[Federal Register Volume 63, Number 194 (Wednesday, October 7, 1998)]
[Rules and Regulations]
[Pages 53844-53847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26885]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 264 and 265

[FRL-6173-2]


Project XL Site-Specific Rulemaking for OSi Specialties, Inc., 
Sistersville, WV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical correction.

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SUMMARY: The EPA is implementing a project under the Project XL program 
for the OSi Specialties, Inc. plant, a wholly owned subsidiary of Witco 
Corporation, located near Sistersville, West Virginia (the 
``Sistersville Plant''). The terms of the XL project are defined in a 
Final Project Agreement (``FPA''). Following public review and comment, 
the FPA was signed by delegates from the EPA, the West Virginia 
Division of Environmental Protection (``WVDEP''), and Witco Corporation 
on October 17, 1997. The EPA published a final rule, applicable only to 
the Sistersville Plant, on September 15, 1998 (See 63 FR 49384). That 
action was a site-specific regulatory deferral from the Resource 
Conservation and Recovery Act (``RCRA'') organic air emission 
standards, commonly known as RCRA Subpart CC. The EPA expects this XL 
project to result in superior environmental performance at the 
Sistersville Plant, while deferring significant capital expenditures, 
and thus providing cost savings for the Sistersville Plant.
    Since publication of the final rule on September 15, 1998, it has 
come to the EPA's attention that the Federal Register notice contained 
a typographical error in the regulatory language that could result in 
some confusion regarding the time allowed for an owner or operator to 
conduct a performance test. Today's action makes the technical 
corrections to that published regulatory text.

EFFECTIVE DATE: This technical correction to the final rule is 
effective on October 7, 1998.

ADDRESSES: Docket. Three dockets contain supporting information used in 
developing the September 15, 1998 published final rule, and are 
available for public inspection and copying at the EPA's docket office 
located at Crystal Gateway, 1235 Jefferson Davis Highway, First Floor, 
Arlington, Virginia. The public is encouraged to phone in advance to 
review docket materials. Appointments can be scheduled by phoning the 
Docket Office at (703) 603-9230. Refer to RCRA docket numbers F-98-
MCCP-FFFFF, F-98-MCCF-FFFFF, and F-98-MCCA-FFFFF.
    A duplicate copy of each docket is available for inspection and 
copying at U.S. EPA, Region 3, 1650 Arch Street, Philadelphia, PA, 
19103-2029, during normal business hours. Persons wishing to view a 
duplicate docket at the Philadelphia location are encouraged to contact 
Mr. Tad Radzinski in advance, by telephoning (215) 814-2394.

FOR FURTHER INFORMATION CONTACT: Mr. Tad Radzinski, U.S. Environmental 
Protection Agency, Region 3 (3WC11), Waste and Chemicals Management 
Division, 1650 Arch Street, Philadelphia, PA, 19103-2029, (215) 814-
2394.


[[Page 53845]]


SUPPLEMENTARY INFORMATION:

Outline

    The information presented in this preamble is organized as follows:
I. Authority
II. Background
    A. Overview of Project XL
    B. Overview of the OSi Sistersville Plant XL Project
III. Administrative Requirements
    A. Docket
    B. Paperwork Reduction Act
    C. Executive Order 12866
    D. Regulatory Flexibility
    E. Unfunded Mandates Reform Act
    F. Executive Order 13045
    G. National Technology Transfer and Advancement Act
    H. Enhancing the Intergovernmental Partnership Under Executive 
Order 12875
    I. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    J. Submission to Congress and the General Accounting Office
    K. Pollution Prevention Act
    L. Immediate Effective Date

I. Authority

    This regulation is being published under the authority of sections 
1006, 2002, 3001-3007, 3010, and 7004 of the Solid Waste Disposal Act 
of 1970, as amended by the Resource Conservation and Recovery Act, as 
amended (42 U.S.C. 6905, 6912, 6921-6927, 6930, and 6974).

II. Background

A. Overview of Project XL

    The site-specific regulation published on September 15, 1998, 
implements a project developed under Project XL, an EPA initiative to 
allow regulated entities to achieve better environmental results at 
less cost. Project XL--``excellence and Leadership''--was announced on 
March 16, 1995, as a central part of the National Performance Review 
and the EPA's effort to reinvent environmental protection (See 60 FR 
27282, May 23, 1995). Project XL provides a limited number of private 
and public regulated entities an opportunity to develop their own pilot 
projects to provide regulatory flexibility that will result in 
environmental protection that is superior to what would be achieved 
through compliance with current and reasonably anticipated future 
regulations.

B. Overview of the OSi Sistersville Plant XL Project

    The EPA is implementing a project under the Project XL program for 
the OSi Specialties, Inc. plant, a wholly owned subsidiary of Witco 
Corporation, located near Sistersville, West Virginia (the 
``Sistersville Plant''). The terms of the XL project are defined in a 
Final Project Agreement (``FPA''). Following public review and comment, 
the FPA was signed by delegates from the EPA, the West Virginia 
Division of Environmental Protection (``WVDEP'') and Witco Corporation 
on October 17, 1997. The EPA published a final rule, applicable only to 
the Sistersville Plant, on September 15, 1998 (See 63 FR 49384). That 
action was a site-specific regulatory deferral from the Resource 
Conservation and Recovery Act (``RCRA'') organic air emission 
standards, commonly known as RCRA Subpart CC. The air emission and 
waste management requirements are set forth in the September 15, 1998 
final rule, which was intended to provide site-specific regulatory 
changes to implement this XL project. The EPA expects this XL project 
to result in superior environmental performance at the Sistersville 
Plant, while deferring significant capital expenditures, and thus 
providing cost savings for the Sistersville Plant.
    Following publication of the final rule on September 15, 1998, it 
came to the EPA's attention that the Federal Register notice contained 
a typographical error in the regulatory language that could result in 
some confusion regarding the time allowed for an owner or operator to 
conduct a performance test. Paragraphs (f)(2)(ii)(B)(1) of the subpart 
CC--Air Emission Standards for Tanks, Surface Impoundments, and 
Containers, in both 40 CFR part 264 and 265, contained a typographical 
error as published on September 15, 1998 at 63 FR 49392 and 63 FR 
49400. As published in the Federal Register, paragraph (f)(2)(ii)(B)(1) 
stated that ``Within sixty (120) days after thermal incinerator initial 
start-up, the Sisterville Plant shall conduct a performance test . . 
.'' In compiling the regulatory language for the September 15 final 
rule, both numbers were inadvertently included; one in text and the 
other numerically. It was the EPA's intent that the plant have 120 days 
to perform the test rather than sixty (60) days. This intent is 
indicated in the September 15, 1998 final rule preamble at 63 FR 49387, 
where EPA explains that the proposed initial performance test deadline 
of 60 days is being extended by 60 days. Today's action makes the 
necessary technical corrections to the regulatory text in both parts 
264 and 265 in order to correct the regulatory text and clarify that 
120 days are allowed for the performance test.

III. Administrative Requirements

A. Docket

    Three RCRA dockets contain supporting information pertaining to 
today's action and the September 15, 1998 published rulemaking: (1) 
RCRA docket number F-98-MCCP-FFFFF; (2) RCRA docket number F-98-MCCF-
FFFFF, and (3) RCRA docket number F-98-MCCA-FFFFF. The public may 
review all materials in these dockets at the EPA RCRA Docket Office 
located at Crystal Gateway, 1235 Jefferson Davis Highway, First Floor, 
Arlington, Virginia. Hand delivery of items and review of docket 
materials are made at the Virginia address. The public must have an 
appointment to review docket materials. Appointments can be scheduled 
by calling the Docket Office at (703) 603-9230. The mailing address for 
the RCRA Docket Office is RCRA Information Center (5305W), 401 M Street 
SW, Washington, DC 20460. The Docket Office is open from 9 a.m. to 4 
p.m., Monday through Friday, except for Federal holidays.
    A duplicate copy of each docket is available for inspection and 
copying at U.S. EPA, Region 3, 1650 Arch Street, Philadelphia, PA, 
19103-2029, during normal business hours. Persons wishing to view a 
duplicate docket at the Philadelphia location are encouraged to contact 
Mr. Tad Radzinski in advance, by telephoning (215) 814-2394.

B. Paperwork Reduction Act

    This technical correction action applies only to one company, and 
requires no information collection activities subject to the Paperwork 
Reduction Act; therefore, no information collection request (ICR) will 
be submitted to OMB for review in compliance with the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq.

C. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether the proposed regulatory action is 
``significant'' and, therefore, subject to the Office of Management and 
Budget (OMB) review and the requirements of the Executive Order. The 
Executive Order defines ``significant regulatory action'' as one that 
is likely to lead to 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 in State, local, or tribal governments or communities;

[[Page 53846]]

    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Executive Order 12866 does not cover rules of particular 
applicability. As a result, this action does not fall within the scope 
of the Executive Order.

D. Regulatory Flexibility

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), as amended, Publication No. L. 104-121, 110 Stat. 847, 
the EPA certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because it only 
affects one facility, the OSi Sistersville Plant, located near 
Sistersville, West Virginia. The Sistersville Plant is not a small 
entity, and therefore no initial regulatory flexibility analysis under 
section 604(a) of the Act is required.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), Public Law 104-4, the EPA must prepare a 
budgetary impact statement to accompany any proposed or final rule that 
includes a Federal mandate that may result in estimated costs to State, 
local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under section 205, the EPA must select 
the most cost-effective and least burdensome alternative that achieves 
the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires the EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    As noted previously, the rule is applicable only to the 
Sistersville Plant, located near Sistersville, West Virginia. The EPA 
has determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. The EPA has 
also determined that the rule does not contain a Federal mandate that 
may result in expenditures of $100 million or more for State, local, 
and tribal governments, in the aggregate, or the private sector in any 
one year. Thus, today's technical correction notice is not subject to 
the requirements of sections 202 and 205 of the UMRA.

F. Executive Order 13045

    Executive Order 13045 applies to any rule that EPA determines (1) 
economically significant as defined under E.O. 12866, and (2) the 
environmental health or safety risk addressed by the rule has 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.
    This technical correction notice is not subject to E.O. 13045, 
entitled Protection of Children from Environmental Health Risks and 
Safety Risks (62 FR 19885, April 23, 1997), because it is not an 
economically significant regulatory action as defined by E.O. 12866 and 
does not involve decisions based on environmental health or safety 
risks.

G. National Technology Transfer and Advancement Act

    Under Sec. 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), the Agency is required to use voluntary 
consensus standards in its regulatory and procurement activities unless 
to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(such as materials specifications, test methods, sampling procedures, 
and business practices) which are developed or adopted by voluntary 
consensus standard bodies. Where available and potentially applicable 
voluntary consensus standards are not used by EPA, the Act requires the 
Agency to provide Congress, through the OMB, an explanation of the 
reasons for not using such standards. Today's notice does not put forth 
any technical standards as part of the clarifying amendments; 
therefore, consideration of voluntary consensus standards was not 
required.

H. Enhancing the Intergovernmental Partnership Under Executive Order 
12875

    Under Executive Order 12875, the EPA may not issue a regulation 
that is not required by statute and that creates a mandate upon a 
State, local, or tribal government, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by those governments. If the mandate is unfunded, EPA must 
provide the OMB a description of the extent of EPA's prior consultation 
with representatives of affected State, local, and tribal governments, 
the nature of their concerns, copies of any written communications from 
the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's technical correction notice does not create a mandate on 
State, local or tribal governments. The notice does not impose any new 
or additional enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this action.

I. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statue, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's document does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this action.

J. Submission to Congress and the General Accounting Office

    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

[[Page 53847]]

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 prior to publication of the 
rule in the Federal Register. A major rule cannot take effect until 60 
days after it is published in the Federal Register. The EPA is not 
required to submit a rule report regarding today's document under 
Section 801 because this is a notice of particular applicability.

K. Pollution Prevention Act

    The Pollution Prevention Act of 1990 states that pollution should 
be prevented or reduced at the source whenever feasible. Today's 
technical correction notice in no way affects the pollution prevention 
alternatives and measures previously incorporated into the final 
subpart CC rules.

L. Immediate Effective Date

    The EPA has determined to make today's notice effective 
immediately. The EPA believes that the corrections being made in 
today's notice are corrections of obvious errors in the published rules 
(i.e., typographical errors). Comment on such changes is unnecessary, 
within the meaning of 5 USC 553(b)(3)(B).

List of Subjects in 40 CFR Parts 264 and 265

    Environmental protection, Air pollution control, Control device, 
Hazardous waste, Monitoring, Reporting and recordkeeping requirements, 
Surface impoundment, TSDF, Waste determination.

    Dated: September 29, 1998.
Jay Benforado,
Acting Associate Administrator, Office of Reinvention.

    For the reasons set forth in the preamble, parts 264 and 265 of 
chapter I of title 40 of the Code of Federal Regulations are amended as 
follows:

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

Subpart CC--Air Emission Standards for Tanks, Surface Impoundments, 
and Containers

    2. Section 264.1080 is amended by revising paragraph 
(f)(2)(ii)(B)(1) to read as follows:


Sec. 264.1080  Applicability.

* * * * *
    (f) * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (1) Within 120 days after thermal incinerator initial start-up, the 
Sistersville Plant shall conduct a performance test to determine the 
minimum temperature at which compliance with the emission reduction 
requirement specified in paragraph (f)(4) of this section is achieved. 
This determination shall be made by measuring TOC minus methane and 
ethane, according to the procedures specified in paragraph 
(f)(2)(ii)(B) of this section.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    3. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, and 6935.

Subpart CC--Air Emission Standards for Tanks, Surface Impoundments, 
and Containers.

    4. Section 265.1080 is amended by revising paragraph 
(f)(2)(ii)(B)(1) to read as follows:


Sec. 265.1080  Applicability.

* * * * *
    (f) * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (1) Within 120 days after thermal incinerator initial start-up, the 
Sistersville Plant shall conduct a performance test to determine the 
minimum temperature at which compliance with the emission reduction 
requirement specified in paragraph (f)(4) of this section is achieved. 
This determination shall be made by measuring TOC minus methane and 
ethane, according to the procedures specified in paragraph 
(f)(2)(ii)(B) of this section.
* * * * *
[FR Doc. 98-26885 Filed 10-6-98; 8:45 am]
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