[Federal Register Volume 66, Number 93 (Monday, May 14, 2001)]
[Rules and Regulations]
[Pages 24270-24272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12043]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63 and 270
[FRL-6978-4]
NESHAPS: Standards for Hazardous Air Pollutants for Hazardous
Waste Combustors
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; Implementation of court orders.
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SUMMARY: In Chemical Manufacturers Association v. EPA, 217 F. 3d 861
(D.C. Cir. 2000), the court vacated the Notice of Intent to Comply
(NIC) provisions of EPA's rules relating to the standards for hazardous
waste combustors. Today's action takes the ministerial step of removing
these provisions from the Code of Federal Regulations (CFR). Since the
vacated NIC provision is also referenced in the permit modification
procedures of RCRA in Part 270, today's action modifies this reference
as well. In addition, at EPA's request, the D.C. Circuit vacated
certain parameter limits of baghouses and electrostatic precipitators
in order for EPA to solicit further comment on these provisions. CKRC
v. EPA, no. 99-1457 (Order of April 5, 2001). Today's action likewise
takes the ministerial step of removing these provisions from the CFR.
DATES: This rule is effective on May 14, 2001.
ADDRESSES: The official record (i.e., the public docket) of this
rulemaking is identified as Docket Number F-2001-RC3F-FFFFF, located in
RCRA Information Center (RIC), Office of Solid Waste (5305G), U.S.
Environmental Protection Agency Headquarters (EPA HQ), Ariel Rios
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002. The
RIC is open from 9 am to 4 pm Monday through Friday, excluding Federal
holidays. To review docket materials or for information on accessing an
electronic copy of those materials, please call 703-603-9230. You may
copy up to 100 pages from any regulatory document at no charge.
Additional copies cost $ 0.15 per page.
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 5 pm, Eastern Standard Time. For more
information on specific aspects of this rule, contact Mr. Shiva Garg at
703-308-8459, [email protected], or write him at the Office of Solid
Waste, 5302W, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
I. Vacatur of Requirements for Early Cessation of Hazardous Waste
Burning
In anticipation of establishing revised emission standards for
cement kilns and incinerators burning hazardous waste, EPA promulgated
at 63 FR 33821-2 (June 19, 1998) that sources which elect to stop
burning hazardous waste rather than comply with the new emission
standards must do so within two years of the effective date of the
emission standards (the so-called ``early cessation'' requirement).
These regulations were later recodified as 40 CFR 63.1206(a)(2)(i) and
1211(b)(2)(iii) and (5), at 64 FR 53038, September 30, 1999. Sources
that continued to burn hazardous wastes but seek to comply with the new
emission limits, such as by improving their emission control
capabilities, have three years to comply. 40 CFR 63.1206(a)(1). Both
methods of compliance were implemented by submission of two reporting
requirements: a Notification of Intent to Comply (``NIC''), and a
Progress Report. 40 CFR 63.1210(b), 63.1211(b), and 63.1212.
In the case of sources intending to comply by meeting the emission
standards, submittal of a NIC is a condition required for eligibility
for accelerated modification of the source's existing permit under the
Resource Conservation and Recovery Act (``RCRA''). 40 CFR 70.42(j)(1).
These accelerated permit modifications (so-called ``Class I
modifications'') allow sources to modify their existing hazardous waste
permits issued pursuant to RCRA by simply submitting an application to
the permitting authority rather than waiting for prior Agency approval
and going through public hearings (63 FR 33803, June 19, 1998). Permit
modifications are necessary because, unless modified, existing RCRA
permits limit the ability of sources to modify their design or
operation, and such modifications may be necessary to comply with the
Clean Air Act emission standards. Id. Accelerated permit modifications
are needed (where modifications are needed at all) because usual permit
modification procedures entail prior agency approval and public
hearings, an often lengthy process which could preclude compliance with
the emission standards within the three years allowed (with a possible
one-year extension) under section 112(i)(3) of the Clean Air Act (42
U.S.C. 7412(i)(3), forcing facilities to choose between violating RCRA
and violating the Clean Air Act. EPA therefore amended its permitting
rules to use the accelerated Class I modification procedures to amend
permits to allow sources to make technology changes--such as
installation of new air pollution control devices or process
modifications--needed to comply with the new air emission standards,
provided, as noted above, that the ``[f]acility * * * must comply with
the Notification of Intent to Comply (NIC) requirements * * * before a
permit modification can be requested under this section.'' 40 CFR
270.42(j)(1) and Appendix I, entry L (9) to Sec. 270.42.
In Chemical Manufacturers Ass'n v. EPA, 217 F. 3d 861 (D.C. Cir.
2000) the panel majority held that EPA possesses legal authority to
impose an early cessation requirement, but held further that the agency
had impermissibly interpreted the statute to allow it to impose the
requirement without a showing that it would lead to human health or
environmental benefit (benefits such as ``the amount of hazardous waste
produced, the amount of hazardous waste burned, or the levels of
hazardous air pollutant emissions''). 217 F. 3d at 865, 866-67.\1\ The
Court therefore vacated the early cessation requirement. The Court
further held that because it could not determine whether EPA would have
promulgated the NIC and Progress Report reporting requirements absent
an early cessation provision, the provisions were so
[[Page 24271]]
interlinked as to require vacatur as well. Id. at 867-68.
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\1\ Judge Sentelle dissented, arguing that since the early
cessation requirement was in accord with the express statutory
command for compliance with section 112 emission standards ``as
expeditiously as practicable'', it was not arbitrary and capricious.
CAA section 112(i)(3)(A), 42 U.S.C. 7412(i)(3)(A). 217 F.3d at 868-
69.
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In response to EPA's Motion to Withhold Issuance of Mandate (EPA,
Motion to Stay Issuance of Mandate, filed Sept. 8, 2000 in Chemical
Mfrs. Ass'n v. EPA, no. 99-1236 (D.C. Cir.), the Court agreed to stay
issuance of its mandate for a long enough period to allow affected
sources to submit Notices of Intent to Comply so that they would be
eligible for Class I permit modifications. EPA worked closely with the
regulated community to assure that all sources submitted NICs before
the Mandate issued.
This action takes the ministerial step of directing the Office of
the Federal Register to remove the vacated provisions from the CFR.
II. Vacatur of Compliance Assurance Monitoring Requirements for
Baghouses and Electrostatic Precipitators
The final rule requires sources to establish and monitor limits on
the following parameters for electrostatic precipitators (ESPs) and
baghouses for compliance assurance: (1) Minimum power (kVA) per field
of an ESP; and (2) minimum and maximum pressure drop for each cell of a
baghouse. See Secs. 63.1209(m)(1)(ii) and (iii). EPA filed a motion
with the D.C.Circuit to vacate this provision in order to allow a
considered opportunity for notice and comment on the issue (see CKRC v.
EPA, no. 99-1457, EPA Motion of November 14, 2000). The court granted
EPA's motion on April 5, 2001, and ordered the vacatur of the above two
paragraphs of Sec. 63.1209. In accordance with the above, we are
deleting these two paragraphs of the regulation. Permit writers are, of
course, authorized under the provisions of Sec. 63.1209(g)(2), to adopt
operating parameters for baghouses and ESPs on a case-by-case basis if
``necessary to document compliance with the emission standards.''
III. Implementation Issues: Sources' Ability To Request a RCRA
Permit Modification Using the Streamlined Modification Procedure of
Sec. 270.42(j)
In 40 CFR 270.42(j)(1), the regulations require facilities to
comply with the NIC requirements of 40 CFR 63.1211 before they can use
the streamlined permit modification procedures. This requirement
enhances the public participation procedures for these streamlined
Class 1 modifications which otherwise would have been classified as
Class 2 and Class 3 modifications. Facilities were required to submit
their NICs by October 2, 2000, and EPA worked closely with the
regulated community to assure that all sources intending to continue
operating submitted these NICs. The court issued its mandate to vacate
the NIC provisions on October 11, 2000. Since the mandate did not go
into effect until after facilities were required to submit their NICs,
we have determined that the court's action does not impact a facility's
ability to request a RCRA permit modification using the streamlined
procedures of 40 CFR 270.42 (j), provided, of course, they submitted
the NIC as required by the rule. As long as a facility complied with
the NIC provisions, the facility met the requirements in 40 CFR
270.42(j)(1) and is therefore eligible for the streamlined modification
process.
We also note, as a matter of technical drafting, that in 40 CFR
270.42(j)(1), the ability to seek a fast-track permit modification by
filing a NIC (as referenced by 40 CFR 63.1211) is no longer available.
The NIC requirements were promulgated in the fast-track rule (63 FR
33782, June 19, 1998) and placed in 40 CFR 63.1211. In the final rule
(64 FR 52828, September 30, 1999), the NIC requirements were moved to
40 CFR 63.1210, but the corresponding reference in 40 CFR 270.42(j)(1)
was not changed through oversight. 40 CFR 270.42(j)(1) should have been
conformed to reference the NIC requirements of 40 CFR 63.1210.
Although the NIC requirements in 40 CFR 63.1210 are now being
removed from the regulations, the substantive requirement to have
submitted a NIC in order to use the fast-track permitting option still
remains a part of the RCRA rule as explained above. In today's
rulemaking, we are therefore clarifying the language in 40 CFR
270.42(j)(1) to reference 40 CFR 63.1210 that was in effect prior to
July 1, 2000 and published in ``40 CFR Part 63 Revised as of July 1,
2000''. Thus, facilities that want to use streamlined permit
modification process must have complied with the NIC provisions as
specified in the now-vacated Sec. 63.1210(b).
IV. Administrative Requirements
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B),\2\ 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 this action is in direct
response to the Court's Mandate, and implements that Mandate. With
respect to the rules relating to operating parameters for baghouses and
ESPs, the rule implements the Court's order vacating those provisions.
Thus, notice and opportunity for public comment are unnecessary. EPA
finds that this constitutes good cause under 5 U.S.C. 553(b)(B). For
the same reason, EPA finds that there is good cause, within the meaning
of 5 U.S.C. 553(d)(3), to make the rule immediately effective.
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\2\ The provisions of 5 U.S.C. 553(b)(B) of the Administrative
Procedure Act apply to this action, even though it arises under the
Clean Air Act (to which section 553 normally does not apply). See
Clean Air Act section 307(b)(1) (final sentence).
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V. Regulatory Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget. 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, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform
Act of 1995 (UMRA, Pub. L. 104-4). In addition, this action does not
significantly or uniquely affect small governments or impose a
significant intergovernmental mandate as described in sections 203 and
204 of UMRA. This rule also does not significantly or uniquely affect
the communities of tribal governments, as specified by Executive Order
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule is
also not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it is not economically significant.
This action does not involve technical standards, thus the
requirements of section 12(d) of National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule
also does not involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). In issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear
[[Page 24272]]
legal standard for affected conduct, as required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VI. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. 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. This determination must be
supported by a brief statement. 5 U.S.C. 808(2). As stated previously,
EPA has made such a good cause finding, including the reasons therefor,
and established an effective date of May 14, 2001, for this rule. 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 the publication
of the rule in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
VII. Immediate Effective Date
As noted earlier, EPA is making this rule effective immediately.
This rule adopts amendments which are purely technical, in that they
implement the Court's mandate. Comment on such changes is unnecessary
within the meaning of 5 U.S.C. 553(b)(3)(B). For the same reason, there
is good cause to make the rule effective immediately pursuant to 5
U.S.C. 553(d)(3).
List of Subjects
40 CFR Part 63
Air pollution control, Hazardous substances, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
Dated: May 8, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set forth 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.
Subpart EEE--National Emission Standards for Hazardous Air
Pollutants From Hazardous Waste Combustors
2. Section 63.1206 is amended by revising paragraph (a)(1),
removing paragraph (a)(2), and redesignating paragraph (a)(3) as (a)(2)
to read as follows:
Sec. 63.1206 When and how must sources 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 September 30, 2002
unless the Administrator grants you an extension of time under
Sec. 63.6(i) or Sec. 63.1213.
* * * * *
Sec. 63.1209 [Amended]
3. Section 63.1209 is amended by removing and reserving paragraphs
(m)(1)(ii) and (iii).
Sec. 63.1210 [Amended]
4. Section 63.1210 is amended as follows:
a. In the table to paragraph (a)(1) by removing the entry
``63.1210(b) and (c)''; and
b. By removing paragraph (b) and (c) and redesignating paragraph
(d) as (b).
Sec. 63.1211 [Amended]
5. Section 63.1211 is amended by removing paragraph (b) and
redesignating paragraphs (c) through (e), as (b) through (d)
respectively.
Sec. 63.1212 [Removed and Reserved]
6. Section 63.1212 is removed and reserved.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
7. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
8. Section 270.42 is amended by revising paragraph (j)(1) to read
as follows:
Sec. 270.42 Permit modifications at the request of the permittee.
* * * * *
(j) * * *
(1) Facility owners or operators must have complied with the
Notification of Intent to Comply (NIC) requirements of 40 CFR 63.1210
that was in effect prior to May 14, 2001, (See 40 CFR Part 63 Revised
as of July 1, 2000) in order to request a permit modification under
this section.
* * * * *
[FR Doc. 01-12043 Filed 5-11-01; 8:45 am]
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