[Federal Register: November 24, 2006 (Volume 71, Number 226)]
[Rules and Regulations]
[Page 67802-67807]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no06-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2003-0156; FRL-8246-8]
RIN 2060-AN95
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; technical correction.
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SUMMARY: EPA is taking direct final action to make a technical
correction to the emission guidelines and new source performance
standards (NSPS) for other solid waste incineration (OSWI) units. We
are correcting the averaging time for measuring opacity.
DATES: The direct final rule technical correction is effective on
January 23, 2007 unless EPA receives significant material adverse
comments by December 26, 2006. If EPA receives significant adverse
comments, EPA will publish a timely withdrawal of the direct final rule
in the Federal Register.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0156, by one of the following methods: http://www.regulations.gov.
Follow the on-line instructions for submitting
comments.
E-mail: Send your comments via electronic mail to
a-and-r-docket@epa.gov, Attention Docket ID No. EPA-HQ-OAR-2003-0156.
Mail: Send your comments to: EPA Docket Center (EPA/DC),
Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-
2003-0156.
Hand Delivery: Deliver your comments to: EPA Docket Center (EPA/
DC), EPA West Building, Room B108, 1301 Constitution Ave., NW.,
[[Page 67803]]
Washington, DC, 20460, Attention Docket ID No. EPA-HQ-OAR-2003-0156.
Such deliveries are accepted only during the normal hours of operation
(8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays), and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0156. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulation.gov Web site
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 http://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 FURTHER INFORMATION CONTACT: Ms. Martha Smith, Natural Resources
and Commerce Group, Sector Policies and Programs Division (E143-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: (919) 541-2421; e-mail: smith.martha@epa.gov.
SUPPLEMENTARY INFORMATION: EPA is publishing the direct final rule
without prior proposal because EPA views this correction as non-
controversial and does not anticipate adverse comments. However, in the
Proposed Rules section of this Federal Register, we are publishing a
separate document that will serve as the proposal in the event that
adverse comments are filed. If an adverse comment applies to this
technical correction, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register. If EPA receives no
significant adverse comments, we will take no further action.
Judicial Review. Under CAA section 307(b)(1), judicial review of
the technical correction is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit by January 23, 2007. Under CAA section 307(d)(7)(B), only an
objection to the final technical correction that was raised with
reasonable specificity during the period for public comment may be
raised during judicial review. Moreover, under CAA section 307(b)(2),
the requirements established by the technical correction may not be
challenged separately in any civil or criminal proceedings brought by
EPA to enforce these requirements.
Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for us to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to the EPA that it was impracticable to raise such objection within
[the period for public comment] or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule.'' Any person seeking to make such
a demonstration to us should submit a Petition for Reconsideration to
the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to both the person(s) listed in the preceding FOR FURTHER
INFORMATION CONTACT section, and the Associate General Counsel for the
Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.
Organization of This Document. The following outline is provided to
aid in locating information in this preamble.
I. General Information
A. Does the technical correction apply to me?
II. Summary of the Technical Correction
A. Correct Averaging Time for Opacity Measurements
III. 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
E. Executive Order 13132: Federalism
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 That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. General Information
A. Does the technical correction apply to me?
Regulated Entities. Categories and entities potentially regulated
by the direct final rule are very small municipal waste combustion
(VSMWC) units and institutional waste incineration (IWI) units. The
final OSWI emission guidelines and NSPS potentially affect the
following categories of sources:
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Examples of
potentially
Category NAICS code regulated
entities
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Any State, local, or Tribal 562213, 92411 Solid waste
government using a VSMWC combustion
unit as defined in the units burning
regulations. municipal waste
collected from
the general
public and from
residential,
commercial,
institutional,
and industrial
sources.
Institutions using an IWI 922, 6111, 623, 7121 Correctional
unit as defined in the institutions,
regulations. primary and
secondary
schools, camps
and national
parks.
Any Federal government agency 928 Department of
using an OSWI unit as Defense (labs,
defined in the regulations. military bases,
munition
facilities).
Any college or university 6113, 6112 Universities,
using an OSWI unit as colleges and
defined in the regulations. community
colleges.
Any church or convent using 8131 Churches and
an OSWI unit as defined in convents.
the regulations.
[[Page 67804]]
Any civic or religious 8134 Civic
organization using an OSWI associations
unit as defined in the and fraternal
regulations. associations.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by the
direct final rule. To determine whether your facility is regulated by
the direct final rule, you should examine the applicability criteria in
40 CFR 60.2885 through 60.2888 of subpart EEEE, and in the emission
guidelines for existing sources located at 40 CFR 60.2991 through
60.2994 of subpart FFFF. If you have any questions regarding the
applicability of the direct final rule to a particular entity, contact
the person listed in the FOR FURTHER INFORMATION CONTACT section.
Docket. The docket number for the direct final rule technical
correction to the OSWI NSPS (40 CFR part 60, subpart EEEE) and emission
guidelines (40 CFR part 60, subpart FFFF) is Docket ID No. EPA-HQ-OAR-
2003-0156. The OSWI NSPS and emission guidelines docket is incorporated
by reference (Docket ID No. EPA-HQ-OAR-2003-0156). The docket includes
background information and supported the proposal and promulgation of
the NSPS and emission guidelines.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of this direct final rule is available on the WWW
through the Technology Transfer Network Web site (TTN Web). Following
signature, EPA will post a copy of the direct final rule on the TTN's
policy and guidance page for newly proposed or promulgated rules at
http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control.
II. Summary of the Technical Correction
A. Correct Averaging Time for Opacity Measurements
On December 16, 2005, we promulgated standards of performance (70
FR 74892) and emissions guidelines (70 FR 74907) for OSWI units. These
standards and guidelines establish maximum achievable control
technology (MACT) emission limits for nine pollutants and opacity.
Table 1 to subpart EEEE and Table 2 to subpart FFFF of part 60 contain
the emission limits, averaging time, and test method for each of the
pollutants and opacity. This final rule corrects an inadvertent error
to the opacity test averaging time presented in these tables to the
December 16, 2005, final rules.
Compliance with the opacity limits is measured using EPA Method 9.
EPA Method 9 specifies some minimum requirements for consecutive
observations and the length of time that averages must be calculated
over. Observations are made every 15 seconds for a minimum of 24
consecutive observations (i.e., 6 minutes). According to EPA Method 9,
rule developers have the discretion to apply whichever averaging time
they choose; ``If an applicable standard specifies an averaging time
requiring more than 24 observations, calculate the average for all
observations made during the specified averaging period.'' The final
OSWI rules require opacity be measured as a 6-run average (1-hour
minimum sample time per run). Our intent, however, was to apply an
averaging and test run time that is consistent with other CAA section
129 source category NSPS and emission guidelines. Therefore, the
intended opacity averaging time, which has become the Agency standard
under NSPS and emission guidelines using EPA Method 9, was a 6-minute
average, observed over three 1-hour test runs (i.e., thirty 6-minute
averages). Our intent to use 6-minute averages is further evidenced by
the text in 40 CFR Sections 60.2971 and 60.2973 in Subpart EEEE and 40
CFR Sections 60.3066 and 60.3068 in Subpart FFFF, which specifically
refer to an opacity limit using a ``6-minute average''. Therefore, we
are correcting Tables 1 and 2 to reflect this averaging time.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
We have determined that the direct final rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and, therefore, is not subject to review by OMB because the
direct final rule will not have an annual effect on the economy of $100
million or more and does not impose any additional control requirements
above the other solid waste incineration unit NSPS or emission
guidelines. The 2005 NSPS and emission guidelines rulemaking (which
included requirements for new and existing very small MWC units and
requirements for new and existing institutional waste incineration
units) was considered ``significant'' and was reviewed by OMB (see 70
FR 74888, December 16, 2005).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The amendments contained in the direct final rule result in no changes
to the information collection requirements of the NSPS or emission
guidelines, and will have no impact on the information collection
estimate of project cost and hour burden made and approved by OMB
during the development of the NSPS and emission guidelines. Therefore,
the information collection requests have not been revised. However, the
Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in the existing NSPS (40
CFR part 60, subpart EEEE) and existing emission guidelines (40 CFR
part 60, subpart FFFF) under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060-
0563 (EPA ICR 2163.02) to the NSPS and OMB control number 2060-0562
(EPA ICR 2164.02) to the emission guidelines. Copies of the ICR
document(s) may be obtained from Susan Auby by mail at U.S. EPA, Office
of Environmental Information, Collection Strategies Division (2822T),
1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at
auby.susan@epa.gov, or by calling (202) 566-1672.
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;
[[Page 67805]]
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
Procedures Act or any other statute unless the agency certifies that
the rule will not have a significant impact on a substantial number of
small entities. Small entities include small businesses, small
government organizations, and small government jurisdictions.
For purposes of assessing the impacts of this direct final rule on
small entities, small entity is defined as follows:
(1) A small business in the regulated industry that has a gross
annual revenue less than $6 million (this varies by industry category,
ranging up to $10.5 million for North American Industrial
Classification System (NAICS) code 562213 (VSMWC)), based on Small
Business Administration's size standards;
(2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; or
(3) a small organization that is any not-for-profit enterprise that
is independently owned and operated and is not dominant in its field.
After considering the economic impact of this direct final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not propose any changes to the final OSWI rule, in which we
determined that the final rule would not have a significant economic
impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 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 by State, local, and Tribal Governments, in
the aggregate, or by 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
Governments, it must have developed a small government agency plan
under section 203 of the UMRA. 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 the direct final rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal Governments, in the aggregate, or the
private sector in any one year. The direct final rule does not change
the burden of the original OSWI rules, which were determined to result
in expenditures of less than $100 million (70 FR 74890, December 16,
2005). Thus, the direct final rule is not subject to the requirements
of sections 202 and 205 of the UMRA. In addition, EPA has determined
that the direct final rule contains no regulatory requirements that
might significantly or uniquely affect small Governments because the
burden is small and the regulation does not unfairly apply to small
Governments.
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.''
This direct final rule does not have Federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. 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.'' ``Policies that have Tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the relationship between the
Federal Government and the Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
tribes.''
This direct final rule does not have Tribal implications, as
specified in Executive Order 13175. It will not have substantial direct
effects on tribal Governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175. Thus, Executive Order 13175 does
not apply to this direct final rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (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, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other
[[Page 67806]]
potentially effective and reasonably feasible alternatives EPA
considered.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This direct final rule is
not subject to Executive Order 13045 because it is not economically
significant, and the original OSWI rules were based on technology
performance and not on health and safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This direct final rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, and Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
CAA section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in their 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, business practices) developed or adopted by one or more
voluntary consensus bodies. The NTTAA directs EPA to provide Congress,
through annual reports to OMB, with explanations when an agency does
not use available and applicable voluntary consensus standards.
This direct final rule does not involve technical standards. EPA's
compliance with section 12(d) of the NTTAA has been addressed in the
preamble of the underlying final OSWI rule (70 FR 74891, December 16,
2005).
J. 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. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 23, 2007.
List of Subjects in 40 CFR Part 60
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: November 17, 2006.
Stephen L. Johnson,
Administrator.
0
For reasons stated in the preamble, title 40, chapter I, part 60 of the
Code of Federal Regulations is amended as follows:
PART 60--[AMENDED]
0
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart EEEE--[Amended]
0
2. Table 1 to subpart EEEE of part 60 is amended by revising entry 7
for opacity to read as follows:
As stated in Sec. 60.2915, you must comply with the following:
Table 1 to Subpart EEEE of Part 60--Emission Limitations
----------------------------------------------------------------------------------------------------------------
You must meet this And determining
For the air pollutant emission limitation Using this averaging time compliance with this
\a\ method
----------------------------------------------------------------------------------------------------------------
* * * * * * *
7. Opacity........................ 10 percent........... 6-minute average (observe Method 9 of appendix A of
over three 1-hour test this part.
runs; i.e., thirty 6-
minute averages).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subpart FFFF--[Amended]
0
3. Table 2 to subpart FFFF of part 60 is amended by revising entry 7
for opacity to read as follows:
As stated in Sec. 60.3022, you must comply with the following:
Table 2 to Subpart FFFF of Part 60--Model Rule--Emission Limitations
----------------------------------------------------------------------------------------------------------------
You must meet this And determining
For the air pollutant emission limitation Using this averaging time compliance with this
\a\ method
----------------------------------------------------------------------------------------------------------------
* * * * * * *
7. Opacity........................ 10 percent........... 6-minute average (observe Method 9 of appendix A of
over three 1-hour test this part.
runs; i.e., thirty 6-
minute averages).
* * * * * * *
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[FR Doc. E6-19865 Filed 11-22-06; 8:45 am]
BILLING CODE 6560-50-P