[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Proposed Rules]
[Pages 18528-18546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8951]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52, 261, 262, 264, 265, and 270
[FRL -7170-8]
RIN 2090-AA28
New Jersey Gold Track Program Under Project XL
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; Request for comment.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is today proposing
to modify the regulations under the Resource Conservation and Recovery
Act (RCRA) and the Clean Air Act (CAA) to enable the implementation of
the New Jersey Department of Environmental Protection (NJDEP) Gold
Track Program (Gold Track), which has been developed under EPA's
Project eXcellence and Leadership (Project XL) Program. Project XL is a
national pilot program that allows state and local governments,
businesses and federal facilities to develop with EPA innovative
strategies to test better or more cost-effective ways of achieving
environmental and public health protection. In exchange, EPA will issue
regulatory, program, policy, or procedural flexibilities to conduct the
pilot experiments.
In today's proposed rule, EPA is providing high performing
companies in New Jersey with the regulatory flexibility to test
environmental management strategies that produce increased, measurable
results. NJDEP has expressed an interest in Project XL to test new
pilot ideas with a select group of facilities that focus resources on
activities NJDEP believes would provide progressively greater
environmental benefits than are achievable through compliance with
current regulatory requirements. This proposed rule is intended to
provide the multimedia regulatory flexibility that will enable these
test projects to move forward.
Under the proposed CAA rule modifications, participating Gold Track
facilities would be able to obtain a Plantwide Applicability Limit
(PAL) based on past actual emissions. As long as a Gold Track facility
did not exceed the emission level identified in its PAL for a
particular pollutant, it would be exempted from major New Source Review
(NSR) for that pollutant. Also, this proposed rule encourages the
development of Combined Heat and Power (CHP) technologies in New Jersey
by allowing a CHP facility participating in Gold Track to obtain a PAL
using its own past actual emissions plus the offset emissions derived
from the shutting down or curtailment of boilers at the off-site
facility.
Under today's proposed modifications under RCRA for Gold Track
participants, secondary materials destined for recycling that would
otherwise be considered solid wastes would be excluded from the
definition of solid waste, provided certain conditions are met.
Participating facilities would also be allowed up to 180 days (or 270
days as applicable) to accumulate hazardous waste without a permit as
long as specified conditions are met.
DATES: Public Comments: All public comments on the proposed rule must
be received on or before May 16, 2002, unless a public hearing is
requestesd, in which case comments must be received no later than 30
days following the hearing. Comments provided electronically will be
considered timely if they are submitted electronically by 11:59 p.m.
(Eastern time) May 16, 2002, unless a public hearing is requested, in
which case they must be received by 11:59 p.m. (Eastern time) on the
date 30 days following the hearing.
Public Hearing: Commenters may request a public hearing by April
30, 2002, during the public comment period. Commenters requesting a
public hearing should specify the basis for their request. If a hearing
is requested based on a relevant issue, it will be held by May 7, 2002,
during the last week of the public comment period. Requests for a
public hearing should be submitted to the address below. If a public
hearing is scheduled, the date, time, and location will be available
through a Federal Register announcement or by contacting Mr. Stan
Siegel at the U.S. EPA Region 2 office.
ADDRESSES: Comments: Written comments should be mailed to the RCRA
Information Center Docket Clerk (5305W), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Please send an
original and two copies of all comments, and refer to Docket Number F-
2001-NJGP-FFFFF.
Request for a Hearing: Requests for a hearing should be mailed to
the RCRA Information Center Docket Clerk (5305G), U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
Please send an original and two copies of all comments, and refer to
Docket Number F-2001-NJGP-FFFFF. A copy should also be sent to Mr. Stan
Siegel at the U.S. EPA Region 2 office. Mr. Siegel may be contacted at
the following address: U.S. Environmental Protection Agency, Region 2,
290 Broadway, 25th Floor, New York, NY 10007, (212) 637-3701.
Viewing Project Materials: A docket containing the proposed rule,
Final Project Agreement, supporting materials, and public comments is
available for public inspection and copying at the RCRA Information
Center (RIC), located at Crystal Gateway, 1235 Jefferson Davis Highway,
First Floor, Arlington, Virginia. The RIC is open from 9 am to 4 pm
Monday through Friday, excluding Federal holidays. The public is
encouraged to phone in
[[Page 18529]]
advance to review docket materials. Appointments can be scheduled by
phoning the Docket Office at (703) 603-9230. Refer to RCRA docket
number F-2001-NJGP-FFFFF. The public may copy a maximum of 100 pages
from any regulatory docket at no charge. Additional copies cost 15
cents per page. Project materials are also available for review for
today's action on the World Wide Web at http://www.epa.gov/projectxl/.
A duplicate copy of the docket is available for inspection and
copying at the U.S. EPA Region 2 Library, 290 Broadway, 16th Floor, New
York, NY 10007, during normal business hours. Persons wishing to view
the duplicate docket at the New York location are encouraged to contact
Mr. Siegel in advance, by telephoning (212) 637-3701.
FOR FURTHER INFORMATION CONTACT: Mr. Siegel, or Mr. David Beck, (919)
541-5421 or Mr. Chad Carbone, (202) 564-1017, U.S. EPA, Room 1027WT
(1807), 1200 Pennsylvania Ave., NW, Washington, DC 20460. Further
information on today's action may also be viewed on the World Wide Web
at http://www.epa.gov/projectxl/. For additional information on the
applicant process see supplementary information.
SUPPLEMENTARY INFORMATION: The Gold Track Program (Gold Track) is part
of NJDEP's efforts to create a State-run tiered performance-based
program. Currently, facilities may join NJDEP's Silver Track Program,
which is a lower-level tier that provides recognition for commitments
to a certain level of environmental enhancement. Gold Track expands
upon these environmental commitments, and offers proportionally greater
recognition, as well as actual federal regulatory flexibility to
participating facilities. NJDEP is partnering with EPA in the Gold
Track effort under the XL program, so as to be able to offer federal
regulatory flexibility to Gold Track participants.
NJDEP will require that facilities participating in Gold Track
commit to: community outreach; a demonstrated Environmental Management
System; declining facility-wide air emissions caps based on past actual
emissions; conversion of all non-de minimis air sources to State-of-
the-Art controls over 15 years; procurement of advanced technology/
alternative fuel vehicles; commitment to procure cleaner energy;
greenhouse gas reductions of a minimum of 3.5% below 1990 baseline
levels within five years of executing a Gold Track covenant with NJDEP;
and enhanced pollution prevention.
Gold Track will be limited to nine participants who must pass a
rigorous screening and application process. Upon acceptance into Gold
Track, NJDEP will enter into a covenant agreement with each
participating facility that will detail all aspects of Gold Track
participation, monitoring, and reporting. Facility covenant terms and
performance standards will be made enforceable through a combination of
federal and state rule changes, as well as changes to individual
facility permits.
The terms of the overall Gold Track XL project are contained in a
Final Project Agreement (FPA) which was the subject of a Notice of
Availability published in the Federal Register on December 20, 2000 (65
FR 79854) and which was signed by EPA and NJDEP on January 19, 2001.
The Final Project Agreement (FPA) is available to the public at the EPA
Docket in Washington, DC, in the U.S. EPA Region 2 Library, and on the
World Wide Web at http://www.epa.gov/projectxl/.
The rules proposed for revision under the CAA are being proposed
under a procedure called parallel processing, whereby EPA proposes
rulemaking action concurrently with the state's procedures for amending
its regulations. If the proposed revision is substantially changed in
areas other than those identified in this document, EPA will evaluate
those changes and may publish another notice of proposed rulemaking. If
no substantial changes are made other than those areas cited in this
document, EPA will publish a final rulemaking on the revisions. The
state proposed rules cited in this proposed rulemaking can be obtained
from the NJDEP by contacting Mr. Walter Brown (609-292-0716) at its
Office of Legal Affairs, 401 E. State Street, Trenton, New Jersey. This
is also available through the NJDEP Web site, www.state.nj.us/dep/opppc. The proposed state rules can also be viewed as part of the
docket for this proposed rule at the locations listed under ADDRESSES
above. The final rulemaking action by EPA will occur only after the SIP
revision has been adopted by New Jersey and submitted formally to EPA
for incorporation into the SIP.
Outline of Today's Proposed Rule
The information presented in this preamble is organized as follows:
I. Authority
II. Background
A. What is Project XL?
B. What is EPA Announcing?
C. How Have Stakeholders Been Involved in this Project?
D. What are the Goals of Gold Track?
E. What Regulatory Changes Will Be Necessary to Implement this
Project?
F. Why is EPA Considering Allowing Gold Track?
G. What Are the Environmental Benefits Anticipated through Gold
Track?
H. What Are the Provisions for Enforcing the Terms of Gold
Track?
I. How Long Will this Project Last and When Will It Be
Completed?
J. Project Expectations.
K. Gold Track Implementation Procedures.
L. Early Termination/Withdrawal Procedures for EPA or NJDEP.
III. Summary of Proposed Rule Changes under the Clean Air Act
A. Summary of Regulatory Requirements for the Gold Track.
B. Prevention of Significant Deterioration of Air Quality (PSD)
Regulations.
C. Major Nonattainment NSR.
D. Proposed Regulatory Changes.
1. Changes to the Definition of ``Major Modification.''
2. Duration of Plantwide Applicability Limits (PALs).
3. Changes to the Definition of ``Building, Structure, Facility,
and Installation'' for Combined Heat and Power (CHP) Facilities.
IV. Summary of the Proposed Rule Conditions under the Resource
Conservation and Recovery Act
A. Exclusion from the Definition of Solid Waste for Materials
Destined for Recycling.
1. Purpose and Context of Proposed Rule
2. Rationale for Allowing an Exclusion from the Definition of
Solid Waste
3. Applicability of the Exclusion from the Definition of Solid
Waste
4. Criteria for Obtaining a Solid Waste Exclusion from NJDEP
5. Protection of Human Health and the Environment
6. Summary of Applicable Management Standards for Excluded Solid
Waste
(i) Types of Hazardous Waste not Eligible for Exclusion under
Gold Track
(ii) Requirements for Confirmation from NJDEP Prior to Exclusion
(iii) Notification of Changes in Operation
(iv) Storage of Excluded Materials Destined for Recycling
(v) Labeling Storage Containers
(vi) Monitoring and Record Keeping
(vii) Annual Report
B. 180-Day Accumulation Period for Hazardous Waste Generated by
Gold Track Participants
1. Purpose and Context of Proposed Rule
2. Rationale for Allowing Gold Track Facilities 180 Days (or 270
Days) to Accumulate Waste
3. Protection of Human Health and the Environment
4. Additional Accumulation Time for Transport over 200 Miles
5. Summary of Applicable Management Standards
(i) Accumulation Units
(ii) Measures to Ensure Wastes are not Accumulated for More Than
180 (or 270) Days
(iii) Labeling and Marking Accumulation Units
[[Page 18530]]
(iv) Preparedness and Prevention
(v) Contingency Plan and Emergency Procedures
(vi) Personnel Training
6. Special Conditions for Gold Track Generators Accumulating
Hazardous Waste for up to 180 (or 270) Days
C. State Authority--Applicability of Rules in Authorized States
V. Additional Information
A. Executive Order 12866
B. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Tribal Governments
H. National Technology Transfer and Advancement Act
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. Authority
These regulations are proposed under the authority of sections
101(b)(1), 110, 161-169, 172-173, and 301(a)(1) of the Clean Air Act
(CAA); and under the authority of sections 2002 and 3002 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912 and 6922.
II. Background
A. What Is Project XL?
Project XL, which stands for ``eXcellence and Leadership,'' is a
national pilot program that tests innovative ways of achieving better
and more cost-effective public health and environmental protection
through site-specific agreements with project sponsors. Project XL was
announced on March 16, 1995 (see 60 FR 27282 (May 23, 1995) and 60 FR
55569 (November 1, 1995). The intent of Project XL is to allow EPA,
States, and regulated entities to experiment with pragmatic,
potentially promising regulatory approaches, both to assess whether
they provide superior environmental performance and other benefits at
the specific facility affected, and also whether they should be
considered for wider application. Today's proposed regulation would
enable implementation of Gold Track. These pilot efforts are crucial to
EPA's ability to test new strategies that reduce the regulatory burden
and promote economic growth while achieving better environmental and
public health protection.
B. What Is EPA Announcing?
On September 30, 1999, NJDEP submitted a proposal for a pilot
project under the Project XL Program to EPA. The process for reviewing
and accepting the pilot project included gathering input from industry
representatives, non-governmental organizations, State and EPA
officials, as well as providing opportunity for public participation.
As discussed in more detail below, the proposal has advanced to the
final steps of the Project XL process. In today's proposed rule, EPA
announces revisions to the national Air regulations at 40 CFR 51.165
and 52.1603 that will allow Gold Track to be implemented. However,
NJDEP will need to revise its own regulations to authorize the pilot
program, submit a SIP revision to EPA for approval and issue modified
permits to participating companies before this rule can be implemented.
EPA is also proposing revisions to regulations for the management
of hazardous waste including 40 CFR parts 261, 262, 264, 265, and 270
that would enable NJDEP to implement the portions of this project
requiring RCRA regulatory changes. These changes to the RCRA
regulations would not take effect in New Jersey until the changes are
codified as state law.
C. How Have Stakeholders Been Involved in This Project?
Gold Track is the culmination of joint public and private sector
discussions conducted over the past several years. Starting in 1996,
the New Jersey Chemical Industry Project (NJICP) identified and
evaluated opportunities to implement creative solutions for more
efficient and effective environmental performance. The stakeholders
participating in the NJCIP included representatives from the batch
chemical industry, trade associations, community, academic and
environmental groups, USEPA and the NJDEP. A subset of this group and
additional experts and non-governmental organizations (NGOs) formed the
Flexible Track Team, which developed the framework and many of the
details which NJDEP adopted for the Silver and Gold Track Program. The
establishment of Gold Track is the direct outgrowth of proposals
identified by these stakeholders. NJDEP invited all stakeholders
including environmental groups, NGOs, industry representatives, and
other interested parties to participate in the development of Gold
Track.
To further encourage input during the Gold Track Final Project
Agreement (FPA) development process, NJDEP provided public notice of
the meeting schedule for the February 15, March 2, and March 16, 2000
Gold Track stakeholder meetings. The announcement was published in the
Star Ledger, the Courier Post, and the Asbury Park Press, on or about
the 11th of February. NJDEP also posted a legal advertisement for the
March 16, 2000 meeting in the March 6, 2000 New Jersey Register.
Additional stakeholder meetings were completed by the end of June 2000.
All Gold Track Stakeholder meeting schedules were posted on NJDEP's Web
site at http://www.state.nj.us/dep/opppc/.
Stakeholders will also have formal opportunities to comment on
provisions of any state rules that may be proposed to implement the
program. In addition, under the CAA, stakeholders will have formal
opportunities to comment on any modified permits and other legal
implementing mechanisms under the procedures established at 40 CFR
51.165 and 52.1603 and this rule. We invite interested stakeholders to
submit comments on this proposed rule to the contacts listed in the
ADDRESSES section above.
NJDEP will require that participants accepted into Gold Track
conduct quarterly meetings with a local community outreach citizen
advisory panel as part of their community outreach program. These
meetings are envisioned as an extension of the State-level stakeholder
process.
D. What Are the Goals of Gold Track?
Gold Track is part of NJDEP's efforts to create a State-run tiered
performance-based program. Currently, facilities may join NJDEP's
Silver Track Program, which is a lower-level tier that provides
recognition for commitments to a certain level of environmental
enhancement. Gold Track expands upon these environmental commitments,
and offers proportionally greater recognition, as well as federal
regulatory flexibility to participating facilities. NJDEP is partnering
with EPA in the Gold Track effort under the XL program, so as to be
able to offer federal regulatory flexibility to Gold Track
participants.
Gold Track, once implemented, would be the top performance tier of
NJDEP's Silver and Gold Program for Environmental Performance. New
Jersey's goal in creating this tiered system is to encourage
environmentally progressive companies to commit to further reductions
in emissions and to adopt environmentally sustainable practices beyond
those currently
[[Page 18531]]
required by Federal or State law. In initiating the Gold Track Program,
NJDEP is pursuing reductions in criteria and hazardous air pollutants,
carbon dioxide and other greenhouse gases, encouraging enhanced
hazardous waste management, promoting procurement of renewable energy,
fostering facilities' use of environmental management systems, and
increasing companies' accountability to and communication with the
general public and local communities. In return for meeting the
stringent entry requirements and environmental commitments of Gold
Track, participating facilities will receive certain CAA and RCRA
regulatory flexibilities which are described in greater detail in
Sections III and IV below.
As part of the application process, facilities wishing to
participate in Gold Track must certify that they are currently in
compliance with all environmental obligations and confirm participation
in programs that promote responsible environmental practices, as
defined further in the FPA. Gold Track applicants must demonstrate a
``historically good environmental record,'' which means that an
applicant must have no criminal or significant civil violations and
must maintain up-to-date facility or institutional environmental plans.
NJDEP will conduct a 5-year review of the enforcement history of each
Gold Track applicant, in conjunction with the applicant's self-
certification of compliance with all environmental regulations. The
review will include any informal and formal enforcement actions taken
against the applicant, patterns of recurring minor violations, ongoing
investigations, and pending court actions. In addition, NJDEP will
coordinate with EPA to review the applicant's compliance status with
federal laws and regulations using the EPA's Project XL compliance
screening guidance (available on the EPA Web site, http://www.epa.gov/ProjectXL). Further details regarding the compliance screening of Gold
Track applicants may be found in the Gold Track FPA.
Finally, it should be noted that EPA sees this project as an
opportunity to gather information about recycling of some materials
that might otherwise be classified as hazardous wastes and hazardous
waste generator accumulation requirements (see Section IV).
Table 1 presents the commitments required and incentives provided
to Gold Track participants.
Table 1.--NJDEP Gold Track Commitments and Incentives
Commitments
State of the Art Control of non de minimis sources phased in
over 15 years.
Community Outreach; Implement a community outreach policy,
provide summary of facility operations, hold quarterly meetings with
Citizens Advisory Panel, hold an annual public meeting.
Environmental Management System (EMS): Demonstrate an
established standard EMS, with third-party and self audit review
component, or ISO14000 certification.
Enhanced pollution prevention.
Procurement of Advanced Technology/ Alternative Fuel Vehicles
for company fleet.
Procurement of cleaner energy where reasonable.
Greenhouse gas reductions of a minimum of 3.5% below 1990
baseline levels by the year 2005.
Declining air emissions caps and air quality modeling.
Participation in the ozone action partnership, watershed
partnership.
Monitoring and tracking of 5 sustainable State indicators. (NJ
Sustainability indicators may be found at http://www.state.nj.us/dep/dsr/sustainable-state/
Incentives
Recognition as a Gold Track facility.
Single point of contact within NJDEP for permitting purposes.
Expedited permitting.
Electronic reporting for State-only measures.
Research and Development flexibility (state-only).
Facility-wide air pollution caps, with no preconstruction
review for de minimis modifications if total cap levels are not
exceeded.
Special incentive offered for combined heat and power
facilities. (see Section III for more details).
Opportunities to apply for exemptions from the definition of
solid waste for materials destined for recycling (see Section IV for
more details)
180 days for generators to accumulate hazardous waste without
having to obtain a RCRA permit. (see Section IV for more details)
E. What Regulatory Changes Will Be Necessary to Implement this Project?
Changes to existing regulations under both the Clean Air Act (CAA)
and Resource Recovery and Conservation Act (RCRA) will be needed to
implement some portions of Gold Track. Adoption of revisions through
this proposed rulemaking does not signal EPA's willingness to adopt
those revisions or amendments as a general matter. The scope of Gold
Track will be limited to no more than nine carefully screened New
Jersey facilities, that have achieved the status of Gold Track
participants as determined by NJDEP (entrance criteria and screening
processes including performance commitments and demonstrations of
environmental performance and compliance, are described in detail in
the Gold Track FPA). Nothing in these regulatory changes shall be
construed to allow violation or circumvention of provisions of the CAA
and/or RCRA.
In order to implement the portion of the project that involves
facility-wide air emissions caps under the CAA, EPA is proposing to
create Gold Track-specific changes to the definition of ``major
modification'' in 40 CFR 51.165 and corresponding changes to 40 CFR
52.1603. For the portion of the project that encourages the use of
combined heat and power (CHP), EPA is proposing Gold Track-specific
changes to the definition of ``building, structure, facility, or
installation'' in 40 CFR 51.165 and corresponding changes to 40 CFR
52.1603.
EPA is proposing to amend RCRA regulations found at 40 CFR 261.4 to
authorize facilities to apply for an exemption from NJDEP from the
definition of a solid waste for materials destined for recycling. In
addition, EPA is proposing to amend 40 CFR 262.120 to allow generators
to accumulate hazardous waste for up to 180 days (270 days in some
cases) as opposed to 90
[[Page 18532]]
days without a RCRA permit subject to certain conditions. In addition,
minor changes to Parts 264, 265 and 270 are being proposed as discussed
below. Refer to Sections III and IV below for further details on these
proposed CAA and RCRA rule revisions and amendments.
F. Why Is EPA Considering Allowing Gold Track?
The XL program is intended to allow EPA to experiment with untried,
potentially promising regulatory approaches, both to assess whether
they provide benefits at the specific facility affected, and whether
they should be considered for wider application. Pilot projects such as
Gold Track allow EPA to proceed more quickly than would be possible
when undertaking changes on a nationwide basis. As part of this
experimentation, EPA may try out approaches or legal interpretations
that depart from or are even inconsistent with longstanding Agency
practice, so long as those interpretations are within the broad range
of discretion enjoyed by the Agency in interpreting statutes that it
implements. EPA may also modify rules that represent one of several
possible policy approaches within a more general statutory directive,
so long as the alternative being used is permissible under the statute.
EPA believes that adopting alternative policy approaches and
interpretations, on a limited, project-specific basis and in connection
with carefully selected pilot projects such as Gold Track, is
consistent with the expectations of Congress about EPA's role in
implementing the environmental statutes (so long as the Agency acts
within the discretion allowed by the statute). Congress' recognition
that there is a need for experimentation and research, as well as
ongoing re-evaluation of environmental programs, is reflected in a
variety of statutory provisions, such as sections 101(b) and 103 of the
CAA and RCRA section 8001.
G. What Are the Environmental Benefits Anticipated Through Gold Track?
This XL project is expected to achieve superior environmental
performance beyond that which is required under the current RCRA and
CAA regulatory system by allowing NJDEP and companies participating in
Gold Track to focus on priority environmental goals identified by
NJDEP, EPA and other Gold Track stakeholders in exchange for regulatory
flexibility. In general, this project is expected to produce additional
benefits by:
Reducing pollutant loadings to the environment beyond the
reductions currently achieved through the existing state and federal
regulatory programs. (The amount of reduction in pollutant loading will
be calculated from facility-specific environmental performance data and
data related to environmental impacts, in order to allow EPA and NJDEP
to quantify the environmental benefit derived from Gold Track), and
Providing EPA and NJDEP with information on how the
current regulatory programs might be better oriented towards the
achievement of higher levels of environmental performance.
EPA's intent is to enable NJDEP to administer Gold Track in a way
to best further those objectives. Some of the specific environmental
benefits that will be realized through Gold Track include:
Environmental benefits from greater community involvement:
NJDEP will require Gold Track facilities to implement a community
outreach program, provide community stakeholders with a summary of
facility operations, hold quarterly meetings with a locally organized
Citizens Advisory Panel, and to hold an annual public meeting for all
interested stakeholders. Because these commitments to community
outreach go beyond those required by current regulation, communities
will have access to more information about the performance of local
facilities. This public scrutiny will also provide an incentive for
participating facilities to maintain a high level of environmental
performance. All permits and significant modifications implementing the
Gold Track provisions will be subject to public review and comment.
Research indicates that public disclosure is a powerful incentive
for facilities to reduce their releases of pollutants into the
environment. The Toxics Release Inventory (TRI) and the ``33/50''
Program are two examples of EPA programs that demonstrate this effect.
EPA summarized much of this research in an assessment of the incentives
created by public disclosure supporting regulations published August 4,
2000 (65 FR 48107). Further, because participation in Gold Track is
entirely voluntary, EPA believes that facilities that make the choice
to apply and to demonstrate their commitments to environmental
improvements in the public spotlight will be imposing upon themselves
an increased level of transparency and incentive to deliver this
heightened level of performance.
Environmental benefits from participants using an EMS: All
Gold Track participants must, prior to acceptance into the program,
demonstrate to NJDEP that they are either ISO 14000 certified or have
an established Environmental Management System (EMS) in place that has
an independent third party and self audit review component. EMSs
integrate environmental considerations into routine decision-making at
facilities, establish work practices that consistently reduce
environmental risks and releases, evaluate environmental performance,
and set management priorities based on the environmental impacts of
individual facilities. Because they organize and consolidate
information on a facility's environmental obligations and potential
weaknesses for management, EMSs often improve the facility's compliance
record and reduce accidents. Many EMS frameworks address unregulated
environmental impacts as well as regulated impacts. Thus, an EMS
provides a facility with the ability to assess and mitigate impacts
that are most significant for the facility or that pose the most risk
to the ecosystem and the community surrounding the facility. An EMS
helps enable a facility to take additional environmental mitigation
actions that are highly effective and appropriate, potentially
providing better environmental results than the existing regulatory
structure alone.
EPA believes that EMSs hold the potential for improving the overall
environmental performance of private and public entities. Gold Track
will serve to further promote and encourage responsible environmental
management by requiring all participants to develop, apply and maintain
comprehensive EMSs as a condition of their acceptance into the program.
Environmental benefits from commitments to reduce
greenhouse gases (GHGs), purchase of Alternative Fuel Vehicles, and
procurement of cleaner energy: NJDEP will require Gold Track facilities
to commit to a variety of measures aimed at reducing overall air
pollution loadings. These provisions are explained more fully in the
Gold Track FPA (65 FR 79854).
Environmental benefits from facility-wide declining air
emissions caps: As explained in more detail in Section III., NJDEP will
require each Gold Track facility to have a facility-wide declining
actual emissions cap that will be lowered by 5% every five years. This
Gold Track provision will provide net air quality improvements that
would otherwise not be required under the current regulatory system.
Environmental benefits from an increase in the recycling
and re-use of hazardous waste: Increased levels of recycling and reuse
of hazardous waste have a number of environmental and
[[Page 18533]]
health benefits including: (1) A decrease in reliance on limited
natural resources; (2) a decrease in the energy necessary to produce
the raw hazardous material; (3) a decrease in the potential for
accidental spills or releases during handling and transportation of a
hazardous waste; (4) an increase in production efficiency; and (5) the
elimination of releases and emissions from the treatment and disposal
of hazardous waste.
H. What Are the Provisions for Enforcing the Terms of Gold Track?
All XL Projects must include a legally enforceable mechanism to
ensure accountability and superior environmental performance. Gold
Track will be administered by the State, with individual voluntary
covenant agreements drawn up between participating facilities and
NJDEP, and attendant enforceable Gold Track permits and compliance
plans. As described in the FPA, NJDEP and EPA may enforce the terms of
permits, regulations, or other legal implementing mechanisms as
provided under applicable law. NJDEP has indicated that its enforcement
response would vary depending upon the actual performance of a
participating Gold Track facility, as well as the severity of any
violation. As stated in the FPA, a facility's participation in Gold
Track is not relevant to any issue of law or fact in any legal
proceeding for violations of environmental regulations.
If the Project is terminated, or the participation of a Gold Track
facility is terminated, either because the Program term has ended or
because of an early withdrawal or termination, the procedures set forth
in the FPA will be followed, to ensure an orderly return to compliance
with otherwise applicable regulations. Gold Track facilities are
expected to anticipate and plan for all activities to return to
compliance with applicable regulations in advance of the end of the
Program term. In situations of early withdrawal or termination, interim
compliance periods may be negotiated, but Gold Track facilities must
plan to be in compliance with all applicable Federal, State and local
requirements as soon as is practicable, but no later than six months
from the date of termination or withdrawal.
I. How Long Will This Project Last and When Will It Be Completed?
The federal rulemaking for this project is proposed to remain in
effect for eighteen years from the date that the federal final
rulemaking becomes effective, unless it is terminated earlier by either
EPA or NJDEP, or extended by both EPA and NJDEP (if the FPA and final
rule making is extended, EPA will seek comments and input of
stakeholders and will publish a Federal Register notice). Either EPA or
NJDEP may terminate its participation in this project at any time in
accordance with the procedures set forth in the FPA. Those procedures
require EPA to provide written notice to NJDEP at least 60 days before
the termination. The proposed regulatory changes that enable the
implementation of this XL project contain a sunset provision that will
effectively terminate the regulations automatically after eighteen
years, unless further action is taken to extend the XL project (or end
it sooner). Covenants negotiated between NJDEP and participating
facilities will have a maximum implementation length of fifteen years.
Should on-going evaluation during the course of the XL project
indicate that the project is not successful, EPA and NJDEP will
promulgate a rule to remove these regulations prior to the eighteen-
year sunset provision. However, EPA may promulgate a rule to withdraw
these regulations at any time, subject to the procedures agreed to in
the FPA, for any reason including, but not limited to, a substantial
failure on the part of NJDEP or Gold Track participants to comply with
the terms and conditions of the FPA or if Gold Track becomes
inconsistent with future statutory requirements.
J. Project Expectations
Although the Gold Track FPA is not legally binding, and NJDEP, EPA
or a participating facility may withdraw from Gold Track at any time,
it is the desire of EPA and NJDEP that the Gold Track Program should
remain in effect throughout the expected duration of eighteen years,
and be implemented as fully as possible unless one of the following
conditions below occurs:
(1) Failure of EPA and/or NJDEP to disclose material facts during
the development of the FPA.
(2) Failure of Gold Track to provide superior environmental
performance consistent with the provisions of the FPA.
(3) Enactment or promulgation of any environmental, health or
safety law or regulation after execution of the FPA, which renders Gold
Track legally, technically or economically impracticable.
K. Gold Track Implementation Procedures
The FPA sets out detailed implementation procedures that the State
has agreed to incorporate into its regulations. EPA is not
incorporating these procedures into federal rules under RCRA or the CAA
because it will not be the implementing agency for this project.
Rather, it is authorizing New Jersey to review applications, select
participating facilities, and otherwise carry out the program. EPA,
however, is relying on many of these implementation procedures as part
of the basis for its finding that the Gold Track Program will continue
to protect human health and the environment while relaxing certain
existing regulatory requirements. Some of the most important State
implementation requirements are:
(1) An entity who wishes to participate in Gold Track will be
required to submit a Gold Track application to NJDEP. Once a complete
application is received, NJDEP will determine if the application
satisfies the eligibility criteria outlined below. NJDEP will review
all plans, permits, registrations, approvals and any other documents
that the applicant is required to have and maintain by State and
federal environmental statutes, rules and regulations to determine if
they are up to date, accurate and approved. NJDEP will select the nine
best eligible candidates.
If NJDEP determines that a Gold Track application is incomplete,
NJDEP will issue a Notice of Deficiency (NOD) identifying the
incomplete items and advising what is needed to complete the Gold Track
application. Facilities will have 30 days after receiving a Notice of
Deficiency to submit missing items. If the application remains
incomplete after thirty days, the application will be rejected, and the
applicant would be required to wait six months before reapplying.
(2) In order to participate in Gold Track, an applicant must
demonstrate that it complies with the following criteria:
(i) The applicant has no significant violations or non-minor
violations, as designated in EPA and NJDEP regulatory requirements. Any
significant or non-minor violation in any media within five consecutive
years of applying to Gold Track shall result in an automatic exclusion
from Gold Track;
(ii) The applicant has submitted any plan required by statute,
regulation or permit to NJDEP or EPA as required, in a timely manner
(i.e., a Discharge Prevention, Control and Countermeasures Plan under
N.J.A.C. 7:1E; or an Operations and Maintenance Plan as required by a
solid waste facility permit);
(iii) The applicant has complied with any executed site remediation
Memorandum of Understanding or other
[[Page 18534]]
directive issued by or executed with NJDEP for the performance of any
regulated activity;
(iv) The applicant has no ongoing State or federal environmental
investigations or pending court actions; and,
(v) The applicant has no State or federal criminal violations.
(3) In determining an applicant's eligibility to participate in
Gold Track, NJDEP will:
(i) Review on a case-by-case basis any minor violations committed
by the Gold Track applicant during the five-year period preceding the
filing of its application. In conducting this review NJDEP will
consider:
The number and type of minor violations committed by the
applicant;
Whether those violations were entitled to a grace period
under N.J.S.A. 13:1D-125 et seq.;
Whether the violations occurred at a source that had a
continuous emissions monitor installed; and, if so, whether the
violations have occurred more recently with decreasing frequency (i.e.,
there is a downward trend in the frequency of the occurrence of these
violations); and;
The corrective steps, if any, that the applicant has taken
to avoid future violations; and
The size and scope of the facility.
(ii) Consider the conduct of the applicant in responding to
violations. In cases where the applicant has entered into an
Administrative Consent Order (ACO), NJDEP, at a minimum, expects there
to be compliance with all milestones, terms and conditions that are
contained in the ACO. An entity that is accepted into Gold Track will
continue to have a duty to comply with the milestones, terms and
conditions of a valid ACO, if applicable.
(4) To be eligible to participate in the Gold Track Program, an
applicant will show that it:
(i) Has implemented an Environmental Management System (EMS) which
consists of the following minimum components:
An environmental policy with commitment from top
management;
A commitment to continuous environmental improvement;
Community outreach/communication with components set forth
below;
Monitoring and measurement;
Self audit; and;
An independent third party audit.
(ii) Has implemented a Community Outreach Program, which shall
consist of the following minimum components:
A written policy that articulates a commitment to two-way,
open communication with employees and the community;
A ``Plain English'' summary of what the facility does
(operations), the environmental impacts of these operations, and how
the facility maintains compliance with all applicable environmental
laws;
Establishment of a Community Outreach Advisory Panel
(COPAC), with a minimum of quarterly meetings conducted each calendar
year;
Clearly articulated objectives and goals for interacting
with the community;
Distribution of an annual report to the COPAC on the
facility's environmental performance;
Conduct an annual public meeting where changes in facility
operations and environmental compliance issues are discussed; and;
A process to continually evaluate the effectiveness and
relevancy of the community outreach program.
(5) Once NJDEP approves an application for a facility to enter Gold
Track, and prior to the participating entity being granted regulatory
flexibility, NJDEP and the participating entity will develop a Gold
Track Covenant, which will have a term of 15 consecutive years and will
become effective upon execution by both the participating entity's
responsible official and the Commissioner, or duly authorized
representative of the NJDEP. EPA is allowing the New Jersey Gold Track
rule to be in effect for a time period totaling eighteen years. NJDEP
will have a period of three years from the date of final rule
promulgation to get the Gold Track Program up and running and an
additional 15 years in which to implement covenants with Gold Track
facilities under the rule.
(6) When the NJDEP modifies the Gold Track facilities' permits to
incorporate the proposed flexibility, it must include a provision that
requires the facilities to return to compliance with current regulatory
requirements at the expiration or termination of the FPA, including an
interim compliance period as described in Section XI. of the FPA.
Gold Track facilities that are RCRA hazardous waste generators
would also need to return to compliance with current generator
requirements at the expiration or termination of the project.
At the end of the interim compliance period, the Gold Track
facility shall comply with all applicable requirements and regulations
that exist at the time of program termination. The interim compliance
period cannot extend beyond six months from the date of withdrawal or
termination.
Additional details are available in the FPA. EPA is also proposing
to codify these requirements under its RCRA regulations.
L. Early Termination/Withdrawal Procedures for EPA or NJDEP
EPA and NJDEP agree that the following procedures will be used to
withdraw from or terminate their participation in Gold Track before
expiration of the Gold Track term.
(1) If EPA and/or NJDEP want to terminate or withdraw from Gold
Track, EPA and/or NJDEP will provide written notice to the other party
at least sixty (60) days before the withdrawal or termination and
comply with the procedures identified in Section IX of the FPA.
(2) The procedures described in Section IX of the FPA apply only to
the decision to withdraw or terminate participation in Gold Track by
EPA or NJDEP. Procedures to be used in modifying or rescinding any
regulations, permits or other legal implementing mechanisms will be
governed by applicable law.
III. Summary of Proposed Rule Changes Under the Clean Air Act
A. Summary of Regulatory Requirements for Gold Track
Implementation of Gold Track requires limited federal regulatory
changes. NJDEP plans to offer participants certain types of regulatory
flexibility at the State level. Specifically, NJDEP will not require
Gold Track facilities to obtain air pollution control pre-construction
approvals for any new or modified equipment, that is in compliance with
all applicable requirements, provided that the potential to emit (after
control) for each of the specified pollutants is below New Jersey's
State-of-the-Art (SOTA) threshold levels for criteria pollutants and
hazardous air pollutants (HAPS), and the new or modified equipment is
the same as that already covered under an approved Gold Track
Compliance Plan. New Jersey's SOTA threshold level is 5 tons per year
for all criteria pollutants with the exception of lead. The SOTA
threshold for lead is 20 pounds per year pursuant to N.J.A.C. 7:27-8,
Appendix 1. Individual SOTA thresholds, contained at N.J.A.C. 7:27-22
have been set for HAPs, and are mostly less than 5 tons/year. Any new
or modified equipment with a potential to emit (after control) between
the SOTA threshold level and EPA's ``significant emission levels'' for
criteria pollutants would not (except as described below at 2) undergo
pre-
[[Page 18535]]
construction approval if the new equipment installs SOTA as defined in
a New Jersey SOTA manual, and the new or modified equipment is the same
as that already covered under an approved Gold Track Compliance Plan.
The following notification provisions will be in effect for new and
modified equipment with a PTE below significant emission levels:
(1) Gold Track participants would be required to notify the NJDEP
within 120 days of the installation or modification of equipment
considered to be an insignificant source. For Gold Track facilities
NJDEP will define ``Gold Track Insignificant Source'' to be equipment
with air emissions below the New Jersey SOTA de minimis levels, (i.e.,
less than 5 tons per year for most criteria pollutants, and less than
20 pounds per year for lead).
(2) For the installation or modification of equipment with a
potential to emit between the SOTA de minimis levels and EPA
significant levels, for example between 5 and 25 tons per year for VOCs
and NOX, New Jersey will not use the quarterly reporting
procedure for Gold Track facilities. NJDEP will use the 7-day advance
notice procedure referenced in section 502 (b) (10) of the Clean Air
Act (if no allowable emissions would be exceeded ) or the minor
modification procedure referenced in N.J.A.C. 727-22.23 (if an
allowable emissions would be exceeded).
Any new equipment that exceeded EPA's ``significant emission
levels'' for criteria pollutants would have to install BACT.
Gold Track facilities would be required to obtain plantwide
applicability limits (PALs), referred to as emissions caps in the FPA.
The PALs or emissions caps would establish a ceiling for actual
emissions of specified pollutants in tons per year as described in the
proposed New Jersey State rule. In general, a Gold Track facility would
have PALs for the air pollutants regulated under major New Source
Review (NSR) that it emitted.
The PALs would last for 15 years. As long as a Gold Track facility
did not exceed the emission levels identified in its PAL for a
particular pollutant, it would be exempted from major NSR for that
pollutant (which includes both the prevention of significant
deterioration (PSD) and nonattainment NSR Programs).
If a major expansion would require a higher facility-wide emission
cap, the major preconstruction permit process (major New Source Review)
would be used.
Today's rule also encourages the use and expansion of Combined Heat
and Power (CHP) technologies in New Jersey. The CHP incentive of the NJ
Gold Track Program would encourage facilities to shut down their
boilers and receive their electricity, heating and/or cooling from an
off-site CHP facility. In exchange for providing this energy to off-
site facilities, the CHP facility would be allowed to obtain a PAL
using its own past actual emissions plus the past actual emission
reductions derived from the shutting down or curtailment of boilers at
the off-site facilities.
B. Prevention of Significant Deterioration of Air Quality (PSD)
Regulations
Because this proposed rule modifies certain requirements of the PSD
Program applicable in New Jersey for sources participating in Gold
Track, a brief description of the PSD requirements may be useful. The
PSD and major nonattainment NSR Programs are preconstruction review and
permitting programs applicable to new or modified major stationary
sources of air pollutants. Major nonattainment NSR is discussed in the
following section.
In attainment areas [i.e., areas meeting the National Ambient Air
Quality Standards (``NAAQS'')] and unclassifiable areas, the
requirements for the PSD Program found in part C of Title I of the CAA
apply for the attainment pollutants. The PSD provisions are a
combination of air quality planning and air pollution control
technology program requirements. Each State Implementation Plan (SIP)
is required to contain a preconstruction review program for the
construction and modification of major stationary sources of air
pollution to assure that the NAAQS are achieved and maintained; to
protect areas with existing clean air; to protect Air Quality Related
Values (AQRVs) (including visibility) in national parks and other
natural areas of concern; to assure appropriate emission controls are
applied; to ensure opportunities for economic development consistent
with the preservation of clean air resources; and to ensure that any
decision to increase air pollution is made only after full public
consideration of all the consequences of such a decision. See sections
101(b)(1), 110(a)(2)(C) and 160 of the CAA. For purposes of major NSR
permitting, New Jersey is in an area that meets the NAAQS for all
criteria pollutants except for ozone (statewide), carbon monoxide (CO)
(northeast portion of the state), and sulfur dioxide (portions of
Warren County). Therefore, in New Jersey the PSD Program under part C
of Title I of the CAA applies to those criteria air pollutants for
which the area is in attainment or unclassifiable. As discussed below
in C., the major nonattainment NSR Program under part D of Title I of
the CAA applies to certain areas in New Jersey.
Because the SIP for the State of New Jersey did not include the PSD
requirements of sections 160-165 of the CAA, EPA promulgated a PSD
Program for the State by incorporating by reference the provisions of
40 CFR 52.21(b) through (w) into the state plan for the State of New
Jersey (see 40 CFR 52.1603). In addition, EPA delegated authority to
the NJDEP as the PSD permitting authority in New Jersey. This
delegation of the PSD Program will continue in New Jersey for sources
needing major NSR permits. For Gold Track sources the NJDEP will draft,
accept public comment on, and issue Gold Track permits, subject to EPA
review and the procedural requirements in 40 CFR 52.21 and 40 CFR part
124.
C. Major Nonattainment NSR
Because New Jersey is in the Northeast Ozone Transport Region the
nonattainment NSR requirements apply across the entire state for VOCs
and NOX, which are precursors to the formation of ozone. In
addition, some parts of New Jersey are in nonattainment for carbon
monoxide (CO) or for sulfur dioxide (SO2). Some Gold Track
facilities may emit, or have the potential to emit, air pollutants of
nonattainment concern in major amounts and are otherwise subject to the
major nonattainment NSR provisions of Part D of Title I of the CAA. The
State of New Jersey has rules implementing the Part D requirements that
include both technology and emissions offset requirements. EPA has
partially approved this portion of the New Jersey SIP. The State of New
Jersey plans to submit a revised SIP that will contain Gold Track-
specific changes to its major nonattainment NSR rules. In anticipation
of this SIP submittal, this proposed rule contains Gold Track-specific
changes to the general requirements in 40 CFR 51.165.
D. Proposed Regulatory Changes
1. Changes to the Definition of ``Major Modification''
To implement today's rule, we are proposing Gold Track-specific
changes to the definition of ``major modification'' found in 40 CFR
51.165 (a)(1)(v)(A) and corresponding changes to 40 CFR 52.1603, which
sets forth the PSD requirements for New Jersey. These changes would
allow a Gold Track
[[Page 18536]]
facility to be exempted from major nonattainment NSR/PSD for new and
modified sources as long as the facility's PAL for the pollutant in
question was not exceeded.
2. Duration of Plantwide Applicability Limits (PALs)
The proposed duration of the PALs will be 15 years. Absent this
rule, currently applicable NSR requirements could limit the
effectiveness of Gold Track PALs to 5 years. In order to implement Gold
Track, we are proposing to modify the NSR requirements for Gold Track
facilities to ensure that the PAL may remain effective for 15 years.
For Gold Track, alterations to existing emissions units or the addition
of new emissions units would not significantly increase net emissions
above the actual emissions baseline used in setting the PAL provided
the stationary source continues to meet its PAL emissions limit.
Therefore, such alterations or additions would not trigger major NSR.
Nothing in these regulatory changes shall be construed to allow
violation or circumvention of provisions of the Clean Air Act.
Under present regulations, a source that adds or modifies a unit
that would result in a significant emissions increase may ``net'' that
particular change out of review if the new emission increase plus the
sum of all other contemporaneous creditable increases and decreases at
the source is less than significant. The current regulatory requirement
regarding contemporaneity derives from the interpretation of the CAA's
provisions governing modifications set forth in Alabama Power Co. v.
Costle, 636 F.2d 323 (DC Cir. 1979). Among other things, the court
interpreted the statute as allowing emissions increases to be offset by
decreases at the same source, but stated that, ``any offset changes
claimed by industry must be substantially contemporaneous.'' Id. At
402. The court explained that EPA retains discretion to define
``substantially contemporaneous.'' Thereafter, EPA codified
contemporaneity as a regulatory requirement. See 45 FR 52676, 52700-
52702 (August 7, 1980).
Absent the changes proposed today, the Federal PSD requirements in
40 CFR 52.21(b)(3)(ii)(a) limit the period within which the changes may
be considered contemporaneous to 5 years. States implementing a PSD
Program or nonattainment NSR Program under an EPA-approved SIP may
define a reasonable contemporaneous period. Without deciding whether
the contemporaneity principle applies to PALs, EPA is proposing a 15-
year contemporaneous period for sources in Gold Track that corresponds
to the 15-year duration of the NJ Gold Track covenant. EPA recognizes
that Gold Track facilities would make important commitments which would
result in superior environmental performance as described in the Final
Project Agreement Air Addenda. In addition, all other currently
applicable requirements would continue to apply to a Gold Track
facility, including, but not limited to: Reasonably Available Control
Technology (RACT), Maximum Achievable Control Technology (MACT), State-
of-the-Art (SOTA), Best Available Control Technology (BACT), Lowest
Achievable Emission Rate (LAER) and New Source Performance Standards
(NSPS). Under these circumstances EPA believes that a 15-year
contemporaneous period for the Gold Track PALs is appropriate.
3. Changes to the Definition of ``Building, Structure, Facility, and
Installation'' for Combined Heat and Power (CHP) Facilities
In order to encourage greater energy efficiency and reduced levels
of air pollution, the State of New Jersey is promoting the expansion of
the Combined Heat and Power (CHP) industry in their state. In the
emerging energy market under utility deregulation, owners/operators and
developers of CHP projects seek to minimize their financial risk in
order to employ CHP technology successfully. To do this they are
finding it desirable to locate CHP facilities at the same sites as
existing industrial or commercial users of steam and electricity. An
existing user facility, such as a chemical manufacturing plant, becomes
the customer, or ``host,'' of the CHP facility and provides a steady
stream of revenue. The existing user, which formerly managed its own
steam production operations to support its main line of business, can
then divest itself of the day-to-day business of heat and power
production and obtain long-term access to favorably priced steam and
electricity.
Typically, a CHP project developer, a separately-owned and operated
entity from the host facility's owner/operator, purchases the existing
steam (and sometimes electricity)-producing equipment from the host
facility (generally boilers and turbines) and then retires it and
replaces it with CHP technology, or upgrades it to incorporate CHP
technology. The new, separately owned and operated CHP facility then
contracts with the host facility to provide that facility's steam and
some or all of its electricity. Once the CHP facility can access the
local utility grid, it can sell excess electricity to the grid. In
addition, the same CHP facility may enter similar contracts with other
nearby, but not necessarily contiguously located, customers of steam
and/or electricity, either at the inception of the CHP project or over
time.
Under Gold Track, CHP facilities which supply electricity and
heating and/or cooling could obtain an emissions cap or PAL based on
the facility's actual emissions, plus the avoided actual emissions at
the off-site buildings being supplied with heat and/or cooling,
provided that the avoided emission reductions are not claimed by the
owner or operator of the off-site buildings. There would have to be a
contractual agreement between the CHP facility and the off-site CHP
user which stated that the emission reductions from heating/cooling
energy equipment shutdown or curtailment at the CHP energy user are to
be credited to the CHP facility, rather than the CHP energy user. When
used for the CHP facility emission cap, the off-site emission
reductions could not be used for other purposes, including but not
limited to, emission offsets, netting, or discrete emission reduction
credits. The cap additive from off-site facility emission reductions
would have to be the lesser of actual emissions before the supply of
heat/cooling by the CHP facility or SOTA emissions for the amount of
energy supplied by the CHP facility. The cap additive would have to be
based on off-site actual emission reductions during the same 5-year
timeframe, used to determine baseline actual emissions. Third party
independent verifications of the reductions would be required. The
resultant cap would be subject to the same air quality modeling
requirements as the caps at other Gold Track facilities. Addition of
new units at the CHP facility would be subject to the same
flexibilities if below de minimis, and the same permitting, SOTA, and
BACT requirements if above de minimis, as other Gold Track facilities.
Enforceable operating restrictions would be required on the off-site
equipment being replaced or curtailed by the CHP facility.
The Gold Track CHP proposal reflects the interests and concerns
which the EPA has regarding the development and expansion of CHP
sources. The EPA recognizes the potential for reducing fuel consumption
and air pollution as a result of CHP technologies, and we are actively
seeking to promote CHP as an alternative to conventional ways of
supplying industrial, commercial, and institutional users with heat and
power. EPA encourages the greater use of CHP
[[Page 18537]]
because typically it: (1) Generates energy efficient power; (2) is an
additional source of power; (3) decreases the need for transmission
over distances; and (4) provides clean energy.
As summarized in section III.D.2, Gold Track facilities would
voluntarily make several important commitments which would result in
superior environmental performance. Under these circumstances, and
because we are seeking to encourage the greater use of CHP, EPA
believes the flexibility outlined above for Gold Track CHP facilities
is appropriate. EPA is proposing to implement the Gold Track CHP
incentive through Gold Track-specific changes to the definition of
``building, structure, facility, and installation'' in 40 CFR
51.165(a)(1)(i) and corresponding changes to 40 CFR 52.1603.
IV. Summary of the Proposed Rule Conditions Under the Resource
Conservation and Recovery Act
Today's proposal would modify 40 CFR 261.4(a), 262, 264.1, 265.1
and 270.1 to provide NJDEP with the regulatory flexibility needed to
implement the RCRA-specific portions of Gold Track. The proposed RCRA
modifications described below are expected to promote greater levels of
recycling, provide EPA with information about generator accumulation
times, and provide valuable incentives for companies to participate in
Gold Track while maintaining rigorous standards of environmental
protection.
Incentives play a crucial role in maximizing the environmental
benefits of any voluntary program such as Gold Track. Facilities must
perceive a benefit to themselves that is at least equal to their
perceived costs of participation in a voluntary program, including
administrative burdens associated with participation as well as any
costs incurred in meeting the substantive requirements of the program.
The incentives relating to hazardous waste management that would be
provided under the Gold Track Program include (a) allowing Gold Track
facilities to apply to NJDEP for an exclusion from the definition of
solid waste for some types of materials destined for recycling, and (b)
allowing up to 180 days (270 days, if applicable) for hazardous waste
generators to accumulate hazardous waste without having to obtain a
RCRA permit. These regulatory flexibilities should provide incentives
for companies to participate in the Gold Track Program while
maintaining necessary environmental protections.
EPA and NJDEP have agreed upon a combination of environmental
protections including requiring prospective participants to pass a
rigorous screening process during which NJDEP, in consultation with
EPA, would screen candidates based on several factors including past
compliance history, current commitment to environmental improvement,
and the legitimacy of future recycling activities. Facilities would be
required to also meet specific conditions to minimize the possibility
that their activities would threaten human health and the environment
as a result of this program.
A. Exclusion From the Definition of Solid Waste for Materials Destined
for Recycling
1. Purpose and Context of Proposed Rule
Section 3002 of the Resource Conservation and Recovery Act (RCRA)
directs EPA to promulgate standards for generators of hazardous waste
as necessary to protect human health and the environment. Similarly,
Section 3004 of RCRA directs EPA to promulgate standards for facilities
that treat, store or dispose of hazardous wastes. Section 1003 of RCRA
establishes a national objective of ``minimizing the generation of
hazardous waste and the land disposal of hazardous waste by encouraging
process substitutions, materials recovery, properly conducted recycling
and reuse, and treatment.''
The primary intent of the current RCRA regulatory structure
governing hazardous waste recycling is to ensure that such recycling
practices are done safely including ensuring that waste materials are
managed protectively prior to recycling and that the resulting products
are legitimate products and do not contain potentially harmful ``toxics
along for the ride.'' Industry has asserted that certain RCRA hazardous
waste recycling regulations can in some cases discourage generators
from exploring recycling options for their wastes. Today's proposed
rule is intended to remove many of these regulatory requirements in
order to promote recycling of hazardous and solid waste for Gold Track
participants. Moreover, the regulations would impose conditions on the
management of hazardous waste that would minimize the likelihood that
the activities of participating facilities would threaten human health
and the environment as a result of this program. Specifically, today's
proposed rule is responsive to the desire to direct suitable
wastestreams towards recycling and reuse by allowing Gold Track
facilities to apply to NJDEP for conditional exclusion from the
definition of solid waste for some types of materials destined for
recycling that would otherwise be considered listed or characteristic
hazardous wastes. NJDEP will consider applications for exclusions from
the definition of solid waste on a case-by-case basis, and will conduct
a waste stream specific evaluation to ensure that only legitimate
recycling of materials (as opposed to sham recycling) takes place. EPA
requests comments on these proposed conditional exclusions.
2. Rationale for Allowing an Exclusion From the Definition of Solid
Waste
Today's proposal would allow NJDEP, with some exceptions, to grant
case-by-case exclusions from the definition of solid waste for
hazardous secondary materials generated at Gold Track facilities that
are destined for some types of recycling and that, absent the
exclusion, would be considered hazardous wastes. Under this proposed
rulemaking, these materials would no longer be considered wastes. A
number of RCRA regulatory requirements that can make recycling less
attractive would no longer apply, including:
Permits. According to current regulations, companies
generating hazardous wastes that can be recycled would typically need a
RCRA permit if they store the wastes for greater than 90 days prior to
recycling. In addition, if hazardous wastes are shipped to off-site
facilities for reclamation or recycling, those receiving facilities
must also have RCRA permits if they store or treat the wastes prior to
recycling. This can have important implications for these companies.
Obtaining a RCRA permit can be costly and time consuming. In addition,
a RCRA permit carries with it other obligations, such as the
requirement for facility-wide corrective action, which can incur
further substantial costs. Thus, many companies have a strong incentive
to avoid recycling hazardous wastes if they must store wastes for
greater than 90 days prior to recycling. As a result, some hazardous
wastes are sent to treatment or disposal facilities, rather than being
beneficially recycled. Under today's proposal, excluded wastes from
Gold Track facilities could be stored by recyclers for an extended
period of time without triggering the need for a RCRA permit. EPA
expects this flexibility to enhance recycling opportunities for Gold
Track participants.
Transportation, reporting and recordkeeping. Hazardous
wastes
[[Page 18538]]
destined for recycling are generally subject to the RCRA ``cradle to
grave'' reporting and recordkeeping requirements. Under this system,
generators of such wastes must:
--Manifest off-site shipments of hazardous wastes (Secs. 262.20-
262.23);
--Submit exception reports for any shipments that have not been
reported received (Sec. 262.42);
--Maintain copies of manifests, exception reports, biennial reports and
any data used to make hazardous waste determinations, for at least
three years (Sec. 262.40); and
--Submit a biennial report describing all hazardous wastes generated
and the facilities to which they were shipped every other year if they
generate large quantities of hazardous wastes. (Sec. 262.41)
Under this proposed rule, excluded secondary materials being
transported to a recycler would not be subject to the manifest and
related recordkeeping requirements. The Gold Track facility will keep
records on the amounts of excluded material sent to the recycler and
returned to the facility.
3. Applicability of the Exclusion From the Definition of Solid Waste
Today's proposed rule would allow Gold Track participants to
petition NJDEP to exclude materials that are recycled from the
definition of solid waste if they are managed according to certain
conditions. This flexibility would only be offered to Gold Track
participants. If finalized, materials generated by Gold Track
participants that are currently regulated as solid and hazardous wastes
prior to reclamation (i.e. spent solvents) would no longer be regulated
as solid and hazardous wastes if they are recycled according to the
conditions discussed below. Excluded materials shipped to off-site
recycling facilities would also be excluded from regulation as a solid
waste.
Not all types of recycling practices would be eligible for the
exclusion under this proposed rule. Today's proposal identifies four
specific recycling scenarios that EPA believes merit full regulation
under current hazardous waste regulations, and which therefore will not
be eligible for relaxed regulatory controls under the Gold Track
Program:
Wastes burned for energy recovery [Sec. 261.2(c)(1)];
Wastes used in a manner constituting disposal
[Sec. 261.2(c)(2)];
Recycling of materials that are inherently waste-like
[Sec. 261.2(d)] (F020, F021 (unless used as an ingredient to make a
product at the site of generation), F022, F023, F026, F028, and
secondary materials fed to a halogen acid furnace);
Secondary materials that are stored on the land, in
containment buildings, or on drip pads.
EPA and NJDEP believe that limiting the scope of this rulemaking in
this way is sensible and appropriate due to the experimental nature of
Gold Track and the reduced level of regulation that will be afforded to
participating facilities.
It should be noted that the conditional exclusion proposed today
would be an exclusion only from the RCRA Subtitle C regulations, and
not from the emergency, remediation and information-gathering sections
of the RCRA statute (sections 3004(u), 3007, 3008(h), 3013, and 7003).
This restates the principle codified for other excluded secondary
materials--that the exclusion is only from RCRA regulatory provisions,
and not from these statutory authorities. See section 261.1(b). EPA is
repeating that principle here in the interests of clarity, not to
reopen the issue. The legal basis for the distinction of the Agency's
authority under these provisions is that they use the broader statutory
definition of solid waste (and hazardous waste as well) and so need not
(and should not) be read as being limited by the regulatory definition.
See, for example, 50 FR 627; January 4, 1985.
EPA is also proposing that the requirements for speculative
accumulation of hazardous wastes not apply to Gold Track participants.
The speculative accumulation provisions generally apply to secondary
materials that are not solid wastes when recycled. Under RCRA
regulations, certain recyclable materials are not considered solid
wastes if they are recycled in a timely manner. However, if these
materials are accumulated on-site for too long, they become a solid
waste pursuant to the speculative accumulation provisions of 40 CFR
261.1(c)(8) and 261.2(c)(4).
The provision serves as a safety net, preventing recyclable
materials that are not otherwise regulated under RCRA from being stored
indefinitely and potentially causing environmental damage. EPA subjects
persons who ``accumulate speculatively'' (i.e., persons who fail to
recycle a sufficient percentage of a recyclable material during the
calendar year or fail to demonstrate that a feasible means of recycling
exists) to immediate regulation as hazardous waste generators or
storage facilities. (50 FR 614, 650; January 4,1985).
As an alternative safety net, today's proposal, would require Gold
Track participants to report on their recycling activities including
(1) amount of excluded material generated during each twelve month
period after the exclusion takes effect, (2) the amount of excluded
material recycled during the same twelve-month period, (3) how the
excluded material was recycled, (4) any significant changes in the
excluded material wastestream, (5) the recycling processes used, and
(6) the location of any off-site recycler. Also, a participant would be
required to obtain approval from the State Director prior to any
significant changes in the waste stream or the recycling process. In
addition to providing data on whether this incentive increases
recycling, these reports would directly alert the State to any overly
lengthy accumulation practices that may occur and would allow the State
to assess whether environmental damage could occur from such storage.
EPA believes that this approach provides a suitable alternative to the
speculative accumulation requirements for hazardous waste under RCRA.
4. Criteria for Obtaining a Solid Waste Exclusion From NJDEP
Gold Track facilities wishing to take advantage of this flexibility
would be required to submit an application identifying each waste
stream to be excluded from the definition of a solid waste to NJDEP.
Included in the application package must be a detailed description of
the waste stream and its composition, a full description of the
recycling to be conducted and the sites where storage and recycling
would occur, along with a comparison of the proposed recycling strategy
to the recycling guidelines set forth in the EPA policy memo entitled:
``Criteria for Evaluating Whether a Waste is Being Recycled''. This
document can be obtained either by clicking on the following Web site:
http://yosemite.epa.gov/OSW/rcra. nsf/Documents/BFB132AA4BB3D1D385
2565DA006F0447, or through EPA's Faxback service by dialing 202-651-
2060 on your fax machine and entering code # 11426.
This application process will ensure that the regulatory
flexibility for recycling that is provided to Gold Track facilities
will not compromise human health and the environment. NJDEP will
carefully analyze each application to ensure that sham recycling or any
other harmful activity will not occur. The determination of whether
sham recycling is being proposed rests on a number of factors
including: the similarity of the secondary material to an analogous raw
material or product, the degree of processing the secondary material
must undergo to produce a
[[Page 18539]]
finished product, the value of the secondary material, the market for
the end product, handling and management practices for the secondary
material, and the need for toxic constituents in the recycling process.
These factors are laid out in the EPA guidance document described
above. Each application will be evaluated and considered in the context
of these factors.
5. Protection of Human Health and the Environment
As discussed below, waste destined for recycling must be stored in
accordance with the performance standards of 40 CFR part 265, subparts
I and J for containers and tanks, respectively, and 40 CFR section
264.175 that requires secondary containment for containers holding free
liquid. The Air Emission requirements under subparts AA, BB and CC are
included in subparts I and J of 40 CFR part 265 and are applicable. The
additional condition that materials excluded from the definition of
solid waste may only be stored in tanks or containers that meet
stringent design and operating standards also helps to ensure that
materials are managed safely prior to recycling.
Materials sent offsite for recycling will be excluded from
regulation provided that the generator complies with all applicable
conditions. If the offsite recycler manages the material in any of the
activities listed in subsection 3 above that are not eligible for the
exclusion, the material ceases to be excluded.
With regards to excluded materials sent to an offsite recycler, the
Gold Track facility would be required to:
Designate the off-site facility that will be receiving
excluded material;
Keep facility recycling records that track the amount of
excluded material sent to the off-site recycler and returned to the
Gold Track participant and make these records available upon facility
inspection; and
Include the recycling information listed above in the Gold
Track participant's annual report.
6. Summary of Applicable Management Standards for Excluded Solid Waste
Hazardous secondary materials excluded from RCRA regulation under
today's proposed rule would be subject to certain conditions. Failure
by Gold Track participants managing materials under this exclusion to
meet any of these conditions could result in revocation of the
exclusion and/or subsequent enforcement action.
(i) Types of Hazardous Waste Not Eligible for Exclusion Under Gold
Track
This exclusion would not apply to materials that are burned for
energy recovery, used in a manner constituting disposal, or for
materials that are inherently waste-like as defined in 40 CFR
261.2(c)(1), (c)(2) and 261.2(d).
(ii) Requirements for Confirmation From NJDEP Prior to Exclusion
Under this proposal, Gold Track facilities wishing to take
advantage of this flexibility would be required to submit a petition to
NJDEP to be excluded from the definition of a solid waste. This
petition must include a detailed description of the waste stream and
its composition, a description of the recycling to be conducted and the
sites where storage and recycling would occur, and a comparison of the
recycling proposed to the EPA guidance discussed above in section
IV.A.4.
NJDEP will make a site specific determination that the material
will be legitimately recycled to recover material values based on EPA
guidance and the information provided, and will respond to each
petition before this exclusion would be applicable.
(iii) Notification of Changes in Operation
EPA is proposing that Gold Track participants would be required to
inform NJDEP of any changes to the wastestream, (e.g., as a result of a
change in the production process or inputs) changes in the recycling
process to be used, and changes in the recycling location.
Gold Track participants would be required to receive approval from
NJDEP to continue exercising this flexibility if the changes described
above occur.
(iv) Storage of Excluded Materials Destined for Recycling
Under this proposal, Gold Track generators would be required to
manage materials in tanks or containers and comply with the management
standards for hazardous waste storage units, as specified in 40 CFR
part 265, subparts I and J, and the secondary containment standards (or
alternative) for containers with free liquids as described at
Sec. 264.175. Secondary containment provides an added level of safety
by ensuring that if the tank or container leaks, the release is
captured by an impermeable base or second exterior tank wall. This
condition applies to excluded materials stored at a Gold Track
facility. Gold Track facilities would also be required to comply with
any other substantive regulatory requirement that would normally be
applicable to the containers or tanks.
This exclusion would not be extended to materials that are stored
on the land (e.g., in outdoor piles), in containment buildings, or on
drip pads. In this respect, storage of excluded materials under today's
rule would be subject to more stringent container management standards
than if they were managed as hazardous wastes and is consistent with
the Project XL goal of superior environmental performance.
(v) Labeling Storage Containers
Today's proposal would also require generators managing materials
under this conditional exclusion to use a label to identify the
contents of containers in which materials to be recycled are stored and
indicate the date the material was originally placed into the
container. Gold Track participants would not be required to comply with
labeling and marking requirements at Sec. 262.34(a)(2) and (a)(3) as a
condition for this exclusion.
(vi) Monitoring and Record Keeping
EPA is also proposing that generators maintain records for each
container or tank used to store material exempted from the definition
of solid waste, and that participants label the contents as stated
above. This information will be used to track trends and environmental
performance, and is expected to be used for the annual report.
(vii) Annual Report
Each participant shall submit an annual report to the State of New
Jersey that shall specify:
The amount of exempt material in inventory at the facility
at the time the flexibility specified at N.J.A.C. 7:2733.21(a)9 is
granted to the facility;
The amount of exempt material generated during the past
twelve months;
The amount of exempt material recycled during the same
twelve-month period;
A description of how the exempt material was recycled; and
Any changes in the original wastestream, recycling
processes used or the location of recycling sites.
B. 180-day Accumulation Period for Hazardous Wastes Generated by Gold
Track Participants
1. Purpose and Context of Proposed Rule
Today's proposed rule would allow large quantity hazardous waste
generators (generators of 1000 kilograms or greater of non-acutely
hazardous waste or more than 1 kilogram of acute
[[Page 18540]]
hazardous waste) that have been accepted into the Gold Track Program to
accumulate their hazardous wastes on-site for up to 180 days without
having to obtain a RCRA permit.
Participating large quantity generators would also be allowed to
accumulate their hazardous waste on-site for up to 270 days if they
must transport the waste, or offer the waste for transport, a distance
of 200 miles or more. The current requirements under 40 CFR part 262
for large quantity generators (LQGs) limit the amount of time hazardous
waste can be accumulated on-site without a RCRA permit. Under 40 CFR
262.34, LQGs may accumulate any quantity of hazardous waste on-site for
up to 90 days without having to obtain a RCRA permit.
EPA requests comments regarding its proposal to provide
participating Gold Track generators 180 days (or 270, if applicable) to
accumulate their hazardous waste on-site without a RCRA permit. Today's
proposed rule would not make any changes to the existing conditions for
the 90-day accumulation period for generators under the current
regulations, and EPA is not requesting comment on 40 CFR 262.34.
2. Rationale for Allowing Gold Track Facilities 180 Days (or 270 Days)
To Accumulate Waste
Today's proposed rule is designed to assist EPA in learning more
about appropriate hazardous waste generator accumulation times that may
optimize the ability of generators to carry out activities incidental
to the generation of hazardous waste. EPA intends that this project
will yield information regarding typical and appropriate generator
activities--such as accumulating hazardous waste prior to sending it
off-site for waste management--and the time periods appropriate for
carrying out such activities. EPA believes that additional accumulation
time may allow generators to accumulate enough waste to make
transportation to a waste management facility more cost-effective and
efficient. EPA also believes that additional accumulation time may
reduce the movement and handling of hazardous waste and also reduce the
amount of air pollution created and transportation related safety
concerns through more frequent truck trips.
Given the strict screening requirements of the Gold Track Program,
only facilities of very high environmental caliber would be allowed to
take advantage of the additional accumulation time flexibility, thus
EPA believes this limited flexibility should not result in any
additional risk to public health or the environment.
In order to evaluate the potential effects of additional
accumulation time, EPA and NJDEP would be able to request specific
information from participating facilities (including hazardous waste
manifests, operating and recycling records, inspection logs for the
container/tank areas, waste generation rates, etc.), and hold
informational meetings with facility staff as may be necessary to track
progress and measure performance of longer accumulation time limits.
The 180 days (or 270 days, if applicable) accumulation time limit
was also cited as a very desirable flexibility by industry stakeholders
during the Gold Track Final Project Agreement negotiation process. This
flexibility is seen as an incentive that rewards Gold Track facilities
for undertaking the economically costly commitments (see Table 1 in
Section II.D.) that are required for Gold Track participation.
3. Protective of Human Health and the Environment
The provisions of today's proposed rule would ensure that on-site
accumulation of hazardous waste for up to 180 days (270 days, if
applicable) is protective of human health and the environment. As
mentioned previously, the strict screening requirements of the Gold
Track Program ensure that only facilities of very high environmental
caliber will be allowed to take advantage of the additional
accumulation time flexibility, thus EPA believes this limited
flexibility should not result in any additional risk to public health
or the environment.
In addition, all the conditions that apply to 90-day accumulation
of any hazardous waste will apply to the 180 day (or 270 day, if
applicable) accumulation of hazardous waste by participating Gold Track
generators (See Section IV.B.4. below). The requirements include that
hazardous waste must be stored in accordance with the performance
standards of 40 CFR parts 265, subparts I and J for containers and
tanks, respectively. Gold Track participants would also be required to
manage materials in accordance with the secondary containment standards
(or alternative) for containers with free liquids as described at
Sec. 264.175. Secondary containment provides an added level of safety
by ensuring that if the tank or container leaks, the release is
captured by an impermeable base or second exterior tank wall. In
addition, the Air Emission requirements under subparts AA, BB and CC
are included in subparts I and J of 40 CFR part 265.
4. Additional Accumulation Time for Transport Over 200 Miles
Under today's proposed rule, participating Gold Track generators
would have up to 270 days to accumulate their hazardous waste on-site
without a RCRA permit or interim status if the generator must transport
the waste, or offer the waste for transport, a distance of 200 miles or
more. The generator would still be required to comply with all other
conditions for accumulating hazardous waste under Gold Track, including
the more stringent accumulation requirements noted above.
EPA believes that additional accumulation time under circumstances
where a generator must send its hazardous waste a distance of 200 miles
or more may be necessary and appropriate to allow sufficient time to
accumulate enough waste to make long-distance transport more cost-
effective and efficient. EPA also believes that the additional
accumulation time may reduce the movement and handling of hazardous
waste and also reduce the amount of air pollution created and
transportation related safety concerns through more frequent truck
trips.
As part of the Gold Track covenant agreement between the Gold Track
participant and the NJDEP, a generator in the Gold Track Program would
need to identify and keep inventory records for wastes to be shipped to
an off-site facility that is located more than 200 miles away.
5. Summary of Applicable Management Standards
Under today's proposed rule, the same, or more stringent standards
applicable to 90-day on-site accumulation of hazardous waste under 40
CFR 262.34, other than the length of time that large quantity
generators hazardous waste can accumulate that waste on-site without a
RCRA permit, would apply to 180-day (or 270-day, as applicable)
accumulation of hazardous waste. These include technical standards for
units used to accumulate hazardous wastes, recordkeeping standards to
document the length of time hazardous wastes are accumulated on-site,
preparedness and emergency response procedures, and personnel training.
EPA is not proposing to change any of these existing standards as they
would apply to generators participating in Gold Track.
The Agency would like to note, however, that the longer additional
accumulation time may impact each participating generator's
implementation of some of these
[[Page 18541]]
provisions. For example, in order to be in compliance with proposed 40
CFR 262.120 (which incorporates the existing general site operation
provisions), generators accumulating hazardous waste on-site under the
terms of today's proposal may need to consider whether their current
general site operation procedures (e.g., personnel training,
contingency planning) should be modified in light of having more
hazardous waste on-site than they would under the 90-day limit. The
existing management standards as they would apply to Gold Track
generators of hazardous waste under this proposed rule are summarized
below. EPA requests comments on these standards only as they would
apply to participating Gold Track generators accumulating their
hazardous waste for 180 or 270 days.
(i) Accumulation Units: A large quantity generator would only be
able to accumulate hazardous waste on-site for up to 180 days (or 270
days, if applicable) in tanks or containers which comply with the unit-
specific technical standards of 40 CFR part 265 for containers (subpart
I) and tanks (subpart J). These unit-specific standards would include
provisions for the design, installation and general condition of each
unit. The requirements governing each type of unit would also include
standards for ensuring the compatibility of the waste and the unit and
special requirements for ignitable, reactive or incompatible wastes. In
addition, there would be provisions for performing inspections to
monitor for leaks and deterioration of the unit and for proper response
to and containment of releases. For example, the container holding
hazardous waste would be required to be closed except when adding or
removing waste and the container could not be handled in a manner that
may cause it to rupture or leak. Participating Gold Track generators
that comply with the applicable regulatory provisions would be able to
treat and/or recycle the waste in the accumulation unit without a RCRA
permit during the 180-day (or 270-day, if applicable) accumulation
period. (See, e.g., 51 FR 10168, March 24, 1986).
(ii) Measures to Ensure Wastes are not Accumulated for More Than
180 (or 270) Days: Participating Gold Track generators operating under
the terms of today's proposed rule would also be required to comply
with provisions which help ensure that the length of time the wastes
remain on-site in certain accumulation units would not exceed 180 days
(270 days, if applicable) from the date the waste is generated. For
those accumulating waste in containers, the date upon which each period
of accumulation begins would be required to be clearly marked and
visible for inspection on each container.
(iii) Labeling and Marking Accumulation Units: Participating Gold
Track generators operating under the terms of today's proposed rule
would be required to clearly label or mark each tank or container used
to accumulate hazardous waste with the words ``Hazardous Waste''.
(iv) Preparedness and Prevention: Participating Gold Track
generators who accumulate waste on-site under the terms of today's
proposed rule for up to 180 days (or 270 days, as applicable) would be
required to comply with subpart C of part 265 which contains standards
for facility preparedness and prevention. Participating generators
would be required to maintain their facilities in a manner that
minimizes the possibility of fire, explosion, or any unplanned release
of hazardous waste or hazardous waste constituents to the environment.
Participating generators would also be required to ensure that
their facilities are equipped with emergency devices, such as an
internal communications or alarm system, a telephone or other device
capable of summoning emergency assistance, and appropriate fire control
equipment, unless none of the wastes handled at the generation site
requires a particular kind of equipment. Equipment would be required to
be tested and maintained, as necessary, to assure its proper
functioning.
All persons involved in hazardous waste handling operations would
be required to have immediate access to either an internal or external
alarm or communications equipment, unless such a device is not
required.
Additionally, under the terms of today's proposed rule,
participating generators would be required to maintain sufficient aisle
space to allow for the unobstructed movement of personnel and equipment
to any area of the facility operations in an emergency, unless aisle
space is not needed for any of these purposes. Participating generators
would also be required to attempt to make arrangements with police,
fire departments, state emergency response teams, and hospitals, as
appropriate, to familiarize these officials with the layout of the
generator's site and the properties of each type of waste handled at
the site in preparation for the potential need for the services of
these organizations. If state or local authorities decline to enter
into such arrangements, the owner or operator would be required to
document the refusal.
(v) Contingency Plan and Emergency Procedures: Participating
generators who accumulate hazardous waste on-site for up to 180 days
(or 270 days, as applicable) under the terms of today's proposed rule
would be required to comply with the contingency plan and emergency
procedures provisions of 40 CFR part 265, subpart D. The contingency
plan would be required to include, where necessary, a description of
the generator's planned response to emergencies at the facility, any
arrangements with local and state agencies to provide emergency
response support, a list of the generator's emergency response
coordinators, a list of the generator's emergency equipment, and an
evacuation plan. Requirements for distributing and amending the
contingency plan would also be specified. In addition, a facility
emergency coordinator would be required to either be present, or on
call, whenever the facility is in operation.
Provisions for emergency procedures would include immediate
notification of employees and local, state, and Federal authorities of
any imminent or actual emergencies; measures to preclude the spread of
fires and explosions to other wastes; proper management of residues;
rehabilitation of emergency equipment and notification of authorities
before operations are resumed; and recordkeeping and reporting to NJDEP
or EPA on the nature and consequences of any incident that requires
implementing the contingency plan.
(vi) Personnel Training: As proposed in today's rule, generators
participating in Gold Track who accumulate hazardous waste on-site for
up to180 days (or 270 days, as applicable) would be subject to the
provisions for personnel training in 40 CFR 265.16. These requirements
are designed to ensure that personnel are adequately prepared to manage
hazardous waste and respond to any emergencies that are likely to
arise.
Personnel training could be in the form of on-the-job or classroom
training, but would have to be performed by an instructor who is
trained in hazardous waste management procedures. Personnel training
would have to be performed within six months of initial employment and
must be renewed annually. A participating generator would also be
required to maintain records in accordance with 40 CFR 265.16(d) to
document completion of the training requirements for employees.
[[Page 18542]]
6. Special Conditions for Gold Track Generators Accumulating Hazardous
Waste For Up to 180 (or 270) Days
In addition to complying with the management standards currently
applicable to 90-day accumulation of hazardous waste (described above),
Gold Track generators would also have to comply with several conditions
unique to this XL project in order to accumulate their hazardous waste
for up to 180 (or 270 days).
Gold Track generators would be required to make information (such
as manifests, costs, environmental releases) available to NJDEP as may
be necessary to track the progress and measure the impact of longer
accumulation times. If requested, Gold Track generators would also be
required to participate in informational meetings with NJDEP.
Collecting this information from the Gold Track generators would ensure
that NJDEP and EPA would have data that provides a basis for evaluating
the impacts of longer accumulation time, including whether it may
optimize the ability of the generators to carry out activities
incidental to the generation of hazardous waste. In addition, Gold
Track generators would be required to notify NJDEP, in writing, of
their intent to accumulate hazardous waste for up to 180 (or 270) days.
This notification would assist NJDEP and EPA in the tracking and
information gathering activities associated with this flexibility.
Additionally, as previously mentioned, participating Gold Track
generators accumulating their hazardous waste up to 180 days (270 days
if applicable) in containers would be required to comply with
Sec. 264.175, which does not currently apply to generators accumulating
hazardous waste. Section 264.175 imposes ``secondary containment''
requirements on containers holding hazardous waste. Compliance with
Sec. 264.175 would provide an added level of protection against
releases to the environment by ensuring that any leaks from the
containers storing the waste would be contained in the accumulation
area.
C. State Authority--Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize a qualified State to
administer and enforce a hazardous waste program within the State in
lieu of the federal program, and to issue and enforce permits in the
State. (See 40 CFR part 271 for the standards and requirements for
authorization.) Following authorization, a State continues to have
enforcement responsibilities under its law to pursue violations of its
hazardous waste program. EPA continues to have independent authority
under RCRA sections 3007, 3008, 3013, and 7003.
After authorization, Federal rules written under RCRA provisions
that predate the Hazardous and Solid Waste Amendments of 1984 (HSWA),
no longer apply in the authorized state. The legal obligations imposed
pursuant to RCRA provisions predating HSWA do not take legal effect in
an authorized state until the state adopts the provisions under state
law.
In contrast, under sections 3004 and 3006(g) of RCRA, new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time they take effect in non-authorized States. EPA
is directed to carry out HSWA requirements and prohibitions in
authorized States until the State is granted authorization to do so.
Today's proposed rule is not promulgated under HSWA authorities.
Consequently, the final rule will not amend the authorized program for
the State of New Jersey upon promulgation, and EPA will not implement
the rule. The authorized RCRA Program will change when EPA approves New
Jersey's application for a revision to its RCRA Program.
For the proposed Gold Track Rule, EPA encourages NJDEP to
expeditiously adopt Gold Track regulations and begin program
implementation. To revise the federally-authorized RCRA Program, NJDEP
would need to seek formal authorization for the Gold Track Rule after
program implementation.
It is EPA's understanding that New Jersey intends to develop
appropriate legal mechanisms to implement today's rule and that it will
be seeking RCRA authorization for the program. At the same time, EPA
expects that the state will begin implementing its program as soon as
it is allowable under state law, while the RCRA authorization process
proceeds. To ensure prompt implementation of the project, EPA
encourages the state to take this approach.
V. Additional Information
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety 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 entitlement, grants,
user fees, or loan programs of 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.
Because the annualized cost of this proposed rule will be
significantly less than $100 million and will not meet any of the other
criteria specified in the Executive Order, it has been determined that
this rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866, and is therefore not subject to OMB review.
B. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et.
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the
[[Page 18543]]
regulatory flexibility analyses is to identify and address regulatory
alternatives ``which minimize any significant economic impact of the
proposed rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an
agency may certify that a rule will not have a significant economic
impact on a substantial number of small entities if the rule relieves
regulatory burden, or otherwise has a positive economic effect on all
of the small entities subject to the rule. Moreover, the proposed rule
will not impose any requirements on small entities. Gold Track is a
voluntary program that offers sources flexibility in complying with
regulatory requirements. We expect applications only from firms which
have determined that the benefits of their participation will outweigh
the costs. We have therefore concluded that today's proposed rule will
relieve regulatory burden for any small entities that choose to
participate in this voluntary program. We continue to be interested in
the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.
C. Paperwork Reduction Act
This proposed rule will only apply to a maximum of nine facilities,
and therefore requires no information collection activities subject to
the Paperwork Reduction Act. Therefore, no information collection
request (ICR) will be submitted to OMB for review in compliance with
the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. Given that participation in
Gold Track is purely voluntary, the proposed Gold Track rule imposes no
enforceable duty on any State, local or tribal governments or the
private sector. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the UMRA. In addition, because
this proposed rule contains no regulatory requirements that might
significantly or uniquely affect small governments, it is not subject
to UMRA section 203.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) is determined to be ``economically
significant,'' as defined under Executive Order 12866; and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
The portions of this proposal that would amend the current CAA
regulations are not subject to Executive Order 13045 because the EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. These portions of this proposal are not
subject to Executive Order 13045 because they are based in part on
technology performance and in part implement previously promulgated
health or safety based standards, the National Ambient Air Quality
Standards (NAAQS). In addition, they are not subject to Executive Order
13045 because they are not economically significant as defined by
Executive Order 12866.
The portions of this proposal that would amend the current RCRA
regulations are not subject to Executive Order 13045 because they are
not economically significant regulatory actions as defined by Executive
Order 12866, and the Agency does not have reason to believe the
environmental health risks or safety risks addressed by these actions
would present a disproportionate risk to children.
The proposal to provide participating Gold Track generators with up
to 180 (or 270) days accumulation time includes a condition that such
generators follow the current waste management standards for large
quantity generators accumulating hazardous waste on-site without a RCRA
permit. Similarly, the proposal to allow waste generators to obtain
variances from the definition of solid waste contains several
conditions. These provisions are discussed in detail in Section IV of
this preamble. EPA believes that these provisions are protective of
human health and the environment and minimize the likelihood of
exposure to hazardous waste held in accumulation units. For this
reason, EPA believes that the proposed 180 (or 270) day accumulation
time and the proposed solid waste variances would not result in
increased exposures to children.
F. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
The portions of this proposal that would amend the current RCRA
regulations do not have federalism
[[Page 18544]]
implications. They will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
These portions of the proposed rule are less stringent than the
existing federal RCRA Program, and RCRA authorized states are only
required to modify their programs when EPA promulgates federal
regulations that are more stringent or broader in scope than the
authorized state regulations. Similarly, the portions of this proposal
that would amend the current CAA regulations do not have federalism
implications. They will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
They provide facilities that receive regulatory flexibility from their
state with similar flexibility under federal law. Thus, the
requirements of Section 6 of this Executive Order do not apply to this
proposal. Although section 6 of the Order does not apply to this rule,
EPA consulted extensively with State officials, as noted throughout
today's proposed rule and in particular in section II.C., above.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
G. Executive Order 13175: Consultation and Coordination With Tribal
Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This proposed rule affects only private entities. Thus, Executive Order
13175 does not apply to this rule. In the spirit of Executive Order
13175, and consistent with EPA policy to promote communications between
EPA and tribal governments, EPA specifically solicits additional
comment on this proposed rule from tribal officials.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standard. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
EPA welcomes comments on this aspect of the proposed rulemaking and,
specifically, invites the public to identify potentially-applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 264
Environmental protection, Air pollution control, Hazardous waste
insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste
insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds. Water supply.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
Dated: March 28, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 51.165 is amended:
a. By adding a new sentence to the end of paragraph (a)(1)(ii).
b. By adding a new paragraph (a)(1)(v)(C)(10).
The additions read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
[[Page 18545]]
(i) * * *
(ii) * * * Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE
FEDERAL FINAL RULEMAKING BECOMES EFFECTIVE], this definition does not
apply to combined heat and power (CHP) facilities in the State of New
Jersey that are participants in the New Jersey Gold Track Program set
forth in Subchapter 2 of the N.J.A.C 7:1M.
* * * * *
(v) * * *
(C) * * *
(10) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL
FINAL RULEMAKING BECOMES EFFECTIVE], changes (including the addition of
new emissions units or changes to existing emissions units) at
stationary sources in the State of New Jersey that are participants in
the New Jersey Gold Track Program set forth in Subchapter 2 of the
N.J.A.C 7:1M, provided the stationary source emits within the annual
emissions limitations (caps) established under the New Jersey Gold
Track Program.
* * * * *
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et. seq.
3. Section 52.1603 is amended by:
a. Adding text to the end of paragraph (b).
b. Adding paragraphs (c) and (d).
The additions read as follows:
Sec. 52.1603 Significant deterioration of air quality.
* * * * *
(b) * * * except as provided in paragraphs (c) and (d) of this
section.
(c) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL FINAL
RULEMAKING BECOMES EFFECTIVE], for stationary sources in the State of
New Jersey that are participants in the New Jersey Gold Track Program
set forth in Subchapter 2 of the N.J.A.C 7:1M:
(1) Changes (including the addition of new emissions units or
changes to existing emissions units) at a stationary source are not
physical changes or changes in the method of operation and therefore
are not major modifications as otherwise defined in 40 CFR 52.21(b)(2),
provided the stationary source emits within the annual emissions
limitations (caps) established under the New Jersey Gold Track Program.
(2) ``The date on which the annual emissions limitation (cap)
established under the New Jersey Gold Track Program became effective,
not to exceed 15 years before construction on the particular change
commences; and'' applies instead of 40 CFR 52.21 (b) (3) (ii) (a).
(d) Until [DATE EIGHTEEN YEARS FROM THE DATE THAT THE FEDERAL FINAL
RULEMAKING BECOMES EFFECTIVE], 40 CFR 52.21 (b) (6) does not apply to
combined heat and power (CHP) facilities in the State of New Jersey
that are participants in the New Jersey Gold Track Program set forth in
Subchapter 33 of the N.J.A.C. For such CHP facilities, ``building,
structure, facility, or installation'' includes both the CHP facility
itself and heating/cooling equipment at the facility to which the CHP
facility supplies electricity and heating/cooling (``the CHP energy
user''), provided that there is a contractual agreement between the CHP
facility and the CHP energy user which states that the emissions
reductions from shutting down or curtailing the heating/cooling
equipment at the CHP energy user are to be credited to the CHP
facility, rather than the CHP energy user.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
2. Section 261.4 is amended by adding paragraph (a)(20) to read as
follows:
Sec. 261.4 Exclusions.
(a) * * *
(20) Secondary materials (i.e., sludges, by products, and spent
materials as defined in Sec. 261.1) that are reclaimed and/or reused
are excluded from the definition of solid waste for facilities
participating in the New Jersey Gold Track Program with a signed and
approved covenant with NJDEP provided that:
(i) The secondary material is not destined to be burned for energy
recovery or used in a manner constituting disposal as described in
Sec. 261.2(c)(1) and Sec. 261.2(c)(2);
(ii) The secondary material is not inherently waste-like as
described in Sec. 261.2(d);
(iii) The generator in the Gold Track Program applies to the
Director, as appropriate, supplying the following information: the
types and composition of material(s) to be recycled; a description of
the recycling to be conducted; and its assessment, including supporting
information that the material will be legitimately recycled and the
locations where storage and recycling will occur;
(iv) The Director makes a site specific determination that the
material will be legitimately recycled to recover material values;
(v) The generator in the Gold Track Program informs and receives
approval from the Director regarding the waste streams, recycling
process and location identified in paragraph (a)(2)(iii) of this
section;
(vi) Any on-site accumulation or storage of the secondary material
prior to recycling takes place only in tanks and containers as defined
in 40 CFR 260.10. Accumulation and storage in containers must comply
with the requirements of subpart I of 40 CFR part 265 and secondary
containment requirements found in 40 CFR 264.175. Accumulation and
storage in tanks must comply with the requirements of 40 CFR part 265,
subpart J. No restrictions on speculative accumulation as defined in
Secs. 261.1 and 261.2(c)(4) apply;
(vii) Containers and tanks at the generator's facility used to
accumulate or store materials subject to this exclusion are labeled to
properly identify the contents and the date the material was originally
placed into the container, and records are kept for each container and
tank indicating the contents and date the material was placed in the
tank or container;
(viii) The generator of the excluded materials submits an annual
report documenting recycling activities that shall specify:
(A) The amount of excluded material in inventory at the facility at
the time the flexibility specified at N.J.A.C. 7:2733 is granted to the
facility;
(B) The amount of excluded material generated during each twelve
month period after the exclusion takes effect;
(C) The amount of excluded material recycled during the same
twelve-month period;
(D) A description of how the excluded material was recycled; and
(E) Any significant changes in the excluded material wastestream,
the recycling processes used, and the location of recycling sites.
(ix) If a participating entity withdraws from the Gold Track
Program prior to the expiration of its exclusion, or if NJDEP
terminates an entity's participation prior to such expiration, the
entity must return to compliance with all otherwise applicable
hazardous waste regulations as soon as practicable but no later than
six months after the date of withdrawal or termination.
(x) This section will expire eighteen years after the federal
rulemaking
[[Page 18546]]
becomes effective; or earlier, if either New Jersey or EPA terminates
the program and EPA promulgates a rule removing these provisions from
the Code of Federal Regulations.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
2. Part 262 is amended by adding subpart K consisting of
Sec. 262.120 to read as follows:
Subpart K--New Jersey Gold Track Program XL Project
Sec. 262.120 Standards applicable to generators of hazardous waste
participating in the New Jersey gold track program.
(a) A generator participating in Gold Track with a signed and
approved covenant agreement with NJDEP and who generates greater than
1000 kilograms of hazardous waste per calendar month or 1 kilogram of
acute hazardous waste as listed in 40 CFR 261.31, 261.32, and
261.33(e.), may accumulate that hazardous waste onsite for more than 90
days, but not more than 180 days without a permit or without having
interim status provided that:
(1) The waste is placed:
(i) In containers and the generator complies with the applicable
requirements of subpart I, of 40 CFR part 265; and 40 CFR 264.175; and/
or
(ii) In tanks, and the generator complies with applicable
requirements in subparts J, of 40 CFR part 265 except Secs. 265.197(c)
and 265.200;
(2) The date upon which each period of accumulation begins is
clearly marked and visible for inspection on each container;
(3) While being accumulated on-site, each container and tank is
labeled or marked clearly with the words ``hazardous waste';
(4) The generator complies with the requirements for owners or
operators in Subparts C and D in 40 CFR part 265, with Sec. 265.16, and
with 40 CFR 268.7(a)(5). In addition, such a generator is exempt from
all the requirements in subparts G and H of 40 CFR part 265, except for
Secs. 265.111 and 265.114;
(5) The generator notifies the Director in writing of its intent to
accumulate its hazardous waste in accordance with this section; and
(6) The generator makes information (such as manifest, costs,
environmental releases) available to the Director and, if requested,
participates in informational meetings with the Director as may be
necessary to track progress and measure the impact of longer
accumulation time limits.
(b) A generator participating in Gold Track and who generates
greater than 1000 kilograms of hazardous waste or 1 kilogram of acute
hazardous waste as listed in 40 CFR 261.31, 261.32, and 261.33(e.) per
calendar month and who must transport this waste, or offer this waste
for transportation over a distance of 200 miles or more may accumulate
that hazardous waste onsite for more than 90 days, but not more than
270 days without a permit or without having interim status if the
generator complies with the requirements of paragraphs (a)(1) through
(a)(6) of this section.
(c) A generator accumulating hazardous waste in accordance with
paragraphs (a) and (b) of this section who accumulates that hazardous
waste onsite for more than 180 days (or for more than 270 days if the
generator must transport this waste or offer the waste for
transportation over a distance of 200 miles or more), is an operator of
a storage facility and is subject to the requirements of 40 CFR parts
264 and 265 and the permit requirements of 40 CFR part 270 unless the
generator has been granted an extension to the 180 day (or 270 days if
applicable) limit. An extension of up to 30 days may be granted at the
discretion of the Director on a case-by-case basis. Such 30 day
extensions may be granted by the Director if hazardous waste must
remain onsite for longer than 180 days (or 270 if applicable) due to
unforseen, temporary, and uncontrollable circumstances.
(d) If a participating entity withdraws from the Gold Track Program
prior to the expiration of its exclusion, or if the Director terminates
an entity's participation prior to such expiration, the entity must
return to compliance with all otherwise applicable hazardous waste
regulations no later than six months after the date of withdrawal or
termination.
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.
2. Section 264.1 is amended by adding paragraph (g)(13) to read as
follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(13) A generator participating in the Gold Track Program with a
signed and approved covenant agreement with NJDEP storing or
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937 unless otherwise noted.
2. Section 265.1 is amended by adding paragraph (c)(16) to read as
follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(16) A generator participating in the Gold Track Project with a
signed and approved covenant agreement with NJDEP storing or
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
2. Section 270.1 is amended by adding paragraph (c)(2)(x) to read
as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(2) * * *
(x) A generator participating in the Gold Track Project with a
signed and approved covenant agreement with NJDEP storing or
accumulating hazardous waste in accordance with 40 CFR 262.120.
* * * * *
[FR Doc. 02-8951 Filed 4-15-02; 8:45 am]
BILLING CODE 6560-50-P