

[Federal Register: December 19, 2005 (Volume 70, Number 242)]
[Rules and Regulations]               
[Page 75042-75047]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de05-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-8009-3]

 
NESHAP: National Emission Standards for Hazardous Air Pollutants: 
Standards for Hazardous Air Pollutants for Hazardous Waste Combustors

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amendments to the 
national emissions standards for hazardous air pollutants (NESHAP) for 
hazardous waste combustors which were issued October 12, 2005, under 
section 112 of the Clean Air Act. In that rule, we inadvertently 
included three new or revised bag leak detection system requirements 
for Phase I sources--incinerators, cement kilns, and lightweight 
aggregate kilns--among implementation requirements taking effect on 
December 12, 2005, rather than, as intended, after three years when the 
sources begin complying with the revised emission standards under the 
NESHAP for hazardous waste combustors. We intended to establish the 
compliance date for these provisions three years after promulgation--
October 14, 2008--because the provisions establish more stringent 
requirements for Phase I sources, which cannot readily be complied with 
on short notice, and because these provisions are inextricably tied to 
the revised emissions standards. We are issuing the amendments as a 
direct final rule, without prior proposal, because we view the 
revisions as noncontroversial and anticipate no adverse comments.

DATES: This direct final rule will be effective on February 17, 2006 
without further notice, unless EPA receives adverse written comment by 
January 18, 2006, or by February 2, 2006 if a public hearing is 
requested. If adverse comments are received, EPA will publish a timely 
withdrawal notice in the Federal Register indicating which provisions 
are being withdrawn due to adverse comment.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0022, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
 

Follow the on-line instructions for submitting comments.
     Email: a-and-r-docket@epa.gov and behan.frank@epa.gov.

     Fax: 202-566-1741.
     Mail: U.S. Postal Service, send comments to: HQ EPA Docket 
Center (6102T), Attention Docket ID No. EPA-HQ-OAR-2004-0022, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies. We request that you also send a separate copy of each 
comment to the contact person listed below (see FOR FURTHER INFORMATION 
CONTACT).
     Hand Delivery: In person or by courier, deliver comments 
to: HQ EPA Docket Center (6102T), Attention Docket ID No. EPA-HQ-OAR-
2004-0022, 1301 Constitution Avenue, NW., Room B-108, Washington, DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. Please include a total of two copies. 
We request that you also send a separate copy of each comment to the 
contact person listed below (see  FOR FURTHER INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0022. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at 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 www.regulations.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

[[Page 75043]]

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the HQ EPA Docket Center, 

Docket ID No. EPA-HQ-OAR-2004-0022, EPA West Building, Room B-102, 1301 
Constitution Ave., NW., Washington, DC 20004. This Docket Facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The HQ EPA Docket Center telephone number is (202) 566-
1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For more information on this 
rulemaking, contact Frank Behan at (703) 308-8476, or 
behan.frank@epa.gov, Office of Solid Waste (MC: 5302W), U.S. 

Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION: 
    Regulated Entities. Categories and entities potentially regulated 
by this action include:

----------------------------------------------------------------------------------------------------------------
                                                                              Examples of potentially regulated
                  Category                     NAICS code       SIC code                   entities
----------------------------------------------------------------------------------------------------------------
Any industry that combusts hazardous waste           562211            4953  Incinerator, hazardous waste.
 as defined in the final rule.                       327310            3241  Cement manufacturing, clinker
                                                     327992            3295   production.
                                                                             Ground or treated mineral and earth
                                                                              manufacturing.
                                                        325              28  Chemical Manufacturers.
                                                        324              29  Petroleum Refiners.
                                                        331              33  Primary Aluminum.
                                                        333              38  Photographic equipment and
                                                                              supplies.
                                              488, 561, 562              49  Sanitary Services, N.E.C.
                                                        421              50  Scrap and waste materials.
                                                        422              51  Chemical and Allied Products,
                                                                              N.E.C.
                                             512, 541, 561,              73  Business Service, N.E.C.
                                                        812              89  Services, N.E.C.
                                             512, 514, 541,              95  Air, Water and Solid Waste
                                                        711                   Management.
                                                        924
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists examples of the types of entities EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed could also be affected. To determine whether your 
facility, company, business, organization, etc., is regulated by this 
action, you should examine the applicability criteria in 40 CFR 
63.1200. If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's direct final rule will also be available 
on the WWW at http://www.epa.gov/hwcmact.

    Comments. We are publishing the direct final rule amendments 
without prior proposal because we view the amendments as 
noncontroversial and do not anticipate adverse comments. However, in 
the Proposed Rules section of this issue of the Federal Register, we 
are publishing a separate document that will serve as the proposal to 
amend the NESHAP for hazardous waste combustors if adverse comments are 
filed. If we receive any adverse comments on one or more distinct 
amendments, we will publish a timely withdrawal in the Federal Register 
informing the public which provisions will become effective, and which 
provisions are being withdrawn due to adverse comment. We will address 
all public comments in a subsequent final rule, should the Agency 
determine to issue one. Any of the distinct amendments in today's 
direct final rule for which we do not receive adverse comment will 
become effective on the previously mentioned date. We will not 
institute a second comment period on the direct final rule amendments. 
Any parties interested in commenting must do so at this time.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of a final action is available only by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit. Under section 307(d)(7)(B) of the CAA, only an 
objection to the direct final rule amendments that was raised with 
reasonable specificity during the period for public comment can be 
raised during judicial review. Moreover, under section 307(b)(2) of the 
CAA, the requirements established by the direct final rule amendments 
may not be challenged separately in any civil or criminal proceeding 
brought by EPA to enforce these requirements.

Table of Contents

Part One: Overview and Background for This Direct Final Rule

I. What Is the Purpose of This Direct Final Rule?
II. What Are the Final Standards for Hazardous Air Pollutants for 
Hazardous Waste Combustors (Phase I Final Replacement Standards and 
Phase II)?

Part Two: Amendments to the HWC NESHAP

I. Compliance Date for Cement Kilns to Use a Bag Leak Detection 
System
II. Compliance Date for the Bag Leak Detection System Excessive 
Exceedances Notification
III. Compliance Date for the Revised Detection Limit Requirement for 
Bag Leak Detection Systems

[[Page 75044]]

Part Three: Analytical and Regulatory Requirements

I. Executive Order 12866: Regulatory Planning and Review
II. Paperwork Reduction Act
III. Regulatory Flexibility Act
IV. Unfunded Mandates Reform Act of 1995
V. Executive Order 13132: Federalism
VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
VII. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
VIII. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
IX. National Technology Transfer and Advancement Act
X. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations
XI. Congressional Review

Part One: Overview and Background for This Direct Final Rule

I. What Is the Purpose of This Direct Final Rule?

    Today's notice makes specific changes to the National Emission 
Standards for Hazardous Air Pollutants (NESHAP): Final Standards for 
Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I Final 
Replacement Standards and Phase II), published October 12, 2005 (70 FR 
59402). In that rule, we inadvertently included three new or revised 
bag leak detection system requirements for Phase I sources--
incinerators, cement kilns, and lightweight aggregate kilns--among 
implementation requirements taking effect on December 12, 2005, rather 
than, as intended, after three years when the sources begin complying 
with the revised emission standards under Sec. Sec.  63.1219, 63.1220, 
and 63.1221. We intended to establish the compliance date for these 
provisions three years after promulgation--October 14, 2008--because 
the provisions establish more stringent requirements for Phase I 
sources and these sources will need three years to comply with these 
more stringent requirements.

II. What Are the Final Standards for Hazardous Air Pollutants for 
Hazardous Waste Combustors (Phase I Final Replacement Standards and 
Phase II)?

    The final standards for hazardous air pollutants for hazardous 
waste combustors (HWC) are NESHAP that establish controls on toxic 
emissions from the burning of hazardous waste in incinerators, cement 
kilns, lightweight aggregate kilns, liquid fuel boilers, solid fuel 
boilers, and hydrochloric acid production furnaces. The standards 
replace existing NESHAP for Phase I sources--incinerators, cement 
kilns, and lightweight aggregate kilns--and establish new NESHAP for 
Phase II sources--liquid fuel boilers, solid fuel boilers, and 
hydrochloric acid production furnaces.
    These NESHAP create a technology-based national cap for hazardous 
air pollutant emissions from the combustion of hazardous waste in these 
devices. Additional risk-based conditions necessary to protect human 
health and the environment may be imposed (assuming a proper, site-
specific justification) under section 3005(c)(3) of the Resource 
Conservation and Recovery Act (RCRA).
    Section 112(d) of the Clean Air Act (CAA) requires NESHAP to be 
based on the performance of the Maximum Achievable Control Technology 
(MACT). These NESHAP are expected to achieve significant reductions in 
the amount of hazardous air pollutants being emitted each year by these 
sources.
    Additionally, these NESHAP satisfy our obligation under RCRA (the 
main statute regulating hazardous waste management) to ensure that 
hazardous waste combustion is conducted in a manner protective of human 
health and the environment. By using both CAA and RCRA authorities in a 
harmonized fashion, we consolidate regulatory control of hazardous 
waste combustion into a single set of regulations, thereby minimizing 
the potential for conflicting or duplicative federal requirements.
    More information on these NESHAP is available electronically from 
the World Wide Web at http://www.epa.gov/hwcmact.


Part Two: Amendments to the HWC NESHAP

I. Compliance Date for Cement Kilns To Use a Bag Leak Detection System

    This amendment establishes an October 14, 2008 compliance date for 
cement kilns equipped with fabric filters to comply with the bag leak 
detection system (BLDS) requirements under Sec.  63.1206(c)(8). See 
amended Sec.  63.1206(a)(1)(i).
    The HWC NESHAP revised the bag leak detection system (BLDS) 
requirements for Phase I sources--incinerators, cement kilns, and 
lightweight aggregate kilns--to require cement kilns equipped with a 
fabric filter to use a BLDS to ensure compliance with the particulate 
matter and nonmercury metal emission standards. Prior to this revision, 
only incinerators and lightweight aggregate kilns equipped with a 
fabric filter were required to use a BLDS. 64 FR 52827 (September 30, 
1999); 67 FR 6967 (February 14, 2002). Cement kilns were subject to an 
opacity standard in lieu of the BLDS. In the October 12, 2005 HWC 
NESHAP, however, we concluded that a BLDS provided better compliance 
assurance than an opacity standard and required cement kilns to use a 
BLDS in lieu of compliance with the opacity standard. 69 FR at 21346-
47. That rule also subjected Phase II sources--liquid fuel boilers, 
solid fuel boilers, and hydrochloric acid production furnaces--equipped 
with a fabric filter to the same BLDS requirements.
    We intended for cement kilns to begin complying with this new 
requirement when they begin complying with the revised emission 
standards under Sec.  63.1220--not later than October 14, 2008. Cement 
kilns need time to design, install, and address start-up problems with 
the BLDS. Although a three-year compliance date is appropriate, we were 
inadvertently silent on this issue in the October 2005 rule, and failed 
to specify that these provisions would not be effective until the 
effective date of the new emission standards. Consequently, absent this 
amendment, the BLDS requirement for cement kilns would be applicable 
immediately--on December 12, 2005.
    We note that Sec.  63.1209(a)(1)(ii)(A and B) indicate that we had 
intended for cement kilns to comply with the BLDS requirement when they 
begin complying with Sec.  63.1220. Paragraph (a)(1)(ii)(A) states that 
cement kilns subject to the emission standards under Sec.  63.1204 
continue to be subject to the opacity standard, while paragraph 
(a)(1)(ii)(B) states that, when complying with the revised emission 
standards under Sec.  63.1220, only those cement kilns that are not 
equipped with a BLDS or particulate matter detection system continue to 
be subject to the opacity standard. Thus, we had intended to subject 
cement kilns to the BLDS requirements when they begin complying with 
the revised standards under Sec.  63.1220. Cement kilns must comply 
with those revised standards by October 14, 2008 unless a time 
extension is granted under Sec.  63.6(i) or Sec.  63.1213. See Sec.  
63.1206(a)(1)(ii).

II. Compliance Date for the Bag Leak Detection System Excessive 
Exceedances Notification

    This amendment establishes an October 14, 2008 compliance date for 
the excessive exceedances notification requirement for bag leak 
detection systems (BLDS) under Sec.  63.1206(c)(8)(iv). See amended 
Sec.  63.1206(a)(1)(i).

[[Page 75045]]

    The October 2005 rule establishes an excessive exceedances 
notification requirement for bag leak detection systems (BLDS). See 
Sec.  63.1206(c)(8)(iv). If the alarm level is exceeded for more than 
five percent of the time in a 6-month block, the source must notify the 
permitting authority.
    We intended for Phase I sources to begin complying with this new 
requirement when they begin complying with the revised emission 
standards under Sec. Sec.  63.1219, 63.1220, and 63.1221--not later 
than October 14, 2008. Phase I sources need time to install the data 
logging and recording equipment to aggregate the time that the source 
is operating when the alarm level is exceeded. Although a three-year 
compliance date is appropriate, we were inadvertently silent on this 
issue in the October 2005 rule, and failed to specify that these 
provisions would not be effective until the effective date of the new 
emission standards. Consequently, absent this amendment, the excessive 
exceedances notification requirement would be applicable immediately--
on December 12, 2005.

III. Compliance Date for the Revised Detection Limit Requirement for 
Bag Leak Detection Systems

    This amendment establishes an October 14, 2008 compliance date for 
the revised detection limit requirement for bag leak detection systems 
(BLDS) under Sec.  63.1206(c)(8)(ii)(A). See amended Sec.  
63.1206(a)(1)(i).
    The October 2005 rule revised the detection limit for BLDS for 
Phase I sources to require a 1.0 mg/acm detection limit for the BLDS 
unless you demonstrate in an alternative monitoring petition under 
Sec.  63.1209(g)(1) that a higher detection limit would routinely 
detect particulate matter loadings during normal operations. See Sec.  
63.1206(c)(8)(ii)(A). The previous detection limit requirement 
applicable to Phase I sources allowed a higher detection limit under 
Sec.  63.1209(g)(1) if you demonstrate ``that a higher sensitivity 
would adequately detect bag leaks.'' The revised detection limit 
requirement is applicable to both Phase I and Phase II sources.
    We revised the detection limit requirement as an outgrowth of our 
reconsideration of the BLDS detection limit for Phase I sources. When 
investigating whether it was appropriate to continue allowing sources 
to petition under Sec.  63.1209(g)(1) to use a detector with a 
detection limit higher than 1.0 mg/acm, we concluded that the basis for 
approving a higher detection limit should be more prescriptive. 69 FR 
at 21340. Thus, the October 2005 rule requires the detector to be able 
to detect increases in normal emissions rather than simply being able 
to detect bag leaks.
    We intended for the revised detection limit requirement to become 
applicable to Phase I sources when they begin complying with the 
revised emission standards under Sec. Sec.  63.1219, 63.1220, and 
63.1221--not later than October 14, 2008. Phase I sources that were 
granted approval under Sec.  63.1209(g)(1) to use a bag leak detector 
with a detection limit greater than 1.0 mg/acm may be required to 
resubmit the alternative monitoring petition to document that the 
detector can detect particulate matter loadings under normal 
operations. In addition, some sources may be required to upgrade their 
BLDS to ensure that it can detect particulate matter loadings during 
normal operations. Although a three-year compliance date is 
appropriate, we were inadvertently silent on this issue in the October 
2005 rule, and failed to specify that these provisions would not be 
effective until the effective date of the new emission standards. 
Consequently, absent this amendment, the revised detection limit would 
be applicable immediately--on December 12, 2005.

Part Three: Analytical and Regulatory Requirements

I. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that the direct final amendments do not constitute a 
``significant regulatory action'' because this action creates no new 
regulatory requirements that meet any of the above criteria. 
Consequently, this action was not submitted to OMB for review under 
Executive Order 12866.

II. Paperwork Reduction Act

    The information collection requirements in the final rule (70 FR 
59402, October 12, 2005) were submitted to and approved by OMB under 
the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and assigned OMB 
control number 2050-0171. An Information Collection Request (ICR) 
document was prepared by EPA (ICR No. 1773.08) and a copy may be 
obtained from Susan Auby by mail at Office of Environmental Information 
Collection Strategies Division (ME-2822T), 1200 Pennsylvania Avenue, 
NW., Washington DC 20460, by e-mail at auby.susan@epa.gov, or by 
calling (202) 566-1672. A copy may also be downloaded from the internet 
at http://www.epa.gov/icr.

    Today's action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Because there is no additional burden on the industry as a result 
of the direct final rule amendments, the ICR has not been revised.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

III. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with today's action.

[[Page 75046]]

    For purposes of assessing the impacts of today's direct final rule 
amendments on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administrations' regulations 
at 13 CFR 121.201; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in the field.
    After considering the economic impacts of today's direct final rule 
amendments on small entities, EPA has concluded that this action will 
not have a significant economic impact on a substantial number of small 
entities. This action does not create any new regulatory requirements. 
Rather, they continue to apply existing requirements by delaying the 
compliance date for new or more stringent requirements. After 
considering the economic impacts of today's 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.

IV. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that the direct final rule amendments do not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, or tribal governments, in the 
aggregate, or to the private sector in any one year. Thus, today's 
action is not subject to sections 202 and 205 of the UMRA. EPA has also 
determined that the direct final rule amendments contain no regulatory 
requirements that might significantly or uniquely affect small 
governments. Thus, today's direct final rule amendments are not subject 
to the requirements of section 203 of the UMRA no new enforceable duty 
on any State, local or tribal governments or the private sector.

V. 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 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. This action delays the 
compliance date of new or more stringent requirements. Thus, Executive 
Order 13132 does not apply to this rule.

VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This action 
delays the compliance date of new or more stringent requirements. Thus, 
Executive Order 13175 does not apply to this rule.

VII. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    Today's final rule is not subject to E.O. 13045 because it does not 
meet either of these criteria. The rule simply delays the compliance 
date of new or more stringent requirements.

VIII. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

IX. National Technology Transfer and Advancement Act

    As noted in the proposed rule, Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to

[[Page 75047]]

provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards. This 
action does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

X. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste and Emergency Response formed 
an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17).
    Today's rule delays the compliance date of new or more stringent 
requirements and will not result in any disproportionately negative 
impacts on minority or low-income communities relative to affluent or 
non-minority communities.

XI. Congressional Review

    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 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability, applying only to a 
specific waste type at two facilities under particular (and, as noted, 
exceptional) circumstances.
    A major rule cannot take effect until 60 days after it is published 
in the Federal Register. The direct final rule is not a ``major rule'' 
as defined by 5 U.S.C. 804 (2). This rule is effective on February 17, 
2006.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: December 12, 2005.
Stephen L. Johnson,
Administrator.

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For the reasons set out 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

0
1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
2. Section 63.1206 is amended by revising paragraphs (a)(1)(i)(A) and 
(a)(1)(i)(B)(1) to read as follows:


Sec.  63.1206  When and how must you comply with the standards and 
operating requirements?

    (a) * * * (1) * * * (i) * * * (A) Compliance dates for existing 
sources. You must comply with the emission standards under Sec. Sec.  
6312.03, 63.1204, and 63.1205 and the other requirements of this 
subpart no later than the compliance date, September 30, 2003, unless 
the Administrator grants you an extension of time under Sec.  63.6(i) 
or Sec.  63.1213, except:
    (1) Cement kilns are exempt from the bag leak detection system 
requirements under paragraph (c)(8) of this section;
    (2) The bag leak detection system required under Sec.  
63.1206(c)(8) must be capable of continuously detecting and recording 
particulate matter emissions at concentrations of 1.0 milligram per 
actual cubic meter unless you demonstrate under Sec.  63.1209(g)(1) 
that a higher detection limit would adequately detect bag leaks, in 
lieu of the requirement for the higher detection limit under paragraph 
(c)(8)(ii)(A) of this section; and
    (3) The excessive exceedances notification requirements for bag 
leak detection systems under paragraph (c)(8)(iv) of this section are 
waived.
    (B) * * * (1) If you commenced construction or reconstruction of 
your hazardous waste combustor after April 19, 1996, you must comply 
with the emission standards under Sec. Sec.  63.1203, 63.1204, and 
63.1205 and the other requirements of this subpart by the later of 
September 30, 1999 or the date the source starts operations, except as 
provided by paragraphs (a)(1)(i)(A)(1) through (3) and (a)(1)(i)(B)(2) 
of this section. The costs of retrofitting and replacement of equipment 
that is installed specifically to comply with this subpart, between 
April 19, 1996 and a source's compliance date, are not considered to be 
reconstruction costs.
* * * * *
[FR Doc. 05-24198 Filed 12-16-05; 8:45 am]

BILLING CODE 6560-50-P
