# Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers; Final Rule ENVIRONMENTAL PROTECTION AGENCY

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29693

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** December 6, 1994

## Text

SUMMARY: Under the authority of the Resource Conservation and Recovery
Act (RCRA), as amended, the EPA is promulgating air standards that will
further reduce organic emissions from hazardous waste management
activities. The air standards apply to owners and operators of
hazardous waste treatment, storage, and disposal facilities (TSDF)
subject to RCRA subtitle C permitting requirements and to certain
hazardous waste generators accumulating waste on-site in RCRA permit-
exempt tanks and containers. Under these standards, air emission
controls must be used for tanks, surface impoundments, and containers
in which hazardous waste is placed on or after June 5, 1995 except
under certain conditions specified in the rule. Air emission control
requirements are also added to the RCRA permit terms and provisions
specified for TSDF miscellaneous units. In addition, this action
establishes a new EPA reference test method (Method 25E) to determine
the organic vapor pressure of a waste.

EFFECTIVE DATE: The final rule is effective as of June 5, 1995. The EPA
has specified in the final rule a schedule that establishes the
compliance dates by which different requirements of the rule must be
met. These compliance dates and requirements are explained further
under SUPPLEMENTARY INFORMATION.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 5, 1995.

ADDRESSES: Background information document. The background information
document (BID) for the final rule may be obtained from the U.S. EPA
Library (MD-35), Research Triangle Park, North Carolina 27711,
telephone (919) 541-2777. Please refer to ``Hazardous Waste Treatment,
Storage, and Disposal Facilities (TSDF)--Background Information for
Promulgated Organic Air Emission Standards for Tanks, Surface
Impoundments, and Containers'', EPA document number EPA-453/R-94-076b.
This document and the BID are also available on the EPA's Clean-up
Information Bulletin Board (CLU-IN). To access CLU-IN with a modem of
up to 28,800 baud, dial (301) 589-8366. First-time users will be asked
to input some initial registration information. Next, select ``D''
(download) from the main menu. Input the file name ``RCRAAIR1.ZIP'' to
download this notice. Input the file name ``RCRAAIR2.ZIP'' to download
the BID. Follow the on-line instructions to complete the download. More
information about the download procedure is located in Bulletin 104; to
read this type ``B 104'' from the main menu. For additional help with
these instructions, telephone the CLU-IN help line at (301) 589-8368.
Docket. The supporting information used for this rulemaking is
available for public inspection and copying in the RCRA docket. The
RCRA docket numbers pertaining to this rulemaking are F-91-CESP-FFFFF,
F-92-CESA-FFFFF, F-94-CESF-FFFFF, and F-94-CE2A-FFFFF. The RCRA docket
is located at the EPA RCRA Docket Office (5305) in room 2616 of the
U.S. Environmental Protection Agency, 401 M Street SW, Washington, DC
20460.

FOR FURTHER INFORMATION CONTACT:
The RCRA Hotline, toll-free at (800) 424-9346. For further information
on the specific air standards and test method promulgated by this
action, contact Ms. Michele Aston, Emission Standards Division (MD-13),
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone number (919) 541-2363.

SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:

I. Compliance Dates
II. Summary of Rule Changes Since Proposal
A. TSDF Tanks, Surface Impoundments, and Containers
B. TSDF Miscellaneous Units
C. Generator 90-Day Tanks and Containers
D. Other RCRA Regulatory Actions
E. Test Methods
III. Summary of Final Rule Impacts
IV. Background
A. Implementation of RCRA Section 3004(n)
B. Public Participation in Rulemaking
C. Relationship to Other RCRA Standards
D. Relationship to CERCLA Standards
E. Relationship to Clean Air Act Standards
F. Relationship to Nuclear Regulatory Commission Standards
V. Basis for Final Rule
A. New Control Options
B. Control Option Impacts
C. Selection Rationale
VI. Summary of Responses to Comments on Proposed Rule
A. Development of Air Standards Under RCRA
B. Revised Impacts Analysis
C. Container Air Standards
D. Generator 90-Day Tanks and Containers
E. Implementation of RCRA Air Standards
F. Waste Stabilization in Tanks
VII. Requirements of Final Rule
A. TSDF Tank, Surface Impoundment, and Container Requirements
B. TSDF Miscellaneous Unit Requirements
C. 90-Day Tanks' and Containers' Requirements
D. Amendments to Subparts AA and BB Standards
VIII. Implementation of Final Rule
A. Existing Sources
B. New Sources
C. State Authority
IX. Test Methods
A. Method 25D
B. Method 25E
X. Administrative Requirements
A. Paperwork Reduction Act
B. Executive Order 12866 Review
C. Regulatory Flexibility Act
D. Docket
XI. Legal Authority

I. Compliance Dates

The final rule promulgated today establishes additional air
standards for TSDF owners and operators subject to 40 CFR part 264 or
40 CFR part 265. In addition, this rule amends the conditions for
hazardous waste generators accumulating waste on-site in RCRA permit-
exempt tanks and containers pursuant to 40 CFR 262.34(a) to include air
emission control requirements. All of these rule requirements are
effective as of June 5, 1995. All hazardous waste placed in the
affected tanks, surface impoundments, containers, and other affected
units on and after this date must be managed in accordance with the
requirements of the final rule. This includes implementing the required
air emission controls on an affected unit or performing the required
waste determinations and recordkeeping to indicate that the affected
unit is exempted from these air emission control requirements. Under
circumstances when the air emission control equipment required to
comply with the rule cannot be operational at an existing TSDF by June
5, 1995, an implementation schedule for installation of the equipment
must be developed and placed in the facility operating records no later
than June 5, 1995. In such cases, the facility owner or operator must
have all air emission controls required by the final rule in operation
no later than December 8, 1997.
Today's action amends 40 CFR 270.4 to require that owners and
operators of TSDF for which a final permit has been issued by the EPA
prior to June 5, 1995 must comply with the air emission control
requirements for interim-status TSDF under 40 CFR 265 subparts AA, BB,
and CC until the facility's permit is reviewed or reissued by the EPA.
The EPA's rationale for adopting this implementation practice for
today's rulemaking is explained in section VI.E of this preamble.
For tanks in which waste stabilization activities (sometimes
referred to as waste fixation) are performed as of December 6, 1994, be
the effective date of the final rules will December 6, 1995. As of the
extended effective date for stabilization tanks, each TSDF owner or
operator and each hazardous waste generator subject to the final rules
must either install and operate the specified air emission control
requirements on all affected tanks used for stabilization, or begin
performing the specified waste determinations and recordkeeping to
indicate that a stabilization tank is exempted from these requirements.
Under circumstances where required air emission control equipment
cannot be operational on stabilization tanks by December 6, 1995, an
implementation schedule for installation of the required air emission
controls must be developed and placed in the facility operating records
no later than December 6, 1995.
In such cases, for stabilization tanks, the facility must have all
air emission controls required by the final rules in operation no later
than June 8, 1998.

II. Summary of Rule Changes Since Proposal

The EPA proposed the rule on July 22, 1991 (refer to 56 FR 33491).
Based on public comments received by the EPA at proposal as well as the
EPA's evaluation of additional information obtained after proposal,
certain requirements of the rulemaking have been changed from those
proposed. The major changes affect provisions establishing the rule
applicability, the procedures for determining the average volatile
organic concentration of a waste, and the air emission control
requirements for containers. In addition, the EPA has made many changes
to the specific regulatory text to clarify the EPA's intent in the
application and implementation of the rule requirements. The
substantive changes to the rulemaking since proposal are summarized
below. A summary of the requirements of the rule as promulgated is
presented in section VII of this preamble.

A. TSDF Tanks, Surface Impoundments, and Containers

A new subpart CC is added by today's action to both 40 CFR parts
264 and 265. Subpart CC under 40 CFR part 264 applies to owners and
operators of permitted TSDF while subpart CC under 40 CFR part 265
applies to owners and operators of interim-status TSDF. All changes
since proposal to subpart CC in 40 CFR part 264 and to subpart CC in 40
CFR part 265 are identical with the exception of changes to the rule
reporting requirements. There are no reporting requirements under 40
CFR 265 subpart CC for owners and operators of interim-status TSDF.
Hereafter for convenience in this preamble, the term ``subpart CC
standards'' is used collectively to refer to both subpart CC in 40 CFR
part 264 and subpart CC in 40 CFR part 265.
The compliance time for the subpart CC standards has been revised
since proposal to allow up to an additional 30 months after June 5,
1995 to install and begin operation of air emission control equipment
required by the rule provided that the owner or operator develops and
places in the facility operating records by this date an implementation
schedule for installation of the equipment. Compliance dates and
implementation requirements for the final rule are explained in
sections I and VIII of this preamble.
1. Applicability
The applicability of the subpart CC standards has been revised
since proposal to specifically exempt from the rule certain tanks
surface impoundments, and containers in which the owner or operator has
stopped adding hazardous waste. The subpart CC standards do not apply
to a tank, surface impoundment, or container that meets either of the
following conditions:
(1) No hazardous waste is added to the waste management unit on or
after June 5, 1995 (see generally 55 FR 39409, September 27, 1990); or
(2) Addition to hazardous waste to the waste management unit is
stopped and the owner or operator has begun implementing or completed
closure pursuant to an approved closure plan.
In addition, the applicability of the subpart CC standards has been
changed such that the rule is not applicable to any container having a
design capacity less than 0.1 m\3\ (approximately 26 gallons)
regardless of the organic content of the hazardous waste handled in the
container. In response to comments on the proposed rule, the EPA
reviewed the types of small containers commonly used to accumulate and
transfer hazardous waste. Considering the small quantity of hazardous
waste handled in a sample collection vial, safety can, disposal can,
and other types of small containers and the short periods of time that
the waste normally remains in one of these containers, the EPA
concluded that existing rules for containers having a design capacity
less than 0.1 m\3\ are sufficient to protect human health and the
environment.
Finally, the EPA has decided to temporarily defer application of
the subpart CC standards to tanks, surface impoundments, and containers
managing hazardous wastes under certain special circumstances. For now,
the EPA is deferring application of the subpart CC standards to waste
management units that are used solely to treat or store hazardous
wastes generated on-site from remedial activities required under RCRA
corrective action or CERCLA response authorities (or similar State
remediation authorities). Also, the EPA is deferring application of the
subpart CC standards to waste management units that are used solely to
manage radioactive mixed wastes. The EPA's rationale for these
deferrals is explained in section VIII.A.1 of this preamble.
2. General Standards
For each tank, surface impoundment, or container to which the
subpart CC standards apply (referred to here as an ``affected unit''),
the owner or operator is required to use the air emission controls
specified in the rule except when the hazardous waste placed in an
affected unit meets certain conditions. As explained in the following
paragraphs, the conditions under which an affected unit is exempted
from the air emission control requirements of the subpart CC standards
have been revised since proposal.
a. Waste volatile organic concentration exemption. Under the final
subpart CC standards, an affected unit is exempt from the air emission
control requirements of the rule if all hazardous waste placed in the
unit is determined to have an average volatile organic concentration
less than 100 parts per million by weight (ppmw) based on the organic
composition of the hazardous waste at the point of waste origination.
This waste volatile organic concentration limit incorporates several
revisions that have been made by the EPA since proposal.
First, the format for the limit has been changed to be the average
volatile organic concentration of the hazardous waste on a mass-
weighted basis during normal operating conditions for the source or
process generating the waste (in contrast to the proposed format of the
maximum volatile organic concentration for the hazardous waste never to
be exceeded). Averaging periods up to 1 year in duration are allowed
for each individual waste stream under the final rule. The procedures
for determining the average volatile organic concentration of a waste
are explained further under ``Waste Determination Procedures'' in this
section and in section VII.A.3 of this preamble.
Second, determination of the volatile organic concentration of the
waste under the final rule is based on the organic composition of the
waste at the ``point of waste origination'' (instead of the ``point of
waste generation'' as proposed). The ``point of waste origination'' is
defined in the final rule with respect to the point where the TSDF
owner or operator first has possession of a hazardous waste. When the
TSDF owner or operator is the generator of the hazardous waste, the
``point of waste origination'' means the point where a solid waste
produced by a system, process, or waste management unit is determined
to be a hazardous waste as defined in 40 CFR part 261. In this case,
this term is being used in a similar manner to the use of the term
``point of generation'' in waste operations air standards established
under authority of the Clean Air Act in 40 CFR parts 60, 61, and 63 of
this chapter. When neither the TSDF owner nor operator is the generator
of the hazardous waste, the ``point of waste origination'' means the
point where the owner or operator accepts delivery or takes possession
of the hazardous waste.
Finally, the EPA revised the impact analysis used for this
rulemaking after proposal to incorporate additional TSDF industry data.
An opportunity for public comment on this analysis was provided by the
EPA (refer to sections III.B and VI.B of this preamble). Based on the
revised analysis results, the EPA selected a new value for the volatile
organic concentration limit. Section V.C of this preamble presents the
rationale for the selection of the control option used as the basis for
the final rule.
b. Treated hazardous waste exemption. Under the subpart CC
standards, each affected tank, surface impoundment, and container that
manages hazardous waste having an average volatile organic
concentration equal to or greater than 100 ppmw, as determined by the
procedures specified in the rule, is required to use air emission
controls in accordance with the rule requirements. The owner or
operator must install and operate the specified air emission controls
on every affected tank, surface impoundment, and container used in the
waste management sequence from the point of waste origination (as
applies to the specific hazardous waste stream) through the point where
the organics in the waste are removed or destroyed by a process in
accordance with the requirements of the rule. If a particular hazardous
waste is not treated to meet these requirements, then all affected
units at the TSDF used in the waste management sequence for this
hazardous waste are required to use the air emission controls specified
by the subpart CC standards.
If the hazardous waste is treated to remove or destroy the organics
in the waste by a process that meets or exceeds a minimum level of
performance as specified in the rule, then affected units at the TSDF
operated downstream of the treatment process in the waste management
sequence for this hazardous waste are not required to use the air
emission controls specified by the subpart CC standards. It is
important to emphasize that tanks, surface impoundments, and containers
(subject to the rule) in which the treatment process is conducted are
required to use the applicable air emission controls specified by the
subpart CC standards with the exception of certain tanks and surface
impoundments used for active biological treatment of hazardous waste
and achieving the performance requirements specified in the rule (this
exception is explained further in section VII.A.4 of this preamble).
The conditions under which a treated hazardous waste no longer is
required to be managed in affected units using air emission controls
under the subpart CC standards have been revised and expanded since
proposal to include many alternatives from which an owner or operator
can choose one with which to comply. The final subpart CC standards
allow an owner or operator to use any type of treatment process that
can continuously achieve one of the specified sets of performance
conditions. These conditions have been changed to include:
(1) The average volatile organic concentration of the hazardous
waste exiting the process is less than 100 ppmw (except for certain
site-specific situations where multiple hazardous waste streams are
treated by a single process in which case a volatile organic
concentration limit for the waste exiting the process is established by
the rule procedures at a value lower than 100 ppmw);
(2) The organic reduction efficiency for a process treating
multiple hazardous waste streams is equal to or greater than 95
percent, and the average volatile organic concentration of the
hazardous waste exiting the treatment process is less than 50 ppmw; or
(3) The actual organic mass removal rate for the process is greater
than the required mass removal rate established for the process. The
alternative treatment process performance requirements specified in the
final subpart CC standards are discussed further in section VII.A.2 of
this preamble.
The proposed explicit exemption for hazardous wastes complying with
the land disposal restriction (LDR) treatment standards is not included
in the final subpart CC standards. The EPA concluded that the expanded
number of alternatives for treated hazardous waste and other provisions
added to the final rule provide a reasonable regulatory mechanism by
which a TSDF owner or operator can determine whether a hazardous waste
complying with the LDR treatment standards is exempted from being
managed in accordance with the air emission control requirements of the
subpart CC standards.
3. Waste Determination Procedures
As already noted, the procedures that a TSDF owner or operator may
use to determine the volatile organic concentration of a hazardous
waste have been revised for the final subpart CC standards. For a case
when direct measurement is chosen for determining the volatile organic
concentration of a hazardous waste, the proposed statistical
calculation procedure using Method 25D results is not included in the
final subpart CC standards. Instead, procedures are specified in the
final rule to compute the mass-weighted average volatile organic
concentration of a hazardous waste using Method 25D results for waste
generated as part of a continuous process and for waste generated as
part of a batch process. Under circumstances when the same batch
process is performed repeatedly but not necessarily continuously, the
final rule allows the owner or operator to determine the average
volatile organic concentration of the waste from this process by
averaging results for one or more representative waste batches
generated by the process. In all cases, a sufficient number of waste
samples for analysis (with a minimum of four samples) must be collected
to be representative of the normal range of the operating conditions
for the source or process generating the hazardous waste. Normal
operating conditions for the source or process generating the waste
include cyclic process operations such as startup and shutdown. Process
malfunctions, maintenance activities, or equipment cleaning are not
considered to be normal operating conditions for the purpose of
determining the average volatile organic concentration of a waste.
These waste determination procedures are discussed further in section
VII.A.3 of this preamble.
The proposed explicit requirements for determining the volatile
organic concentration of a hazardous waste using information in a waste
certification notice prepared by the waste generator are not included
in the final rule. Instead, for hazardous waste that is not generated
by the TSDF owner or operator (i.e., waste shipped to the TSDF from
off-site sources under different ownership), the final rule allows the
TSDF owner or operator to determine the waste volatile organic
concentration by either testing the waste when he or she accepts
delivery of the hazardous waste or using appropriate information about
the waste composition that is prepared by the generator of the waste.
The generator prepared information can be included in manifests,
shipping papers, or waste certification notices accompanying the waste
shipment, as agreed upon between the waste generator and the TSDF owner
or operator.
4. Tank Standards
Several changes to the tank standards have been made since
proposal. An exemption from the tank standards has been added for those
affected tanks used for biological treatment of a hazardous waste in
accordance with requirements specified in the rule. Changes have been
made to clarify the regulatory text regarding the tank cover design and
operating requirements. Also, the conditions have been clarified that
must be met for a particular tank to use a fixed-roof type cover
without any additional controls in accordance with the subpart CC
standards. Finally, provisions have been added to the rule to address
those special situations in which emergency venting of the tank or the
air emission controls installed on the tank is necessary for safety.
5. Surface Impoundment Standards
Changes to the surface impoundments standards have been made to be
consistent with the changes to the tank standards as applicable.
6. Container Standards
Several changes have been made to the container standards since
proposal in addition to limiting the applicability of the subpart CC
standards to containers having a design capacity equal to or greater
than 0.1 m\3\. The air emission control requirements for affected
containers have been revised to provide several air emission control
alternatives from which an owner or operator may choose one with which
to comply. For containers having a design capacity less than or equal
to 0.46 m\3\ (approximately 119 gallons), an owner or operator may
place the hazardous waste in drums that meet U.S. Department of
Transportation (DOT) specifications under 49 CFR part 178 without any
additional testing, inspection, or monitoring requirements. An owner or
operator is also allowed under the final rule to place the hazardous
waste in tank trucks and tank railcars that are annually demonstrated
to be vapor tight using Method 27 in 40 CFR part 60, appendix A without
any additional testing, inspection, or monitoring requirements.
The requirements for waste transfer operations for containers have
been revised under the final subpart CC standards. Submerged-fill of
hazardous waste that is loaded into containers by pumping is required
only when transferring the waste into containers having a design
capacity greater than 0.46 m\3\. Submerged fill of the waste is not
required when filling smaller size containers such as 55-gallon drums.
The air emission control requirements for owners and operators
treating hazardous waste in open containers have been revised. Whenever
it is necessary for the container to be open during the treatment
process, the container is required to be located in an enclosure
connected to a closed-vent system with an operating organic emission
control device. The final subpart CC standards include specific
enclosure design and operation requirements which allow the enclosure
to have permanent openings for worker access.
Finally, the container standards have been revised to be consistent
with the safety venting provisions added to the tank and surface
impoundment standards.
7. Closed-Vent System and Control Device Standards
The design and operating requirements for closed-vent systems and
control devices have been changed to be consistent with those
requirements already applicable to TSDF owners and operators under
subpart AA in 40 CFR parts 264 and 265. The subpart AA standards have
been in effect since 1990 and establish RCRA air standards to control
organic emissions from process vents on certain types of hazardous
waste treatment units.
8. Inspection and Monitoring Requirements
The inspection and monitoring requirements under the subpart CC
standards have been revised since proposal. The requirements for
inspection and monitoring of closed-vent systems and control devices
have been changed to be identical to the inspection and monitoring
requirements under subpart AA in 40 CFR parts 264 and 265. The required
interval for the visual inspection of covers installed on tanks,
surface impoundments, and certain containers has been changed to once
every 6 months. After the initial cover inspection and monitoring for
detectable organic emissions is completed, the owner or operator is
only required to inspect and monitor those cover openings that have
been opened (i.e., have not continuously remained in a closed, sealed
position) since the last visual inspection and monitoring. Special
inspection and monitoring provisions have been added for cover fittings
that are unsafe or difficult, as defined in the rule, for facility
personnel to inspect and monitor.
The subpart CC standards have been changed to allow leak repair on
tank and surface impoundment covers to be delayed beyond 15 calendar
days if both of the following conditions occur: (1) Repair of the leak
requires first emptying the contents of the tank or surface
impoundment; and (2) temporary removal of the tank or surface
impoundment from service will result in the unscheduled cessation of
production from the process unit, or operation of the waste management
unit, that is generating the hazardous waste managed in the tank or
surface impoundment. Repair of a leak must be performed at the next
time the process, system, or waste management unit that is generating
the hazardous waste managed in the tank or surface impoundment stops
operation for any reason.
9. Recordkeeping Requirements
The subpart CC standards have been changed to require cover design
documentation only for floating roof-type tank covers, surface
impoundment covers, and enclosures used for control of air emissions
from containers. Also, the recordkeeping requirements have been revised
as appropriate to address the changes to the final rule described
previously in this section of the preamble.
10. Reporting Requirements
The reporting requirements in the subpart CC standards are the same
as proposed with one exception. The time interval within which TSDF
owners and operators subject to the subpart CC standards under 40 CFR
part 264 must report to the Regional Administrator all circumstances
resulting in noncompliance with the applicable conditions has been
changed to within 15 calendar days of the time that an owner or
operator becomes aware of the circumstances.

B. TSDF Miscellaneous Units

Today's action amends 40 CFR 264.601 by adding to the permit terms
and provisions required for RCRA permitting of a miscellaneous unit the
appropriate air emission control requirements in 40 CFR part 264,
subparts AA, BB, and CC. This amendment is the same as proposed.

C. Generator 90-Day Tanks and Containers

The conditions with which a hazardous waste generator must comply,
pursuant to 40 CFR 262.34(a), to exempt tanks and containers
accumulating hazardous waste on-site for no more than 90 days from the
RCRA subtitle C permitting requirements are amended by today's action
to include compliance with the air emission control requirements of 40
CFR part 265, subparts AA, BB, and CC. This amendment is the same as
proposed.

D. Other RCRA Regulatory Actions

The EPA proposed several amendments to existing RCRA air standards.
One amendment proposed adding requirements for the management of spent
carbon removed from a carbon adsorption system to the closed-vent
system and control device standards under 40 CFR part 264, subparts AA
and BB, and 40 CFR part 265, subparts AA and BB. The final amendment
has been revised to allow the owner or operator the additional option
of burning the spent carbon in a boiler or industrial furnace that is
permitted under subpart H of 40 CFR part 266. A second amendment
promulgated today updates the leak detection monitoring provisions
under 40 CFR part 264, subparts AA and BB, and 40 CFR part 265,
subparts AA and BB for closed-vent systems to be consistent with other
air standards recently promulgated by the EPA. Under this amendment,
annual leak detection monitoring is not required for those closed-vent
system components which continuously operate in vacuum service or those
closed-vent system joints, seams, or other connections that are
permanently or semi-permanently sealed (e.g., a welded joint between
two sections of metal pipe, a bolted and gasketed pipe flange).

E. Test Methods

As part of this rulemaking, the EPA proposed two new reference test
methods (Method 25D and Method 25E) to be added to 40 CFR part 60,
Appendix A. Method 25D is a test method for the determination of the
volatile organic concentration of waste materials. Since proposal, the
EPA decided it is also appropriate to use method 25D to implement other
EPA air standards being developed under authority of the Clean Air Act.
The promulgation of some of these other air standards prior to today's
action required the EPA to promulgate Method 25D in a separate
rulemaking (refer to 59 FR 19402, April 22, 1994). Comments and
responses relevant to Method 25D for this rulemaking are in the BID for
the final rule and in the dockets pertaining to this rulemaking.
Method 25E is being promulgated today. Method 25E is the test
method for determining the organic vapor pressure of wastes. The
sampling requirements for Method 25E have been revised since proposal
to provide for sampling of the waste in a tank.

III. Summary of Final Rule Impacts

The EPA estimates that implementation of the subpart CC standards
will reduce nationwide organic emissions from TSDF tanks, surface
impoundments, and containers by approximately 970,000 Mg/yr. In
addition, the EPA estimates that nationwide organic emissions from 90-
day tanks and containers will be reduced by approximately 73,000 Mg/yr.
Control of organic air emissions addresses many air quality
problems including ambient ozone formation, adverse human health
effects from inhalation of air toxics, and, to a lesser extent,
depletion of stratospheric ozone. Ambient ozone concentrations exceed
the National Ambient Air Quality Standards (NAAQS) in many metropolitan
areas throughout the United States. Thus, the rule promulgated today
will contribute to progress in attaining the NAAQS for ozone in
nonattainment areas and also in preventing significant deterioration of
the air quality in those areas of the United States currently in
attainment with the NAAQS for ozone.
Today's action will also significantly reduce the risk to the
public of contracting cancer posed by exposure to toxic constituents
contained in the organic emissions from hazardous waste management
activities. The cancer risk to the entire exposed population nationwide
(i.e., annual cancer incidence) from exposure to organic emissions from
TSDF is estimated by the EPA to be reduced from approximately 48 cases
per year to a level of 2 cases per year. Annual cancer incidence as a
result of exposure to organic emissions from 90-day tanks and
containers is estimated by the EPA to be reduced from approximately
four cases per year to less than one case per year.
Maximum individual risk (MIR) is a measure of the added probability
of a person contracting cancer if exposed continuously over a 70-year
period to the highest annual average ambient concentration of the air
toxics emitted from a TSDF site. There are approximately 2,300 TSDF
locations in the United States. The MIR for all but approximately 20 of
these facilities is estimated by the EPA to be reduced by
implementation of the subpart CC standards to a level that is less than
1 x 10\4\. The target MIR levels historically used by the
EPA for other promulgated RCRA standards range from 1 x
10\4\ to 1 x 10\6\. Because the MIR values
for a few TSDF are estimated to remain higher than the historical RCRA
target, the EPA is continuing to evaluate the waste management
practices and the individual chemical compounds composing the organic
emissions at these TSDF. Following this evaluation, the EPA will
determine what other actions are necessary to attain the health-based
goals of RCRA section 3004(n). The omnibus permitting authority in
section 3005(c)(3) can be invoked to supplement or add to the
requirements in today's rule, should the rule be determined to be
insufficient to assure protection of human health and the environment
at a particular facility.
The total nationwide capital investment cost to TSDF owners and
operators to implement the subpart CC standards is estimated by the EPA
to be approximately $290 million. The total nationwide annual cost for
these standards is estimated to be approximately $110 million per year.
The total nationwide capital costs to hazardous waste generators of
installing the required air emission controls on 90-day tanks and
containers is estimated by the EPA to be approximately $23 million.
Total nationwide annual cost for the 90-day tank and container controls
is estimated to be approximately $7 million.
The EPA concludes that the rule promulgated today will not have a
significant economic impact on hazardous waste generators or TSDF
owners and operators. Prices for commercial hazardous waste management
services are estimated by the EPA to increase by less than 1 percent on
a nationwide annualized basis. The quantity of hazardous waste handled
by commercial hazardous waste management companies is projected to be
reduced by less than 1 percent on a nationwide annualized basis. Few,
if any, facility closures are anticipated. Job losses in the hazardous
waste industry are estimated to be less than 1.5 percent. Furthermore,
this impact on employment does not reflect positive employment effects
on industries producing the air emission control equipment that will be
used to comply with the rule. No significant impacts are expected on
small businesses.

IV. Background

A. Implementation of RCRA Section 3004(n)

The Hazardous and Solid Waste Amendments of 1984 added section
3004(n) to RCRA. Section 3004(n) directs the EPA to promulgate
regulations for the monitoring and control of air emissions from TSDF
as may be necessary to protect human health and the environment. The
EPA completed the first phase of its regulatory development program to
implement this Congressional directive with the promulgation of RCRA
air standards that control organic emissions vented from certain
hazardous waste treatment processes (i.e., distillation, fractionation,
thin-film evaporation, solvent extraction, steam stripping, and air
stripping) as well as from leaks in certain ancillary equipment used
for hazardous waste management processes (55 FR 25454, June 21, 1990).
Today's action completes the second phase of the EPA's regulatory
development program with the promulgation of RCRA air standards for
tanks, surface impoundments, containers, and miscellaneous units
operated at TSDF. This rulemaking also adds air emission control
requirements for certain hazardous waste generators accumulating waste
on-site in RCRA permit-exempt tanks and containers.
As described at proposal (56 FR 33496, July 22, 1991), the EPA
decided in both the first and second phases to develop standards that
control organic emissions as a class (as opposed to constituent-by-
constituent). Implementation of these nationwide standards will achieve
significant organic emission and cancer risk reductions. However, the
EPA estimates the cancer risk at a few TSDF after implementation of
these nationwide standards to remain at a level that is higher than the
range of target risk levels for other promulgated RCRA standards (refer
to section V.C of this preamble.) The third phase of this regulatory
development program is to determine what other actions are necessary to
attain the health-based goals of RCRA section 3004(n). To make this
determination, the EPA is evaluating hazardous waste operations at
those individual TSDF estimated to have MIR values greater than the
historical RCRA target MIR levels.

B. Public Participation in Rulemaking

The EPA is promulgating today's final rule after careful
consideration of public comments on the proposed rule (56 FR 33491,
July 22, 1991). The preamble to the proposed rule discussed the
availability of the background information document (BID) pertaining to
the health effects of organic emissions from hazardous waste TSDF using
tanks, surface impoundments, and containers. The EPA mailed copies of
the Federal Register notice and the BID for the proposed rule to
industry representatives, environmental groups, and State and Federal
agencies.
The EPA solicited comments from the public at the time of proposal
and provided a 90-day comment period, from July 22, 1991 to October 21,
1991, for the public to prepare and submit written comments on the
proposed rule. In addition, the EPA provided the opportunity for a
public hearing to allow interested persons to present oral comments to
the EPA concerning the proposed rule. However, no one requested that
the EPA hold a public hearing on the proposed rule. The EPA did receive
written comments from more than 80 companies, industrial trade
associations, environmental groups, and State and Federal agencies. The
BID for the final rule summarizes all of the comments on the proposed
rule and presents the EPA's response to each of the comments. Section
VI of this preamble presents responses to selected major comments.
Following the EPA's review of public comments received on the
proposed rule, the EPA revised the impact analysis used for its final
determination regarding today's rulemaking. This analysis used
additional TSDF industry data obtained by the EPA. The EPA provided an
opportunity for public comment on the additional TSDF industry data
used for the impact modeling revisions. A Federal Register Notice of
Data Availability (57 FR 43171, September 18, 1992) listed these
additional data. The EPA also made the data available for public
inspection at the EPA RCRA Docket Office. A 30-day comment period, from
September 18, 1992 to October 19, 1992, provided the public the
opportunity to comment on the additional data. The EPA received
comments on the additional data from one industrial trade association.
Section VI.B of this preamble presents a summary of these comments.

C. Relationship to Other RCRA Standards

1. RCRA Rules for TSDF Owners and Operators
Today's action establishes organic air emission control
requirements for TSDF tanks, surface impoundments, and certain
containers. Other types of waste management units operated at TSDF may
be subject to these air emission control requirements as follows.
a. Miscellaneous units. Under RCRA in 40 CFR 260.10, the EPA
defines a ``miscellaneous unit'' as a hazardous waste management unit
where waste is treated, stored, or disposed of that is not a container,
tank, surface impoundment, wastepile, land treatment unit, landfill,
incinerator, boiler, industrial furnace, underground injection well
with appropriate technical standards under 40 CFR part 146, or a unit
eligible for a research, development, and demonstration permit under 40
CFR 270.65. The EPA has established provisions under 40 CFR part 264,
subpart X to allow TSDF owners and operators to obtain permits to
operate miscellaneous units. The EPA permits miscellaneous units on a
case-by-case basis with terms and provisions as needed to protect
public health and the environment through generic performance standards
specified in 40 CFR 264.601.
Today's rule amends Sec. 264.601 to state that the air emission
controls required by the standards under 40 CFR 264 subparts AA, BB,
and CC are among the ``appropriate'' controls a permit writer may
require for a miscellaneous unit ``to ensure protection of human health
and the environment.'' Applicability of today's rule to miscellaneous
units is discussed further in Section VII.B of this preamble.
b. Land disposal restrictions. The RCRA LDR treatment standards
under 40 CFR part 268 require TSDF owners and operators to treat
hazardous waste to reduce the toxicity or mobility of specific
constituents in the waste before the TSDF owner or operator can place
the waste in a land disposal unit. Under certain conditions, the EPA
may grant a TSDF owner or operator permission to land dispose a
hazardous waste that does not meet the LDR treatment standards in a
particular land treatment unit, landfill, wastepile, or surface
impoundment. This action is referred to as the ``no migration''
variance. To obtain a ``no migration'' variance, a TSDF owner or
operator must demonstrate in a petition to the EPA that, with a
reasonable degree of certainty, there will be no migration of hazardous
constituents from the disposal unit for as long as the waste remains
hazardous.
On August 11, 1992, the EPA proposed its interpretation of the term
``no migration'', the procedures and substantive requirements for
submitting to the EPA a petition to demonstrate ``no migration'' from a
land disposal unit, and the EPA's criteria for evaluating the petitions
(57 FR 35940). This proposal includes amending 40 CFR 268.6 to add as a
condition for receiving a no migration variance that the applicant
demonstrate that the subject land disposal unit complies with the
applicable air emission standards the EPA has developed under 40 CFR
parts 264 and 265.
c. Corrective action requirements. The EPA is temporarily deferring
applicability of the subpart CC standards to any tank, surface
impoundment, or container which is used solely for on-site treatment or
storage of hazardous waste that is generated as the result of
implementing remedial activities required under the RCRA corrective
action authorities of 3004(u), 3004(v) or 3008(h). The EPA's rationale
for this temporary deferral is explained in section VII.A.1 of this
preamble.
2. RCRA Rules for Hazardous Waste Generators
Hazardous waste generators who accumulate waste on-site in
containers or tanks for short periods of time can elect to be exempted
from RCRA subtitle C permitting requirements provided that a generator
complies with provisions specified in 40 CFR 262.34. The EPA allows a
generator who generates 1,000 kilograms or more of hazardous waste per
month to accumulate the hazardous waste on-site for up to 90 days in
tanks and containers without a permit provided the generator complies
with certain conditions specified in 40 CFR 262.34(a). These conditions
include compliance with the requirements of 40 CFR part 265, subpart I
when the waste is accumulated in a container and 40 CFR part 265,
subpart J when the waste is accumulate in a tank. Tanks and containers
used to accumulate hazardous waste on-site for 90 days or less pursuant
to the conditions of 40 CFR 262.34(a) are hereafter referred to in this
preamble as ``90-day tanks and containers.''
The rule promulgated today only amends the RCRA permit exemption
requirements for generators operating 90-day tanks and containers. This
action does not affect the existing RCRA permit exemption requirements
for generators operating tanks and containers for on-site accumulation
of hazardous waste in accordance with the provisions of 40 CFR 262.34
(d) or (e). Applicability of today's rule to 90-day tanks and
containers is discussed further in Section VI.D of this preamble.
3. RCRA Rules for Hazardous Waste Transporters
Regulations in 40 CFR part 263 establish standards that apply to
persons transporting hazardous waste within the United States if the
transportation requires a manifest under 40 CFR part 262. Today's
action does not change the RCRA rules under 40 CFR part 263. However,
the air standards promulgated today may indirectly affect transporters
accepting certain organic-containing hazardous wastes from TSDF owners
and operators. The final subpart CC standards require that TSDF owners
and operators only load these hazardous wastes into containers
(including tank truck, railcars, and roll-off boxes) that use air
emission controls as specified in the rule. Consequently, to continue
accepting hazardous waste from a TSDF owner or operator, in some cases,
transporters may need to ensure that their containers meet the subpart
CC standards.

D. Relationship to CERCLA Standards

The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), authorizes the EPA to undertake removal and
remedial actions to clean up hazardous substance releases. Under
CERCLA, on-site remedial actions are required to comply with the
requirement of Federal and more stringent State environmental laws that
are applicable or relevant and appropriate (ARAR) to the remedial
action unless certain statutory waivers apply. In addition, the
National Oil and Hazardous Substances Contingency Plan (NCP) provides
that removal actions shall attain ARAR to the extent practicable
considering the exigencies of the situation. [40 CFR 300.415(i)]. As
explained in section VII.A.1 of this preamble, the EPA has decided to
temporarily defer application of the subpart CC standards to tanks,
containers and surface impoundments which are being used to treat or
store hazardous wastes containing organics generated on-site from
remedial activities required under RCRA corrective action or CERCLA
response authorities, or similar State remediation authorities,
provided that the wastes are managed in units that do not also manage
other hazardous waste containing organics. However, after the temporary
deferral has been lifted, today's rules may be considered an ARAR for
certain types of remedial and removal actions.
A requirement under a Federal or State environmental law may be
either ``applicable'' or ``relevant and appropriate,'' but not both, to
a remedial or removal action conducted at a CERCLA site. An ARAR is
identified on a site-specific basis in a two-part analysis that
considers first, whether a given requirement is applicable; then, if it
is not applicable, whether it is nevertheless both relevant and
appropriate. ``Applicable'' requirements as defined in the NCP are
those that specifically address a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstances found at
a CERCLA site. [40 CFR 300.415(i)]. ``Relevant and appropriate''
requirements are those that, while not ``applicable'' at a CERCLA site,
address problems or situations sufficiently similar to those
encountered at the CERCLA site that their use is well suited to the
particular site. [40 CFR 300.415(i)].
Some waste management activities used for remedial and removal
actions of hazardous organic substances require the use of tanks,
surface impoundments, and containers. For example, a TSDF may treat
hazardous organic liquids and surface water contaminated with hazardous
organic waste on site using destruction, detoxification, or organic
removal processes that occur in tanks or surface impoundments. The
facility may perform on-site solvent washing of soils contaminated with
hazardous organic sludges in a tank or container. At a TSDF, hazardous
waste in leaking drums may be repacked in new containers for treatment
and disposal at another site.
Once today's deferral is lifted, the air emission control
requirements of the subpart CC standards are likely to be
``applicable'' to on-site remedial and removal actions that use tanks,
surface impoundments, and containers to manage substances exhibiting
characteristics or listed under RCRA as hazardous waste and having an
average volatile organic concentration equal to or greater than 100
ppmw. In other cases, the standards may be ``relevant and
appropriate''; this determination must be made on a site specific
basis.
On the other hand, the subpart CC standards do not specify control
requirements for wastepiles, landfills, and land treatment units that
manage hazardous wastes at TSDF. Therefore, the standards are not
likely to be ``applicable'' to excavation, capping of wastes, land
treatment, land farming, in situ treatment activities, and other
activities involving wastepiles and landfills at CERCLA sites. Although
in most cases the EPA does not expect the subpart CC standards to be
``relevant and appropriate'' to these types of units at CERCLA sites,
remedial and removal actions performed in wastepiles may in some cases
be similar in nature and scale to the waste management activities
performed in surface impoundments; and waste stabilization may involve
the basic process and air emission mechanism regardless of whether the
mixing of the waste and binder is conducted in a tank, surface
impoundment, container, wastepile, landfill, or land treatment unit.
Thus, in some cases the subpart CC standards may be ``relevant and
appropriate'' for such actions; this determination must be made on a
site specific basis.

E. Relationship to Clean Air Act Standards

Section 112 of the Clean Air Act (CAA) regulates stationary sources
of hazardous air pollutants (HAP). This section was comprehensively
amended under Title III of the 1990 Amendments to the CAA. Under the
amended CAA section 112(b), Congress listed 189 chemicals, compounds,
or groups of chemicals as HAP. The EPA is directed by the CAA to
regulate HAP emissions from stationary sources by establishing national
emission standards for hazardous air pollutants (NESHAP).
The 1990 Amendments to the CAA required the EPA to develop and
publish a list of source categories that emit HAP for which NESHAP will
be developed. The EPA published its initial list of NESHAP source
categories on July 16, 1992 (refer to 57 FR 31576). Many industrial
sectors that may manage hazardous wastes are listed as specific NESHAP
source categories. Consequently, facilities at which hazardous wastes
are managed may be subject to both NESHAP and the RCRA air standards
under 40 CFR part 264 and 265. At these facilities, some waste
management units would be subject to either air emission control
requirements under the NESHAP or the air emission control requirements
under the RCRA air standards. However, in certain situations, some
waste management units would be subject to air emission control
requirements under both sets of rules.
The CAA requires that the requirements of standards developed under
the Act be consistent, but avoid duplication, with requirements of
standards developed under RCRA. Consequently, the EPA is taking into
account the air standards promulgated under RCRA section 3004(n) in
determining the requirements for NESHAP affecting air emission sources
at which hazardous waste could be managed.

F. Relationship to Nuclear Regulatory Commission Standards

Radioactive mixed wastes are wastes that contain radioactive
materials as well as materials listed or identified as hazardous under
RCRA. Radioactive mixed wastes must be managed in accordance with RCRA
regulations, in addition, these wastes also are subject to standards
administered by the Nuclear Regulatory Commission (NRC) under the
Atomic Energy Act and Nuclear Waste Policy Act of 1982 that address the
safe handling and disposal of radioactive waste.
The EPA has previously stated its general position that the
management of radioactive mixed waste at TSDF is subject to regulation
under subtitle C of RCRA (51 FR 24504, July 3, 1986; 53 FR 37045,
September 23, 1988). In developing the RCRA standards applicable to
radioactive mixed wastes, the EPA considers the management practices
required for these wastes to avoid inconsistencies between the EPA's
hazardous waste management requirements and the NRC's radioactive waste
management requirements. Furthermore, RCRA section 1006(a) precludes
any solid or hazardous waste regulation by the EPA or a State that is
``inconsistent'' with the requirements of the Atomic Energy Act. Thus,
in a case where the regulatory requirements for radioactive mixed waste
are conflicting, the NRC requirement takes precedence over the RCRA
requirement. Because of the potential that air emission control
equipment required by the subpart CC standards promulgated today may
conflict with certain radioactive waste management requirements under
NRC standards, the EPA has decided to temporarily defer application of
the subpart CC standards to tanks, containers, and surface impoundments
which are being used solely to manage radioactive mixed wastes. This
deferral is discussed further in section VII.A.1 of this preamble.

V. Basis for Final Rule

A. New Control Options

The EPA developed a national impacts model specific to the air
emission sources affected by this rulemaking to compare the human
health and environmental protection provided by the different air
emission control options. Following proposal of the rule, the EPA
revised this model to incorporate new information obtained by the EPA
and to address public comments on the impact analysis methodology
received at proposal. Section VI.B of this preamble presents a further
discussion of the impact analysis revisions.
At proposal, the EPA gave notice that consideration of new results
from revisions to the national impacts analysis could lead to selection
of any one of the control options considered at proposal or possibly a
new control option (56 FR 33516). Upon reviewing preliminary results
for the revised national impacts model, the EPA decided to expand the
number of control options considered for the final rule.
The EPA first performed a screening evaluation by using the revised
national impacts model to estimate the nationwide organic emission and
cancer incidence reductions for the original five control option
configurations described at proposal (56 FR 33512), plus nine new
control option configurations. The EPA included a summary of the
impacts model results for these 14 control options in the information
listed in the Notice of Data Availability (57 FR 43171) and made
available for public inspection at the EPA RCRA Docket Office (refer to
RCRA docket entry number F-92-CESA-00018).
The EPA used the screening evaluation results to select a final
group of control options selected for further analysis. The EPA
eliminated a control option from further consideration if another one
of the control options was estimated to provide the same level of
nationwide organic emission or cancer incidence reduction but at a
lower cost. This is the same control option selection approach the EPA
used at proposal.
Based on the screening evaluation results, the EPA selected four
control options for further analysis. In addition to the control option
used as the basis for the proposed rule, the EPA also analyzed
``baseline'' impacts. These ``baseline'' impacts represent the
estimated nationwide organic emissions and other impacts that would
occur in the absence of implementing any of the control options. The
final group of five control options (designated Options A through E)
differ by the value used for the volatile organic concentration limit
and the type of air emission controls used for surface impoundments.
Option A requires air emission controls on all TSDF tanks, surface
impoundments, and containers managing hazardous waste with any
detectable volatile organic concentration as determined at the point
where the waste is generated (i.e., a volatile organic concentration
action level of 0 ppmw). Under Option A, tanks use a cover vented to a
control device except for tanks handling certain hazardous wastes.
Tanks in which the organic vapor pressure of the hazardous waste in the
tank is less than 10.4 kPa (approximately 1.5 psi) may use a cover
without additional controls. All surface impoundments use a cover
vented to a control device. Containers use cover and submerged fill for
loading hazardous wastes into the containers.
Option B requires air emission controls only on those TSDF tanks,
surface impoundments, and containers used to manage hazardous wastes
having a volatile organic concentration at the point where the waste is
generated equal to or greater than 100 ppmw. The control requirements
are the same as described for Option A with one exception; surface
impoundments used for storage of hazardous waste and surface
impoundments used for treatment of hazardous waste by a process not
requiring aeration or agitation of the waste require covers only.
Option C requires air emission controls only on those TSDF tanks,
surface impoundments, and containers used to manage hazardous wastes
having a volatile organic concentration at the point where the waste is
generated greater than 500 ppmw. The air emission control requirements
are the same as described for Option B. Option C is the same control
option selected as the basis for the proposed rule.
Option D requires air emission controls only on those TSDF tanks,
surface impoundments, and containers used to manage hazardous wastes
having a volatile organic concentration at the point where the waste is
generated greater than 1,500 ppmw. The air emission control
requirements are the same as described for Options B and C.
Option E requires air emission controls only on those TSDF tanks,
surface impoundments, and containers used to manage hazardous wastes
having a volatile organic concentration at the point where the waste is
generated greater than 3,000 ppmw. The air emission control
requirements are the same as described for Options B, C, and D.

B. Control Option Impacts

The EPA estimated nationwide organic emission and cancer risk
reductions that would be achieved if air standards were implemented for
each of the five control options. The ``baseline'' nationwide organic
emissions from TSDF are estimated to be approximately 1 million Mg/yr.
The estimated nationwide TSDF organic emissions assuming implementation
of the individual control options are 30,000 Mg/yr for Option A, 41,000
Mg/yr for Option B, 48,000 Mg/yr for Option C, 51,000 Mg/yr for Option
D, and 90,000 Mg/yr for Option E.
To assess the risk of contracting cancer posed by exposure to
organic emissions from TSDF, the EPA used two measures of health risk:
Annual cancer incidence and maximum individual risk (MIR). The annual
cancer incidence parameter represents an estimate of population risk
and, as such, measures the aggregate risk to all people in the United
States estimated to be living within the vicinity of TSDF. The MIR
parameter represents the potential of air emissions from a particular
source to cause cancer in the most exposed hypothetical individual
under the assumptions used in the risk and exposure assessments.
Estimation of these health risk parameters requires the EPA to make
several critical assumptions regarding the TSDF plant configurations
and operating practices, the composition of wastes managed at these
TSDF, the cancer potency of the organics contained in these wastes, the
emission of these organics to the atmosphere from TSDF sources, and the
exposure of people living near TSDF to these air toxic emissions. The
complex interrelationship of the various assumptions prevents the EPA
from definitively characterizing the estimated health risk parameter
values as being overestimates or underestimates.
The EPA estimated annual cancer incidence for baseline and the five
control options using the EPA's Human Exposure Model (HEM), the site-
specific cancer risk factors, and TSDF industry profile data bases.
This risk value is based on the estimated number of excess cancers
occurring in the nationwide population after a lifetime exposure
(defined to be 70 years). For statistical convenience, the EPA divided
the aggregate risk by 70 and expressed the risk as cancer incidence per
year. The information provided in RCRA docket entry numbers F-92-CESA-
S00014 and S00015 describes the estimation methodology in more detail.
The EPA estimates baseline nationwide annual cancer incidence from
exposure to TSDF organic emissions to be 48 cases per year. The
estimated nationwide TSDF cancer incidences, assuming implementation of
the individual control options, are two cases per year for Option A,
two cases per year for Option B, four cases per year for Option C, five
cases per year for Option D, and nine cases per year for Option E.
The EPA uses the MIR parameter for relative comparisons of
pollutants, emission sources, and control alternatives. For the impact
analysis, the EPA estimated the MIR parameter assuming that exposure of
the individual to the ambient air toxic concentrations occurs for 24
hours per day for a lifetime of 70 years. The EPA realizes that this is
a conservative assumption since most people do not spend their entire
lives at one location. However, it is completely possible for an
individual to live in the same place for his or her entire life.
Furthermore, other uncertainties in the analysis could lead to
underestimating the risk. For example, the actual exposed
subpopulations (such as children or asthmatics) may be more sensitive
to the emitted air toxics than the reference adult male for which the
unit risk factor extrapolations are based. In addition, the analysis
does not address potential indirect exposure pathways to humans, or
potential harm to environmental receptors.
The MIR parameter reflects the added probability that a person
would contract cancer if exposed continuously over a 70-year period to
the highest annual average ambient concentration of the air toxics
emitted from a TSDF. Baseline MIR from exposure to TSDF organic
emissions is estimated to be 3 x 10\2\. The estimated MIR's, assuming
implementation of the individual control options, are: 4 x 10-3
for Option A, 4 x 10-3 for Option B, 2 x 10-2 for Option
C, 3 x 10-2 for Option D, and 3 x 10-2 for Option E.
These MIR values apply only to the very few TSDF, of the approximately
2,300 TSDF operating in the United States, that are estimated to have
the potential to cause the highest risk. The values do not represent
actuarially measured risks nor do they apply to all TSDF in the United
States. The EPA is not attempting to estimate any specific individual's
potential of developing cancer. Finally, the EPA is not interpreting
any of these estimates as indicators of the absolute risks of
contracting cancer. Rather, the purpose of this cancer risk assessment,
both for incidence and MIR, is to compare relative differences among
the individual control options (i.e., ``degree'' of human health
protection).
In addition to estimating organic emissions and cancer risk
parameters, the national impacts model provides an estimate of the
total nationwide capital costs and annual costs to the TSDF owners and
operators to install and operate the air emission controls specified by
each control option. For these nationwide cost estimates, the EPA
assumed that, at every TSDF location, treatment of all hazardous wastes
to remove or destroy the organics in the waste occurs as the last step
prior to disposal of the waste. In actuality, the EPA expects that, at
many TSDF, the owner or operator (after becoming aware of the air
standards) will elect to treat waste at an earlier step in the waste
management sequence. By treating organics in compliance with one of the
waste treatment alternatives provided in final rule, the owner or
operator could avoid the costs of installing and operating control
equipment on the downstream tanks, surface impoundments, and
containers.
Capital investment cost represents the cost to TSDF owners and
operators to purchase and install the air emission control equipment.
The estimated nationwide capital costs in 1986 dollars to implement the
control options are: $520 million for Option A, $290 million for Option
B, $240 million for Option C, $200 million for Option D, and $140
million for Option E. Annual cost represents the total cost to TSDF
owners and operators each year to pay for operating and maintaining the
air emission controls as well as to repay the capital investment for
the air emission controls. The capital recovery was estimated using an
interest rate of 10 percent applied over a period ranging from 10 to 20
years depending on the expected service life for each type of air
emission control equipment. The estimated nationwide annual costs to
implement the control options are: $190 million/yr for Option A, $110
million/yr for Option B, $90 million/yr for Option C, $80 million/yr
for Option D, and $60 million/yr for Option E.

C. Selection Rationale

From Options A through E, the EPA selected one control option to
serve as the basis for today's final rule. The EPA applied the same
decision rationale used at proposal for this rulemaking (56 FR 33515-
33516, July 22, 1991) as well as for RCRA air standards promulgated
under subparts AA and BB to 40 CFR parts 264 and 265 (refer to 55 FR
25470, June 21, 1990). This decision rationale requires the EPA to
select, whenever possible, the level of control that provides an
acceptable degree of protection of human health and the environment. If
no control option is available to achieve acceptable levels of
protection, the EPA's approach historically has considered cost under
RCRA only for equally protective control options.
All five of the control options considered for the final rule are
estimated to achieve similar levels of substantial reductions in
nationwide organic emissions from TSDF. The nationwide organic emission
reductions for the control options are estimated to be approximately
970,000 Mg/yr for Option A, 960,000 Mg/yr for Option B, 950,000 Mg/yr
for Option C, 950,000 Mg/yr for Option D, and 910,000 Mg/yr for Option
E.
Both Options A and B are estimated to achieve the lowest cancer MIR
and greatest reduction in annual cancer incidence of the five options.
However, none of the control options reduces MIR to the target cancer
risk levels used for other promulgated RCRA standards, which have been
in the range of 1 x 10-4 to 1 x 10-6. The estimated MIR is an
order-of-magnitude higher for Options C, D, and E (2 x 10-2 for
Option C, 3 x 10-2 for Options C and D) compared to Options A and
B (4 x 10-3). Annual cancer incidence reductions estimated for
Option C (44 cases per year), Option D (43 cases per year), and Option
E (39 cases per year) are lower than the annual cancer incidence
reductions estimated for Options A and B (46 cases per year).
On the basis of the estimated annual cancer incidence and MIR, the
EPA concluded that Options A and B are more protective of human health
than Options C, D, or E. Therefore, the EPA eliminated Options C, D,
and E from further consideration as the basis for the final rule.
Both Options A and B are estimated to achieve the same level of
cancer risk reduction (MIR to 4 x 103 and annual
cancer incidence to two cases per year). Therefore, the EPA concluded
that Options A and B are equally protective of human health and the
environment (to the extent ascertainable by this modelling
methodology). Historically under RCRA, the EPA has considered control
option costs only to select between options estimated to achieve
equivalent levels of protection. Therefore, to select between Options A
and B, the EPA compared the estimated costs to implement each of the
control options. Option B requires the use of air emission controls
only on those TSDF tanks, surface impoundments, and containers used to
manage hazardous wastes with a volatile organic concentration at the
point where the waste is generated equal to or greater than 100 ppmw.
Because TSDF owners and operators would need to install and operate air
emission controls on fewer TSDF tanks, surface impoundments, and
containers, Option B would be less expensive for the TSDF industry to
implement than Option A. Therefore, the EPA selected Option B as the
basis for the final rule.
While Option B does not achieve the target MIR levels historically
used for other promulgated RCRA rules, Option B does achieve
substantial reductions in cancer risk. The annual cancer incidence is
estimated to be reduced by greater than 95 percent from the baseline
value. Furthermore, the MIR for most of the 2,300 TSDF nationwide are
estimated to achieve the target MIR levels. To address the remaining
cancer risk at TSDF after implementation of the air standards
promulgated today, the EPA is further evaluating the waste management
practices and the specific chemical compounds composing the organic
emissions from those individual TSDF for which the MIR values are
estimated to be greater than the historical RCRA target MIR levels.
Following this evaluation, the EPA will determine what other actions,
such as the use of section 3005(c)(3) omnibus permitting authority or
additional rulemaking, are necessary to attain the health-based goals
of RCRA section 3004(n).

VI. Summary of Responses to Comments on Proposed Rule

All of the comments on the proposed rule and the EPA's response to
each of these comments is presented in ``Hazardous Waste Treatment,
Storage, and Disposal Facilities (TSDF)--Background Information for
Promulgated Organic Air Emission Standards for Tanks, Surface
Impoundments, and Containers'', EPA document number EPA-453/R-94-076b
(to obtain a copy of this document refer to the ADDRESSES section of
this preamble). The EPA's responses to topics addressed by many of the
commenters are summarized below.

A. Development of Air Standards Under RCRA

Comment: Many comments were received regarding the extent to which
the congressional directive of RCRA section 3004(n) should be
implemented using air standards established by the EPA under Clean Air
Act (CAA) authority. Commenters stated the position that protection of
human health and the environment from TSDF air emissions is most
appropriately, effectively, and efficiently addressed by developing air
standards under the CAA authority. Therefore, commenters believe that
the EPA should make the determination that the requirements of RCRA
section 3004(n) are best fulfilled by deferring to air standards
established under CAA authority. Commenters stated that the air
standards proposed by the EPA under authority of RCRA section 3004(n)
are:
(1) Not needed because existing CAA programs adequately address the
control of TSDF organic emissions;
(2) Duplicative or contradictory of new programs now being
implemented by the EPA to control hazardous air pollutants as directed
by section 112 of the CAA;
(3) Not in compliance with RCRA section 1006(b) regarding
duplication or contradiction of CAA requirements;
(4) Inconsistent with CAA programs that establish ozone precursor
control requirements depending on the national ambient air quality
standards attainment status of the region in which a source is located;
(5) Inconsistent with the EPA's pollution prevention policy;
(6) Contrary to the EPA's ``cluster concept'' of examining and
coordinating regulations addressing the same emission source to
minimize duplicative or contradictory requirements; and
(7) Difficult to administer and enforce because, traditionally, one
State regulatory agency administers rules regulating air emissions
while another administers rules regulating hazardous waste management.
Response: The Hazardous and Solid Waste Amendments to RCRA added
section 3004(n), which directs the EPA to ``* * * promulgate
regulations for the monitoring and control of air emissions from
hazardous waste treatment, storage, and disposal facilities, including
but not limited to open tanks, surface impoundments, and landfills, as
may be necessary to protect human health and the environment.'' The EPA
considers the most appropriate, effective, and efficient way to fulfill
this congressional mandate is to develop air standards for TSDF that
are implemented under the existing RCRA subtitle C permitting program
already in place for these facilities. However, the EPA disagrees with
one commenter's assertion that, in establishing these RCRA air
standards, the EPA cannot consider the impact of air standards
promulgated or currently being developed under other statutory
authorities such as the CAA. On the contrary, RCRA section 1006(b)
requires the EPA to coordinate its regulations under RCRA statutes and
to avoid duplication, to the maximum extent practicable, with
appropriate provisions of the CAA.
The EPA disagrees that the requirements of RCRA section 3004(n) are
best fulfilled by deferring to air standards established under CAA
authority. There is no indication that Congress intended for air
standards to be issued only within the authority granted to the EPA by
the CAA. If this was the case, then Congress would not have amended
RCRA section 3004(n) under HSWA after Congress had already authorized
the EPA to control air emissions under the CAA. Refer to S. Rep. No.
284, 98th Cong. 1st sess. 63. Thus, both RCRA and the CAA authorize the
EPA to control air emissions from TSDF.
Although historically many standards promulgated by the EPA under
authority of RCRA have addressed the prevention of soil and water
contamination from improper management of hazardous waste, the EPA is
not limited by RCRA to promulgating standards only for certain media
(e.g., surface waters, groundwater, and soils). Indeed, RCRA section
3004(n) specifically directs the EPA to issue regulations controlling
air emissions from TSDF as necessary to protect human health and the
environment.
The selection of TSDF air emission sources for control by
establishing air standards under RCRA section 3004(n) is based on
controlling those TSDF air emission sources determined by the EPA to
have significant toxic and ozone precursor emission potential but for
which emission control is not adequately addressed by other standards
promulgated by the EPA such as NESHAP and NSPS established under the
CAA. At proposal, the EPA concluded that additional air emission
control requirements for TSDF tanks, surface impoundments, and
containers are needed. This decision was based on the EPA's
determination that existing and future Federal standards under the CAA
and State air standards do not adequately address the control of TSDF
organic air emissions.
As previous described in section III.E of this preamble, CAA
section 112 has been amended by Congress since RCRA section 3004(n) was
enacted. Section 112 of the CAA as amended requires the EPA to identify
major sources and area sources of HAP emissions and to develop NESHAP
for these sources. To date for this air standards development program,
the EPA has either promulgated or proposed several NESHAP that may
apply to some hazardous waste management activities at TSDF. However,
in general, these NESHAP added requirements to address HAP emissions
from certain waste and material recovery operations that are not
subject to or exempted from regulation under the RCRA air standards in
40 CFR parts 264 and 265. Thus, the NESHAP and other air standards
being developed under CAA are not intended to duplicate the RCRA air
standards, but instead to integrate with the RCRA air standards to
create a comprehensive air program for addressing organic air emissions
from all waste and related material recovery operations.
For example, on-site wastewater treatment operations at synthetic
organic chemicals manufacturing industry (SOCMI) facilities are
regulated under the hazardous organic NESHAP (``the HON'') promulgated
on April 22, 1994 (see 59 FR 19402). At many of these facilities, the
hazardous wastewaters generated by process units and resulting
wastewater treatment sludges are managed in tank systems that are
exempted from RCRA permitting requirements under provisions in 40 CFR
264.1(g)(6) or 40 CFR 265.1(c)(10). Thus, the air emission control
requirements under the HON, in most cases, affect wastewater treatment
tanks not subject to the RCRA air standards.
A second example is the recently proposed NESHAP for off-site waste
and recovery operations (59 FR 51913, October 13, 1994). This NESHAP
would apply to owners and operators of facilities, with certain
exceptions, that manage wastes or recoverable materials which have been
generated off-site at another facility and contain specific organic
HAP. The rule would apply to operations managing solid wastes as
defined under RCRA (hazardous and nonhazardous wastes) as well as
operations handling recovered materials excluded from the RCRA
definition of solid waste (e.g., recycled materials containing organic
HAP, used oil reprocessed for sale as a fuel). As a result, certain
off-site waste and recovery operations with organic HAP emissions, but
exempted from regulation under the RCRA air standards, would be
required to use air emission controls under this NESHAP.
In contrast to the NESHAP now being developed under CAA section
112, the EPA has already achieved progress toward full implementation
of RCRA section 3004(n), which requires a ``cradle to grave'' approach
to hazardous waste management that addresses protection of air, water,
and groundwater. Air standards have been promulgated for TSDF treatment
process vents (subpart AA in 40 CFR parts 264 and 265) and for TSDF
process equipment leaks (subpart BB in 40 CFR parts 264 and 265) in
addition to the development of these air standards for TSDF tanks,
surface impoundments, and containers. There is no benefit to delaying
implementation of air standards for TSDF tanks, containers, and surface
impoundments to a future rulemaking under amended CAA section 112 when
the EPA can proceed now with the promulgation of effective air
standards under RCRA section 3004(n) for these air emission sources.
The RCRA air standards adopted today do comply with RCRA section
1006(b). This section requires that the air standards be consistent
with and not duplicative of CAA standards. Although RCRA section
1006(b) requires some accommodation with existing regulatory standards,
it ``does not permit the substantive standards of RCRA to be
compromised.'' Chemical Waste Management v. EPA, 976 F.2d at 23 (D.C.
Cir. 1992). It is obviously reasonable for the EPA to view the RCRA
section 3004(n) mandate as a standard which cannot (or at least need
not) be compromised. Similarly, the CAA Amendments of 1990 require that
air standards developed under the CAA be consistent with RCRA rules. To
conform with the dual RCRA and CAA requirements that standards be
consistent, the air standards developed under RCRA section 3004(n) do
not duplicate or contradict existing NESHAP or NSPS.
The EPA is fully aware that at many facilities where hazardous
wastes are managed, the RCRA air standards under 40 CFR part 264 and
265 as well as NESHAP and NSPS for specific source categories may be
applicable to a particular TSDF. Certain testing, monitoring,
inspection, recordkeeping, and other requirements under the RCRA air
standards may be similar to or duplicative of requirements under the
applicable NESHAP or NSPS. In many cases at a TSDF, individual waste
operations will be subject to either the air emission control
requirements under the RCRA air standards or the air emission control
requirements under the applicable NESHAP or NSPS. Thus, it is necessary
to include testing, monitoring, inspection, recordkeeping, and other
implementation requirements in each rule to assure compliance with and
enforcement of the rule. However, in certain situations, some
individual waste operations at a TSDF could be subject to air emission
control requirements under both the RCRA air standards as well as a
NESHAP or NSPS. In such cases, the EPA believes it is unnecessary for
owners and operators of these waste management units to conduct
duplicative waste testing, keep duplicate sets of records, or perform
other duplicative actions to demonstrate compliance with both sets of
rules. Therefore, to be consistent with RCRA section 1006(b) to the
maximum extent practicable, the EPA is coordinating the testing,
recordkeeping, reporting, and other implementation activities required
under the RCRA air standards and related rules developed under the CAA.
The EPA has requested public comment in a related proposed NESHAP
rulemkaing (the off-site waste and recovery operations NESHAP, see 59
FR 51919, October 13, 1994) on how the applicable requirements included
in the RCRA air standards should be incorporated into CAA rules being
developed by the EPA for waste and recovery operations that will allow
owners and operators subject to both sets of rules to demonstrate
compliance with all applicable rules without having to repeat the
duplicative requirements.
Nevertheless, RCRA section 1006(b) cannot be used to ignore key
elements of RCRA; see Chemical Waste Management v. EPA, 976 F.2d at 23.
In this case, Congress has indicated that TSDF air emissions need to be
controlled on the RCRA timetable, not that of the CAA. Deferring
totally to the CAA would vitiate this key RCRA requirement. [See also
RCRA section 3004(q) and CAA section 112(n)(7) in which Congress
indicated that pendency of CAA air standards for RCRA units does not
vitiate RCRA requirements.]
The EPA's approach to developing air standards for TSDF under RCRA
is consistent with CAA programs to achieve attainment and to maintain
national ambient air quality standards (NAAQS). The NAAQS specify
limits to pollutant concentrations in the ambient air to protect public
health and welfare. A NAAQS has been established for ozone. Ambient
ozone concentrations in many metropolitan regions of the United States
exceed the NAAQS. Organic emissions from TSDF as well as other sources
react photochemically with other chemical compounds in the atmosphere
to form ozone. The CAA requires that States develop and the EPA approve
air emission control plans called ``State implementation plans''
(SIP's). For those regions within a State that are in nonattainment
with the NAAQS for ozone, the SIP specifies the standards and other
control measures to be implemented by the State to attain the NAAQS.
However, the CAA requires the EPA not only to implement programs to
attain the NAAQS in nonattainment areas but also to maintain, and
prevent significant deterioration of, the air quality in those areas of
the Nation currently in attainment with the NAAQS. Consequently, in
addition to the CAA control programs to address specific regional NAAQS
attainment problems, the EPA also develops under the CAA authority
minimum national emission standards applicable to stationary sources
independent of whether the source is located in a NAAQS attainment or
nonattainment area. The EPA considers the subpart CC standards to be
reasonable national standards needed to control emissions of air toxics
as well as to attain and maintain NAAQS for ozone.
The subpart CC standards are consistent with the EPA's pollution
prevention policy. Pollution prevention involves reducing the quantity
of pollution produced for a given quantity of product prior to
recycling, treatment, or control of emissions. Activities defined as
source reduction measures in the Pollution Prevention Act include
technology modifications, process and procedure modifications,
reformulation or redesign of products, and substitution of raw
materials. A decrease in production alone does not qualify as pollution
prevention. Under the subpart CC standards, a TSDF owner or operator is
not required to manage a hazardous waste in a tank, surface
impoundment, or container using the specified air emission controls in
cases when the owner or operator determines that the organic content of
all hazardous waste placed in the unit meets certain conditions
specified in the rule. Thus, the subpart CC standards encourage
pollution prevention by providing an incentive to generators to
initiate source reduction measures that will reduce the concentration
of organics in a hazardous waste.
The development of TSDF air standards under RCRA is not contrary to
the EPA's ``cluster'' approach of examining and coordinating
regulations addressing the same emission source to minimize duplicative
or contradictory requirements. The different EPA Offices responsible
for implementing RCRA and CAA requirements are coordinating the
development of this rulemaking to ensure that subpart CC standards are
compatible with other rules and programs applicable to TSDF owners and
operators.
The air emission control requirements for tanks under the subpart
CC standards incorporate provisions of NSPS that were promulgated under
the authority of the CAA and apply to storage tanks constructed or
modified after July 23, 1984, that contain volatile organic liquids (40
CFR part 60, subpart Kb). Therefore, air emission controls already in
use on a TSDF tank in compliance with 40 CFR part 60, subpart Kb will
comply with air emission control requirements of the subpart CC
standards. Also, the subpart CC standards for closed-vent systems and
control devices cross reference the requirements for closed-vent
systems and control devices promulgated under subpart AA in 40 CFR
parts 264 and 265. The subpart AA requirements are consistent with the
requirements for closed-vent systems and control devices under several
CAA air standards.
The implementation of air standards under RCRA does not create
difficulties in administration and enforcement of the rules by State
regulatory agencies. Although many existing RCRA standards focus on
preventing the contamination of soil and water, other existing RCRA
regulations regulate air emissions from some TSDF sources (e.g.,
combustion of hazardous waste is regulated under 40 CFR part 264,
subpart O for hazardous waste incinerators and under 40 CFR part 266
subpart H for boilers and industrial furnaces). Air emissions are also
sometimes addressed through the EPA's omnibus permitting authority
under RCRA section 3005(c)(3). States authorized by the EPA administer
and enforce the requirements of RCRA rules in lieu of the EPA
administering the rules in that State. The EPA is aware that, in many
States, one State agency administers air standards while another State
agency administers rules regulating the management of hazardous waste
in the State. Similarly, it is common for yet another State agency to
administer water quality rules. The experience of authorized States
administrating existing RCRA rules shows that responsibility for
administrating these rules can be delegated to a separate State agency
without impeding the administration and enforcement of non-RCRA air and
water rules by other State agencies.

B. Revised Impacts Analysis

Comment: The commenter on the Notice of Data Availability (NDA) (57
FR 43171, September 18, 1992) supports the EPA's use of the updated
waste data base for the national impacts analysis and the EPA's changes
to the emission models for biological treatment processes. In addition,
the commenter agrees with the EPA's conclusion that many surface
impoundments reported in the waste data base to be managing waste at
TSDF have been or are being replaced with tanks to comply with the RCRA
land disposal restriction and other regulations. However, the commenter
believes that the EPA's assumption that 75 percent of the total waste
quantity reported in the waste data base to be managed in surface
impoundments is now managed in tanks is too low. The commenter agrees
with the EPA's revised approach in the impact analysis of using site-
specific cancer risk factors to estimate cancer risk due to exposure to
TSDF emissions. However, the commenter states that some of the specific
assumptions made by the EPA for the risk analysis are implausible
(e.g., assuming exposure of the individual for 70 years) and the
analysis should be conducted in accordance with the EPA's own Exposure
Assessment Guidelines. Finally, the commenter does not believe that any
MIR estimate is necessary to assess the need for and effectiveness of
the rule.
Response: For the national impacts analysis, the EPA believes that
75 percent is a reasonable assumption for the amount of waste that is
converted from surface impoundment to tank management. As discussed
further in the BID for the final rule, the EPA selected the 75 percent
value based on information obtained by the EPA from a telephone survey
of owners and operators of large TSDF and from TSDF site visits as well
as information provided to the EPA by several TSDF owners and operators
in comments on the proposed rule. The EPA did not find nor receive any
additional information from the commenter that justifies increasing the
percentage of waste converted from surface impoundment to tank
management.
The cancer risk impact analysis for this rulemaking was conducted
in accordance with the EPA's Exposure Assessment Guidelines. With
regard to the 70 year lifetime assumption used in the impact analysis,
the EPA believes 70 years to be conservative, but plausible. The EPA
did however conduct a second risk assessment assuming a 33 year
exposure scenario (95 percentile). Using this assumption reduced risk
estimates by one-half, but did not change the decision to control these
facilities, nor the choice of control options. Furthermore, the risk
assessment conducted here was for the purpose of determining relative
differences in risk estimates between the control options. For this
application, the exposure scenario would not matter; the results, i.e.,
the relative differences in risk estimates, would not change.
The EPA holds that the assumptions used to determine the MIR are,
as with the 70 year exposure scenario, conservative, but plausible, and
result in a reasonable overall estimate of risk. In addition, while the
EPA acknowledges the uncertainties associated with the MIR, such
uncertainties cancel out when the risk assessment is used to discern
relative risk, as in this case. Thus the EPA believes that the use of
the MIR is an appropriate tool to apply in the impact analysis for this
rulemaking to both estimate risk and to discern differences between
risk estimates associated with the various control options.

C. Container Air Standards

Comment: Many commenters disagree with the EPA's decision to
require air emission controls for containers under the subpart CC
standards. One group of commenters argues that the organic emission
potential from TSDF containers does not warrant the application of
additional controls beyond those already required by existing RCRA
standards. A second group of commenters contends that TSDF containers
should not be subject to this rulemaking because the EPA analysis does
not show organic emissions from TSDF containers to be a significant
emission source warranting controls.
Response: The EPA maintains that the management of organic-
containing wastes in containers at TSDF is a potentially significant
source of organic emissions that is not adequately regulated by
existing regulations. Control requirements for containers under the
subpart CC standards are needed to:
(1) Ensure that containers used for storage of organic-containing
waste use covers effective for organic emission control;
(2) Control organic emissions from treatment of organic-containing
wastes in containers by waste stabilization and other processes; and
(3) Prevent circumvention of the containment and control strategy
that serves as a key component of the integrated approach to
implementing RCRA section 3004(n).
The EPA disagrees with the commenters' conclusion that existing
regulations are sufficient to control organic emissions from containers
used to manage hazardous waste at TSDF. Existing RCRA regulations under
40 CFR 264.173 require containers used to store hazardous waste at TSDF
to be closed except when necessary to add or remove waste. This
requirement for closed containers during storage does not specify
organic air emission controls for these covers. Furthermore, no RCRA
requirements exist that address organic emissions associated with other
container operations such as hazardous waste transfer or treatment in
open containers.
The EPA also disagrees with the commenters' conclusion that
managing hazardous wastes in containers is not a significant potential
source of organic air emissions. The baseline analysis to estimate
nationwide TSDF organic emissions by waste management category is not
the only factor that the EPA considered in assessing the organic
emission potential of containers. The revised nationwide baseline
emissions from storage of hazardous waste in TSDF containers is
estimated to be approximately 5,000 Mg/yr. However, this emission
estimate for containers does not include organic emissions from
hazardous waste treatment in containers. As described in the BID for
the final rule, the EPA estimates the total organic emissions from
waste fixation operations performed in containers to be approximately
11,000 Mg/yr. Information obtained by the EPA representatives during
site visits to TSDF conducting waste fixation operations indicates that
use of containers for waste fixation continues to be a common industry
practice. Thus, treatment of hazardous waste in containers is a large
potential source of organic emissions that is not regulated by the
existing RCRA regulations.
The air emission control requirements for the subpart CC standards
are based on applying a containment and control strategy to TSDF tanks,
surface impoundments, and containers from generation of the waste
through treatment of the waste to remove or destroy the organics in the
waste. Requiring control of only TSDF tanks and surface impoundments
but not containers creates a significant potential organic emission
source if large quantities of hazardous waste currently stored or
treated in tanks required to use air emission controls under subpart CC
standards are transferred to containers not using air emission
controls. This would allow organics in the hazardous waste managed in
uncontrolled containers to escape to the atmosphere prior to treatment
and, thus, reduce the effectiveness of the containment and control
approach.

D. Generator 90-Day Tanks and Containers

Comment: Many commenters disagree with the EPA's decision to apply
the proposed air standards to 90-day tanks and containers for the
following reasons:
(1) The EPA is not authorized under RCRA section 3004(n), or under
other provision, to extend the air standards to 90-day tanks and
containers;
(2) The proposed rule failed to cite authority to extend the
requirements to 90-day tanks and containers, in violation of section
553(b)(2) of the Administrative Procedures Act;
(3) If the EPA imposes air emission controls on generators, this
must be accomplished pursuant to the pre-HSWA authorization process and
thus should not become effective in authorized States until enacted and
implemented as State law; and
(4) Application of air emission control requirements to 90-day
tanks and containers impermissibly interferes with manufacturing
processes.
Response: The EPA disagrees with each of these comments. The
provisions of 40 CFR 262.34 (promulgated under the authority of RCRA
section 2002, 3001-3005, and 3007) allow generators to accumulate
hazardous waste in tanks and containers for specified time periods
without obtaining RCRA permits, provided the generator meets certain
conditions. Amending these conditions is a valid exercise of the EPA's
authority under RCRA section 3004(n).
The intent of including the provisions of 40 CFR 262.34 in the RCRA
requirements for hazardous waste generators is to obtain a reasonable
balance between the Congress's desire not to interfere with the
generator's manufacturing or production processes with the need to
provide adequate protection of human health and the environment (45 FR
12730, February 26, 1980). Thus, 40 CFR 262.34 does not provide a
hazardous waste generator with a complete exemption from all RCRA
requirements. On the contrary, it incorporates most of the relevant
tank and container requirements under 40 CFR part 265 and requires
compliance with these standards as a condition for maintaining RCRA
permit-exempt status [refer to 40 CFR 262.34(a)(1)]. The intent of
these provisions is not to exclude 90-day tanks and containers from
future technical TSDF requirements. Therefore, it is wholly appropriate
for the EPA to update the technical requirements for tanks and
containers that serve as the basis for the RCRA permit exemption. The
EPA has already done so, for example, when tank standards were amended
in 1986.
Although 90-day tanks and containers are not required to be
permitted under RCRA subtitle C, the EPA rejects the commenters' narrow
reading of RCRA section 3004(n) as limiting the EPA's authority to
extend the requirements to these units. Section 3004(n) of RCRA
requires the EPA to promulgate standards for the control of air
emissions from ``hazardous waste treatment, storage, and disposal
facilities.'' The EPA does not agree that RCRA section 3004(n) reflects
a congressional intend that the EPA regulate air emissions only from
permitted and interim-status TSDF and not from 90-day tanks and
containers. These tanks and containers are physically identical (i.e.,
the same types of tanks and containers are used by generators to
accumulate and by TSDF owners and operators to store and treat waste).
There is no environmental basis for not considering them subject to the
section 3004(n) mandate. Such units are, in fact, storing or treating
hazardous waste and are subject to numerous standards promulgated under
the authority of both RCRA sections 3002 and 3004. The exemption of 90-
day tanks and containers from the permitting requirements of RCRA
subtitle C is regulatory, not statutory; there is no directive in the
RCRA legislation that precludes the EPA from imposing any or all of the
TSDF requirements on them. The use of the term ``facility'' in RCRA
section 3004(n) can certainly be read to encompass 90-day tanks and
containers, given the EPA's flexibility to construe that term (see
United Technologies v. EPA, 821 F.2d at 814 (D.C. Cir. 1988) and the
fact that 90-day tanks and containers are already subject to the
substantive standards for tanks and containers and pose precisely the
same potential environmental risks as other tanks and containers
holding hazardous waste. In addition, the EPA sees to reason that
Congress intended 90-day tanks and containers to be subject to air
emission controls at a different time than other tanks and containers
(which would be the case if the 90-day units are not regulated pursuant
to a HSWA provision).
Therefore, it is proper for the EPA to use its authority under RCRA
section 3004(n) to amend 40 CFR 262.34(a) by adding air emission
control requirements to the conditions required for a 90-day tank or
container to be exempted from the RCRA permitting requirements. For
these reasons, the EPA rejects the commenters' arguments that the
Agency is not authorized or failed to cite authority to use this
rulemaking to amend the exemption requirements for 90-day tanks and
containers. In addition, the EPA rejects the argument that the
exemption requirements are under the EPA's pre-HSWA authority and,
therefore, are not applicable in authorized States until the individual
States are authorized to implement the rule (See 51 FR 25464, July 14,
1986, where the EPA indicated that the modifications to 40 CFR 262.34,
to reflect amended tank standards, were HSWA rules).
As a variation of the argument that 90-day tanks and containers
should not be regulated, one commenter asserts that RCRA section
3004(n) reflects a congressional intent that the EPA regulate air
emissions only from permitted and interim-status TSDF and not from 90-
day tanks and containers. The commenter apparently argues that the
explicit inclusion of such authority under RCRA section 3004(n) and not
under RCRA section 3002 implies a congressional finding that waste
accumulation does not significantly contribute to air pollution. The
EPA finds no indication, in the legislative history of RCRA, or
elsewhere, that Congress ever made such a finding, and the EPA's
conclusion, as discussed later in this section, is that on-site
accumulation of hazardous waste in 90-day units is a significant source
of organic air emissions. Again, the EPA finds no indication that
Congress intended to preclude the EPA from regulating air emissions
from nonpermitted hazardous waste storage and treatment under RCRA
section 3004(n).
In addition to RCRA section 3004(n), the EPA has authority under
RCRA section 3002 to amend 40 FR 262.34(a). One commenter states that,
although RCRA section 3002(a)(3) authorizes the EPA to require the use
of appropriate containers, RCRA section 3002 provides no authority to
regulate air emissions. The EPA disagrees with this statement. The RCRA
section 3002(a)(3) authority, as well as the general authority under
RCRA section 3002 to promulgate such rules regulating generators ``as
may be necessary to protect human health and the environment,'' is
broad enough to encompass the regulation of air emissions from units
storing or treating hazardous waste at generator facilities.
Finally, the EPA cited both RCRA sections 3002 and 3004 as the
statutory authority for the proposed rule. Therefore, this rulemaking
is in full conformance with section 553(b)(2) of the Administrative
Procedures Act.
The EPA also rejects the argument that the application of air
emission controls to 90-day tanks and containers impermissibly
interferes with manufacturing processes. The EPA concluded in 1980, as
cited above, that the appropriate balance between protection of the
environment and noninterference with manufacturing processes was
achieved by requiring 90-day tanks and containers to comply with
certain technical requirements as a condition of being exempt from the
requirement to have a RCRA permit. The EPA estimates that nationwide
baseline organic emissions from 90-day tanks and containers are
approximately 76,000 Mg/yr. Given the significant organic emissions
from 90-day tanks and containers, the same rationale has led the EPA to
require that these units comply with the appropriate air emission
control requirements of the subparts AA, BB, and CC standards to
maintain an exemption from RCRA permitting. In contrast, the EPA
decided not to extend under this rulemaking the requirements of these
air standards to containers used for satellite accumulation because of
the widespread use of these containers by manufacturing process
operators to collect small quantities of hazardous waste as generated,
and the integrated use of these containers with the manufacturing
operations (discussed further in section 7.2 of the BID for today's
rule). The EPA believes that this regulatory framework maintains the
appropriate balance between environmental protection and
noninterference with manufacturing processes.

E. Implementation of RCRA Air Standards

Comment: A total of 24 commenters addressed the EPA's proposed
action of modifying the ``permit-as-a-shield'' practice to require that
owners and operators of TSDF that have been issued final permits prior
to the effective date of this rulemaking comply with the air standards
under 40 CFR 265 subparts AA, BB, and CC until the facility's permit is
reviewed or reissued by the EPA. Four of the commenters support the
EPA's proposed modification. The other 20 commenters oppose the
proposed modification and maintain that ``permit-as-a-shield'' practice
should remain unchanged because any action by the EPA to remove this
practice:
(1) Is without the legal authority and that to do so would be
contrary to congressional intent;
(2) Violates the due process rights of permittees, which are
normally protected through the permit process;
(3) Negates the purpose and importance of the RCRA permit because
the ``permit-as-a-shield'' practice serves to unify all the regulatory
requirements in the permit for a TSDF;
(4) Is contrary to previously stated policy whereby the EPA binds
itself to the principle of using ``permit-as-a-shield'' (45 FR 33290,
May 19, 1980); and
(5) Is disruptive to TSDF owner and operator planning, burdensome
to comply with, and has an adverse effect on the availability and cost
of control equipment.
Response: The practice known as ``permit-as-a-shield'' is derived
from an exercise of the EPA's regulatory authority and was first
codified in the 1980 implementing regulations of the RCRA permit
program (45 FR 33290, May 19, 1980). It is not a provision of RCRA and
is therefore no part of the statutory mandate by Congress to manage the
Nation's hazardous wastes. Shell Oil v. EPA, 950 F.2d at 741, 762 (D.C.
Cir. 1991). Because it is a regulatory and not a statutory provision,
the EPA can modify the ``permit-as-a-shield'' practice in any situation
where the Agency determines that the practice does not serve the EPA's
mandate to protect human health and the environment. For the final
subpart CC standards, the EPA estimates that baseline nationwide excess
cancer incidence resulting from exposure to TSDF organic emissions is
48 cases per year. In addition, total nationwide organic emissions from
TSDF are estimated to be approximately 1 million Mg/yr and, thus,
contribute significantly to the formation of atmospheric ozone. These
health and environmental impacts are very high relative to the impacts
of emissions from other sources regulated under RCRA and the CAA.
Accordingly, the EPA has determined that the health and environmental
impacts resulting from organic air emissions from TSDF are of a
magnitude to warrant narrowly rescinding the ``permit-as-a-shield''
practice for this limited case.
The ``permit-as-a-shield'' practice is not a consequence of
Constitutional or statutory obligations of the EPA to any individual
and its removal does not violate any substantive or procedural due
process rights of individuals. The ``permit-as-a-shield'' practice was
established by regulations promulgated by the EPA and therefore can be
modified when the EPA determines it is necessary to do so for the
protection of human health and the environment. Numerous government
regulations have a direct effect on regulated entities, and the EPA's
``permit-as-a-shield'' practice does not vest the regulated community
with a right to a variance from all new RCRA regulations. Furthermore,
the proposal put the public on notice that the EPA was planning to
modify the ``permit-as-a-shield'' practice in this rule, and the public
has therefore had an opportunity for meaningful comment on the issue.
The EPA continues to believe that the permit process and
requirements are fundamental components of the RCRA program and that,
by and large, compliance with the permits should constitute compliance
with the RCRA program. For the other rulemakings for which the EPA
rescinded the ``permit-as-a-shield'' practice, the EPA determined that
the risk to human health and the environment was too high to allow the
practice to continue (for remaining permit periods), and required that
all TSDF comply with the new requirements regardless of their permit
status. The EPA has determined that allowing owners and operators of
permitted TSDF to be shielded from compliance with the regulatory
requirements of subparts AA, BB, and CC standards will allow
excessively high risks. Today's action by the EPA does not negate the
value of the RCRA permit program or the ``permit-as-a-shield''
practice. Instead, the EPA is making a distinction between a provision
that is sufficiently protective in most cases and one that, under
specific situations, is not sufficiently protective.
The EPA disagrees with the commenters' claims that the permit
modification process can adequately accommodate the timely
implementation of the subpart CC standards. For the EPA to apply the
subpart CC standards into permits by way of modifications would require
a significant and unreasonable resource commitment. Furthermore, the
fact that existing permits can be modified to incorporate new
regulatory requirements [per 40 CFR 270.41(a)(3), which implements RCRA
section 3005(c)(3)] shows that ``permit-as-a-shield'' is hardly an
inviolate principle. The ruelmaking simply accomplishes nationally what
a modification would accomplish individually. Accordingly, the EPA
developed the subpart AA, BB, and CC standards to be ``self-
implementing'' so that State and Regional permit writers will not be
required to reopen and rewrite permits to incorporate the provisions.
Permitted facilities will be able to comply directly with the
regulatory standards in the same way that interim-status facilities
must comply. Modifying ``permit-as-a shield'' for these rules
eliminates any confusion or ambiguity as to which TSDF is subject to
the requirements.
As noted by the commenters, the EPA stated a policy for ``permit-
as-a-shield'' in the so-called consolidated permit regulations issued
in 1980 (45 FR 33290). However, this does not mean that the policy for
``permit-as-a-shield'' can never be amended. The EPA has never agreed
to ``bind'' itself to any particular policy or provision. Instead, the
EPA may adhere to a general practice or policy with the understanding
that, if the circumstances warrant and the EPA provides a rational
explanation, it can modify or rescind a particular provision. It should
be noted, for example, that Congress has since amended RCRA to require
that air emissions from TSDF be controlled, and in the same amendments
provide that the EPA may reopen permits to add conditions reflecting
new control practices and to redress potential risks posed by the
facility (RCRA section 3005(c)(3) and S. Rep. No. 284, 98th Cong. 1st
Sess. at 31). Here, the EPA is determining that there are excessively
high risks from these facilities, and therefore that these more
protective provisions should become effective immediately.
It should also be noted that the EPA does not intend to rescind
``permit-as-a-shield'' on a regular or frequent basis for other
rulemakings. As stated earlier, the EPA generally does view ``permit-
as-a-shield'' as a beneficial and legitimate part of the RCRA program
and that, in most cases, it will apply.
The EPA believes that the commenters claiming that removing
``permit-as-a-shield'' will be disruptive to TSDF implementation
planning are greatly overstating the adverse or disruptive effects that
an accelerated implementation will have on TSDF owner and operator
planning and operations because the control technologies for the
different kinds of management units are varied and widely available.
The EPA specifically considered the costs and economic impacts of the
various control options in the regulatory impact analysis for the
proposed rule (RCRA docket entry number F-91-CESP-S00494). Based on
this analysis, the EPA found that the costs of installing and operating
air emission control equipment required by the control options are
projected to be less than 1 percent of the total cost of hazardous
waste management at TSDF. Any air emission control equipment supply
availability constraints resulting from these rules should be short
term, if at all. Furthermore, TSDF owners and operators required to
install air emission control equipment to comply with the subpart CC
standards are allowed up to an additional 30 months after the rule's
effective date to complete the equipment design and installation if
they can document that the air emission controls cannot be installed
and operating by the effective date, for reasons such as the
unavailability of control equipment.
Also, the EPA expects that many TSDF owners and operators will
choose to treat their hazardous waste earlier in the management
sequence that they now do to reduce the organic content of the waste in
accordance with one of the treatment requirements allowed for in the
final subpart CC standards, and thus avoid the cost of installing and
operating the control equipment on the downstream tanks, surface
impoundments, and containers. The EPA also encourages the use of
pollution prevention techniques as a means of reducing the quantity of
waste generated, the organic concentration of the waste, or the
toxicity of constituents in the waste.

F. Waste Stabilization in Tanks

Just prior to the long-scheduled and publicly-known promulgation
date, representatives from the hazardous waste treatment industry
notified the EPA of their opinion that the draft requirements for waste
stabilization operations performed in tanks are economically and
technically infeasible. These draft requirements are included in a May
19, 1994 interim review draft of the final rule, made publicly
available in June 1994. (See RCRA docket entry number F-94-CESP-
S00509.) Moreover, the industry indicated that volatilization of
organic constituents during stabilization operations are negligible. No
data were submitted to the EPA in support of these assertions. Industry
representatives nevertheless feel strongly that for the majority of
waste streams treated by stabilization, the organic constituents in the
waste are not volatilized during the stabilization process.
Additionally, they allege that for these same stabilization operations:
(1) It is technically infeasible to comply with the air emission
control requirements for tanks in the subpart CC standards; and
(2) It is not feasible to treat organic waste prior to
stabilization such that the volatile organic concentration of the waste
entering the stabilization process would be below 100 ppmw, and the
downstream units managing the waste (including the stabilization tanks)
would thereby be exempt from subpart CC tank control requirements. (See
RCRA docket number F-94-CESF-FFFFF.)
These statements contradict the conclusions drawn by the EPA based
on site visits to observe hazardous waste stabilization processes, and
experiments and studies conducted by the EPA to characterize waste
stabilization processes and estimate associated organic emissions. The
most recent EPA studies were mentioned in the Notice of Data
Availability (see 57 FR 43171, September 18, 1992) and were made
available for public review and comment in the docket for this
rulemaking (see RCRA docket number F-92-CESA-FFFFF). No comments were
received concerning the validity of these stabilization study
conclusions.
At the same time, however, and despite the inappropriate timing of
industry's comments on this issue (compounded by the industry's failure
to comment on the information presented by the Notice of Data
Availability), the EPA has determined that it may be worthwhile to
review pertinent data for current waste stabilization activities at
hazardous waste TSDF. Industry has pledged to provide detailed data
from an emissions test conducted to measure organic emissions from a
full-scale stabilization operation treating hazardous waste streams.
The test will be conducted using the EPA approved sampling and
analytical methods, and the volatile organic concentration of the waste
streams will be measured using Method 25D, with gas chromatography and
with mass spectrometry (see RCRA docket number F-94-CESF-FFFFF). The
EPA will accept until September 6, 1995 all pertinent information and
comments on the following limited issues: (1) Volatilization of
organics during waste stabilization activities, (2) feasibility of
treating organic wastes to destroy or remove organics prior to
stabilization to immobilize toxic metals, and (3) alternative organic
emission controls applicable to stabilization tanks. Persons interested
in submitting comments or data pertaining to these issues should notify
the EPA of their intent by contacting Ms. Michele Aston at the address
listed in the FOR FURTHER INFORMATION CONTACT section at the beginning
of this preamble. Written information and comments regarding the above
issues should be mailed to the RCRA Docket Office (5305), U.S.
Environmental Protection Agency, room 2616, 401 M Street SW.,
Washington, DC 20460. Please send an original and two copies of all
information, and refer to RCRA docket number F-94-CESA-FFFFF.
The EPA will assess all submitted information, and will make a
rapid determination whether to amend the requirements under the subpart
CC standards being promulgated today for tanks in which waste
stabilization operations are performed. The EPA emphasizes that the
current record does not support any amendment to these standards.
However, if the EPA were to amend the requirements for stabilization
tanks, the amendment could include any of the provisions described
below, a modification of today's promulgated requirements, or possibly
other options.
The EPA may choose to amend the final subpart CC tank standards
such that stabilization tanks could comply with alternative air
emission controls to those included in today's promulgation. The EPA
will determine the appropriateness of such an amendment based on the
evaluation of:
(1) Information that is submitted relating to industry's comments
that it is not feasible to comply with the technical requirements of
today's final rule or to pretreat waste prior to stabilization;
(2) Information related to alternative emission controls that could
be applied to stabilization tanks for effective organic emission
reduction;
(3) Data related to the specific characteristics of hazardous waste
that is stabilized at TSDF;
(4) Detailed information regarding the stabilization processes
performed in TSDF tanks; and
(5) Other related information.
For a given stabilization tank to qualify for certain compliance
options, the EPA could require the facility owner or operator to
demonstrate (through specified testing, monitoring, sampling, or other
means) that organic constituents are not volatilized during the
hazardous waste stabilization operations performed in that tank. A
similar requirement for biological treatment performed in tanks and
surface impoundments is included in the final subpart CC standards (for
example see 40 CFR 264.1085(a)(2)) as well as other air standards
developed by the EPA under the Clean Air Act (e.g., the Hazardous
Organic NESHAP (59 FR 19402, April 22, 1994) and the proposed Off-Site
Waste and Recovery Operations NESHAP (59 FR 51919, October 13, 1994)).
For biological treatment processes, which are generally acknowledged by
the EPA as appropriate treatment for organic constituents in waste with
respect to controll

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29693. Public record. Not legal advice.