Air pollutants, hazardous; national emission standards: Industrial/commercial/institutional boilers and process heaters, and hydrochloric acid production furnaces that combust hazardous waste, 39662-39664 [05-13555]


[Federal Register: July 11, 2005 (Volume 70, Number 131)]
[Rules and Regulations]               
[Page 39662-39664]
From the Federal Register Online via GPO Access []



40 CFR Part 63

[OAR-2002-0038, FRL-7935-4]
RIN 2060-AK52

National Emission Standards for Hazardous Air Pollutants: 
Requirements for Control Technology Determinations for Major Sources in 
Accordance With Clean Air Act Sections, Sections 112(g) and 112(j)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendment.


SUMMARY: We are amending table 1 to subpart B of part 63 to reflect the 
revised deadlines in a recently amended consent decree. The final rule 
amendment (and amended consent decree) relates to boilers and 
hydrochloric acid production furnaces that burn hazardous waste. We are 
making the amendment by final rule, without prior proposal, because we 
view the amendment as a technical correction to an existing regulation.

DATES: Effective Dates: July 11, 2005.

ADDRESSES: Docket: The docket for the final rule amendment is Docket ID 
No. OAR-2002-0038. All documents in the docket are listed in the 
EDOCKET index at Although listed in the 

index, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure 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 EDOCKET or in hard copy at the HQ 
EPA Docket Center, Docket ID No. OAR-2002-0038, EPA West Building, Room 
B-102, 1301 Constitution Ave., NW., Washington, DC. 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, and the telephone number for the EPA Docket 
Center is (202) 566-1742. A reasonable fee may be charged for copying 
docket materials.

Quality Planning and Standards, Emission Standards Division, Minerals 
and Inorganic Chemicals Group (C504-05), Research Triangle Park, North 
Carolina 27711; telephone number (919) 541-5262; fax number (919) 541-
5600; e-mail address:

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure 
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause 
finds that notice and public procedure are impracticable, unnecessary, 
or contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. The EPA has 
determined that there is good cause for making today's rule final 
without prior proposal and opportunity for public comment because the 
change is simply a conforming change to be

[[Page 39663]]

consistent with a judicial consent decree date change. Thus, notice and 
public procedure are unnecessary. EPA finds that this constitutes good 
cause under 5 U.S.C. 553(b)(B).
    Regulated Entities. Categories and entities potentially regulated 
by this action include:

                                   Table 1.--Regulated Categories and Entities
                                                                                       Examples of regulated
               Category                                 NAICS \1\                             entities
Industrial/commercial /institutional   327992....................................  Ground or treated mineral and
 boilers and process heaters, and      325.......................................   earth manufacturing.
 hydrochloric acid production          324.......................................  Chemical manufacturers.
 furnaces that combust hazardous       331.......................................  Petroleum refiners.
 waste.                                333.......................................  Primary aluminum.
                                       488, 561, 562.............................  Photographic equipment and
                                                                                   Sanitary services, N.E.C.\2\
                                       421.......................................  Scrap and waste materials.
                                       422.......................................  Chemical and allied products,
                                       512, 541, 561, 812........................  Business services, N.E.C.\2\
                                       512, 514, 541, 711........................  Services, N.E.C.\2\
                                       924.......................................  Air, water, and solid waste
\1\ North American Industry Classification System.
\2\ Not elsewhere classified.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
    Worldwide Web (WWW). In addition to being available in the docket, 
electronic copies of today's action will be posted on the Technology 
Transfer Network's (TTN) policy and guidance information page at
 The TTN provides information and technology 

exchange in various areas of air pollution control.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the final rule amendment is available only by 
filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia by September 9, 2005. Moreover, under section 
307(b)(2) of the CAA, the requirements established by the final rule 
amendment may not be challenged separately in any civil or criminal 
proceedings brought by EPA to enforce these requirements.

I. New Schedule for Part 2 Permit Applications

    Section 112(j) of the CAA provides a mechanism for subjecting major 
sources to emission standards reflecting performance of maximum 
available control technology (MACT) in the event that EPA fails to 
issue a MACT standard within the deadlines established in CAA section 
112(e). In essence, if EPA fails to issue a timely MACT standard, 
section 112(j) requires major sources to submit permit applications to 
the relevant permitting authority. The permitting authority must then 
establish emission limitations for the source representing the 
authority's best estimate of what the MACT standard for the source 
would have been.
    On May 30, 2003 (68 FR 32586), EPA issued final rules establishing 
dates for submitting CAA section 112(j) Part 2 permit applications, and 
provisions relating to the substance of those applications should they 
become due. Today's action deals solely with the issue of applicable 
dates for submitting applications.
    Section 112(j) Part 2 permit application submittal dates are 
codified in subpart B of 40 CFR part 63 by source category. The dates 
are 60 days after the scheduled MACT rule completion dates for the 
respective source category established by the consent decree entered in 
Sierra Club v. Johnson, no. 1:01CV01537 (D.C.D.C.). In adopting these 
dates, and in particular by which the dates are tied to consent decree 
deadlines, we considered the possibility of what would happen if the 
consent decree deadlines were modified. We stated that if the deadline 
for promulgation of any MACT standards which appear in the consent 
decree is extended by the District Court in accordance with the 
provisions of that decree, we will consider at that time whether any 
corresponding adjustment in the schedule for section 112(j) Part 2 
applications set forth in 40 CFR part 63, subpart B, is necessary and 
appropriate. We added that if we conclude that a change in the schedule 
for section 112(j) Part 2 applications is warranted, we will consider 
the use of expedited procedures. (See 68 FR 32594-32595.)
    That possibility has now occurred. On March 30, 2005, EPA filed an 
unopposed motion to modify the consent decree dates for completing MACT 
standards for two source categories, boilers that burn hazardous waste 
and hydrochloric acid production furnaces that burn hazardous waste. 
The court entered its order modifying the decree on April 1, 2005. EPA 
is now required to complete the MACT standards for these source 
categories by September 14, 2005, a 90-day extension of the original 
    The current deadline for submitting CAA section 112(j) Part 2 
permit applications is August 13, 2005 (60 days from the original rule 
completion date in the consent decree). We are amending the section 
112(j) Part 2 permit application date so that it now follows the 
revised consent decree date by 60 days. Consequently, the new date in 
table 1 to subpart B of part 63 is November 14, 2005. The EPA fully 
expects to meet the revised consent decree deadline (and so informed 
the court in our extension motion), so we do not anticipate these 
permit applications having to be submitted.
    We are issuing today's amendment as a final rule without prior 
proposal. We view this as a technical correction to the original rule, 
since permit applications are tied to consent decree dates (an issue 
discussed and fully commented upon in the initial rulemaking). Today's 
rule thus simply conforms the permit application date to the date in 
the revised consent decree. Under these circumstances, we believe that 
opportunity for comment is unnecessary, within the meaning of 5 U.S.C. 
553(b)(3)(B). For the same reason, we believe there is good cause 
within the meaning of 5 U.S.C. 553(d)(3) to make this amendment 
effective immediately.

II. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is

[[Page 39664]]

not a ``significant regulatory action'' and is, therefore, not subject 
to review by the Office of Management and Budget. Because the agency 
has made a ``good cause'' finding that this action is not subject to 
notice-and-comment requirements under the Administrative Procedure Act 
or any other statute, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) or 
to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Pub. L. 104-4). In addition, this action does not significantly 
or uniquely affect small governments or impose a significant 
intergovernmental mandate, as described in sections 203 and 204 of 
UMRA. This action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999). This 
action also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997) because it is not economically significant. This action is 
not a ``significant energy action'' as defined in Executive Order 13211 
(66 FR 28355, May 22, 2001) because it will not have a significant 
adverse effect on the supply, distribution, or use of energy.
    This technical correction action does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995, (15 U.S.C. 272 note) 
do not apply. This action also does not involve special consideration 
of environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). In issuing the final rule 
amendment, EPA has taken necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct, as required by section 3 of Executive 
Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988), by examining the 
takings implications of the final rule amendment in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings'' issued under the executive 
order. This action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501, et seq.). The EPA's compliance with these statutes and Executive 
Orders for the underlying rule is discussed in the May 30, 2003 Federal 
Register action.
    The Congressional Review Act (CRA), (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 stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and established an effective date of July 11, 
2005. The EPA will submit a report containing this action and other 
required information to the United States Senate, the United States 
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 Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: July 5, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.

For the reasons stated in the preamble, title 40, chapter I, part 63 of 
the Code of Federal Regulations is amended as follows:


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

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

Subpart B--[Amended]

2. Table 1 to subpart B of part 63 is amended by revising the entry 
dated ``8/13/05'' to read as follows:

 Table 1 to Subpart B of Part 63--Section 112(j) Part 2 Application Due
             Due date                           MACT standard

                                * * * * *
11/14/05..........................  Industrial Boilers, Institutional/
                                     Commercial Boilers, and Process
                                    Hydrochloric Acid Production.6

* * * * *

[FR Doc. 05-13555 Filed 7-8-05; 8:45 am]