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July 30, 2002 Part II Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants: Site Remediation; Proposed Rule VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49398 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [FRL– 7241– 6]

RIN 2060– AH41 National Emission Standards for Hazardous Air Pollutants: Site Remediation AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: This action proposes National Emission Standards for Hazardous Air Pollutants (NESHAP) under the authority of section 112 of the Clean Air Act (CAA) for the site remediation source category. The EPA has determined that site remediation activities can be major sources of organic hazardous air pollutants (HAP) (including benzene, ethyl benzene, toluene, vinyl chloride, xylenes) and other volatile organic compounds (VOC). The range of potential human health effects associated with exposure to these organic HAP and VOC include cancer, aplastic anemia, upper respiratory tract irritation, liver damage, and neurotoxic effects (e. g., headache, dizziness, nausea, tremors). The proposed rule would implement section 112( d) of the CAA by requiring those affected site remediation activities to meet emissions limitations, operating limit, and work practice standards reflecting the application of the maximum achievable control technology (MACT). When implemented, we estimate that the proposed rule would reduce annual regulated HAP emissions from the source category by approximately 50 percent or 570 megagrams per year (Mg/ yr) (630 tons per year (tpy)) and reduce nationwide VOC emissions by 3,680 Mg/ yr (4,050 tpy). DATES: Comments. Submit comments on or before September 30, 2002. Public Hearing. If anyone contacts the EPA requesting to speak at a public hearing by September 19, 2002, a public hearing will be held on August 27, 2002. ADDRESSES: Comments. By U. S. Postal Service, send comments (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A– 99– 20, U. S. EPA, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. In person or by courier, deliver comments (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A– 99– 20, U. S. EPA, 401 M Street, SW, Washington, D. C. 20460. The EPA requests that a separate copy also be sent to the contact person listed below (see FOR FURTHER INFORMATION CONTACT). Public Hearing. If a public hearing is held, it will be begin at 10: 00 a. m. and will be held at the new EPA facility complex in Research Triangle Park, North Carolina, or at an alternate site nearby. You should contact Ms. JoLynn Collins, Waste and Chemical Processes Group, Emission Standards Division, U. S. EPA (C439– 03), Research Triangle Park, NC 27711, telephone (919) 541– 5671 to request a public hearing, to request to speak at a public hearing, or to find out if a hearing will be held. Docket. Docket No. A– 99– 20 contains supporting information used in developing the standards. The docket is located at the U. S. EPA, 401 M Street, SW, Washington, DC 20460, in Room M– 1500, Waterside Mall (ground floor), and may be inspected from 8: 30 a. m. to 5: 30 p. m., Monday through Friday, excluding legal holidays. Copies of docket materials may be obtained by request from the Air Docket by calling (202) 260– 7548. A reasonable fee may be charged for copying docket materials. FOR FURTHER INFORMATION CONTACT: Mr. Greg Nizich, Waste and Chemical Processes Group, Emission Standards Division (C439– 03), U. S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541– 3078, facsimile number (919) 541– 0246, electronic mail address `` nizich. greg@ epa. gov''. SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted by electronic mail (e mail) to: `` a and r docket@ epa. gov. '' Electronic comments must be submitted as an ASCII file to avoid the use of special characters and encryption problems. Comments will also be accepted on disks in WordPerfect     file format. All comments and data submitted in electronic form must note the docket number: A– 99– 20. No confidential business information (CBI) should be submitted by e mail. Electronic comments may be filed online at many Federal Depository libraries. Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention Mr. Greg Nizich, c/ o OAQPS Document Control Officer, U. S. EPA (C404– 02), RTP, NC 27711. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter. Public Hearing. Persons interested in presenting oral testimony or inquiring whether a hearing is to be held should contact Ms. JoLynn Collins of the EPA at (919) 541– 5671 at least 2 days before the public hearing. Persons interested in attending the public hearing must also call Ms. Collins to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed standards. Docket. The docket is an organized and complete file of all the information considered by the EPA in the development of the proposed rule. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and potentially affected industries to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section 307( d)( 7)( A) of the CAA.) The regulatory text and other materials related to the proposed rule are available for review in the docket, or copies may be mailed on request from the Air Docket by calling (202) 260– 7548. A reasonable fee may be charged for copying docket materials. Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of the proposed rule is also available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the proposed rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http:// www. epa. gov/ ttn/ oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541– 5384. Background Information. The background information for the proposed rule is not contained in a formal background information document. Background information we used in developing the proposed rule is presented in technical memoranda that VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49399 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules we have included in Docket No. A– 99– 20. Regulated Entities. Categories and entities potentially regulated by this action include:

Category NAICS* Examples of regulated entities Industry ...................................... 325211 325192 325188 32411 49311 49319 48611 42269 42271 Site remediation activities at businesses at which organic materials currently are or have been in the past stored, processed, treated, or otherwise managed at the facility. These facilities include organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, and other manufacturing facilities with collocated site remediation activities.

Federal Government .................. ................ Federal agency facilities that conduct site remediation activities.

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

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action. A comprehensive list of North American Industry Classification System (NAICS) codes cannot be compiled for businesses or facilities potentially regulated by the proposed rule due to the nature of activities regulated by the source category. The industrial code alone for a given facility does not determine whether the facility is or is not potentially subject to the proposed rule. The proposed rule may be applicable to any type of business or facility at which a site remediation is conducted to clean up media contaminated with organic HAP and other hazardous material. Thus, for many businesses and facilities subject to the proposed rule, the regulated sources (i. e., the site remediation activities) are not the predominant activity, process, operation, or service conducted at the facility. In these cases, the industrial code indicates a primary product produced or service provided at the facility rather than the presence of a site remediation performed to support the predominant function of the facility. For example, NAICS code classifications where site remediation activities are currently being performed at some but not all facilities include, but are not limited to, petroleum refineries (NAICS code 32411), industrial organic chemical manufacturing (NAICS code 3251xx) and plastic materials and synthetics manufacturing (NAICS code 3252xx). However, we are also aware of site remediation activities potentially subject to the proposed rule being performed at facilities listed under NAICS codes for refuse systems, waste management, business services, miscellaneous services, and nonclassifiable. To determine whether your facility is regulated by the action, you should carefully examine the applicability criteria in the proposed rule. If you have questions regarding the applicability of the proposed rule to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this document. Outline. The following outline is provided to assist you in reading this preamble.

I. Background A. What is the source of authority for development of the proposed rule? B. What is a site remediation? C. Why is site remediation a unique NESHAP source category? D. What are the sources of organic HAP emissions from site remediation activities? E. What are the potential health effects associated with organic HAP emitted from site remediation activities? F. What is the relationship of the proposed rule to other EPA regulatory actions affecting site remediation activities? G. What criteria are used in the development of NESHAP? II. Summary of the Proposed Rule A. Who is affected by the proposed rule? B. What are the affected sources? C. What are the standards for process vents? D. What are the standards for remediation material management units? E. What are the standards for equipment leaks? F. What are requirements for remediation material sent off site? G. What are the general compliance requirements? H. What are the testing and initial compliance requirements? I. What are the continuous compliance provisions? J. What are the notification, recordkeeping, and reporting requirements? K. What are the implications of this NESHAP for Clean Air Act title V requirements? L. What are the implications of this NESHAP for Clean Air Act New Source Review Requirements? III. Rationale for Selecting the Proposed Standards A. What is the scope of the source category to be regulated? B. How did we select the pollutants to be regulated? C. How did we select the affected source to be regulated? D. How did we determine MACT for the affected sources? E. How did we select the format of the proposed standards? F. How did we select the testing and initial compliance requirements? G. How did we select the continuous compliance requirements? H. How did we select the notification, recordkeeping, and reporting requirements? IV. Summary of Environmental, Energy, and Economic Impacts A. What are the emissions reductions? B. What are the cost impacts? C. What are the economic impacts? D. What are the non air quality health, environmental, and energy impacts? V. Administrative Requirements A. Executive Order 12866, Regulatory Planning and Review B. Executive Order 13132, Federalism C. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments D. Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks E. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use F. Unfunded Mandates Reform Act of 1995 G. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U. S. C. 601 et seq. H. Paperwork Reduction Act I. National Technology Transfer and Advancement Act VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49400 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules I. Background A. What Is the Source of Authority for Development of the Proposed Rule? Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. The category of major sources covered by today's proposed rule was listed on July 16, 1992 (57 FR 31576). Major sources of HAP are defined by section 112 of the CAA to be those sources that emit or have the potential to emit at least 10 tpy of any single HAP or 25 tpy of any combination of HAP. As a supplement to the list of source categories published on July 16, 1992, the EPA developed the publication entitled `` Documentation of Developing the Initial Source Category List'' (EPA– 450/ 3– 91– 030, July 1992). This document contains descriptions of the types of activities included within each source category of major sources. This document states that future information may be used to refine the source category descriptions (EPA– 450/ 3– 91– 030, page A– 2). We included site remediation on the NESHAP source category list to address HAP emissions from technologies and work practices used to clean up or reduce chemical contamination in soils, groundwater, other types of contaminated media and other materials at those facilities that are major sources of HAP as defined by section 112( a)( 1) of the CAA. During the initial development of the proposed rule, we obtained additional information regarding the cleanup of contamination from leaking underground storage tanks at those facilities that are not associated with industrial or manufacturing facilities and where the predominant, if not only, potential source of HAP emissions is the remediation cleanup activity itself (e. g., cleanup of contaminated soil or groundwater due to a leaking underground tank at a small commercial business, farm, or private residence). Our analysis shows that the HAP emissions from a typical cleanup of contamination from the size and types of underground tanks commonly used at these facilities to store motor fuels or heating oils is significantly below the major source levels (i. e., 10 tpy of a single HAP or 25 tpy of all HAP) (see docket A– 99– 20). Therefore, we plan to modify our initial description for the site remediation source category to exclude remediation activities at residential and farm sites, and from leaking underground storage tanks located at gasoline service stations (businesses typically associated with NAICS codes 447110 and 447190). The source category description will be revised at the next update of the source category list as required under CAA section 112( c).

B. What Is a Site Remediation? A site remediation is performed in response to the release of hazardous substances into the environment (e. g., soil, groundwater, or other environmental media). It involves taking appropriate action to remove, store, treat, and/ or dispose of the hazardous substances to the extent necessary to protect human health and the environment. The term `` cleanup'' generally refers to the activities performed to address the hazardous substance contamination. This term frequently is used interchangeably with the term `` remediation. '' Site remediations can be performed to address hazardous substance contamination resulting from either past or current human activities. Examples of such activities include accidental releases of chemical substances; undetected leaks in tanks or pipelines; releases from the use of incorrectly designed or poorly maintained equipment for the management of materials containing hazardous substances; improper disposal of hazardous substances in surface impoundments, containers, waste piles, or landfills; and abandoned hazardous substances. Organic materials such as chlorinated hydrocarbons, petroleum products, polycyclicaromatic hydrocarbons, and phenols are emitted into the air from site remediations. Site remediations are also performed to clean up contamination from the release of heavy metals (most commonly lead, chromium, arsenic, and cadmium) and other inorganic hazardous substances. Some site remediations address contamination resulting from management practices used at a given facility for special types of waste materials such as mixed wastes (wastes containing both radioactive and nonradioactive hazardous constituents) and low level radioactive wastes. The actions taken at a given contamination site to protect human health and the environment vary depending on site specific conditions such as the composition, physical form, and quantity of the hazardous substance and the relative degree of contamination. Typically, remediation or cleanup activities involve a contaminated media of one physical form or another (e. g., contaminated soil or groundwater). However, at some sites remediation or cleanup involves materials other than contaminated media; this might include, for example, wastes left in tanks and containers or other `` pure'' materials in the environment that do not include media (e. g., oil pumped from below ground). We use the term `` remediation material'' for both contaminated media and pure materials that are remediated. At some sites, the remediation material is left undisturbed and containment techniques are used to prevent or significantly reduce further migration of the contaminants to surrounding soils or to underlying groundwater aquifers (e. g., installation of a physical barrier or cap on the surface of a contaminated landfill). At many sites, the remediation material is treated to remove or destroy the hazardous substance, transform the hazardous substance into a nonhazardous form, or reduce the concentration of the hazardous substance below a threshold level. Treatment processes are available that allow the remediation material to be treated in place (commonly referred to as `` in situ'' treatment). Other treatment processes require first extracting the remediation material from the ground and then placing it in a treatment unit located at the site (commonly referred to as `` ex situ'' treatment). Alternatively, all of the remediation material may be extracted from the site and the remediation material sent offsite to a facility for treatment or disposal, as appropriate for the form and characteristics of the remediation material (e. g., contaminated soils trucked to a hazardous waste treatment, storage, and disposal facility; or contaminated groundwater discharged through a sewer system to a publicly owned treatment works).

C. Why Is Site Remediation a Unique NESHAP Source Category? The development of a NESHAP for site remediation presents a unique set of considerations unlike any other source category for which we have established a NESHAP. The sole purpose of conducting a site remediation is to clean up an existing environmental problem. Any HAP emissions from site remediation are the direct result of the remedial activities or operations taken with the intent of protecting human health and the environment from exposure to hazardous substances. The HAP emissions do not result from processing or refining raw material, manufacturing a product, distributing a product to consumers, or even managing waste to avoid an environmental problem. In developing a NESHAP for site remediation, careful consideration VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49401 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules must be given to establishing a proposed rule that balances the need for effective HAP emissions control with the overall goal of removing the threat to human health and the environment posed by the hazardous substances in the remediation material. Site remediation cannot be categorized by a particular industry sector or group of industry sectors. Site remediation potentially may be conducted at any type of business or facility at which contamination has occurred due to past events or current activities at the facility. These facilities may be privately or government owned. Site remediation is also performed at facilities that have closed or have been abandoned. Implementation problems resulting from the fact that a Site Remediation NESHAP would potentially be applicable to facilities across a wide spectrum of industry sectors are not insurmountable. We have promulgated NESHAP for some source categories that also affect multiple industry sectors. For example, many types of businesses and federal facilities in the United States have operations subject to the Off Site Waste and Recovery Operations (OSWRO) NESHAP under 40 CFR part 63, subpart DD. Establishing a NESHAP for this type of broad based source category, however, does affect the regulatory approach and format used as well as how to evaluate the impacts of the proposed rule. For the NESHAP source categories defined in terms of a specific industrial or manufacturing sector, the facilities comprising the source category (or, in some cases, subcategories within the source category) share similar processes and emissions points. In contrast to these NESHAP source categories, the HAP emissions sources in the site remediation source category are dependent on site specific factors. These factors determine the remedy required for a cleanup and, thereby, the sources and level of air emissions released, if any, by implementing activities associated with the selected remedy. Another consideration is the finite period for which a site remediation is conducted. The objective of a site remediation is to mitigate a detected risk to public health or the environment by successfully completing the cleanup of the area contaminated by a hazardous substance. For NESHAP source categories associated with industrial processes or product distribution, the air emission sources typically remain in operation for many years (i. e., 10 years, 20 years, or even longer for some sources). Once an existing source reaches the end of its useful service life, it is often reconstructed or replaced with a new source. In contrast, the air emission sources associated with site remediations cease to exist once the remediation cleanup criteria are achieved. Depending on site specific facts such as the extent of the contamination and the type of remediation activities needed, the life span of a given site remediation may be a short period lasting several weeks to a more extended period lasting several years. Even for those site remediation activities requiring a number of years to complete, it is important to recognize that ultimately the remediation activities at a facility will be completed, and the air emission sources will no longer exist.

D. What Are the Sources of Organic HAP Emissions From Site Remediation Activities?

Site remediation activities may emit HAP. The levels of organic HAP emissions at any given facility at which a cleanup of remediation material is being conducted depends on sitespecific factors including the type of processes used and activities conducted; the quantity, organic HAP composition, and other characteristics of the remediation material; and the time required to complete the cleanup. The following sections briefly summarize potential types of HAP emission sources related to site remediation activities.

1. In situ Treatment Processes In situ treatment processes are available for cleanup of soils and groundwater contaminated with hazardous organic substances. The in situ processes most frequently in use at existing remediation sites physically extract volatile and semi volatile organics by inducing controlled air flow through the remediation material. Examples of these processes are soil vapor extraction for contaminated soil and air sparging for contaminated groundwater. If not controlled, the organic vapors extracted from the soil or aqueous media are released directly to the atmosphere. Bioremediation is another category of in situ treatment process that is commonly used to remove organic contaminants. These processes are destruction processes based on stimulating microbes in the soil or groundwater to grow using the organic contaminant compound as a food and energy source. A variety of other chemical, thermal, and physical treatment processes also have been used in limited numbers of in situ applications. Organic HAP emissions from in situ treatment processes primarily occur through a process vent. A process vent is a pipe or duct that extends above ground level through which an air or gas stream from the remediation process is exhausted to the atmosphere. Emissions occur at the point at which the organic vapor stream exits the process vent outlet into the atmosphere. Because in situ treatment allows the contaminated material to be treated in place, the primary HAP emissions points for in situ treatment processes are process vents. Avoiding the need to first extract the contaminated media eliminates potential HAP sources associated with accumulating, handling, storing, and treating the remediation material in aboveground units.

2. Ex situ Treatment Processes Ex situ treatment processes also remove, destroy, or transform the contaminants but first require the contaminated media to be extracted from the ground or water body before it can be treated. For a given site, using an ex situ treatment process in place of an in situ treatment process generally allows the remediation to be completed in a shorter period; it also provides greater control of the consistency of the treatment results because of the ability to mix the extracted materials and better adjust the process parameters for optimal performance. However, total remediation costs likely will be higher using an ex situ treatment because of additional costs for material extraction and handling, worker protection, treated residual disposal, and other factors. Many ex situ processes treat the extracted material in a tank, vessel, reactor, combustion unit, or similar type of contained process unit. Extracted material for some ex situ treatment processes is treated directly on the land surface or in a surface impoundment. The ex situ treatment processes frequently used at remediation sites are groundwater pump and treat, solidification/ stabilization, and incineration. Thermal desorption, bioremediation, and air stripping are also types of ex situ treatment technologies commonly used for cleanup of soils and groundwater contaminated with hazardous organic substances. Solidification/ stabilization technologies are primarily used to treat metals and other types of inorganic contaminants. In general, these technologies have limited effectiveness for treatment of organics. Solidification and stabilization processes reduce the mobility of a contaminant by physically binding or enclosing it within a VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49402 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules stabilized mass (solidification), or by chemically binding to a stabilizing agent (stabilization). Incineration can be used to destroy organics in contaminated soils and other contaminated solid wastes by combustion at high temperatures (i. e., 870 to 1,200 C (1,400 to 2,200 F)). The contaminated material is burned in a rotary, circulating bed, fluidized bed, or other type of combustor. Often an auxiliary fuel such as natural gas is also burned to initiate and sustain combustion of the contaminated material. Treatment of contaminated materials by incineration is most frequently conducted by sending the material to a permanent, off site incinerator facility, although mobile incinerators are available and sometimes brought on site. Incinerators used to treat remediation wastes are subject to existing air emission regulations. We promulgated interim standards for the NESHAP for hazardous waste combustion sources under 40 CFR part 63, subpart EEE with final standards to be promulgated by June 14, 2005. If the remediation wastes are classified as hazardous under the Resource Conservation and Recovery Act (RCRA) subtitle C regulations, the waste must be burned in a RCRApermitted incinerator. Incinerators required to meet the hazardous waste combustion NESHAP or RCRA standards use extensive air pollution control systems to achieve emissions limitation standards for organics, particulate matter, metals, and chloride emissions. These systems treat the incinerator exhaust gas stream to control emissions of particulate matter, acid gases, and other pollutants. Thermal desorption is another process used for treating contaminated soils. Unlike incineration, the process is not designed to destroy organics but instead to physically separate the organics from the media. The contaminated soil or other material is heated in a vessel to volatilize organic compounds. Two common vessel designs are the rotary dryer and thermal screw. The bed temperatures and residence times used for the process are at a level that will volatilize selected organic contaminants but will typically not oxidize them. A carrier gas or vacuum system is used to vent the volatilized organics from the vessel to a gas stream treatment system where the organic vapors are removed or destroyed. The organic contaminants typically are either removed through condensation followed by carbon adsorption, or they are destroyed in a secondary combustion chamber or a catalytic oxidizer. The thermal desorption process is used at site remediation activities for the separation of organics from refinery wastes, hydrocarbon contaminated soils, coal tar wastes, wood treating wastes, creosote contaminated soils, pesticides, and paint wastes. Many of these process units are transportable and are temporarily set up at the remediation site for the duration of the cleanup. Air stripping is a physical separation process widely used to remove volatile organics from contaminated groundwater. Air stripping involves the mass transfer of VOC from the water to air by contacting the water with an induced air flow. For groundwater remediation, the air stripping process is typically conducted by pumping the groundwater from extraction wells to a packed tower or an aeration tank. Air strippers can be operated continuously or in a batch mode where the air stripper is intermittently fed from a collection tank. Using batch mode operation improves the air stripper performance consistency and energy efficiency compared to a continuously operated unit because mixing in the storage tanks provides a uniform feed water composition. The typical packed tower air stripper uses a spray nozzle at the top of a tower to distribute the contaminated water over packing in the column. A fan or blower forces air upward from the bottom of the tower countercurrent to the water flow. A sump at the bottom of the tower collects decontaminated water while a vent on the top of the tower discharges the air/ vapor stream. Depending on the organic concentrations in the groundwater and local air permitting requirements, the vent stream may be discharged directly to the atmosphere or through an appropriate organic air emission control device such as activated carbon adsorber, catalytic vapor oxidizer, or thermal vapor oxidizer. Aeration tanks strip VOC by bubbling air into an open top tank through which contaminated water flows. A forced air blower and a distribution manifold are designed to provide good air water contact without the need for any packing materials. If the aeration tank is uncovered, the stripped VOC are emitted to the atmosphere. Bioremediation technologies are successfully used to clean up excavated soils, dredged sludges and sediments, and pumped groundwater contaminated with petroleum hydrocarbons, solvents, pesticides, wood preservatives, and other organic chemicals. These processes rely on indigenous or inoculated micro organisms (e. g., fungi, bacteria, and other microbes) to degrade organic contaminants found in the soil or groundwater by metabolism. In the presence of sufficient oxygen (aerobic conditions) and other nutrient elements, microorganisms convert many organic compounds to carbon dioxide, water, and microbial cell mass. In the absence of oxygen (anaerobic conditions), microorganisms convert the organic compounds to methane, limited amounts of carbon dioxide, and trace amounts of hydrogen gas. For ex situ biotreatment of contaminated soils and dredged sediments, the excavated material is first processed to physically separate stones and other debris. The contaminated solids are then mixed with water to a predetermined concentration dependent upon the concentration of the contaminants, the rate of biodegradation, and the physical nature of the soils. This soil slurry is placed in a reactor vessel (i. e., a bioreactor) and mixed with nutrients and, in some cases, other additives. If the process is an aerobic process, air or oxygen is blown into the reactor. When biodegradation is complete, the soil slurry is dewatered using clarifiers, pressure filters, vacuum filters, sand drying beds, or centrifuges. Use of ex situ bioreactors often is favored over using an in situ bioremediation process for heterogenous soils, low permeability soils, or when a shorter remediation period is required. Biodegradation processes are used at many industrial facilities to treat process wastewaters containing organics. These same processes can be used to treat contaminated groundwater containing organics. At those remediation sites where bioremediation is used to treat contaminated groundwater pumped from the ground, the common practice is to discharge the water either to the facility's existing process wastewater treatment facility or directly to a sewer for treatment at an off site wastewater treatment facility. As an alternative to conducting biodegradation in a bioreactor or other type of enclosed vessel, land treatment and land farming are open biodegradation processes performed on top of the ground surface. For these processes, the extracted material is applied on top of the ground in thin, lined beds or, in some cases, tilled directly back into the upper soil layer. Aerobic microbes decompose the organic compounds contained in the applied material. The material is periodically turned over or tilled to aerate the waste. Organic emissions are generated due to the volatilization of organics from the exposed surface of the VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49403 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules materials primarily during initial application and tilling. After application and tilling, organic emissions continue to occur from the material mixture, although at a decreasing rate, until nearly all of the volatile organics originally in the applied material are either emitted or biologically degraded. Like in situ treatment processes, primary sources of HAP emissions from many types of ex situ treatment processes are process vents. However, unlike in situ treatment processes, there are other potential HAP emissions sources associated with ex situ treatment processes because the contaminated media is extracted from the ground and subsequently managed at the facility as essentially a waste material. Even if treatment of the material is not performed at the facility, any tanks, containers, and other types of equipment used to handle and/ or temporarily store the material before it is shipped off site are potential sources of air emissions. These potential HAP emissions sources are discussed in the next section.

3. Other Extracted Media Sources Material extraction activities. Depending on the characteristics of the remediation material and the extraction method used, organic HAP may be emitted by the extraction activities. Soils, sludges, and sediments are frequently extracted using heavy construction equipment. Volatilization of organics from the freshly exposed surfaces of the extracted materials can release organic HAP into the atmosphere. Tanks. Tanks can be used at a facility to accumulate, temporarily store, or treat extracted materials containing organics. These tanks can either be open tanks (i. e., the surface of the waste material is exposed directly to the atmosphere) or covered tanks (i. e., the surface of the waste material is enclosed by a roof or cover). Organic HAP emissions result from the volatilization of organic containing materials placed in the tank, and the subsequent release of these organic vapors to the atmosphere. For open tanks, the organic vapors released from the surface of the material are dispersed immediately into the atmosphere by diffusion and wind effects. Covering a tank (referred to as a `` fixed roof tank'') significantly lowers organic emissions compared to open tanks. However, organic HAP emissions still occur from fixed roof tanks from the displacement of organic vapors that have collected in the enclosed space above the surface of the stored material through vents on the tank roof. This displacement occurs during tank filling operations when the vapors are pushed out through the tank vents by the rising level of material in the tank (commonly referred to as `` working losses'') and to a lesser extent, when the volume of the vapor in the tank is increased by fluctuations in ambient temperature or pressure (commonly referred to as `` breathing losses''.) The quantity of organic emissions from a fixed roof tank varies depending on volatility of the organic constituents in the extracted materials. Separators. Separators are used to separate oil or organics from water. Organic emissions from these sources are similar to those occurring from open top wastewater treatment tanks. Containers. Containers such as drums, dumpsters, and roll off boxes may be used to accumulate, store, and treat extracted materials. Organic HAP emissions from containers can result from several emission mechanisms. Organic emissions occur during loading of liquid, slurry, and sludge waste materials into containers due to the displacement of organic vapors to the atmosphere through container openings by the rising level of material in the container. Once loaded, containers that remain open to the atmosphere are an emission source when organics evaporate from the exposed surface of the material placed in the container. Surface Impoundments. Although extracted groundwater, slurries, and sludge materials are managed in tanks at most site remediations, these materials under special circumstances may be managed in surface impoundments. A surface impoundment is an earthen pit, pond, or lagoon. Organic emissions from surface impoundments occur as organics evaporate from the exposed surface of the materials placed in the impoundment. Surface impoundments containing organic containing materials may have high organic emissions because of the large exposed surface area and the extended residence time that materials remain in the impoundment (sometimes weeks or months). Transfer Equipment. Organic HAP emissions can potentially occur during the transfer of a material if the transfer system is open to the atmosphere. Volatilization of organics from the exposed surfaces of the extracted materials can release organic HAP into the atmosphere. Examples of such systems include individual drain systems (with all associated drains, junction boxes, and sewer lines), channels, flumes, gravity operated conveyors (such as a chute), and mechanically powered conveyors (such as a belt or screw conveyor). Equipment Leaks. Leaks from pumps, valves, and other ancillary equipment needed to operate material handling and treatment processes can be a potential source of organic HAP emissions. Organic vapors can be emitted directly to the atmosphere by flowing through small openings created in worn or defective pump and valve packings, flange gaskets, or other types of equipment seals. In addition, organic emissions occur when liquids leak outside the equipment exposing the leaked fluid to the ambient air. Emissions result when organics contained in the drip, puddle, or pool of leaked liquid evaporate into the atmosphere. Although the quantity of organic emissions from a single leak is small, when many equipment leaks occur at a facility, the total organic HAP emissions from equipment leaks can be significant.

E. What Are the Potential Health Effects Associated With Organic HAP Emitted From Site Remediation Activities? The range of potential human health effects associated with exposure to organic HAP and VOC include cancer, aplastic anemia, upper respiratory tract irritation, liver damage, and neurotoxic effects (e. g., headache, dizziness, nausea, tremors). Thus, the proposed rule has the potential for providing both cancer and noncancer related health benefits. The following is a summary of the potential health effects associated with exposure to some of the primary HAP emitted from site remediation activities.

1. Benzene Acute (short term) inhalation exposure of humans to benzene may cause drowsiness, dizziness, and headaches, as well as eye, skin, and respiratory tract irritation, and, at high levels, unconsciousness. Chronic longterm inhalation exposure has caused various disorders in the blood, including reduced numbers of red blood cells and aplastic anemia, in occupational settings. Reproductive effects have been reported for women exposed by inhalation to high levels, and adverse effects on the developing fetus have been observed in animal tests. Increased incidence of leukemia (cancer of the tissues that form white blood cells) has been observed in humans occupationally exposed to benzene. We have classified benzene as a Group A, known human carcinogen.

2. Ethyl benzene Acute exposure to ethyl benzene in humans results in respiratory effects such as throat irritation and chest VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49404 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules constriction, irritation of the eyes, and neurological effects such as dizziness. Chronic exposure to ethyl benzene by inhalation in humans has shown conflicting results regarding its effects on the blood. Animal studies have reported effects on the blood, liver, and kidneys from chronic inhalation exposures. No information is available on the developmental or reproductive effects of ethyl benzene in humans, but animal studies have reported developmental effects, including birth defects in animals exposed via inhalation. We have classified ethyl benzene in Group D, not classifiable as to human carcinogenicity.

3. Toluene Humans exposed to toluene for short periods may experience irregular heartbeat and effects on the central nervous system (CNS) such as fatigue, sleepiness, headaches, and nausea. Repeated exposure to high concentrations may induce loss of coordination, tremors, decreased brain size, and involuntary eye movements, and may impair speech, hearing, and vision. Chronic exposure to toluene in humans has also been indicated to irritate the skin, eyes, and respiratory tract, and to cause dizziness, headaches, and difficulty with sleep. Children exposed to toluene before birth may suffer CNS dysfunction, attention deficits, and minor face and limb defects. Inhalation of toluene by pregnant women may increase the risk of spontaneous abortion. We have developed a reference concentration of 0.4 milligrams per cubic meters (mg/ m 3 ) for toluene. Inhalation of this concentration or less over a lifetime would be unlikely to result in adverse noncancer effects. No data exist that suggest toluene is carcinogenic. We have classified toluene in Group D, not classifiable as to human carcinogenicity.

4. Vinyl Chloride Acute exposure to high levels of vinyl chloride in air has resulted in CNS effects such as dizziness, drowsiness, and headaches in humans. Chronic exposure to vinyl chloride through inhalation has resulted in liver damage to humans. Human and animal studies show adverse effects that raise a concern about potential reproductive and developmental hazards to humans from exposure to vinyl chloride. Cancer is a major concern from exposure to vinyl chloride via inhalation, as vinyl chloride exposure has been shown to increase the risk of a rare form of liver cancer in humans. We have classified vinyl chloride as a Group A, known human carcinogen. 5. Xylenes Acute inhalation of mixed xylenes (a mixture of three closely related compounds) in humans may cause irritation of the nose and throat, nausea, vomiting, gastric irritation, mild transient eye irritation, and neurological effects. Chronic inhalation of xylenes in humans may result in CNS effects such as headaches, dizziness, fatigue, tremors, and incoordination. Other reported effects include labored breathing, heart palpitation, severe chest pain, abnormal electrocardiograms, and possible effects on the blood and kidneys. We have classified xylenes in Group D, not classifiable as to human carcinogenicity.

6. Volatile Organic Compounds By requiring facilities to reduce organic HAP emitted from site remediation activities, the proposed rule would also reduce emissions of those VOC that are not HAP but contribute to adverse human health affects. Many VOC react photochemically with nitrogen oxides in the atmosphere to form tropospheric (low level) ozone. A number of factors affect the degree to which VOC emission reductions will reduce ambient ozone concentrations. Human laboratory and community studies have shown that exposure to ozone levels that exceed the national ambient air quality standards (NAAQS) can result in various adverse health impacts such as alterations in lung capacity and aggravation of existing respiratory disease. Animal studies have shown increased susceptibility to respiratory infection and lung structure changes. The VOC emissions reductions resulting from the proposed rule will reduce low level ozone and have a positive impact toward minimizing these health effects. Among the welfare impacts from exposure to air that exceeds the ozone NAAQS are damage to some types of commercial timber and economic losses for commercially valuable crops such as soybeans and cotton. Studies have shown that exposure to excessive ozone can disrupt carbohydrate production and distribution in plants. This can lead in turn to reduced root growth, reduced biomass or yield, reduced plant vigor (which can cause increased susceptibility to attack from insects and disease and damage from cold), and diminished ability to successfully compete with more tolerant species. In addition, excessive ozone levels may disrupt the structure and function of forested ecosystems. F. What Is the Relationship of the Rule to Other EPA Regulatory Actions Affecting Site Remediation Activities? Existing requirements for site remediations conducted under the Comprehensive Environmental Response and Compensation Liability Act (CERCLA) and RCRA programs are administered under the oversight of EPA's Office of Solid Waste and Emergency Response (OSWER). A site remediation may be regulated under one of three OSWER programs.

1. Superfund Removal and Remedial Actions Remediation activities under the Superfund program are exempt from the requirements of the proposed rule. See discussion in section II. A of this preamble.

2. RCRA Corrective Actions Remediation activities under the RCRA Corrective Action program are exempt from the requirements of the proposed rule. See discussion in section II. A of this preamble.

3. Underground Storage Tanks Subtitle I of RCRA directs the EPA to establish regulatory programs to prevent, detect, and clean up releases from underground storage tanks (UST) containing petroleum or hazardous substances listed under section 101( 14) of CERCLA (petroleum is specifically excluded from this CERCLA list). The EPA's Office of Underground Storage Tanks is responsible for developing and implementing the UST program. Federal regulations for UST have been developed which specify requirements for tank notification, interim prohibition, new tank standards, reporting and recordkeeping requirements for existing tanks, corrective action, financial responsibility, compliance monitoring and enforcement, and approval of State programs. The technical standards are codified in 40 CFR part 280 and 40 CFR part 281 with the list of CERCLA hazardous substances in 40 CFR part 302.4. The EPA is authorized under subtitle I to delegate UST regulatory authority to approved State programs. States with delegated authority administer and enforce their own approved UST program instead of the Federal regulations. There are currently 25 States and the District of Columbia with approved UST programs. Each of the approved State UST programs is codified in 40 CFR part 282. In the other States without an approved UST program, EPA administers and enforces the Federal regulations.

VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49405 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules An UST is a tank having a capacity greater than 110 gallons for which the volume of the tank (including the volume of any connected underground pipes) is 10 percent or more beneath the surface of the ground. The major category of UST regulated under this program are tanks used to store petroleum and petroleum based substances including crude oil, motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils. The regulations also apply to underground tanks used to store any hazardous substance defined in section 101( 14) of CERCLA but are not regulated as a hazardous waste under RCRA subtitle C. The regulations do not apply to underground tanks used for a number of specific applications listed in the applicability and definition sections of the rules. The owners and operators of petroleum or hazardous substance UST systems must clean up any spills, leaks, or other releases from the tank into groundwater, surface water, or subsurface soils. Subpart F under 40 CFR part 280 specifies the general requirements for a release response and for corrective action. The specific requirements are determined based on the site specific circumstances. In cases where contamination of soil or groundwater has occurred, the site remediation may proceed according to a corrective action plan approved by the EPA or the designated State or local agency responsible for implementing the UST program at the UST site. Under the subpart F requirements, this plan must provide for adequate protection of human health and the environment as determined by the site specific factors including an exposure assessment.

G. What Criteria Are Used in the Development of NESHAP? Section 112 of the CAA requires that we establish NESHAP for the control of HAP from both new and existing sources. The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as MACT. The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112( d)( 3) of the CAA. In essence, the MACT floor ensures that standards are set at levels that assure that all major sources achieve the level of control at least as stringent as that already achieved by the better controlled and lower emitting sources in each source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the bestcontrolled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitations achieved by the bestperforming 12 percent of existing sources in the category or subcategory (or the best performing 5 sources for categories or subcategories with fewer than 30 sources). In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, any health and environmental impacts, and energy requirements.

II. Summary of the Proposed Rule The proposed rule would amend title 40, chapter I, part 63 of the Code of Federal Regulations by adding a new subpart GGGGG— National Emission Standards for Hazardous Air Pollutants for Site Remediation. The following is a summary of the requirements for the proposed rule.

A. Who is Affected by the Proposed Rule?

1. General Applicability The proposed rule would affect owners and operators of facilities, with certain exceptions described below, that are major sources of HAP emissions, where a MACT activity is also conducted, and at which a site remediation is performed. All three criteria must exist for the rule to apply. For the purpose of implementing the proposed rule, a site remediation is one or more activities or processes used to remove, destroy, degrade, transform, or immobilize organic HAP constituents in soils, sediments, groundwater, surface waters, or other types of solid or liquid environmental media as well as pure materials that are not mixed with environmental media.

2. Major Source Determination A major source of HAP is defined under CAA section 112 as any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year. In determining whether or not your facility is a major source, you would consider all sources of HAP emissions or potential emissions at your facility. A major source determination includes consideration of a facility's potential to emit (PTE) as well as actual emissions. The PTE is the maximum capacity of a stationary source to emit under its physical and operational design. Any physical or operational limitations on the source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation, or on the type or amount of material combusted, stored, or processed, is treated as part of the source's design if the limitation is enforceable by the EPA Administrator. There are a number of tools and resources available to assist an owner or operator in estimating and inventorying their facility's or source's HAP emissions. For example, our Air Clearinghouse for Inventories and Emission Factors (CHIEF) website (www. epa. gov/ ttn/ chief/ software/ airchief) provides the public and private sector users access to air emission data specific to estimating the types and quantities of pollutants that may be emitted from a variety of sources. For those sources or emission points most typically associated with site remediation activities (such as tanks and surface impoundments), our WATER9 computer program provides an analytical model for estimating compound specific air emissions from waste and wastewater collection, storage, and treatment systems. For additional information on determining if your source is a major source, EPA policy memoranda and other guidance on major source determinations and PTE can be found on the Internet at www. epa. gov/ ttn/ oarpg under `` OAR Policy and Guidance Information'' or on the Air Toxics Website at www. epa. gov/ ttn/ atw/ pte/ ptepa 3. MACT Activity A `` MACT activity'' is defined as a non remediation activity that is covered by one of the listed major source categories. This list is compiled pursuant to CAA section 112( c) and was first published on July 16, 1992 (57 FR 31576). The list is updated periodically with the most recent update published in the Federal Register on February 12, 2002 (67 FR 6521). The term `` covered'' here does not mean that the nonremediation activity is necessarily subject to a MACT standard, just that the activity is included within the scope of a particular MACT source category.

4. Exemptions The proposed rule would not apply to site remediations we are specifically excluding from applicability.

VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49406 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules a. CERCLA Cleanups and RCRA Corrective Action The proposed rule exempts sites addressed under CERCLA authority and corrective action activities initiated under permits or orders, including such activities under authorized state programs, at RCRA Treatment, Storage and Disposal facilities. Superfund National Priorities List (NPL) sites have extensive contamination that often require many years of study to determine a permanent remedy. Superfund sites are regulated under a program created by CERCLA that was enacted in 1980 and amended by the Superfund Amendments and Reauthorization Act in 1986. The Superfund program is designed to protect public health and the environment while providing the flexibility to use effective and innovative remediation approaches that best suit the site specific conditions at each CERCLA site (CERCLA section 121). The Superfund program conducts extensive evaluation of the contamination at each NPL site (see 40 CFR 300.430). As part of the evaluation process, a decision document (i. e., Record of Decision (ROD)) is developed for response actions, documenting the extent of contamination and the cleanup method( s) to be used at the site. Under this process, a site specific analysis, considering the impacts to air, soil and groundwater, is conducted and an appropriate remedy is selected. During the ROD process, the general public is given the opportunity for input in the decision making process through public hearings and submission of written comments. The public plays an important role in identifying and characterizing site specific factors, such as the type of contaminants, the level and extent of contamination and other site specific factors. We believe this procedure results in selection of the best plan for cleaning up each site and achieving the program's goals. As implemented under the requirements of RCRA, hazardous waste treatment, storage and disposal facilities (TSDF) must obtain a permit specifying requirements for managing hazardous waste. As a condition of obtaining this permit, facilities are required to undertake corrective action addressing releases of hazardous waste and hazardous constituents from units at the facility which do not themselves require RCRA permits (solid waste management units) (RCRA section 3004( u)). For such designated contamination areas at TSDF, requirements for the cleanup of the contamination are included in the facility's RCRA permit, or Federal Order where applicable. Such cleanup activities are known as `` corrective actions. '' Although RCRA is a separate program from Superfund, the RCRA permitting or Federal Order process for TSDF share several significant characteristics with Superfund cleanup activities at NPL sites. First, it is also the intent of the RCRA Corrective Action program to protect public health and the environment while allowing flexibility in choosing solutions to eliminate or reduce site contamination. Second, RCRA permitting and Federal Order procedures involve the public in the decision making process through informal public meetings, public hearings or written comment. Finally, an extensive site specific evaluation is performed at the RCRA facility to evaluate the extent of the contamination, while considering appropriate remedies through a multimedia (i. e., air, soil, groundwater) perspective. We believe that requiring remediation activities at Superfund NPL sites and at permitted or Federal Order RCRA corrective action sites to meet the requirements of this proposed rule could either create incentives to avoid cleanup, or result in the selection of a remediation approach that is less desirable, protective or permanent (e. g., capping or containing the contaminated media instead of permanently removing or treating the contaminants). (Cf. Louisiana Environmental Action Network v. EPA, 172 F. 3d 65, 67, 70 (D. C. Cir. 1999) (EPA lacks authority in many instances to compel excavation of wastes, so that imposition of requirements on excavated wastes discourages more protective remediations; EPA may permissibly adjust rules applicable to excavated wastes to avoid this result.)) Furthermore, we believe that these existing programs are the most appropriate, comprehensive and effective regulatory approach to address air emissions resulting from site remediation activities at sites addressed using CERCLA authority and RCRA corrective action sites and to avoid transfer from one medium to another.

b. Other Exemptions The proposed rule would not apply to site remediation activities involving the cleanup of radioactive mixed waste managed in accordance with all applicable regulations under Atomic Energy Act and Nuclear Waste Policy Act authorities. Another applicability exemption is provided for those site remediations performed to clean up remediation material containing little or no organic HAP. The proposed rule would not apply to any facility for which the owner or operator demonstrates that the total annual organic HAP mass content of the remediation material to be cleaned up at the facility is less than one Mg/ yr.

5. Application of Once In, Always In Policy Due to the potential short term nature of site remediations, we have evaluated how the proposed rule fits with existing policies for CAA section 112 standards. Our current policy is that once a facility or source is subject to a MACT standard, it remains subject to that standard as long as the affected source definition or criteria are met. This is called the `` once in, always in'' policy. Because of the uniqueness of this source category and the nature of the activities that are being regulated in the proposed rule, we have evaluated how our once in, always in policy should apply relative to the site remediation source category. The existing policy may affect facilities that conduct site remediations in situations where a facility is presently an area source and the remediation activities would increase the total facility PTE such that the facility exceeds the 10/ 25 tons of HAP criteria for a major source under CAA section 112. Because the facility is now considered a major source of HAP, another operation at the facility, such as a manufacturing process, would now be subject to NESHAP for other source categories located at their facility. Furthermore, after the remediation is completed, the facility would, in terms of emissions, essentially be back to where it was as an area source (assuming no change in the facility plant operations). Under the once in, always in policy, the facility would remain subject to the NESHAP that was triggered by the short term change of source status from area to major brought about by the site remediation activity. In the situation described above, we believe the once in, always in policy would create an obvious disincentive for owners or operators to engage in site remediations, particularly since voluntary remediation would be affected by the proposed rule. Our intent is to not prescribe requirements that create incentives to avoid a cleanup or result in the selection of less desirable or less protective or permanent remediation approaches. Therefore, we have determined that the once in, always in policy does not apply relative to the site remediation source category for those facilities that are area sources prior to and after the cleanup activity.

VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49407 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules The above application of the once in, always in policy to site remediation activities addresses the issue of a facility's MACT obligation after completing a remediation activity. We believe a situation could occur, based on language in the CAA, that this policy does not address. Specifically, certain area sources for non remediation activities could become major sources once a remediation activity begins operation. While the facility would have no MACT obligation (Site Remediation MACT or otherwise) after completing all remediation, compliance with a nonremediation MACT standard may be required due to the increase in PTE from the remediation activity. An example of this situation would be an area source chemical processing plant not currently subject to the Hazardous Organic NESHAP (HON), but with manufacturing operations covered by that MACT standard. After operating for many years as an area source, the facility initiates a remediation operation that increases its PTE to major source levels. Since the facility is now a major source of HAP, the facility would have to comply with the HON for the operations covered by that MACT standard. Furthermore, since the compliance dates for the various processes regulated by the HON have all passed, any controls required by the HON would have to be in place at the time the facility became a major source as specified by the HON. Prior to commencing the remediation activity, the facility may find it preferable to install federally enforceable controls on certain emission points and maintain area source status to avoid becoming subject to the industry relevant MACT standard. We realize this option is not achievable in every case.

6. Exemption of Short Duration Site Remediations The EPA is proposing to exempt sources from the requirements of the proposed rule where the contamination requiring remediation occurs within 7 days prior to the remediation activity. This exemption is intended to apply to contamination commonly caused by a spill where the cleanup is initiated soon after the spill event and is of very short duration (i. e., typically 30 days or less). The purpose of this exemption is to encourage prompt attention to remediating contaminant spills and leakages. Although the Agency is not proposing any other duration based exemptions in the proposed rule, it is possible that other duration based exemptions may be appropriate in light of the policy goal of encouraging voluntary site remediations to remove risk to human health and the environment. For example, there may be some site remediations that can be completed in the time required by this proposal to modify relevant permits; it may make sense in cases like this to complete the remediation activity as quickly as possible without waiting for paperwork modifications to be completed. The Agency requests comment on which situations, if any, might be appropriate for further duration based exemptions to today's proposed rule.

B. What Are the Affected Sources? The proposed rule defines three groups of affected sources, (1) process vents, (2) remediation material management units, and (3) equipment leaks. The affected source for process vents is the entire group of process vents associated with both in situ and ex situ remediation activities. The affected source for remediation material management units is the entire group of tanks, surface impoundments, containers, oil/ water separators, and transfer systems used to store, transfer, treat, or otherwise manage remediation material. The affected source for equipment leaks is the entire group of remediation equipment components (pumps, valves, etc.) that contain or contact remediation material having a total organic HAP concentration equal to or greater than 10 percent by weight, and are intended to operate for 300 hours or more during a calendar year.

C. What Are the Standards for Process Vents? The proposed rule would establish emission limitation and operating standards for certain process vents associated with site remediation treatment processes. The same standards would apply to both in situ and ex situ treatment processes. These standards would apply to the entire group of affected process vents associated with all of the treatment processes used for your site remediation. The standards would be the same for existing and new sources. The air emission control requirements under the proposed rule would not apply to certain process vent streams with low flow, low HAP concentration characteristics. A process vent would be exempted from the air emission control requirements of the NESHAP if the owner or operator determines the process vent stream flow rate to be less than 0.005 standard cubic meters per minute. Also exempted would be those process vent streams having a flow rate less than 6.0 standard cubic meters per minute and a total HAP concentration in the vent stream less than 20 parts per million by volume (ppmv). This process vent exemption requires that both the process vent flow rate and the organic HAP concentration criteria be met to qualify for the exemption. A process vent would also be exempted from the air emission control requirements if the HAP concentration of the remediation material being treated by the vented process is less than 10 parts per million by weight (ppmw). Under the proposed rule, you would have two compliance options for the affected process vents. The first option would be to reduce the total organic HAP emissions from all affected process vents at the facility to a level less than 1.4 kilograms per hour (kg/ h) (approximately 3.0 pounds per hour) and 2.8 Mg/ yr (approximately 3.1 tpy). You would have to achieve both of these mass emission limitations to comply with this option under the proposed rule. If the total organic HAP emissions from all affected process vents associated with your site remediation exceed either the hourly or annual mass emission limitation then you would need to use appropriate controls to reduce the emission levels to comply with the emission limitations. If you can meet both of the total organic HAP mass emission limitations using no controls or the existing controls you already have in place to meet federally enforceable organic emission standards, then no additional controls would be required under the proposed rule for your affected process vents. As an alternative to complying with the mass emission limits, a second option proposed under the proposed rule would be to reduce the total organic HAP emissions from all of the affected process vents by at least 95 weight percent. At sites with multiple affected process vent streams, you may comply with this option by a combination of controlled and uncontrolled process vent streams that achieve the 95 percent reduction standard on an overall massweighted average. For those process vent streams controlled by venting to a control device, the closed vent system and control device would need to meet certain requirements specified in the proposed rule.

D. What Are the Standards for Remediation Material Management Units? The proposed rule would establish emissions limitation and operating standards for certain remediation management units (i. e., units associated with the management of remediation materials). For those remediation material management units required to VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49408 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules use air emission controls, the proposed rule would establish by source type (i. e., tanks, oil water separators, containers, surface impoundments, transfer systems) separate sets of emission limitation, operating limit, and work practice standards as appropriate for each source type. The standards would be the same for existing and new sources. Air emission controls would be required on a remediation material management unit used to manage remediation material having an organic HAP (VOHAP) concentration equal to or greater than 500 ppmw. Remediation material with a VOHAP concentration of less than 500 ppmw is not required to be managed in controlled units. The proposed rule also provides an exemption that would allow an owner or operator to selectively designate, on a site specific basis, certain individual units to be exempt from the air emission control requirements regardless of the VOHAP concentration of the remediation material placed in the unit. Application of this discretionary exemption by the owner or operator would be limited based on remediation material organic HAP content. Under this provision, the total annual organic HAP mass content of the regulated remediation material placed in all of the units designated by the owner or operator as exempt units could not exceed 1 Mg/ yr as determined in accordance with the procedures specified in the proposed rule. Determination of VOHAP concentration can be made by either direct measurement of samples of the remediation material or through use of knowledge of the remediation material (i. e., application of owner/ operator expertise using appropriate information regarding the remediation material). In using direct measurement, the VOHAP concentration of the collected samples would be measured using Method 305 in 40 CFR part 63, appendix A. As an alternative to using Method 305, you would be allowed to determine the organic HAP concentration using any one of the several alternative test methods, as applicable to the remediation material stream, and then adjust the test results using factors specified in the proposed rule to determined the VOHAP concentration. The VOHAP determination using direct measurement for a given remediation material unit would be based on samples collected prior to placing the remediation material in the unit at any point you choose before the organic constituents in the material have the potential to volatilize and be released to the atmosphere. For example, you may sample the remediation material stream at the point where it is extracted from the ground (`` point of extraction'' as defined in the proposed rule). Alternatively, you may choose to sample the remediation material stream within the remediation material unit (provided that organic constituents in the material have not been allowed to volatilize and be released to the atmosphere, as specified in the proposed rule). Allowing the use of knowledge to determine the VOHAP concentration of a remediation material provides flexibility for the owner or operator to use any appropriate information to determine VOHAP concentration of a remediation material. The basis for knowledge of the remediation material could include existing information collected by the owner or operator for other purposes or new information collected specifically for the VOHAP remediation material determination. For remediation material management units downstream of the contaminated area in particular, it is important to note that the determination of the VOHAP concentration is made within each remediation material management unit. This approach simplifies the determination process for varying treatment processes and addresses both the situation of management of a single remediation stream or management of two or more material streams combined (either remediation or non remediation, or both). If a single material stream, or combination of streams, have a VOHAP concentration of 500 ppmw or greater in the management unit, then the unit is subject to the air emission control requirements for the particular unit as specified in the proposed rule. Once the VOHAP concentration falls below the 500 ppmw action level, the material need not be managed in controlled units. If the HAP concentration is increased to 500 ppmw or more in a downstream unit, that unit will need control. For example, a facility remediation project involves a pump and treat system that generates groundwater with more than 500 ppmw VOHAP, measured as it exits the groundwater pumping/ piping system. It is initially pumped into a holding tank managing the single remediation stream. The remediation material, the groundwater in this case, has a VOHAP concentration greater than 500 ppmw, and, therefore, the holding tank would be subject to the tank standards under the proposed rule. From the holding tank, the groundwater is sent to a larger mixing tank where the groundwater is mixed with other wastewater streams, where the combined VOHAP concentration is less than 500 ppmw, and the resultant mixture is treated to adjust the pH of the mixture. Because the VOHAP concentration of the combined streams is below 500 ppmw, the mixing tank would not be subject to the tank standards under the proposed rule. Following this mixing operation, the combined wastewater is sent to an onsite wastewater treatment system. Since the mixture leaving the mixing tank has a VOHAP concentration of less than 500 ppmw, all downstream processes and management units (e. g., tanks, surface impoundments, containers or transfer systems) would not be subject to the control requirements for remediation material management units unless the concentration is increased to 500 ppmw or greater through phase separation or other method. In general, we expect remediation streams to be managed separately so a stream would be managed in controlled units until it is treated to reduce the concentration below 500 ppmw. We believe, however, that in some cases a remediation stream may be combined with one or more streams and treated downstream from the mixing point. Mixing merely for the purposes of dilution is not allowed, but if mixing occurs to facilitate treatment (i. e., to treat all streams in a centralized operation), and the resulting stream has a VOHAP concentration below 500 ppmw, then that stream does not have to be managed in controlled units. We realize this approach deviates somewhat from other rules regulating wastewater type management or treatment units that require air emission controls after the VOHAP concentration falls below 500 ppmw due to mixing. For site remediation operations, this is an appropriate approach since we believe remediation activities are typically of a limited duration, relatively low flow in comparison to facilitywide wastewater management operations, and often treated effectively in a facility wide treatment system. We do not want to create obstacles that could inhibit overall treatment effectiveness. Moreover, we believe remediation streams would get some level of HAP reduction, and, thus, emission reduction, through biological treatment within a facility's wastewater treatment system.

1. Tanks The proposed rule would establish emission limitation and work practice standards to control organic HAP emissions from those tanks managing remediation material having an average VOHAP concentration equal to or greater than the 500 ppmw action level.

VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49409 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules For those tanks required to meet the air emission control requirements, you would need to achieve one of two levels of control. The required level of control would be determined by the tank design capacity and the maximum HAP vapor pressure of the extracted material in the tank. For each tank required to use Level 1 controls, you would be required to comply with the existing 40 CFR part 63, subpart OO— National Emission Standards for Tanks— Level 1. For these tanks, you could also comply with the proposed rule by using Level 2 controls if you choose to do so. For each tank required to use Level 2 controls, you would have five compliance options under the proposed rule. The compliance alternatives provided under the proposed rule would allow you to either: (1) Use a fixed roof tank with an internal floating roof; (2) use an external floating roof tank; (3) vent the tank through a closed vent system to a control device that meets the requirements specified in the proposed rule; (4) locate an open tank inside an enclosure vented through a closed vent system to a control device that meets the requirements specified in the proposed rule; or (5) use a pressurized tank that operates as a closed system during normal operations. The specific technical requirements for each of these alternatives are implemented under the proposed rule by cross referencing the existing Tank Level 2 control standards in 40 CFR 63.685( d) of the OSWRO NESHAP.

2. Containers The proposed rule would establish emission limitation and work practice standards to control organic HAP emissions from containers having a design capacity greater than 0.1 cubic meters (approximately 26 gallons) used to manage remediation material having a VOHAP concentration of 500 ppmw or more. For those containers required to use air emission controls, you would need to achieve one of three levels of control that would be determined by the container design capacity, the organic content of the extracted material in the container, and whether the container is used for a waste stabilization process. You would be required to comply with the specified requirements for the applicable control level in the existing 40 CFR part 63, subpart PP— National Emission Standards for Containers. Except for containers used for waste stabilization, these standards would require that you manage the extracted material in containers that use covers according to the requirements specified in the proposed rule. Should affected containers be used for a waste stabilization process, containers would be required to be vented to a control device. Application of the container standards and the various levels of control is illustrated in the following example. In the situation where contaminated soil (i. e., the remediation material in this case) is excavated and placed in a dump truck (i. e., a container under the definitions used in the proposed rule), the truck containing the soil would be required to meet Level 1 controls if the VOHAP concentration is equal to or greater than 500 ppmw and the criteria for Level 2 controls is not met. If this were the case, as it likely would be in most remediation situations, then a cover such as tarp covering the remediation material would be adequate to meet the Level 1 control requirements. If the vapor pressure and VOHAP concentration were such that Level 2 controls were required then a more strenuous set of controls would apply.

3. Surface Impoundments For each surface impoundment required to use air emission controls, you would be required to comply with the existing 40 CFR part 63, subpart QQ— National Emission Standards for Surface Impoundments. Under this subpart, you must meet one of two options: (1) Use a cover over the surface impoundment and vent through a closed vent system to a control device; or (2) use a floating membrane cover designed and operated according to requirements specified in the proposed rule.

4. Oil Water and Organic Water Separators For each oil water or organic water separator required to use air emission controls, you would be required to comply with the existing 40 CFR part 63, subpart VV— National Emission Standards for Oil Water and OrganicWater Separators. Under this subpart, you must meet one of three options: (1) Use a floating roof on the separator; (2) use a cover over the separator that is vented through a closed vent system to a control device; or (3) use a pressurized separator designed and operated according to requirements specified in the proposed rule.

5. Material Transfer Systems For each individual drain system required to use air emission controls, you would be required to comply with the existing 40 CFR part 63, subpart RR— National Emission Standards for Individual Drain Systems. For transfer systems required to use air emission controls other than individual drain systems, you would be required to comply with one of three options: (1) Use covers; (2) use continuous hardpiping or (3) use an enclosure vented to a control device.

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

F. What Are the Requirements for Remediation Material Sent Off Site? Under the proposed rule, if you transfer remediation material containing organic HAP to another party, another facility, or receive it from another facility, this material would need to be managed according to the provisions of this subpart. In other words, if the material has a VOHAP concentration of 500 ppmw or more, as determined according to the procedure in the proposed rule, then at the new facility this material would need to be managed in units that meet the air emission control requirements under the Site Remediation NESHAP for the applicable remediation material management unit type (i. e., tank, containers, etc.). Similarly, any treatment process used for the transferred remediation material would need to meet the process vent control requirements.

G. What Are the General Compliance Requirements? Under the proposed rule, you would be required to meet each applicable emission limitation and work practice standard in the proposed rule at all VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49410 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules times, except during periods of startup, shutdown, and malfunction. You must develop and implement a written startup, shutdown, and malfunction plan for your site remediation according to the provisions of 40 CFR 63.6( e)( 3). Also with regard to compliance, it is important to note that under the provisions of the proposed rule, if an affected source (i. e., a remediation management or treatment unit) is subject to and complying with the control requirements under another part 61 or part 63 standard (e. g., has either installed air emission controls or has taken other actions to reduce HAP emissions to levels dictated by the other part 61 or part 63 standards) then the affected source is exempt from the control requirements of the proposed rule in 40 CFR 63.7883 through 40 CFR 63.7933. However, the source must be controlling air emissions under the other rule; the exemption under the proposed rule does not apply if the source is merely exempt from the control requirements of the other rule and has not taken action to limit HAP emissions.

H. What Are the Testing and Initial Compliance Requirements? Initial compliance for process vents would be demonstrating that either: (1) The total organic HAP emissions from all affected process vents is less than 1.4 kg/ h and 2.8 Mg/ yr; or (2) the total organic HAP emissions from all of the affected process vents is reduced by at least 95 weight percent. Initial compliance for remediation material units would be demonstrating that either: (1) The VOHAP concentration of the remediation material managed in the unit is below the 500 ppmw action level; or (2) the unit meets all applicable air emission control requirements for the unit. If a control device is used, initial compliance is determined by either: (1) Performing a performance test according to 40 CFR 63.7 of the general provisions and using specific EPA reference test methods; or (2) performing a design evaluation according to procedures specified in the proposed rule. You also must establish your operating limits for the control device based on the values measured during the performance test or determined by the design evaluation.

I. What Are the Continuous Compliance Provisions? To demonstrate continuous compliance with the applicable emission limitations and work practice standards under the proposed rule, you would perform periodic inspections and continuous monitoring of certain types of air pollution control equipment you use to comply with the proposed rule. In those situations when a deviation from the operating limits specified for a control device is indicated by the monitoring system or when a damaged or defective component is detected during an inspection, you must implement the appropriate corrective measures. To demonstrate continuous compliance with an emission limitation for a given source, you would continuously monitor air emissions or operating parameters appropriate to the type of control device you are using to comply with the standard, and keep a record of the monitoring data. Compliance is demonstrated by maintaining each of the applicable parameter values within the operating limits established during the initial compliance demonstration for the control device. There are different requirements for demonstrating continuous compliance with the work practice standards, depending on which standards are applicable to a given emission source. To ensure that the control equipment used to meet an applicable work practice standard is properly operated and maintained, the proposed rule would require that you periodically inspect and monitor this equipment. When a cover is used to comply with a work practice standard, you must visually inspect the cover periodically and keep records of the inspections. In addition, for external floating roofs, seal gap measurements must be performed on the secondary seal once per year and on the primary seal every 5 years. Leak detection monitoring using Method 21 would be required for certain types of covers to ensure gaskets and seals are in good condition, and for closed vent systems to ensure all fittings remain leak tight. In general, annual inspection and leak detection monitoring of covers is proposed. Annual inspection and leak detection monitoring would be required for closed vent systems. Any defects or conditions causing failures detected by an inspection or monitoring need to be promptly repaired and records of the repairs kept. You would be allowed to use an alternative to the monitoring required by these proposed standards. If you choose to do so, you would be required to request approval for alternative monitoring according to the procedures in 40 CFR 63.8 of the General Provisions. J. What Are the Notification, Recordkeeping, and Reporting Requirements?

The proposed rule would require you to keep records and file reports consistent with the notification, recordkeeping, and reporting requirements of the General Provisions of 40 CFR part 63, subpart A. Two basic types of reports are required: initial notification and semiannual compliance reports. The initial notification report advises the regulatory authority of applicability for existing sources or of construction for new sources. The initial compliance report demonstrates that compliance has been achieved. This report contains the results of the initial performance test or design evaluation, which includes the determination of the reference operating parameter values or range and a list of the processes and equipment subject to the standards. Subsequent compliance reports describe any deviations of monitored parameters from reference values; failures to comply with the startup, shutdown, and malfunction plan (SSMP) for control devices; and results of LDAR monitoring and control equipment inspections. Records required under the proposed standards must be kept for 5 years, with at least 2 of these years being on the facility premises. These records include copies of all reports that you have submitted to the responsible authority, control equipment inspection records, and monitoring data from control devices demonstrating that operating limits are being maintained. Records from the LDAR program and storage vessel inspections, and records of startups, shutdowns, and malfunctions of each control device are needed to ensure that the controls in place are continuing to be effective.

K. What Are the Implications of This NESHAP for Clean Air Act Title V Requirements?

1. What is the title V Program? This program is a permit program established under title V of the CAA in 1990. A title V permit is intended to consolidate all of the air pollution control requirements into a single operating permit for a source's air pollution activities. 2. Under what circumstances am I required to obtain a title V permit for my remediation activity? Title V requires all major sources to obtain permits (see 40 CFR 70.3, or 40 CFR 71.3). Major source status is triggered for a source under title V when actual emissions or potential to emit meets or exceeds certain major source VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49411 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules thresholds (see definition of major source at 40 CFR 70.2, or 40 CFR 71.2). Although a source subject to the Site Remediation MACT will be major for title V purposes based on emissions of HAP, title V also requires permits for sources that are major for other air pollutants, (e. g., the criteria pollutants). Sources that are subject to the Site Remediation MACT, by virtue of being major sources, will typically have to obtain an operating permit, if they don't already have one, or modify their existing permit under title V (either 40 CFR part 70 or 71). An option for avoiding major source status under title V for some sources that are not major prior to the remediation activity is voluntarily requesting practicallyenforceable limitations (often operation or emissions related) to reduce their potential to emit or actual emissions to levels below the major source thresholds. This option should be pursued through your permitting authority. 3. Who is responsible for obtaining the title V permit for a remediation activity? Typically the party responsible for obtaining the title V major source permit will be either: (1) The owner or operator of the site remediation equipment or activities, or (2) the owner or operator of the source already existing at the facility that is covered by another MACT source category activity (the other collocated source). The decision as to who should apply for the permit in any specific case will be made on a case by case basis (site dependent) and should be evaluated in consultation with the permitting authority, however, normal practice will be to issue the permit to the entity that has common control of all activities at the facility. Under the definition of major source used for HAP in 40 CFR part 70 or 71, all activities within a contiguous area under common control will be aggregated (grouped) together as a single source to determine major source status. While the source is ultimately responsible for making these determinations, permitting authorities will commonly assist sources in this task. Also note that the question of who may be required to apply for the permit will likely be affected by the way that pre construction review permits (also referred to as New Source Review or NSR permits) were issued to such sources. Initial NSR permits are required prior to the commencement of construction activities, while initial title V operating permits are required generally after commencement of operations. Thus, permitting authorities are likely to follow decisions made in issuing NSR permits when looking at this question for title V purposes. 4. If I already have a title V permit, is a modification required for my remediation activity? When there is a major source in a MACT source category that already has a title V operating permit, and a site remediation activity commences operation at the same facility and all activities at the facility are considered part of the same source (i. e., under common ownership and control), permitting authorities will require the previously issued operating permit to either be reopened or revised to reflect the new applicable requirements of the Site Remediation MACT. Permit reopening under 40 CFR 70.7( f), or 40 CFR 71.7( f), is required when a major source has a permit, there are 3 years or more left on the term of the permit, and we promulgate a new MACT standard (or other applicable requirement) that applies to the source. For such sources, if less than 3 years is left on the permit term, the State may generally wait until renewal to update the permit. On the other hand, modifications under 40 CFR 70.7( e), or 40 CFR 71.7( e), are required when a source has a permit and the source becomes subject to the MACT standard after the standard is promulgated (in most cases, these will be significant modifications under 40 CFR 70.7( e)( 4), or 40 CFR 71.7( e)( 3), but in some circumstances other permit modification procedures may apply). 5. If I have an existing title V permit, do I have to wait for completion of the permit modification before I begin the remediation activity? In general, when site remediation activities are not addressed or prohibited by your existing operating permit, you may commence such activities at any time prior to the finalization of any formal title V permit modification procedures. However, when permit modification is required due to a new remediation activity and the new activity conflicts with (or is expressly prohibited by) the existing permit terms or conditions, the permit must be formally revised prior to commencing operation of such activities or you will be in violation of the permit prior to their revision. 6. The increase in potential to emit from a remediation activity will make my facility a major source overall, but only for a limited time. Am I required to get a title V permit? What activities can occur before my title V permit is issued? All major sources are required by 40 CFR 70.5( a)( 1), or 40 CFR 71.5( a)( 2) to submit their permit application no later than 12 months after they commence operation, but State law could require it sooner. After that, 40 CFR 70.7( a)( 2), or 40 CFR 71.7( a)( 2), allows permitting authorities up to 18 months to issue the final permit, but State law may also require issuance sooner. Major sources that expect to operate for 12 months or more obviously must submit a permit application in all cases. Sources that expect to operate less than 12 months (or whatever deadline the State sets) may decide not to prepare a permit application, at the risk of operating past that deadline without submitting the required application. Also note that policies concerning the permitting of such sources may vary from State to State; so it is also a good idea to contact your permitting authority concerning the steps necessary to fulfill your obligations under the operating permit program. 7. What are the requirements for remediation equipment that moves from one facility to another after completing each remediation activity? Permitting authorities will decide how to permit such sources on a caseby case basis, taking into account the particular circumstances known to them at that time. Many permitting authorities have policies or specific rules to address the permitting of portable sources, or other activities of short duration, which are usually those expected to operate less than 1 or 2 years at any one location, and which are expected to operate in more than one location during a typical 5 year permit term. In addition, 40 CFR 70.6( e), or 40 CFR 71.6( e), addressing temporary sources, allows permitting authorities to issue a single operating permit for a major source that will operate in multiple locations during its 5 year permit term. 8. My facility's current operations are covered by an existing title V permit, do I have the option of obtaining a separate title V permit for a new remediation activity? In some cases, permitting authorities have authority to issue multiple operating permits to a single source, and if this is the case, they may agree to issue a separate permit for the remediation activities. Although title V permits are typically thought of as a single permit that covers all the applicable requirements and all emissions units at a single source, the CAA allows permitting authorities to issue multiple permits to a single source. Such issuance would be consistent with title V as long as the assemblage of permits for a single major source addresses all applicable requirements at all subject emission VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49412 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules 1 Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Washington, DC. units (in the same way that a single major source permit would).

L. What Are the Implications for This NESHAP for Clean Air Act New Source Review Requirements?

This NESHAP does not change any of the existing requirements under the NSR program. The questions and answers within this section summarize the NSR program and a source's general requirements under this program. 1. How is the NSR program structured? The NSR program is divided into three parts: Nonattainment NSR for major sources, Prevention of Significant Deterioration (PSD) for major sources, and minor source NSR. The term `` NSR'' is used to refer to both the overall program, and to the requirements that apply in nonattainment areas (e. g., nonattainment NSR). Nonattainment NSR applies to large facilities (major sources) located in areas where air quality is unhealthy to breathe —i. e. where the NAAQS for a CAA pollutant is not being met. These areas are called nonattainment areas.

Note: The term major source as it applies to the NSR program is discussed in detail in the July 23, 1996 Federal Register (61 FR 38429)). Nonattainment NSR for major sources of certain pollutants also applies in the federally designated ozone transport region (OTR), which consists of eleven northeastern states. 1 Prevention of significant deterioration (PSD) applies to major sources located in areas where air quality is currently acceptable— i. e. where the NAAQS for a CAA pollutant is being met. These are called attainment areas. Minor NSR applies to smaller sources and modifications that contribute to air pollution throughout the country. 2. Who runs the NSR and PSD programs? The NSR program is administered by State and local air pollution permitting authorities, who are responsible for issuing all permits. Each state or local permitting authority is required to incorporate NSR and PSD requirements into its State Implementation Plan (SIP), which is the State's plan to ensure progress toward, or maintenance of, attainment of all NAAQS. A State's PSD program may be SIP approved or delegated. If the State designs its own program, EPA may approve it so long as it meets the criteria listed in Federal PSD regulations. Otherwise, the State may take delegation of the Federal PSD program, as it is written in the Federal PSD regulations. A State's nonattainment NSR program must be a SIP approved program meeting the criteria listed in Federal NSR regulations. 3. Who is subject to major NSR and PSD requirements? No one may begin constructing a new major stationary source or undertake a major modification at an existing stationary source without obtaining an NSR or PSD permit from the permitting authority. The new major source would not need an NSR or PSD permit unless it had new potential emissions that qualify as major. Moreover, an existing major source that undertakes a major modification is subject to NSR or PSD only if there is a significant increase in emissions. 4. Do sources always need an NSR permit for a construction project? Sources may avoid major NSR or PSD altogether by not increasing their emissions (e. g., by making changes that do not increase emissions, by installing controls on one part of the facility to offset increases at another part of the facility, or by agreeing to emission limits in their permit). Alternatively, facilities may comply with NSR by including modern controls in conjunction with an upgrade project or a new facility. 5. How long does the process take to complete? The EPA estimates that the average time it takes to get a major NSR or PSD permit is about 7 months from receipt of the permit application. 6. When NSR or PSD applies, what must sources do?

a. Major Nonattainment NSR in Nonattainment Areas New and existing major sources undertaking major modifications subject to nonattainment NSR must apply state of the art emission controls that meet the lowest achievable emissions rate (referred to as LAER). The LAER is based on the most stringent emission limitation in any State's SIP, or achieved in practice by the source category under review. To get a permit, the applicant must also offset its emission increase by securing emissions reductions offsets from other sources in the area. The amount of the offset must be as great or greater than the new increase, and is based on the severity of the area's nonattainment classification. The more polluted the air is where the source is locating or expanding, the greater the emissions reductions required to offset the proposed increase. Offsets must be real reductions in emissions, not otherwise required by the CAA, and must be enforceable by the EPA. Each applicant must also conduct an analysis of `` alternative sites, sizes, production processes, and environmental control techniques * * * (that) demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs of its location, construction, or modification. '' The applicant must also certify that all other sources operating within the State are operating in compliance with the CAA and SIP requirements. Finally, the public must be given adequate notice and opportunity to comment on each permit application.

b. Prevention of Significant Deterioration in Attainment Areas New major sources and existing sources that undertake major modifications that are subject to PSD must apply best available control technology (BACT). The BACT determination ultimately made by the permitting authority allows for a consideration of energy, environmental, and economic impacts and other costs on a case by case basis that is specific to the facility's situation. The permitting authority then specifies an emission limit for the source that represents BACT. Each PSD applicant must also perform an air quality analysis to demonstrate that the new emission increase will not cause or contribute to a violation of any applicable NAAQS or result in a significant deterioration of the air quality. Finally, each applicant must also conduct an analysis to ensure that the increase does not result in adverse impact on air quality related values, including visibility, that affect designated Class I areas, such as wilderness areas and national parks.

c. Minor NSR For sources not otherwise covered by major PSD or NSR, the CAA requires permitting authorities to regulate construction and modifications to ensure that the NAAQS are achieved. State programs have widely varying requirements. Some are comprehensive, while others provide numerous exclusions. Some require a technology review, in addition to air quality modeling.

III. Rationale for Selecting the Proposed Standards A. What Is the Scope of the Source Category To Be Regulated?

As we discussed in section I. A of this preamble, site remediation is one of the approximately 170 categories of sources included on the NESHAP source category list. The facilities included VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49413 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules within the scope of this source category include sites at which the cleanup is required to comply with requirements under a State regulatory program as well as sites at which cleanups are performed on a voluntary basis. In section II. A of this preamble, we discuss how statutory directives under RCRA and CERCLA direct us to address the control of air emissions from certain site remediations and that those activities under the RCRA Corrective Action and CERCLA authorities are exempt from the requirements of the proposed rule.

B. How Did We Select the Pollutants To Be Regulated? The specific chemicals, compounds, or groups of compounds designated by Congress to be HAP are listed in CAA section 112( b). Included on the list are organic and inorganic chemicals. From this list of HAP, we selected the specific HAP to be regulated under this NESHAP for site remediations.

1. Organic HAP Organic HAP potentially can be emitted from site remediations at many different types of facilities. We considered but decided not to select all of the organic HAP listed under section 112( b) for regulation in the Site Remediation NESHAP. Instead, we decided to be consistent with the approach we used for the OSWRO NESHAP as well as other NESHAP promulgated for source categories with large diversity in the organic chemical constituents present in the materials managed at any given facility and instead regulate on the basis of a surrogate that reasonably ensures MACT control of the organic HAP present. See National Lime v. EPA, 238 F. 3d, (D. C. Cir. 2000, upholding use of surrogates in establishing MACT standards). When we developed the organic HAP list for the OSWRO NESHAP, we evaluated each organic chemical or chemical group listed as a HAP in CAA section 112( b) with respect to its potential to be emitted from a waste management or recovery operation. The criteria used to characterize and evaluate emission potential was based on a chemical constituent's Henry's law constant, evaluation of the aqueous and organic volatility characteristics of the chemical, and the ability of the analytical test methods to quantitate the chemical. Based on our evaluation, we selected 98 specific organic HAP compounds or compound groups to be regulated under the proposed rule (Table 1 to 40 CFR part 63, subpart DD.). Although the OSWRO NESHAP, by an exclusion under the rule applicability, does not apply to units managing wastes from site remediations, the data base that we used to select the list of organic HAP for the OSWRO NESHAP included remediation wastes sent to hazardous waste TSDF. We believe that this data base is also representative of the range of organic HAP chemicals having the potential to be emitted from the sites requiring cleanup of media contaminated with volatile or semivolatile organics and other remediation material. Therefore, we are proposing that same list of organic HAP used for the OSWRO NESHAP also be used for the Site Remediation NESHAP. This list is presented in Table 1 to proposed Subpart GGGGG. We request comment on the proposal to use this list of organic HAP for the Site Remediation NESHAP.

2. Inorganic HAP The types of inorganic compounds listed as HAP in CAA section 112( b) that are most likely to be in contaminated media requiring remediation are heavy metals (i. e., antimony, arsenic, beryllium, cadmium, chromium cobalt, lead, manganese, mercury, nickel, and selenium). A widely used remediation approach for cleanup of soils, sludges, or sediments contaminated with heavy metals involves excavating the contaminated media, treating the remediation material in a solidification or stabilization process, and disposing of the treated material in an appropriate landfill (which may be on site or an off site facility). Metals in the contaminated soil are immobilized by the added binder material used for the fixation process. In situations where groundwater is contaminated with heavy metals, site remediation typically involves extracting the groundwater by pumping it to the surface and then removing the metals by a physical or chemical process (e. g., precipitation, ion exchange). The metals remain in the wet precipitate or other extraction media and are not released to the atmosphere. For some site remediations involving the cleanup of media containing both metals and organic contaminates, the extracted remediation waste is burned in an incinerator or other combustion device. Metal HAP contained in the remediation waste vaporize at high combustion temperatures or become airborne as fine particles and can remain in combustion gases in either a gaseous or particulate form. Any metal HAP contained in the combustion gases that is not captured and removed by a control device is emitted to the atmosphere. Based on our information regarding the cleanup of media contaminated with metals or other inorganic HAP, many of the remediation techniques used do not release the inorganic HAP to the atmosphere. In cases where remediation material containing inorganic HAP is burned in an incinerator, the incinerator used must already meet air standards under the CAA and RCRA that limit organic, particulate matter, metals, and chloride emissions. (See, e. g. 40 CFR part 263, subpart EEE (MACT standards for hazardous waste combustion sources).) Therefore, we are proposing that metals and other inorganic compounds listed as HAP in CAA section 112( b) not be regulated by this Site Remediation NESHAP. We are specifically requesting comment on this proposal and, in particular, would appreciate receiving data regarding the sources and quantity of inorganic HAP emissions from site remediations and available control technologies applicable to the sources in order to either support or revise our decision not to regulate inorganic HAP emissions under this NESHAP.

C. How Did We Select the Affected Source To Be Regulated? For the purpose of implementing a NESHAP under 40 CFR part 63, `` affected source'' is defined to mean the stationary source, or portion of a stationary source that is regulated by a relevant standard or other requirement established pursuant to section 112 of the CAA. Each relevant standard is to designate the affected source for the purposes of that standard. Within a source category, we must decide which of the sources of HAP emissions (i. e., emission points or groupings of emission points) to which the proposed rule applies. One option for the Site Remediation NESHAP is to define the affected source as the entire set of activities performed for a given site remediation such as the cleanup of contaminated soil or the cleanup of contaminated groundwater. The affected source would consist of the mix of emission points for the sequence of activities in which the contaminated media or other remediation material is extracted (if needed), stored, conveyed, treated, or, otherwise handled at the facility. Under this broad definition option, a separate emission limitation for MACT would be determined for the entire group of emission points associated with a site remediation to clean up the contaminated soil. Another emission limitation for MACT would be determined for the entire group of emission points associated with a site remediation to clean up the contaminated groundwater. Unlike the NESHAP source categories that can be VerDate Jul< 25> 2002 21: 12 Jul 29, 2002 Jkt 197001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 30JYP2. SGM pfrm17 PsN: 30JYP2 49414 Federal Register / Vol. 67, No. 146 / Tuesday, July 30, 2002 / Proposed Rules readily characterized by one or several standardized process configurations which are used throughout the industrial segment representing the source category, the operations used for all contaminated soil or contaminated groundwater remediations cannot. The activities, equipment configurations, and sequencing of operations used are not consistent from site remediation to site remediation. Therefore, we concluded that this option is not an appropriate approach for defining the affected sources for the Site Remediation NESHAP. Another option we considered is to define the affected source in terms of common groupings of processes and equipment used for management and cleanup of contaminated media and other remediation materials (i. e., tanks, containers, process vents, and equipment leaks). Under this option, MACT is determined for each emission source group. We believe that this option is an appropriate way to define the affected source for the Site Remediation NESHAP. Designating the affected source to be a group of similar emission point types ensures that air emission controls of equivalent performance are applied at the same time to all of the units used to manage a remediation material stream. Also, this approach to defining sources is consistent with other NESHAP for related waste management operations (e. g., the OSWRO NESHAP). Therefore, for the Site Remediation NESHAP, we determined separate MACT for common groups of emission point sources. The first group of common emission points designated to be an affected source for the Site Remediation NESHAP is the group of pipes, stacks, or ducts that allow the passage of gases, vapors, or fumes containing organic HAP to the atmosphere from any treatment process used at the facility to remove, destroy, or otherwise transform the hazardous substances in remediation material. These pipes, stacks, and ducts are collectively referred to as process vents in the proposed rule. The process vent may be either associated with an in situ process (e. g., soil vapor extraction used to treat contaminated soil) or ex situ process (e. g., air stripper used to treat contaminated ground water, or thermal desorption unit used to treat contaminated soil). For the purposes of applying the standards, a process vent is neither a vent that operates as a safety device nor a stack or duct used to exhaust combustion products from a boiler, furnace, incinerator, or other enclosed combustion device that is being used to treat a remediation waste or material. If these combustion devices are being used as an air pollution control device to control air emissions then the vent could be subject to the standards. The next group of common emission points designated to be an affected source for the Site Remediation NESHAP is the group of units used at the facility which handle, temporarily store, or otherwise manage the remediation material once it has been extracted from the ground. This group of sources includes units that treat extracted contaminated media but do not use a process vent (e. g., a tank used for biological degradation treatment of contaminated groundwater). These units are tanks, containers, surface impoundments, oil water and organicwater separators, individual drain systems, and other stationary transfer or conveyance. The units regulated under this affected source designation are collectively referred to as remediation material management units in the propose rule. A third group of common emission points designated to be an affected source for the Site Remediation NESHAP is the group of equipment components prone to emitting organic HAP as a result of liquid or vapor leaks. This group of equipment consists of pumps, compressors, agitators, pressure relief devices, sampling connection systems, open ended valves and lines, valves, connectors, and instrumentation systems that contain or contact remediation material once it has been extracted from the ground. We have identified two other types of remediation activities that may emit organic HAP but do not belong in any of the above three affected source groups. These activities are the excavation of contaminated soil and land treatment process for contaminated soils, sediments, and sludges. Excavation of contaminated soil involves the use of heavy machinery to dig up the soil. The excavated material is then either placed directly into dump trucks for transport offsite or moved to another location at the facility for storage or treatment. Land treatment processes are open biodegradation processes in which the contaminated soil, sediment, or sludge is excavated, re applied in shallow layers on the ground surface, and periodically turned over or tilled to aerate the applied material. The organic contaminants are neutralized, destroyed or transformed by biological actions of microbes in the materials. Our information indicates that there are no add on controls currently in use to control organic emissions from these activities, nor are we aware of any practical work practices or process modification that can be implemented to reduce organic HAP emissions from these activities. Therefore, we are proposing not to develop standards under this NESHAP for either excavation operations or land treatment activities. We specifically request comment on the technical and practical feasibility of controlling HAP emissions from these remediation activities, actual HAP emissions rates that occur, and the costs of applying any applicable controls.

D. How Did We Determine MACT for the Affected Sources? Section 112( d)( 3) of the CAA specifies that the MACT standards for existing sources cannot be less stringent than the average emission limitation achieved by the best performing 12 percent of existing sources for categories and subcategories with 30 or more sources. There are many more than 30 site remediations being conducted nationwide. Therefore, the MACT floor for existing sources at site remediations is established by the best performing 12 percent of existing sources. We reviewed our information for site remediations to find an approach for identifying the best performing 12 percent of existing sources, arraying the data for each category of emission point. Our data includes individual existing sites where remediation activities use add on air emission controls (e. g., venting air strippers through carbon adsorbers, management of remediation wastes in covered tanks). However, there are remediation sites in our data base at which no air emission controls are used. The use of air emission controls at a given location depends on a combination of factors including, but not limited to, the type and extent of contamination requiring cleanup, the nature of the site remediation activities used for the cleanup, and the requirements imposed by the agency having oversight of the site remediation. Determining a MACT floor based on use of control measures other than addon controls (e. g., fuel switching, material substitution or reformulation, process modification, material recycling within the process) is not technically appropriate for, or applicable to, the site remediation source category. This source category addresses HAP emissions that are released from the cleanup of pre existing environmental contamination problems. By the time the need for site remediation has been identified, the opportunity has passed for applying any pollution prevention or source reduction techniques.