[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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, <a href="/cdn-cgi/l/email-protection#dcbbbdaebbf2afb4b5aabd9cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="3a5d5b485d144952534c5b7a5f4a5b145d554c">[email protected]</span></a>, 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>