[Federal Register Volume 71, Number 56 (Thursday, March 23, 2006)]
[Proposed Rules]
[Pages 14665-14673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2703]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2004-0022; FRL-8047-6]
RIN 2050-AG29
NESHAP: National Emission Standards for Hazardous Air Pollutants:
Standards for Hazardous Air Pollutants for Hazardous Waste Combustors
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On October 12, 2005, EPA promulgated national emission
standards for hazardous air pollutants (NESHAP) for new and existing
hazardous waste combustors. Subsequently, the Administrator received
four petitions for reconsideration of the final rule. In this proposed
rule, EPA is granting reconsideration of one issue in the petitions
submitted by Ash Grove Cement Company and the Cement Kiln Recycling
Coalition: The new source standard for particulate matter (PM) for
cement kilns that burn hazardous waste. We are requesting comment on a
revised new source particulate matter standard for cement kilns. We are
also requesting comment on corresponding changes to the new source
particulate matter standards for incinerators and liquid fuel boilers.
DATES: Comments. Written comments must be received by April 24, 2006,
unless a public hearing is requested by April 3, 2006. If a hearing is
requested, written comments must be received by May 8, 2006.
Public Hearing. If anyone contacts EPA requesting to speak at a
public hearing by April 3, 2006, we will hold a public hearing on April
7, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0022, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
E-mail: [email protected].
Fax: 202-566-1741.
Mail: U.S. Postal Service, send comments to: HQ EPA Docket
Center (6102T), Attention Docket ID No. EPA-HQ-OAR-2004-0022, 1200
[[Page 14666]]
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total
of two copies. We request that you also send a separate copy of each
comment to the contact person listed below (see FOR FURTHER INFORMATION
CONTACT).
Hand Delivery: In person or by courier, deliver comments
to: HQ EPA Docket Center (6102T), Attention Docket ID No. EPA-HQ-OAR-
2004-0022, 1301 Constitution Avenue, NW., Room B-108, Washington, DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. Please include a total of two copies.
We request that you also send a separate copy of each comment to the
contact person listed below (see FOR FURTHER INFORMATION CONTACT).
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0022. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or e-mail. The www.regulations.gov website is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. We also request that interested parties who would
like information they previously submitted to EPA to be considered as
part of this reconsideration action identify the relevant information
by docket entry numbers and page numbers.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the HQ EPA
Docket Center, Docket ID No. EPA-HQ-OAR-2004-0022, EPA West Building,
Room B-102, 1301 Constitution Ave., NW., Washington, DC 20004. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The HQ EPA Docket Center telephone
number is (202) 566-1742. The Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744. A
reasonable fee may be charged for copying docket materials.
Public Hearing. If a public hearing is requested, it will be held
at 10 a.m. at EPA's Crystal Station office building, 2800 Crystal
Drive, Arlington, Virginia, or at an alternate site in the Washington
DC metropolitan area. Persons interested in presenting oral testimony
or inquiring as to whether a hearing is to be held should contact Mr.
Frank Behan, EPA, at telephone number (703) 308-8476 or at e-mail
address: [email protected], at least two days in advance of the
potential date of the public hearing. Persons interested in attending
the public hearing also must call Mr. Behan to verify the time, date,
and location of the hearing.
FOR FURTHER INFORMATION CONTACT: For more information on this
rulemaking, contact Frank Behan at (703) 308-8476, or
[email protected], Office of Solid Waste (MC: 5302W), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION: Worldwide Web (WWW). In addition to being
available in the docket, an electronic copy of today's proposed rule
will also be available on the WWW at http://www.epa.gov/hwcmact.
Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
Table of Contents
I. General Information
A. What Is the Source of Authority for the Reconsideration
Action?
B. What Entities Are Potentially Affected by the Reconsideration
Action?
II. Background
III. Today's Action
IV. Reconsideration of Particulate Matter Standards
A. Background on the Particulate Matter Floor
B. What Changes Are Being Proposed to the Particulate Matter
Standard?
C. What Changes to the Compliance Date Provisions Are Being
Proposed for the Revised Standards?
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132: Federalism
[[Page 14667]]
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. What Is the Source of Authority for the Reconsideration Action?
The statutory authority for this action is provided by sections 112
and 307(d)(7)(B) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412
and 7607(d)(7)(B)). This action also is subject to section 307(d) of
the CAA (42 U.S.C. 7607(d)).
B. What Entities Are Potentially Affected by the Reconsideration
Action?
Categories and entities potentially affected by this action
include:
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Examples of potentially
Category NAICS code SIC code regulated entities
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Any industry that combusts hazardous 562211 4953 Incinerator, hazardous waste.
waste as defined in the final rule.
327310 3241 Cement manufacturing, clinker
production.
327992 3295 Ground or treated mineral and
earth manufacturing.
325 28 Chemical Manufacturers.
324 29 Petroleum Refiners.
331 33 Primary Aluminum.
333 38 Photographic equipment and
supplies.
488, 561, 562 49 Sanitary Services, N.E.C.
421 50 Scrap and waste materials.
422 51 Chemical and Allied Products,
N.E.C.
512, 541, 561, 73 Business Services, N.E.C.
812 89 Services, N.E.C.
512, 514, 541, 95 Air, Water and Solid Waste
Management.
711
924
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be impacted by this
action. This table lists examples of the types of entities EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed could also be affected. To determine whether your
facility, company, business, organization, etc., is affected by this
action, you should examine the applicability criteria in 40 CFR
63.1200. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
Section 112 of the CAA requires that we establish NESHAP for the
control of hazardous air pollutants (HAP) from both new and existing
major sources. Major sources of HAP are those stationary sources or
groups of stationary that are located within a contiguous area under
common control that emit or have the potential to emit considering
controls, in the aggregate, 10 tons per year (tpy) or more of any one
HAP or 25 tpy or more of any combination of HAP. 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 (for Maximum Achievable Control Technology).
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 the standards are set at a level that assures 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 best-controlled 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 limitation achieved by the best-performing 12 percent of
existing sources in the category or subcategory for which the
Administrator has emissions information (where there are 30 or more
sources in a category or subcategory).
In developing MACT standards, we also must consider control options
that are more stringent than the floor. We may establish standards more
stringent than the floor based on the consideration of the cost of
achieving the emissions reductions, any health and environmental
impacts, and energy requirements. We call these standards beyond-the-
floor standards.
We proposed NESHAP for hazardous waste combustors on April 20, 2004
(69 FR 21198), and we published the final rule on October 12, 2005 (70
FR 59402). The preamble for the proposed rule described the rationale
for the proposed rule and solicited public comments. We received over
75 public comment letters on the proposed hazardous waste combustor
rule. Comments were submitted by industry trade associations, owners
and operators of hazardous waste combustors, environmental groups, and
State regulatory agencies and their representatives. We summarized the
major public comments on the proposed rule and our responses to public
comments in the preamble to the final rule and in a separate,
supporting ``response to comments'' document. See 70 FR at 59426 and
docket items EPA-HQ-OAR-2004-0022-0437 through 0445.
Following promulgation of the hazardous waste combustor final rule,
the Administrator received four petitions for reconsideration pursuant
to section 307(d)(7)(B) of the CAA from Ash Grove Cement Company, the
Cement Kiln Recycling Coalition (CKRC), the Coalition for Responsible
Waste Incineration (CRWI), and the Sierra Club.\1\ Under this section
of the
[[Page 14668]]
CAA, the Administrator is to initiate reconsideration proceedings if
the petitioner can show that it was impracticable to raise an objection
to a rule within the public comment period or that the grounds for the
objection arose after the public comment period.
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\1\ These petitions are included in the docket supporting this
proposal. See items EPA-HQ-OAR-2004-0022-0516 thru 0519. EPA also
received petitions from Ash Grove Cement Company and the CKRC,
Continental Cement Company, and Giant Cement Holding, Inc.
requesting that we stay the effective date of the particulate matter
standard for new cement kilns. See items EPA-HQ-OAR-2004-0022-0521
and 0523. As published elsewhere in today's Federal Register, EPA is
issuing an administrative stay of this standard for three months
while we reconsider the issue. In addition, five petitions for
judicial review of the final rule were filed with the U.S. Court of
Appeals for the District of Columbia by the following entities: Ash
Grove Cement Company, CKRC, CRWI, the Environmental Technology
Council, and the Sierra Club.
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Ash Grove Cement Company and CKRC both are requesting that EPA
reconsider the same three issues: The particulate matter standard for
new cement kilns, references to Performance Specification 11 and
Procedure 2 of Appendix B to 40 CFR part 60 in the particulate matter
detector system provisions, and preamble statements concerning burning
for energy recovery. The CRWI is requesting that EPA reconsider the
procedure used to identify the MACT floor for mercury and low volatile
metals for new source incinerators where there was a tie in ranking
sources to determine the best performing source.
Sierra Club is requesting that EPA reconsider several aspects of
the final rule. They include our decisions to subcategorize
incinerators with and without dry air pollution control devices,
subcategorize the liquid fuel boiler source category, base the mercury
standard for cement kilns on industry-submitted data, correct total
chlorine data to address potential bias in the stack measurement
method, use particulate matter as a surrogate for the nonenumerated HAP
metals (i.e., antimony, cobalt, manganese, nickel, and selenium), use
carbon monoxide and hydrocarbons as surrogates both for dioxin/furans
and for non-dioxin/furan organic HAPs, and use variability factors in
identifying MACT floors. Sierra Club also requests that EPA reconsider
the dioxin/furan MACT floor for cement kilns and incinerators, several
beyond-the-floor analyses, and the health-based compliance alternatives
for total chlorine.
III. Today's Action
Today, we are granting reconsideration of one issue--the
particulate matter standard for new cement kilns--raised in the
petitions both of Ash Grove Cement Company and CKRC. We agree that it
was impracticable for interested parties to raise concerns about one
aspect of the particulate matter standard for new cement kilns until
after the public comment period when the particulate matter standard
was promulgated. Although we believe we provided adequate notice and
opportunity to comment on the methodology used to determine the
particulate matter analysis and the approach used to quantify test-to-
test variability for fabric filters (baghouses) using a universal
variability factor (see 69 FR at 21225; 70 FR at 59437, 59447-59450),
it appears that there was legitimate confusion regarding whether we
would base the new source standard on data from Ash Grove Cement's
Chanute, Kansas facility.
Moreover, we also agree that it appears that the promulgated new
source standard for particulate matter for cement kilns is overly
stringent in that it does not fully reflect the variability of the best
performing source over time (the ``emission control that is achieved in
practice,'' using the language of section 112(d)(3)). Additional
performance data submitted by the petitioners for Ash Grove Cement's
Chanute, Kansas facility \2\ support this conclusion. The specific
point of contention is our use of particulate matter emissions data
from this source as the basis of the new source standard for cement
kilns (i.e., the single best performing source). The petitioners state
that EPA used emissions data from this source that were not
representative of the source's performance over time (as evidenced by
their additional data submission).
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\2\ All references in this notice to emissions data from Ash
Grove Cement Company pertain to the cement plant located in Chanute,
Kansas.
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For the reasons set out in the following section of this preamble,
we believe it is appropriate to grant reconsideration to provide the
public with the opportunity to comment on a revised particulate matter
standard for new cement kilns, and on corresponding revisions to the
particulate matter standards for new incinerators and liquid fuel
boilers.
We are not addressing at this time the two remaining issues in the
petitions of Ash Grove Cement Company and CKRC or any of the issues in
the petitions for reconsideration of CRWI and Sierra Club. We will
notify petitioners by letter or in a future Federal Register notice of
our decision whether to grant or deny the remaining issues raised by
these petitions. We are consequently not accepting comments at this
time on the remaining petition for reconsideration issues.
IV. Reconsideration of Particulate Matter Standards
A. Background on the Particulate Matter Floor
In the notice of proposed rulemaking, we described methodologies
used to determine MACT floors for HAP, including the air pollution
control technology approach used specifically for particulate matter
(which is a surrogate for HAP metal). 69 FR at 21223-233. We discussed
how we selected representative data for each source so that we could
identify the best performing sources for existing sources (and the
single best performing source for new sources) and how we calculated
the MACT floor levels for each HAP for each source category. We also
described how emissions variability was accounted for by the proposed
floor methodology. This included a universal variability factor (UVF)
that was used only for the particulate matter standard to address long-
term variability in particulate matter emissions of sources using
fabric filters.\3\ After identifying floor levels, we considered
beyond-the-floor standards for each HAP. The results of considering
control options that are more stringent than the floor level are
discussed in Part Four, Sections VII-XII of the proposed rule. For
example, the beyond-the-floor discussion for particulate matter for
cement kilns can be found at 69 FR at 21254.
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\3\ It is important to note that the UVF relationship is not
developed for each source category, but is based on relevant data
from all hazardous waste combustor source categories. 70 FR at
59459-450 and ``Technical Support Document for HWC MACT Standards,
Volume III: Selection of MACT Standards,'' September 2005, Sections
5.3 and 7.4. Therefore, changes in the data underlying the UVF
relationship can result in changes to the particulate matter
standards for all source categories.
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We also briefly discussed available particulate matter data from
Ash Grove Cement's Chanute, Kansas kiln in the proposed rule. In the
context of our discussion on whether it is appropriate to use emissions
data from sources that tested after retrofitting their emission control
systems to meet the emission standards promulgated in September 1999
(and since vacated and replaced by the February 2002 Interim
Standards), we stated that ``we did not consider emissions data from
Ash Grove Cement Company'' and that ``[w]e judged these data are
inappropriate for consideration for the floor analysis for existing
sources.'' 69 FR at 21217 n. 35. While the proposal was thus clear that
available data from Ash Grove Cement would not be used in the floor
analysis for existing sources, we did not state whether or not these
data would be
[[Page 14669]]
evaluated in the new source floor analysis. We in fact did not use the
emissions data from Ash Grove Cement in the proposal for either the
existing source or new source floor analyses.\4\
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\4\ See USEPA, ``Draft Technical Support Document for HWC MACT
Standards, Volume III: Selection of MACT Standards,'' March 2004,
Appendix F (APCD Approach Results Tables), Table APCD-CK-PM, docket
item EPA-HQ-OAR-2004-0022-0039.
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In the final rule, we adopted the same floor methodology to
determine floor levels for particulate matter. The preamble to the
final rule also presented a summary of our response to significant
comments regarding the methodology we used to ascertain floor levels
for the particulate matter standards (termed the `air pollution control
technology methodology'). 70 FR at 59447. The emissions data from Ash
Grove Cement were considered when calculating the particulate matter
MACT floors for new cement kilns, but were not used in calculating the
existing source particulate matter MACT floor. 70 FR at 59419. As
explained in the response to comments document, this is because we
concluded that the cement kiln operated by Ash Grove Cement meets the
definition of a new source under CAA section 112(a)(10).\5\
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\5\ See USEPA, ``Response to Comments on April 20, 2004 HWC MACT
Proposed Rule, Volume I: MACT Issues,'' September 2005, Section
1.3.3, docket item EPA-HQ-OAR-0022-0440.
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The petitioners explain that the data EPA used (i.e., Ash Grove
Cement's Chanute, Kansas data) in the analysis were obtained when the
baghouse and filter bags were new and not representative of the
source's performance over time. Petitioners present more recent data
documenting that, in fact, the source's performance has degraded as
expected from initial operations. As a result, the petitioners claim
that the promulgated particulate matter standard for new sources--
0.0023 gr/dscf--is unachievable once a kiln with a new baghouse system
operates for any appreciable time, even for kilns equipped with the
best controls and employing the best maintenance procedures in the
cement industry. This unique situation--the use of data from a facility
when both the fabric filter bags and baghouse structure were new--
produced performance data that cannot be achieved when the filter bags
and baghouse are not new (e.g., after the first year or so). The
petitioners submitted additional particulate matter performance data
from Ash Grove Cement taken after the initial ``break-in period'' that
they claim supports their position. These data are shown in Table 1
below.
Table 1.--Particulate Matter Performance Data of Ash Grove Cement After
First Year of Operation \6\
------------------------------------------------------------------------
PM emissions
Test date (gr/dscf)
------------------------------------------------------------------------
December 4, 2003........................................ 0.0051
December 5, 2003........................................ 0.0072
September 8, 2004....................................... 0.0022
September 9, 2004....................................... 0.0007
November 15, 2005....................................... 0.0074
November 15, 2005....................................... 0.0080
November 15, 2005....................................... 0.0026
November 16, 2005....................................... 0.0042
November 16, 2005....................................... 0.0031
November 16, 2005....................................... 0.0032
November 17, 2005....................................... 0.0025
November 17, 2005....................................... 0.0010
November 17, 2005....................................... 0.0016
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The petitioners claim that these data show that the promulgated
particulate matter standard of 0.0023 gr/dscf is unachievable when the
fabric filter bags and baghouse structure are not new.\7\ Table 1 shows
that Ash Grove Cement--the single best performing source and basis of
the new source particulate matter standard in the final rule--would
only achieve the emissions standard in four of the 13 runs measured
after the initial break-in period. The petition documents that the
source was properly operating the emission control equipment when these
subsequent tests were conducted. We also regard the operating
conditions of the new data to be comparable to those under which the
initial tests were done because fabric filter particulate matter
reduction is relatively independent of inlet loadings to the fabric
filter.\8\ Thus, the levels of ash in the hazardous waste and the
feedrate of raw materials do not significantly affect particulate
matter emissions from cement kilns equipped with baghouses because
these control devices are not sensitive to particulate matter inlet
loadings.
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\6\ For an evaluation of the additional data submitted by the
petitioners, see USEPA, ``Draft Technical Support Document for HWC
MACT Standards--Reconsideration of the New Source Particulate Matter
Standard for Cement Kilns,'' March 2006.
\7\ Note that the 0.0023 gr/dscf standard is based on average
emissions of 0.0010 gr/dscf obtained during the first year of
operation.
\8\ USEPA, ``Technical Support Document for the HWC MACT
Standards, Volume I: Description of Source Categories,'' September
2005, Section 3.2.2.
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B. What Changes Are Being Proposed to the Particulate Matter Standard?
We agree with the petitioners that it appears that the promulgated
standard of 0.0023 gr/dscf is overly stringent for cement kilns in that
it does not fully reflect the variability of the best performing source
over time once fabric filters and baghouse structures are no longer in
a new condition.\9\ The data submitted by the petitioner appear to
better represent ``the emission control achieved in practice'' (section
112(d)(3) of the CAA). See Mossville Environmental Action Now v. EPA,
370 F. 3d 1232, 1242 (D.C. Cir. 2004). As a result, we are proposing to
substitute the data submitted by the petitioner for Ash Grove Cement
for the particulate matter data used in the final rule. This would lead
to this source's performance for particulate matter (i.e., the upper
99th percentile prediction limit) being 0.0075 gr/dscf, derived using
the air pollution control device approach and a revised universal
variability factor relationship (i.e., to account for the new Ash Grove
Cement data) to model particulate matter performance and fabric filter
variability.\10\ This performance is actually slightly worse than that
achieved by two other cement kilns, Giant Cement Holding, Inc. (Giant
Cement) in Harleyville, South Carolina, and Lafarge North America in
Paulding, Ohio. As a result, the Ash Grove Chanute kiln is no longer
the single best performing source, and we would instead base the
particulate matter floor standard for new cement kilns on the
performance of Giant Cement, which achieved an upper 99th percentile
prediction limit of 0.0069 gr/dscf.\11\
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\9\ Based on available information, we believe that the data
from Ash Grove Cement are the only instance in our emissions data
base where we had a source in a completely new condition. Thus, we
do not believe this precise issue arises for other standards.
\10\ USEPA, ``Technical Support Document for HWC MACT Standards,
Volume III: Selection of MACT Standards,'' September 2005, Sections
5.3 and 7.4, docket item EPA-HQ-OAR-2004-0022-0453.
\11\ USEPA, ``Draft Technical Support Document for HWC MACT
Standards--Reconsideration of the Particulate Matter Standard,''
January 2006, Section 4.0.
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As just noted, our methodology for calculating floors for
particulate matter involves use of a universal variability factor
(UVF), obtained by relating the test-to-test variability (i.e.,
standard deviation) of the best performing fabric filters to emission
concentration.\12\ In the final rule, data from the Ash Grove Cement
kiln, as one of the best performing kilns, were used as part of this
pool of data from best performing sources. Because Ash Grove's fabric
filter remains one of the best performing fabric filters after its
performance is
[[Page 14670]]
recalculated, we have used the data submitted by the petitioner in the
UVF data pool even though it technically is no longer a MACT pool
fabric filter.\13\ Nonetheless, the recalculated level of performance
(and the variability in the new data used to calculate that level)
would result in a slight change to the UVF which in turn would result
in slight changes to two other particulate matter floors since the UVF
was used for all particulate matter standards. The revised floor
analysis results for particulate matter are presented in Table 2
below.\14\ As shown in the table, only three floor levels would change
from levels presented in the final rule. The replacement of the
unrepresentative Ash Grove Cement data with the petitioner-submitted
data not only changes the particulate matter standard for new cement
kilns, but also would result in minor changes to the new source
incinerator and new source liquid fuel boiler particulate matter floor
levels. We request comment on the revised floor results for particulate
matter.
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\12\ The floor methodology used for particulate matter is
explained in ``Technical Support Document for HWC MACT Standards,
Volume III: Selection of MACT Standards,'' September 2005, Sections
5.3 and 7.4, docket item EPA-HQ-OAR-2004-0022-0453.
\13\ We note that two other MACT pool sources with fabric
filters achieve emission levels comparable to Ash Grove Chanute but
have a higher standard deviation. Thus, Ash Grove's fabric filter
performs like a MACT pool fabric filter and should be retained in
the UVF analysis. Ash Grove Chanute has an emission average of
0.0038 gr/dscf and a standard deviation of 0.0025, while another
cement kiln has an emission average of 0.0034 gr/dscf and a standard
deviation of 0.0028, and a liquid fuel boiler has an emission
average of 0.0037 gr/dscf and a standard deviation of 0.0043. If we
were to delete Ash Grove Chanute from the UVF pool nonetheless, the
UVF would change slightly and would result in one additional change
to the particulate matter floors--the existing source standard for
liquid fuel boilers would change from 0.035 gr/dscf to 0.034 gr/
dscf. See USEPA, ``Draft Technical Support Document for HWC MACT
Standards--Reconsideration of the Particulate Matter Standard,''
January 2006, Section 4.3.
\14\ For a discussion of how the UVF relationship would be
altered and for a presentation of the floor results, see USEPA,
``Draft Technical Support Document for HWC MACT Standards--
Reconsideration of the New Source Particulate Matter Standard for
Cement Kilns,'' March 2006, Section 4.0.
Table 2.--Revised Particulate Matter Floor Levels (gr/dscf at 7% Oxygen)
------------------------------------------------------------------------
October 2005
Source category final rule Proposed
floor level floor level
------------------------------------------------------------------------
Incinerators:
Existing sources........................ 0.013 0.013
New sources............................. 0.0015 0.0016
Cement kilns:
Existing source......................... 0.028 0.028
New sources............................. 0.0023 0.0069
Lightweight aggregate kilns:
Existing sources \1\.................... 0.025 0.025
New sources............................. 0.0098 0.0098
Solid fuel boilers: \2\
Existing sources........................ 0.073 0.073
New sources............................. 0.061 0.061
Liquid fuel boilers:
Existing sources........................ 0.035 0.035
New sources............................. 0.0087 0.0088
------------------------------------------------------------------------
\1\ The calculated floor levels in both cases are 0.029 gr/dscf. For
reasons discussed in the final rule, we capped calculated floor levels
exceeding the Interim Standard at the Interim Standard, which in this
case is 0.025 gr/dscf. 70 FR at 59457. Given that the calculated floor
level with the revised UVF (i.e., 0.029 gr/dscf) again slightly
exceeds the Interim Standard, we likewise propose to cap the
calculated floor level at 0.025 gr/dscf.
\2\ Note that we adopted more stringent beyond-the-floor standards for
existing and new sources in the final rule. See docket item EPA-HQ-OAR-
2004-0022-0457, Section 14.
For the three calculated new source floor levels that would change
from the level promulgated in the final rule, we considered
establishing beyond-the-floor standards based on the cost of achieving
the emissions reductions, any health and environmental impacts, and
energy requirements. A complete presentation of the results can be
found in the background document supporting this proposal.\15\ After
considering costs and nonair quality health and environmental impacts
and energy effects, we are proposing not to adopt a beyond-the-floor
standard based on improved particulate matter control for new source
cement kilns, new source incinerators, and new source liquid fuel
boilers.
---------------------------------------------------------------------------
\15\ USEPA, ``Draft Technical Support Document for HWC MACT
Standards--Reconsideration of the New Source Particulate Matter
Standard for Cement Kilns,'' March 2006.
---------------------------------------------------------------------------
Therefore, we are proposing to revise three of the particulate
matter standards as reflected in Table 3 below. We are also proposing
accompanying regulatory text changes to 40 CFR 63.1217(b)(7),
63.1219(b)(7), and 63.1220(b)(7)(i).
Table 3.--Proposed Revised Particulate Matter Standards (gr/dscf at 7%
Oxygen)
------------------------------------------------------------------------
Proposed
Source category Source type standard
------------------------------------------------------------------------
Cement kilns.................. New sources.......... 0.0069
Incinerators.................. New sources.......... 0.0016
Liquid fuel boilers........... New sources.......... 0.0088
------------------------------------------------------------------------
[[Page 14671]]
C. What Changes to the Compliance Date Provisions Are Being Proposed
for the Revised Standards?
We are proposing to revise the compliance date requirements under
40 CFR 63.1206 to require that new cement kilns (i.e., sources that
commenced construction or reconstruction after April 20, 2004, the date
of the rule proposing the full set of MACT standards for hazardous
waste burning cement kilns) comply with the proposed particulate matter
standard by the later of the date of publication of the final rule in
the Federal Register or the date the source starts operations. We note,
however, that if we promulgate a particulate matter standard that is
more stringent than the proposed standard, the final rule will allow
you three years from the date of publication of the final rule to
comply with the standard, if you comply with the proposed standard by
the later of the date of publication of the final rule in the Federal
Register or the date the source starts operations. These timelines are
consistent with the current compliance date requirements under 40 CFR
63.1206.
Although we are proposing to slightly revise the particulate matter
standards for incinerators and liquid fuel boilers that are new sources
(i.e., sources that commenced construction or reconstruction after
April 20, 2004), we are not proposing to revise the compliance date
requirements for those sources. The revised particulate matter
standards would be less stringent by only 0.22 mg/dscm (0.0001 gr/
dscf), and new sources would be allowed to begin complying with them on
the date of publication of the final rule.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) 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; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that today's proposed rule constitutes a ``significant
regulatory action'' because this action raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. As such, this action
was submitted to OMB for review. Changes made in response to OMB
suggestions or recommendations are documented in the public record.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
because there is no additional burden on the industry as a result of
the proposed rule, and the ICR has not been revised.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 impact of today's proposed rule on
small entities, a small entity is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in the field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. EPA has
determined that none of the small entities will experience a
significant impact because the notice imposes no additional regulatory
requirements on owners or operators of affected sources. We continue to
be interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act of 1995
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
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal
[[Page 14672]]
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 today's notice of reconsideration does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, or tribal governments, in the
aggregate, or to the private sector in any one year. Although our best
estimate of total social costs of the final rule was $22.6 million per
year, today's notice does not add new requirements that would increase
this cost. See 70 FR at 59532. Thus, today's notice of reconsideration
is not subject to sections 202 and 205 of the UMRA. EPA has also
determined that the notice of reconsideration contains no regulatory
requirements that might significantly or uniquely affect small
governments because it contains no regulatory requirements that apply
to such governments or impose obligations upon them. Thus, today's
proposed rule is not subject to the requirements of section 203.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Today's notice of reconsideration does not have federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
This rule, as proposed, is not projected to result in economic impacts
to privately owned hazardous waste combustion facilities. Marginal
administrative burden impacts may occur at selected States and/or EPA
regional offices if these entities experience increased administrative
needs or information requests. Thus, Executive Order 13132 does not
apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This notice of
reconsideration does not have tribal implications, as specified in
Executive Order 13175. No affected facilities are owned or operated by
Indian tribal governments. Thus, Executive Order 13175 does not apply
to this notice of reconsideration.
G. 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.
Today's proposed rule is not subject to Executive Order 13045
because it is not economically significant as defined under point one
of the Order, and because the Agency does not have reason to believe
the environmental health or safety risks addressed by this action
present a disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
As described in the October 2005 final rule, Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (``NTTAA''),
Public Law No. 104-113, 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
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. During the development of the
final rule, EPA searched for voluntary consensus standards that might
be applicable. The search identified the following consensus standards
that were considered practical alternatives to the specified EPA test
methods: (1) American Society for Testing and Materials (ASTM) D6735-
01, ``Standard Test Method for Measurement of Gaseous Chlorides and
Fluorides from Mineral Calcining Exhaust Sources--Impinger Method,''
and (2) American Society of Mechanical Engineers (ASME) standard QHO-1-
2004, ``Standard for the Qualification and Certification of Hazardous
Waste Incineration Operators.'' Today's notice of reconsideration does
not propose the use of any additional technical standards beyond those
cited in the final rule. Therefore, EPA is not considering the use of
any additional voluntary consensus standards for this notice.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: March 15, 2006.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be 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:
[[Page 14673]]
Authority: 42 U.S.C. 7401 et seq.
2. Section 63.1206 is amended by revising the first sentence of
paragraph (a)(1)(ii)(B)(1) and adding paragraph (a)(1)(ii)(B)(3) to
read as follows:
Sec. 63.1206 When and how must you comply with the standards and
operating requirements?
(a) * * *
(1) * * *
(ii) * * *
(B) * * * (1) If you commenced construction or reconstruction of
your hazardous waste combustor after April 20, 2004, you must comply
with the new source emission standards under Sec. Sec. 63.1219,
63.1220, and 63.1221 and the other requirements of this subpart by the
later of October 12, 2005 or the date the source starts operations,
except as provided by paragraphs (a)(1)(ii)(B)(2) through (3) of this
section. * * *
* * * * *
(3) If you commenced construction or reconstruction of a cement
kiln after April 20, 2004, you must comply with the new source emission
standard for particulate matter under Sec. 63.1220(b)(7)(i) by the
later of [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal
Register] or the date the source starts operations.
* * * * *
3. Section 63.1217 is amended by revising paragraph (b)(7) to read
as follows:
Sec. 63.1217 What are the standards for liquid fuel boilers that burn
hazardous waste?
* * * * *
(b) * * *
(7) For particulate matter, except for an area source as defined
under Sec. 63.2 or as provided by paragraph (e) of this section,
emissions in excess of 20 mg/dscm (0.0088 gr/dscf) corrected to 7
percent oxygen.
* * * * *
4. Section 63.1219 is amended by revising paragraph (b)(7) to read
as follows:
Sec. 63.1219 What are the replacement standards for hazardous waste
incinerators?
(b) * * *
(7) Except as provided by paragraph (e) of this section,
particulate emissions in excess of 3.7 mg/dscm (0.0016 gr/dscf)
corrected to 7 percent oxygen.
* * * * *
5. Section 63.1220 is amended by revising paragraph (b)(7)(i) to
read as follows:
Sec. 63.1220 What are the replacement standards for hazardous waste
burning cement kilns?
(b) * * *
(7) * * *
(i) Emissions in excess of 15.8 mg/dscm (0.0069 gr/dscf) corrected
to 7 percent oxygen; and
* * * * *
[FR Doc. 06-2703 Filed 3-22-06; 8:45 am]
BILLING CODE 6560-50-P