[Federal Register Volume 71, Number 56 (Thursday, March 23, 2006)]
[Proposed Rules]
[Pages 14665-14673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2703]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0022; FRL-8047-6]
RIN 2050-AG29


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On October 12, 2005, EPA promulgated national emission 
standards for hazardous air pollutants (NESHAP) for new and existing 
hazardous waste combustors. Subsequently, the Administrator received 
four petitions for reconsideration of the final rule. In this proposed 
rule, EPA is granting reconsideration of one issue in the petitions 
submitted by Ash Grove Cement Company and the Cement Kiln Recycling 
Coalition: The new source standard for particulate matter (PM) for 
cement kilns that burn hazardous waste. We are requesting comment on a 
revised new source particulate matter standard for cement kilns. We are 
also requesting comment on corresponding changes to the new source 
particulate matter standards for incinerators and liquid fuel boilers.

DATES: Comments. Written comments must be received by April 24, 2006, 
unless a public hearing is requested by April 3, 2006. If a hearing is 
requested, written comments must be received by May 8, 2006.
    Public Hearing. If anyone contacts EPA requesting to speak at a 
public hearing by April 3, 2006, we will hold a public hearing on April 
7, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0022, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-566-1741.
     Mail: U.S. Postal Service, send comments to: HQ EPA Docket 
Center (6102T), Attention Docket ID No. EPA-HQ-OAR-2004-0022, 1200

[[Page 14666]]

Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies. We request that you also send a separate copy of each 
comment to the contact person listed below (see FOR FURTHER INFORMATION 
CONTACT).
     Hand Delivery: In person or by courier, deliver comments 
to: HQ EPA Docket Center (6102T), Attention Docket ID No. EPA-HQ-OAR-
2004-0022, 1301 Constitution Avenue, NW., Room B-108, Washington, DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. Please include a total of two copies. 
We request that you also send a separate copy of each comment to the 
contact person listed below (see FOR FURTHER INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0022. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or e-mail. The www.regulations.gov website is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. We also request that interested parties who would 
like information they previously submitted to EPA to be considered as 
part of this reconsideration action identify the relevant information 
by docket entry numbers and page numbers.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the HQ EPA 
Docket Center, Docket ID No. EPA-HQ-OAR-2004-0022, EPA West Building, 
Room B-102, 1301 Constitution Ave., NW., Washington, DC 20004. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The HQ EPA Docket Center telephone 
number is (202) 566-1742. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744. A 
reasonable fee may be charged for copying docket materials.
    Public Hearing. If a public hearing is requested, it will be held 
at 10 a.m. at EPA's Crystal Station office building, 2800 Crystal 
Drive, Arlington, Virginia, or at an alternate site in the Washington 
DC metropolitan area. Persons interested in presenting oral testimony 
or inquiring as to whether a hearing is to be held should contact Mr. 
Frank Behan, EPA, at telephone number (703) 308-8476 or at e-mail 
address: [email protected], at least two days in advance of the 
potential date of the public hearing. Persons interested in attending 
the public hearing also must call Mr. Behan to verify the time, date, 
and location of the hearing.

FOR FURTHER INFORMATION CONTACT: For more information on this 
rulemaking, contact Frank Behan at (703) 308-8476, or 
[email protected], Office of Solid Waste (MC: 5302W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION: Worldwide Web (WWW). In addition to being 
available in the docket, an electronic copy of today's proposed rule 
will also be available on the WWW at http://www.epa.gov/hwcmact.
    Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

Table of Contents

I. General Information
    A. What Is the Source of Authority for the Reconsideration 
Action?
    B. What Entities Are Potentially Affected by the Reconsideration 
Action?
II. Background
III. Today's Action
IV. Reconsideration of Particulate Matter Standards
    A. Background on the Particulate Matter Floor
    B. What Changes Are Being Proposed to the Particulate Matter 
Standard?
    C. What Changes to the Compliance Date Provisions Are Being 
Proposed for the Revised Standards?
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism

[[Page 14667]]

    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. What Is the Source of Authority for the Reconsideration Action?

    The statutory authority for this action is provided by sections 112 
and 307(d)(7)(B) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412 
and 7607(d)(7)(B)). This action also is subject to section 307(d) of 
the CAA (42 U.S.C. 7607(d)).

B. What Entities Are Potentially Affected by the Reconsideration 
Action?

    Categories and entities potentially affected by this action 
include:

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                                                                                     Examples of potentially
                Category                      NAICS code          SIC code             regulated entities
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Any industry that combusts hazardous                 562211               4953  Incinerator, hazardous waste.
 waste as defined in the final rule.
                                                     327310               3241  Cement manufacturing, clinker
                                                                                 production.
                                                     327992               3295  Ground or treated mineral and
                                                                                 earth manufacturing.
                                                        325                 28  Chemical Manufacturers.
                                                        324                 29  Petroleum Refiners.
                                                        331                 33  Primary Aluminum.
                                                        333                 38  Photographic equipment and
                                                                                 supplies.
                                              488, 561, 562                 49  Sanitary Services, N.E.C.
                                                        421                 50  Scrap and waste materials.
                                                        422                 51  Chemical and Allied Products,
                                                                                 N.E.C.
                                             512, 541, 561,                 73  Business Services, N.E.C.
                                                        812                 89  Services, N.E.C.
                                             512, 514, 541,                 95  Air, Water and Solid Waste
                                                                                 Management.
                                                        711
                                                        924
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be impacted by this 
action. This table lists examples of the types of entities EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed could also be affected. To determine whether your 
facility, company, business, organization, etc., is affected by this 
action, you should examine the applicability criteria in 40 CFR 
63.1200. If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

    Section 112 of the CAA requires that we establish NESHAP for the 
control of hazardous air pollutants (HAP) from both new and existing 
major sources. Major sources of HAP are those stationary sources or 
groups of stationary that are located within a contiguous area under 
common control that emit or have the potential to emit considering 
controls, in the aggregate, 10 tons per year (tpy) or more of any one 
HAP or 25 tpy or more of any combination of HAP. The CAA requires the 
NESHAP to reflect the maximum degree of reduction in emissions of HAP 
that is achievable. This level of control is commonly referred to as 
MACT (for Maximum Achievable Control Technology).
    The MACT floor is the minimum control level allowed for NESHAP and 
is defined under section 112(d)(3) of the CAA. In essence, the MACT 
floor ensures that the standards are set at a level that assures that 
all major sources achieve the level of control at least as stringent as 
that already achieved by the better-controlled and lower-emitting 
sources in each source category or subcategory. For new sources, the 
MACT floor cannot be less stringent than the emission control that is 
achieved in practice by the best-controlled similar source. The MACT 
standards for existing sources can be less stringent than standards for 
new sources, but they cannot be less stringent than the average 
emission limitation achieved by the best-performing 12 percent of 
existing sources in the category or subcategory for which the 
Administrator has emissions information (where there are 30 or more 
sources in a category or subcategory).
    In developing MACT standards, we also must consider control options 
that are more stringent than the floor. We may establish standards more 
stringent than the floor based on the consideration of the cost of 
achieving the emissions reductions, any health and environmental 
impacts, and energy requirements. We call these standards beyond-the-
floor standards.
    We proposed NESHAP for hazardous waste combustors on April 20, 2004 
(69 FR 21198), and we published the final rule on October 12, 2005 (70 
FR 59402). The preamble for the proposed rule described the rationale 
for the proposed rule and solicited public comments. We received over 
75 public comment letters on the proposed hazardous waste combustor 
rule. Comments were submitted by industry trade associations, owners 
and operators of hazardous waste combustors, environmental groups, and 
State regulatory agencies and their representatives. We summarized the 
major public comments on the proposed rule and our responses to public 
comments in the preamble to the final rule and in a separate, 
supporting ``response to comments'' document. See 70 FR at 59426 and 
docket items EPA-HQ-OAR-2004-0022-0437 through 0445.
    Following promulgation of the hazardous waste combustor final rule, 
the Administrator received four petitions for reconsideration pursuant 
to section 307(d)(7)(B) of the CAA from Ash Grove Cement Company, the 
Cement Kiln Recycling Coalition (CKRC), the Coalition for Responsible 
Waste Incineration (CRWI), and the Sierra Club.\1\ Under this section 
of the

[[Page 14668]]

CAA, the Administrator is to initiate reconsideration proceedings if 
the petitioner can show that it was impracticable to raise an objection 
to a rule within the public comment period or that the grounds for the 
objection arose after the public comment period.
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    \1\ These petitions are included in the docket supporting this 
proposal. See items EPA-HQ-OAR-2004-0022-0516 thru 0519. EPA also 
received petitions from Ash Grove Cement Company and the CKRC, 
Continental Cement Company, and Giant Cement Holding, Inc. 
requesting that we stay the effective date of the particulate matter 
standard for new cement kilns. See items EPA-HQ-OAR-2004-0022-0521 
and 0523. As published elsewhere in today's Federal Register, EPA is 
issuing an administrative stay of this standard for three months 
while we reconsider the issue. In addition, five petitions for 
judicial review of the final rule were filed with the U.S. Court of 
Appeals for the District of Columbia by the following entities: Ash 
Grove Cement Company, CKRC, CRWI, the Environmental Technology 
Council, and the Sierra Club.
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    Ash Grove Cement Company and CKRC both are requesting that EPA 
reconsider the same three issues: The particulate matter standard for 
new cement kilns, references to Performance Specification 11 and 
Procedure 2 of Appendix B to 40 CFR part 60 in the particulate matter 
detector system provisions, and preamble statements concerning burning 
for energy recovery. The CRWI is requesting that EPA reconsider the 
procedure used to identify the MACT floor for mercury and low volatile 
metals for new source incinerators where there was a tie in ranking 
sources to determine the best performing source.
    Sierra Club is requesting that EPA reconsider several aspects of 
the final rule. They include our decisions to subcategorize 
incinerators with and without dry air pollution control devices, 
subcategorize the liquid fuel boiler source category, base the mercury 
standard for cement kilns on industry-submitted data, correct total 
chlorine data to address potential bias in the stack measurement 
method, use particulate matter as a surrogate for the nonenumerated HAP 
metals (i.e., antimony, cobalt, manganese, nickel, and selenium), use 
carbon monoxide and hydrocarbons as surrogates both for dioxin/furans 
and for non-dioxin/furan organic HAPs, and use variability factors in 
identifying MACT floors. Sierra Club also requests that EPA reconsider 
the dioxin/furan MACT floor for cement kilns and incinerators, several 
beyond-the-floor analyses, and the health-based compliance alternatives 
for total chlorine.

III. Today's Action

    Today, we are granting reconsideration of one issue--the 
particulate matter standard for new cement kilns--raised in the 
petitions both of Ash Grove Cement Company and CKRC. We agree that it 
was impracticable for interested parties to raise concerns about one 
aspect of the particulate matter standard for new cement kilns until 
after the public comment period when the particulate matter standard 
was promulgated. Although we believe we provided adequate notice and 
opportunity to comment on the methodology used to determine the 
particulate matter analysis and the approach used to quantify test-to-
test variability for fabric filters (baghouses) using a universal 
variability factor (see 69 FR at 21225; 70 FR at 59437, 59447-59450), 
it appears that there was legitimate confusion regarding whether we 
would base the new source standard on data from Ash Grove Cement's 
Chanute, Kansas facility.
    Moreover, we also agree that it appears that the promulgated new 
source standard for particulate matter for cement kilns is overly 
stringent in that it does not fully reflect the variability of the best 
performing source over time (the ``emission control that is achieved in 
practice,'' using the language of section 112(d)(3)). Additional 
performance data submitted by the petitioners for Ash Grove Cement's 
Chanute, Kansas facility \2\ support this conclusion. The specific 
point of contention is our use of particulate matter emissions data 
from this source as the basis of the new source standard for cement 
kilns (i.e., the single best performing source). The petitioners state 
that EPA used emissions data from this source that were not 
representative of the source's performance over time (as evidenced by 
their additional data submission).
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    \2\ All references in this notice to emissions data from Ash 
Grove Cement Company pertain to the cement plant located in Chanute, 
Kansas.
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    For the reasons set out in the following section of this preamble, 
we believe it is appropriate to grant reconsideration to provide the 
public with the opportunity to comment on a revised particulate matter 
standard for new cement kilns, and on corresponding revisions to the 
particulate matter standards for new incinerators and liquid fuel 
boilers.
    We are not addressing at this time the two remaining issues in the 
petitions of Ash Grove Cement Company and CKRC or any of the issues in 
the petitions for reconsideration of CRWI and Sierra Club. We will 
notify petitioners by letter or in a future Federal Register notice of 
our decision whether to grant or deny the remaining issues raised by 
these petitions. We are consequently not accepting comments at this 
time on the remaining petition for reconsideration issues.

IV. Reconsideration of Particulate Matter Standards

A. Background on the Particulate Matter Floor

    In the notice of proposed rulemaking, we described methodologies 
used to determine MACT floors for HAP, including the air pollution 
control technology approach used specifically for particulate matter 
(which is a surrogate for HAP metal). 69 FR at 21223-233. We discussed 
how we selected representative data for each source so that we could 
identify the best performing sources for existing sources (and the 
single best performing source for new sources) and how we calculated 
the MACT floor levels for each HAP for each source category. We also 
described how emissions variability was accounted for by the proposed 
floor methodology. This included a universal variability factor (UVF) 
that was used only for the particulate matter standard to address long-
term variability in particulate matter emissions of sources using 
fabric filters.\3\ After identifying floor levels, we considered 
beyond-the-floor standards for each HAP. The results of considering 
control options that are more stringent than the floor level are 
discussed in Part Four, Sections VII-XII of the proposed rule. For 
example, the beyond-the-floor discussion for particulate matter for 
cement kilns can be found at 69 FR at 21254.
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    \3\ It is important to note that the UVF relationship is not 
developed for each source category, but is based on relevant data 
from all hazardous waste combustor source categories. 70 FR at 
59459-450 and ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards,'' September 2005, Sections 
5.3 and 7.4. Therefore, changes in the data underlying the UVF 
relationship can result in changes to the particulate matter 
standards for all source categories.
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    We also briefly discussed available particulate matter data from 
Ash Grove Cement's Chanute, Kansas kiln in the proposed rule. In the 
context of our discussion on whether it is appropriate to use emissions 
data from sources that tested after retrofitting their emission control 
systems to meet the emission standards promulgated in September 1999 
(and since vacated and replaced by the February 2002 Interim 
Standards), we stated that ``we did not consider emissions data from 
Ash Grove Cement Company'' and that ``[w]e judged these data are 
inappropriate for consideration for the floor analysis for existing 
sources.'' 69 FR at 21217 n. 35. While the proposal was thus clear that 
available data from Ash Grove Cement would not be used in the floor 
analysis for existing sources, we did not state whether or not these 
data would be

[[Page 14669]]

evaluated in the new source floor analysis. We in fact did not use the 
emissions data from Ash Grove Cement in the proposal for either the 
existing source or new source floor analyses.\4\
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    \4\ See USEPA, ``Draft Technical Support Document for HWC MACT 
Standards, Volume III: Selection of MACT Standards,'' March 2004, 
Appendix F (APCD Approach Results Tables), Table APCD-CK-PM, docket 
item EPA-HQ-OAR-2004-0022-0039.
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    In the final rule, we adopted the same floor methodology to 
determine floor levels for particulate matter. The preamble to the 
final rule also presented a summary of our response to significant 
comments regarding the methodology we used to ascertain floor levels 
for the particulate matter standards (termed the `air pollution control 
technology methodology'). 70 FR at 59447. The emissions data from Ash 
Grove Cement were considered when calculating the particulate matter 
MACT floors for new cement kilns, but were not used in calculating the 
existing source particulate matter MACT floor. 70 FR at 59419. As 
explained in the response to comments document, this is because we 
concluded that the cement kiln operated by Ash Grove Cement meets the 
definition of a new source under CAA section 112(a)(10).\5\
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    \5\ See USEPA, ``Response to Comments on April 20, 2004 HWC MACT 
Proposed Rule, Volume I: MACT Issues,'' September 2005, Section 
1.3.3, docket item EPA-HQ-OAR-0022-0440.
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    The petitioners explain that the data EPA used (i.e., Ash Grove 
Cement's Chanute, Kansas data) in the analysis were obtained when the 
baghouse and filter bags were new and not representative of the 
source's performance over time. Petitioners present more recent data 
documenting that, in fact, the source's performance has degraded as 
expected from initial operations. As a result, the petitioners claim 
that the promulgated particulate matter standard for new sources--
0.0023 gr/dscf--is unachievable once a kiln with a new baghouse system 
operates for any appreciable time, even for kilns equipped with the 
best controls and employing the best maintenance procedures in the 
cement industry. This unique situation--the use of data from a facility 
when both the fabric filter bags and baghouse structure were new--
produced performance data that cannot be achieved when the filter bags 
and baghouse are not new (e.g., after the first year or so). The 
petitioners submitted additional particulate matter performance data 
from Ash Grove Cement taken after the initial ``break-in period'' that 
they claim supports their position. These data are shown in Table 1 
below.

 Table 1.--Particulate Matter Performance Data of Ash Grove Cement After
                       First Year of Operation \6\
------------------------------------------------------------------------
                                                           PM emissions
                        Test date                            (gr/dscf)
------------------------------------------------------------------------
December 4, 2003........................................          0.0051
December 5, 2003........................................          0.0072
September 8, 2004.......................................          0.0022
September 9, 2004.......................................          0.0007
November 15, 2005.......................................          0.0074
November 15, 2005.......................................          0.0080
November 15, 2005.......................................          0.0026
November 16, 2005.......................................          0.0042
November 16, 2005.......................................          0.0031
November 16, 2005.......................................          0.0032
November 17, 2005.......................................          0.0025
November 17, 2005.......................................          0.0010
November 17, 2005.......................................          0.0016
------------------------------------------------------------------------

    The petitioners claim that these data show that the promulgated 
particulate matter standard of 0.0023 gr/dscf is unachievable when the 
fabric filter bags and baghouse structure are not new.\7\ Table 1 shows 
that Ash Grove Cement--the single best performing source and basis of 
the new source particulate matter standard in the final rule--would 
only achieve the emissions standard in four of the 13 runs measured 
after the initial break-in period. The petition documents that the 
source was properly operating the emission control equipment when these 
subsequent tests were conducted. We also regard the operating 
conditions of the new data to be comparable to those under which the 
initial tests were done because fabric filter particulate matter 
reduction is relatively independent of inlet loadings to the fabric 
filter.\8\ Thus, the levels of ash in the hazardous waste and the 
feedrate of raw materials do not significantly affect particulate 
matter emissions from cement kilns equipped with baghouses because 
these control devices are not sensitive to particulate matter inlet 
loadings.
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    \6\ For an evaluation of the additional data submitted by the 
petitioners, see USEPA, ``Draft Technical Support Document for HWC 
MACT Standards--Reconsideration of the New Source Particulate Matter 
Standard for Cement Kilns,'' March 2006.
    \7\ Note that the 0.0023 gr/dscf standard is based on average 
emissions of 0.0010 gr/dscf obtained during the first year of 
operation.
    \8\ USEPA, ``Technical Support Document for the HWC MACT 
Standards, Volume I: Description of Source Categories,'' September 
2005, Section 3.2.2.
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B. What Changes Are Being Proposed to the Particulate Matter Standard?

    We agree with the petitioners that it appears that the promulgated 
standard of 0.0023 gr/dscf is overly stringent for cement kilns in that 
it does not fully reflect the variability of the best performing source 
over time once fabric filters and baghouse structures are no longer in 
a new condition.\9\ The data submitted by the petitioner appear to 
better represent ``the emission control achieved in practice'' (section 
112(d)(3) of the CAA). See Mossville Environmental Action Now v. EPA, 
370 F. 3d 1232, 1242 (D.C. Cir. 2004). As a result, we are proposing to 
substitute the data submitted by the petitioner for Ash Grove Cement 
for the particulate matter data used in the final rule. This would lead 
to this source's performance for particulate matter (i.e., the upper 
99th percentile prediction limit) being 0.0075 gr/dscf, derived using 
the air pollution control device approach and a revised universal 
variability factor relationship (i.e., to account for the new Ash Grove 
Cement data) to model particulate matter performance and fabric filter 
variability.\10\ This performance is actually slightly worse than that 
achieved by two other cement kilns, Giant Cement Holding, Inc. (Giant 
Cement) in Harleyville, South Carolina, and Lafarge North America in 
Paulding, Ohio. As a result, the Ash Grove Chanute kiln is no longer 
the single best performing source, and we would instead base the 
particulate matter floor standard for new cement kilns on the 
performance of Giant Cement, which achieved an upper 99th percentile 
prediction limit of 0.0069 gr/dscf.\11\
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    \9\ Based on available information, we believe that the data 
from Ash Grove Cement are the only instance in our emissions data 
base where we had a source in a completely new condition. Thus, we 
do not believe this precise issue arises for other standards.
    \10\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards,'' September 2005, Sections 
5.3 and 7.4, docket item EPA-HQ-OAR-2004-0022-0453.
    \11\ USEPA, ``Draft Technical Support Document for HWC MACT 
Standards--Reconsideration of the Particulate Matter Standard,'' 
January 2006, Section 4.0.
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    As just noted, our methodology for calculating floors for 
particulate matter involves use of a universal variability factor 
(UVF), obtained by relating the test-to-test variability (i.e., 
standard deviation) of the best performing fabric filters to emission 
concentration.\12\ In the final rule, data from the Ash Grove Cement 
kiln, as one of the best performing kilns, were used as part of this 
pool of data from best performing sources. Because Ash Grove's fabric 
filter remains one of the best performing fabric filters after its 
performance is

[[Page 14670]]

recalculated, we have used the data submitted by the petitioner in the 
UVF data pool even though it technically is no longer a MACT pool 
fabric filter.\13\ Nonetheless, the recalculated level of performance 
(and the variability in the new data used to calculate that level) 
would result in a slight change to the UVF which in turn would result 
in slight changes to two other particulate matter floors since the UVF 
was used for all particulate matter standards. The revised floor 
analysis results for particulate matter are presented in Table 2 
below.\14\ As shown in the table, only three floor levels would change 
from levels presented in the final rule. The replacement of the 
unrepresentative Ash Grove Cement data with the petitioner-submitted 
data not only changes the particulate matter standard for new cement 
kilns, but also would result in minor changes to the new source 
incinerator and new source liquid fuel boiler particulate matter floor 
levels. We request comment on the revised floor results for particulate 
matter.
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    \12\ The floor methodology used for particulate matter is 
explained in ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards,'' September 2005, Sections 
5.3 and 7.4, docket item EPA-HQ-OAR-2004-0022-0453.
    \13\ We note that two other MACT pool sources with fabric 
filters achieve emission levels comparable to Ash Grove Chanute but 
have a higher standard deviation. Thus, Ash Grove's fabric filter 
performs like a MACT pool fabric filter and should be retained in 
the UVF analysis. Ash Grove Chanute has an emission average of 
0.0038 gr/dscf and a standard deviation of 0.0025, while another 
cement kiln has an emission average of 0.0034 gr/dscf and a standard 
deviation of 0.0028, and a liquid fuel boiler has an emission 
average of 0.0037 gr/dscf and a standard deviation of 0.0043. If we 
were to delete Ash Grove Chanute from the UVF pool nonetheless, the 
UVF would change slightly and would result in one additional change 
to the particulate matter floors--the existing source standard for 
liquid fuel boilers would change from 0.035 gr/dscf to 0.034 gr/
dscf. See USEPA, ``Draft Technical Support Document for HWC MACT 
Standards--Reconsideration of the Particulate Matter Standard,'' 
January 2006, Section 4.3.
    \14\ For a discussion of how the UVF relationship would be 
altered and for a presentation of the floor results, see USEPA, 
``Draft Technical Support Document for HWC MACT Standards--
Reconsideration of the New Source Particulate Matter Standard for 
Cement Kilns,'' March 2006, Section 4.0.

Table 2.--Revised Particulate Matter Floor Levels (gr/dscf at 7% Oxygen)
------------------------------------------------------------------------
                                              October 2005
               Source category                 final rule     Proposed
                                               floor level   floor level
------------------------------------------------------------------------
Incinerators:
    Existing sources........................       0.013         0.013
    New sources.............................       0.0015        0.0016
Cement kilns:
    Existing source.........................       0.028         0.028
    New sources.............................       0.0023        0.0069
Lightweight aggregate kilns:
    Existing sources \1\....................       0.025         0.025
    New sources.............................       0.0098        0.0098
Solid fuel boilers: \2\
    Existing sources........................       0.073         0.073
    New sources.............................       0.061         0.061
Liquid fuel boilers:
    Existing sources........................       0.035         0.035
    New sources.............................       0.0087        0.0088
------------------------------------------------------------------------
\1\ The calculated floor levels in both cases are 0.029 gr/dscf. For
  reasons discussed in the final rule, we capped calculated floor levels
  exceeding the Interim Standard at the Interim Standard, which in this
  case is 0.025 gr/dscf. 70 FR at 59457. Given that the calculated floor
  level with the revised UVF (i.e., 0.029 gr/dscf) again slightly
  exceeds the Interim Standard, we likewise propose to cap the
  calculated floor level at 0.025 gr/dscf.
\2\ Note that we adopted more stringent beyond-the-floor standards for
  existing and new sources in the final rule. See docket item EPA-HQ-OAR-
  2004-0022-0457, Section 14.

    For the three calculated new source floor levels that would change 
from the level promulgated in the final rule, we considered 
establishing beyond-the-floor standards based on the cost of achieving 
the emissions reductions, any health and environmental impacts, and 
energy requirements. A complete presentation of the results can be 
found in the background document supporting this proposal.\15\ After 
considering costs and nonair quality health and environmental impacts 
and energy effects, we are proposing not to adopt a beyond-the-floor 
standard based on improved particulate matter control for new source 
cement kilns, new source incinerators, and new source liquid fuel 
boilers.
---------------------------------------------------------------------------

    \15\ USEPA, ``Draft Technical Support Document for HWC MACT 
Standards--Reconsideration of the New Source Particulate Matter 
Standard for Cement Kilns,'' March 2006.
---------------------------------------------------------------------------

    Therefore, we are proposing to revise three of the particulate 
matter standards as reflected in Table 3 below. We are also proposing 
accompanying regulatory text changes to 40 CFR 63.1217(b)(7), 
63.1219(b)(7), and 63.1220(b)(7)(i).

 Table 3.--Proposed Revised Particulate Matter Standards (gr/dscf at 7%
                                 Oxygen)
------------------------------------------------------------------------
                                                            Proposed
        Source category              Source type            standard
------------------------------------------------------------------------
Cement kilns..................  New sources..........             0.0069
Incinerators..................  New sources..........             0.0016
Liquid fuel boilers...........  New sources..........             0.0088
------------------------------------------------------------------------


[[Page 14671]]

C. What Changes to the Compliance Date Provisions Are Being Proposed 
for the Revised Standards?

    We are proposing to revise the compliance date requirements under 
40 CFR 63.1206 to require that new cement kilns (i.e., sources that 
commenced construction or reconstruction after April 20, 2004, the date 
of the rule proposing the full set of MACT standards for hazardous 
waste burning cement kilns) comply with the proposed particulate matter 
standard by the later of the date of publication of the final rule in 
the Federal Register or the date the source starts operations. We note, 
however, that if we promulgate a particulate matter standard that is 
more stringent than the proposed standard, the final rule will allow 
you three years from the date of publication of the final rule to 
comply with the standard, if you comply with the proposed standard by 
the later of the date of publication of the final rule in the Federal 
Register or the date the source starts operations. These timelines are 
consistent with the current compliance date requirements under 40 CFR 
63.1206.
    Although we are proposing to slightly revise the particulate matter 
standards for incinerators and liquid fuel boilers that are new sources 
(i.e., sources that commenced construction or reconstruction after 
April 20, 2004), we are not proposing to revise the compliance date 
requirements for those sources. The revised particulate matter 
standards would be less stringent by only 0.22 mg/dscm (0.0001 gr/
dscf), and new sources would be allowed to begin complying with them on 
the date of publication of the final rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that today's proposed rule constitutes a ``significant 
regulatory action'' because this action raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. As such, this action 
was submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations are documented in the public record.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impact of today's proposed rule on 
small entities, a small entity is defined as: (1) A small business as 
defined by the Small Business Administration's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in the field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. EPA has 
determined that none of the small entities will experience a 
significant impact because the notice imposes no additional regulatory 
requirements on owners or operators of affected sources. We continue to 
be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal

[[Page 14672]]

governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that today's notice of reconsideration does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, or tribal governments, in the 
aggregate, or to the private sector in any one year. Although our best 
estimate of total social costs of the final rule was $22.6 million per 
year, today's notice does not add new requirements that would increase 
this cost. See 70 FR at 59532. Thus, today's notice of reconsideration 
is not subject to sections 202 and 205 of the UMRA. EPA has also 
determined that the notice of reconsideration contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because it contains no regulatory requirements that apply 
to such governments or impose obligations upon them. Thus, today's 
proposed rule is not subject to the requirements of section 203.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Today's notice of reconsideration does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
This rule, as proposed, is not projected to result in economic impacts 
to privately owned hazardous waste combustion facilities. Marginal 
administrative burden impacts may occur at selected States and/or EPA 
regional offices if these entities experience increased administrative 
needs or information requests. Thus, Executive Order 13132 does not 
apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This notice of 
reconsideration does not have tribal implications, as specified in 
Executive Order 13175. No affected facilities are owned or operated by 
Indian tribal governments. Thus, Executive Order 13175 does not apply 
to this notice of reconsideration.

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

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
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.
    Today's proposed rule is not subject to Executive Order 13045 
because it is not economically significant as defined under point one 
of the Order, and because the Agency does not have reason to believe 
the environmental health or safety risks addressed by this action 
present a disproportionate risk to children.

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

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

I. National Technology Transfer and Advancement Act

    As described in the October 2005 final rule, Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (``NTTAA''), 
Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. During the development of the 
final rule, EPA searched for voluntary consensus standards that might 
be applicable. The search identified the following consensus standards 
that were considered practical alternatives to the specified EPA test 
methods: (1) American Society for Testing and Materials (ASTM) D6735-
01, ``Standard Test Method for Measurement of Gaseous Chlorides and 
Fluorides from Mineral Calcining Exhaust Sources--Impinger Method,'' 
and (2) American Society of Mechanical Engineers (ASME) standard QHO-1-
2004, ``Standard for the Qualification and Certification of Hazardous 
Waste Incineration Operators.'' Today's notice of reconsideration does 
not propose the use of any additional technical standards beyond those 
cited in the final rule. Therefore, EPA is not considering the use of 
any additional voluntary consensus standards for this notice.

List of Subjects in 40 CFR Part 63

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

    Dated: March 15, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 63--NATIONAL EMISSIONS STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

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


[[Page 14673]]


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

    2. Section 63.1206 is amended by revising the first sentence of 
paragraph (a)(1)(ii)(B)(1) and adding paragraph (a)(1)(ii)(B)(3) to 
read as follows:


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

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) * * * (1) If you commenced construction or reconstruction of 
your hazardous waste combustor after April 20, 2004, you must comply 
with the new source emission standards under Sec. Sec.  63.1219, 
63.1220, and 63.1221 and the other requirements of this subpart by the 
later of October 12, 2005 or the date the source starts operations, 
except as provided by paragraphs (a)(1)(ii)(B)(2) through (3) of this 
section. * * *
* * * * *
    (3) If you commenced construction or reconstruction of a cement 
kiln after April 20, 2004, you must comply with the new source emission 
standard for particulate matter under Sec.  63.1220(b)(7)(i) by the 
later of [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal 
Register] or the date the source starts operations.
* * * * *
    3. Section 63.1217 is amended by revising paragraph (b)(7) to read 
as follows:


Sec.  63.1217  What are the standards for liquid fuel boilers that burn 
hazardous waste?

* * * * *
    (b) * * *
    (7) For particulate matter, except for an area source as defined 
under Sec.  63.2 or as provided by paragraph (e) of this section, 
emissions in excess of 20 mg/dscm (0.0088 gr/dscf) corrected to 7 
percent oxygen.
* * * * *
    4. Section 63.1219 is amended by revising paragraph (b)(7) to read 
as follows:


Sec.  63.1219  What are the replacement standards for hazardous waste 
incinerators?

    (b) * * *
    (7) Except as provided by paragraph (e) of this section, 
particulate emissions in excess of 3.7 mg/dscm (0.0016 gr/dscf) 
corrected to 7 percent oxygen.
* * * * *
    5. Section 63.1220 is amended by revising paragraph (b)(7)(i) to 
read as follows:


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

    (b) * * *
    (7) * * *
    (i) Emissions in excess of 15.8 mg/dscm (0.0069 gr/dscf) corrected 
to 7 percent oxygen; and
* * * * *
[FR Doc. 06-2703 Filed 3-22-06; 8:45 am]
BILLING CODE 6560-50-P