[Federal Register Volume 69, Number 78 (Thursday, April 22, 2004)]
[Rules and Regulations]
[Pages 21737-21754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9042]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63 and 262
[OA-2004-0001; FRL-7650-6]
RIN 2090-AA13
National Environmental Performance Track Program
AGENCY: Environmental Protection Agency (EPA)
ACTION: Final rule.
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SUMMARY: EPA is issuing regulations applicable only to members of EPA's
National Environmental Performance Track Program (Performance Track, or
the Program). Today's action includes a revision to the Resource
Conservation and Recovery Act (RCRA) regulations to allow hazardous
waste generators who are members of Performance Track up to 180 days,
and in certain cases 270 days, to accumulate their hazardous waste
without a RCRA permit or interim status; and simplified reporting
requirements for facilities that are members of Performance Track and
governed by Maximum Available Control Technology (MACT) provisions of
the Clean Air Act (CAA). Today's final rule reflects EPA's response to
comments filed by the public, interested stakeholders and associations,
the Performance Track Participants Association, and Performance Track
members. These provisions are intended to serve as incentives for
facility membership in the National Environmental Performance Track
Program while ensuring the current level of environmental protection
provided by the relevant RCRA and MACT provisions.
DATES: This final rule is effective on April 22, 2004.
[[Page 21738]]
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OA-2004-0001. All documents in the docket are listed in the EDOCKET
index at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Office of Environmental Information Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Office
of Environmental Information Docket is (202) 566-1752. In addition to
being available in the docket, an electronic copy of this final rule
will also be available on the Worldwide Web through the National
Environmental Performance Track (Performance Track) Web site at http://www.epa.gov/performancetrack.
FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Sachs, Performance
Incentives Division, Office of Business and Community Innovation,
Office of Policy, Economics and Innovation, Office of Administrator,
Mail Code 1808T, United States Environmental Protection Agency, 1200
Pennsylvania Avenue, Washington, DC 20460; telephone number 202-566-
2884; fax number 202-566-0966; e-mail address: [email protected], or
Mr. Chad Carbone, Performance Incentives Division, Office of Business
and Community Innovation, Office of Policy, Economics and Innovation,
Office of Administrator, Mail Code 1808T, United States Environmental
Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460;
telephone number 202-566-2178; fax number 202-566-0292; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Categories and entities potentially regulated by this action
include all entities regulated by EPA, pursuant to its authority under
the various environmental statutes, who voluntarily decide to join the
Performance Track Program. Thus, potential respondents may fall under
any North American Industry Classification System (NAICS) Code. The
following table lists the Primary NAICS Codes for all current
Performance Track members.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is eligible to be regulated by this action, you should
carefully examine the qualifying criteria for the Performance Track
Program at www.epa.gov/performancetrack. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Primary North American Industry Classification System (NAICS) Codes of
Current Performance Track Members
------------------------------------------------------------------------
Industry group SIC NAICS
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Surgical Appliance and Supplies Manufacturing. ........... 339113
Laboratory Apparatus and Furniture ........... 339111
Manufacturing................................
Pharmaceutical Preparation Manufacturing...... ........... 325412
All Other Miscellaneous Chemical Product and ........... 325998
Preparation Manufacturing....................
Fossil Fuel Electric Power Generation......... ........... 221112
Dry Cleaning and Laundry Services (except Coin- ........... 812320
Operated)....................................
Heating Oil Dealers........................... ........... 454311
Paper (except Newsprint) Mills................ ........... 322121
Radio and Television Broadcasting and Wireless ........... 334220
Communications Equipment Manufacturing.......
Surgical and Appliance and Supplies ........... 339113
Manufacturing................................
Research and Development in the Physical, ........... 541710
Engineering, and Life Sciences...............
Plastics Material and Resin Manufacturing..... ........... 325211
Wood Preservation............................. ........... 321114
All Other Basic Organic Chemical Manufacturing ........... 325199
Ball and Roller Bearing Manufacturing......... ........... 332991
Tire Manufacturing (except Retreading)........ ........... 326211
Semiconductor and Related Device Manufacturing ........... 334413
All Other Motor Vehicle Parts Manufacturing... ........... 336399
Fruit and Vegetable Canning................... ........... 311421
Paperboard Mills.............................. ........... 322130
Commercial Screen Printing.................... ........... 323113
Unlaminated Plastics Film and Sheet (except ........... 326113
Packaging) Manufacturing.....................
Electronic Computer Manufacturing............. ........... 334111
Other Motor Vehicle Electrical and Electronic ........... 336322
Equipment Manufacturing......................
Surgical and Medical Instrument Manufacturing. ........... 339112
Ophthalmic Goods Manufacturing................ ........... 339115
All Other Miscellaneous Manufacturing......... ........... 339999
Hydroelectric Power Generation................ ........... 221111
Electric Bulk Power Transmission and Control.. ........... 221121
Electric Power Distribution................... ........... 221122
Medicinal and Botanical Manufacturing......... ........... 325411
All Other Miscellaneous Nonmetallic Mineral ........... 327999
Product Manufacturing........................
Printed Circuit Assembly (Electronic Assembly) ........... 334418
Manufacturing................................
Motor Vehicle Body Manufacturing.............. ........... 336211
Dry, Condensed, and Evaporated Dairy Product ........... 311514
Manufacturing................................
[[Page 21739]]
Carpet and Rug Mills.......................... ........... 314110
Cut Stock, Re-sawing Lumber, and Planing...... ........... 321912
All Other Basic Inorganic Chemical ........... 325188
Manufacturing................................
Soap and Other Detergent Manufacturing........ ........... 325611
Custom Compounding of Purchased Resins........ ........... 325991
All Other Plastics Product Manufacturing...... ........... 326199
Concrete Block and Brick Manufacturing........ ........... 327331
Iron and Steel Mills.......................... ........... 331111
Aluminum Die-Casting Foundries................ ........... 331521
Metal Coating, Engraving (except Jewelry and ........... 332812
Silverware), and Allied Services to
Manufacturers................................
Farm Machinery and Equipment Manufacturing.... ........... 333111
Office Machinery Manufacturing................ ........... 333313
Pump and Pumping Equipment Manufacturing...... ........... 333911
Electron Tube Manufacturing................... ........... 334411
Search, Detection, Navigation, Guidance, ........... 334511
Aeronautical, and Nautical System and
Instrument Manufacturing.....................
Instrument Manufacturing for Measuring and ........... 334515
Testing Electricity and Electrical Signals...
Prerecorded Compact Disc (except Software), ........... 334612
Tape, and Record Reproducing.................
Magnetic and Optical Recording Media ........... 334613
Manufacturing................................
Motor and Generator Manufacturing............. ........... 335312
Motor Vehicle Transmission and Power Train ........... 336350
Parts Manufacturing..........................
Aircraft Manufacturing........................ ........... 336411
Guided Missile and Space Vehicle Manufacturing ........... 336414
Sporting and Athletic Goods Manufacturing..... ........... 339920
Solid Waste Combustors and Incinerators....... ........... 562213
National Security............................. ........... 928110
Potash, Soda, and Borate Mineral Mining....... ........... 212391
Malt Manufacturing............................ ........... 311213
Cigarette Manufacturing....................... ........... 312221
Canvas and Related Product Mills.............. ........... 314912
Reconstituted Wood Product Manufacturing...... ........... 321219
Wood Window and Door Manufacturing............ ........... 321911
Pulp Mills.................................... ........... 322110
Nonfolding Sanitary Food Container ........... 322215
Manufacturing................................
Synthetic Organic Dye and Pigment ........... 325132
Manufacturing................................
Synthetic Rubber Manufacturing................ ........... 325212
Noncellulosic Organic Fiber Manufacturing..... ........... 325222
In-Vitro Diagnostic Substance Manufacturing... ........... 325413
Adhesive Manufacturing........................ ........... 325520
Polish and Other Sanitation Good Manufacturing ........... 325612
Surface Active Agent Manufacturing............ ........... 325613
Printing Ink Manufacturing.................... ........... 325910
Rubber Product Manufacturing for Mechanical ........... 326291
Use..........................................
All Other Rubber Product Manufacturing........ ........... 326299
Plate Work Manufacturing...................... ........... 332313
Metal Can Manufacturing....................... ........... 332431
Other Ordnance and Accessories Manufacturing.. ........... 332995
Printing Machinery and Equipment Manufacturing ........... 333293
Food Product Machinery Manufacturing.......... ........... 333294
Optical Instrument and Lens Manufacturing..... ........... 333314
Photographic and Photocopying Equipment ........... 333315
Manufacturing................................
Turbine and Turbine Generator Set Units ........... 333611
Manufacturing................................
Bare Printed Circuit Board Manufacturing...... ........... 334412
Electronic Capacitor Manufacturing............ ........... 334414
Automatic Environmental Control Manufacturing ........... 334512
for Residential, Commercial, and Appliance
Use..........................................
Instruments and Related Products Manufacturing ........... 334513
for Measuring, Displaying, and Controlling
Industrial Process Variables.................
Other Communication and Energy Wire ........... 335929
Manufacturing................................
Current-Carrying Wiring Device Manufacturing.. ........... 335931
Automobile Manufacturing...................... ........... 336111
Truck Trailer Manufacturing................... ........... 336212
Gasoline Engine and Engine Parts Manufacturing ........... 336312
Motor Vehicle Air Conditioning Manufacturing.. ........... 336391
Dental Equipment and Supplies Manufacturing... ........... 339114
Musical Instrument Manufacturing.............. ........... 339992
Other Nonhazardous Waste Treatment and ........... 562219
Disposal.....................................
Industrial Launderers......................... ........... 812332
Regulation and Administration of ........... 926120
Transportation Programs......................
Space Research and Technology................. ........... 927110
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[[Page 21740]]
Entities potentially affected by this final action also include
state, local, and Tribal governments that have been authorized to
implement these regulations.
Outline. The information presented in this preamble is organized as
follows.
I. General Information
A. Does this action apply to me?
II. Overview
A. What is the history of this action?
B. How have stakeholders been involved?
C. What incentives for members are envisioned?
D. What is EPA's rationale for this rule?
1. What environmental benefits will the Performance Track
Program bring to society?
2. How will these incentives maximize the benefits of the
Performance Track Program?
3. Will these incentives undercut existing environmental
protections?
4. How does the Performance Track Program design limit
membership to a uniquely appropriate set of facilities?
III. Final Rulemaking Changes
A. Maximum Achievable Control Technology (MACT)
1. Definition of Pollution Prevention
2. Reduced frequency of required MACT reporting for all eligible
Performance Track facilities
3. Reporting reductions for Performance Track facilities that
achieve MACT or better emission levels through pollution prevention
methods such as process changes
B. 180-Day accumulation time for Performance Track hazardous
waste generators
1. Background
2. What are the current requirements for large quantity
generator accumulation?
3. What is in today's final rule?
4. How will today's final rule affect applicability of RCRA
rules in authorized States?
IV. Summary of Environmental, Energy and Economic Impacts
A. What are the cost and economic impacts?
B. What are the health, environmental, and energy impacts?
V. Effective Date for Today's Requirements
VI. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
VII. Statutory Authority
VIII. Judicial Review
II. Overview
A. What Is the History of This Action?
EPA announced the National Environmental Performance Track Program
on June 26, 2000. The Program is designed to recognize and encourage
top environmental performers--those who go beyond compliance with
regulatory requirements to attain levels of environmental performance
and management that provide greater benefit to people, communities, and
the environment. The Program is based upon the experiences of EPA,
states, businesses, and community and environmental groups with new
approaches that achieve high levels of environmental protection with
greater efficiency. This experience includes: EPA's Common Sense
Initiative, designed to improve environmental results by tailoring
strategies for six industry sectors; the national Environmental
Leadership Program and EPA Region I's Star Track Program, designed as
new ways to encourage businesses to do better than required; and many
performance track-type programs in states such as Texas, Oregon,
Wisconsin, New Jersey, and Virginia.
EPA currently is implementing the Performance Track Program,
formerly known as the Achievement Track Program. The Program is
designed to recognize facilities that consistently meet their legal
requirements, that have implemented management systems to monitor and
improve performance, that have voluntarily achieved environmental
improvements beyond compliance, and that publicly commit to specific
environmental improvements and to report on their progress in doing so.
A complete description of the Performance Track Program, its
requirements, and other program materials are available on EPA's Web
site (www.epa.gov/performancetrack) or by calling the Performance Track
Information Center toll free at 1-888-339-PTRK (7875).
Performance Track is a voluntary program. Decisions to accept and
remove facilities are wholly discretionary to EPA, and applicants or
potential applicants have no legal right to challenge EPA's decision.
EPA has held seven Performance Track application periods--between
August 2000 and October 2000; between February 2001 and April 2001;
between August 2001 and October 2001; between February 2002 and April
2002; between August 2002 and October 2002; between February 2003 and
April 2003; and between August 2003 and October 2003. In the future,
EPA plans to continue holding two application periods each year. There
have been 508 facility applicants to Performance Track since its
inception. A total of 409 facilities have been accepted into the
Program as members. There are currently 344 members in the Program.
Generally, facilities that are no longer members (65) have either
closed, experienced a change in ownership, or have been dropped from
membership in Performance Track for failing to continue to meet program
standards.
Today's final rule establishes several regulatory incentives that
are enforceable legal requirements for facilities that are members of
the Performance Track Program and have taken all other steps required
for the applicability or implementation of the individual regulatory
incentives. Full eligibility and other Program requirements can be
found at the Performance Track Web site (www.epa.gov/performancetrack).
The Agency believes that, because of the stringency of the Program
criteria, facilities in Performance Track should receive the non-
regulatory and regulatory benefits outlined in the Program Description
(and summarized below). Specifically, for acceptance in Performance
Track, facilities must:
Have adopted and implemented an environmental
management system (EMS) that includes specific elements;
Be able to demonstrate environmental
achievements and commit to continued improvement in particular
environmental categories;
Engage the public and report on their
environmental performance; and
Have a record of sustained compliance with
environmental requirements.
In addition, Performance Track is designed so that EPA and other
stakeholders can monitor and track the implementation of the benefits
currently being offered to Program members, as well as those being
considered. Member facilities commit to providing annual reports on the
status of their efforts to achieve their commitments to improvements in
specific environmental categories.
This reporting commitment and other activities to engage the public
result in a high level of scrutiny that will aid in monitoring the
activities of the Performance Track Program. EPA analyzes these data
and publishes a program report annually. This report can be found at
www.epa.gov/performancetrack. Last, facilities are accepted into
Performance Track for a
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period of three years. To continue receiving the benefits associated
with the Program, facilities must renew their membership, which
requires developing additional, continuing commitments to environmental
performance improvements.
In its efforts to promote improved environmental performance
through the National Environmental Performance Track, EPA is evaluating
additional regulatory incentives that could be applied to qualifying
facilities. Today's rule is one step among several in developing
incentives that will promote participation in the Program and the
associated environmental benefits. These incentives will include both
those that will be implemented through rulemaking (such as the
regulatory changes issued today) and those that may be accomplished
through policy, guidance, or administrative action by EPA or the
states.
EPA proposed today's rule on August 13, 2002 (67 FR 52674), and the
public comment period remained open until November 12, 2002. EPA
received comments from 26 different groups. These included 10
Government entities and States; one public sector association; three
nongovernmental organizations; seven industry trade associations; and
five industry representatives. The majority of comments were supportive
and made positive suggestions to improve the Program. Responses to
comments are included throughout this preamble where EPA describes the
content of the rule (see Section III. A. and B.).
B. How Have Stakeholders Been Involved?
During the development of the Performance Track Program and
subsequent to its announcement in June 2000, EPA held many meetings
with a wide array of stakeholders. Stakeholders included companies,
non-governmental organizations, states, associations, and others. Over
the course of these meetings, EPA has discussed a broad range of
issues, including any incentives that would reward Performance Track
members, as well as incentives that would motivate non-Performance
Track facilities to implement environmental improvements that would
qualify them for membership in the Program.
This rule grew out of the stakeholders' collective interest in
promoting incentives for participating facilities. Since the inception
of the Program, EPA has held four meetings with state regulators: May
2000 in Denver, February 2001 in Chicago, November 2001 in Charleston,
and January 2003 in Denver. At each of these meetings, break-out
sessions were held to solicit feedback from state personnel on
potential incentives to be offered to Performance Track members.
On December 12, 2000, EPA held a ``Charter Event'' for the first
round of Performance Track members. At this meeting EPA held a series
of breakout discussions. During these sessions, ideas about incentives
that could become part of the regulatory framework were discussed.
Similarly, on October 30, 2001 EPA met with a variety of
stakeholders including associations, non-governmental organizations,
and states to discuss EPA's ``Innovations Strategy.'' During this
meeting EPA held a specific breakout session on incentives that could
be made available for Performance Track members.
In addition, EPA has had discussions regularly with individual
Performance Track participants and the Performance Track Participants
Association (PTPA), which comprises 165 members. The PTPA is a
nonprofit organization that provides a forum for corporations, trade
associations, and public entities dedicated to improving their
environmental performance through the vehicle of the Performance Track
Program. The PTPA meets regularly for member events, and convenes a
member conference annually. The PTPA also has an Incentives Workgroup
that focuses on identifying and advocating incentives for Performance
Track members.
EPA is also working with 23 trade organizations through the
Performance Track network to further enhance participation in the
Program. Performance Track Network Partners join in a partnership to
educate top environmental performers about the value of participating
in Performance Track. This partnership increases information available
to top environmental performers and provides greater opportunities to
them. Network Partners include the following organizations: Academy of
Certified Hazardous Waste Managers, American Chemistry Council,
American Furniture Manufacturers Association, American Textile
Manufactures Institute, Associated General Contractors (AGC) of
America, the Auditing Roundtable, Cement Kiln Recycling Coalition,
Global Environment & Technology Foundation Public Entity EMS Resource
(PEER) Center, Greening of Industry Network (GIN), International
Carwash Association, National Association of Chemical Distributors,
National Paint and Coatings Association, National Defense Industrial
Association, National Pollution Prevention Roundtable, National Ready
Mixed Concrete Association, National Stone, Sand and Gravel
Association, NORA (an Association of Responsible Recyclers), North
American Die Casting Association, Screenprinting and Graphic Imaging
Association International, Steel Manufacturers Association (SMA),
Synthetic Organic Chemical Manufacturers Association (SOCMA), Voluntary
Protection Programs Participants' Association, and Wildlife Habitat
Council.
C. What Incentives for Members Are Envisioned?
The Performance Track Program Description at http://www.epa.gov/performancetrack/, (publication number EPA-240-F-01-002) provides a
list of incentives the Agency originally intended to make available to
member facilities. EPA currently offers several incentives that are
available to members when they enter the Program (e.g., recognition,
networking opportunities, low priority for routine inspection). EPA is
also in the process of developing other incentives in areas of the
Resource Conservation and Recovery Act (RCRA), the Clean Water Act
(CWA), and the Clean Air Act (CAA). These incentives include policy,
guidance, and regulatory approaches. In some cases, other actions also
must be completed before a facility may take advantage of an incentive.
For example, states are responsible for implementing parts of many
federal environmental programs. In such cases, states may need to
revise regulations, seek EPA approval of a revised program, re-issue
permits, or take other actions. EPA has made funds available to
approximately 20 states to identify where existing state laws may need
to be revised to support the National Environmental Performance Track.
EPA maintains ongoing contact with State regulators to keep them
apprised of new developments, and learn about their approaches. Further
information is available at epa.gov/performancetrack/benefits/index.htm.
In the Program Description, EPA also committed to propose specific
regulatory changes as incentives for membership in the Performance
Track. The changes in today's final rule fulfill one aspect of EPA's
follow up on this commitment.
EPA is issuing today's regulatory changes to encourage membership
in the Program and to acknowledge and further promote realization of
the environmental and other benefits resulting from the actions of
member facilities. EPA excluded incentives that would involve a
relaxation of substantive standards of performance or
[[Page 21742]]
that would require statutory change. EPA identified incentives that
would apply broadly to different types of facilities, that reduce the
reporting and other operating costs of the current system, and that can
be implemented nationally.
EPA believes it is important to offer the kinds of incentives
described here for several reasons. First, the achievements of these
facilities deserve public recognition. Second, some of the reporting
and other administrative requirements that apply to the broader
regulated community may not be needed for Performance Track facility
members because they have implemented appropriate environmental
management systems, have consistently met their regulatory commitments,
and have agreed to make information regarding their performance
publicly available. Third, these incentives may offer the opportunity
for member facilities to apply their resources to achieving even better
environmental performance. And finally, the availability of these
incentives should encourage other facilities to make environmental
improvements that will enable them to qualify for membership.
In this final rule, EPA is changing certain regulatory provisions
of the CAA and RCRA. These incentives provisions are applicable
exclusively to members of Performance Track. They include:
Reducing the frequency of reports required under
the CAA, and in some circumstances submitting an annual certification
in lieu of an annual report. In this incentive, first EPA reduces the
frequency of required MACT reporting for all eligible Performance Track
facilities to an interval that is twice the length of the regular
reporting period. This incentive does not apply to major air sources,
but it does apply to area air sources if they are not required to hold
CAA Title V permits. The second part of this air incentive provides
Performance Track facilities with three options to submit an annual
certification that all required monitoring and recordkeeping
requirements have been met in lieu of the periodic report. For major
air sources and area sources required to hold CAA Title V permits
however, reports must still be submitted at least semi-annually in
order to meet CAA Title V statutory requirements.
Allowing large quantity hazardous waste
generators who are members of the Performance Track up to 180 days (and
270 days if the waste must be transported 200 miles or more) to
accumulate hazardous waste without a RCRA permit or interim status,
provided that these generators meet certain conditions. This incentive
will result in fewer loads of hazardous waste being transported.
EPA also proposed changes to certain Clean Water Act regulations
(CWA) in August 2002. The incentives proposed streamlined reporting
requirements for Publicly Owned Treatment Works (POTWs). EPA has
decided not to adopt the changes proposed in this rulemaking. This
decision is based primarily on public comments that such changes should
be offered to all POTWs, not only Performance Track members. The agency
will continue to consider this matter.
EPA acknowledges comments received on another potential regulatory
incentive--the opportunity for Performance Track Facilities to
consolidate reporting under various environmental statutes into a
single report. Comments included recommendations for a pilot program
with a cross-section of facilities, facility sizes, and states and the
need to ensure compliance and include performance metrics in exchange
for any consolidated reporting incentive. EPA will continue to explore
the potential for this incentive with EPA's Office of Environmental
Information.
The incentives in today's final rule are part of a broad series of
incentives that EPA is currently developing and intends to provide for
Performance Track members in the future. That is, EPA continues to
seek, analyze, develop, and implement new incentives that apply only to
its Performance Track members. As an example, on May 15, 2003, EPA
proposed a MACT rule (68 FR 26249) that would further promote improved
environmental performance through incentives that are only available to
facilities participating in the Performance Track program. Also, on
October 29 2003, EPA published a Notice of Data Availability (NODA) in
RCRA (69 FR 61662) as part of EPA's burden reduction initiative. The
NODA supplemented EPA's January 17, 2002 proposal entitled ``Resource
Conservation and Recovery Act Burden Reduction Initiative'' at 67 FR
2518. This provision proposes to decrease the frequency of facility
self-inspections for certain types of storage units for Performance
Track member facilities.
D. What Is EPA's Rationale for This Rule?
EPA believes that facilities who demonstrate top environmental
performance through membership in the Performance Track Program should
be provided with incentives, recognition and rewards for such behavior.
By providing regulatory incentives only available to members of
Performance Track, EPA believes membership in the Program will increase
over time. As membership increases, so will the number of environmental
commitments members make, and therefore the quantity of improvements to
the environment. Each facility member of Performance Track commits to
quantified, measurable environmental goals that are identified as
significant in their environmental management system. Members also
commit to report to EPA on an annual basis with the quantified results
of progress towards their commitments. As these goals are achieved, and
in some cases exceeded, impacts to the environment are reduced, notably
in some cases in areas that are not regulated by EPA or States. These
quantified, incremental environmental improvements and required
reporting are the core of EPA's Performance Track Program.
It is critically important to EPA that members of Performance Track
are truly top environmental performers. Regulatory incentives of the
nature envisioned by EPA for Performance Track members should be
available only to top environmental performers. To ensure that members
of Performance Track fit this general criterion, EPA developed specific
criteria for applicants to meet in order to be accepted. These are
described in moderate detail below.
Facilities must satisfy the four entry criteria to be accepted into
the Performance Track:
(1) Facilities must be in compliance with applicable Federal,
State, Local, and Tribal environmental regulations.
(2) Facilities must operate a well-designed environmental
management system (EMS) as part of their overall management system.
(3) Facilities must demonstrate a record of environmental
improvements for the previous two years beyond the minimums required of
them. Facilities also must take additional future actions and commit to
further improvements in the succeeding three years.
(4) Facilities must engage the public, and each year must report
publicly on their progress toward meeting the goals that they have
chosen, as well as summarize their compliance and the performance of
their EMS. EPA makes the applications and annual performance reports of
each facility member available to the public.
These criteria are the key to generating environmental
improvements; they were designed to work as an integrated approach. No
single criterion, standing alone, would provide EPA with the necessary
[[Page 21743]]
assurance that the changes finalized here will lead to increased
compliance or performance. However, the Agency believes that these
criteria in combination ensure that facilities eligible for regulatory
incentives are both capable of and committed to maintaining beyond-
compliance environmental performance and that any lapses will be rare
and quickly corrected by facility management. Further, the Agency and
the public will continue to receive information on facility compliance
and performance. Nothing in this final rule will compromise the ability
of the Agency to investigate and take action on suspected environmental
violations.
History of Sustained Compliance With Environmental Regulations: EPA
believes that a strong compliance history is a critical factor in
defining performance in the Performance Track. EPA, in cooperation with
State, local, and Tribal authorities to the extent possible, reviews
the compliance history of all applicants. Performance Track members
must have a record of compliance with environmental laws and be in
compliance with all applicable environmental requirements. They also
commit to maintaining the level of compliance needed to qualify for the
Program.
EPA screens all applications consistent with EPA's Compliance
Screening for EPA Partnership Programs: Policy Overview (located at
http://www.epa.gov/performancetrack/program/guidance.pdf ). In
evaluating an applicant's compliance record, EPA, along with its state
partners, consults available databases and enforcement information
sources. EPA encourages applicants to assess their own compliance
record as they make decisions regarding participation in this program.
Applicants can check their compliance record with EPA's Enforcement and
Compliance History Online (ECHO) database located at (http://www.epa.gov/echo).
Participation in the Performance Track is denied if the compliance
screen identifies any of the following criminal or civil activity
issues under Federal or State law:
Criminal Activity
Corporate criminal conviction or plea for
environmentally-related violations of criminal laws involving the
corporation or a corporate officer within the past 5 years.
Criminal conviction or plea of employee at the
same facility for environmentally-related violations of criminal laws
within the past 5 years.
Ongoing criminal investigation/prosecution of
corporation, corporate officer, or employee at the same facility for
violations of environmental law.
Civil Activity
Three or more significant violations at the
facility in the past 3 years.
Unresolved, unaddressed Significant Non-
Compliance (SNC) or Significant Violations (SV) at the facility.
Planned but not yet filed judicial or
administrative action at the facility.
Ongoing EPA- or state-initiated litigation at
the facility.
Situation where a facility is not in compliance
with the schedule and terms of an order or decree.
Environmental Management Systems: To satisfy the second program
criterion, a Performance Track member facility must have a mature
environmental management system. These systems 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, an
EMS often improves the facility's compliance record and reduces
accidents. However, 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 community surrounding the facility. An EMS allows
a facility to take additional environmental mitigation actions that are
highly effective and appropriate, providing better environmental
results as well as more flexibility than the existing regulatory
structure alone.
The EMS provisions in Performance Track are designed to ensure that
member facilities will continue not only to meet their regulatory
obligations, but also to perform better than required by regulation.
The Performance Track criterion specifies that a qualifying facility
must have an EMS that includes detailed elements in the following
categories: Environmental policy (including compliance with both legal
requirements and voluntary commitments), planning, implementation and
operation, checking and corrective action, and management review.
Additionally, qualifying EMSs must have been in full operation for at
least one review cycle (generally one year) and must have been audited.
The EMS requirements are described in more detail in EPA's National
Environmental Performance Track Program description at www.epa.gov/
PerformanceTrack.
Past and future environmental improvements: Facilities must
demonstrate their commitment to continuous environmental improvement.
To do this, facilities must identify accomplishments in specific
categories. The categories are: energy use, water use, materials use,
air emissions (including greenhouse gases), waste, discharges to water,
accidental releases, habitat preservation/restoration, and product
performance. Past improvements must have been beyond regulatory
requirements. In addition, Performance Track facilities must make use
of their EMSs to set and commit to achieving environmental performance
goals that go beyond regulatory requirements and that mitigate some
facility-selected significant environmental impacts. These performance
goals must be chosen among the specific categories identified above,
including both regulated and unregulated environmental impacts.
Because these performance goals and accomplishments go beyond
regulatory requirements and, in some cases, well beyond areas covered
by existing environmental regulations, EPA believes that facilities
that qualify for Performance Track have demonstrated a serious
commitment to real environmental improvement. By virtue of their
willingness to undertake greater environmental responsibilities, these
facilities have earned the confidence that they will maintain
compliance with regulatory requirements under the streamlined
procedures outlined in this final rule.
Public commitments: To satisfy the fourth Program criterion,
Performance Track facilities publicly disclose progress toward their
commitments and other performance information each year in an annual
progress report, including summary information regarding their EMS and
compliance with legal requirements. Because these commitments and the
performance reporting go beyond those required by current regulation,
communities have access to more information about the performance of
local facilities. This public scrutiny also provides an incentive for
firms to make meaningful commitments and achieve them.
EPA believes that facilities that make the choice to apply and to
demonstrate their commitments to environmental
[[Page 21744]]
improvements in the public spotlight impose upon themselves a unique
and particularly strong set of pressures to deliver this heightened
level of performance.
In time, EPA expects the Performance Track Program to produce
additional environmental gains as a result of the more efficient use of
the resources of federal, state, and local environmental authorities.
Because EPA expects the entry criteria to result in member facilities
that are carrying out their environmental obligations in a manner
beyond what is required of them, EPA believes that other authorities
will be able to shift enforcement and compliance resources to other
facilities in the regulated community. EPA believes this resource
reallocation may bring further environmental improvements, as limited
compliance resources are applied more effectively.
The regulatory changes EPA is issuing today will enable eligible
Performance Track members to reduce their reporting or other compliance
costs.
1. What Environmental Benefits Will the Performance Track Program Bring
to Society?
Over the past three years the Performance Track program has already
produced substantial environmental benefits beyond its member
facilities' legal requirements. Some of these environmental benefits
include reducing: energy use by 1.1 million mmBtus, water use by 475
million gallons, hazardous materials use by 908 tons, emissions of
volatile organic compounds by 329 tons, emissions of air toxics by 57
tons, emissions of nitrogen oxides by 152 tons, discharges to water of
biochemical oxygen demand, chemical oxygen demand, and total suspended
solids by 1,327 tons, toxic discharges to water by 5,543 tons, solid
waste by 150,000 tons, and hazardous waste by 692 tons. Member
facilities in the Program have also increased their use of reused and
recycled materials by 10,823 tons and have preserved or restored 2,698
acres of wildlife habitat. In addition to these benefits, which should
continue to increase, with additional membership into the Program, EPA
believes that the refocusing of resources made possible by the Program
may lead to additional environmental benefits as well as increased
compliance by non-member facilities. The public recognition and
administrative burden relief offered by Performance Track, to the
extent that they affect company's bottom lines, may also influence
company decisions to undertake additional non-regulatory projects that
go beyond regulatory requirements. The public will be able to judge the
nature and magnitude of these environmental benefits by examining the
annual reports that Performance Track facilities are required to
prepare and make public.
2. How Will These Incentives Maximize the Benefits of the Performance
Track Program?
Incentives play a crucial role in maximizing the environmental
benefits of any voluntary program. Facilities must perceive a benefit
to themselves that is at least equal to their perceived costs of
membership in a voluntary program. These costs include the
administrative burden of membership, as well as any costs incurred in
meeting the substantive requirements of the Program. Facility members
of the Performance Track Program also face the additional risk of
adverse public reaction if they fail to meet their environmental goals
or if their audits of compliance or EMS performance reveal problems.
These public risks are unique to Performance Track facilities.
Facilities participating in other EPA voluntary programs, as well as
facilities that do not participate in any voluntary program, may and do
keep audit information confidential. Improved public information about
the environmental performance of facilities is an important component
and public benefit of the Performance Track Program and it
significantly raises the costs perceived by facility managers for
internal oversights or lapses.
As more benefits to facility members in the Performance Track
Program become available and increase, more facilities will be
encouraged to apply. Increased program incentives may also generate
environmental benefits from non-members. If facilities that do not
currently meet the Performance Track Program criteria believe that
membership would benefit them, they may work to improve their
management systems and environmental performance to become eligible.
3. Will These Incentives Undercut Existing Environmental Protections?
The incentives in today's rule do not undercut existing
environmental protections. EPA believes the 180-day accumulation period
for hazardous waste and the reporting changes for MACT standards will
have no direct deleterious effects on the environmental performance of
Performance Track facilities. EPA and other regulatory bodies will
receive compliance information from Performance Track facilities less
frequently; however, all recordkeeping requirements remain in effect.
As a safeguard, EPA and the other governmental authorities retain their
ability to take enforcement actions against any facility that fails to
comply with permits or other obligations. The risk of a public removal
from this Program for failure to comply adds an extra incentive to
comply with Program requirements. EPA believes that this, and the fact
that facilities may be perceived by the public and by governmental
offices as better environmental performers than their competitors,
reduces the risk that any environmental damages will result from this
program or the regulatory changes EPA is adopting.
4. How Does the Performance Track Program Design Limit Membership to a
Uniquely Appropriate Set of Facilities?
EPA designed the Performance Track Program to generate improvements
in environmental performance of facilities. EPA believes that the entry
criteria and ongoing obligations for continued membership in
Performance Track (as summarized in the introduction to section D) will
bring about benefits to the environment such as decreased releases of
pollutants to the air, water, and land; greater efficiency in energy
and raw material usage; and decreased risks of accidental releases of
hazardous substances. These incremental environmental benefits will
stem from the facilities' activities that are tied to their membership
in Performance Track, which justifies making available to this category
of facilities the benefits of the modified requirements issued today.
Further, EPA believes that there are controls and safeguards built
into the Performance Track Program that reduce the possibility a
facility will receive the benefits of today's modified requirements
without the facility delivering improved environmental performance.
EPA's announcement of this Program (www.epa.gov/PerformanceTrack)
describes how applications are reviewed and facilities that meet the
entry criteria are selected. It also summarizes other steps EPA takes
in running the Program, including conducting site visits at up to 20
percent of the member facilities each year, and the removal of
facilities found not to be meeting the commitments they have made. EPA
believes this approach is capable of identifying the set of facilities
that belong in the Program and differentiating them from tens of
thousands of other facilities in the United States. EPA also believes
that the combination of the administrative controls of the Performance
Track Program and the public reporting voluntarily accepted by program
[[Page 21745]]
members will, as a rule, be effective in limiting membership to only
such facilities that deliver improved environmental performance.
III. Final Rulemaking Changes
A. Maximum Achievable Control Technology (MACT)
1. Definition of Pollution Prevention
As part of the MACT provision in today's rule, EPA is defining the
term ``Pollution Prevention.'' The Pollution Prevention Act (42 U.S.C.
13102) defines ``source reduction.'' EPA equates Pollution Prevention
with source reduction. In today's rule, the statutory definition of
source reduction is adopted as the definition of Pollution Prevention.
Thus, EPA defines Pollution Prevention to mean source reduction.
In its August 13, 2002 proposal (67 FR 52674), EPA included a
definition of Pollution Prevention (P2). The proposed regulatory
definition was taken from EPA's guidance from May 1992, and later
elaborated upon by then Administrator Carol Browner in ``P2 Policy
Statement: New Directions for Environmental Protection'' issued on June
14, 1993 (found at http://www.epa.gov/p2/p2policy/definitions.htm).
EPA's Policy Statement definition of P2 is not identical to the
statutory definition of P2. The Policy Statement of P2 adds a few
clauses to the statutory definition of P2, and removes another.
Consistent with EPA's Policy Statement definition of P2, the 2002
proposal did not include the following clause from the statutory
definition: ``The term `source reduction' does not include any practice
which alters the physical, chemical, or biological characteristics or
the volume of a hazardous substance, pollutant, or contaminant through
a process or activity which itself is not integral to and necessary for
the production of a product or the providing of a service.'' Although
this clause from the statute was not included in the 2002 proposal, it
was still applicable since EPA cited the statute.
In addition, the language in the 2002 proposal included an
additional clause that is not part of the statute, again taken from
EPA's Policy Statement definition of P2: ``and other practices that
reduce or eliminate the creation of pollutants through: Increased
efficiency in the use of raw materials, energy, water, or other
resources, or protection of natural resources by conservation.''
Subsequently, EPA changed its approach in a proposed rule on May
15, 2003. In that action, EPA proposed the statutory definition of P2
verbatim (68 FR 26249). This change stemmed from EPA's conclusion that
the statutory definition of P2 was more appropriate for this rule than
the Policy Statement definition.
The May 2003 proposed rule was intended primarily to provide
alternative compliance options for major sources who reduce their
Hazardous Air Pollutants. Also in that proposal were two provisions
applicable only to Performance Track members. Since the 2003 proposal
included provisions for Performance Track members, EPA provided the
public with the opportunity to comment on the interface between the
2003 proposed definition of P2 and Performance Track.
EPA received public comments on the 2002 proposal, but no
commenters suggested changes to the P2 definition language. Public
comments discussed how the P2 provision was used in this rule. One
commenter suggested that all regulated entities that achieve MACT or
better through pollution prevention measures be eligible for reporting
reductions. Another commenter supported the proposed reporting
reductions based on pollution prevention activities. One commenter
suggested that EPA reduce or eliminate MACT if a source exceeded its
performance goal, or if a major source lowered emissions to below major
thresholds through pollution prevention or operational changes.
EPA also received comments on the 2003 proposal, and like the 2002
proposal, there were no comments that directly addressed the definition
of P2 as it relates to Performance Track. There were, however, many
comments that discussed how the definition of P2 is used in the 2003
proposal. EPA will address these comments when it takes final action on
that proposed rule in the future since none of those comments had any
relevance to today's rule.
Therefore, today EPA is adopting the definition of P2 that was
proposed on May 15, 2003, without modification because it is the most
appropriate definition for today's regulatory action.
2. Reduced Frequency of Required Mact Reporting for All Eligible
Performance Track Facilities
Facilities covered by the MACT provisions of the Clean Air Act must
meet a variety of record-keeping, monitoring, and reporting
requirements as specified in 40 CFR Part 63--National Emission
Standards for Hazardous Air Pollutants for Source Categories.
For facility members in the Performance Track, EPA is reducing
reporting frequency while assuring the continued availability of
information required for assessing compliance with MACT standards.
Because of the high-level environmental performance of Performance
Track facilities, EPA believes it is appropriate to provide these
facilities the opportunity to reduce their reporting frequency under
part 63. Since the underlying data required from these facilities will
still be gathered, the Agency can still receive the information needed
to identify any lapses in compliance.
Current MACT reporting requirements differentiate between
facilities, based on facility performance, with respect to reporting
frequency. For example, reporting frequency may be increased from semi-
annually to quarterly for some reports based on the frequency of
excursions outside of required performance parameters. The approach the
Agency is adopting today applies a similar concept by reducing
reporting frequency for top environmental performers.
Today's rule reduces the frequency of certain required periodic
MACT reports for eligible Performance Track facilities. Periodic
reports include a range of reports that are required to be sent in to
the Permit Authority at intervals that range from quarterly, or more
frequently if required by special circumstances, to semi-annually. The
reports are different from records, which must be kept on site and
incorporated into the periodic reports and other reports. There are
general reporting requirements in 40 CFR part 63, subpart A, and
additional reporting requirements under other subparts applying to
specific categories of stationary sources that emit (or have the
potential to emit) one or more hazardous air pollutants. Performance
Track facilities that choose to take advantage of this incentive should
notify their State Authority that the facility will submit reports on
an annual, rather than semi-annual, basis.
Today's rule doubles the reporting intervals for these reports by
amending 40 CFR 63.2 and 63.10, and adding a new 40 CFR 63.16. For
major sources and area sources required to hold Title V permits,
however, reports must still be submitted at least semi-annually to meet
Title V permitting requirements specified in section 504(a) of the
Clean Air Act. Public comments expressed concern about the
applicability of this incentive, noting specifically that the six-month
statutory reporting frequency floor for such air sources may limit the
incentive to minor (or synthetic minor) air sources. EPA acknowledges
these concerns. EPA is issuing this incentive provision as proposed
because of its potential value to any current and future
[[Page 21746]]
Performance Track facilities that are regulated as minor sources and
not required to hold Title V permits. This final rule does not revise
other requirements concerning event reporting, record keeping, and
monitoring. EPA also recognizes that because membership in Performance
Track is for three years and Clean Air Act permits are for five years,
coordination between these event cycles will be required.
3. Reporting Reductions for Performance Track Facilities That Achieve
Mact or Better Emission Levels Through Pollution Prevention Methods
Such as Process Changes
Today's rule also reduces the level of detail of the required
reporting, under some circumstances, for those facilities that reduce
emissions below 25 tons per year of aggregate hazardous air pollutant
(HAP) emissions and 10 tons per year of any individual HAP, and that
have reduced emissions to a level that is fully in compliance with the
applicable MACT standard.
For those Performance Track facilities that are below the
thresholds for major sources of HAPs (25 tons per year aggregate and 10
tons per year for an individual HAP), and that have reduced the levels
of all HAP emissions to at least the level required by full compliance
with the applicable standard, additional reductions in reporting
requirements are available, depending on the nature of the requirement
and the means the facility is using to meet the requirement. As above,
however, for major sources, reports must still be submitted at least
semi-annually to meet Title V permitting requirements.
For those facilities using pollution prevention technologies or
techniques to meet MACT standards, reductions in reporting burden
depend on the requirements of the part 63 standard, as well as facility
performance.
(1) If the standard calls for control technology and the facility
complies using control technology:
The facility can substitute a simplified annual report to meet all
required reporting elements in the applicable part 63 periodic report,
certifying that they are continuing to use the control technology to
meet the emission standard, and are running it properly. The facility
must still fulfill all monitoring and recordkeeping requirements.
(2) If the emission standard is based on performance of a
particular control technology and the facility complies using P2:
The facility can substitute a simplified annual report to meet all
required reporting elements in the applicable part 63 periodic report,
certifying that they are continuing to use P2 to reduce HAP emissions
to levels at or below the MACT standard requirements. The facility must
still maintain records demonstrating the veracity of the certification.
(3) If the standard calls for pollution prevention and the facility
complies by using pollution prevention and the facility reduces
emissions by an additional 50% or greater than required by the
standard:
The facility can substitute a simplified annual report, to meet all
required reporting elements in the applicable Part 63 periodic report,
certifying that they are continuing to use P2 to reduce HAP emissions
to levels below the MACT standard. The facility must still maintain
records demonstrating the veracity of the certification.
Performance Track facilities that choose to take advantage of this
incentive should notify their State Authority that the facility will
submit a simplified annual report to meet all required reporting
elements covered by today's rule.
For each of the above alternatives, if the facility no longer meets
the criteria for continued membership in the Program, the incentive
will no longer apply.
B. 180-Day Accumulation Time for Performance Track Hazardous Waste
Generators
1. Background
Today EPA is adopting provisions, with certain modifications in
response to numerous public comments as discussed below, that allow
large quantity hazardous waste generators who are members of the
Performance Track Program up to 180 days (or up to 270 days in certain
cases) to accumulate hazardous waste without a RCRA permit or without
having interim status. This regulatory flexibility is intended to
provide a benefit to current members of Performance Track, and an
incentive for potential members to join the Program. EPA believes the
regulatory flexibility provided in this rule will not compromise
protection of human health and the environment at Performance Track
facilities because of the strict nature of the requirements to become
and remain a member of Performance Track. These requirements were
described in Section I. D. of this document.
The RCRA incentives in today's rule are consistent with the general
objectives of Performance Track, as discussed in Section I of this
preamble. In addition, this aspect of the final rule may assist EPA in
learning more about how accumulation times for hazardous waste
generators may affect the ultimate disposition of hazardous wastes
(e.g., recycling vs. disposal), the economics of hazardous waste
generation and accumulation, and the overall environmental performance
of hazardous waste generator facilities. More specifically, EPA
believes that additional accumulation time will allow generators to
accumulate enough waste to make transportation to waste management
facilities more cost-effective and efficient for the generator. EPA
also believes that additional accumulation time may result in
environmental benefits related to the reduction in the movement and
handling of hazardous waste on-site, as well as fewer off-site
shipments. This additional accumulation time for Performance Track
members is consistent with the rationale used for the F006 (metal
finishing) hazardous waste rule (65 FR 12377, March 8, 2000).
2. What Are the Current Requirements for Large Quantity Generator
Accumulation?
The current standards under 40 CFR part 262 for generators of
hazardous waste who generate greater than 1,000 kilograms of hazardous
waste per month (or one kilogram or more of acute hazardous waste),
known as large quantity generators (LQGs), limit the amount of time
hazardous waste can be accumulated at the generator's facility without
a RCRA permit. Under Sec. 262.34, LQGs may accumulate hazardous waste
on-site for up to 90 days without having to obtain a RCRA permit. The
generator must comply with certain unit-specific standards (e.g., tank,
container, containment building, and drip pad standards) for
accumulation units, and certain general facility requirements such as
those for marking and labeling of containers, preparedness and
prevention, and emergency response procedures. Generators may also
petition the EPA Regional Administrator to grant an extension of up to
30 days to the 90-day accumulation time limit due to unforeseen,
temporary, and uncontrollable circumstances, on a case-by-case basis
(see Sec. 262.34(b)).
Today's final rule does not make any changes to the existing
regulations that apply generally to 90-day accumulation by LQGs; EPA
did not solicit comment in its proposed rule on those provisions
[[Page 21747]]
or any other existing provision of Sec. 262.34. This includes the
provisions for extended accumulation times for F006 wastes, which are
specified at Sec. 262.34(g). Those provisions, which apply only to
generators who accumulate F006 wastes, allow for extended accumulation
times that are similar in many respects (including the time limits) to
those in today's rule for Performance Track members. It is therefore
possible that when today's rule is implemented a generator of F006
waste who is also a member in Performance Track could take advantage of
extended accumulation times under either regulatory provision (i.e.,
under Sec. 262.34(g), (h) and (i), or under Sec. 262.34(j), (k) and
(l)).
3. What Is in Today's Final Rule?
Today's final rule allows LQGs of hazardous waste that are members
of the Performance Track Program to accumulate hazardous waste at their
facilities for longer than the 90 days currently specified in Sec.
262.34, subject to certain limitations and conditions. The rule does
not affect other existing generator requirements; for example,
Performance Track members are required to manifest their hazardous
waste shipments (see subpart B of part 262) and to comply with other
generator requirements in part 262 (e.g., packaging and labeling of
waste shipments).
The requirements for Performance Track facility extended
accumulation times are added as new paragraphs (j), (k) and (l) to
Sec. 262.34. The following is a discussion of each provision.
Time Limits. Section 262.34(j)(1) specifies that hazardous waste
generators who are Performance Track members may accumulate hazardous
wastes for an extended period of time--up to 180 days, or up to 270
days if the generator must transport waste, or offer waste for
transportation, over a distance of 200 miles or more. Such generators
do not need to have RCRA permits or to have interim status if they stay
within these limits. Note that these extended accumulation time limits
are consistent with the current limits for generators of F006 wastes
(see Sec. 262.34(g)).
Initial Notice. Under Sec. 262.34(j)(2), Performance Track
generators need to give prior notice to EPA or the authorized state
agency of their intent to accumulate hazardous waste in excess of 90
days in accordance with this rule. These notices will assist EPA and
state agencies in monitoring implementation of this incentive. Public
comments to the proposal expressed concern that such notifications may
place additional burden on facilities with dynamic waste streams if re-
notifications are required for each new waste stream. EPA acknowledges
this concern, clarifies that notifications are generally one-time
events, and estimates that this burden will be of minimal impact to
member facilities.
Notices filed under Sec. 262.34(j)(2) must identify the generator
and facility, specify when extended accumulation at the facility will
begin, and include a description of the wastes that will be accumulated
for extended time periods and the units that will be used for that
purpose.
The initial notice must also include a statement that the facility
has made all changes to its operations, procedures, and equipment
necessary to accommodate extended time periods for accumulating
hazardous wastes (Sec. 262.34(j)(2)(iii)). This addresses situations
in which longer accumulation times may involve, for example, changing
the design, location, or capacity of the unit(s) in which the wastes
are accumulated. Such changes could affect how the facility addresses
other generator requirements, such as those for personnel training or
emergency response procedures. Including this statement in the notice
helps ensure in advance that Performance Track members are aware of and
have implemented any changes at the facility that may be needed to
accommodate extended accumulation times.
For generators who intend to accumulate hazardous waste for up to
270 days because the waste must be transported, or offered for
transport, more than 200 miles from the generating facility, the notice
submitted by the generator must contain a certification that an off-
site permitted or interim status hazardous waste treatment, storage, or
disposal facility (TSD) capable of accepting the waste is not located
within 200 miles of the generator. In response to comments received on
this issue, EPA has clarified in this final rule the situations under
which Performance Track generators may accumulate hazardous waste for
up to 270 days without a permit. The provision for accumulation up to
270 days is intended to address situations where wastes must be
transported for considerable distances to off-site facilities because a
permitted or interim status TSD is not located within 200 miles, and
where extended accumulation time may thereby enable the facility to
more efficiently ship fewer, larger loads of wastes to those
facilities.
Section 3001(d)(6) of RCRA allows small quantity generators to
accumulate hazardous waste on-site without a permit or interim status
for up to 270 days if the generator must transport the waste (or offer
the waste for transport) more than 200 miles from the generating
facility. While EPA does not necessarily consider the 200 mile
exception under RCRA 3001(d)(6) for small quantity generators as an
outer boundary on what would be permissible under today's rule, it does
suggest that Congress was not comfortable with providing more
flexibility for small quantity generators. Accordingly, EPA believes
that the 200 mile exception is a reasonable boundary to maintain for
large and small quantity generators under the Performance Track
program. At least one commenter has stated that a 200 mile exception
would encourage generators under the Performance Track program to
utilize the closest treatment, storage or disposal facility, rather
than the best facility. In response, EPA would like to note that any
facility receiving hazardous waste from a generator under the
Performance Track program must be a federally permitted or interim
status facility and therefore should be able to handle the waste
responsibly.
EPA also received one comment questioning the necessity of the
certification requirement related to 270 day accumulation. Currently
small quantity generators and generators of F006 wastes are able to
accumulate wastes for up to 270 days without certifying to the absence,
within 200 miles of the generator, of an off-site permitted or interim
status hazardous waste treatment, storage, or disposal facility capable
of accepting the waste. EPA has included the certification requirement
in this incentive because this rule will allow significantly larger
quantities of all hazardous wastes to be accumulated for up to 270 days
than is authorized by current rules. The certification requirement is
minimally burdensome and constitutes a reasonable trade-off in light of
the breadth of operational flexibility that this rule affords to
Performance Track members.
Standards for Accumulation Units. Another condition (Sec.
262.34(j)(3)) in today's rule requires Performance Track generators to
accumulate hazardous wastes in storage units (such as containers,
tanks, drip pads, and containment buildings) that meet the standards
for storing hazardous wastes at RCRA interim status facilities (see
subparts I, J, W, and DD of 40 CFR part 265, respectively). These are
standard requirements for large quantity generators.
If Performance Track facilities use containers for extended
accumulation of hazardous wastes, today's rule
[[Page 21748]]
additionally requires secondary containment systems for containers to
prevent releases into the environment that might be caused by handling
accidents, deterioration, or other circumstances. Secondary containment
is a standard requirement for RCRA-permitted facilities that use
containers to store hazardous wastes containing free liquids and
certain listed hazardous wastes (i.e., F020, F021, F023, F026, and
F027). It is not, however, typically required for hazardous waste
generators or interim status facilities. Public comments on the
secondary containment requirement included support for the proposal,
concerns about the costs of secondary containment, and recommendations
for more stringent requirements. EPA believes that requiring secondary
containment in the context of this rule is a reasonable, common-sense
precaution to take in exchange for extending accumulation time limits
and increasing the volume limit.
Volume Limit. Under Sec. 262.34(j)(4), Performance Track member
generators are allowed to accumulate no more than 30,000 kilograms of
hazardous waste at the facility at any one time. The Agency has
information that the typical capacity for a hazardous waste truck
transport vehicle ranges from an average of approximately 16,400 kg to
a maximum of approximately 27,300 kg.\1\ In addition, generators
shipping hazardous waste by rail may have capacities of approximately
50,000 kg.\2\ While one public comment asked EPA to consider a
significantly higher waste stream-specific accumulation limit, comments
on balance did not support modifications to the proposal. EPA believes
that a 30,000 kg waste accumulation limit is reasonable and appropriate
in ensuring economical shipments of wastes in a wide range of transport
vehicle sizes.
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\1\ Unit Cost Compendium, prepared by DPRA Incorporated, for
USEPA, Office of Solid Waste, September 30, 2000 and personal
communication with DPRA.
\2\ Rail car capacities vary depending on whether the transport
unit is a mail box car (from 160 cubic yards to 370 cubic yards), a
rail gondola (from 15 cubic yards to 262 cubic yards), or a rail
tanker (22,000 gallons), R.S. Means, Environmental Remediation
Estimating Methods, 1997. In general, one cubic yard of solid equals
1.5 tons and one cubic yard of liquid equals 1 ton.
---------------------------------------------------------------------------
Recordkeeping, Labeling, and Marking. Section 262.34(j)(5)
specifies the types of records that program members must maintain at
their facilities as a condition for extended accumulation times. These
records are primarily intended to document that the accumulation time
limits are not exceeded. Retaining these records is a standard
requirement for all LQGs of hazardous waste.
Similarly, Sec. 262.24(j)(6) requires that tanks and container
units used for extended accumulation be marked or labeled with the
words ``Hazardous Waste,'' and that containers be marked to indicate
when the accumulation period begins. These are also standard conditions
for hazardous waste generators, and are specified in this rule mainly
for the sake of clarity.
General Facility Standards. Under current regulations, all
hazardous waste generators are subject to certain general facility
standards relating to personnel training, preparedness and prevention,
and contingency plans and emergency procedures. These general facility
requirements also apply to Performance Track generators, and have been
included in this rule for the sake of clarity.
Pollution Prevention. The Agency sought comment on whether it is
appropriate to require Performance Track facilities to implement
pollution prevention practices as a condition for using extended
accumulation times in Sec. 262.34(j)(8). A public comment suggested
this provision duplicates requirements at Sec. 262.41(a)(6-7). EPA
acknowledges the provisions in these two sections are similar. However,
the existing provision Sec. 262.41(a)(6-7) is intended for one purpose
and today's Sec. 262.34(j)(7) for another.
Final Sec. 262.41(a)(6 and 7) state: ``(6) A description of the
efforts undertaken during the year to reduce the volume and toxicity of
waste generated. (7) A description of the changes in volume and
toxicity of waste actually achieved during the year in comparison to
previous years to the extent such information is available for years
prior to 1984.'' This provision is required as part of the Biennial
report that RCRA generators must submit to the Agency or State.
Final Sec. 262.34 (8) states: ``The generator has implemented
pollution prevention practices that reduce the amount of any hazardous
substances, pollutants, or contaminants released to the environment
prior to its recycling, treatment, or disposal; and'' This new
provision is required for RCRA generators who are members of
Performance Track. The information must be submitted annually along
with the Performance Track member's annual report to the Agency.
Requiring this information as part of the annual report is consistent
with the core provisions of the Performance Track program. Further, EPA
believes any burden associated with this requirement is negligible.
Annual Report. Under final Sec. 262.34(j), Performance Track
generators accumulating their hazardous waste for more than 90 days are
required to provide information regarding the impact of the additional
accumulation time. This information will be submitted as part of the
Annual Performance Report, currently required of all Performance Track
members (see www.epa.gov/PerformanceTrack, or the document entitled
``National Environmental Performance Track Program Guide,'' EPA 240-F-
01-002). Specifically, the report must include, for the previous year,
information on the quantity of each hazardous waste that was
accumulated for extended time periods, the number of off-site waste
shipments, identification of destination facilities and how the wastes
were managed at those facilities, information on the impact of extended
accumulation time limits on the facility's operations (including any
cost savings that may have occurred), and information on any on-site or
off-site spills or other environmental problems associated with
handling these wastes. Certain public comments expressed concern about
the burden imposed by the proposed additional reporting requirements.
EPA does not believe that the additional reporting elements constitute
an unreasonable burden upon Performance Track members. The information
submitted in these reports will assist the Agency in evaluating the
success of this Performance Track Program incentive, and may inform
future Agency decisions pertaining to hazardous waste accumulation. The
provisions of this rule are supplementary to the existing recordkeeping
and reporting requirements applicable to Generators, such as those
found at 40 CFR part 262, subpart D.
Accumulation Time Extensions. Today's final rule also adds a new
paragraph (k) to Sec. 262.34, to address extensions of accumulation
time limits in certain situations. This provision is consistent with
the current regulations that apply generally to LQGs (see Sec.
262.34(b)), and has been included in today's rule for the sake of
clarity. Specifically, it allows the overseeing agency the option of
granting a Performance Track generator an additional 30 days of
accumulation time, if such extra time is needed due to unforseen,
temporary, and uncontrollable circumstances. Requests for such time
extensions will be reviewed and approved (or disapproved) in the same
manner as they currently are for non-Performance Track LQGs.
[[Page 21749]]
Withdrawal/Termination From Program. Final Sec. 262.34(l)
addresses situations in which a Performance Track facility that has
been accumulating hazardous wastes for extended periods of time under
this rule decides to withdraw from the Program, or when EPA has for
some reason decided to terminate the generator's membership in the
Program. In such cases, the generator will need to comply with the
previously applicable regulations as soon as possible (the standard
requirement for less-than-90-day accumulation by large quantity
generators), but no later than six months after withdrawal or
termination.
4. How Will Today's Rule Affect Applicability of RCRA 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. New Federal requirements imposed
by those rules that predate HSWA do not take effect in an authorized
State until the State adopts the requirements as State law.
In contrast, under section 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 final rule is not promulgated under HSWA authorities.
Consequently, it does not amend the authorized program for states upon
promulgation, as EPA does not implement the rule. The authorized RCRA
program will change when EPA approves a State's application for a
revision to its RCRA program.
For today's Performance Track rule, EPA encourages States to
expeditiously adopt Performance Track regulations and begin program
implementation. To revise the federally-authorized RCRA program, States
need to seek formal authorization for the Performance Track rule after
program implementation. EPA encourages States to begin implementing
this incentive as soon as it is allowable under State law, while the
RCRA authorization process proceeds.\3\
---------------------------------------------------------------------------
\3\ EPA encourages States to take this approach for less
stringent federal requirements where rapid implementation is
important. For example, EPA encouraged States to implement State
Corrective Action Management Unit Regulations, once adopted as a
matter of State law, prior to authorization (see 58 FR 8677,
February 16, 1993).
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IV. Summary of Environmental, Energy, and Economic Impacts
A. What Are the Cost and Economic Impacts?
Today's final action will reduce costs for the facilities eligible
to take advantage of the rule. Most of these cost reductions result
from reduced reporting hours burden for facilities, or reduced waste
management costs.
EPA has completed seven enrollment periods for the Performance
Track Program. There are currently a total of 344 \4\ facilities in the
Program (mostly industrial facilities, but also a number of facilities
in the service sector, several federal facilities and a POTW). The
economic estimates for today's rule are based on the most recent data
that EPA has obtained, and reflects Program membership through round
six. EPA intends to solicit and to accept additional facilities into
the Program generally, so therefore it is not possible to project cost
and burden hour reductions with complete accuracy. Another factor that
hinders such projections is that, just as membership in Performance
Track is voluntary, it is up to the facilities themselves to decide
which incentives apply to them and of which to avail themselves.
---------------------------------------------------------------------------
\4\ The economic estimates for today's rule are based on the
most recent data that EPA has obtained, and reflects Program
membership through round six.
---------------------------------------------------------------------------
Maximum Achievable Control Technology: A total of 309 \5\
facilities have been accepted into the Performance Track program during
the first six open enrollment periods. Of those facilities, EPA
estimates that 93 facilities are likely to be eligible for the MACT
incentive in today's rule. Performance Track facilities likely to be
eligible for the MACT incentive include those members permitted as
minor or synthetic minor air sources and in a NAICS sector likely to be
to be subject to a MACT requirement. An analysis of EPA's IDEA database
yielded 106 potential minor or synthetic minor air sources (See http://www.epa.gov/compliance/planning/data/multimedia/idea/index.html). EPA
then screened out 13 Performance Track members in sectors unlikely to
be subject to MACT requirements (i.e., nine members in the Public
Facilities and Institutions sector; two members in the Mining and
Construction sector; and two members in the Wholesale Retail and
Shipping sector). This analysis resulted in 93 eligible facilities in
the current membership. EPA estimates the annual increase in
Performance Track members likely to be eligible for the MACT incentive
by applying the percentage eligible among the current membership (i.e.,
30 percent) to subsequent years.
---------------------------------------------------------------------------
\5\ 5 The economic estimates for today's rule are based on the
most recent data that EPA has obtained, and reflects Program
membership through round six.
---------------------------------------------------------------------------
Extended Accumulation Time for Hazardous Waste Generators: EPA
estimates that 125 facilities are likely to be eligible for the RCRA
incentives in today's rule.\6\ The number of Performance Track
facilities that could potentially be affected by the RCRA portion of
the rule was assembled from the list of all Performance Track
facilities that identified themselves as hazardous waste generators.
EPA then relied on the RCRA 2001 Hazardous Waste Data (i.e., Biennial
Reporting System) to determine the quantity of waste generated by each
facility per year (See http://www.epa.gov/epaoswer/hazwaste/data/index.htm). The next step involved excluding Performance Track
facilities that are small quantity generators (SQGs), since SQGs may
already accumulate hazardous waste for up to 180 days, and thus would
not benefit from today's final rule. Again, EPA estimates the annual
increase in Performance Track members likely to be eligible for the
RCRA incentive by applying the percentage of the current membership to
subsequent years.
---------------------------------------------------------------------------
\6\ Memorandum dated December 5, 2003, from Industrial
Economics, Incorporated (IEc) to EPA's Office of Policy, Economics,
and Innovation.
---------------------------------------------------------------------------
Total Estimated Impact of Final Rule on Costs and Labor Hours
The estimated cost and hour burden for respondents for today's rule
in total is negative 7,954 hours over the three years of the
Information Collection Request, equating to a cost savings of $706,846.
The estimated cost and hour burden for respondents for today's rule,
disaggregated, is negative 16.6 hours per facility per year, that is, a
reduction of 16.6 hours from current requirements. The costs are
negative $1,350.80 per facility per year, that is, cost reductions/
savings of $1350.80.
[[Page 21750]]
B. What Are the Health, Environmental, and Energy Impacts?
EPA expects there to be no adverse effects on the environment from
the direct impacts of today's rule changes. As discussed above, most of
the changes relate to reporting or waste management, and do not in any
way loosen the underlying environmental obligations of the Performance
Track facilities. EPA expects that the reporting changes will not
result in any of these facilities becoming more lax in their diligence.
EPA believes that its refocus of resources may lead to additional
environmental compliance. Public recognition and relief from regulatory
requirements, to the extent that they affect each company's bottom
line, may influence company decisions to undertake regulatory projects
that go beyond regulatory requirements. The public will be able to
judge the nature and magnitude of these environmental benefits by
examining the annual reports that Performance Track facilities are
required to prepare and make public.
V. Effective Date for Today's Requirements
The changes contained in this final rule will take effect in the
Federal MACT and RCRA programs on April 22, 2004. This rule cannot
apply to sources complying with alternative requirements approved
through the approval options in subpart E of the section, unless the
source reapplies for and demonstrates that the equivalency
demonstration for that source shows that this source would be eligible
for this program (see 64 CFR 55810-55846, September 14, 2000).
This also means that these RCRA rules will apply on April 22, 2004,
in any State without an authorized RCRA program, but will not apply in
any State with an authorized RCRA program until EPA approves a State's
application for a revision to its RCRA program. These rule changes
apply only to members of the Performance Track, which is a voluntary
program. The changes are intended to provide regulatory relief and do
not impose new requirements. Because regulated entities will not need
time to come into compliance, the rule changes made today will be
effective upon publication.
VI. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
The estimated cost and hour burden for respondents for today's rule
in total is negative 7,954 hours over the three years of the
Information Collection Request, equating to a cost savings of $706,846.
The estimated cost and hour burden for respondents for today's rule,
disaggregated, is negative 16.6 hours per facility per year, that is, a
reduction of 16.6 hours from current requirements. The costs are
negative $1,350.80 per facility per year, that is, cost reductions/
savings of $1350.80.
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. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
The information collected pursuant to today's rule is a combination
of new information, and a reduction of other information the Agency
currently collects. This information will be used so that the Agency
will know that facilities eligible for today's provisions are properly
implementing them, and also that States have implemented them, if they
so choose. This information will enable the Agency to assess compliance
with today's final provisions. Responses to the information request are
required by respondents to retain provided in today's rule under the
Authority: 42 U.S.C. 7401, et seq., and Authority: 42 U.S.C. 6906,
6912, 6922-6925, 6937, and 6938. Responses by States for today's
provisions are voluntary.
The estimated cost and hour burden for respondents for today's rule
in total is negative 7,954 hours over the three years of the
Information Collection Request equating to a cost savings of $706,846.
The estimated cost and hour burden for respondents for today's rule,
disaggregated, is negative 16.6 hours per facility per year, that is, a
reduction of 16.6 hours from current requirements. The costs are
negative $1,350.80 per facility per year, that is, cost reductions/
savings of $1350.80. The frequency of the responses are a combination
of one-time and annual, that is, there are different types of responses
required. For instance, if a Performance Track facility seeks to extend
its storage time under today's provisions, a one time notification is
required. In addition, the facility must provide certain information on
an annual basis to the authorized State. The estimated mean number of
annual respondents between 2004 and 2006 is 277. The Paperwork
Reduction Act requires that the Agency report to the Office of
Management and Budget only positive burden hours for Industry and
States via its ``83-I'' reporting form. Therefore, the total burden
hours reported to OMB is 8950. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rule 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 final rule on
small entities, small entity is defined as: (1) A small business
according to the Small Business Administration definition for the
business's NAICS code; (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.
[[Page 21751]]
After considering the economic impacts of today's final rule on
small entities, I certify 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 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.
Sections 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. Today's rule will relieve regulatory burden and result in cost
savings to entities, including any small entities, that are members of
the Performance Track Program. Many small entities (both businesses and
governments) and their association representatives were invited to, and
attended, the public hearings EPA conducted early in 2000 on the design
of the Performance Track Program. EPA has therefore concluded that
today's final rule will relieve regulatory burden for small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 04-4, 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 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.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. Participation by facilities in the Performance
Track is voluntary, and so is participation by State or local
government agencies. There are no significant or unique effects on
State, local, or Tribal governments, however there may be some minor
effects incurred by these entities. EPA projects these costs to be very
low. Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA. Nevertheless, as discussed in section I B and
elsewhere, EPA did engage these stakeholders in the process of
developing the National Environmental Performance Track Program.
E. 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.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule provides incentives
that States can adopt to provide benefits to their State member
facilities in the National Performance Track Program. As a voluntary
program, Performance Track allows States the option to adopt the
provisions in this rule. Thus, Executive Order 13132 does not apply to
this rule.
Stakeholders, including many States, were consulted during the
development of the Performance Track Program. Many suggestions and
ideas generated by States and other stakeholders provided the basis for
some of the provisions in this rule. The stakeholder involvement
process undertaken is fully discussed in Section I B of this document.
In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically sought comment on the proposed rule from State and
local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
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 final 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.
Any effects that Tribes may accrue from this rule will result in cost
savings. Thus, Executive Order 13175 does not apply to this rule.
Stakeholder involvement is discussed in Section I. B. of this document.
In the spirit of Executive Order 13175, and consistent with EPA policy
to promote communications between EPA and Tribal governments, EPA
specifically sought additional comment on the proposed rule from Tribal
officials.
[[Page 21752]]
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health & 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.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. In the proposed rule, EPA invited
the public to submit or identify peer-reviewed studies and data, of
which the agency may not be aware, that assessed results of early life
exposure to the provisions of this rule. No such studies or data were
identified.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, EPA has
concluded that this rule is not likely to have any adverse energy
effects.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs all Federal agencies to use voluntary consensus
standards instead of government-unique standards in their regulatory
and procurement activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (such as materials specifications, test
methods, sampling procedures, business practices) that are developed or
adopted by one or more voluntary consensus standards bodies. Examples
of organizations generally regarded as voluntary consensus standards
bodies include the American Society for Testing and Materials (ASTM),
the National Fire Protection Association (NFPA), and the Society of
Automotive Engineers (SAE). The NTTAA directs EPA to provide Congress,
through annual reports to OMB, with explanations when an Agency does
not use available and applicable voluntary consensus standards.
This final rule does not involve technical standards. Thus, the
provisions of NTTAA do not apply to this rule and EPA is not
considering the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This final rule is effective on April 22, 2004.
VII. Statutory Authority
The statutory authority for the MACT portion of this action is
provided by sections 101, 112, 114, 116, and 301 of the Clean Air Act
as amended (42 U.S.C. 7401, 7412, 7414, 7416, and 7601). The statutory
authority for the RCRA portion of this action is provided by sections
2002 and 3002 of the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976, as amended by the
Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. 6912 and 6922).
VIII. Judicial Review
Under section 307(b)(1) of the Clean Air Act, judicial review of
the MACT portion of this final rule is available only by the filing of
a petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit by June 21, 2004. Any such judicial review is limited
to only those objections that are raised with reasonable specificity in
timely comments. Under section 307(b)(2) of the Clean Air Act, the
requirements that are the subject of this final rule may not be
challenged later in civil or criminal proceedings brought by us to
enforce these requirements. Under section 6976(a) of the Resource
Conservation and Recovery Act, judicial review of the RCRA portion of
this final rule is available only by the filing of a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit by June 21, 2004. Under this same section 6976(a) of RCRA, the
requirements that are the subject of this final rule may not be
challenged later in civil or criminal proceedings brought by us to
enforce these requirements.
List of Subjects
40 CFR Part 63
Administrative practice and procedure, Air pollution control,
Hazardous substances, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 262
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Labeling, Packaging and containers, Reporting and
recordkeeping requirements.
Dated: April 14, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons stated in the preamble, we amend parts 63 and 262 of
title 40, chapter I of the Code of the Federal Regulations as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
2. Section 63.2 is amended by adding, in alphabetical order,
definitions for the terms Pollution Prevention and Source at a
Performance Track member facility to read as follows:
Sec. 63.2 Definitions.
* * * * *
Pollution Prevention means source reduction as defined under the
Pollution Prevention Act (42 U.S.C. 13101-13109). The definition is as
follows:
(1) Source reduction is any practice that:
(i) Reduces the amount of any hazardous substance, pollutant, or
[[Page 21753]]
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal; and
(ii) Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants.
(2) The term source reduction includes equipment or technology
modifications, process or procedure modifications, reformulation or
redesign of products, substitution of raw materials, and improvements
in housekeeping, maintenance, training, or inventory control.
(3) The term source reduction does not include any practice that
alters the physical, chemical, or biological characteristics or the
volume of a hazardous substance, pollutant, or contaminant through a
process or activity which itself is not integral to and necessary for
the production of a product or the providing of a service.
* * * * *
Source at a Performance Track member facility means a major or area
source located at a facility which has been accepted by EPA for
membership in the Performance Track Program (as described at
www.epa.gov/PerformanceTrack) and is still a member of the Program. The
Performance Track Program is a voluntary program that encourages
continuous environmental improvement through the use of environmental
management systems, local community outreach, and measurable results.
* * * * *
0
3. Section 63.10 is amended by:
a. Revising paragraph (d)(1); and
b. Adding paragraph (e)(3)(i)(D).
The revision and addition read as follows:
Sec. 63.10 Recordkeeping and reporting requirements.
* * * * *
(d) * * * (1) Notwithstanding the requirements in this paragraph or
paragraph (e) of this section, and except as provided in Sec. 63.16,
the owner or operator of an affected source subject to reporting
requirements under this part shall submit reports to the Administrator
in accordance with the reporting requirements in the relevant
standard(s).
* * * * *
(e) * * *
(3) * * *
(i) * * *
(D) The affected source is complying with the Performance Track
Provisions of Sec. 63.16, which allows less frequent reporting.
* * * * *
0
4. Section 63.16 is added to subpart A and reads as follows:
Sec. 63.16 Performance Track Provisions.
(a) Notwithstanding any other requirements in this part, an
affected source at any major source or any area source at a Performance
Track member facility, which is subject to regular periodic reporting
under any subpart of this part, may submit such periodic reports at an
interval that is twice the length of the regular period specified in
the applicable subparts; provided, that for sources subject to permits
under 40 CFR part 70 or 71 no interval so calculated for any report of
the results of any required monitoring may be less frequent than once
in every six months.
(b) Notwithstanding any other requirements in this part, the
modifications of reporting requirements in paragraph (c) of this
section apply to any major source at a Performance Track member
facility which is subject to requirements under any of the subparts of
this part and which has:
(1) Reduced its total HAP emissions to less than 25 tons per year;
(2) Reduced its emissions of each individual HAP to less than 10
tons per year; and
(3) Reduced emissions of all HAPs covered by each MACT standard to
at least the level required for full compliance with the applicable
emission standard.
(c) For affected sources at any area source at a Performance Track
member facility and which meet the requirements of paragraph (b)(3) of
this section, or for affected sources at any major source that meet the
requirements of paragraph (b) of this section:
(1) If the emission standard to which the affected source is
subject is based on add-on control technology, and the affected source
complies by using add-on control technology, then all required
reporting elements in the periodic report may be met through an annual
certification that the affected source is meeting the emission standard
by continuing to use that control technology. The affected source must
continue to meet all relevant monitoring and recordkeeping
requirements. The compliance certification must meet the requirements
delineated in Clean Air Act section 114(a)(3).
(2) If the emission standard to which the affected source is
subject is based on add-on control technology, and the affected source
complies by using pollution prevention, then all required reporting
elements in the periodic report may be met through an annual
certification that the affected source is continuing to use pollution
prevention to reduce HAP emissions to levels at or below those required
by the applicable emission standard. The affected source must maintain
records of all calculations that demonstrate the level of HAP emissions
required by the emission standard as well as the level of HAP emissions
achieved by the affected source. The affected source must continue to
meet all relevant monitoring and recordkeeping requirements. The
compliance certification must meet the requirements delineated in Clean
Air Act section 114(a)(3).
(3) If the emission standard to which the affected source is
subject is based on pollution prevention, and the affected source
complies by using pollution prevention and reduces emissions by an
additional 50 percent or greater than required by the applicable
emission standard, then all required reporting elements in the periodic
report may be met through an annual certification that the affected
source is continuing to use pollution prevention to reduce HAP
emissions by an additional 50 percent or greater than required by the
applicable emission standard. The affected source must maintain records
of all calculations that demonstrate the level of HAP emissions
required by the emission standard as well as the level of HAP emissions
achieved by the affected source. The affected source must continue to
meet all relevant monitoring and recordkeeping requirements. The
compliance certification must meet the requirements delineated in Clean
Air Act section 114(a)(3).
(4) Notwithstanding the provisions of paragraphs (c)(1) through
(3), of this section, for sources subject to permits under 40 CFR part
70 or 71, the results of any required monitoring and recordkeeping must
be reported not less frequently than once in every six months.
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
5. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
0
6. Section 262.34 is amended by adding paragraphs (j), (k), and (l) to
read as follows:
Sec. 262.34 Accumulation time.
* * * * *
(j) A member of the Performance Track Program who generates 1000 kg
or
[[Page 21754]]
greater of hazardous waste per month (or one kilogram or more of acute
hazardous waste) may accumulate hazardous waste on-site without a
permit or interim status for an extended period of time, provided that:
(1) The generator accumulates the hazardous waste for no more than
180 days, or for no more than 270 days if the generator must transport
the waste (or offer the waste for transport) more than 200 miles from
the generating facility; and
(2) The generator first notifies the Regional Administrator and the
Director of the authorized State in writing of its intent to begin
accumulation of hazardous waste for extended time periods under the
provisions of this section. Such advance notice must include:
(i) Name and EPA ID number of the facility, and specification of
when the facility will begin accumulation of hazardous wastes for
extended periods of time in accordance with this section; and
(ii) A description of the types of hazardous wastes that will be
accumulated for extended periods of time, and the units that will be
used for such extended accumulation; and
(iii) A Statement that the facility has made all changes to its
operations, procedures, including emergency preparedness procedures,
and equipment, including equipment needed for emergency preparedness,
that will be necessary to accommodate extended time periods for
accumulating hazardous wastes; and
(iv) If the generator intends to accumulate hazardous wastes on-
site for up to 270 days, a certification that a facility that is
permitted (or operating under interim status) under part 270 of this
chapter to receive these wastes is not available within 200 miles of
the generating facility; and
(3) The waste is managed in:
(i) Containers, in accordance with the applicable requirements of
40 CFR part 265 subpart I; or
(ii) Tanks, in accordance with the requirements of 40 CFR part 265,
subpart J, and Sec. 265.200; or
(iii) Drip pads, in accordance with subpart W of 40 CFR part 265;
or
(iv) Containment buildings, in accordance with subpart DD of 40 CFR
part 265; and
(4) The quantity of hazardous waste that is accumulated for
extended time periods at the facility does not exceed 30,000 kg; and
(5) The generator maintains the following records at the facility
for each unit used for extended accumulation times:
(i) A written description of procedures to ensure that each waste
volume remains in the unit for no more than 180 days (or 270 days, as
applicable), a description of the waste generation and management
practices at the facility showing that they are consistent with the
extended accumulation time limit, and documentation that the procedures
are complied with; or
(ii) Documentation that the unit is emptied at least once every 180
days (or 270 days, if applicable); and
(6) Each container or tank that is used for extended accumulation
time periods is labeled or marked clearly with the words ``Hazardous
Waste,'' and for each container the date upon which each period of
accumulation begins is clearly marked and visible for inspection; and
(7) The generator complies with the requirements for owners and
operators in 40 CFR part 265, with Sec. 265.16, and with Sec.
268.7(a)(5). In addition, such a generator is exempt from all the
requirements in subparts G and H of part 265, except for Sec. Sec.
265.111 and 265.114; and
(8) The generator has implemented pollution prevention practices
that reduce the amount of any hazardous substances, pollutants, or
contaminants released to the environment prior to its recycling,
treatment, or disposal; and
(9) The generator includes the following with its Performance Track
Annual Performance Report, which must be submitted to the Regional
Administrator and the Director of the authorized State:
(i) Information on the total quantity of each hazardous waste
generated at the facility that has been managed in the previous year
according to extended accumulation time periods; and
(ii) Information for the previous year on the number of off-site
shipments of hazardous wastes generated at the facility, the types and
locations of destination facilities, how the wastes were managed at the
destination facilities (e.g., recycling, treatment, storage, or
disposal), and what changes in on-site or off-site waste management
practices have occurred as a result of extended accumulation times or
other pollution prevention provisions of this section; and
(iii) Information for the previous year on any hazardous waste
spills or accidents occurring at extended accumulation units at the
facility, or during off-site transport of accumulated wastes; and
(iv) If the generator intends to accumulate hazardous wastes on-
site for up to 270 days, a certification that a facility that is
permitted (or operating under interim status) under part 270 of this
chapter to receive these wastes is not available within 200 miles of
the generating facility; and
(k) If hazardous wastes must remain on-site at a Performance Track
member facility for longer than 180 days (or 270 days, if applicable)
due to unforseen, temporary, and uncontrollable circumstances, an
extension to the extended accumulation time period of up to 30 days may
be granted at the discretion of the Regional Administrator on a case-
by-case basis.
(1) If a generator who is a member of the Performance Track Program
withdraws from the Performance Track Program, or if the Regional
Administrator terminates a generator's membership, the generator must
return to compliance with all otherwise applicable hazardous waste
regulations as soon as possible, but no later than six months after the
date of withdrawal or termination.
[FR Doc. 04-9042 Filed 4-21-04; 8:45 am]
BILLING CODE 6560-50-P