

[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:

------------------------------------------------------------------------
                                                           Examples of
                                                           potentially
           Category                   NAICS code            regulated
                                                            entities
------------------------------------------------------------------------
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.

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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
