

[Federal Register: October 25, 2006 (Volume 71, Number 206)]
[Rules and Regulations]               
[Page 62388-62394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25oc06-4]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0022; FRL-8233-9]
RIN 2050-AG33

 
NESHAP: National Emission Standards for Hazardous Air Pollutants: 
Standards for Hazardous Waste Combustors (Amendment)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is amending the effective date of the standard for 
particulate matter for new cement kilns that burn hazardous waste. EPA 
promulgated this standard as part of the national emission standards 
for hazardous air pollutants (NESHAP) for hazardous waste combustors 
that were issued on October 12, 2005, under section 112 of the Clean 
Air Act. EPA agreed to reconsider the standard and proposed to change 
it on March 23, 2006 (71 FR 14665). This amendment suspends the 
obligation of new cement kilns to comply with the particulate matter 
standard until EPA takes final action on this proposal. This amendment 
does not affect other standards applicable to new or existing hazardous 
waste burning cement kilns.

DATES: The final rule is effective on October 25, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2004-0022. All documents in the docket are listed on 
http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, e.g., confidential business 
information or other information the disclosure of which is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. 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 
(See note below). 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. A reasonable fee may be charged for copying 
docket materials.

    Note: The EPA Docket Center suffered damage due to flooding 
during the last week of June 2006. The Docket Center is continuing 
to operate. However, during the cleanup, there will be temporary 
changes to Docket Center telephone numbers, addresses, and hours of 
operation for people who wish to visit the Public Reading Room to 
view documents. Consult EPA's Federal Register notice at 71 FR 38147 
(July 5, 2006) or the EPA Web site at  http://www.epa.gov/epahome/dockets.htm
 for current information on docket status, locations and 

telephone numbers.


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: 5302P), U.S. 

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

SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated categories 
and entities affected by the NESHAP include:

----------------------------------------------------------------------------------------------------------------
                   Category                       NAICS code       SIC code      Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry......................................          327310            3241  Cement manufacturing, clinker
                                                                                 production.
Federal government............................  ..............  ..............  Not affected.
State/local/tribal government.................  ..............  ..............  Not affected.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be impacted 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 affected 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.

[[Page 62389]]

    Worldwide Web (www). In addition to being available in the docket, 
an electronic copy of today's final rule will also be available on the 
www at http://www.epa.gov/hwcmact.

    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of today's amendment to the NESHAP for hazardous 
waste combustors is available only on the filing of a petition for 
review in the U.S. Court of Appeals for the District of Columbia 
Circuit within 60 days of today's publication of this final rule. Under 
section 307(b)(2) of the CAA, the requirements that are subject to 
today's notice may not be challenged later in civil or criminal 
proceedings brought by the EPA to enforce these requirements.
    Organization of This Document. The information presented in this 
preamble is organized as follows:

I. Summary of Final Rule
II. Background
III. Basis for Amended Effective Date
IV. Good Cause Findings
V. 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 of 1995
    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 Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review

I. Summary of Final Rule

    EPA is issuing a final rule to amend the effective date of the 
standard for particulate matter for new cement kilns that burn 
hazardous waste. The effect of this action is to suspend the obligation 
of new cement kilns to comply with the particulate matter standard that 
was issued on October 12, 2005 (70 FR 59402), under section 112 of the 
CAA, and set forth in Sec.  63.1220(b)(7)(i). EPA is codifying this 
amendment by amending Sec. Sec.  63.1206(a)(1)(ii)(B) and 
63.1220(b)(7)(i).
    Under this amended rule, cement kilns that were constructed or 
reconstructed after April 20, 2004, are temporarily relieved of the 
obligation to comply with the replacement particulate matter standard 
of 0.0023 gr/dscf, corrected to 7 percent oxygen, under Sec.  
63.1220(b)(7)(i).\1\ However, such sources instead must comply with a 
particulate matter standard of 0.15 kg/Mg dry feed, which was the 
standard applicable to new cement kilns prior to the promulgation of 
the replacement standard (i.e., the standard set forth in Sec.  
63.1220(b)(7)(i) as promulgated in the October, 2005 rule). This action 
does not affect any other standards applicable to new (or existing) 
cement kilns. It also does not affect the standards for other hazardous 
waste combustor source categories.
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    \1\ In this notice all concentration-based standards with units 
of gr/dscf are corrected to 7% oxygen.
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    This amendment of the effective date shall take effect immediately 
upon publication in the Federal Register, and will remain in effect 
until EPA takes final action on the proposal to revise the particulate 
matter standard under Sec.  63.1220(b)(7)(i). After EPA takes final 
action on the particulate matter standard, a cement kiln constructed or 
reconstructed after April 20, 2004, will be subject to the particulate 
matter standard set forth in Sec.  63.1220(b)(7)(i).

II. Background

    The final maximum achievable control technology (MACT) standards 
for hazardous waste combustors, implementing section 112(d) of the 
Clean Air Act, were published on October 12, 2005 (70 FR 59402). They 
are codified at 40 CFR part 63, subpart EEE. These standards include 
limits for particulate matter, which is a surrogate for certain 
hazardous air pollutant (HAP) metals. The particulate matter standard 
for new hazardous waste burning cement kilns is 0.0023 gr/dscf.\2\
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    \2\ The particulate matter standard is used as a surrogate to 
control five HAP metals including antimony, cobalt, manganese, 
nickel, and selenium. In addition, the particulate matter standard 
is a surrogate control for all non-mercury HAP metals in the raw 
materials and auxiliary fuels. 69 FR at 21221.
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    Following promulgation of the hazardous waste combustor final rule, 
the Administrator received petitions for reconsideration of this 
standard pursuant to section 307(d)(7)(B) of the CAA from Ash Grove 
Cement Company (AGCC) and the Cement Kiln Recycling Coalition 
(CKRC).\3\ Under this section of the CAA, the Administrator shall 
initiate reconsideration proceedings if the petitioner can show that it 
was impracticable to raise an objection to a rule within the public 
comment period or that the grounds for the objection arose after the 
public comment period.
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    \3\ AGCC's petition for reconsideration is docket item EPA-HQ-
OAR-2004-0022-0516 and the petition of CKRC is docket item EPA-HQ-
OAR-2004-0022-0520.
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    Petitioners AGCC and CKRC requested that EPA reconsider the 
particulate matter standard for new cement kilns. They stated that the 
final standard of 0.0023 gr/dscf was not properly noticed and was 
derived using unrepresentative test data from the Ash Grove Cement 
Chanute (AGCC Chanute) plant, resulting in an unachievable standard. To 
support their position, the petitioners provided additional performance 
data from the AGCC Chanute plant, the cement kiln whose performance was 
the basis for the standard. On March 23, 2006, we published a proposed 
rule granting reconsideration of the particulate matter standard for 
new cement kilns and proposed a revised standard. See 71 FR 14665. In 
the proposal we agreed that there was legitimate confusion regarding 
whether we would base the new source standard on emissions data from 
the Ash Grove Cement Chanute plant, and that also, there was no 
practical opportunity for commenters to address this issue during the 
public comment period. We also stated that ``it appears that the 
promulgated new source standard for particulate matter for cement kilns 
is overly stringent in that it does not fully reflect the variability 
of the best performing source over time (the ``emission control that is 
achieved in practice,'' using the language of section 112(d)(3))''. 71 
FR at 14668. Therefore, we proposed a revised particulate matter 
standard for new cement kilns of 0.0069 gr/dscf. Eleven public comment 
letters were submitted in response to the proposal, including a request 
to extend the comment period by two weeks that was granted in a 
subsequent notice on April 13, 2006 (71 FR 19155).
    Pursuant to section 307(d)(7)(B) of the CAA, EPA also issued an 
administrative stay of the 0.0023 gr/dscf standard on March 23, 2006 
(71 FR 14655). The administrative stay was in effect for three months, 
the maximum allowable under this section of the CAA, from March 23, 
2006 to June 23, 2006. The administrative stay was based on our initial 
determination that the petitions for reconsideration (for the 
particulate matter standard for new cement kilns) appear to have merit 
and that there is a potential environmental detriment associated with 
requiring immediate compliance with the current standard of 0.0023 gr/
dscf (71 FR at 14655).

III. Basis for Amended Effective Date

    Although we proposed to revise the particulate matter standard for 
new cement kilns to 0.0069 gr/dscf from 0.0023 gr/dscf in response to 
the petitions for reconsideration, the

[[Page 62390]]

October 12, 2005 final rule provides that the promulgated particulate 
matter standard of 0.0023 gr/dscf takes effect upon publication. 
Without today's amendment of this provision, all cement kilns that were 
constructed or reconstructed after April 20, 2004, would have been 
required to comply immediately with the 0.0023 gr/dscf emission 
standard. While there are no cement kilns operating that were 
constructed or reconstructed after April 20, 2004 (and thus already 
complying with the 0.0023 gr/dscf standard) currently, there are a 
number of cement plants that are in various stages of constructing new, 
lower emitting and more energy-efficient kilns to replace older cement 
kilns. Comments submitted by these cement companies affirm that the 
promulgated particulate matter standard of 0.0023 gr/dscf, if left in 
effect during the reconsideration proceedings, could adversely affect 
the construction of these new kilns. As discussed in Section IV below, 
we have found that such delays, if they were to occur, would result in 
adverse environmental and energy impacts (e.g., increased emissions of 
particulate matter and increased consumption of fossil fuels such as 
coal). Therefore, we conclude it is appropriate to amend the effective 
date of the particulate matter standard for new cement kilns until we 
conclude the reconsideration proceedings.
    We are mindful that there would be no need to amend the effective 
date of the new source particulate matter standard for cement kilns if 
it seemed likely that we would affirm the promulgated standard of 
0.0023 gr/dscf at the conclusion of the reconsideration process. Based 
on a preliminary, non-cursory evaluation of public comments submitted 
in response to the proposed rule to revise the particulate matter 
standard, we continue to believe that a MACT floor level of 0.0023 gr/
dscf is not representative of the performance of any single best 
performing cement kiln source in our emissions data base, properly 
taking normal operating variability into account. Therefore, while not 
a final determination, our preliminary review of public comments 
provided during the reconsideration proceedings has not persuaded us 
that a revision of the particulate matter standard for new cement kilns 
is unnecessary. We will, of course, consider objectively all 
information submitted during the reconsideration process and make a 
final determination in the near future as to the need to revise this 
standard.
    Our preliminary view is that an emissions standard of 0.0023 gr/
dscf for particulate matter is not an appropriate standard for new 
cement kilns either as a MACT floor or as a beyond-the-floor 
standard.\4\ First, a level of 0.0023 gr/dscf does not appear to be an 
achievable MACT floor level based on available particulate matter 
emissions data from the AGCC Chanute plant, the cement kiln on whose 
performance that standard was based. Available performance data for 
AGCC Chanute include emissions data from 2001-2002 (the basis of the 
promulgated MACT floor of 0.0023 gr/dscf) and additional emissions data 
from 2003-2005 submitted by petitioner AGCC during reconsideration 
proceedings (the basis for identifying another cement plant as the 
single best performing source in the reconsideration proposed rule that 
led EPA to propose a MACT floor of 0.0069 gr/dscf). As discussed below, 
it is our view that these emissions data show that the AGCC Chanute 
source does not routinely achieve a standard of 0.0023 gr/dscf. In 
fact, our review of the AGCC Chanute data led us to identify another 
cement plant as the single best performing source in the March 23, 2006 
reconsideration proposed rule.
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    \4\ See the notice of proposed rulemaking for a discussion of 
how we selected representative data for each source so that the 
single best performing source could be identified and how we 
calculated the MACT floor levels for particulate matter. 69 FR at 
21223-233 (April 20, 2004). The proposed rule also describes how 
emissions variability was accounted for, including the use of a 
``universal variability factor'' that was used only for the 
particulate matter standard to address long-term variability in 
particulate matter emissions of sources using fabric filters. See 
also 70 FR at 59436-450. In developing MACT standards, we must also 
consider beyond-the-floor control options that are more stringent 
than the floor level taking into consideration not only emission 
performance but also the cost of achieving the emission reductions, 
any health and environmental impacts, and energy requirements. CAA 
section 112(d)(2).
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    One commenter to the March 23, 2006 proposed rule stated that the 
emissions data of AGCC Chanute from 2003-2005 reflect unnecessary bag 
leakage and ineffective maintenance, and, therefore, the test data 
submitted during reconsideration proceedings for AGCC Chanute should 
not be accepted as representative of routine performance. The commenter 
also states that a standard of 0.0023 gr/dscf would be readily 
achievable by AGCC Chanute (and other cement kilns) through, among 
other things, an effective preventative maintenance program that 
includes the use of bag leak detection systems to identify and correct 
bag leaks when they first occur.\5\ However, the commenter provides no 
evidence that an ineffective preventative maintenance program is 
responsible for the variability seen in the additional emissions data 
from 2003-2005 as compared to the 2001-2002 data. Without a basis to 
exclude the data, we tentatively believe these additional data must not 
be excluded from the MACT floor analysis because they reflect the 
normal variability of the source over time. As discussed in the 
reconsideration proposed rule, if these data are considered, then AGCC 
Chanute's performance clearly shows that an emission level of 0.0023 
gr/dscf is not an appropriate MACT floor for new cement kilns because 
it does not fully reflect the source's emission variability (71 FR at 
14669). We also tentatively reject the commenter's argument that AGCC 
Chanute could routinely achieve a MACT floor of 0.0023 gr/dscf if its 
baghouse (fabric filter) were better maintained by monitoring emissions 
with a bag leak detection system. The argument suggests that AGCC 
Chanute could have maintained the performance achieved in 2001-2002 
through improved monitoring and a better preventative maintenance 
program. We disagree that the commenter's argument is even relevant 
when identifying a MACT floor because whether AGCC Chanute could 
operate better (achieve lower emissions over time) with different 
equipment, such as a bag leak detection system, is a beyond-the-floor 
issue. As the commenter acknowledges, AGCC Chanute is not equipped with 
a bag leak detection system. For purposes of a MACT floor, we must 
identify the single best performing source and identify an emission 
level that reflects ``the emission control that is achieved in practice 
by the best controlled source.'' Section 112(d)(3). Therefore, a MACT 
floor of 0.0023 gr/dscf for particulate matter would not be justifiable 
based on theoretical performance of a differently-equipped AGCC Chanute 
plant.
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    \5\ See docket item EPA-HQ-OAR-2004-0022-0542.01, page 2.
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    Second, a level of 0.0023 gr/dscf does not appear to be an 
achievable MACT floor level based on available particulate matter 
emissions data from any other cement kiln source in our emissions data 
base. As presented in the support document to the reconsideration 
proposed rule, we are not in possession of any emissions data from a 
cement kiln achieving this level, accounting for normal performance 
variability.\6\
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    \6\ USEPA, ``Draft Technical Support Document for HWC MACT 
Standards, Reconsideration of the New Source Particulate Matter 
Standards for Cement Kilns,'' March 2006, Table 4.
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    Finally, an emissions standard of 0.0023 gr/dscf for particulate 
matter is not likely an appropriate beyond-the-floor standard for new 
cement kilns. In

[[Page 62391]]

the reconsideration proposal, we evaluated a beyond-the-floor standard 
of 0.0035 gr/dscf and proposed that such a standard would not be 
justified.\7\ This analysis was based on improved baghouse performance 
that evaluates improved bag material and a lower gas to cloth ratio. We 
also reached that conclusion in the final rule whereby we rejected 
adopting a beyond-the-floor standard of 0.0012 gr/dscf.\8\ While we are 
not able to quantify the costs here (because the MACT floor level has 
yet to be determined), the previous analyses indicate that a beyond-
the-floor standard of 0.0023 gr/dscf is not likely to be warranted. We 
will, of course, make a final determination as to the appropriateness 
of a beyond-the-floor standard for new cement kilns during the 
reconsideration process in the near future.
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    \7\ USEPA, ``Draft Technical Support Document for HWC MACT 
Standards, Reconsideration of the New Source Particulate Matter 
Standards for Cement Kilns,'' March 2006, Section 4.1.2.
    \8\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards,'' September 2005, Section 
11.3.4.
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IV. Good Cause Findings

    Section 553(b) of the Administrative Procedure Act (APA) (which 
applies to this action pursuant to the final sentence of CAA section 
307(d)(1)) provides that, when any agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. Similarly, under section 
553(d) of the APA, an agency may find that there is good cause to make 
the rule effective upon publication in the Federal Register.
    We have determined that there is good cause for making today's 
amendment final without prior proposal and opportunity for public 
comment for several reasons. First, this amendment removes potential 
impediments to significant environmental and energy savings by allowing 
continued construction of new cement kilns that burn hazardous waste. 
As noted in the petitions for reconsideration of AGCC and CKRC, at 
least three companies are in various stages of constructing new, lower 
emitting and more energy-efficient kilns to replace older cement 
kilns.\9\ Declarations made by representatives of these companies are 
that the companies could choose not to burn hazardous waste at these 
kilns and instead comply with the more lenient standards for 
particulate matter applicable to non-waste burning kilns, should the 
current particulate matter standard of 0.0023 gr/dscf be included in a 
permit.\10\ Using the AGCC's Foreman plant as an example, we estimate 
that emissions of particulate matter would increase by approximately 77 
tons per year at the Foreman plant should AGCC decide to abandon plans 
to burn hazardous waste at the new preheater/precalciner kiln.\11\ 
Continental Cement Company and Keystone Cement Company also are 
planning to construct new cement kilns. If all three companies 
abandoned plans to build the new lower-emitting cement kilns, then 
particulate matter emissions would potentially increase by over 200 
tons per year.
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    \9\ For example, AGCC is replacing its three older wet process 
cement kilns at its Foreman, Arkansas plant with a new preheater/
precalciner kiln. See docket item EPA-HQ-OAR-2004-0022-0523, page 3. 
Information related to plans of Continental Cement Company and 
Keystone Cement Company to build new cement kilns can be found in 
docket item EPA-HQ-OAR-2004-0022-0521, Appendices F and G, 
respectively.
    \10\ Declarations made by representatives of AGCC, Continental 
Cement Company, and Keystone Cement Company are available in the 
docket. See docket item EPA-HQ-OAR-2004-0022-0521, Appendices F, G, 
and H.
    \11\ For purposes of this estimate, it was assumed that the new 
preheater/precalciner kiln would be designed to 0.0034 gr/dscf, 
which is the design level for the standard that we proposed for new 
hazardous waste burning cement kilns on March 23, 2006 (71 FR 
14665). The particulate matter standard for new cement kilns that do 
not burn hazardous waste is 0.15 kg/Mg dry feed, which equates to 
approximately 0.04 gr/dscf, corrected to 7% oxygen, for a preheater/
precalciner kiln. Section 63.1343(b)(1).
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    There also may be environmental detriment if the amendment is not 
issued because the companies building new cement kilns could experience 
construction and permitting delays. This detriment would result because 
the existing higher-emitting and less efficient cement kilns would 
(assuming delay) continue to operate for a longer period of time (i.e., 
operation of the new cement kilns replacing the older kilns would be 
postponed). We estimate that emissions of particulate matter would 
increase by approximately 60 tons at the Foreman plant should AGCC 
experience a 1-year delay in initiating operation of their new 
preheater/precalciner kiln.\12\ Delays at Continental Cement Company 
and Keystone Cement Company would result in annual increases in 
particulate matter emissions of 27 tons and 30 tons, respectively. 
Thus, if all three companies experienced a one-year delay in building 
the new lower-emitting cement kilns, then particulate matter emissions 
would increase by approximately 117 tons.
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    \12\ We estimate emissions of particulate matter from Ash Grove 
Cement's three wet process kilns at 85 tons per year. See USEPA, 
``Technical Support Document for HWC MACT Replacement Standards, 
Volume V: Emissions Estimates and Engineering Costs,'' September 
2005, Appendix C. For purposes of this estimation, we assumed that 
the new preheater/precalciner kiln would be designed to 0.0034 gr/
dscf, which is the design level for the standard that we proposed 
for new hazardous waste burning cement kilns on March 23, 2006.
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    We also find that amending the rule's effective date yields 
substantial energy savings. A typical wet process cement kiln requires 
approximately 5-6 million Btu of energy to make one ton of clinker 
product, while the more thermally-efficient preheater/precalciner kilns 
require 3 million Btu of energy. One wet process cement kiln annually 
producing 500,000 tons of clinker would consume approximately 105,000 
tons of coal (assumes that all energy is derived from coal). However, a 
more thermally-efficient preheater/precalciner kiln would require 
57,000 tons of coal per year, which equates to an annual energy savings 
of nearly 50,000 tons of coal per kiln as compared to a wet process 
kiln. Thus, a delay in the start-up of the new kilns or outright 
abandonment of its construction would result in the increased use of 
several hundred thousand tons of coal per year.
    It is also important to note that while this amendment temporarily 
relieves newly constructed or reconstructed cement kilns of the 
obligation to comply with the replacement standard of 0.0023 gr/dscf, 
there are no cement kilns currently in operation that are subject to 
the replacement standard. That is, there are no new cement kilns that 
are currently complying with the replacement standard of 0.0023 gr/dscf 
for particulate matter, and thus no kilns that will actually emit 
particulate matter at higher levels. Thus, although the less stringent 
particulate matter standard that was applicable to new cement kilns 
prior to the promulgation of the replacement standards will be in 
effect as a result of today's amendment, this will not lead to an 
actual increase in particulate matter emissions.
    We also note that the issue of the rule's effective date has 
essentially already been subject to robust public comment through the 
grant of reconsideration and proposal to amend the rule. Thus, this is 
not a situation where the public is presented with a final rule without 
having opportunity to address the issues involved in the action.
    Finally, we note that we expect this amendment to be in effect for 
only a short time. We estimate that the amendment will remain in effect 
for less than 1-year while the rulemaking to revise the particulate 
matter standard for new cement kilns is concluded. We intend to take 
final action on

[[Page 62392]]

reconsideration of the particulate matter standard for new cement kilns 
as expeditiously as possible. When that work is completed, the kilns 
currently under construction will be responsible for meeting the 
standard in the revised rule prior to commencing operation. We do not 
anticipate that any of those new kilns will ever operate subject to the 
previous replacement standard.
    Given the possibility of environmental detriment, the lack of 
environmental prejudice, the previous opportunity for public comment on 
the issues involved, and the likely short duration of this amendment, 
we find that there is good cause to amend the rule's effective date 
under 5 U.S.C. 553(b)(B) without prior notice or opportunity to 
comment. We also find, for the same reasons, that good cause exists 
under APA section 553(d)(3) to make this amendment effective upon 
publication in the Federal Register rather than 30 days later.

V. 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. Consequently, this 
action was not submitted to the Office of Management and Budget for 
review under EO 12866.

B. 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 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.

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 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business that 
is primarily engaged in cement manufacturing as defined by NAIC code 
327310 with less than 750 employees (for the entire corporation); (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 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 final 
rule will not impose any new, more stringent requirements on new 
source, small cement manufacturing entities.

D. 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 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. Furthermore, section 202 does not apply 
to rules for which EPA invokes an exemption under section 553(b)(1)(B) 
of the Administrative Procedure Act, as is being done in this action. 
Thus, today's action is not subject to sections 202 and 205 of the 
UMRA. EPA has also determined that the final rule amendments contain no 
regulatory requirements that might significantly or uniquely affect 
small governments. Thus, the final rule amendments are not

[[Page 62393]]

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.

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 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This action 
contains no requirements that are more stringent than in the October 
2005 final rule. Thus, Executive Order 13175 does not apply to this 
rule.

G. 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 amends the effective 
date of a standard while EPA takes final action on the proposed rule 
(71 FR 14665 (March 23, 2006)).

H. 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 
an economically significant regulatory action under Executive Order 
12866.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule (69 FR 21198), Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (``NTTAA''), 
Pub. L. 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 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.

J. 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 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As discussed in 
Section IV above, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date of October 25, 
2006. 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. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subject in 40 CFR Part 63

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

    Dated: October 19, 2006.
Stephen L. Johnson,
Administrator.

0
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 paragraph (a)(1)(ii)(B)(1) 
and adding new paragraph (a)(1)(ii)(B)(3) to read as follows:


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

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) * * * (1) If you commenced construction or reconstruction of 
your hazardous waste combustor after April 20, 2004, you must comply 
with the new source emission standards under Sec. Sec.  63.1219, 
63.1220, and 63.1221 and the other requirements of this subpart by the 
later of October 12, 2005 or the date the source starts operations, 
except as provided by paragraphs (a)(1)(ii)(B)(2) and (a)(1)(ii)(B)(3) 
of this section. The costs of retrofitting and replacement of equipment 
that is installed specifically to comply with this subpart, between 
April 20, 2004, and a source's compliance date, are not considered to 
be reconstruction costs.
* * * * *
    (3) Temporary particulate matter standard under Sec.  63.1220 for 
new

[[Page 62394]]

cement kilns. You are not required to comply with the particulate 
matter standard specified under Sec.  63.1220(b)(7)(i) until EPA takes 
final action with regard to the particulate matter standard pursuant to 
reconsideration proceedings. If you start up a new or reconstructed 
hazardous waste burning cement kiln as defined by this subpart, you 
must not emit particulate matter in excess of 0.15 kg/Mg dry feed, as 
determined according to the requirements under Sec.  63.1204(b)(7)(i) 
through (iii).
* * * * *


0
3. Section 63.1220 is amended by revising paragraph (b)(7)(i) to read 
as follows:


Sec.  63.1220  What are the replacement standards for hazardous waste 
burning cement kilns?

* * * * *
    (b) * * *
    (7) * * *
    (i) Except as provided by Sec.  63.1206(a)(1)(ii)(B)(3) and 
paragraph (b)(7)(iii) of this section, particulate matter emissions in 
excess of 0.0023 gr/dscf corrected to 7 percent oxygen.
* * * * *
[FR Doc. E6-17897 Filed 10-24-06; 8:45 am]

BILLING CODE 6560-50-P
