24270 Federal Register / Vol. 66, No. 93 / Monday, May 14, 2001 / Rules and Regulations

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.

treatment system during the initial and

any subsequent performance tests.

(m) * * *

(2) * * *

(ii) Compliance with the segregation

requirements specified in § 63.446(c)(3)

is demonstrated if the total HAP mass

determined in paragraph (m)(2)(i) of this

section is equal to or greater than the

appropriate mass requirements specified

in § 63.446(c)(3).

* * * * *

[FR Doc. 01–12048 Filed 5–11–01; 8:45 am]

BILLING CODE 6560–50–P

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, garg.shiva@epa.gov, 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 (socalled ‘‘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 § 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

Federal Register / Vol. 66, No. 93 / Monday, May 14, 2001 / Rules and Regulations 24271

2The 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).

interlinked as to require vacatur as well.

Id. at 867–68.

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

§§ 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 § 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 § 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 § 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

§ 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.

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

24272 Federal Register / Vol. 66, No. 93 / Monday, May 14, 2001 / Rules and Regulations

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:

§ 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 § 63.6(i) or § 63.1213.

* * * * *

§ 63.1209 [Amended]

3. Section 63.1209 is amended by

removing and reserving paragraphs

(m)(1)(ii) and (iii).

§ 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).

§ 63.1211 [Amended]

5. Section 63.1211 is amended by

removing paragraph (b) and

redesignating paragraphs (c) through (e),

as (b) through (d) respectively.

§ 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:

§ 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[FRL–6950–2]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA or Agency) today is

granting a petition submitted by Tyco

Printed Circuit Group, Melbourne

Division, Melbourne, Florida, (Tyco),

formerly Advanced Quick Circuits, L.P.,

to exclude (or ‘‘delist’’) a certain

hazardous waste from the list of

hazardous wastes under RCRA

regulation. Tyco generates the

petitioned waste by treating liquid

waste from Tyco’s printed circuit board

manufacturing processes. The waste so

generated is a wastewater treatment

sludge that meets the definition of F006.

Based on careful analyses of the wastespecific information provided by the

petitioner, the Agency has concluded

that Tyco’s petitioned waste will not

adversely affect human health and the

environment. This action responds to

Tyco’s petition to delist this waste on a

‘‘generator-specific’’ basis from the

hazardous waste lists, and to public