[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