Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers

SUMMARY: Under the authority of the Resource Conservation and Recovery

Act (RCRA), as amended, the EPA has promulgated standards (59 FR 62896,

December 6, 1994) to reduce organic air emissions from certain

hazardous waste management activities to levels that are protective of

human health and the environment. (The standards are known colloquially

as the ``subpart CC'' standards due to their inclusion in subpart CC of

parts 264 and 265 of the RCRA subtitle C regulations). These air

standards control organic emissions from certain tanks, containers, and

surface impoundments (including tanks and containers at generators'

facilities) used to manage hazardous waste capable of releasing organic

waste constituents at levels which can harm human health and the

environment.

Since publication of the final standards on December 6, 1994, the

EPA has given public notice and taken comment on several proposed

revisions to the final rule, and has made corresponding amendments. In

response to public comments and inquiries, today's action makes

clarifying amendments to certain regulatory text, and provides

clarification of certain preamble language that was contained in

previous documents for this rulemaking.

DATES: These amendments are effective December 8, 1997.

ADDRESSES: This document is 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 ``RCRA-FIN.ZIP'' to download this

document. 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 the subpart CC

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, F-94-CE2A-FFFFF, F-95-

CE3A-FFFFF, F-96-CE3F-FFFFF, and F-96-CE4A-FFFFF. The RCRA docket is

located at Crystal Gateway, 1235 Jefferson Davis Highway, First Floor,

Arlington, Virginia. Review of docket materials is conducted at the

Virginia address; the public must have an appointment to review docket

materials. Appointments can be scheduled by calling the Docket Office

at (703) 603-9230. The mailing address for the RCRA docket office is

RCRA Information Center (5305W), U.S. Environmental Protection Agency,

401 M Street SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: For general information about the RCRA

Air Rules, or specific rule requirements of RCRA rules, please contact

the RCRA Hotline, toll-free at (800) 424-9346. Contacts for specific

information are listed in the Supplementary Information section of this

preamble.

SUPPLEMENTARY INFORMATION:

Regulated Entities: The entities potentially affected by this

action include:

------------------------------------------------------------------------

Examples of regulated

Category entities

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Industry..................................... Businesses that treat,

store, or dispose of

hazardous waste and are

subject to RCRA subtitle

C permitting

requirements, or that

accumulate hazardous

waste on-site in RCRA

permit-exempt tanks or

containers pursuant to

40 CFR 262.34(a).

Federal Government........................... Federal agencies that

treat, store, or dispose

of hazardous waste and

are subject to RCRA

subtitle C permitting

requirements, or that

accumulate hazardous

waste on-site in RCRA

permit-exempt tanks or

containers pursuant to

40 CFR 262.34(a).

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be interested in the

amendments to the regulation affected by this action. To determine

whether your facility is regulated by this action, you should carefully

examine the applicability criteria in Sec. 264.1030 and Sec. 265.1030

of the RCRA subpart AA rules, Sec. 264.1050 and Sec. 265.1050 of the

RCRA subpart BB rules, and Sec. 264.1080 and Sec. 265.1080 of the RCRA

subpart CC air rules.

Informational Contacts

If you have questions regarding the applicability of this action to

a particular situation, or questions about compliance approaches,

permitting, enforcement and rule determinations, please contact the

appropriate regional representative below:

Region I

Stephen Yee, (617) 565-3550; Jim Gaffey, 565-3437; U.S. EPA, Region I,

JFK Federal Building, Boston, MA 02203-0001

Region II

Abdool Jabar, (212) 637-4131; John Brogard, 637-4162; Jim Sullivan,

637-4138; U.S. EPA, Region II, 290 Broadway, New York, NY 10007-1866

Region III

Linda Matyskiela, (215) 566-3420; Andrew Clibanoff, 566-3391; U.S. EPA,

Region III, 841 Chestnut Building, Philadelphia, PA 19107

Region IV

Denise Housley, (404) 562-8495; Rick Gillam, 562-8498; Jan Martin, 562-

8593; Anita Shipley, 562-8466; Donna Wilkinson, 562-8490; Judy

Sophianolpoulos, 562-8604; David Langston, 562-8588; U.S. EPA, Region

IV, 61 Forsyth Street, Atlanta, GA 30303

Region V

Jae Lee, (312) 886-3781; Uylaine McMahan, 886-4454; Mike Mikulka, 886-

6760; Ivonne Vicente, 886-4449; Wen Huang, 886-6191; U.S. EPA, Region

V, 77 West Jackson Street, Chicago, IL 60604

Region VI

Michelle Peace, (214) 665-7430; Teena Wooten, 665-2279; U.S. EPA,

Region

[[Page 64637]]

VI, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202-2733

Region VII

Ed Buckner, (913) 551-7621; Ken Herstowski, 551-7631; U.S. EPA, Region

VII, 726 Minnesota Avenue, Kansas City, KS 66101

Region VIII

Mindy Mohr, (303) 312-6525; Janice Pearson, 312-6354; U.S. EPA, Region

VIII, 999 18th Street, Suite 500, Denver, CO 80202-2466

Region IX

Stacy Braye, (415) 774-2056; Jean Daniel, 774-2128; U.S. EPA, Region

IX, 75 Hawthorne Street, San Francisco, CA 94105

Region X

Linda Liu, (206) 553-1447; David Bartus, 553-2804; U.S. EPA, Region X,

1200 Sixth Avenue, Seattle, WA 98101

For questions about testing or analytical methods mentioned in this

document, please contact Ms. Rima Dishakjian, Emission Measurement

Center (MD-19), U.S. Environmental Protection Agency, Research Triangle

Park, North Carolina 27711, telephone number (919) 541-0443. For

information concerning the analyses performed in developing this rule,

contact Ms. Michele Aston, Emission Standards Division (MD-13), U.S.

Environmental Protection Agency, Research Triangle Park, North Carolina

27711, telephone number (919) 541-2363, electronic mail address,

``[email protected].''

Background

Section 3004(n) of RCRA requires EPA to develop standards to

control air emissions from hazardous waste treatment, storage, and

disposal facilities (TSDF) as may be necessary to protect human health

and the environment. This requirement echoes the general requirement in

RCRA section 3004(a) and section 3002(a)(3) to develop standards to

control hazardous waste management activities as may be necessary to

protect human health and the environment. The Agency has issued a

series of regulations to implement the section 3004(n) mandate; these

regulations control air emissions from certain process vents and

equipment leaks (part 264 and part 265, subparts AA and BB), and

emissions from certain tanks, containers, and surface impoundments (the

subpart CC standards, which are the primary subject of today's action).

The EPA today is making technical amendments to the final subpart

AA, BB, and CC standards, and providing interpretations for certain

provisions of those rules. Since the publication of the final subpart

CC rule (59 FR 69826, December 4, 1994), the EPA has published four

Federal Register documents that delayed the effective date of that

rule. The first (60 FR 26828, May 19, 1995) revised the effective date

of the standards to be December 6, 1995. The second (60 FR 56952,

November 13, 1995) revised the effective date of the standards to be

June 6, 1996. The third (61 FR 28508, June 5, 1996) further postponed

the effective date for the rule requirements until October 6, 1996, and

the fourth (61 FR 59931, November 25, 1996) established the ultimate

effective date of December 6, 1996. The EPA has also issued an

indefinite stay of the standards specific to units managing wastes

produced by certain organic peroxide manufacturing processes (60 FR

50426, September 29, 1995).

On August 14, 1995, the EPA published a Federal Register document

entitled, ``Proposed rule; data availability'' (60 FR 41870) and opened

RCRA docket F-95-CE3A-FFFFF to accept comments on revisions that the

EPA was considering for the final subpart CC standards. The EPA

accepted public comments on the appropriateness of these revisions

through October 13, 1995. Throughout 1996 and into the present year,

the EPA also engaged in repeated discussions with representatives of

the groups filing petitions for review challenging the subpart CC

standards.

To further inform the affected public of the major clarifications,

compliance options, and technical amendments being considered, the EPA

conducted a series of seminars during August and September of 1995. At

that time, a total of six seminars were held nationally. An updated

series of six seminars was held in September through December 1996 and

two additional seminars were held March and April of 1997 in

conjunction with an industry trade association. (Refer to EPA RCRA

Docket No. F-95-CE3A-FFFFF.) During these seminars, additional comments

were received on the RCRA air rules for tanks, surface impoundments,

and containers. These comments were also considered by the EPA in

developing this final action.

On February 9, 1996, the EPA published a Federal Register document

(61 FR 4903), ``Final rule; technical amendment,'' which made

clarifying amendments in the regulatory text of the final standards,

corrected typographical and grammatical errors, and clarified certain

language in the preamble to the final rule to better convey the EPA's

original intent.

On November 25, 1996, the EPA published a Federal Register document

(61 FR 59932), ``Final rule'' that amended provisions of the final

subparts AA, BB, CC rules to better convey the EPA's original intent,

to provide additional flexibility to owners and operators who must

comply with the rules, and to change the effective date of the

requirements contained in the subpart CC rules to be December 6, 1996.

Today's action makes technical amendments to the final subparts AA,

BB, CC rules in order to clarify the regulatory text of the final

standards; interpret those standards; correct typographical, printing,

and grammatical errors; and clarify certain language published in the

preambles of previous Federal Register documents, to better convey the

EPA's original intent.

Today's amendments include one change to 40 CFR Part 270, to

correct a typographical error made in the December 6, 1994 final rule.

The text listing the sections of regulatory requirements that must be

included in the general inspection schedule incorrectly listed

``245.193(i)'' where section 264.193(i) was intended. This was

obviously a typographical error, as all of the sections listed in that

provision are from 40 CFR part 264; the sections are listed in numeric

order, and ``245.193(i)'' was very obviously out of place. Further, no

section 245.193(i) exists; in fact, no 40 CFR 245 exists. Today's

amendment corrects this typographical error.

Outline

The information presented in this preamble is organized as follows:

I. Subpart B--General Facility Standards

II. Subpart E--Manifest System, Recordkeeping, and Reporting

III. Subpart AA--Air Emission Standards for Process Vents

A. Applicability

B. Definitions

C. Standards: Closed-Vent Systems and Control Devices

D. Recordkeeping Requirements

IV. Subpart BB--Air Emission Standards for Equipment Leaks

A. Applicability

B. Standards: Closed-Vent Systems and Control Devices

C. Alternative Standards for Valves

D. Recordkeeping Requirements

E. Open-ended Valves and Lines

V. Subpart CC--Air Emission Standards for Tanks, Surface

Impoundments, and Containers

A. Applicability and Definitions

B. Schedule for Implementation of Air Emission Standards

C. Standards: General

[[Page 64638]]

D. Waste Determination Procedures

E. Standards: Tanks

F. Standards: Surface Impoundments

G. Standards: Containers

H. Standards: Closed-Vent Systems and Control Devices

I. Recordkeeping and Reporting Requirements

J. Appendix VI to Part 265

VI. Administrative Requirements

A. Docket

B. Paperwork Reduction Act

C. Executive Order 12866

D. Regulatory Flexibility

E. Unfunded Mandates Act

F. Immediate Effective Date

VII. Legal Authority

I. Subpart B--General Facility Standards

Today's action removes Secs. 264.1091(b) and 265.1091(b) from the

list of sections in Secs. 264.15 and 265.15, respectively. Sections

264.15 and 265.15 contain a list of provisions from which inspection

items and frequencies are required to be included in the general

facility inspection schedule. The inspection requirements for floating

roof tanks that were in Secs. 264.1091(b) and 265.1091(b) of subpart CC

as promulgated, were incorporated into Secs. 264.1084 and 265.1085 by

the November 25, 1996, final rule amendments (61 FR 59944). That action

also removed and reserved Secs. 264.1091(b) and 265.1091(b). Therefore,

the EPA is revising this provision to reference the paragraphs that now

contain the inspection requirements. The EPA is also correcting a

previous omission, by including a reference to the sections of subpart

CC that include inspections requirements.

II. Subpart E--Manifest System, Recordkeeping, and Reporting

Today's action also removes Secs. 264.1091(b) and 265.1091(b) from

the list of sections from which monitoring, testing, or analytical

data, and corrective action requirements must be included in the

facility operating record. The monitoring and testing requirements for

floating roof tanks that were in Secs. 264.1091(b) and 265.1091(b) of

subpart CC as promulgated, were incorporated into Secs. 264.1084 and

265.1085 by the November 25, 1996 final rule amendments (61 FR 59944)

and, as just noted, Secs. 264.1091(b) and 265.1091(b) were removed and

reserved. Therefore, the EPA is revising this provision to reference

the paragraphs that now contain the appropriate requirements, and

including a reference to provisions of subpart CC that were previously

omitted through an oversight.

III. Subpart AA--Air Emission Standards for Process Vents

A. Applicability

In today's action, the EPA is amending Secs. 264.1030(b)(3),

264.1050(b)(3), 265.1030(b)(3), and 265.1050(b)(3) to make clear the

EPA's original intent as to when recycling units are subject to the

subpart AA and BB rules. The EPA made clear in the November 25, 1996

preamble that recycling units which are otherwise exempt from RCRA

subtitle C regulation under 40 CFR 261.6(c)(1) are not subject to

subpart AA and BB standards unless some other unit at the facility has

to obtain a RCRA permit. See 61 FR at 59932-33, and 59935. The Agency

also showed how the existing regulation could be interpreted to give

this result. Id. at 59935. Put another way, Subparts AA and BB are

applicable to recycling units at permitted TSDF and interim status

TSDF. Also, at both TSDF and generator facilities (generators' 90-day

accumulation units), subparts AA and BB are applicable to units that

are not recycling units. However, the EPA believes that the rule

language can be drafted to make this point more clearly, and is doing

so in today's rule, for both subpart AA and BB.

The EPA is further clarifying that the RCRA ``permit-as-shield''

provisions do not apply to the subpart AA (or the subpart BB or CC

standards); see Section VI.E of the preamble to the final rule, 59 FR

62910, December 6, 1994. This means that owners and operators receiving

permits before the date those rules became effective must nevertheless

comply with the subpart AA (and the subpart BB and CC) regulatory

standards. The EPA is adding a sentence to Sec. 264.1030(c) which

essentially cross-references the existing Sec. 270.4(d) provision

stating that ``permit-as-a shield'' does not apply to these units.

The EPA has previously amended 40 CFR 270.4 (see 59 FR 62952,

December 6, 1994) to require that owners and operators of TSDF that

have been issued final permits prior to December 6, 1996, comply with

the air standards under 40 CFR part 265, subparts AA, BB, and CC until

the facility's permit is reviewed or reissued by the EPA. As was

explained in Section VIII.A of the preamble to the final rule (59 FR

62920, December 6, 1994), this amendment eliminates application of the

``permit-as-a-shield'' practice for these air standards but does not

require that the EPA or the TSDF owner or operator initiate a permit

modification to add the requirements of 40 CFR part 264, subparts AA,

BB, or CC. The EPA believes that this minimizes the administrative

burden on the TSDF owner or operator as well as limits the additional

burden on the permitting resources of the EPA. However, when a permit

is reopened or subject to renewal, or when a TSDF owner or operator

submits a Class 3 modification request pertaining to an existing unit

or addition of a new unit subject to these standards, then the

applicable requirements of 40 CFR part 264, subparts AA, BB, and CC

will be incorporated into the modified permit conditions.

The EPA is also amending the applicability provision of subpart AA

by adding a new Sec. 264.1030(d) and Sec. 265.1030(d). This provision

states that a process vent is not subject to the subpart AA standards

provided the owner or operator certifies that all subpart AA-regulated

process vents at the facility are equipped with and operating air

emission controls in accordance with the requirements of an applicable

Clean Air Act regulation codified in Part 60, 61, or 63. The EPA

adopted a similar provision for units subject to subpart CC as part of

the November 1996 amendments (see Sec. 264.1080(d) and Sec. 265.1080(d)

of subpart CC) and the logic for applying the same exemption in the

same manner to subpart AA process vents is identical. The preamble

discussion at Section IV.C, 61 FR 59938-59939 (November 25, 1996)

explains at length why this exemption avoids unnecessary duplication

with CAA requirements, all of which discussion applies equally here.

The EPA in fact intended that the exemption apply to subpart AA process

vents as well (since there is no basis for distinguishing between

subpart AA and CC units for this purpose), but inadvertently omitted

the exemption from subpart AA when it codified the subpart CC

exemption. Today's amendment corrects that oversight.

This exemption is, however, implemented slightly differently from

the parallel exemption for subpart CC units. Both of the compliance

approaches allowed under the existing subpart AA rules require emission

control or emission limits on a facility-wide basis. See 40 CFR

264.1032(a)(1) and (a)(2). Thus, to be equally protective of human

health and the environment, the EPA considers it necessary that any

alternative compliance demonstration require control of all of the

process vents at the facility that would have otherwise been regulated

under subpart AA. Therefore, today's exemption is only available at a

facility where each and every process vent that would otherwise be

subject to subpart AA is equipped with, and operating air

[[Page 64639]]

emission controls, in compliance with an applicable CAA standard under

Parts 60, 61, or 63. As with the similar provisions in subparts BB and

CC, to comply with the requirements at paragraphs Sec. 264.1030(d) or

Sec. 265.1030(c), the emissions from each subpart AA process vent must

be routed through an air emission control device; a vent that is in

compliance with a CAA standard under an exemption from control device

requirements is not in compliance with those provisions of subpart AA.

Despite this minor restriction, the EPA considers this alternative to

provide the facility owner or operator with a broader degree of

compliance flexibility, and less extensive monitoring, recordkeeping,

and reporting requirements under RCRA, and therefore to warrant

promulgation.

The EPA has received inquiries as to whether portable equipment

that otherwise meets the definition of a unit subject to the subpart

AA, BB, or CC regulations, is subject to the requirements of subparts

AA, BB, and CC. The literal language of the regulations clearly

applies, since there is no exemption for portable equipment in the

regulations. Nor does the EPA consider that such an exemption is

appropriate. Portable equipment that is used to manage hazardous waste

consistent with the applicability requirements of these subparts would

emit the same volume of organics that stationary equipment would emit.

The EPA therefore considers it appropriate to subject portable

equipment to the same control requirements as stationary, or non-

portable equipment. By this interpretation, the EPA is not extending

the applicability of the AA, BB, or CC standards; rather, the EPA is

merely clarifying that these standards do not contain any exemption or

special criteria for portable equipment. Moreover, the fact that such

portable equipment may also be used for non-hazardous waste

applications has no bearing on the EPA's intent to regulate the

portable equipment during instances when it is used for hazardous waste

applications. The EPA does not consider that fact to affect the need to

control the equipment when it is in hazardous waste service.

B. Definitions

``In light liquid service'' was defined in Sec. 264.1031 to be

consistent with the definition of ``in light liquid service'' in the

NSPS for equipment leaks of VOC in the synthetic organic chemicals

manufacturing industry (40 CFR part 60, subpart VV). It was the EPA's

intent that the determination of ``in light liquid service'' be based

on the organic content of a liquid. However, questions have been raised

by the regulated community regarding how to account for water in the

determination of ``in light liquid service.'' In response to the

questions, the definition of ``in light liquid service'' in

Sec. 264.1031 is revised by changing ``* * * the vapor pressure of one

or more of the components in the stream is greater than 0.3 kilopascals

(kPa) at 20 deg.C, the total concentration of the pure components

having a vapor pressure greater than 0.3 kilopascals (kPa) at 20 deg.C

is equal to or greater than 20 percent by weight * * *'' to read as

follows ``* * *the vapor pressure of one or more of the organic

components in the stream is greater than 0.3 kilopascals (kPa) at 20

deg.C, the total concentration of the pure organic components having a

vapor pressure greater than 0.3 kilopascals (kPa) at 20 deg.C is equal

to or greater than 20 percent by weight* * *'' This revision clarifies

that the definition applies only to the organic components of the waste

stream; not to non-organic chemicals that meet the vapor pressure

criteria (e.g., water). The revised definition is consistent with the

definition of ``in light liquid service'' in the recently promulgated

NESHAP for equipment leaks (40 CFR part 63, subpart H).

C. Standards: Closed-Vent Systems and Control Devices

The final subpart AA air emission standards for process vents

provided up to an 18-month implementation schedule after the effective

date that a facility becomes subject to the provisions of subpart AA,

for installation and operation of closed-vent systems and control

devices. The February 9, 1996 (61 FR 4911) revisions to

Secs. 264.1033(a)(2) and 265.1033(a)(2) extended the implementation

schedule to as much as 30 months, consistent with the requirements of

subpart CC. Consistent with this existing provision, today's revisions

clarify that units which become newly subject after the subpart AA

effective date of December 21, 1990 as a result of an EPA regulatory

change or statutory change, are also provided a 30-month implementation

schedule. The provision is also amended to clarify that units which

become newly subject to subpart AA after that effective date due to any

reason other than an EPA regulatory change or statutory amendment are

not allowed to comply using an implementation schedule; they must be in

compliance on the date that the unit first becomes subject to subpart

AA.

A printing correction is also being made to this section in

Sec. 265.1033(f)(2)(vi)(B). The degree symbol was inadvertently printed

in lower case rather than as a superscript; today's action corrects

this.

The November 25, 1996, amendments to the subpart CC standards (at

Sec. 265.1088(c)(2)(i)) for control devices and closed-vent systems,

added provisions to allow up to 240 hours per year for periods of

planned, routine maintenance of a control device; during such time, the

control device is not required to meet the performance requirements for

emission reductions specified in the rule. The EPA's rationale for

adding this allowance to subpart CC is explained in the preamble to

those amendments at 61 FR 59948. The EPA has determined that, based on

the nature of the affected operation or the type of unit that is being

served by the control device, there are circumstances in which a

limited allowance for control device down-time during maintenance is

reasonable. For example, the EPA made a similar allowance of up to 240

hours for control device performance in the HON requirements for

storage vessels, i.e., tanks, (see Sec. 63.119(e)(3)); this allowance

was made based on consideration of the fact that a HON facility with

affected storage vessels normally would not have adequate excess

storage tank capacity to handle emptying an affected tank(s) each time

the control device serving the vessel(s) is shut down for routine

maintenance. It is also important to note that the HON regulation did

not extend this same routine maintenance allowance for control devices

to other types of units, or to affected process vents; the HON

allowance is only for control devices serving storage vessels. The EPA

has judged that the operational practices of process vents are

significantly different from those of storage vessels, and thus do not

warrant a similar allowance for control device down-time.

In the amendments to the subpart CC rule that were published in

November 1996, the EPA adopted the provision from the HON, and further

extended and broadened the control device allowance in applying it to

control devices that serve not only tanks but also surface impoundments

and containers (see Sec. 264.1087(c)(2)(i)). The decision to extend the

allowance to the subpart CC hazardous waste management units was also

based on the consideration of typical operational practices of affected

TSDF. Within the waste management industry, the quantities and

compositions of the waste managed vary widely over time; also, many

regulated waste management units (i.e., tanks and impoundments)

[[Page 64640]]

have vent flow rates low enough that several units are controlled using

a single device. For several waste management units served by a single

control device, it is not feasible in most cases to have enough excess

storage capacity to handle all the units that would be served by a

single control device. Therefore, the EPA included the control device

maintenance allowance in the subpart CC standards for containers and

surface impoundments, as well as for tanks. As in the case of the HON,

the EPA does not consider it appropriate to extend the control device

allowance for maintenance time to control devices serving process

vents. Therefore, the EPA is not extending the control device

maintenance allowance to subpart AA process vents.

It also has come to the attention of the EPA that some commenters

have misinterpreted the language relating to the accuracy of the

temperature monitoring devices that the EPA specified in the subpart AA

standards for closed-vent systems and control devices, found at

Secs. 264.1033(f) and 265.1033(f). As these commenters interpret the

rule language, the EPA has specified a degree of accuracy that

precludes monitoring devices with greater accuracy than is specified in

the regulations. This is not the EPA's intent, and the Agency does not

consider this to be a reasonable interpretation of the rule. At

numerous places in this rule and other rules, the EPA has specified the

accuracy of temperature monitoring devices by requiring ``an accuracy

of 1 percent of the temperature being monitored in degrees

Celsius ( deg.C) or 0.5 deg.C, whichever is greater.'' It

is implicit in the use of this language that the EPA is providing a

range of accuracy with which the monitoring device must comply or

conform. For example, the term ``1 percent'' indicates that

the accuracy of the device must fall within the range from plus 1

percent to minus 1 percent. Any device that has an accuracy within this

range complies with the rule requirement. It was not the intent of the

EPA to preclude the use of devices with greater (i.e., better) accuracy

than the absolute value specified.

D. Recordkeeping Requirements

Commenters have stated that the requirement at

Sec. 265.1035(c)(10)(iv) to record the maximum instrument reading

measured by Method 21 after a leak has been successfully repaired or

determined to be not repairable is unnecessary. They contend that

because other rules which require use of EPA Method 21, such as the

Off-Site Waste and Recovery Operations NESHAP (40 CFR part 63, subpart

DD), do not require this instrument reading, the requirement should be

removed. Although subpart DD to part 63 does not contain a similar

recordkeeping requirement for the instrument reading, as part of the

information recorded when a leak is detected using Method 21, various

other regulations do have similar requirements (see Sec. 63.181(d)(4)

of 40 CFR part 63, subpart H, National Emission Standards for Organic

Hazardous Air Pollutants for Equipment Leaks). The EPA continues to

believe that this information is useful in the implementation and

enforcement of the air emission regulations. Instrument monitoring

after a repair is an indication of the success of the repair,

information which EPA considers commensurate with the initial leak

monitoring requirements at Sec. 265.1033(k)(1)(i). Instrument

monitoring upon determination that a leak is not repairable is an

indication of the severity of the organic emissions that will continue

to be emitted from the non-repairable equipment, which EPA considers

valuable information for the implementation and future review of its

organic air emissions standards. Therefore, EPA will maintain this

recordkeeping requirement.

IV. Subpart BB--Air Emission Standards for Equipment Leaks

A. Applicability

Today's action adds appropriate language to the subpart BB

applicability provisions to cross reference and clarify that the EPA

has modified the ``permit-as-a-shield'' practice for implementation of

the subpart BB (as well as the subpart AA and CC) RCRA air rules. The

modification of this practice affects owners and operators of existing

TSDF for which final RCRA permits have been issued by the EPA.

Paragraph (c) in Sec. 264.1050 and Sec. 265.1050 is being revised to

clarify that the owner or operator is subject to the requirements of 40

CFR part 265, subpart BB until such date that the owner or operator

receives a final RCRA permit incorporating the requirements of 40 CFR

part 264, subpart BB.

The EPA has previously amended 40 CFR 270.4 (see 59 FR 62952,

December 6, 1994) to require that owners and operators of TSDF that

have been issued final permits prior to December 6, 1996, comply with

the air standards under 40 CFR part 265, subparts AA, BB, and CC until

the facility's permit is reviewed or reissued by the EPA to include the

part 264 standards. As is explained in Section VIII.A of the preamble

to the final rule (59 FR 62920, December 6, 1994), this amendment

eliminates application of the ``permit-as-a-shield'' practice for these

air standards, but does not require that the EPA or the TSDF owner or

operator initiate a permit modification to add the requirements of 40

CFR part 264, subparts AA, BB, or CC. The EPA considers the existing

regulatory text to accurately convey this intent, and is providing this

preamble discussion in response to commenters' requests.

B. Standards: Closed-Vent Systems and Control Devices

The final subpart BB air emission standards for equipment leaks

referenced the subpart AA closed-vent system and control device

requirements to provide up to an 18-month implementation schedule after

the effective date that a facility becomes subject to the provisions of

subpart BB, for installation and operation of closed-vent systems and

control devices. The February 9, 1996 (61 FR 4911) revisions to

Secs. 264.1060 and 265.1060 added a paragraph to extend the

implementation schedule to as much as 30 months, consistent with the

requirements of subpart CC. Today's amendments clarify that units that

begin operation after the subpart BB effective date of December 21,

1990, and that become subject to the requirements of subpart BB because

of an EPA regulatory change or a statutory change after December 21,

1990, are also provided a 30-month implementation schedule. The

provision is also amended to clarify that units which become newly

subject to subpart BB after that effective date due to any reason other

than an EPA regulatory change or a statutory amendment are not allowed

to comply using an implementation schedule; they must be in compliance

on the date that the unit first becomes subject to subpart BB. In

recognition that facilities have been on notice since 1990 of the

applicability of subparts AA and BB, and since 1991 of the

applicability of subpart CC, the EPA considers it reasonable to expect

facilities that become newly-subject to these subparts, through other

than a statutory or EPA regulatory change, to be in compliance with the

provisions on the date that they become newly subject.

C. Alternative Standards for Valves

Clarifying language is being added to the alternative standards for

valves in gas/vapor service or in light liquid service: skip period

leak detection and repair. The EPA has received comments on the

ambiguity of the skip period leak detection and repair provisions as

codified. The codified language is ambiguous because it gives no

[[Page 64641]]

indication of how the alternative work practice that involves two

consecutive quarterly leak detection periods with the percentage of

valves leaking equal to or less than 2 percent which allows the owner

or operator to skip one of the quarterly leak detection periods

[Sec. 264.1062(b)(2) or Sec. 265.1062(b)(2)] interacts with the

alternative work practice that involves five consecutive quarterly leak

detection periods with the percentage of valves leaking equal to or

less than 2 percent which allows the owner or operator to skip three of

the quarterly leak detection periods [Sec. 264.1062(b)(3) or

Sec. 265.1062(b)(3)]. Nor is the codified language clear on whether the

periods with the percentage of valves leaking equal to or less than 2

percent need to be repeated after the initial skipped periods, or if

the owner or operator is allowed to continue on the skip period

schedule once the criteria have been met for one period.

In order to clarify the EPA's intent regarding the skip monitoring

alternatives, paragraphs in Sec. 264.1062(b) and Sec. 265.1062(b) are

being amended to more fully explain that, if the specified criteria are

met under the alternatives, the owner or operator can monitor for leaks

once every six months (i.e., under Sec. 264.1062(b)(2)) or once every

year (i.e., under Sec. 264.1062(b)(3)). If an owner or operator is

monitoring equipment every six months, under Sec. 264.1062(b)(2), he is

not complying with the five consecutive quarterly leak detection

requirements of Sec. 264.1062(b)(3), and thus does not qualify to begin

monitoring once every year. Essentially, if an owner or operator meets

the requirements of subsection (b)(2), he may choose to either begin

monitoring every six months, or he may choose to continue quarterly

monitoring in an attempt to meet the requirements of subsection (b)(3);

complying with the provision of subsection (b)(2) excludes the

opportunity to comply with the requirements of subsection (b)(3).

Once an owner or operator meets the qualifications of either

subsection (b)(2) or subsection (b)(3), he is then allowed to continue

the skip monitoring of that provision as long as the percentage of

valves found leaking by the semiannual or annual monitoring is equal to

or less than 2 percent. These clarifying amendments reflect the

Agency's prior intent regarding the implementation of the alternative

standards for valves.

D. Recordkeeping Requirements

The recordkeeping provisions of subpart BB are being amended to

eliminate any owner or operator burden caused by regulatory overlap.

The subpart BB recordkeeping provisions in Sec. 264.1064(m) and

Sec. 265.1064(m) are being amended to allow any equipment that contains

or contacts hazardous waste that is subject to subpart BB and also

subject to regulations in 40 CFR part 60, 61, or 63 to determine

compliance with subpart BB by documentation of compliance with the

relevant provisions of the Clean Air Act rules codified under 40 CFR

part 60, part 61, or part 63. Because compliance with subpart BB is

demonstrated through recordkeeping, this recordkeeping revision has the

effect of exempting equipment that would otherwise be subject to

subpart BB from subpart BB requirements, provided the equipment is

operated, monitored and repaired in accordance with an applicable CAA

standard, and appropriate records are kept to that effect.

As is described in Section III.A of this preamble regarding the

potential regulatory overlap of the RCRA air rules and Clean Air Act

regulations, the EPA is providing this exemption to reduce the

possibility of duplicative or conflicting requirements for those TSDF

units using organic emission controls in compliance with a NESHAP but

which are also subject to requirements under the RCRA standards. The

EPA considers this to be the most appropriate approach to ensure that

air emissions from equipment managing hazardous waste are controlled to

the extent necessary to protect human health and the environment. This

exemption was originally included with the promulgation of subpart BB

on June 21, 1990 (55 FR 25454), in the same format, but with more

specificity as to the CAA regulations. As discussed in Section III.A.

of this preamble, it was clearly the Agency's intent to apply the same

rationale explained in the November 25, 1996 preamble at 61 FR 59938,

to extend the applicability exemption to subpart BB equipment operated,

monitored and repaired in accordance with an applicable CAA standard

under 40 CFR part 60, 61, or 63.

The November 25, 1996 final rule amendments added a provision to

the applicability of subpart BB that excludes equipment that contains

or contacts affected hazardous waste for a period of less than 300

hours per calendar year. See 61 FR at 59937. One commenter has

requested that the Agency clarify whether equipment which is not in

service, but contains hazardous waste residue, is considered to be in

contact with hazardous waste. The EPA considers the language of the

provision explicit on this point; the amount of time that equipment

contains hazardous waste, whether at operating capacity or as a

residue, is considered time that the equipment ``contains or contacts''

hazardous waste. Thus, if subpart BB equipment contains subpart BB-

regulated hazardous waste residues for more than 300 hours during a

calendar year, that equipment would not be exempt from subpart BB under

the provisions at Sec. 264.1050(f) or Sec. 265.1050(f). The EPA

purposefully worded the provision to say, ``contains or contacts''

because the emissions from the equipment are related to the organic

hazardous waste that is in the equipment; even if the process or

equipment is not in service, the organic hazardous waste in contact

with the equipment has the potential to volatilize, and EPA considers

it necessary to subject the equipment to the requirements of subpart

BB. Thus, EPA is today reiterating that the regulation at

Sec. 264.1050(f) and Sec. 265.1050(f) requires the equipment to be void

of subpart BB-regulated waste for a minimum of 300 hours per calendar

year.

The same commenter inquired whether, for the purposes of this same

provision, the period of time which the equipment contains or contacts

subpart BB-regulated waste must be consecutive (e.g. 290 consecutive

hours), or if it could be the sum of shorter periods (e.g., ten periods

of 29 hours each). The provision was intended to exempt equipment that

does not contain or contact subpart BB-regulated waste a total of 300

hours of more during a calendar year. This provision was adopted from

similar provisions of the Hazardous Organic NESHAP promulgated under 40

CFR 63.160. See preamble discussion at 61 FR 59937, November 25, 1996.

It is implicit in reading the language at 40 CFR 63.160(a) that the EPA

intended the requirement to refer to a sum, or total, of 300 hours per

calendar year, as opposed to a single period of 300 hours. The EPA is

today amending regulatory text at 264.1050(f) and 265.1050(e) and the

associated recordkeeping requirements at 264.1064(g)(6) and

265.1064(g)(6) to remove the phrase, ``a period of'' and thus, remove

any ambiguity as to the Agency's intent that for this regulatory

requirement, instances during which equipment contains or contacts

subpart BB-regulated waste need not be consecutive; it is only required

that the sum of all time that the equipment contains or contacts

subpart BB-regulated waste is less than 300 hours per calendar year.

E. Open-Ended Valves and Lines

Several comments have been received regarding the requirements for

open-

[[Page 64642]]

ended lines or valves as they relate to gravity piping. Commenters

expressed concern that gravity feed piping that is equipped with an

open valve or line does not meet the requirements of the subpart BB

standards. Subpart BB requires that each open-ended valve or line be

equipped with a cap, blind flange, plug, or a second valve when

managing hazardous wastes with an organic content equal to or greater

than 10 percent by weight. The commenters have suggested that the EPA

amend the subpart BB requirements to state that the EPA considers a

drain system that meets the requirements of 40 CFR part 63, subpart RR,

National Emission Standards for Individual Drain Systems to be a closed

system. The EPA has examined this issue and has found no technical

basis for making a change to the existing rule. Moreover, the Part 63

subpart RR requirements are intended for control of waste in organic

concentrations on the order of magnitude with the 500 ppmw action level

of the subpart CC standards, whereas the subpart BB standards in parts

264 and 265 are applicable to equipment that contacts waste with an

organic concentration of 10 percent by weight. There is a significant

difference in the level of required control between the two standards.

The EPA does not consider it appropriate to allow the subpart RR drain

system requirements to substitute for the more extensive open-ended

valve and line requirements of subpart BB, because application of the

subpart RR standards to subpart BB equipment would not provide an

equivalent level of organic emission control as would be achieved by

compliance with the applicable subpart BB requirements. Facility owners

or operators with gravity feed piping that requires a vent to

facilitate draining can comply with the subpart BB and CC standards by

installing organic emission control equipment on the pipe vent. The

control requirements in subpart BB are appropriate and adequate for

control of open-ended lines and valves.

V. Subpart CC--Air Emission Standards for Tanks, Surface Impoundments,

and Containers

A. Applicability and Definitions

In Secs. 264.1080 and 265.1080, the EPA is revising the effective

date of the subpart CC rules to be December 6, 1996. This revised

effective date was established in the November 25, 1996 amendments, but

this regulatory change was inadvertently omitted from that action.

Today's revision corrects this oversight.

In Sec. 265.1081, the definition of ``in light material service''

is revised to correct a typographical error to capitalize the T in

``the'' as follows, ``* * * The vapor pressure of one or more of the

organic constituents * * *''

B. Schedule for Implementation of Air Emission Standards

The final subpart CC standards allow the owner or operator to

prepare an implementation schedule for installation of control

equipment that cannot be installed and in operation by the effective

date of the rule (See Sec. 265.1082(a)(2)). The EPA intended that the

implementation schedule apply to any capital projects implemented by

the owner or operator to comply with the subpart CC requirements. (See

61 FR at 4905, February 9, 1996.) This intent was expressed in the 1994

final rule; see Hazardous Waste TSDF Background Information for

Promulgated Organic Air Emission Standards for Tanks, Surface

Impoundments, and Containers, EPA-453/R-94-076b (``BID'') page 9-7,

which states that the owner's or operator's approach to complying with

the air emission control requirements under the subpart CC standards

may involve a major design and construction project which requires

longer than 18 months to complete (e.g., replacing a large open surface

impoundment with a series of covered tanks). To further clarify this

intent, Sec. 265.1082 is revised by today's action to specify that

compliance can be demonstrated through an implementation schedule when

either: (1) control equipment or waste management units can not be

installed and in operation by the rule effective date; or (2)

modifications of production or treatment processes to satisfy subpart

CC exemption criteria in accordance with Sec. 265.1083(c) can not be

completed by the rule effective date. In either case, the

implementation schedule must be entered into the facility record, and

must contain information demonstrating that the facility will be in

compliance with all of the requirements of subpart CC, no later than

December 8, 1997. The revisions to the schedule for implementation also

incorporate the revised effective date of December 6, 1996.

Commenters have questioned whether compliance activities other than

those involving the installation of equipment or the modification of

processes may be accomplished under an implementation schedule. For

example, whether a facility can delay compliance past the rule

effective date for monitoring or testing requirements. The preamble to

the February 9, 1996 Federal Register document clarified that ``The EPA

expects such instances to be rare, but in the event a facility cannot

implement any technical requirement of subparts AA, BB, or CC, it is

the EPA's intent that the owner or operator document the necessity for

a delay in the facility operating record. To be in compliance with the

rule, the necessary documentation must be in place by [the rule

effective date].'' See 61 FR at 4905, February 9, 1996. The EPA

maintains that there may be circumstances in which a facility owner or

operator can not be in compliance with certain monitoring or testing

requirements by the effective date of the standards. For example, if a

facility owner or operator is unable to begin operation of a control

device prior to the rule effective date, he would not be able to

perform the required monitoring of that device by that date either.

However, to be in compliance with the subpart CC rules, the owner or

operator must be in compliance with all the rule requirements as soon

as is practicable, but no later than December 8, 1997.

(Note: The only exceptions to this final compliance date are those

requirements applicable to certain tanks in which stabilization

operations are performed, which must be in compliance no later than

June 8, 1998 (see 59 FR at 62912, December 6, 1994)), and

requirements delayed by the Regional Administrator, as discussed

below in this section of today's preamble.

Today's action is also amending regulatory language to clarify that

owners or operators of facilities and units that become newly subject

to the requirements of subpart CC after December 8, 1997, because of an

action other than an EPA regulatory change or a statutory change under

RCRA, must comply with all applicable rule requirements immediately

(i.e., must have control devices installed and operating on the date

the facility or unit becomes subject to subpart CC); the 30-month

implementation schedule does not apply in this case. The EPA considered

this to be implicit in the existing language of paragraph (b) of

Sec. 265.1082. The Agency is adding new language in response to

questions and comments from affected facilities regarding

interpretation of the rule requirements regarding implementation

schedules. The new provision will be codified as paragraph 265.1082(c).

One commenter expressed concern regarding the initial monitoring of

closed-vent systems. They noted that delayed compliance is allowed

under the rules for routine monitoring of those systems that are either

inaccessible or unsafe to monitor, and requested that similar provision

be allowed for initial monitoring that may be delayed due to

[[Page 64643]]

weather or process conditions. The EPA has examined this issue and has

concluded that a change in the rule is not appropriate. The industry

has been on notice for several years that the subpart CC rules would

require these monitoring inspections. Any facilities that become newly

subject to the subpart through an EPA regulatory amendment or statutory

amendment are typically allowed at least 6 months from the date of

publication of the action; the EPA considers this to have been

sufficient notice to adequately prepare for, and perform, the necessary

monitoring.

As published in the December 6, 1994, final rule, paragraph (c) of

Sec. 265.1082 allowed the EPA Regional Administrator to ``extend the

implementation date for control equipment at a facility, on a case by

case basis * * *,'' In the preamble to the final rule (see 59 FR 62919,

December 6, 1994, and the amendments to the rule published November 25,

1996, (see 61 FR 59938), the EPA stated its intent to include the

provision to allow the Regional Administrator to extend the

implementation date in situations beyond the owner or operators's

control, and that this extension would be available only in

``situations such as delays in State permit processing.'' The Agency

went even further in placing constraints on these limited conditions by

identifying situations associated with permit processing where the

allowance would not apply (see 59 FR 62919). It is clear from the

literal reading of the provision that the EPA fully intends that the

Regional Administrator's extension of an implementation schedule is

only allowable for a capital project implemented by a facility owner or

operator to comply with the subpart CC air emission control

requirements. It is also clear that the Agency does not intend that

this Regional Administrator allowance for implementation schedule

extensions apply to anything other than the installation of air

emission control equipment. Today's action re-designates this provision

as paragraph 265.1082(d) to allow the regulatory amendment described

above in this section of today's preamble to be codified as subsection

(c); however, the provision for Regional Administrator extensions of

the final rule compliance date is not changed.

C. Standards: General

Today's amendments are further clarifying that the subpart CC RCRA

air rules apply only to units managing a hazardous waste; to this

effect, the EPA is adding the word ``hazardous'' in front of the word

``waste'' in Secs. 264.1082(b) and 265.1083(b). This point has been

made by the EPA throughout the proposal and promulgation of the subpart

CC rules (see 59 FR 62896, December 6, 1994, and 61 FR 4906, February

9, 1996); however, there have remained some questions and uncertainties

regarding applicability of the rules to non-hazardous wastes. The

changes being made today are intended to provide additional emphasis

that only hazardous wastes are subject to the subpart CC controls.

Paragraph 265.1083(c)(2)(i) is revised to correct a typographical

error in the symbol for the exit concentration limit; the symbol should

be C subscript t ``(Ct).''

In addition, Secs. 264.1082(c)(3) and 265.1083(c)(3) have been

revised to add as an exempt unit a surface impoundment used for

biological treatment of hazardous waste in accordance with subpart CC

requirements. The EPA intended to exempt surface impoundments used for

biological treatment from the subpart CC control requirements. The

preamble to the final rule in Section VII(A)(5) (59 FR 62917, December

6, 1994) clearly states ``* * * air emission controls are not required

for a surface impoundment in which biological treatment of a hazardous

waste is performed under the same conditions specified in the rule for

tanks.'' However, surface impoundments performing biological treatment

were inadvertently left out of the biological treatment unit exemption

in the November 25, 1996, final rule amendments (61 FR 59954).

The EPA has received a number of inquiries asking for

interpretations of the provision of the subpart CC rules which states

that wastes that meet applicable Land Disposal Restriction (LDR)

treatment standards for organic hazardous constituents are exempt from

the subpart CC air emission standards. Section 264.1082(c)(4) exempts

from the RCRA subpart CC air emission standards:

``A tank, surface impoundment, or container for which all hazardous

wastes placed in the unit * * *

``(i) Meets the numerical concentration limits for organic

hazardous constituents, applicable to the hazardous waste, as specified

in 40 CFR part 268--Land Disposal Restrictions under Table ``Treatment

Standards for Hazardous Waste'' in 40 CFR 268. 40 * * *''

A parallel exemption for interim status facilities is found at

Sec. 265.1083(c)(4). Under these provisions, tanks, surface

impoundments, and containers receiving hazardous wastes that meet the

concentration limits for organics applicable to the waste under the

generally-applicable treatment standards of the LDR program are not

subject to the subpart CC air emission control regulations. See 61 FR

59941 in the preamble and 59954 in the rule (Nov. 25, 1996).

A number of members of the regulated industry (including the

Environmental Technology Council, Chemical Waste Management, and the

Chemical Manufacturers Association) have inquired as to how this

provision applies to situations where the wastes in question are not

yet prohibited from land disposal or consist of mixtures of different

hazardous wastes. This preamble answers those questions. Copies of

correspondence between EPA and these entities have been placed in the

public docket for the rule.

The key phrase in the above exemption is what treatment standards

are ``applicable to the waste.'' EPA interprets this phrase expansively

to include the treatment standard for organics that would apply to the

waste whether or not the waste is currently prohibited, so that the

exemption may apply to wastes not yet required to be treated for

organics as a precondition to land disposal. Under this interpretation,

hazardous wastes could be exempt from subpart CC regulation if they

meet the treatment standards for organics that would ultimately be

required as a precondition to land disposal. This is a reasonable

construction of the rule's language (the phrase ``applicable to the

waste'' is ambiguous as to its precise scope), and is supported by the

preamble to the rule (which says that the exemption can apply to wastes

that are not prohibited, see 61 FR 59941). In addition, this reading is

consistent with the exemption's underlying principle: if hazardous

wastes meet generally-applicable LDR treatment standards for organics,

their concentrations of organics are in virtually every case going to

be less than warrants control under the subpart CC rules (i.e.,

volatile organic concentrations will be less than 500 ppmw).

The EPA recognizes that it could interpret the language to apply

only to hazardous wastes that are prohibited and actually subject to a

treatment standard for organics. This more restrictive interpretation

does not seem desirable because hazardous wastes which actually meet

treatment standards for organics are likely to have been treated to

remove or destroy the organics and thus not warrant regulation under

subpart CC. On the other hand, it is EPA's further interpretation that

this exemption does not apply to hazardous

[[Page 64644]]

wastes for which there would be no treatment standards for organics,

namely wastes that are listed solely because of inorganic content.

There is no potentially ``applicable'' organic treatment standard for

such wastes, and the exemption thus does not apply. In addition, such

wastes would not likely be treated for organic constituents; so in the

event they contain higher concentrations of organics, this particular

LDR exemption should not apply. Such wastes may, however, be exempt

from the subpart CC rules because they contain less than 500 ppmw

volatile organics at the point of waste origination (40 CFR

264.1082(c)(1)).

The following principles set out how the EPA interprets the rule

for this subpart CC exemption in specific situations:

1. Listed Waste

(A) If the waste is already subject to an LDR treatment standard

for organics (for example, the organic spent solvent listed as F001),

the waste is not subject to subpart CC if it meets the treatment

standards for organic hazardous constituents in that waste (e.g. the

treatment standards for organics in F001 set out in Sec. 268.40);

(B) If the waste is newly listed so that no treatment standard

under Sec. 268.40 has yet been established, determine if the waste was

listed for organic constituents in Part 261 Appendix VII and if so, if

the waste meets the Universal Treatment Standards (UTS) for those

constituents (set out in Sec. 268.40) then the waste is exempt from

subpart CC. The EPA considers the UTS to be ``applicable'' because it

is clear that this is the standard which will apply when the waste is

prohibited;

(C) If the waste is listed only because it contains inorganic

constituents (e.g. electroplating wastewater treatment sludge (F006)),

then it is not eligible for the LDR exemption at Sec. 264.1082(c)(4)

but could be exempt for other reasons, such as containing less than 500

ppmw volatile organics at the point of waste origination. This is true

whether or not the waste is already a prohibited hazardous waste, or is

newly listed.

2. Mixtures of Listed Wastes

The same principles as presented above apply when mixtures of

listed wastes are involved:

(A) If the mixture contains listed wastes for which there are

organic concentration limits in Sec. 268.40 and newly listed wastes

listed (in Appendix VII of Part 261) for organic hazardous

constituents, the waste would be exempt from subpart CC if it meets the

treatment standards in Sec. 268.40 and the treatment standards to which

the newly listed waste will be subject. Thus, to be exempt under

Sec. 264.1082(c)(4), a mixture of F001 wastes and FXXX (a hypothetical

newly listed waste listed for presence of benzene) would have to meet

the treatment standards for the organic hazardous constituents set out

in Sec. 268.40 for F001 plus UTS for benzene;

(B) If the mixture contains listed wastes for which there are

organic concentration limits in Sec. 268.40 and listed wastes with

treatment standards only for inorganic constituents (or which is newly

listed, and is listed only due to presence of inorganic hazardous

constituents), the waste mixture would be eligible for the

Sec. 264.1082(c)(4) variance if it meets the organic concentration

limits in Sec. 268.40. Thus, a mixture of F001 and F006 wastes would be

exempt from subpart CC if it meets the treatment standard for F001

organic hazardous constituents;

(C) If the mixture consists of listed wastes which are exclusively

subject to, or are listed for, inorganic hazardous constituents, the

mixture is not eligible for the Sec. 264.1082(c)(4) exemption.

Finally, part of the ``applicable'' LDR standard for listed wastes

is that the standard not be achieved by impermissible dilution (as set

out in Sec. 268.3 and several EPA interpretations, such as in 60 FR

11706-11708 (March 2, 1995)). Impermissible dilution could involve not

only mixing an agent to the waste to increase volume without

contributing to the treatment process, but also allowing volatilization

from the waste without capture and destruction of the organic

emissions. 52 FR at 25779 (July 8, 1987); Chemical Waste Management v.

EPA, 976 F. 2d 2, 17 (D.C. Cir. 1992). In essence, this means that the

LDR standards need to be achieved by treatment that destroys or removes

the organic hazardous constituent (or the wastes may meet the treatment

standard as generated). See 60 FR 11708. The subpart CC rules likewise

contain provisions prohibiting dilution as a means of making a waste

eligible for an exemption from the rule (see, e.g.,

Sec. 265.1083(c)(2)(vi)). Thus, to be eligible for this exemption from

the subpart CC standards, listed wastes must either meet treatment

standards for organics by treatment which destroys or removes hazardous

organic constituents, or the wastes must meet those standards as

generated.

3. Characteristic Wastes

The first principle to bear in mind regarding characteristic

hazardous wastes is that the subpart CC rule no longer applies once

these wastes are decharacterized, i.e., no longer exhibit a

characteristic of hazardous waste. This is because the subpart CC rules

only apply to wastes that are identified or listed as hazardous. See,

e.g., Sec. 265.1080(a). Also, since the rules do not prohibit any

method which removes a hazardous characteristic, dilution can be used

for this purpose; see Sec. 261.3(d)(1). Thus, in the discussion that

follows, it must be understood that all references to characteristic

hazardous wastes are to wastes which continue to exhibit a

characteristic.

Characteristic wastes can be identified because of the presence of

organic hazardous constituents, but also can contain organic

``underlying hazardous constituents''--hazardous constituents present

at levels exceeding the Universal Treatment Standards but which do not

cause the waste to exhibit a characteristic; see Sec. 268.2(i). Such

hazardous constituents typically must be treated to meet UTS before a

characteristic waste is land disposed (see Chemical Waste Management v.

EPA, 976 F. 2d 2, 16-18), and so UTS can be considered to be an

applicable standard for purposes of the subpart CC exemption under

discussion in this preamble.

Principles applicable to specific situations involving

characteristic hazardous wastes are therefore:

(A) Since subpart CC controls do not apply to nonhazardous wastes,

these standards do not apply as the result of managing decharacterized

wastes.

(B) If the waste exhibits ignitability, corrosivity, or reactivity

(or is a mixture which exhibits one or more of these characteristics),

then the waste is exempt from subpart CC if it meets treatment

standards for any of the organic underlying hazardous constituents

which are present (and the waste is no longer subject to subpart CC if

it no longer exhibits a characteristic, whether or not treatment

standards for underlying hazardous constituents are achieved). In this

example, these characteristic wastes are prohibited and subject to the

requirement to treat for underlying hazardous constituents, so that

these standards clearly are applicable;

(C) If the waste or waste mixture exhibits a characteristic for an

organic hazardous constituent (so-called Toxicity Characteristic (TC)

organic wastes), then the waste must meet the treatment standard for

that constituent plus UTS for any organic underlying hazardous

constituent. These are the current requirements set out in Part 268 for

the waste and so are clearly applicable;

[[Page 64645]]

(D) If the waste or waste mixture exhibits a characteristic for a

metal, the waste would be exempt from subpart CC if it meets UTS for

any organic underlying hazardous constituent which may be present. This

result comes from the Chemical Waste Management opinion cited above

(although the EPA has not yet amended the Part 268 rules to reflect the

court's holding with respect to these wastes), and so can be viewed as

applicable standards for purposes of the subpart CC exemption.

4. Examples

A number of examples that illustrate the EPA intent and

interpretation of the subpart CC LDR exemption are summarized below.

1. F001 + F006. Listed organic plus listed inorganic. Meet

treatment standards for organics in F001;

2. F001 + D018. Listed organic plus organic TC. Meet treatment

standards for F001, treatment standards for benzene, and treatment

standards for any organic underlying hazardous constituent in the D018

waste (or eliminate the D018 characteristic before the waste is managed

in a tank, container or surface impoundment, in which case only the

treatment standards for F001 waste would have to be satisfied for the

exemption to apply);

3. F001 + D008. Listed organic plus TC metal. Meet treatment

standards for F001 plus treatment standards for any organic underlying

hazardous constituents which may be present in the D008 waste (or

eliminate the D008 characteristic before the waste is managed in a

tank, container or surface impoundment, leaving the F001 standard as

the applicable treatment standard);

4. F006 + D018 + D008. Listed inorganic, TC organic, TC inorganic.

Meet treatment standard for benzene and for organic underlying

hazardous constituents in D018 and D008 wastes;

5. F006. Ineligible for Sec. 264.1082(c)(4) exemption.

There have also been questions regarding whether this LDR exemption

applies to mixtures that would meet the organic constituent

concentration limits specified for the hazardous wastes in the mixture

but for the contribution of organic constituents from the

decharacterized wastes in the mixture. The EPA interprets the rule so

that the LDR exemption does not apply in these circumstances. First,

the language of the rule refers to ``all hazardous waste placed in the

unit'' having to meet the treatment standard, which logically means

meeting the standard at the point the hazardous waste is placed in the

unit. Second, it is reasonable to look at the point of mixing as a new

point of waste origination in keeping with the overall thrust of the

provision to reserve the exemption for wastes which actually are

treated. See 54 FR at 26633 (June 23, 1989) where the EPA noted a

similar view in the LDR context. The EPA also notes that this

interpretation is consistent with other provisions of the rule where

the Agency has indicated expressly that organic removal is to be

evaluated in the context of each individual waste stream entering a

treatment process. See section Sec. 265.1083(c)(2)(v)(C).

The last issue addressed on this topic in today's preamble concerns

the relationship of this exemption and treatment variances under the

LDR program. The EPA notes that the exemption from subpart CC standards

applies only to hazardous wastes that have been treated to meet the

treatment standards set out in 40 CFR 268.40. This language excludes

alternative standards which are established as part of the treatment

variance process, which alternative standards are codified in 40 CFR

268.44. This distinction is intentional. As the EPA recently noted in

the rulemaking amending the treatment variance standards, it is

possible that a treatment variance may result in a standard which does

not fully remove volatile organics to the extent contemplated in

creating the subpart CC exemption. For this reason, the EPA has

indicated explicitly that such wastes may remain subject to the subpart

CC rules. The EPA reiterates that approach here.

The EPA is today amending the treatment demonstration provision for

valuing waste analysis results below the limit of detection for an

analytical method. In response to comments, EPA is today revising

paragraphs (A) and (B) of Sec. 264.1082(c)(2)(ix) and

Sec. 265.1083(c)(2)(ix). The change to paragraph (A) is being made in

recognition that a relatively high blank value for Method 25D does not

necessarily indicate that a waste stream has failed to meet the

treatment demonstration requirements of Sec. 265.1083(c)(2)(i) through

(vi). The blank value required in paragraph 4.4 of EPA Reference Method

25D (codified in appendix A to 40 CFR part 60) is an indication of the

organics contained in the Polyethylene Glycol, not the organics in the

waste. For a Method 25D analytical result, the method instructs the

operator to report the value of the instrument results minus the blank

value. In a circumstance that the instrument results are higher than

the blank value, the reported Method 25D result would not be non-

detect, but rather, would be a numerical concentration value. In

circumstances that the instrument results are equal to the blank value,

the reported result would be non-detect. In the circumstance resulting

in a non-detect, the Agency does not consider it appropriate to require

the facility owner or operator to compare the treatment results of

paragraphs (c)(2)(i) through (vi) in Sec. 264.1082 and Sec. 265.1083 to

one-half of the blank value, as was required by the regulatory

requirement being revised today. Therefore, the Agency is adding a

provision that allows the facility owner or operator to substitute a

value of 25 ppmw for a non-detect Method 25D result, if one-half the

Method 25D blank value is more than 25 ppmw. The Agency has selected

the value of 25 ppmw because it represents 95 percent reduction of

organics in a waste stream of 500 ppmw, the required percent reduction

for a waste stream with a VO concentration equal to the action level

for the subpart CC standards.

No default value similar to the 25 ppmw value described here is

included in the provisions for non-detect results in waste

determinations performed to determine whether the hazardous waste is

below 500 ppmw at its point of waste origination. See 265.1084(a)(3).

Such a provision is necessary in situations where an owner or operator

is attempting to demonstrate a process has achieved 95 percent

reduction of organics, because the concentration of the stream exiting

the process unit may need to be demonstrated to be as low as 25 ppmw.

Such is not the case with waste determinations performed to demonstrate

that the hazardous waste stream is below the subpart CC action level of

500 ppmw, where the waste determination need only demonstrate that the

waste is below 500 ppmw. The valuing of non-detects for waste

determinations performed at the point of waste origination is discussed

further in the following section of this preamble.

The EPA is revising paragraph (B) of Sec. 264.1082(c)(2)(ix) and

Sec. 265.1083(c)(2)(ix) to clarify the Agency's intent that the level

of detection for an analytical method other than method 25D is the sum

of the limits of detection for each of the regulated compounds in the

waste sample. As previously written, the provision did not clearly

indicate that for purposes of this subpart, only the detection limits

for organic compounds with Henry's Law greater than or equal to 0.1 Y/X

are required to be summed, to establish the limit of detection for an

analytical method.

[[Page 64646]]

The EPA is also adding a reference to organic hazardous

constituents in paragraph (c)(4)(ii) of Sec. 264.1082 (which applies

when the LDR standard is a designated method of treatment), to make

clear that this provision requires treatment of organics. With this

revision, Sec. 264.1082(c)(4)(ii) now conforms to

Sec. 264.1082(c)(4)(i). A conforming change is being made to the

requirement for interim status facilities, at Sec. 265.1083(c)(4)(ii).

D. Waste Determination Procedures

Paragraphs in Sec. 264.1083(a)(2) and Sec. 265.1084(a)(2) are

revised by changing ``The average VO concentration of a hazardous waste

at the point of waste origination may be determined * * *'' to read as

follows: ``For a waste determination that is required by paragraph

(a)(1) of this section, the average VO concentration of a hazardous

waste at the point of waste origination may be determined * * *'' This

waste determination requirement was explained in Section VII.A.3, Waste

Determination Procedures, of the preamble to the final rule (59 FR

62915, December 6, 1994) as follows: ``A determination of the volatile

organic concentration of a hazardous waste is required by the subpart

CC standards only when a hazardous waste is placed in a tank, surface

impoundment, or container subject to the rule that does not use air

emission controls in accordance with the requirements of the rule. A

TSDF owner or operator is not required to determine the volatile

organic concentration of the waste if it is placed in a tank, surface

impoundment, or container using the required air emission controls.''

Consistent with this statement, the EPA is slightly revising the

current rule to make clear that the average VO concentration

determination is required only for hazardous waste placed in a unit not

using subpart CC air emission controls and not otherwise exempt from

using subpart CC air emission controls.

Today's action also revises Sec. 265.1084(a)(3)(ii)(B) to clarify

the EPA's intent regarding the number of samples required for a waste

determination. The amended paragraph states (as did the published rule

language at Sec. 265.1084(a)(5)(iv)(A) (see 59 FR 62939, December 6,

1994)), that the average of four or more sample results constitutes a

waste determination for the waste stream. This amended paragraph

further clarifies that one or more waste determinations may be needed

to represent the average VO concentration over the complete range of

waste compositions and quantities that occur during the entire

averaging period (due to normal variations in the operating conditions

for the source or process generating the hazardous waste stream).

Therefore, to determine the average VO concentration of a waste stream

generated by a process with large seasonal variations in waste

quantity, or fluctuations in ambient temperature, several waste

determinations (of four or more samples each) will be required.

The affected public has been fully informed of the EPA's intent

regarding the fact that four samples constitute a waste determination,

and that one or more waste determinations may be needed to characterize

the waste stream's VO concentration over the averaging period. To

inform the public of the technical requirements and compliance options

in the amended subpart CC RCRA air rules, the EPA conducted a series of

six seminars during August and September of 1995 and an additional six

seminars during August through November of 1996. During these seminars,

the EPA presented a thorough discussion of the details associated with

making a waste determination. (Refer to EPA RCRA Docket No. F-95-CE3A-

FFFFF, Item No. F-95-CE3A-S0017 and Docket No. F-96-CE3A-FFFFF.)

In another clarifying revision, in each citation of Method 8260(B)

and Method 8270(C) in ``Test Methods for Evaluating Solid Waste,

Physical/Chemical Methods,'' EPA Publication SW-846, the reference to

version (B) or (C) is being deleted by today's action. The citations

that are being revised were added by the November 25, 1996, final rule

amendments (61 FR 59932) to the following paragraphs of Sec. 265.1084:

(a)(3)(iii), (a)(3)(iii)(F), (a)(3)(iii)(G), (b)(3)(iii),

(b)(3)(iii)(F), and (b)(3)(iii)(G).

It was the EPA's intent that the current version of each of these

methods, as applicable to the waste being measured, be used in making a

waste determination, not necessarily the specific versions cited. At

the time the November 25, 1996 amendments were published, the versions

8260(B) and 8270(C) were only proposed methods; the published versions

were 8260(A) and 8270(B). Specifying these particular versions was an

inadvertent error, which is being corrected by today's action. As was

stated in Section IV.F, Waste Determination Procedures, of the preamble

to the final rule amendments (61 FR 59942, November 25, 1996), after

extensive review, the EPA decided that as alternatives to using Method

25D for direct measurement of VO concentration in a hazardous waste for

the subpart CC RCRA air rules, it was appropriate to add Methods 624,

625, 1624, and 1625 (all contained in 40 CFR part 136, appendix A) and

Methods 8260(B) and 8270(C) (both in ``Test Methods for Evaluating

Solid Waste, Physical/Chemical Methods'' in EPA publication SW-846)

when these methods are used under certain specified conditions. It was

noted that for each of these methods, there is a published list of

chemical compounds which the EPA considers the method appropriate to

measure. The owner or operator may only use these methods to measure

compounds that are contained on the list associated with that method,

unless specified validation procedures are also performed. It was

further noted that for the purpose of a waste determination, the owner

or operator must evaluate the mass of all VO compounds in a waste that

have Henry's Law value above the 0.1 Y/X value. Therefore, it is the

EPA's position that the owner or operator is responsible for

determining that the analytical method being used for a waste

determination is sufficient to evaluate all of the applicable organic

compounds that are contained in the waste.

(Note: Today's action includes a revised list of known compounds

with a Henry's Law value less than or equal to 0.1 Y/X, contained in

appendix VI of subpart 265; the revisions correct typographical

errors, and format the list to be alphabetical.)

Also in today's action, a printing error that placed

Sec. 265.1084(a)(3)(iii)(A) at the end of Sec. 265.1084(a)(3)(iii) has

been corrected. In addition, in the November 25, 1996 final rule

amendments, because of a typographical error in

Sec. 265.1084(a)(3)(iii)(G), the words ``introduction and analysis''

were omitted from the sample handling steps for which site-specific

procedures must be documented in the quality assurance program to

minimize the loss of compounds due to volatilization, biodegradation,

reaction, or sorption. Today's amendments revise

Sec. 265.1084(a)(3)(iii)(G) to read as follows: ``Documentation of site

specific procedures to minimize the loss of compounds due to

volatilization, biodegradation, reaction, or sorption during the sample

collection, storage, preparation, introduction, and analysis steps.''

Several commenters have stated that the subpart CC provisions for

treatment of non-detect values in the analysis of treated waste

samples, contained in Secs. 264.1082(c)(ix) and 265.1083(c)(2)(ix),

should also apply to waste determinations at the point of waste

origination, for purposes of determining compliance with the 500 ppmw

VO concentration action level of the standards. Commenters requested

[[Page 64647]]

this application of the non-detect policy to waste determinations

because a waste determination consists of the average of four or more

samples, and some of the samples analyzed may yield results that are

below the analytical method's limit of detection. The commenters'

concern is the same rationale that led EPA to amend the provisions at

sections 264.1082 and 265.1083 in the November 25, 1996 final rule

amendments; without such a provision, the owner or operator does not

have a way to assign a numeric value for a non-detect reading, when

computing the average of four or more waste samples to calculate a

waste determination. The same logic applies to both circumstances, and

it was obviously an oversight that EPA did not include this provision

in the November 25, 1996 final rule amendments. Thus, the EPA is today

adding to the waste determination provisions at

Sec. 265.1084(a)(3)(iv), a provision for valuing non-detect analytical

results. The new rule language provides the appropriate guidance on the

valuing of non-detects in the calculation of the average of four or

more samples for a waste determination.

(Note: A corresponding amendment is not required at

Sec. 265.1084(b)(3)(iv) for treated hazardous waste because those

rules, specifically Sec. 264.1082(c)(2)(ix) and

Sec. 265.1083(c)(2)(ix), contain provisions for valuing non-detects

when determining performance of an organic destruction or removal

process.)

The EPA today is also amending regulatory language to reflect a

clarification that was addressed in the November 25, 1996 rulemaking

preamble (61 FR at 59943), but was inadvertently omitted from the

regulatory text. This amendment adds two new paragraphs to the waste

determination provisions, Sec. 265.1084 (a)(3)(v) and (b)(3)(v), to

state that EPA would determine compliance with the subpart CC

regulations based on the same test method used by the facility owner or

operator, provided the owner or operator had used a test method

appropriate for the waste. The appropriateness of an analytical method

is described in paragraphs Sec. 265 (a)(3)(iii) and (b)(3)(iii),

respectively. The November 25, 1995 preamble to the final rule

amendments (61 FR 59943) stated that, ``* * * as long as one of the

allowable test methods is being used for direct measurement of the VO

concentration of a hazardous waste, the EPA would only enforce against

the facility on that basis (i.e., using the same test method), unless

the method used is not appropriate for the hazardous waste managed in

the unit.'' Today's amendments add a paragraph to the analysis section

of the final rule's waste determination procedures at Sec. 265.1084 (a)

and (b) to codify this intended provision.

As published in the November 25, 1996 final rule amendments (61 FR

59975), paragraph 265.1084(a)(4)(iv) provides that the results of a

direct measurement of average VO concentration shall be used to resolve

a disagreement between the Regional Administrator and the owner or

operator regarding a determination of the average VO concentration of a

hazardous waste stream using knowledge. To clarify that in such cases

where there is disagreement regarding use of knowledge, the owner or

operator has the discretion to choose an appropriate test method or

methods, the following sentence has been added to

Sec. 265.1084(a)(4)(iv): ``The owner or operator may choose one or more

appropriate methods to analyze each collected sample in accordance with

the requirements of paragraph (a)(3)(iii) of this section.''

The EPA is also clarifying the waste determination requirements for

treated wastes. Prior to today's amendment, the subpart CC regulatory

text required analysis of all treated waste. As explained below, a

waste determination is unnecessary for a waste treated by either a

boiler or industrial furnace (BIF) operated in accordance with subpart

H to 40 CFR part 266, or a hazardous waste incinerator operated in

accordance with subpart O to 40 CFR parts 264 or 265; the EPA is

amending the rule to clarify this. Today's action revises paragraph

(b)(1) of Secs. 264.1083 and 265.1084 to require that the owner or

operator perform the applicable waste determination for each treated

hazardous waste placed in a waste management unit exempted under the

provisions of paragraphs (c)(2)(i) through (c)(2)(vi) of Secs. 264.1082

and 265.1083, respectively. Those specific paragraphs are cited in

today's amended rule language to clarify that a waste determination is

only required for a hazardous waste placed in a waste management unit

exempted under one of the treatment demonstration options that is a

performance standard, as opposed to an equipment specification

standard. As was noted in Section VII.A.2.b, Treated Hazardous Waste,

of the final rule preamble (59 FR 62914, December 6, 1994), provisions

for hazardous waste treatment are specified in the subpart CC standards

for the following processes: (1) An organic destruction, biological

degradation, or organic removal process that reduces the organic

content of the hazardous waste and is designed and operated in

accordance with certain conditions specified in the rule; (2) a

hazardous waste incinerator that is designed and operated in accordance

with the requirements of 40 CFR part 264 subpart O or 40 CFR part 265

subpart O; or (3) a BIF that is subject to the requirements of 40 CFR

part 266 subpart H.

Under today's amendments to the rule, the EPA is clarifying its

original intent, that a waste determination is required only for a

treated hazardous waste placed in a waste management unit, if the unit

is exempt from air emission control requirements under provisions

contained in paragraphs (c)(2)(i) through (c)(2)(vi) of Secs. 264.1082

and 265.1083. The EPA requires waste demonstrations for those treatment

demonstration options to ensure that the treatment conditions specified

in subpart CC have been met. As explained in the December 1994 final

rule preamble (59 FR at 62914, December 6, 1994), the waste

demonstration results are required to indicate that a sufficient mass

of organic constituents have been removed or destroyed from a regulated

waste stream, prior to it being placed in a hazardous waste management

unit that is not equipped with air emission controls. The treatment

demonstration options listed in paragraphs (c)(2)(i) through (viii) of

Secs. 264.1082 and 265.1083 are based on the treatment process

achieving a 95% reduction by weight of organic constituents in the

waste. For the provisions of (c)(2)(i) through (c)(2)(vi) of

Secs. 264.1082 and 265.1083, the treatment process is not specified in

the regulation; rather the requirement is based on the removal

efficiency of the treatment process. Thus, to demonstrate compliance,

EPA considers it necessary that the owner or operator perform waste

determinations to demonstrate the appropriate removal efficiency has

been achieved. However, the treatment demonstration provisions of

paragraph (c)(2)(vii) in Secs. 264.1082 and 265.1083 require that the

hazardous waste be treated in an incinerator that is designed and

operated in accordance with the requirements of subpart O in 40 CFR

part 264 or part 265; and the treatment demonstration provisions of

paragraph (c)(2)(viii) in Secs. 264.1082 and 265.1083 require that the

hazardous waste be treated in a BIF that is designed and operated in

accordance with the requirements of 40 CFR part 266, subpart H. The EPA

considers compliance with those combustion standards to be sufficient

demonstration that the organics in the waste will be destroyed by 95

percent or more, by weight, and does not consider a waste

[[Page 64648]]

determination necessary. The EPA has consistently given verbal guidance

that waste determinations are not required for waste treated in the

above-mentioned specific units, and is today making an amendment to the

regulatory text to make the regulatory requirements consistent with

this guidance.

In a further clarification, the EPA intended that the owner or

operator use the same test method to determine the average VO

concentration at the point of waste treatment as is used at the point

of waste origination, if these values are to be used to determine the

effectiveness of a treatment system. As was stated in Section IV.F,

Waste Determination Procedures, of the preamble to the final rule

amendments (61 FR 59942, November 25, 1996), ``The main point that must

be reemphasized regarding direct measurement of VO concentration is

that, although the EPA is amending the rule to allow various test

methods other than Method 25D to be used in a waste determination, the

owner or operator must use a test method(s) that is appropriate for the

compounds contained in the waste. The method(s) used for the waste

determination must be suitable for and must reflect or account for all

compounds in the waste with a Henry's Law constant equal to or greater

than 0.1 Y/X at 25 degrees Celsius.''

Since the effectiveness of a waste treatment process must be judged

on the basis of the process's capacity to reduce the organics in waste

relative to their concentration at the point of waste origination or at

the point of entry to the treatment system, the method(s) used for the

waste determination at the point of waste treatment must be appropriate

to detect and measure the compounds in the waste at the point of waste

origination; to put the measurements on a common basis and provide an

accurate comparison, the EPA considers it necessary that the method(s)

used at the point of waste origination must be the same as the

method(s) used at the point of waste treatment. To clarify this

requirement, which the EPA has heretofore considered implicit, the

following sentence is being added to Sec. 265.1084(b)(3)(iii): ``When

the owner or operator is making a waste determination for a treated

hazardous waste that is to be compared to an average VO concentration

at the point of waste origination or the point of waste entry to the

treatment system, to determine if the conditions of

Sec. 264.1082(c)(2)(i) through (c)(2)(vi) or Sec. 265.1083(c)(2)(i)

through (c)(2)(vi) are met, then the waste samples shall be prepared

and analyzed using the same method(s) as were used in making the

initial waste determination(s) at the point of waste origination or at

the point of entry to the treatment system.'' (Only the waste

determination provisions in part 265 are being revised in connection

with this rule clarification and the following rule clarification,

because the subpart CC waste determination protocols are contained in

part 265, and the part 264 standards cross-reference part 265.)

Because of a printing error, the equations for calculating the

actual organic mass removal rate in Sec. 265.1084(b)(8)(iii) and for

calculating the actual organic mass biodegradation rate in

Sec. 265.1084(b)(9)(iv) were out of place in the November 25, 1996

amendments (61 FR 59978). This document corrects the placement of these

equations.

In a further clarification to the waste determination procedures of

subpart CC, paragraph 265.1084(d)(5)(ii) required that a mixture of

methane in air at a concentration of approximately, but less than,

10,000 ppmw be used to calibrate the detection instrument used to

determine no detectable organic emissions. It was the EPA's intent that

the calibration procedure be consistent with the procedure specified in

the subpart BB equipment leak test methods and procedures at

Secs. 264.1063 and 265.1063, as they reference the same monitoring

procedure. Paragraph (b)(4)(ii) of Secs. 264.1063 and 265.1063

specifies that calibration gases for the detection instrument shall be,

``A mixture of methane or n-hexane and air at a concentration of

approximately, but less than 10,000 ppm methane or n-hexane. Consistent

with this requirement, today's action revises the requirement for

calibration gases in parts 264 and 265 to provide the owner or operator

the choice of using a mixture of methane or n-hexane and air.

E. Standards: Tanks

Commenters have questioned whether a facility owner or operator is

permitted to install a closure device on a tank manifold system or

header vent when a series of tanks have their vents (i.e., tank

openings) connected to a common header. In many tanks systems, tank

vents are connected to a manifold or central header, and a closure

device (or pressure/vacuum device such as a conservation vent) is

installed on the header rather than on the individual tanks. Prior to

today's amendment, the subpart CC level 1 tank requirements at

paragraph (2)(2)(iii) in Sec. 264.1084 and Sec. 265.1085 could have

been interpreted to require that each opening on a Level 1 tank fixed

roof must be either equipped with a closure device or connected through

a closed-vent system to a control device, with no allowance for the

closure device or pressure/vacuum device to be installed on the tank

manifold system. The EPA did not intend the regulatory requirement to

disallow a closure device or pressure/vacuum device from being

installed on a tank manifold system. The EPA is aware that such tank

manifold or vent header systems provide a degree of emissions reduction

which is derived from vapor balancing between tanks during unloading

and inter-tank transfers; the EPA clearly did not intend to discourage

their use. The EPA is therefore amending the subpart CC tank standards

to provide that a closure device can be installed on a manifold vent

header for Level 1 tanks, by revising paragraph (c)(2)(iii) in

Sec. 264.1084 and Sec. 265.1085.

In the November 25, 1996 final rule amendments, the EPA promulgated

a provision that allowed a facility to install and operate air emission

control devices on Level 1 tanks. As published, the regulatory language

for that provision inadvertently made it mandatory that these control

devices be operating at all times when hazardous waste is managed in

the tank, even at times of routine maintenance. The EPA is amending the

rules today to clarify that the control device is not required to be

operating during specified periods, including those instances it is

necessary to provide access to the tank for performing routine

inspections, maintenance, or other activities needed for normal

operations. Examples of such activities include those times when a

worker needs to open a port or hatch to maintain or repair equipment.

Paragraph (B) is being revised in Sec. 264.1084(c)(2)(iii) and

Sec. 265.1085(c)(2)(iii) to better convey this intent.

In the amendments to the final rule published on November 25, 1996

(61 FR 59944), the preamble at Section G. Standards: Tanks that

discussed the revisions to the subpart CC tank standards, stated ``* *

* an option is being provided allowing the use of an enclosure vented

through a closed-vent system to an enclosed combustion device or a

control device designed and operated to reduce the total organic

content of the inlet vapor stream by at least 95 percent by weight,''

in order to comply with the tank level 2 air emission control

requirements. However, the latter portion of this statement was

incorrect and the EPA is clarifying that it was the EPA's intent that

only enclosed combustion devices can be used as control devices under

this alternative to comply with the Tank

[[Page 64649]]

Level 2 air emission control requirements. It should also be noted that

the regulation as amended by the November 25,1996 Federal Register

document (at Secs. 264.1084(d)(5) and 265.1085(d)(5)) was correct and

did not contain the statement regarding the use of a (non-combustion)

``control device designed and operated to reduce the total organic

content of the inlet vapor stream by at least 95 percent by weight.''

Since publication of the November 25, 1996 preamble, the EPA has

consistently and repeatedly provided verbal clarification in all forums

where the subject of level 2 tank enclosures has been raised, that the

noted preamble text is incorrect, and that level 2 tanks operated

inside an enclosure must be vented to an enclosed combustion device.

The EPA provided this information publicly at each of the six seminars

EPA conducted in September through December of 1996; additionally, an

industry trade association provided this same clarification at the two

seminars the industry trade group conducted in March and April of 1997

(these seminars are discussed in the Background section of today's

preamble). Additionally, the requirement for enclosed combustion

devices on level 2 tank enclosures was strongly affirmed in the

accompanying printed materials for each of these EPA and industry trade

group seminars; those printed materials were distributed to all seminar

attendees, and to additional members of EPA and the regulated

community, for informational purposes and peer review. Further, the

RCRA Hotline has been clarifying the regulatory text requirement for

enclosed combustion devices to callers who have raised the topic to

Hotline representatives. The requirement for enclosed combustion

devices on level 2 tank enclosures is not being amended by today's

action. However, the EPA is currently considering a future amendment to

this requirement that would allow owners or operators to operate a

Level 2 tank enclosure vented to an alternate control device, provided

they make certain site-specific demonstrations. The reason EPA

currently requires enclosure emissions to be vented to an enclosed

combustion device is because organic concentrations in air within the

enclosure are very dilute, due to the inherent dilution in the

enclosure, and are often less than 100 ppm organics by volume. It is

not clear to the EPA that control devices other than enclosed

combustion devices, can reduce organics in such a dilute vent stream by

the 95 percent control efficiency required the subpart CC standards.

The EPA has agreed to investigate the possibility whereby a facility

could make a case-by-case demonstration of a non-combustion control

device efficiency; the EPA would require the demonstration to show that

a mass of organics would be removed from a given waste, using a

particular enclosure and control device, equivalent to 95 percent

reduction of organics in the tank headspace, if the tank were to be

equipped with a discreet cover. Though such a demonstration would

likely be fairly detailed and costly, commenters have indicated that

they would be interested in pursuing such an option if it were included

in the subpart CC tank enclosure requirements. The EPA considers that

such an equivalency would be consistent with the existing tank

standards; if a technically feasible and verifiable equivalency

demonstration technique can be developed, this could be a reasonable

alternative to the requirement for enclosed combustion devices under

the Level 2 tank enclosure control option. The EPA will continue to

investigate this option, and if a viable approach can be developed,

will publish a future amendment to incorporate it into the subpart CC

Level 2 tank standards.

The EPA has received inquiries as to whether doors are allowed to

be open on level 2 tank enclosures, and how doors are regarded under

the provisions for natural draft openings (NDO) in the ``Procedure T--

Criteria for and Verification of a Permanent or Temporary Total

Enclosure'' under 40 CFR 52.741, appendix B (``Criteria T'')

requirements. The Criteria T evaluation of NDO is intended to evaluate

the effectiveness of the enclosure at capturing emissions from within

the enclosure. Therefore, for purposes of Criteria T, the evaluation of

the enclosure must be conducted on the enclosure as it is operated

during hazardous waste management operations. If the enclosure has a

door that is closed during waste operations, then the open doorway

would not be considered an NDO; however, cracks or openings that exist

around the door when it is closed would be considered NDO. Doors on

enclosures are often very large, to accommodate waste transportation

vehicles; thus, the effectiveness of an enclosure is severely altered

by the positioning of such a door. Obviously, if a door is normally

open during times when hazardous waste is managed in the enclosed tank,

the open doorway would be considered an NDO.

By this clarification, the EPA is not precluding the opening of

enclosure doors. The EPA considers it appropriate to allow enclosure

doors to be open for the same circumstances that tank covers can be

open under paragraph 265.1085(g)(2)(i)(A) and similar paragraphs for

tanks equipped with fixed roofs--when necessary to provide access to

the tank for performing routine inspection, maintenance, or other

activities needed for normal operations. Also commensurate with

paragraph 265.1085(g)(2)(i)(A), following completion of the activity,

the owner or operator should promptly secure the door in the position

it was in during the evaluation of the NDO.

It also warrants clarification that the enclosure door (and other

openings not accounted for as Criteria T NDO) must be closed at all

times that hazardous waste is managed in the enclosed tank (unless the

tank is exempt from subpart CC air emission control requirements), not

just when waste is being treated in the tank. The EPA considers it

inherently obvious within the tank standards that the enclosure around

a tank must be operated in the same manner in which it was evaluated

for the Criteria T requirements. Specifically, paragraphs

Sec. 264.1084(i)(1) and Sec. 265.1085(i)(1) require that the enclosure

be designed and operated in accordance with the Criteria T.

The EPA recognizes that it is not feasible to require all waste

transfer to and from a tank enclosure to be conducted by enclosed

transfer systems. However, the EPA does consider it reasonable to

interpret the provisions of Sec. 264.1084(i)(1) and Sec. 265.1085(i)(1)

to require that the enclosure be operated in the same manner in which

it was evaluated for compliance with Criteria T. Thus, the EPA is

clarifying that enclosure doors and other openings not evaluated as NDO

shall be closed when hazardous waste is managed inside the enclosure,

except when it is necessary to open the door or opening for waste

transfer, equipment access, or worker access.

In the December 6, 1994 final regulation, the regulatory text at

Secs. 264.1084(g) and 265.1085(g) allowed that an owner or operator may

install and operate a safety device on tank covers, closed-vent systems

and control devices. The amendments published on November 25, 1996

amended the tank requirements; in those amendments, the provision for

safety devices was inadvertently omitted from the tank requirements for

floating roof covers. Today's action adds new paragraphs

264.1084(e)(4), 264.1084(f)(4), 265.1085(e)(4), and 265.1085(f)(4)

stating that safety devices are allowed

[[Page 64650]]

on both internal and external floating roof tank covers.

Today's action amends Sec. 264.1084(f)(3)(iii) to correct a

typographical error. The sentence ``Prior to each inspection required

by paragraph (f)(3)(i) or (f)(3)(ii) of this subpart * * *'' is revised

to read as follows, ``Prior to each inspection required by paragraph

(f)(3)(i) or (f)(3)(ii) of this section * * *'' Also, to correct

another typographical error in Sec. 264.1084(f)(3)(i)(D)(4) and

Sec. 265.1085(f)(3)(i)(D)(4), the phrase ``* * * and then dividing the

sum for each seal type by the nominal perimeter of the tank.'' is

revised to read as follows ``* * * and then dividing the sum for each

seal type by the nominal diameter of the tank.''

In the November 25, 1996 final rule amendments (61 FR 59932), an

exemption from the control requirements of subpart CC was added for a

tank, surface impoundment, or container for which all the hazardous

waste placed in the unit meets the Land Disposal Restrictions (LDR) as

specified in Secs. 264.1082(c)(4) and 265.1083(c)(4). However, the EPA

inadvertently failed to add this exemption based on meeting applicable

LDR treatment standards to the exemption from the closed system

transfer requirements. Today's change adds paragraph (iii) under

Secs. 264.1084(j)(2) and 265.1085(j)(2) to correct this oversight. It

was originally the EPA's intent to make this conforming amendment for

closed system transfer requirements in the November 25, 1996 action.

The basic structure of the subpart CC rule is that once a hazardous

waste is subject to the provisions of the rule, all containers, tanks,

and impoundments managing the waste are subject to the rule's

requirements. However, once a waste is treated to destroy or remove

organics in a manner specified in the rule, downstream tanks,

containers, and surface impoundments are not subject to the subpart CC

air requirements to operate the units with covers and/or control

devices.

(Note: Recordkeeping, monitoring, reporting and testing requirements

may apply to those downstream units.) See Section VII.A.2.b, Treated

Hazardous Waste, of the preamble to the final rule (59 FR 62914,

December 6, 1994). The EPA inadvertently failed to codify this core

principle for closed system transfer and is correcting the omission

in today's rule.

F. Standards: Surface Impoundments

Today's action corrects a typographical error in

Secs. 264.1085(b)(2) and 265.1086(b)(2) by revising the phrase ``* * *

paragraph (d) of this sections.'' to read ``* * * paragraph (d) of this

section.'' Also, the EPA is clarifying the requirements of

Secs. 264.1085(d)(1)(iii) and 265.1086(d)(1)(iii) by making a non-

substantive editing change. ``Factors to be considered when selecting

the materials for * * *'' is redrafted to read ``Factors to be

considered when selecting the materials of construction * * *'' To

correct another typographical error in Secs. 264.1085(d)(2)(i)(B) and

Sec. 265.1086(d)(2)(i)(B), ``To remove accumulated sludge or other

residues from the bottom of surface impoundment.'' is revised to read,

``To remove accumulated sludge or other residues from the bottom of the

surface impoundment.''

As is discussed regarding tanks, in Section E of this preamble, the

EPA inadvertently failed to add the exemption for hazardous wastes that

have been treated to meet applicable LDR treatment standards to the

exemption from the closed system transfer requirements for hazardous

waste that is transferred to a surface impoundment. Today's action adds

this exemption to the exemptions from closed system transfer

requirements in Secs. 264.1085(e)(2)(iii) and 265.1086(e)(2)(iii).

G. Standards: Containers

The EPA has received comments from the regulated community

regarding the inspection requirements for containers; these comments

clearly indicate a wide-spread misinterpretation of the rule

requirements relevant to container inspections. Numerous commenters

referenced in their statements to the EPA that the language in

Sec. 264.1086(c)(4)(i) and (d)(4)(i), and the corresponding paragraphs

in 40 CFR part 265, require a visual inspection to occur within 24

hours after acceptance of each regulated container which is transported

to a regulated facility and which contains hazardous waste at the time

it arrives at the facility. They also noted that the requirement for an

inspection to be conducted within a 24-hour time frame is unnecessarily

burdensome in some limited and infrequent situations.

The visual container inspection requirement is intended to provide

means for the facility owner or operator to ensure that the container

has no visible openings or gaps through which organics could be

emitted; see Section IV.I.3 of the preamble, 61 FR 59948, November 25,

1996. The amended container regulations published November 25, 1996,

did not specify the time frame in which the initial visual inspection

must be conducted. The regulation states, ``In the case when * * * the

container is not emptied (i.e., does not meet the conditions for an

empty container as specified in 40 CFR 261.7(b)) within 24 hours after

the container is accepted at the facility, the owner or operator shall

visually inspect the container * * *'' The 24-hour period in the rule

language refers to the time limit on emptying the container that

triggers the visual inspection; the rule language in

Sec. 265.1087(c)(4)(i) and (d)(4)(i), and the corresponding paragraphs

in 40 CFR part 265, as published in November 1996, do not specify the

time frame in which the visual inspections must be conducted. However,

it is the intent of the EPA that the initial inspection be subject to

the same time requirements as were set out in the December 6, 1994,

final regulation (see 40 CFR 265.1089(f)(1) of the December 6, 1994

published regulation (at 59 FR 62947)). Specifically, the container

inspection must be conducted on or before the date that the container

is initially subject to the subpart CC container standards. Thus, for a

container with hazardous waste that is transported to a regulated

facility, the inspection of the container is required on or before the

date that the container is accepted at the facility.

In those situations where it would be infeasible to inspect a

container on the date it is accepted at the facility, for the purpose

of compliance with the subpart CC container standards, it would be

acceptable for the container to be inspected prior to that date. For

example, if an owner or operator of an affected facility accepts a

shipment of containers that arrives at the TSDF on a truck, and the

TSDF owner or operator is unable to conduct a visual inspection of the

containers at the time of acceptance of the container shipment, it is

acceptable under the rule to have the generator or transporter perform

the visual inspection of the individual containers before or during

loading of the containers onto the truck for transport to the affected

facility. The transporter or generator could provide the recipient TSDF

with some level of information (e.g., written documentation) to confirm

the inspection has been conducted on or before the date that the

container is accepted at the facility. It is likely that the TSDF owner

or operator would then perform their own visual inspection when

possible, (e.g., at the time that the containers are unloaded from the

truck at the TSDF). The EPA considers the use of generator or

transporter supplied information to comply with the visual inspection

requirements similar to owner or operator use of generator

[[Page 64651]]

information regarding the organic content of a hazardous waste as a

means to comply with the waste determination (i.e., VO concentration

determination) requirements of the rule. It should be noted that in

either case, it is ultimately the responsibility of the owner or

operator of the affected facility to be in compliance with all the

applicable regulatory requirements. The EPA is amending the language in

Sec. 264.1086(c)(4)(i) and (d)(4)(i), and the corresponding paragraphs

in 40 CFR part 265, to clarify that the 24-hour period noted in the

rule refers to the time frame for emptying a container, and that this

24-hour criterion then triggers the need for a visual inspection that

must be conducted on or before the date that the container is accepted

at the facility.

The amendment to Secs. 264.1086 (c)(4)(i) and (d)(4)(i), and the

corresponding language in part 265, also clarify the phrase ``accepted

at the facility.'' For the purposes of this inspection requirement for

containers, the date of acceptance is the date of signature that the

facility owner or operator enters on Item 20 of the Uniform Hazardous

Waste Manifest of the appendix to 40 CFR part 262 (EPA Form 8700-22),

as required under subpart E of this part, at Sec. 264.71 and

Sec. 265.71. The instructions to EPA Form 8700-22 at Item 20, Facility

Owner or Operator: Certification of Receipt of Hazardous Materials

Covered by This Manifest Except as Noted in Item 19, state, ``Print or

type the name of the person accepting the waste on behalf of the owner

or operator of the facility. That person must acknowledge acceptance of

the waste described on the Manifest by signing and entering the date of

receipt.'' The EPA considers acceptance of the waste to occur at the

time of manifest signature. This has been the EPA's consistent

interpretation of this phrase, and is the guidance that EPA has

supplied both verbally and in written seminar materials.

The EPA has received questions regarding when the opening of a

cover or closure device is allowed on containers. Several of these

questions have concerned the opening of the vent on vacuum trucks

during loading operations and the opening of containers vents to allow

venting of vapors for the purpose of worker safety. With regard to

vacuum trucks, the EPA has always intended the subpart CC final rules

to allow containers to vent emissions directly to the atmosphere during

filling operations. This would include use of a vacuum system to fill a

tank truck (i.e., a container under RCRA). Although the December 6,

1994 final rules only allowed the opening through which waste was

transferred to be open during waste transfer, this was inadvertent; the

EPA intended to allow venting during waste transfer operations, either

through the opening through which the waste is transferred, or through

a second opening that would serve as a vent. To this effect, the EPA

amended the subpart CC rules on February 9, 1996 to clarify this point

(see 61 FR 4909). The fact that EPA is not requiring control of vacuum

trucks is also discussed in the document Hazardous Waste Treatment,

Storage, and Disposal Facilities--Background Information for

Promulgated Organic Air Emission Standards for Tanks, Surface

Impoundments, and containers; see EPA-453/R-94-076b, November 1994,

Section 6.6.5. where it is clear that the EPA is fully aware that a

practical means of controlling the exhaust from the vacuum pump on a

vacuum truck has not been demonstrated. The EPA is now reiterating that

these types of systems are allowed under the subpart CC container

rules.

In response to commenters, EPA is providing clarification that

venting of containers for worker safety is also allowed under the

subpart CC container rules. Provision (iii) of Secs. 264.1086(c)(3) and

265.1087(c)(3), which allows opening of a closure device or cover when

access inside is needed, would allow the owner or operator to vent a

container prior to sending a worker into a tanker or other container

for clean-out. This type of venting is necessary to avoid an unsafe

condition when entering a confined space. For example, venting both

before and during the cleaning operations is needed to reduce the

organic vapor concentration below the lower explosive limit (LEL) for

worker safety. In addition, provision (v) of Secs. 264.1086(c)(3) and

265.1087(c)(3), which allows opening of a safety device at any time

clearly shows the EPA intent regarding the implementation measures

necessary to avoid an unsafe condition. The EPA considers that the

current rule language allows this type of venting for maintenance of

worker safety, and is providing this preamble discussion in response to

requests from commenters.

An additional interpretive clarification is required, regarding the

transfer requirements to, from, and among hazardous waste containers,

specifically when transfers occur in conjunction with hazardous waste

stabilization operations.

The first clarification addresses whether the addition of sorbent

materials is considered to be waste stabilization for the purposes of

compliance with subpart CC, and thus, whether such activities are

required to be conducted in containers equipped with level 3 controls.

There has been specific inquiry as to whether the subpart CC level 3

container standards apply in situations where an owner or operator

``transfers'' hazardous waste from one container, such as a bulk

container or roll off box, to a second unit, and adds the sorbent to

the waste after each scoop of waste is placed in the second unit. The

container standards at Sec. 264.1086(b)(2) state that, ``* * * the

owner or operator shall control air pollutant emissions from the

container in accordance with the Container Level 3 standards specified

in paragraph (e) of this section at those times during the waste

stabilization process when the hazardous waste in the container is

exposed to the atmosphere.'' In its definition of waste stabilization

at 40 CFR 265.1081, the EPA has stated that stabilization includes the

elimination of free liquids, but does ``not include the adding of

absorbent materials to the surface of a waste, without mixing,

agitation, or subsequent curing, to absorb free liquid.'' The

associated preamble language clearly defined what activities EPA was

excluding from the waste stabilization definition. See 61 FR at 4905,

February 9, 1996. That preamble discussion stated, ``The EPA is also

amending the term ``waste stabilization'' to specifically exclude the

process of adding non-reactive absorbent material to the surface of a

waste. The EPA recognizes that to meet certain criteria under the Land

Disposal Restrictions, or to prevent the introduction of liquid into

certain combustion devices, owners or operators apply absorbent

material to the surface of wastes just prior to disposal. In such

procedures, the container is opened, absorbent material is placed on

the surface of the waste to absorb a relatively small amount of liquid,

and the container is closed. No mixing or agitation is involved in the

process.''

It is clear from the text of the regulation, as well as the

February 9, 1996 preamble discussion, that addition of absorbent, even

with very limited mixing or agitation, must be performed in compliance

with the container level 3 standards. In fact, this is the literal

meaning of the provision--such ``transfer'' operations result in mixing

of the sorbent material with the waste, a condition that qualifies as

waste stabilization under subpart CC, and requires container level 3

controls. (See also the discussion of the EPA's intentions regarding

requirements for containers in the February 9, 1996

[[Page 64652]]

preamble at 61 FR 4903, which makes clear that a hazardous waste

transfer operation conducted as described above would not satisfy the

EPA's stated intent with regard to the general transfer requirements of

the container standards. Therefore, the type of transfer operation

described above can only occur if the containers meet the container

level 3 requirements. The EPA repeats that this requirement has a sound

environmental basis. Containers would remain open to the environment

during such operations, and the volatile hazardous constituents will be

released. The reaction of the sorbent materials with the hazardous

waste would, in fact, be likely to increase the volatilization of the

organics in the waste, while the container would remain uncovered as

subsequent layers of waste and sorbent were applied. Such a situation

would result in organic emissions that the EPA considers most

appropriately controlled under the container level 3 requirements, and

the rules so require.

The EPA recognizes, however, that there are circumstances where

addition of sorbent is not stabilization and therefore will not trigger

subpart CC container standards. This is why the rule states that

stabilization ``does not include the adding of absorbent materials to

the surface of a waste, without mixing, agitation, or subsequent

curing, to absorb free liquid.'' The chief example EPA has provided of

such an activity is addition of sorbent just prior to the final

disposition of the material (the situation given in the February 9,

1996 preamble discussion). Other examples would involve situations

where tanks are covered immediately after addition of sorbent and stay

covered thereafter.

Examples could occur when sorbent is added to a container at the

end of a work day, or at the final completion of a waste transfer. The

EPA's technical basis for allowing sorbent material to be placed on the

waste surface in these limited situations, we repeat, is that any

potential for volatilization to the atmosphere of the organics in the

waste would be prevented by the immediate application of the container

cover.

A similar issue has come to the attention of EPA, regarding the

container standards at Sec. 264.1086(d)(2) and Sec. 265.1087(d)(2),

which require that transfer of hazardous waste in or out of a container

``* * * be conducted in such a manner as to minimize exposure of the

hazardous waste to the atmosphere, to the extent practical * * *'' This

provision was an amendment to the more extensive transfer requirements

that were promulgated in the December 6, 1994 rule. The November 25,

1996 amendment also revised the tank and surface impoundment transfer

requirements such that only transfer between and among subpart CC-

regulated tanks and surface impoundments are required to be conducted

in an enclosed transfer system. This amendment was made in recognition

that it is often impractical for waste in containers to be transferred

to tanks or surface impoundments through an enclosed system. However,

it is the EPA's intent that transfer of hazardous waste among

containers, and between containers and surface impoundments or tanks,

be conducted in a manner to minimize waste exposure to the atmosphere.

See Sec. 264.1084(j), Sec. 264.1085(e), Sec. 264.1086(d)(2) and

corresponding paragraphs in part 265.

Members of the regulated community have questioned whether it is

possible to evade these less extensive transfer requirements by

including an intervening non-subpart CC unit when performing a transfer

of hazardous waste. Specifically, certain regulated facilities have

discussed transferring waste from a subpart CC-regulated unit (e.g., a

tank or container) to a unit not subject to subpart CC (e.g., the floor

of a containment building), then subsequently transferring the waste to

a second subpart CC-regulated unit. Since the containment building is

not a unit regulated by subpart CC, the subpart CC standards do not

impose transfer requirements to or from containment buildings; thus,

the facilities suggest that the subpart CC transfer requirements would

be met. As noted above, the subpart CC container requirements state

that transfer of hazardous waste to and from a regulated container

shall be conducted in a manner which minimizes the waste's exposure to

the atmosphere, considering practical factors. The EPA considers an

unnecessary and open-air transfer of waste to or from a container,

conducted in whole or in part, to avoid the subpart CC container (or

tank) requirements, to not meet the obvious intent of the container

transfer requirement (e.g., see 264.1086(d)(2)). The EPA is aware of

waste transfer methods that would be more effective in minimizing

exposure of the waste to the atmosphere--the owner or operator is

responsible for conducting waste transfer in such a manner as to

minimize exposure of the hazardous waste to the atmosphere. Rather than

leaving this issue open to interpretation, the EPA will instruct permit

writers to invoke omnibus authority under RCRA section 3005(c)(3) to

assure control of such transfers where necessary to protect human

health and the environment.

There are other aspects of the container standards that also

require some further clarification; one point that needs some

additional explanation is in regard to the Department of Transportation

(DOT) compliance demonstration option for containers. The subpart CC

container standards, as amended November 25, 1996, allow three options

for compliance demonstration, one of which is through compliance with

certain applicable DOT regulations for packaging of hazardous materials

for transportation. Commenters have stated that they consider the

specification in subpart CC, as to which DOT packaging requirements

qualify for that compliance option, to have resulted in an overly

stringent requirement. However, the EPA has clarified that

demonstration of compliance through the use of certain DOT packagings

is only one approach to demonstrating compliance with the container

standards. The regulated industry has indicated to EPA that the vast

majority of hazardous waste that is shipped in DOT transport packagings

meets the requirements for container level 1 standards. Thus, if a

facility owner or operator is using a DOT packaging which is not among

those specified under the subpart CC container standards, the facility

owner or operator must conduct a visual inspection to determine that

there are no visible openings, cracks, etc. in the container. See

Sec. 265.1087(c)(1)(ii). The EPA considers the existing regulatory

language to adequately convey this intent, and is including this

preamble discussion in response to commenters' requests.

The container option to comply with applicable DOT packaging

regulations, described at 40 CFR 265.1087(f) and 264.1086(f), includes

four requirements which must all be met to comply with the subpart CC

compliance demonstration. The regulatory language of that paragraph

clearly indicates (in fact, literally indicates) that compliance with

all four of the subparagraphs at Sec. 265.1087(f)(1) through

Sec. 265.1087(f)(4) is required, since the requirements are not

presented as alternatives. The following paragraphs provide a detailed

description of each of the four requirements found at Sec. 265.1087(f).

The first requirement, found at 40 CFR 265.1087(f)(1), specifies

that the container must meet the applicable requirements specified in

40 CFR part 178 or part 179. It is EPA's intent to require that in

order to comply with 40 CFR part 265.1087(f), a container must

[[Page 64653]]

be subject to 49 CFR part 178 or part 179; it is also the EPA's intent

to require that such a container be in compliance with all the

requirements of 49 CFR parts 178 and 179 that are applicable. (Again,

this is the direct and literal reading of the provision.) In developing

the final rule, the EPA determined that containers subject to and in

compliance with these requirements would achieve the appropriate level

of air emission control; see the preamble discussion at Section IV.I.1,

61 FR 59947, November 25, 1996. The Agency could not make that finding

for containers not subject to these provisions. A container not subject

to 49 CFR part 178 or 179 is thus not eligible to comply with the

subpart CC rule through the requirements of 40 CFR 265.1087 (c)(1)(i)

or (d)(1)(i), nor the corresponding paragraphs in 40 CFR part 264; it

would have to comply with the subpart CC rule through the requirements

of 40 CFR 265.1087 (c)(1)(ii), (c)(1)(iii), (d)(1)(ii) or d(1)(iii), or

the corresponding paragraphs in 40 CFR part 264, as appropriate.

The second requirement within 40 CFR 265.1087(f) for DOT-compliant

containers stipulates that the hazardous waste must be managed in the

DOT container in accordance with all the requirements contained in 49

CFR part 107 subpart B, part 172, part 173, and part 180 that are

applicable to that container and the waste managed in that container.

The EPA listed these regulatory parts because they were characterized

by the industry and by DOT as the parts which describe the requirements

for management of hazardous waste, for the types of containers that are

specified in 49 CFR parts 178 and 179. The reference to 49 CFR part 107

subpart B is included to recognize the exemptions for containers that

have been determined by DOT to be equivalent or superior to those

required within 49 CFR part 178 and 179 standards.

The third and fourth requirements, listed in 40 CFR 265.1087(f)(3)

and (f)(4) and their corresponding paragraphs in 40 CFR part 264, state

that, ``* * * For the purpose of complying with this subpart, no

exceptions to the 40 CFR part 178 and part 179 regulations are allowed

except as provided for in paragraph (f)(4) of this section,'' and ``For

a lab pack that is managed in accordance with the requirements of 40

CFR part 178 for the purpose of complying with this subpart, an owner

or operator may comply with the exceptions for combination packagings

specified in 40 CFR 173.12(b).'' These requirements indicate that the

DOT-authorized container must be in compliance with all applicable

requirements in 49 CFR parts 178 and 179. Paragraph 265.1087(f)(3) of

the subpart CC rule specifically means that for the purposes of the

subpart CC rule provisions, compliance with 49 CFR parts 178 and 179 is

required, and no exceptions to those provisions are allowed (unless the

container were a lab pack, as described in Sec. 265.1087(f)(4)). As

with the earlier provisions discussed above, this is the literal

meaning of the provision. There are many exceptions, both explicit and

implicit, to the 49 CFR part 178 and 179 standards which are contained

in other sections of the DOT standards. The EPA's intent in 40 CFR

265.1087(f)(3) is to disallow any regulatory provision which removes or

alters a requirement contained in 49 CFR parts 178 or 179, regardless

of where that disallowing regulatory provision is codified, or whether

that provision is specifically described as an ``exception.'' For

instance, 49 CFR 173.28(e) states that a non-reusable container may be

reused for certain circumstances; however, the allowance of that

paragraph would not be recognized for compliance with the subpart CC

container standards at 40 CFR 265.1087(f) or 40 CFR 264.1086(f). As

another example, 49 CFR 173.204 contains an implicit exception for

certain hazardous materials that states, ``packaging need not conform

to the requirements of part 178.'' However, if that packaging were used

to manage a hazardous waste subject to the container regulations of the

subpart CC rule, the effect of 40 CFR 265.1087(f)(3) would be to

require that, for compliance with the subpart CC rule, such packaging

must comply with the requirements of 49 CFR part 178. In this example,

40 CFR 265.1087(f) and 264.1086(f) would disallow the exception to 49

part 178 provided by 49 CFR 173.204. Thus, as a general matter, 40 CFR

265.1087(f) and 264.1086(f) have the intended effect of requiring

strict compliance with all applicable requirements of 49 CFR parts 178

and 179 (other than the exception for lab packs at 49 CFR 173.12(b)),

for the purpose of the DOT compliance option within the subpart CC

container standards. Strict compliance with these provisions is

necessary to ensure that the emission reduction intended by the rule is

achieved.

Today's action also corrects two typographical errors in

Sec. 264.1086. In Sec. 264.1086(c)(2), ``* * * Organic vapor

permeability, the effects of the contact with the hazardous waste * *

*'' is revised to read as follows, ``Organic vapor permeability; the

effects of the contact with the hazardous waste * * *'' and in

Sec. 264.1086(d)(2), ``* * * any one of the following: a submerged-fill

pipe * * *'' is revised to read as follows, ``* * * any one of the

following: A submerged-fill pipe * * *''

For containers required to use Level 2 controls under the subpart

CC standards, one option under the final rules requires that the

hazardous waste be managed in a ``container that operates with no

detectable organic emissions.'' (See Secs. 264.1086(d)(ii) and

265.1087(d)(ii).) The test for conducting no detectable organic

emissions for the purpose of complying with this requirement must be

conducted in accordance with the procedures specified in Method 21 of

40 CFR part 60, appendix A. However, under subpart CC, there are no

requirements for periodic Method 21 leak monitoring of containers. (See

Section IV.I.3 of the preamble to the final rule, 61 FR 59948, November

25, 1996.) Any Method 21 monitoring to determine if the containers

operate with no detectable organic emissions is conducted at the

owner's or operator's discretion. In order to clarify this point, the

EPA has amended the language in paragraph (g) of the container

standards.

H. Standards: Closed-Vent Systems and Control Devices

The inspection and monitoring requirements under paragraph (c) of

Sec. 264.1087 and Sec. 265.1088 are being amended to clarify that the

inspection and monitoring procedures specifically cited in paragraph

(c)(7) are applicable to closed-vent systems as well as to the control

devices. The reference to closed-vent system in paragraph (c)(7) was

inadvertently left out of the sentence specifying what shall be

inspected and monitored; however, the procedures specified in the

paragraph did cite the requirements applicable to closed-vent systems,

and it was thus the EPA's intent that closed-vent systems be included.

The EPA has received several comments concerning how a TSDF owner

or operator would demonstrate compliance with the 95 percent removal

requirement (see Sec. 265.1088(c)(1)(i)) for a vent stream with low

concentration organic vapor entering an organic air emission control

device. The commenters contended that the 95 percent removal or

destruction performance demonstration is not feasible for low

concentration organic streams. However, the EPA has not at this time

found adequate technical reasons to change the 95 percent control

requirement. Similar requirements have been included in other

regulations controlling air emissions from process vents on hazardous

and non-hazardous

[[Page 64654]]

waste management operations (e.g., subpart DD in 40 CFR part 63) and

guidance regarding compliance with the 95 percent control requirement

has been published by the EPA, see EPA-450/3-89-021, Hazardous Waste

TSDF--Technical Guidance Document for RCRA Air Emission Standards for

Process Vents and Equipment Leaks; or EPA-450/3-91-007, Alternative

Control Technology Document--Organic Waste Process Vents. The EPA has

also published guidance regarding the control of low concentration

organic vapor streams; see EPA-450/R-95-003, Survey of Control

Technologies for Low concentration Organic Vapor Gas Streams.

It has been suggested that the EPA include the use of an activated

carbon adsorption control system as a specified technology and/or use

of surrogate compounds to demonstrate compliance. Again, the EPA does

not have an adequate technical basis to revise the control device

requirements to include a carbon adsorption control equipment

specification. Carbon adsorption systems require considerable

constituent and other site-specific information for proper control

device design, unlike combustion systems, for which organic control

efficiency is less dependent on the particular organic constituent

present in the gas stream. Therefore, the EPA has not included a carbon

adsorption equipment specification in the rule as an alternative to the

95 percent organic removal efficiency demonstration.

Commenters also have requested that the EPA amend the control

device requirements of the rule to allow that the temperature sensor

for condensers be placed in the coolant exhaust rather than in the

exhaust vent stream from the condenser exit. The EPA selected this

monitoring location because its was judged that monitoring the exhaust

gas provided a better and more direct characterization of the

performance of the condenser. In addition, the standards for closed-

vent systems and control devices in subpart AA (see Sec. 264.1033(i))

allow that ``an alternative operational or process parameter may be

monitored if it can be demonstrated that another parameter will ensure

that the control device is operated in conformance with these standards

and the control devices's design specifications.'' This same allowance

is not contained in the part 265 standards for interim status

facilities because the rules do not have provisions for reporting and

thus there is no direct mechanism for Agency review of the

appropriateness of the alternative parameter. The EPA did not seek to

burden the owner or operator of interim status facilities with the

additional reporting requirements associated with the technical

demonstration of equivalent characterization of performance. For those

facilities that are monitoring an alternative parameter, e.g.,

condenser coolant exhaust rather than the condenser vent stream

exhaust, in compliance with provisions of a Clean Air Act regulation

such as the HON, the owner or operator of the unit may be able to

comply with the RCRA air rules through one of the Clean Air Act

applicability exemptions contained in the RCRA air rules at

Secs. 264.1030(d) and 265.1030(d) of subpart AA and

Secs. 264.1080(b)(7) and 265.1080(b)(7) of subpart CC. The EPA

continues to believe that the monitoring requirements specified in the

40 CFR part 265 rules are reasonable, and the EPA does not consider it

appropriate to allow alternative parameters to be monitored without a

mechanism for Agency review of the alternative approach (e.g., a Clean

Air Act or RCRA permit). Therefore, the EPA is not amending the rule in

this regard.

As previously noted in Section III.C of this preamble, the November

25, 1996, amendments to the subpart CC standards for control devices

and closed vent systems (at Sec. 265.1088(c)(2)(i)), added provisions

to allow up to 240 hours per year for periods of planned routine

maintenance of a control device, during which time the control device

is not required to meet the performance requirements for emission

reductions specified in the rule. The EPA has received comments that

control devices such as boilers, industrial furnaces, and incinerators

often require routine maintenance that takes longer than 10 days per

year. In connection with this, the commenters also requested that the

EPA provide an extension to the repair period so long as the owner or

operator documents the decision to use an extension by including

certain material in the operating record. The EPA considers the

emissions from hazardous waste to be a significant source of nationwide

organic air emissions, and does not consider it appropriate to lengthen

the time that a control device may be out of service for routine

maintenance, while hazardous waste is being managed in the unit. As

promulgated in December 1994, the subpart CC standards did not allow

provisions for planned maintenance time, because the modeled emission

reductions attributed to the implementation of these standards were

based on control device operation at all times that affected waste is

managed in a unit requiring a control device. In the November 1996

amendments, the EPA revised the control device provisions in

recognition that planned or routine maintenance of control devices,

within reason, would limit the unplanned malfunctions. However, the EPA

continues to consider that 240 hours per year is an appropriate maximum

amount of time for hazardous waste to be managed in units without the

required control device operating. Thus, the EPA is not amending this

provision. Instances of control device down time beyond the allowed 240

hours for maintenance would be considered periods in which the facility

is not in compliance with the control requirements of the rule.

The EPA is today clarifying that the requirements for management of

spent carbon, at Sec. 264.1088(c)(3)(ii) and Sec. 265.1089(c)(3)(ii)

apply only to carbon that is a hazardous waste. This clarification has

been made in both the February 9, 1996 technical amendments (see 61 FR

at 4910) and the November 25, 1996 final rule amendments (see 61 FR at

59936). When amending the regulatory text at Sec. 264.1087(c)(3)(ii)

and Sec. 265.1088(c)(3)(ii) in the November 25, 1996 action, the EPA

inadvertently omitted the phrases that state the requirement applies to

carbon that is a hazardous waste, and the requirement applies

regardless of the VO concentration of the carbon. These statements had

been included in the regulatory text prior to that November 25 Federal

Register document; today's amendment clarifies the EPA's intent by

correcting that omission.

I. Recordkeeping and Reporting Requirements

In the November 25, 1996 final rule amendments (61 FR 59952 and

59971) to parts 264 and 265, the subpart CC applicability was amended

to exempt any hazardous waste management unit that the owner or

operator certifies is equipped with and operating air emission controls

in accordance with an applicable Clean Air Act regulation codified

under 40 CFR part 60, part 61, or part 63. Though the requirement for

owner or operator certification was established at Sec. 264.1080(b)(7),

the EPA inadvertently failed to add the associated recordkeeping

requirement to the recordkeeping sections of subpart CC. In order to

establish minimum recordkeeping requirements for those units that are

exempted from the subpart because the unit is in compliance with

control requirements under a Clean Air Act regulation, the subpart CC

recordkeeping requirements are being amended by today's action. A

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new paragraph (j) is being added to Sec. 264.1089 and Sec. 265.1090

that requires the owner or operator to record and maintain: (1) a

certification that the waste management unit is equipped with and

operating air emission controls in accordance with the requirements of

an applicable Clean Air Act regulation codified in 40 CFR parts 60, 61,

or 63; and (2) identification of the specific requirements with which

the unit is in compliance.

Adding these requirements also necessitated a change to paragraph

(a) of Sec. 264.1089 and Sec. 265.1090 in order to include paragraph

(j) in the list of information specified for recordkeeping under the

subpart.

In addition, today's action corrects typographical errors in

Sec. 264.1089(a) and Sec. 265.1090(a). In the last sentence of

Sec. 264.1089(a), ``* * * air emission controls specified in

Secs. 264.1084 through 264.1087 of this subpart in accordance with the

conditions specified in Sec. 264.1084(d) of this subpart.'' is revised

to read as follows, ``* * * air emission controls specified in

Secs. 264.1084 through 264.1087 of this subpart in accordance with the

conditions specified in Sec. 264.1080(d) or Sec. 264.1080(b)(7),

respectively, of this subpart.'' Similarly, in the last sentence of

Sec. 265.1090(a), ``* * * air emission controls specified in

Secs. 264.1084 through 264.1087 of this subpart in accordance with the

conditions specified in Sec. 264.1084(d) of this subpart'' is revised

to read as follows, ``* * * air emission controls specified in

Secs. 265.1085 through 265.1088 of this subpart in accordance with the

conditions specified in Sec. 265.1080(d) or Sec. 265.1080(b)(7),

respectively, of this subpart.''

Also in the recordkeeping sections of subpart CC, paragraph (f) of

Sec. 264.1089 and Sec. 265.1090 are being amended to provide the full

citation referenced in the paragraph; the references to

Sec. 264.1082(c)(2) and Sec. 265.1083(c)(2) are being expanded to state

(c)(2)(i) through (c)(2)(vi)'' in paragraph (f) to cover specifically

each of the exemption options, for which a waste determination for a

treated hazardous waste is required.

In a further correction, paragraph (b)(1)(ii)(B) of Sec. 264.1089

and Sec. 265.1090 is being amended to correct the sentence structure

and eliminate the redundant phrase ``the following information.''

J. Appendix VI to Part 265

Appendix VI to part 265 is revised and reprinted in total. The

revisions made by today's action correct printing errors in the

November 25, 1996, final rule amendments (61 FR 59993), reformat the

list to be alphabetical, correct typographical errors in compound names

(for example, dimethyl hydrazine (1,) is corrected to read 1,1-dimethyl

hydrazine), and add CAS numbers that were not available in the November

25, 1996, final rule amendments.

There has been some uncertainty among the regulated community with

respect to whether or not cyanide (CN) is classified as an ``organic''

compound. For purposes of subpart CC, cyanide is listed in Appendix VI

to Part 265 as one of the compounds with a Henry's Law Constant less

than 0.1 Y/X and as such it is not necessary to quantify CN as a part

of the volatile organic concentration determination.

VI Administrative Requirements

A. Docket

Six RCRA dockets contain information pertaining to today's

rulemaking: (1) RCRA docket number F-91-CESP-FFFFF, which contains

copies of all BID references and other information related to the

development of the rule up through proposal; (2) RCRA docket number F-

92-CESA-FFFFF, which contains copies of the supplemental data made

available for public comment prior to promulgation; (3) RCRA docket

number F-94-CESF-FFFFF, which contains copies of all BID references and

other information related to development of the final rule following

proposal; (4) RCRA docket number F-94-CE2A-FFFFF, which contains

information pertaining to waste stabilization operations performed in

tanks; (5) RCRA docket number F-95-CE3A-FFFFF, which contains

information about potential final rule revisions made available for

public comment; and (6) RCRA docket number F-96-CE4A-FFFFF, which

contains a copy of each of the comment letters submitted in regard to

the revisions that the EPA was considering for the final subpart CC

standards. The public may review all materials in these dockets at the

EPA RCRA Docket Office.

The EPA RCRA Docket Office is located at Crystal Gateway, 1235

Jefferson Davis Highway, First Floor, Arlington, Virginia. Hand

delivery of items and review of docket materials are made at the

Virginia address. The public must have an appointment to review docket

materials. Appointments can be scheduled by calling the Docket Office

at (703) 603-9230. The mailing address for the RCRA Docket Office is

RCRA Information Center (5305W), 401 M Street SW, Washington, DC 20460.

The Docket Office is open from 9 a.m. to 4 p.m., Monday through Friday,

except for Federal holidays.

B. Paperwork Reduction Act

The information collection requirements of the previously

promulgated RCRA air rules were submitted to and approved by the Office

of Management and Budget (OMB). A copy of this Information Collection

Request (ICR) document (OMB control number 1593.02) may be obtained

from Sandy Farmer, Information Policy Branch (2136); U.S. Environmental

Protection Agency; 401 M Street, SW; Washington, DC 20460 or by calling

(202) 260-2740.

Today's amendments to the RCRA air rules should have only a minor

impact on the information collection burden estimates made previously,

and that impact is expected to be a reduction. The changes consist of

new definitions, alternative test procedures, clarifications of

requirements, and additional compliance options. The changes are not

additional requirements, but rather, are reductions in previously

published requirements. The overall information-keeping requirements in

the rule are being reduced. Consequently, the ICR has not been revised.

C. Executive Order 12866

Under Executive Order 12866, the EPA must determine whether the

proposed regulatory action is ``significant'' and, therefore, subject

to the OMB review and the requirements of the Executive Order. The

Order defines ``significant'' regulatory action as one that is likely

to lead to a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety in State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligations of

recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

The RCRA subpart CC air rules published on December 6, 1994, were

considered significant under Executive Order 12866, and a regulatory

impact analysis (RIA) was prepared. The amendments published today

clarify the

[[Page 64656]]

rule, provide more compliance alternatives, make certain regulatory

provisions more lenient, and correct structural problems with the

drafting of some sections. The OMB has evaluated this action, and

determined it to be non-significant; thus it did not require their

review.

D. Regulatory Flexibility

This rule is not subject to notice and comment rulemaking

requirements and therefore is not subject to the Regulatory Flexibility

Act. However, for the reasons discussed in the December 6, 1994 Federal

Register (59 FR 62923), this rule does not have a significant impact on

a substantial number of small entities. The changes to the rule do not

add new control requirements to the December 1994 rule. The amendments

in fact reduce the already-existing requirements. Therefore, the

amendments are also not considered significant.

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2) given that it amends the rule published in 1994 to reduce

the extent of regulation.

E. Unfunded Mandates Act

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), the EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate, or to the private sector, of $100

million or more. Under section 205, the EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires the EPA to establish a plan for informing and advising any

small governments that may be significantly or uniquely impacted by the

rule.

The EPA has determined that the action promulgated today does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate or to the private sector. Therefore, the requirements of the

Unfunded Mandates Act do not apply to this action.

F. Immediate Effective Date

The EPA has determined to make today's action effective

immediately. The EPA believes that the corrections being made in

today's action are either interpretations of existing regulations which

do not require prior notice and opportunity for comment, or are

technical corrections of obvious errors in the published rules (for

example, corrections to regulations inconsistent with or not carrying

out statements in the preamble or Background Information Document).

Comment on such changes is unnecessary, within the meaning of 5 U.S.C.

553(b)(3)(B). In addition, the EPA notes that many of these

clarifications result from the public meeting process, so that the

Agency has provided a measure of opportunity for comment.

VII. Legal Authority

These regulations are amended under the authority of sections 2002,

3001-3007, 3010, and 7004 of the Solid Waste Disposal Act of 1970, as

amended by RCRA, as amended (42 U.S.C. 6921-6927, 6930, and 6974).

List of Subjects

40 CFR Parts 264 and 265

Environmental protection, Air pollution control, Container, Control

device, Hazardous waste, Inspection, Monitoring, Reporting and

recordkeeping requirements, Surface impoundment, Tank, TSDF, Waste

determination.

40 CFR Part 270

Environmental protection, Administrative practice and procedure,

Air pollution, Confidential business information, Hazardous waste,

Permit modification, Reporting and recordkeeping requirements.

Dated: November 28, 1997.

Richard D. Wilson,

Acting Asssistant Administrator for Air and Radiation.

For the reasons set out in the preamble, title 40, chapter I, parts

264, 265, and 270 of the Code of Federal Regulations are amended as

follows:

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE

TREATMENT, STORAGE, AND DISPOSAL FACILITIES

1. The authority citation for part 264 continues to read as

follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924 and 6925.

Subpart B--General Facility Standards

2. Section 264.15 is amended by revising paragraph (b)(4), and

leaving the ``COMMENT'' at the end of the paragraph to read as follows:

Sec. 264.15 General inspection requirements.

* * * * *

(b) * * *

(4) The frequency of inspection may vary for the items on the

schedule. However, the frequency should be based on the rate of

deterioration of the equipment and the probability of an environmental

or human health incident if the deterioration, malfunction, or any

operator error goes undetected between inspections. Areas subject to

spills, such as loading and unloading areas, must be inspected daily

when in use. At a minimum, the inspection schedule must include the

items and frequencies called for in Secs. 264.174, 264.193, 264.195,

264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033,

264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089 of this

part, where applicable.

* * * * *

Subpart E--Manifest System, Recordkeeping, and Reporting

3. Section 264.73 is amended by revising paragraph (b)(6) to read

as follows:

Sec. 264.73 Operating record.

* * * * *

(b) * * *

(6) Monitoring, testing or analytical data, and corrective action

where required by subpart F of this part and Secs. 264.19, 264.191,

264.193, 264.195, 264.222, 264.223, 264.226, 264.252--264.254, 264.276,

264.278, 264.280, 264.302--264.304, 264.309, 264.347, 264.602,

264.1034(c)--264.1034(f), 264.1035, 264.1063(d)--264.1063(i), 264.1064,

and 264.1082 through 264.1090 of this part.

* * * * *

Subpart AA--Air Emission Standards for Process Vents

4. Section 264.1030 is amended by revising paragraphs (b)(3) and

(c), leaving the ``NOTE'' at the end of paragraph (c), and adding

paragraph (e), to read as:

Sec. 264.1030 Applicability.

* * * * *

(b) * * *

(3) A unit that is exempt from permitting under the provisions of

40

[[Page 64657]]

CFR 262.34(a) (i.e., a ``90-day'' tank or container) and is not a

recycling unit under the provisions of 40 CFR 261.6.

(c) For the owner and operator of a facility subject to this

subpart and who received a final permit under RCRA section 3005 prior

to December 6, 1996, the requirements of this subpart shall be

incorporated into the permit when the permit is reissued in accordance

with the requirements of 40 CFR 124.15 or reviewed in accordance with

the requirements of 40 CFR 270.50(d). Until such date when the owner

and operator receives a final permit incorporating the requirements of

this subpart, the owner and operator is subject to the requirements of

40 CFR 265, subpart AA.

* * * * *

(e) The requirements of this subpart do not apply to the process

vents at a facility where the facility owner or operator certifies that

all of the process vents that would otherwise be subject to this

subpart are equipped with and operating air emission controls in

accordance with the process vent requirements of an applicable Clean

Air Act regulation codified under 40 CFR part 60, part 61, or part 63.

The documentation of compliance under regulations at 40 CFR part 60,

part 61, or part 63 shall be kept with, or made readily available with,

the facility operating record.

* * * * *

5. Section 264.1031 is amended by revising the definition of ``In

light liquid service'' to read as follows:

Sec. 264.1031 Definitions.

* * * * *

In light liquid service means that the piece of equipment contains

or contacts a waste stream where the vapor pressure of one or more of

the organic components in the stream is greater than 0.3 kilopascals

(kPa) at 20 deg.C, the total concentration of the pure organic

components having a vapor pressure greater than 0.3 kilopascals (kPa)

at 20 deg.C is equal to or greater than 20 percent by weight, and the

fluid is a liquid at operating conditions.

* * * * *

6. Section 264.1033 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 264.1033 Standards: Closed-vent systems and control devices.

(a) * * *

(2)(i) The owner or operator of an existing facility who cannot

install a closed-vent system and control device to comply with the

provisions of this subpart on the effective date that the facility

becomes subject to the provisions of this subpart must prepare an

implementation schedule that includes dates by which the closed-vent

system and control device will be installed and in operation. The

controls must be installed as soon as possible, but the implementation

schedule may allow up to 30 months after the effective date that the

facility becomes subject to this subpart for installation and startup.

(ii) Any unit that begins operation after December 21, 1990, and is

subject to the provisions of this subpart when operation begins, must

comply with the rules immediately (i.e., must have control devices

installed and operating on startup of the affected unit); the 30-month

implementation schedule does not apply.

(iii) The owner or operator of any facility in existence on the

effective date of a statutory or EPA regulatory amendment that renders

the facility subject to this subpart shall comply with all requirements

of this subpart as soon as practicable but no later than 30 months

after the amendment's effective date. When control equipment required

by this subpart can not be installed and begin operation by the

effective date of the amendment, the facility owner or operator shall

prepare an implementation schedule that includes the following

information: Specific calendar dates for award of contracts or issuance

of purchase orders for the control equipment, initiation of on-site

installation of the control equipment, completion of the control

equipment installation, and performance of any testing to demonstrate

that the installed equipment meets the applicable standards of this

subpart. The owner or operator shall enter the implementation schedule

in the operating record or in a permanent, readily available file

located at the facility.

(iv) Owners and operators of facilities and units that become newly

subject to the requirements of this subpart after December 8, 1997, due

to an action other than those described in paragraph (a)(2)(iii) of

this section must comply with all applicable requirements immediately

(i.e., must have control devices installed and operating on the date

the facility or unit becomes subject to this subpart;

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