic emissions from containers and tanks managing RMW are not an issue with the controls required by the final Site Remediation NESHAP for treatment unit process vents and equipment leaks if applied to remediation material streams that are classified as RMW. We have not identified any conflicting regulatory requirements that would preclude the use of air pollution controls on these sources as is the case with tanks and containers. Also, since 1990, remediation material streams classified as RMW have been subject to, and in compliance with, the air pollution control requirements in the national air standards we promulgated under RCRA authority to control total organic emissions from hazardous waste TSDF treatment process vents (subpart AA in 40 CFR parts 264 and 265) and equipment leaks (subpart BB in 40 CFR parts 264 and 265). The air pollution control requirements under these RCRA air rules are the same as the requirements for site remediation treatment process vents and equipment leaks included in the final Site Remediation NESHAP. With demonstrated controls in place on these treatment unit and equipment component sources, MACT for these RMW sources (

i.e.,

process vents and equipment leaks) would be established at the control levels required under those rules. Because the technical issues related to safety concerns for RMW containers and other storage units do not apply to treatment unit process vents and equipment leaks, we have written the final Site Remediation NESHAP to limit the exemption to only remediation material management units managing RMW. Remediation activities involving the cleanup of RMW that meet the final rule applicability criteria are subject to standards for treatment unit process vents and equipment leaks under the final Site Remediation NESHAP.

H. How Does the Final Rule Apply to Short-Term Site Remediations at Affected Facilities?

Comment:

Commenters supported our proposal to exempt short-term cleanups from being subject to the emissions limitations and work practice standards but requested longer allowable cleanup intervals. Commenters argued that the proposed 7-day initiation period from the time the contamination occurs and 30-day cleanup period are too short because they do not account for circumstances beyond the control of an owner or operator which may delay discovery of the contamination or completing the cleanup within 30 days.

Response:

We reviewed our proposed regulatory language for the exemption and concluded that the proposal does not accurately reflect our intent. Therefore, we have written in the final rule the approach we use to implement the exemption. This approach preserves our original intent as to which site remediations warrant exemption as well as addresses the concerns raised by commenters regarding the situations when a short-term site remediation takes longer to complete than initially planned and extends beyond the allowable time interval because of circumstances beyond their control.

The purpose of the final Site Remediation NESHAP is to control organic HAP emissions released to the atmosphere during site remediations. Organic HAP emissions from in-situ treatment processes primarily occur when an air or gas stream from the remediation process is exhausted to the atmosphere. Organic HAP emissions can be released from extraction or excavation of contaminated material and the subsequent handling, treatment, and disposal of these materials. The

emissions do not occur prior to the time that these remediation activities actually start.

We recognize that activities necessary to plan, arrange, and schedule the site remediation may take more than 30 days. Also, we recognize that there may be delays in starting the site remediation due to circumstances beyond the control of a site owner or operator such as waiting for necessary permit approvals from a State or local agency, or scheduling of personnel or equipment contracted to complete the cleanup work.

Furthermore, a site remediation does not occur until a source of actual or potential hazardous substance contamination is discovered. In many cases, when the contamination is discovered may not be the same time that the contamination occurs. For example, the new owner or operator of a site may discover a contaminated source requiring remediation that occurred years earlier due to improper practices of the previous site owner. We recognize that in many situations it is difficult, if not impossible, for facility owners and operators, as well as enforcement personnel, to verify whether a given site remediation is initiated within 7 days of the contamination occurring. Therefore, we decided to eliminate any conditional requirements for the exemption related to when the contamination occurred. Instead, it is more appropriate and practical to base the time limit for the short-term exemption on the period that the on site work is performed for those activities with the actual potential to emit HAP.

For the final Site Remediation NESHAP, we adopted the approach of exempting short-term site remediations that can be completed within a given number of consecutive calendar days as determined from the day that any action is first initiated that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. In adopting this approach, we exclude those activities that need to be completed to perform a site remediation but are not responsible for the generation of HAP emissions from site remediations, namely: activities required to characterize the type and extent of the contamination by collecting and analyzing samples, to obtain any permits required by State or local authorities to conduct the site remediation, to schedule workers and necessary equipment, and to arrange for any contractor assistance in performing the site remediation.

Given our revised regulatory approach for the short-term site remediation exemption, we re-evaluated the maximum time interval appropriate for the exemption. We proposed a maximum time interval of 30 days for the exemption. This proposed time interval included time to complete those sampling, planning, and scheduling activities that needed to perform a site remediation but are not part of the physical activities which cause HAP to be emitted at the cleanup site. Under the final rule, the exemption is based on the time interval required to complete only those remediation activities that actually emit or have a potential to emit HAP. We believe that the physical part of the site remediations we intend for this exemption to apply can reasonably be completed within a period much shorter than 30 days (

e.g.,

1 week, 14 days). However, there are situations where a remediation at a particular site which normally should be completed within these shorter periods cannot be due to factors beyond the control of the owner or operator that curtail or delay the remediation activities (such as severe weather or machinery breakdowns). Therefore, we decided that selecting a maximum time interval of 30 days for the exemption will allow a sufficient period to complete the types of cleanups we intend for this exemption to apply to and to provide a reasonable amount of leeway to account for any unforeseen circumstances that may develop at a site.

Finally, it is our intention that the short-term exemption only be applicable to those site remediations for which the cleanup of the entire contaminated area at the site can be completed within 30 consecutive days. The exemption is not intended to be used for longer term cleanups of contaminated areas whereby the remediation activities at the site are started, stopped, and then re-started in a series of intervals with durations less than 30 days per interval for which the total time of all of the intervals required to complete the site remediation exceeds a total of 30 days.

I. How Does the Final Rule Apply to Remediation Materials Sent Off-Site From Affected Facilities?

Comment:

Commenters opposed the proposed rule requirements on the transfer of remediation material to another party or site. The commenters asserted that proposed requirements are unnecessarily burdensome on both the shipping and receiving parties. Furthermore, requiring owners and operators to submit a written certification of intent to comply with the final rule adds paperwork with little or no environmental or health benefit. The requirements also have the potential to be an especially burdensome task for the off-site facility that are now an area source.

Response:

The objective of a site remediation is to mitigate a detected risk to public health or the environment by successfully completing the cleanup of an area contaminated by a hazardous substance. At many remediation sites, the contaminated material is excavated or extracted and then shipped to another site for treatment or disposal. Simply moving contaminated material containing organic HAP from the cleanup site to another site across town or in another community does not address the potential for these HAP to be emitted to the air and, subsequently, pose a risk to public health or the environment. It merely transfers the risk to another locale. Nor does such a practice reflect the maximum emission reduction achievable, as required by CAA section 112(d)(2) and (3). Thus, there is a need to ensure that those remediation materials with the potential to emit organic HAP are managed and treated in units using appropriate air pollution controls regardless of where those units are located. To address this need, we are including in the final Site Remediation NESHAP the requirement that remediation material transferred to another party or shipped to another facility must be managed according to the air pollution control requirements specified in the final rule.

We believe that the transfer provision under the final Site Remediation NESHAP does not establish requirements that are burdensome on either the remediation material shipping or receiving parties. We expect that, for many of those situations where a remediation material is subject to the off-site transfer requirements under the final rule, the material will be sent to a facility that is already complying with subpart DD in 40 CFR part 63 or a hazardous waste TSDF already complying with the RCRA air standards under subparts AA, BB, and CC of 40 CFR part 264 or 265. The air pollution control requirements under subpart DD in 40 CFR part 63 and RCRA TSDF air rules are effectively the same as those required under the final Site Remediation NESHAP. Consequently, it is likely that many, if not all, of the sites receiving the types of remediation materials subject to the off-site transfer requirements will already be using the necessary air pollution controls to comply with these other CAA and RCRA air rules. Thus, the off-site transfer requirements in the final Site Remediation NESHAP should not impose a need for these sites to

purchase and install new air pollution controls.

While off-site waste and recovery operations and hazardous waste TSDF already should be properly equipped to receive and manage remediation materials from cleanup sites subject to the final Site Remediation NESHAP, there are no existing rules requiring all owners and operators performing cleanups of contaminated materials containing organic HAP to ship the remediation materials to such facilities. It is possible that there are special circumstances where remediation material is transferred to a facility other than a facility subject to subpart DD under 40 CFR part 63 or a hazardous waste TSDF. We also must address the potential for circumvention of the final rule's purpose at a site where the remediation material is simply excavated or extracted and then intentionally transferred outside the site's legal boundaries to avoid having to use air pollution controls. Thus, the level of control reflecting MACT provided by subpart DD under 40 CFR part 63 (and the corresponding RCRA subtitle C rules for air emissions) is not necessarily being provided for all remediation waste transfer operations, so a MACT standard would not merely duplicate existing regulatory requirements. In those cases where an off-site facility is receiving remediation material subject to regulation by the final Site Remediation NESHAP, but units at the facility currently are not using the air pollution controls required by the final Site Remediation NESHAP, the facility owner or operator has the option of declining to accept the remediation material from the cleanup site or installing the required air pollution controls on just those units that manage the remediation material.

While it is essential that the off-site transfer provision be included in the final Site Remediation NESHAP to ensure remediation materials from cleanup sites subject to the final rule are managed and treated in units using appropriate air pollution controls regardless of the units' location, we have reviewed the proposed recordkeeping, certification, and notification requirements associated with the off-site transfer provision. We can simplify the administrative requirements for the facility owners and operators and still effectively implement and enforce the off-site transfer provision. Therefore, we have written the final rule to simplify the recordkeeping and certification requirements for both owners and operators of facilities shipping as well as receiving the remediation materials.

Finally, the off-site transfer provision is not intended to trigger a title V permitting requirement for the owner or operator of a facility that currently is an area source. To address this situation, we have added in the final rule an explicit provision stating that the acceptance by a facility owner or operator of remediation material from remediation site subject to the final Site Remediation NESHAP does not, by itself, require the facility owner or operator to obtain a title V permit.

IV. Summary of Environmental, Energy, and Economic Impacts

We prepared estimates of the environmental, energy, and economic impacts for the proposed rule based on the best information available to us including remediation waste quantity and treatment practice data for the year 1997 and earlier. No new information or data applicable to the impact estimates were provided by commenters on the proposed rule. Since proposal we have reviewed our data sources to determine the availability of additional information to update and supplement our original database used for the impact estimates. We concluded that our original database remains the best available source of information available to us for estimating impacts for the final rule.

Furthermore, the changes made since proposal for the final rule do not change any of the assumptions we made for our original impact estimates. Therefore, our impact estimates for the proposed rule remain valid and applicable for the final rule. These impact estimates are summarized below.

A. What Are the Air Emission Impacts?

We estimated nationwide organic HAP emissions from the site remediations potentially subject to the final rule to be approximately 1,140 Mg/yr. Nationwide VOC emissions from regulated sources are estimated to be approximately 7,360 Mg/yr. (Although not all VOC are organic HAP, we may permissibly note the air benefits from controlling non-HAP pollutants such as VOC when considering a MACT standard. See S. Rep. 101-228, 101st Cong. 1st sess. 172). We estimate that implementation of the final rule will reduce these nationwide air emissions by approximately 50 percent to 570 Mg/yr of HAP and 3,680 Mg/yr of VOC.

B. What Are the Cost Impacts?

The nationwide total capital investment cost and the annual operating cost of the control equipment required to comply with the final rule are estimated to be approximately $18 million and $6 million per year, respectively. When fully implemented, the final rule is estimated to result in a total annual cost of approximately $9 million per year.

C. What Are the Economic Impacts?

The final rule will affect certain owners and operators of facilities that are major sources of HAP emissions and at which a site remediation is conducted to clean up soils, groundwaters, surface waters, or certain other materials contaminated with one or more of the organic HAP listed in the final rule. Because of the nature of activities regulated by the source category, a comprehensive list of NAICS codes cannot be compiled for businesses or facilities potentially regulated by the final rule. As a result, the economic impact analyses focused on a set of industries from the 1997 Biennial Reporting System (BRS) database that were known to be large quantity generators of hazardous waste and who were remediating hazardous waste as part of a site remediation. The data provides an adequate overview of the potential impacts of the final rule. However, we recognize that the actual industries directly impacted by the final rule in the year the final rule is implemented and the costs incurred by these industries may differ somewhat from the set of industries identified in the 1997 BRS data and the costs assigned to these industries for the purposes of the economic analysis.

In general, we did not find evidence of significant impacts at the industry level. From the BRS data, over 80 industries were predicted to have annual compliance costs as a result of the final rule, and 15 industries accounted for 91 percent of the national compliance cost estimate. We used an engineering or financial analysis to estimate impacts, which takes the form of the ratio of compliance costs to the value of sales (cost-to-sales ratio (CSR)). We calculated CSR for 12 industries and found all had CSR below 0.02 percent. The CSR are less than the lower quartile return on sales for all industries with profitability data available. We did not compute CSR for the remaining three industries because revenue data were not available.

The CSR will likely overstate the impact on firms and understate the impact on consumers. The CSR assumes that there are no changes in the market as a result of the higher costs of production faced by the firms and that the firms continue to produce the same quantities, sell at the same price and absorb the full amount of the compliance costs.

Small business impacts were particularly difficult to assess because of the uncertainty over the facilities that actually will be impacted by the final rule. As a result, we concluded that sufficient data and related information did not exist to conduct a small business screening analysis.

D. What Are the Non-Air Health, Environmental and Energy Impacts?

Compliance with the standards in the final rule requires using types of control equipment commonly in use to control organic emissions from process sources at many of the industrial facilities at which site remediations are most likely to occur. The non-air environmental and energy impacts associated with implementing the requirements of the final rule primarily are expected to result from the operation of these control devices. No significant adverse water, solid waste, or energy impacts are expected as a result of the final rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that the final rule is not a “significant regulatory action” under the terms of Executive Order 12866, and is, therefore, not subject to OMB review.

B. Paperwork Reduction Act

The information collection requirements in the final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501

et seq.

The information collection requirements are not enforceable until OMB approves them.

The information to be collected for the final Site Remediation NESHAP are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions in 40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.

The final rule requires maintenance inspections of the control devices but would not require any notifications or reports beyond those required by the General Provisions in subpart A to 40 CFR part 63. The recordkeeping requirements require only the specific information needed to determine compliance.

The annual projected burden for this information collection to owners and operators of affected sources subject to the final rule (averaged over the first 3 years after the effective date of the promulgated rule) is estimated to be 341,737 labor-hours per year, with a total annual cost of $17.7 million per year. These estimates include a one-time performance test and report (with repeat tests where needed), one-time submission of an SSMP with semiannual reports for any event when the procedures in the plan were not followed, semiannual compliance reports, maintenance inspections, notifications, and recordkeeping. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the

Federal Register

to display the OMB control number for the approved information collection requirements contained in the final rule.

C. Regulatory Flexibility Act

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administrations' regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities.

The final Site Remediation NESHAP sets minimum air standards under authority of the CAA to control HAP emissions to be met if a facility owner or operator conducts a site remediation subject to the final rule. The final rule places no requirement on any facility owner or operator to initiate site remediation activities. The duty for an owner or operator to conduct a site remediation is established under RCRA, CERCLA, State, or other regulatory authorities. Given that States and other parties often decide whether site remediation activities are to be conducted at a given facility, it is extremely difficult, if not impossible, for us to predict how many or what types of small entities will undertake such site remediation activities and in which cases these activities will be subject to the final Site Remediation NESHAP.

While we cannot predict the exact number or types of small entities that will be subject to the final Site Remediation NESHAP, we have structured the final rule applicability conditions and threshold levels to minimize any impacts on those small businesses that do conduct site

remediations. The final rule only applies to those site remediations conducted at a facility that is both a major source of HAP emissions (as defined in CAA section 112) and where there are other non-remediation stationary sources at the facility that meet one of the affected source definition specified for a source category which is regulated by another subpart under 40 CFR part 63. The facilities that meet these applicability conditions tend to be large businesses.

Furthermore, types of site remediations typically expected to occur at small businesses are not subject to the final Site Remediation NESHAP. For example, we specifically exclude from the final rule applicability those site remediations to clean up contamination resulting from leaking underground storage tanks at a gasoline service station, farm, or residential site (remediation activities at these sites were found not to exceed the threshold HAP emission levels required to be designated a major source). Also, we expect that the applicable thresholds for those site remediations required to use air pollution controls under the final Site Remediation NESHAP apply to few, if any, facilities that are small businesses. For example, use of air pollution controls are not required under the final rule for those site remediations that physically can be completed within 30 days or for which total quantity of organic HAP contained in the extracted remediation material is less than 1 Mg.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the final rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The maximum total annual cost of the final rule for any year has been estimated to be about $24 million. Thus, the final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, the final rule is not subject to the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

The final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to the final rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175 (65 FR 67249, November 9, 2000) requires us to develop “an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

We have concluded that the final Site Remediation NESHAP may have tribal implications since the types of site remediation activities subject to the final rule potentially could be conducted on tribal lands. However, we are not aware of any specific remediation activities on tribal lands presently being conducted that would be subject to the final rule. If a site remediation subject to the final rule is initiated on tribal lands in the future, it will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to the final rule.

In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, we nonetheless made attempts to invite tribal representatives to participate in the rulemaking activities early in the process of developing the final rule to permit them to have meaningful and timely input into its development. We contacted tribal representatives and groups directly to notify them of the final rule development activity and to solicit their participation. At proposal, we specifically requested comment on the proposed rule from tribal officials. No tribal representatives requested to participate in the rulemaking process, and we received no comments on the proposed rule from any tribal government.

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

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of

the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. No children's risk analysis was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost. Furthermore, the final rule has been determined not to be “economically significant” as defined under Executive Order 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

The final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (

e.g.

, materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to the Office of Management and Budget (OMB), with explanations when an agency does not use available and applicable voluntary consensus standards.

The final rule involves technical standards. The EPA cites the following standards in the final rule: EPA Methods 1, 1A, 2, 2A, 2C, 2D, 3, 4, 9, 18 (total organic HAP or total organic compounds), 21, 22, 25, 25A, 25D, 25E, 27, 305, 316 of 40 CFR part 60 appendix A, and Method 9095A in SW 846, “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods.” Consistent with the NTTAA, the EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 1A, 2A, 2D, 9, 21, 22, 25D, 25E, 27, 305, 316, and SW 846 Method 9095A. The search and review results have been documented and are placed in the docket (Docket ID No. OAR-2002-0021) for the final rule.

The search for emissions measurement procedures identified 10 other voluntary consensus standards. The EPA determined that eight of these 10 standards identified for measuring emissions of the HAP or surrogates subject to emission standards in the final rule were impractical alternatives to EPA test methods for the purposes of the final rule. Therefore, EPA does not intend to adopt these standards for this purpose. (See Docket ID No. OAR 2002-0021.)

Sections 63.7940 through 63.7944 to the final Site Remediation NESHAP specify the EPA testing methods to be used for demonstrating compliance with the final rule requirements. Under §§ 63.7(f) and 63.8(f) of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801

et seq.

, as added by the Small Business Regulatory Enforcement Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing the final rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the final rule in the

Federal Register

. The final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.

Dated: August 20, 2003.

Marianne Lamont Horinko,

Acting Administrator.

For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is amended as follows:

PART 63—[AMENDED]

1. The authority citation for part 63 continues to read as follows:

Authority:

42 U.S.C. 7401,

et seq.

2. Part 63 is amended by adding subpart GGGGG to read as follows:

Subpart GGGGG—National Emission Standards for Hazardous Air Pollutants: Site Remediation

Sec.

What This Subpart Covers

63.7880

What is the purpose of this subpart?

63.7881

Am I subject to this subpart?

63.7882

What site remediation sources at my facility does this subpart affect?

63.7883

When do I have to comply with this subpart?

General Standards

63.7884

What are the general standards I must meet for each site remediation with affected sources?

63.7885

What are the general standards I must meet for my affected process vents?

63.7886

What are the general standards I must meet for my affected remediation material management units?

63.7887

What are the general standards I must meet for my affected equipment leak sources?

63.7888

How do I implement this rule at my facility using the cross-referenced requirements in other subparts?

Process Vents

63.7890

What emissions limitations and work practice standards must I meet for process vents?

63.7891

How do I demonstrate initial compliance with the emissions limitations and work practice standards for process vents?

63.7892

What are my inspection and monitoring requirements for process vents?

63.7893

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for process vents?

Tanks

63.7895

What emissions limitations and work practice standards must I meet for tanks?

63.7896

How do I demonstrate initial compliance with the emissions limitations and work practice standards for tanks?

63.7897

What are my inspection and monitoring requirements for tanks?

63.7898

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for tanks?

Containers

63.7900

What emissions limitations and work practice standards must I meet for containers?

63.7901

How do I demonstrate initial compliance with the emissions

limitations and work practice standards for containers?

63.7902

What are my inspection and monitoring requirements for containers?

63.7903

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for containers?

Surface Impoundments

63.7905

What emissions limitations and work practice standards must I meet for surface impoundments?

63.7906

How do I demonstrate initial compliance with the emissions limitations and work practice standards for surface impoundments?

63.7907

What are my inspection and monitoring requirements for surface impoundments?

63.7908

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for surface impoundments?

Separators

63.7910

What emissions limitations and work practice standards must I meet for separators?

63.7911

How do I demonstrate initial compliance with the emissions limitations and work practice standards for separators?

63.7912

What are my inspection and monitoring requirements for separators?

63.7913

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for separators?

Transfer Systems

63.7915

What emissions limitations and work practice standards must I meet for transfer systems?

63.7916

How do I demonstrate initial compliance with the emissions limitations and work practice standards for transfer systems?

63.7917

What are my inspection and monitoring requirements for transfer systems?

63.7918

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for transfer systems?

Equipment Leaks

63.7920

What emissions limitations and work practice standards must I meet for equipment leaks?

63.7921

How do I demonstrate initial compliance with the emissions limitations and work practice standards for equipment leaks?

63.7922

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for equipment leaks?

Closed Vent Systems and Control Devices

63.7925

What emissions limitations and work practice standards must I meet for closed vent systems and control devices?

63.7926

How do I demonstrate initial compliance with the emissions limitations and work practice standards for closed vent systems and control devices?

63.7927

What are my inspection and monitoring requirements for closed vent systems and control devices?

63.7928

How do I demonstrate continuous compliance with the emissions limitations and work practice standards for closed vent systems and control devices?

General Compliance Requirements

63.7935

What are my general requirements for complying with this subpart?

63.7936

What requirements must I meet if I transfer remediation material off-site to another facility?

63.7937

How do I demonstrate initial compliance with the general standards?

63.7938

How do I demonstrate continuous compliance with the general standards?

Performance Tests

63.7940

By what date must I conduct performance tests or other initial compliance demonstrations?

63.7941

How do I conduct a performance test, design evaluation, or other type of initial compliance demonstration?

63.7942

When must I conduct subsequent performance tests?

63.7943

How do I determine the average VOHAP concentration of my remediation material?

63.7944

How do I determine the maximum HAP vapor pressure of my remediation material?

Continuous Monitoring Systems

63.7945

What are my monitoring installation, operation, and maintenance requirements?

63.7946

How do I monitor and collect data to demonstrate continuous compliance?

63.7947

What are my monitoring alternatives?

Notifications, Reports, and Records

63.7950

What notifications must I submit and when?

63.7951

What reports must I submit and when?

63.7952

What records must I keep?

63.7953

In what form and how long must I keep my records?

Other Requirements and Information

63.7955

What parts of the General Provisions apply to me?

63.7956

Who implements and enforces this subpart?

63.7957

What definitions apply to this subpart?

Tables to Subpart GGGGG of Part 63

Table 1 to Subpart GGGGG of Part 63—List of Hazardous Air Pollutants

Table 2 to Subpart GGGGG of Part 63— Control Levels as Required by § 63.7895(a) for Tanks Managing Remediation Material with a Maximum HAP Vapor Pressure Less Than 76.6 kPa

Table 3 to Subpart GGGGG of Part 63—Applicability of General Provisions to Subpart GGGGG

What This Subpart Covers

§ 63.7880

What is the purpose of this subpart?

This subpart establishes national emissions limitations and work practice standards for hazardous air pollutants (HAP) emitted from site remediation activities. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emissions limitations and work practice standards.

§ 63.7881

Am I subject to this subpart?

(a) This subpart applies to you if you own or operate a facility at which you conduct a site remediation, as defined in § 63.7957; and this site remediation, unless exempted under paragraph (b) or (c) of this section, meets all three of the following conditions specified in paragraphs (a)(1) through (3) of this section.

(1) Your site remediation cleans up a remediation material, as defined in § 63.7957.

(2) Your site remediation is co-located at your facility with one or more other stationary sources that emit HAP and meet an affected source definition specified for a source category that is regulated by another subpart under 40 CFR part 63. This condition applies regardless whether or not the affected stationary source(s) at your facility is subject to the standards under the applicable subpart(s).

(3) Your facility is a major source of HAP as defined in § 63.2. A major source emits or has the potential to emit any single HAP at the rate of 10 tons (9.07 megagrams) or more per year of any HAP or any combination of HAP at a rate of 25 tons (22.68 megagrams) or more per year. All emissions of HAP from every source at your facility (i.e., both the site remediation activity and all other facility activities) must be considered in making this calculation.

(b) You are not subject to this subpart if your site remediation qualifies for any of one of the exemptions listed in paragraphs (b)(1) through (6) of this section.

(1) Your site remediation is not subject to this subpart if the site remediation only cleans up material that does not contain any of the HAP listed in Table 1 of this subpart.

(2) Your site remediation is not subject to this subpart if the site remediation will be performed under the authority of the Comprehensive Environmental Response and Compensation Liability Act (CERCLA) as a remedial action or a non time-critical removal action.

(3) Your site remediation is not subject to this subpart if the site

remediation will be performed under a Resource Conservation and Recovery Act (RCRA) corrective action conducted at a treatment, storage and disposal facility (TSDF) that is either required by your permit issued by either the U.S. Environmental Protection Agency (EPA) or a State program authorized by the EPA under RCRA section 3006; required by orders authorized under RCRA; or required by orders authorized under RCRA section 7003.

(4) Your site remediation is not subject to this subpart if the site remediation is conducted at a gasoline service station to clean up remediation material from a leaking underground storage tank.

(5) Your site remediation is not subject to this subpart if the site remediation is conducted at a farm or residential site.

(6) Your site remediation is not subject to this subpart if the site remediation is conducted at a research and development facility that meets the requirements under Clean Air Act (CAA) section 112(c)(7).

(c) Your site remediation is not subject to this subpart, except for the recordkeeping requirements specified in this paragraph, if the site remediation meets the all of the conditions in paragraphs (c)(1) through (3) of this section.

(1) Before beginning the site remediation, you determine for the remediation material that you will excavate, extract, pump, or otherwise remove during your site remediation that the total quantity of the HAP listed in Table 1 of this subpart which is contained in the material is less than 1 megagram per year (Mg/yr).

(2) You prepare and maintain at your facility written documentation to support your determination of the total HAP quantity used to demonstrate compliance with paragraph (c)(1) of this section. This documentation must include a description of your methodology and data you used for determining the total HAP content of the material.

(3) This exemption may be applied to more than one site remediation at your facility provided that the total quantity of the HAP listed in Table 1 of this subpart for all of your site remediations exempted under this provision is less than 1 Mg/yr.

(d) Your site remediation is not subject to the requirements of this subpart if all remediation activities at your facility subject to this subpart are completed and you have notified the Administrator in writing that all remediation activities subject to this subpart are completed. You must maintain records of compliance, in accordance with § 63.7953, for each remediation activity that was subject to this subpart. All future remediation activity meeting the applicability criteria in this section must comply with the requirements of this subpart.

§ 63.7882

What site remediation sources at my facility does this subpart affect?

(a) This subpart applies to each new, reconstructed, or existing affected source for your site remediation as designated by paragraphs (a)(1) through (3) of this section.

(1)

Process vents

. The affected source is the entire group of process vents associated with the in-situ and ex-situ remediation processes used at your site to remove, destroy, degrade, transform, or immobilize hazardous substances in the remediation material subject to remediation. Examples of such in-situ remediation processes include, but are not limited to, soil vapor extraction and bioremediation processes. Examples of such ex-situ remediation processes include but are not limited to, thermal desorption, bioremediation, and air stripping processes.

(2)

Remediation material management units

. Remediation material management unit means a tank, surface impoundment, container, oil-water separator, organic-water separator, or transfer system, as defined in § 63.7957, and is used at your site to manage remediation material. The affected source is the entire group of remediation material management units used for the site remediations at your site. For the purpose of this subpart, a tank or container that is also equipped with a vent that serves as a process vent, as defined in § 63.7957, is not a remediation material management unit, but instead this unit is considered to be a process vent affected source under paragraph (a)(1) of this section.

(3)

Equipment leaks

. The affected source is the entire group of equipment components (pumps, valves, etc.) used to manage remediation materials and meeting both of the conditions specified in paragraphs (a)(3)(i) and (ii) of this section. If either of these conditions do not apply to an equipment component, then that component is not part of the affected source for equipment leaks.

(i) The equipment component contains or contacts remediation material having a concentration of total HAP listed in Table 1 of this subpart equal to or greater than 10 percent by weight.

(ii) The equipment component is intended to operate for 300 hours or more during a calendar year in remediation material service, as defined in § 63.7957.

(b) Each affected source for your site is existing if you commenced construction or reconstruction of the affected source before July 30, 2002.

(c) Each affected source for your site is new if you commenced construction or reconstruction of the affected source on or after July 30, 2002. An affected source is reconstructed if it meets the definition of reconstruction in § 63.2.

§ 63.7883

When do I have to comply with this subpart?

(a) If you have an existing affected source, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you no later than October 9, 2006.

(b) If you have a new affected source that manages remediation material other than a radioactive mixed waste as defined in § 63.7957, then you must meet the compliance date specified in paragraph (b)(1) or (2) of this section, as applicable to your affected source.

(1) If the affected source's initial startup date is on or before October 8, 2003, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you by October 8, 2003.

(2) If the affected source's initial startup date is after October 8, 2003, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you upon initial startup.

(c) If you have a new affected source that manages remediation material that is a radioactive mixed waste as defined in § 63.7957, then you must meet the compliance date specified in paragraph (c)(1) or (2) of this section, as applicable to your affected source.

(1) If the affected source's initial startup date is on or before October 8, 2003, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you no later than October 9, 2006.

(2) If the affected source's initial startup date is after October 8, 2003, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you upon initial startup.

(d) If your facility is an area source that increases its emissions or its potential to emit such that it becomes a

major source of HAP as defined in § 63.2, then you must meet the compliance dates specified in paragraphs (d)(1) and (2) of this section.

(1) For each source at your facility that is a new affected source subject to this subpart, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you upon initial startup.

(2) For all other affected sources subject to this subpart, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you no later than 3 years after your facility becomes a major source.

(e) You must meet the notification requirements, according to the schedule applicable to your facility, as specified in § 63.7950 and in 40 CFR part 63, subpart A. Some of the notifications must be submitted before you are required to comply with the emissions limitations and work practice standards in this subpart.

General Standards

§ 63.7884

What are the general standards I must meet for each site remediation with affected sources?

(a) For each site remediation with affected sources designated under § 63.7882, you must meet the standards specified in §§ 63.7885 through 63.7953, as applicable to your affected sources, unless your site remediation meets the requirements for an exemption under paragraph (b) of this section.

(b) A site remediation that is completed within 30 consecutive calendar days according to the conditions in paragraphs (b)(1) and (2) of this section is not subject to the standards under paragraph (a) of this section. This exemption cannot be used for a site remediation involving the staged or intermittent cleanup of remediation material whereby the remediation activities at the site are started, stopped, and then re-started in a series of intervals with durations less than 30-days per interval for which the total time of all of the intervals required to complete the site remediation exceeds a total of 30 days.

(1) The 30-day period for a site remediation is determined from the first day that any action is initiated that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. The end of a site remediation is determined by the last day on which treatment or disposal of the remediation materials from the cleanup is completed. The following activities, when completed before beginning this initial action, are not counted as part of the 30-day period: activities to characterize the type and extent of the contamination by collecting and analyzing samples, activities to obtain permits from Federal, State, or local authorities to conduct the site remediation, activities to schedule workers and necessary equipment, and activities to arrange for contractor or third party assistance in performing the site remediation.

(2) You must prepare and maintain at your facility written documentation describing the exempted site remediation, and listing the initiation and completion dates for the site remediation.

§ 63.7885

What are the general standards I must meet for my affected process vents?

(a) For the process vents that comprise the affected source designated under § 63.7882, you must select and meet the requirements under one of the options specified in paragraph (b) of this section.

(b) For each affected process vent, except as exempted under paragraph (c) of this section, you must meet one of the options in paragraphs (b)(1) through (3) of this section.

(1) You control HAP emissions from the affected process vents according to the standards specified in §§ 63.7890 through 63.7893.

(2) You determine for the remediation material treated or managed by the process vented through the affected process vents that the average total volatile organic hazardous air pollutant (VOHAP) concentration, as defined in § 63.7957, of this material is less than 10 parts per million by weight (ppmw). Determination of the VOHAP concentration is made using the procedures specified in § 63.7943.

(3) If the process vent is also subject to another subpart under 40 CFR part 61 or 40 CFR part 63, you control emissions of the HAP listed in Table 1 of this subpart from the affected process vent in compliance with the standards specified in the applicable subpart. This means you are complying with all applicable emissions limitations and work practice standards under the other subpart (

e.g.

, you install and operate the required air pollution controls or have implemented the required work practice to reduce HAP emissions to levels specified by the applicable subpart). This provision does not apply to any exemption of the affected source from the emissions limitations and work practice standards allowed by the other applicable subpart.

(c) A process vent that meets the exemption requirements in paragraphs (c)(1) and (2) of this section is exempted from the requirements in paragraph (b) of this section.

(1) The process vent stream exiting the process vent meets the conditions in either paragraph (c)(1)(i) or (ii) of this section.

(i) The process vent stream flow rate is less than 0.005 cubic meters per minute (m

3

/min) at standard conditions (as defined in 40 CFR 63.2); or

(ii) The process vent stream flow rate is less than 6.0 m

3

/min at standard conditions (as defined in 40 CFR 63.2) and the total concentration of HAP listed in Table 1 of this subpart is less than 20 parts per million by volume (ppmv).

(2) You must demonstrate that the process vent stream meets the applicable exemption conditions in paragraph (c)(1) of this section using the procedures specified in § 63.694(m). You must prepare and maintain documentation at your facility to support your determination of the process vent stream flow rate. This documentation must include identification of each process vent exempted under this paragraph and the test results used to determine the process vent stream flow rate and total HAP concentration, as applicable to the exemption conditions for your process vent. You must perform a new determination of the process vent stream flow rate and total HAP concentration, as applicable to the exemption conditions for your process vent, whenever changes to operation of the unit on which the process vent is used could cause the process vent stream conditions to exceed the maximum limits of the exemption.

§ 63.7886

What are the general standards I must meet for my affected remediation material management units?

(a) For each remediation m

This text is long and has been trimmed here. Open the source document for the complete record.