National Emission Standards for Hazardous Air Pollutants: General Provisions, 20446-20472 [06-3312]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 76 (Thursday, April 20, 2006)]
[Rules and Regulations]
[Pages 20446-20472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3312]



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Part II





Environmental Protection Agency





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40 CFR Parts 63 and 65



National Emission Standards for Hazardous Air Pollutants: General 
Provisions; Final Rule

Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules 
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63 and 65

[EPA-HQ-OAR-2004-0094; FRL-8055-5]
RIN 2060-AM89


National Emission Standards for Hazardous Air Pollutants: General 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action promulgates amendments to certain aspects of 
startup, shutdown, and malfunction (SSM) requirements affecting sources 
subject to the national emission standards for hazardous air pollutants 
(NESHAP) in response to a July 29, 2003 petition to reconsider certain 
aspects of amendments to the NESHAP General Provisions published on May 
30, 2003.

EFFECTIVE DATE: This final rule is effective on April 20, 2006.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2004-0094. All documents in the docket are 
listed on the www.regulations.gov Web site. Although listed in the 
index, some information may not be publicly available, i.e., 
confidential business information 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 through www.regulations.gov or in hard 
copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2004-0094, EPA 
West, 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.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, U.S. EPA Office of 
Air Quality Planning and Standards, Sector Policies and Programs 
Division, Program Design Group (C504-05), Research Triangle Park, NC 
27711; telephone number (919) 541-5262; fax number (919) 541-5600; e-
mail address: colyer.rick@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

    Regulated Entities. Categories and entities potentially regulated 
by this action include sources in all source categories regulated under 
40 CFR parts 63 and 65 that must develop a startup, shutdown, and 
malfunction plan.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's final rule amendments will also be 
available on the WWW through the Technology Transfer Network (TTN). 
Following signature, a copy of this action will be posted on the TTN's 
policy and guidance page for newly promulgated rules at https://
www.epa.gov/ttn/oarpg. 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 amendments is available only 
by filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia Circuit by June 19, 2006. Under section 
307(d)(7)(B) of the CAA, only an objection to the 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 final 
rule amendments may not be challenged separately in any civil or 
criminal proceeding brought by EPA to enforce these requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. General Information
II. Summary of Final Amendments
III. Responses to Comments
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

II. Summary of Final Amendments

    The NESHAP General Provisions were first promulgated on March 16, 
1994 (59 FR 12408). We subsequently proposed a variety of amendments to 
the initial rule based in part on settlement negotiations with 
industrial trade organizations, which had sought judicial review of the 
rule, and in part on our practical experience in developing and 
implementing NESHAP, also known as maximum achievable control 
technology (MACT) standards, under the General Provisions (66 FR 16318; 
March 23, 2001). We then promulgated final amendments to the General 
Provisions pursuant to that proposal (67 FR 16582; April 5, 2002).
    On April 25, 2002, Sierra Club filed a petition seeking judicial 
review of those final amendments, Sierra Club v. U.S. Environmental 
Protection Agency, No. 02-1135 (DC Circuit). The Sierra Club also filed 
a petition seeking administrative reconsideration of certain provisions 
in the final amendments, pursuant to Clean Air Act (CAA) section 
307(d)(7)(B).
    Shortly after the filing of the petition, EPA commenced discussions 
with the Sierra Club concerning a settlement agreement. We reached 
initial agreement with the Sierra Club on the terms of a settlement and 
lodged the tentative agreement with the court on August 15, 2002, under 
which we agreed to propose a rule to make specified amendments to the 
General Provisions.
    Following execution of the final settlement agreement, we published 
proposed amendments effectuating its terms (67 FR 72875; December 9, 
2002). Most of the General Provisions amendments dealt with clarifying 
the general duty to minimize emissions and its relationship to the 
startup, shutdown, and malfunction (SSM) plans required under 40 CFR 
63.6(e)(3).
    We issued final amendments (68 FR 32586; May 30, 2003) that require 
that a source must promptly submit a copy of its plan to its permitting 
authority if and when the permitting authority requests that the plan 
be submitted. The final amendments also require the permitting 
authority to obtain a copy of the plan from a facility if a member of 
the public makes a specific and reasonable request to examine or 
receive a copy. We noted that the permitting authority should work with 
the requester to clarify any request if it is overly broad or 
insufficiently specific.
    After promulgation of the amendments, the NRDC petitioned EPA on 
July 29, 2003, under section 307(d)(7)(D) of the CAA, to reconsider the 
public access aspects of the SSM plan provisions. Specifically, NRDC 
opposed the criteria for the public to access SSM plans, i.e., that a 
plan may be obtained only if the request is ``specific and 
reasonable.'' The NRDC concluded that the final amendments

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allow the Administrator to block a citizen's access to SSM plans just 
by declaring the request not ``specific and reasonable.''
    On July 29, 2005 (70 FR 43992), we announced our reconsideration of 
these issues arising from the final amendments of May 30, 2003, 
regarding SSM plans, and proposed additional amendments to the General 
Provisions and conforming amendments to other parts 63 and 65 subparts. 
Today's notice responds to comments on the July 29, 2005 proposal and 
promulgates final rule amendments.
    By removing the requirement that the SSM plan must be followed 
during periods of SSM, the final amendments allow sources flexibility 
to address emissions during periods of SSM. This in no way alters the 
obligation and requirement set out at 40 CFR 63.6(e)(1)(i) that source 
owners or operators ``minimize emissions'' at all times, including 
periods of SSM. Root cause analysis of excess emissions events may 
generally be the most effective means in many industry sectors to 
assist a source in meeting its regulatory obligation to minimize 
emissions at all times including during periods of SSM. Appropriately 
conducted root cause analysis should determine the fundamental cause of 
an excess emissions event, and identify the steps and corrective action 
necessary to ensure that the excess emission does not arise again. 
Through this process, we have determined that fewer and fewer excess 
emission events occur over time. Thus, performing a root cause or 
similar analysis and implementing corrective action may often be 
relevant in determining whether a source has met the good air pollution 
control measures standard. The final amendments do not change the 
current approach to minimizing emissions during periods of SSM, and we 
fully expect owners or operators to follow their SSM plans during 
periods of SSM. Owners or operators are also still required to keep 
records of and report actions taken during SSM periods to minimize 
emissions whenever there is an exceedance of an emissions limit (or a 
potential exceedance in the case of a malfunction). (See discussion of 
recordkeeping and recording requirements below.) We expect few owners 
or operators to deviate from their plans, and only when necessary due 
to unanticipated types of malfunctions, emergencies that are not 
amenable to strict adherence to the plan at the time, safety 
considerations that preclude following the plan as written, or when 
emissions can be better minimized by taking steps that are different 
from those set forth in the plan. Even then, the owner or operator must 
report such deviations and demonstrate how emissions were minimized 
when the plan was not followed. This is consistent with the prior 
provisions, except that deviation from the plan is no longer a 
violation of the SSM requirements of the General Provisions 
regulations. This change has been made in all the parts 63 and 65 
subparts that had previously required the plan to be followed.
    We are also removing the requirement that the Administrator obtain 
a copy of a source's SSM plan whenever requested by a member of the 
public. The public may obtain a copy of any plan obtained by the 
Administrator from a source. This includes any permitting authority 
(state or local agency) that has been delegated the authority to 
enforce standards under parts 63 and 65. Under the amendments, any 
permitting authority with delegation will still have the discretion to 
obtain plans requested by the public, but will not be required to do 
so. EPA's position is that SSM plans should not be viewed as compliance 
plans under section 502(b)(8) or 503(c) of the Clean Air Act or under 
EPA's Title V regulations at 40 CFR 70.5(c)(8). This is the most 
reasonable interpretation of those statutory and regulatory provisions 
and is consistent with EPA's position on implementation issues 
associated with SSM plan requirements discussed in more detail in the 
response to comment section below.\1\
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    \1\ In the preamble to the proposal, we suggested that EPA does 
not have the authority to treat SSM plans as compliance plans or to 
require permitting authorities to make such plans available to the 
public. (70 FR 43994-95; July 29, 2005). Upon further consideration, 
we believe that the term ``compliance plan'' is somewhat ambiguous. 
However, for the reasons set forth below and in the response to 
comment section, we believe that an interpretation that SSM plans 
are not compliance plans is reasonable and appropriate.
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    The definition of ``compliance schedule'' in section 501(3) of the 
CAA equates ``schedule of compliance'' to ``schedule of remedial 
measures.'' Nothing in this definition or in any other provision of the 
CAA suggests that SSM plans must be considered ``compliance plans.'' In 
fact, the definition of compliance schedule suggests that the primary 
purpose of ``compliance schedules'' and ``compliance plans'' is to set 
out measures to be taken to remedy noncompliance. EPA's title V 
regulations at 40 CFR 70.5(c)(8), which describe what is to be included 
in a compliance plan, further support the reasonableness of EPA's view 
that SSM plans should not be considered compliance plans. Those 
regulations provide that a compliance plan must include a description 
of the compliance status of the source, a statement that the source 
will continue to comply with applicable requirements and, if the source 
is not in compliance with an applicable requirement, a narrative 
describing how compliance will be achieved. SSM plans serve a purpose 
different from that of compliance plans (see discussion below) and do 
not include the components described above that are required in 
compliance plans. Thus, EPA's position that SSM plans are not 
compliance plans is reasonable.
    Plans available to the public will have confidential business 
information removed. Startup, shutdown, and malfunction plans are 
similar to the risk management plans prepared under section 112(r) to 
prevent accidental releases of HAP and may likely contain information 
that is protected as CBI or that may be sensitive from a security 
standpoint. For these reasons, many facilities are reluctant to provide 
the details of their plans and permitting authorities are reluctant to 
request them except when necessary. While these plans may be redacted 
prior to public release to remove CBI, this imposes additional burden 
on both the facilities and the permitting agencies. Thus we believe the 
limitation we are imposing in the final rule strikes a reasonable 
balance between the public's right to know, protection against acts of 
terrorism, and protection of a facility's CBI.
    The amendments also make clarifying edits that reporting and 
recordkeeping is only required when a startup or shutdown causes the 
applicable emission standards to be exceeded, and for any occurrence of 
malfunction which also includes potential exceedances \2\ and that such 
recordkeeping and reporting shall include information on actions taken 
during such periods of SSM to minimize emissions in conformance with 
Sec.  63.6(e)(1)(i). When such actions are consistent with the plan the 
report can include a checklist, as is currently allowed for 
recordkeeping. Reports would allow a member of the public to review the 
actions taken and whether or not they conform to the general duty to 
minimize emissions. We are also revising the definitions for 
malfunction

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throughout parts 63 and 65 in various subparts for consistency with the 
previously revised definition in the General Provisions.
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    \2\ A malfunction is defined as any sudden, infrequent, and not 
reasonably preventable failure of air pollution control and 
monitoring equipment, process equipment, or a process to operate in 
a normal or usual manner which causes, or has the potential to 
cause, the emission limitations in an applicable standard to be 
exceeded.
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III. Responses to Comments

General

    Comment: One commenter thought EPA should not have considered 
petitions from parties who did not participate in previous rulemakings, 
and that EPA should have denied NRDC's petition for reconsideration.
    Response: The EPA granted reconsideration on a narrow issue and has 
properly followed Section 307(d) of the CAA.

Enforcement

    Comment: Several commenters were concerned that the amendments 
would render the SSM provisions essentially unenforceable. They felt 
that removal of the requirement to follow the plan would allow owners 
or operators to do anything they want during SSM periods with no 
accountability and will lead to increases in emissions if the plan is 
not followed. More specifically, Sierra Club asserts that section 304 
of the CAA guarantees a citizen's right to enforce CAA requirements and 
that section 504(a) of the CAA requires that title V permits contain 
enforceable limits and standards and conditions necessary to assure 
compliance. Sierra Club alleges that if the requirement that a source 
implement its SSM plan is eliminated, there would be no means by which 
to measure a source's compliance with the general duty to minimize 
emissions. Sierra Club further argues that without the ability to 
measure a source's actions during an SSM event against that source's 
SSM plans, the public can't enforce the general duty requirement.
    Sierra Club also asserts that proving a violation of the general 
duty standard would be virtually impossible given the vagueness of the 
standard. Sierra Club argues that EPA's proposed scheme renders the 
MACT standard unenforceable because if the SSM plan is not incorporated 
into the title V permit as a requirement, there will be no information 
in the title V permit indicating when the limit applies. Sierra Club 
believes that EPA's seeks to create a system in which adherence to plan 
can be used as a defense, but failure to follow a plan is not a 
violation.
    Comments submitted by Tulane Environmental Law Clinic on behalf of 
St. Benard Citizens for Environmental Quality and Louisiana Bucket 
Brigade argue that the requirement to develop an SSM plan is (even 
under EPA's proposal) an applicable requirement and that the only way 
to assure compliance with this applicable requirement is to require 
that it be submitted to the regulatory agency and be available to the 
public.
    Response: As summarized in the previous section, we do not believe 
the amendments will change anything with respect to how owners and 
operators will react during periods of SSM except that they will have 
the flexibility to depart from a SSM plan when doing so makes sense 
under the circumstances. They are still required to develop SSM plans, 
minimize emissions during periods of SSM, and keep records and report 
SSM events if there is an exceedance (or could have been, in the case 
of malfunctions) of an applicable MACT standard. We expect owners and 
operators to continue to follow the SSM plans with respect to most SSM 
events because those plans should generally set forth the best way to 
minimize emissions. Those who fail to follow their plan will undergo 
additional scrutiny, as they do now, to determine if emissions were 
minimized during SSM periods. The amendments should have no practical 
effects on a source's obligation to minimize emissions during periods 
of SSM.
    EPA's intention is that the recordkeeping and reporting 
requirements will provide the permitting authority and the public with 
information to determine whether the general duty to minimize emissions 
has been satisfied any time there is an exceedance (or could have been, 
in the case of malfunctions). We have evaluated the recordkeeping and 
reporting requirements in light of comments on the availability of 
information necessary to evaluate compliance with the general duty 
requirement and have decided to amend the recordkeeping and reporting 
requirements to clarify that a source must keep records of and report 
actions taken during an SSM event any time there is an exceedance. 
Revisions to Sec.  63.10(d)(5)(i) and (ii) require that a description 
of actions taken to minimize emissions be included in SSM reports 
whether or not the SSM plan was followed. In the case where the plan is 
followed, a checklist may suffice, and in the case of multiple events, 
only one checklist is necessary (e.g., multiple startups of batch 
processes where the procedure to minimize emissions is always the 
same). With respect to recordkeeping, the rules currently require 
sources to keep a record of actions taken during SSM events (40 CFR 
63.10(b)(2)(iv) and (v)). Where actions were consistent with an SSM 
plan, the rules require records of ``all information necessary to 
demonstrate conformance'' with the plan and provide that such 
information can be recorded in the form of a checklist. (Sec.  
63.10(b)(2)(v)) We are amending these rules today to clarify that such 
records or checklist must include all actions taken during the SSM 
event to minimize emissions. We are also making conforming changes to 
40 CFR 63.6(e)(3)(iii).
    With these clarifications, any time there is an exceedance of an 
emission limit (or could have been in the case of malfunctions) and 
thus a possibility that the general duty requirement was violated, 
there will be a report filed that will describe what actions were taken 
to minimize emissions that will be available to the public.
    Any member of the public could use the information in these reports 
to evaluate whether adequate steps were taken to meet the general duty 
requirement. This information is likely to be of as much if not more 
use in determining compliance with the general duty requirement than a 
facility's general SSM plan because the information will be specific to 
the particular SSM event that caused the exceedance. We note that the 
public can also request that the permitting authority obtain the SSM 
plan if information in the SSM report suggests that the contents of the 
SSM plan would help determine if there was a violation of the general 
duty requirement. However, even if the permitting authority is not 
willing to obtain the SSM plan, the required reports should provide 
adequate information to determine whether there is a violation of the 
general duty requirement and thus a basis for a citizen suit. In any 
such citizen suit, plaintiffs can seek to obtain the SSM plan through 
discovery.
    The general duty to minimize emissions is not too vague to be 
enforced as suggested by Sierra Club. Though the general duty to 
minimize emissions may not provide absolute certainty in all cases, 
there will be many circumstances in which compliance or non-compliance 
will be clear. A regulation that does not reach constitutionally 
protected conduct is not facially vague unless it is impermissibly 
vague in all its applications. (Village of Hoffman Estates v. Flipside, 
Hoffman Estates, Inc., 455 U.S. 489, 496(1982); Sweet Home Chapter of 
Communities for a Greater Oregon v. Babbit, 1.F.3d. 1, 4 (D.C. Cir. 
1994).
    Further, it is not impossible to know when the MACT applies without 
knowing how the facility defines startup, shutdown and malfunction in

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its SSM plan. EPA regulations define the terms startup shutdown and 
malfunction and it is these definitions that apply when determining 
whether a facility is legitimately claiming to be experiencing a period 
of SSM.
    With respect to the argument that the only way to assure compliance 
with the duty to develop a plan is to require that it be submitted to 
permitting authority and be available to the public, assuring 
compliance does not require that the Agency observe compliance first 
hand. It is perfectly appropriate for the Agency to rely on 
certifications (title V regulations require sources to certify 
compliance with all applicable requirements (40 CFR 70.5(c)(9))) or on 
inspection, record keeping and reporting authorities of section 114 of 
the CAA to decide on a case by case basis when to inspect or request 
copies of documents
    Comment: Two commenters said that emissions during SSM events 
should be required to comply with the NESHAP standard. One commenter 
said EPA had failed to support a general assumption that sources cannot 
meet emission limitations during periods of SSM or that setting 
emission limitations during these periods is not feasible.
    Response: These commenters raise issues that are outside of the 
scope of this rulemaking. The general duty provision has been in place 
since 1994. Moreover, comments concerning whether a particular source 
type can meet a particular emission standard during periods of startup, 
shutdown or malfunction could be raised when the emissions standards 
for that source are developed. As one commenter noted, ``EPA can, and 
in some instances has, included requirements for compliance during SSM 
in source-specific NESHAP standards.''
    Though these comments raise issues that are outside the scope of 
this rulemaking, we note that in the May 8, 2004 Federal Register 
notice EPA stated ``EPA believes that it has discretion to make 
reasonable distinctions concerning those particular activities to which 
the emission limitations in a MACT standard apply'' (68 FR 32586, 
32590; May 30, 2003). We also note that the EPA SIP guidance cited by 
one commenter is not relevant to the scope of EPA's authority to 
consider periods of SSM in promulgating NESHAP standards.
    Comment: Several commenters stated that the sources should be 
required to provide the permitting authorities with copies of SSM plans 
even absent a request because the permitting authorities need to review 
SSM plans before problems arise. These commenters also felt that 
greater public access to the plans is beneficial because such scrutiny 
can help ensure that the plans are adequate and the general duty to 
minimize emissions can be met.
    Response: We do not believe that it is necessary to have each owner 
or operator automatically submit its SSM plan. Our regulations make it 
clear that all a permitting authority has to do is request the SSM plan 
and the owner or operator is required to provide it. While the 
authority to request the plan is derived from section 114, there is no 
special order or document that needs to be issued to obtain the SSM 
plan. Thus, the permitting authority may review any plan and may also 
make it available to the public. We do not believe prior review and 
approval of plans are necessary; rather, in most cases, review of 
reports required to be submitted by a facility when emission 
limitations are exceeded (or could have been in the case of 
malfunctions) will allow the permitting authority and the public to 
determine whether emissions were minimized during periods of SSM. 
However, if it so chooses, a permitting authority is free to request 
SSM plans and review them prior to any SSM events occurring. Typically, 
permitting authorities will more often review and assess SSM plan of 
sources with numerous and frequent periods of SSM. It may not be 
necessary to review plans of sources with few or infrequent SSM events, 
allowing the permitting authority to direct its resources to more 
productive endeavors. The permitting authority has the discretion to 
review as many plans as it wants in order to ensure, that emissions are 
minimized during periods of SSM.
    Comment: Several commenters thought it made no sense to require 
that plans be developed but not require them to be followed.
    Response: We disagree. Development of SSM plans help sources to 
think through and document actions to take during SSM events. Plans 
will help sources more expeditiously address SSM events to minimize 
emissions during those periods. Once the plans are developed, sources 
will have every incentive to follow the plans if appropriate, or face 
additional scrutiny if the plans are not followed. In any event, 
sources are required to minimize emissions regardless of whether the 
plans are followed. By not requiring strict adherence to the SSM plan, 
we are allowing the source additional flexibility as to how it will 
minimize emissions. Plans also may help permitting authorities 
streamline determinations of whether emissions are minimized. If it is 
established that emissions are minimized by following the plan during a 
particular SSM event, making that determination when a subsequent 
similar SSM event occurs should be much less burdensome assuming the 
plan has not been revised.
    Comment: Several commenters felt that if an SSM plan is developed 
in good faith and is not ``obviously deficient,'' it should be 
considered a ``safe harbor.'' Others felt that following the plan 
should not be a safe harbor.
    Response: We believe that following the SSM plan should not be a 
safe harbor. Where the SSM plan is out of date or deficient or the 
circumstances clearly called for other steps to minimize emissions, 
blind adherence to the plan should not be sufficient. We leave to the 
discretion of the permitting authority the question of how much weight 
to give the SSM plan in a particular situation. However, assuming that 
the plan was made in good faith and not deficient, we believe that in 
most cases following the SSM plan should help establish that the source 
was minimizing emissions.
    Comment: Several commenters thought there should be a requirement 
that sources periodically review and update their SSM plans. Two 
commenters stated that because implementation of SSM plans will no 
longer be required, sources will be less likely to periodically review 
and update SSM plans.
    Response: Our regulations already require sources to keep their SSM 
plans current, i.e., up to date, and to review and change the plans to 
ensure that emissions are minimized. ``The owner or operator must 
maintain at the affected source a current startup, shutdown, and 
malfunction plan and must make the plan available upon request for 
inspection and copying by the Administrator'' (Sec.  63.6(e)(3)(v)). 
Plans are required to address potential expected SSMs to minimize 
emissions. Plans should be updated whenever changes are necessary to 
address new or different types of SSM events as provided for in 
paragraphs 63.6(e)(3)(vii) and (viii). Moreover, the Administrator (or 
delegated authority) has the ability under Sec.  63.6(e)(3)(vii) to 
require that SSM plans be revised if they are deficient or not current.

Applicable Requirements

    Comment: Numerous commenters agreed with the EPA's position at 
proposal that the SSM plan details themselves are not the applicable 
requirements under the Act, but the general duty clause (Sec.  
63.6(e)(1)) is. They further agreed that the plan

[[Page 20450]]

elements should not be incorporated into the title V permits.
    One commenter believed that the SSM plan elements should be 
applicable requirements. Another commenter thought that the requirement 
to follow the plan should be an applicable requirement in the title V 
permit but the individual elements of the SSM plan should not be 
considered incorporated into the permit.
    Response: As explained in our proposal (70 FR 43992; July 29, 
2005), we believe that the general duty to minimize emissions is the 
applicable requirement, not the SSM plan itself. However, we note that 
the SSM plan is a useful tool for sources to demonstrate--and for 
permitting authorities to confirm--that the general duty to minimize 
emissions is met. We do not agree that requiring implementation of the 
SSM plan is necessary to assure compliance with general duty 
requirement. The SSM plan is a useful tool that may help the permitting 
authority determine compliance depending on the circumstances, but it 
is not ``necessary.'' As explained above, compliance with the general 
duty requirement can be achieved through different means such as 
examining SSM reports to determine whether general duty has been 
satisfied. The case law cited by Sierra Club is not on point. Both 
Waterkeeper Alliance, Inc. v EPA, 399 F.3d. 486 (2nd Cir. 2005) and 
Environmental Defense Center, Inc. v. EPA, 344 F.2d. 832 (9th Cir.2003) 
involved EPA regulatory schemes under which plans developed by the 
regulated entity, which were not reviewed or approved by the regulatory 
agency (nutrient development plans and stormwater management plans 
under the Clean Water Act, respectively), served to establish binding 
requirements, compliance with which would automatically satisfy an 
underlying statutory or regulatory requirement. SSM plans are not 
binding requirements and, as explained above, adherence with an SSM 
plan does not necessarily establish compliance with the general duty 
requirement.
    Comment: One commenter wanted clarification on the relationship of 
the SSM plan requirements to title V, specifically what language should 
be included in the permit regarding the requirement to develop a plan. 
The commenter notes that Sec.  63.6(e)(3)(ix) explicitly refers to a 
title V requirement whereas other provisions do not; the comment 
suggests an edit to the paragraph that would clarify the provision.
    Response: The intent of Sec.  63.6(e)(3)(ix) was to ensure that the 
only requirement with respect to the title V permit was that an SSM 
plan be developed, that the elements of the plan are not to be 
incorporated into the permit, and that changes to the plan would not 
trigger a permit modification. The commenter's suggested edits are 
helpful and have been incorporated into the paragraph.

Conforming Changes to Other Subparts

    Comment: Several commenters supported the conforming changes to the 
other subparts with respect to the requirement to follow the plan. One 
commenter stated that EPA failed to explain its reason for changing 
specific part 63 subparts and how the changes would affect the specific 
source categories.
    Response: Although there was no explicit statement explaining why 
the other subparts were being amended, these changes were made merely 
to conform to the changes being made in the General Provisions. Many of 
the part 63 subparts repeated requirements in the General Provisions 
about following the SSM plan and had to be revised to be consistent 
with the changes to the General Provisions. Because the changes in the 
individual subparts are necessary for conformance with the General 
Provisions, we felt that no explanation was required.

Impacts

    Comment: One commenter stated that EPA failed to comply with 
Executive Order 12898 on Environmental Justice. The commenter asserts 
that the amendments will adversely affect minority and low income 
communities around the sources.
    Response: Executive Order 12898 establishes a Federal policy for 
incorporating environmental justice into Federal agency actions by 
directing agencies to identify and address, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies and activities on minority and low-
income populations. The EPA has considered the impact of the proposal 
on minority and low income populations. We do not believe that these 
amendments will have any adverse effects on emissions during periods of 
SSM. Therefore, there should not be any adverse impact on minority and 
low income populations as a result of these amendments. The amendments 
do not affect the underlying requirement to minimize emissions during 
SSM events. Owners or operators are still required to develop SSM plans 
to address emissions during these periods. They are required to report 
immediately when the plans are not followed and semiannually when the 
plans are followed and emission limitations are exceeded (or could have 
been in the case of malfunctions) and describe steps taken to minimize 
emissions. The only difference from current regulations is that the 
source is not required to follow the plan, especially when the 
situation may call for other action or when safety considerations 
override following the plan as written.
    Comment: One commenter stated that EPA failed to comply with 
Executive Order 13045 on Protection of Children for Environmental 
Health and Safety Risk. The commenter disagrees with EPA's position 
that the Executive Order only applies to regulations that are based on 
health or safety risks.
    Response: Executive Order 13045 does not apply to this proposal 
because, as is explained above, it does not change any emission 
standard, it is not economically significant and because it is not 
based on health and safety risks.

SSM Plan Availability

    Comment: There were numerous comments on SSM plan availability to 
permitting authorities and the public. Some governmental commenters 
stated that it is difficult to obtain SSM plans using section 114 of 
the Act, and that permitting authorities should not be required to 
obtain the information through a request made under section 114 of the 
Act. One commenter stated that part 63 does not clearly state that 
permitting authorities can request and receive copies of the plans and 
that the provisions should be amended to make this clear and to require 
that the plan be provided within 30 days. The commenter stated that 
state laws allowing access to information vary from state to state and 
are sometimes vague. Several industry commenters stated that SSM plans 
should be available only through CAA section 114 requests.
    Response: The existing part 63 regulations already require a source 
to (1) allow the permitting authority to inspect the SSM plan at the 
premises or (2) ``promptly'' submit the plan to the permitting 
authority if the permitting authority makes a written request for it. 
The regulations state that the ``Administrator may at any time request 
in writing that the owner or operator submit a copy of any startup, 
shutdown, and malfunction plan (or portion thereof) * * * [and] the 
owner or operator must promptly submit a copy of the requested plan (or 
a portion thereof) to the Administrator'' (Sec.  63.6(d)(3)(v)). The 
authority for this provision is section 114(a) of the Act.

[[Page 20451]]

However, there is no special procedure or order required; the 
Administrator or the permitting authority need only request the SSM 
plan in writing. The Administrator or permitting authority may also 
inspect and copy the SSM plan at the premises: ``The owner or operator 
must maintain at the affected source a current startup, shutdown, and 
malfunction plan and must make the plan available upon request for 
inspection and copying by the Administrator'' (Sec.  63.6(e)(3)(v)). 
The authority for this inspection provision is also section 114(a). 
Under section 114(b), states may develop and submit to the 
Administrator a procedure for carrying out section 114 in the state, 
and the Administrator may delegate his/her authority to the state. All 
permitting authorities that have obtained delegation of part 63 
standards have already demonstrated that they have state authority 
equivalent to section 114 to monitor, to inspect, and to obtain 
records, including SSM plans. Accordingly, permitting authorities 
should have no difficulty in obtaining plans. The underlying authority 
for the part 63 provisions allowing permitting authorities to inspect 
or obtain copies of SSM plans is based on section 114(a) or its state 
equivalent. Because all SSM plans are obtained under section 114(a) or 
its state equivalent, any plans so obtained must be available to the 
public under section 114(c) of the Act, which provides that any records 
obtained under section 114(a) ``shall be available to the public,'' 
with the exception of portions considered confidential.
    Comment: Several commenters agreed that permitting authorities 
should not be required to obtain SSM plans whenever a member of the 
public requests one. Other commenters disagreed and believed that any 
member of the public should be able to request an SSM plan. Several 
commenters thought the public should be able to review the plans to 
determine if emissions are minimized and argued that denying public 
access makes general duty unenforceable.
    Response: As discussed above, we do not believe that the details of 
SSM plans are compliance plans or are required to be available under 
title V. As discussed above, recordkeeping and reporting requirements 
will provide regulators and the public with adequate information 
concerning actions taken during periods of SSM. Permitting authorities 
can obtain and review plans as necessary, and all plans that are 
obtained will be available to the public subject to limitation on 
availability of CBI.
    Comment: Several commenters believed the proposal effectively cut 
off public access to plans.
    Response: We disagree. Public access to SSM plans is still 
available, in the case where the permitting authority has obtained a 
plan. We believe that most permitting authorities will request a plan 
from a source when presented with a reasonable request for the plan. 
There is no federal requirement to do so, however, and unless otherwise 
specified under state statute or regulations, state and local 
authorities have the discretion to obtain the plan upon public request.
    Comment: Several commenters argued that companies will not be 
responsive to requests for SSM plans from the public.
    Response: We recognize that some companies might choose not to 
respond to requests from the public. However, we hope and expect that 
other companies would indeed respond to public requests. Moreover, as 
explained above, the public may ask the permitting authority to obtain 
the SSM plan. Where the public has made a reasonable request, we 
believe that the permitting authority would likely be responsive and 
obtain the plan from the source. Because the authority to obtain such 
plan is based on section 114 of the Act or its state equivalent, any 
plan obtained by the permitting authority will be available to the 
public.
    Comment: Another commenter noted that the difficulty of 
``untangling'' SSM plans from facility operating procedures and CBI are 
not good reasons for restricting public access.
    Response: As stated earlier, all SSM plans obtained by the 
permitting authority are publicly accessible. We are sensitive to the 
effort involved by some sources to create a standalone SSM plan for 
submittal, but do not believe requiring all plans to be submitted 
automatically for review is justified. However, permitting authorities 
will obtain SSM plans as necessary, regardless of the burden imposed on 
the source to develop a standalone document.
    Comment: The same commenter maintained that the paperwork burden on 
permitting authorities also should not be a reason for not requiring 
submittal of SSM plans.
    Response: Permitting authorities may obtain any SSM plan that it 
wants. Thousands of sources are required to prepare SSM plans, and we 
believe the permitting authority should have the discretion to obtain 
those it feels are appropriate. For the reasons discussed above, we do 
not think it is necessary to impose a requirement that all plans be 
automatically submitted to the permitting authority, especially if this 
results in the permitting authority reallocating resources from 
enforcement and implementation to handling paper. We think it is best 
for the individual permitting authority to make that decision. If they 
so choose, they can routinely ask all sources to submit SSM plans.

Confidential Business Information (CBI)

    Comment: Two commenters noted that plans can be sanitized of their 
CBI-sensitive information prior to submittal to the permitting 
authority, but other commenters insisted that SSM plans not be released 
because of sensitive information. One commenter additionally noted that 
SSM plans may contain security-sensitive information and provide a 
roadmap to terrorists seeking to disrupt a facility.
    Response: Plans may be submitted with CBI identified; such 
submittals will be treated in accordance with requirements applicable 
to claims of CBI. We also agree that plans can be ``cleansed'' of CBI 
and other sensitive information and submitted. The public will have 
access to any non-CBI submittal and non-CBI portions of plans with CBI 
identified. This is what happens now.
    Comment: Some commenters stated that limiting public access to 
plans and removing the requirement to implement the SSM plan makes it 
difficult for the public to determine when an emission exceedance 
constitutes a violation of a MACT standard. These commenters also 
stated that reducing public access to SSM plans hinders citizen 
enforcement efforts.
    Response: These amendments do not change the ability of the public 
to determine when an emissions exceedance constitutes a violation of a 
MACT standard and shouldn't make enforcement of the general duty 
requirement more difficult. Plans previously available are still 
available for public review. Permitting authorities may obtain any SSM 
plan from any source and allow the public to examine it. Sources must 
report what procedures and actions it did take during periods of SSM if 
there was an exceedance of an emission limit (or could have been in the 
case of malfunctions). Such reports are also available to the public. 
As explained above, this information can be used by the public and the 
permitting authority to support enforcement efforts.

Reporting

    Comment: One commenter stated that without a requirement to 
implement SSM plans, the regulation should require reporting of all SSM 
events so that the general duty can be evaluated

[[Page 20452]]

for each event. Another commenter added that only those SSM events that 
exceeded the emission standards be reported.
    Response: We agree that all SSM events that exceed (or could have 
exceeded, in the case of malfunctions) the emission limitations be 
reported. We also agree that as long as the emission limitations are 
being met, SSM events need not be reported (except those malfunctions 
that could have exceeded the emission limitations), i.e., as long as 
the relevant standards are being met, there is no benefit to a 
reporting requirement in terms of assuring compliance with the general 
duty standard. We have made clarifying edits in the regulatory 
language.
    Comment: One commenter did not think that facilities should have to 
report whether or not they followed their SSM plan. Another commenter 
did not think sources should have to report immediately if the SSM plan 
was not followed.
    Response: We disagree. Information on whether or not an SSM plan 
was followed gives the permitting authority and the public information 
that can help them determine if further scrutiny of a source is in 
order. If the permitting authority has reviewed a source's SSM plan and 
determined that it is adequate, information that the source followed 
that plan during an SSM event could be helpful to the regulator in 
determining whether to investigate the event. Not following the plan 
may or may not indicate a problem, but such information would be very 
helpful to the permitting authority and the public in order to 
determine if additional scrutiny or investigation of the event is 
necessary. Immediate reporting if the plan was not followed is 
appropriate to alert the permitting authority and the public of a 
potential problem.
    Comment: One commenter questioned why SSM events still have to be 
reported as deviations if emission limitations do not apply.
    Response: The general duty to minimize emissions is the applicable 
requirement during SSM events. In order to effectively enforce this 
requirement, it is important to have information about SSM events that 
involve exceedances (or potential exceedances in the case of 
malfunctions) in order to determine whether further scrutiny is 
appropriate. Deviations do not necessarily equate to violations.

Recordkeeping

    Comment: Numerous commenters agreed with the elimination of certain 
recordkeeping requirements for startups and shutdowns when relevant 
emission standards are not exceeded. One commenter was not clear on how 
burden had been relieved; the commenter cites Sec.  63.6(e)(3)(iii) and 
asked what documentation was necessary.
    Response: The amendments and the clarifications we are promulgating 
today relieve the recordkeeping burden for startups and shutdowns that 
do not result in a exceedance of an emissions limitation.

Regulatory Language

    Comment: Several commenters pointed out that some subparts have 
their own SSM provisions and do not cite subpart A as the applicable 
requirements. The proposal should have not referenced subpart A but 
instead continued to reference the applicable provisions within their 
subparts.
    Response: We agree with the commenters and have made the suggested 
edits.
    Comment: Several commenters noted that the reference to Sec.  
63.6(e) instead of the requirement to follow the SSM plan was overly 
broad, and in fact should have referred more narrowly to the general 
duty to minimize emissions since that is the applicable requirement.
    Response: We agree with the commenters and have made the suggested 
edit to refer to Sec.  63.6(e)(1).
    Comment: One commenter suggested clarifying changes to ensure 
reporting and recordkeeping for startups and shutdowns is required only 
when the applicable emission limitation is exceeded.
    Response: We agree and have made the suggested edits. As explained 
above, as long as the standards are being attained there is no need to 
report.
    Comment: Several commenters recommended revising the definition for 
``malfunction'' in other subparts where it occurs to be consistent with 
the definition in subpart A. One commenter also suggested revising the 
general duty provision where it occurs in other subparts to be 
consistent with subpart A.
    Response: We agree this is appropriate for consistency and have 
revised the definitions and provisions accordingly.
    Comment: A couple of commenters recommended incorporating paragraph 
Sec.  63.6(e)(3)(ix) into the General Provisions applicability table in 
all of the applicable subparts.
    Response: We agree that Sec.  63.6(e)(3)(ix) should apply to all 
the applicable part 63 subparts. We have revised all of the applicable 
General Provisions applicability tables accordingly.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether this regulatory action is ``significant,'' and, 
therefore, subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines a 
``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 entitlement, 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, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. The EPA has submitted this action 
to OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., the OMB must clear any reporting and recordkeeping requirements 
that qualify as an information collection request (ICR) under the PRA.
    Approval of an ICR is not required in connection with these final 
amendments. This is because the General Provisions do not themselves 
require any reporting and recordkeeping activities, and no ICR was 
submitted in connection with their original promulgation or their 
subsequent amendment. Any recordkeeping and reporting requirements are 
imposed only through the incorporation of specific elements of the 
General Provisions in the individual MACT standards which are 
promulgated for

[[Page 20453]]

particular source categories which have their own ICRs. In any case, we 
believe that adoption of the amendments will not materially alter the 
burden imposed on affected sources through the incorporation of the 
General Provisions in individual MACT standards. We anticipate that any 
incremental changes in the recordkeeping and reporting burden estimate 
for individual MACT standards will be addressed in the context of the 
periodic renewal process required by the PRA.
    However, OMB has previously approved the information collection 
requirements contained in the existing regulations of 40 CFR parts 63 
and 65 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501, et seq. A copy of the OMB approved Information Collection Request 
(ICR) for any of the existing regulations may be obtained from Susan 
Auby, Collection Strategies Division; U.S. EPA (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460, or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; 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 EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with this final rule.
    For purposes of assessing the impacts of the final rule amendments 
on small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201 for each applicable subpart; (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 that is not dominant in its field.
    After considering the economic impacts of today's 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. In determining whether a rule has significant economic impact 
on a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives which minimize any significant 
economic impact on a substantial number of small entities (5 U.S.C. 
603-604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    Small entities that are subject to MACT standards would not be 
required to take any action under the final rule amendments; the 
amendments simply remove the requirement that sources must follow their 
SSM plan. However, we do not expect sources will address periods of SSM 
any differently than they do now.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess 
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 
1 year. Before promulgating a rule for which a written statement is 
needed, section 205 of the UMRA generally requires us 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 the 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.
    The 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 1 year. Thus, today's final 
rule amendments are not subject to sections 202 and 205 of the UMRA. 
The EPA has also determined that the final rule amendments contain no 
regulatory requirements that might significantly or uniquely affect 
small governments. Thus, today's final rule amendments are not subject 
to the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (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.''
    The final rule amendments do not have federalism implications and 
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. None of the affected 
facilities are owned or operated by State governments. Thus, Executive 
Order 13132 does not apply to the final rule amendments.

[[Page 20454]]

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

    Executive Order 13175 (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.'' The final rule amendments do not have 
tribal implications, as specified in Executive Order 13175. They will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to the final rule amendments.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) is determined to be ``economically significant,'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, 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.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. The final rule amendments 
are not subject to Executive Order 13045 because they are not 
``economically significant'' and are based on technology performance 
and not on health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    The final rule amendments are not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because they 
do not have an economically significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. The VCS are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, business practices) that are developed or adopted by VCS 
bodies. The NTTAA directs EPA to provide Congress, through the OMB, 
explanations when the Agency decides not to use available and 
applicable VCS.
    The final rule amendments do not involve technical standards. 
Therefore, EPA did not consider the use of any VCS.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a report containing 
the final rule 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 final rule in 
the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. The final rule 
amendments are not a ``major rule'' as defined by 5 U.S.C. 804(2). The 
final rule amendments are effective on April 20, 2006.

List of Subjects in 40 CFR Parts 63 and 65

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

    Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.


0
For the reasons cited in the preamble, title 40, chapter I, parts 63 
and 65 of the Code of Federal Regulations are amended as follows:

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

0
2. Section 63.6 is amended by:
0
a. Revising the first sentence in paragraph (e)(1)(ii);
0
b. Removing the first sentence in paragraph (e)(3)(i) introductory text 
and adding two new sentences in its place;
0
c. Removing and reserving paragr