[Federal Register Volume 66, Number 235 (Thursday, December 6, 2001)]
[Rules and Regulations]
[Pages 63313-63318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30267]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7114-6]
RIN 2050-AE79


NESHAP: Emergency Extension of the Compliance Date for Standards 
for Hazardous Air Pollutants for Hazardous Waste Combustors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to extend for one year the 
compliance date for regulations for incinerators, cement kilns, and 
lightweight aggregate kilns that burn hazardous waste, promulgated on 
September 30, 1999 (NESHAP: Final Standards for Hazardous Air 
Pollutants for Hazardous Waste Combustors). We are taking this action 
in response to the Court's opinion in Cement Kiln Recycling Coalition 
v. EPA, 255 F.3d 855, 872 (D.C. Cir. 2001) issued on July 24, 2001, 
where the Court vacated the emission standards known as the hazardous 
waste combustor ``floors'' and remanded for further proceedings. 255 
F.3d at 871. The rules are still in effect, however, because the Court 
has issued an order (at the request of the parties to the proceeding) 
which stays issuance of the mandate and vacature does not occur until 
the Courts issue a mandate. These existing regulations require sources 
to take actions based on the current compliance date, September 30, 
2002. Deadlines for some of these actions are imminent. Given that some 
delay in compliance will be necessitated as a result of the uncertainty 
created by the Court's opinion, and that action is needed now because 
of imminent deadlines which are keyed to the compliance date, it is not 
appropriate to require sources to comply with the current regulatory 
schedule. Consequently, EPA is extending the compliance date for one 
year.

EFFECTIVE DATE: December 6, 2001.

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
Callers within the Washington Metropolitan Area must dial 703-412-9810 
or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open 
Monday-Friday, 9 am to 4 pm, Eastern Standard Time. For more 
information, contact Rhonda Minnick at 703-308-8771, 
[email protected], or write her at the Office of Solid Waste, 
5302W, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Part One: Overview and Background for This Final Rule

I. Regulatory Information

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because a change in the compliance 
date is necessitated by the Court's opinion. There are imminent 
deadlines which are keyed to the existing compliance date, yet affected 
sources presently lack information to make necessary compliance 
decisions. Some immediate change of the compliance date is needed. 
Thus, notice and public procedure are impracticable. EPA finds that 
this constitutes good cause under 5 U.S.C. 553(b)(B). EPA also finds 
that good cause exists under U.S.C. 553(d)(3) for making this rule 
effective less than 30 days after publication in the Federal Register.

II. What Is the Purpose of This Final Rule?

    Today's action extends for one year the compliance date for the 
NESHAP: Final Standards for Hazardous Air Pollutants for Hazardous 
Waste Combustors (Phase I) rule, published September 30, 1999 (64 FR 
52828). We are taking this action in response to the Court's opinion in 
Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 872 (D.C. Cir. 
2001) issued on July 24, 2001, where the Court vacated the emission 
standards known as the hazardous waste combustor ``floors'' and 
remanded for further proceedings. 255 F.3d at 871. ``Vacature'', 
however, only actually takes effect when the Court issues an order 
called a mandate. In this case, the Court has stayed issuance of the 
mandate (until February 14, 2002) in response to a joint motion from 
all parties to the case requesting such action. The rules thus are 
still in effect. These existing regulations require sources to take 
actions based on the current compliance date, September 30, 2002. 
Deadlines for some of these actions are imminent. Given that some delay 
in compliance will be necessitated as a result of the uncertainty 
created by the Court's opinion, and that action is needed now because 
of imminent deadlines which are keyed to the compliance date, it is not 
appropriate to require sources to comply with the current regulatory 
schedule. Consequently, EPA is extending the compliance date for one 
year.

III. What Is the Phase I Rule?

    In the Phase I final rule, we adopted National Emissions Standards 
for Hazardous Air Pollutants, pursuant to section 112(d) of the Clean 
Air Act, to control toxic emissions from the burning of hazardous waste 
in incinerators, cement kilns, and lightweight aggregate kilns. 64 FR 
52828 (September 30, 1999). These emission standards created a 
technology-based national cap for hazardous air pollutant emissions 
from the combustion of hazardous waste in these devices. Additional 
risk-based conditions necessary to protect human health and the 
environment may be imposed (assuming a proper, site-specific 
justification) under section 3005(c)(3) of the Resource Conservation 
and Recovery Act (RCRA).
    Section 112(d) of the Clean Air Act (CAA) requires emissions 
standards for hazardous air pollutants to be based on

[[Page 63314]]

the performance of the Maximum Achievable Control Technology (MACT). 
These standards apply to the three major categories of hazardous waste 
burners--incinerators, cement kilns, and lightweight aggregate kilns. 
For purposes of today's action, we refer to these three categories 
collectively as hazardous waste combustors (HWC).
    Additionally, the Phase I HWC MACT rule satisfies our obligation 
under RCRA (the main statute regulating hazardous waste management) to 
ensure that hazardous waste combustion is conducted in a manner 
protective of human health and the environment. 64 FR at 52833, 52839-
41. By using both CAA and RCRA authorities in a harmonized fashion, we 
consolidate regulatory control of hazardous waste combustion into a 
single set of regulations, thereby minimizing the potential for 
conflicting or duplicative federal requirements.
    More information on the Phase I HWC MACT rule is available 
electronically from the World Wide Web at www.epa.gov/hwcmact.

IV. What Related Actions Have Been Taken Since Publication of the Phase 
I Rule?

    On November 19, 1999, we issued a technical correction to the HWC 
MACT rule (64 FR 63209). It clarified our intent with respect to 
certain aspects of the Notification of Intent to Comply and Progress 
Report requirements of the 1998 ``Fast Track'' final rule (63 FR 
33783). Additionally, specific to the HWC MACT rule, we corrected 
several typographical errors and omissions.
    On July 10, 2000, we issued a second technical correction to the 
HWC MACT rule (65 FR 42292). This action corrected additional 
typographical errors and clarified several issues to make the rule 
easier to understand and implement. This action also supplied one 
omission from the technical correction published on November 19, 1999, 
and made one correction to the related June 19, 1998 ``Fast Track'' 
final rule (63 FR 33783).
    On July 25, 2000, the Court of Appeals for the District of Columbia 
decided Chemical Manufacturers Association v. EPA, 217 F. 3d 861 (D.C. 
Cir. No. 99-1236). The Court held that EPA had the legal authority to 
promulgate a requirement of early cessation of hazardous waste burning 
activity for those sources not intending to comply with the MACT 
emission standards. However, the Court also held that we had not 
adequately explained our reasons for imposing the early cessation 
requirement. As a result, the Court vacated the early cessation 
requirement and the related Notice of Intent to Comply (NIC) and 
Progress Report requirements. This vacature took effect on October 11, 
2000. Since the requirements were not vacated until after sources were 
required to submit their NICs (on October 2, 2000), we determined that 
the Court's action does not impact a source's ability to request a RCRA 
permit modification using the streamlined procedures of 
Sec. 270.42(j)(1). As long as a source complied with the NIC provisions 
(including filing the NIC before the provision was vacated), the source 
has met the requirements in Sec. 270.42(j)(1) and is therefore eligible 
for the streamlined RCRA permit modification process. The Court's 
decision does not impact the emission standards or compliance schedule 
for the other requirements of the HWC NESHAP Subpart EEE.
    On November 9, 2000, we issued a third technical correction to the 
HWC MACT rule (65 FR 67268). It clarified our intent with respect to 
the applicability of new source versus existing source standards for 
hazardous waste incinerators. This action also clarified three issues 
to make the rule easier to understand and implement.
    On May 14, 2001, we issued a final rule implementing two court 
orders that removed affected provisions of the HWC MACT rule from the 
Code of Federal Regulations (66 FR 24270). This action removed the 
Notice of Intent to Comply provisions (discussed above) and certain 
operating parameter limits of baghouses and electrostatic 
precipitators.
    On July 3, 2001, we published a direct final rule (66 FR 35087) and 
a notice of proposed rulemaking (66 FR 35124) promulgating and 
proposing thirteen amendments to several compliance, testing, and 
monitoring provisions of the HWC MACT rule. We promulgated these 
amendments as direct final rules, with an accompanying proposed rule to 
supplant these rules in the event we received any adverse comment on 
the amendments. We subsequently received adverse comment on four of the 
amendments. On October 15, 2001, we published a withdrawal notice (66 
FR 52361) removing those parts of the direct final rule that received 
adverse comment. The nine amendments for which we did not receive 
adverse comment became effective on October 16, 2001.
    On July 3, 2001, we also issued a separate proposed rule soliciting 
comment on twenty amendments to several compliance, testing, and 
monitoring provisions of the HWC MACT rule (66 FR 35126). We will 
address comments to the proposed rule in the future in a final action.
    On July 24, 2001, the D.C. Circuit Court issued an opinion vacating 
the HWC MACT emission standards known as the ``floors'' and remanded 
for further proceedings. See Cement Kiln Recycling Coalition v. EPA, 
255 F.3d 855, 872 (D.C. Cir. 2001). The Court also invited any party to 
file a motion asking that issuance of the mandate be stayed:

    Because this decision leaves EPA without standards regulating 
HWC emissions, EPA (or any of the parties to this proceeding) may 
file a motion to delay issuance of the mandate to request either 
that the current standards remain in place or that EPA be allowed 
reasonable time to develop interim standards.

255 F.3d at 872.

Part Two: Rationale for Today's Action

I. Why Is a One-Year Extension of the Compliance Date Needed?

    In response to the Court's opinion that the Phase I HWC MACT rule 
be vacated, the Agency and litigants are investigating options to 
retain some form of the current rules, or issuing some type of interim 
revised rules. Notwithstanding those efforts, however, and until the 
Court issues a mandate putting the opinion into force, sources must 
continue to comply with the rule. The compliance date for the rule is 
September 30, 2002, three years after the promulgation date.
    To meet that compliance date, sources must take steps to comply 
with the rule prior to that date, and regulatory officials must respond 
to many of those actions. For example, sources must have submitted by 
September 30, 2001 requests to extend the compliance date because of 
inability to meet the emission standards by that date for reasons 
beyond their control. Regulatory officials should respond to those 
requests within 30 days of receipt of a complete application. See 
Secs. 63.1206(b)(4), 63.6(i), and 63.1213. In addition, sources must 
submit the performance test plan to permit officials for review and 
approval by March 30, 2002, one year prior to the deadline for 
conducting the initial comprehensive performance test. See 
Sec. 63.1206(c) and (e). Most sources were planning to submit their 
test plan and conduct the test in advance of the deadline to facilitate 
review and approval of the plan and ensure availability of stack 
testing personnel.
    Given the uncertainty created by the opinion as to what standards 
will ultimately be in place and when sources will have to comply, it is 
appropriate to delay the compliance date.\1\ Quite

[[Page 63315]]

simply, sources are (legitimately) unwilling to make the substantial 
commitments in time, effort, and capital to comply with standards when 
they no longer know what those standards will be. We believe a one-year 
delay of the compliance date is warranted. Many sources reasonably 
stopped most efforts to comply with the rule when the Court issued its 
opinion on July 24, 2001 because the rule's status was so uncertain. 
Further, although the Agency plans to promulgate interim rules prior to 
the Court's issuance of the vacature mandate, the interim rules will 
not be promulgated until approximately February 14, 2002. That hiatus 
would justify a six month delay in the compliance date, but the 
requirements of an interim rule will differ from the current rule to 
address concerns of litigants and the Court. Thus, sources may need 
additional time to address such differences. Consequently, we believe a 
one-year delay in the compliance date is within the range of time 
extensions that are appropriate.
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    \1\ If the Agency were not to promulgate an interim rule prior 
to the Court's issuance of a mandate vacating the rule, today's 
action to delay the compliance date for one year becomes moot. This 
is because vacature of the emission standards would as a practical 
matter vacate the compliance date for those standards.
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    Should EPA promulgate replacement rules, those rules would, of 
course, have their own compliance dates (to be determined as part of 
that rulemaking). Our action today deals only with the status of the 
existing rule, which date clearly needs to change as a result of the 
Cement Kiln Recycling Coalition opinion.
    To implement the one-year delay in the compliance date, we are 
revising dates in several regulatory provisions. We are revising the 
compliance date provided by Sec. 63.1206(a)(1) from September 30, 2002 
to September 30, 2003. In addition, we are making conforming revisions 
to several paragraphs that establish deadlines based on the compliance 
date.

II. Why Is This Rule Issued Without Notice and Opportunity for Public 
Comment?

    EPA finds that there is good cause to issue this rule without prior 
notice and opportunity for comment (although EPA notes that all of the 
litigants in the Cement Kiln Recycling Coalition proceedings have had 
actual notice of this action as a result of the on-going discussions 
following issuance of that opinion, and have had the opportunity to 
present their views to the appropriate EPA officials). First, as 
explained above, source owners and operators presently lack the 
information to make necessary compliance decisions: they do not know 
what the standards will be, or if there will be any national standards 
at all. The only thing that is clear is that the current rules, as a 
result of the Court's opinion and vacature remedy, will require some 
alteration. Yet there are imminent deadlines (September, 2001 and 
March, 2002) which are keyed to the September, 2002 compliance date. 
Some immediate change of the compliance date is thus needed. Second, 
EPA regards a change in the compliance date as necessitated by the 
Court's opinion in any case, and thus that this action is essentially 
non-discretionary. For all of these reasons, EPA finds that there is 
good cause to issue this rule without notice and opportunity for 
comment pursuant to 5 U.S.C. section 553(b)(B) (which applies to CAA 
rulemakings, see section 307(d)(1), final sentence), as well as good 
cause for this rule to take effect immediately pursuant to 5 U.S.C. 
section 553(d).

Part Three: Analytical and Regulatory Requirements

I. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and, therefore, subject to 
comprehensive review by the Office of Management and Budget (OMB), and 
the other provisions of the Executive Order. A significant regulatory 
action is defined by the Order as one that may:

--Have an annual effect on the economy of $100 million or more, or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
--Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or rights and obligations or recipients thereof; 
or
--Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866.

    Pursuant to the terms of Executive Order 12866, the Agency has 
determined that this rule is not a ``significant regulatory action''and 
is therefore not subject to OMB review.
    The aggregate annualized compliance costs for this final rule are 
less than $100 million. Furthermore, this rule is not expected to 
adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The benefits to human health and the environment resulting 
from today's action have not been monetized but are deemed to be less 
than $100 million per year.
A. Why Is This Final Rule Necessary?
    See Part Two, Section I of this Preamble.
B. Were Non-Regulatory Alternatives First Considered?
    Section 1(b)(3) of Executive Order 12866 instructs Executive Branch 
Agencies to consider and assess available alternatives to direct 
regulation prior to making a determination for regulation. This 
regulatory determination assessment should be considered, ``to the 
extent permitted by law, and where applicable.'' The ultimate purpose 
of the regulatory determination assessment is to ensure that the most 
efficient tool, regulation, or other type of action is applied in 
meeting the targeted statutory objective(s). The consideration of non-
regulatory alternatives is not applicable to today's final rule.
C. What Regulatory Options Were Considered?
    Alternative regulatory options are not applicable to this action.

II. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, a small entity is defined as: (1) A small business that 
has fewer than 750, or 500 employees per firm depending upon the SIC-
NAICS code(s) the firm is primarily classified in; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and

[[Page 63316]]

operated and is not dominant in its field.
    Because the Agency has made a ``good cause'' finding that this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedure Act or any other statute (see Part Two, 
Section II), it is not subject to the regulatory flexibility provisions 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

III. Executive Order 13045: ``Protection of Children From Environmental 
Health Risks and Safety Risks'

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This final rule is not subject 
to the Executive Order because it is not economically significant as 
defined in Executive Order 12866. Furthermore, the Agency does not have 
reason to believe that environmental health or safety risks addressed 
by this action present a disproportionate risk to children.

IV. Executive Order 12898: Environmental Justice

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Population'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, and to concerns voiced by many groups outside the Agency, EPA's 
Office of Solid Waste and Emergency Response (OSWER) formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17). We have no data indicating that today's final rule would 
result in disproportionately negative impacts on minority or low income 
communities.

V. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
single year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any single year. The final rule may result in modified 
annualized incremental costs from those presented in the Assessment\2\, 
due primarily to baseline adjustments over the one year extension 
period. However, no significant cost adjustments are anticipated. 
Because the Agency has made a ``good cause'' finding that this action 
is not subject to notice and comment requirements under the 
Administrative Procedure Act or any other statute (see Part Two, 
Section II of this action), it is not subject to sections 202 and 205 
of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).
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    \2\ ``Assessment of Potential Costs, Benefits, and Other Impacts 
of the Hazardous Waste Combustion MACT Standards: Final Rule,'' U.S. 
EPA, July 1999.
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VI. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in the Order. Thus, Executive Order 13132 does not apply 
to this rule.

VII. Executive Order 13175: Consultation and Coordination With Tribal 
Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''

[[Page 63317]]

    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in the Order. Today's rule 
will not significantly or uniquely affect the communities of Indian 
tribal governments, nor impose substantial direct compliance costs on 
them.

VIII Executive Order 13211: Energy Impact Analysis

    Executive Order 13211, ``Actions Concerning Regulations That Affect 
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the 
need for regulatory actions to more fully consider the potential energy 
impacts of the proposed rule and resulting actions. Under the Order, 
agencies are required to prepare a Statement of Energy Effects when a 
regulatory action may have significant adverse effects on energy 
supply, distribution, or use, including impacts on price and foreign 
supplies. Additionally, the requirements obligate agencies to consider 
reasonable alternatives to regulatory actions with adverse affects and 
the impacts the alternatives might have upon energy supply, 
distribution, or use.
    Today's final rule is not likely to have any significant adverse 
impact on factors affecting energy supply. We believe that Executive 
Order 13211 is not relevant to this action.

IX. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). Because there are no paperwork requirements as part of this 
final rule, we are not required to prepare an Information Collection 
Request in support of today's action.

X. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This final rulemaking does not involve technical standards; thus, 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

XI. The Congressional Review Act (5 U.S. C. 801 et seq., as Added by 
the Small Business Regulatory Enforcement Fairness Act of 1996)

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing Agency to make a rule 
effective sooner than otherwise provided by the CRA if the Agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary, or contrary to public interest (5 U.S.C. 808(2)). As 
stated previously, EPA has made such a good cause finding. We have 
established an effective date of December 6, 2001.
    EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: November 29, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, title 40, Chapter I of the 
Code of Federal Regulations is amended as follows:

PART 63--NATIONAL EMISSIONS STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Section 63.1206 is amended by:
    a. Revising paragraphs (a)(1), (a)(2)(ii), and (a)(4).
    b. Revising paragraphs (b)(6)(i), (b)(7)(i)(B), and (b)(7)(ii)(B).
    The revisions read as follows:


Sec. 63.1206  When and how must you comply with the standards and 
operating requirements?

    (a) * * * (1) Compliance date for existing sources. You must comply 
with the standards of this subpart no later than the compliance date, 
September 30, 2003, unless the Administrator grants you an extension of 
time under Sec. 63.6(i) or Sec. 63.1213.
    (2) * * *
    (ii) For a standard in this subpart that is more stringent than the 
standard proposed on April 19, 1996, you may achieve compliance no 
later than September 30, 2003 if you comply with the standard proposed 
on April 19, 1996 after September 30, 1999. This exception does not 
apply, however, to new or reconstructed area source hazardous waste 
combustors that become major sources after September 30, 1999. As 
provided by Sec. 63.6(b)(7), such sources must comply with this subpart 
at startup.
    (4) Early compliance. If you choose to comply with the emission 
standards of this subpart prior to September 30, 2003, your compliance 
date is the date you postmark the Notification of Compliance under 
Sec. 63.1207(j)(1).
    (b) * * *
    (6) * * *
    (i) If a DRE test performed after March 30, 1999 is acceptable as 
documentation of compliance with the DRE standard, you may use the 
highest hourly rolling average hydrocarbon level achieved during those 
DRE test runs to document compliance with the hydrocarbon standard. An 
acceptable DRE test is a test that was used to support successful 
issuance or reissuance of an operating permit under part 270 of this 
chapter.
* * * * *
    (7) * * *
    (i) * * *
    (B) You may use DRE testing performed after March 30, 1999 for 
purposes of issuance or reissuance of a RCRA permit under part 270 of 
this chapter to document conformance with the DRE standard if you have 
not modified the design or operation of the source since the DRE test 
in a manner that could affect the ability of the source to achieve the 
DRE standard.
    (ii) * * *
    (B) You may use DRE testing performed after March 30, 1999 for 
purposes of issuance or reissuance of a RCRA permit under part 270 of 
this chapter to document conformance with

[[Page 63318]]

the DRE standard in lieu of DRE testing during the initial 
comprehensive performance test if you have not modified the design or 
operation of the source since the DRE test in a manner that could 
affect the ability of the source to achieve the DRE standard.
* * * * *

    3. Section 63.1207 is amended by:
    a. Revising paragraph (c)(2)(i)(A).
    b. Revising paragraph (l) introductory text by designating the text 
after the heading as (l)(1) and revising newly designated paragraph 
(l)(1).
    The revision read as follows:


Sec. 63.1207  What are the performance testing requirements?

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (A) Initiated after March 30, 1999;
* * * * *
    (l) Failure of performance text--(1) Comprehensive performance 
test. The provisions of this paragraph do not apply to the initial 
comprehensive performance test if you conduct the test prior to 
September 30, 2003 (or a later compliance date approved under 
Sec. 63.6(i)).
* * * * *
[FR Doc. 01-30267 Filed 12-5-01; 8:45 am]
BILLING CODE 6560-50-P