Rules and Regulations. Proposed rule

15,360 words·~70 min read·/register/2006/03/23/06-2703·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2005-MS-0001-200606; FRL-8048-9] Approval and Promulgation of Implementation Plans; Mississippi Prevention of Significant Deterioration and New Source Review AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Mississippi State Implementation Plan

(SIP)to include changes made to Mississippi regulations entitled, “Permit Regulations for the Construction and Operation of Air Emissions Equipment” and “Regulations for the Prevention of Significant Deterioration of Air Quality.” The proposed revisions amend the State permitting rules in order to address changes to the federal New Source Review

(NSR)regulations, which were promulgated by EPA on December 31, 2002 (67 FR 80186) and reconsidered with minor changes on November 7, 2003 (68 FR 63021) (collectively, these two final actions are called the “2002 NSR Reform Rules”). EPA's 2002 NSR Reform Rules, proposed for inclusion in the Mississippi SIP, contain provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plant-wide applicability limits, and recordkeeping and reporting requirements. The proposed revisions also include changes made to the NSR program for minor stationary sources, including a new provision allowing construction to commence on certain minor sources prior to the applicant receiving a final permit to construct. DATES: Comments must be received on or before April 24, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2005-MS-0001, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. E-mail: *fortin.kelly@epa.gov.* 3. Fax: 404-562-9019. 4. Mail: (Docket ID No. EPA-R04-OAR-2005-MS-0001), Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. Hand Delivery: Deliver your comments to: Ms. Kelly Fortin, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R04-OAR-2005-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site 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 *http://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.* *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure 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 at * http:// www.regulations.gov * or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official business hours are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the Mississippi SIP, contact Ms. Nacosta Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Telephone number:

(404)562-9140; e-mail address: *ward.nacosta@epa.gov.* For information regarding New Source Review, contact Ms. Kelly Fortin, Air Permits Section, at the same address above. Telephone number:

(404)562-9117; e-mail address: *fortin.kelly@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, references to “EPA,” “we,” “us,” or “our,” are intended to mean the U.S. Environmental Protection Agency. The supplementary information is arranged as follows: I. What Action Is EPA Proposing to Take? II. What Is the Background for This Action? III. What Is EPA's Analysis of Mississippi's NSR Rule Revisions? A. Requirements for the Prevention of Significant Deterioration of Air Quality B. General Permitting Requirements IV. What Action Is EPA Taking Today? V. Statutory and Executive Order Reviews I. What Action Is EPA Proposing to Take? On August 10, 2005, the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), submitted revisions to the Mississippi State Implementation Plan (SIP). The SIP submittal consists of revisions to the Mississippi Administrative Code

(MAC)regarding Regulations for the Prevention, Abatement, and Control of Air Contaminants. Specifically, the proposed SIP revisions include changes to MDEQ regulations entitled, “Permit Regulations for the Construction and Operation of Air Emissions Equipment,” Air Pollution Control Section 2 (APC-S-2), found at MAC 08-034-002, and “Regulations for the Prevention of Significant Deterioration of Air Quality,” Air Pollution Control Section 5 (APC-S-5), found at MAC 08-034-005. MDEQ submitted its revision to APC-S-5 in response to EPA's December 31, 2002, revisions to the federal NSR program. EPA is proposing to approve the submitted SIP revisions to APC-S-2 and APC-S-5. II. What Is the Background for This Action? On December 31, 2002, EPA published final rule changes to 40 Code of Federal Regulations

(CFR)parts 51 and 52, regarding the Clean Air Act's Prevention of Significant Deterioration

(PSD)and Nonattainment New Source Review

(NNSR)programs. 67 FR 80186. On November 7, 2003, EPA published a notice of final action on the reconsideration of the December 31, 2002, final rule changes. 68 FR 63021. In that November 7th final action, EPA added the definition of “replacement unit,” and clarified an issue regarding plant-wide applicability limitations (PALs). The December 31, 2002, and the November 7, 2003, final actions, are collectively referred to as the “2002 NSR Reform Rules.” The purpose of today's action is to propose to approve the SIP submittal from the State of Mississippi, which includes the provisions of EPA's 2002 NSR Reform Rules, and a change to Mississippi's minor source NSR program. The 2002 NSR Reform Rules are part of EPA's implementation of parts C and D of title I of the Clean Air Act (CAA or Act), 42 U.S.C. 7470-7515. Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in areas that meet the National Ambient Air Quality Standards (NAAQS)—“attainment” areas—as well as in areas for which there is insufficient information to determine whether the area meets the NAAQS—“unclassifiable” areas. Part D of title I of the CAA, 42 U.S.C. 7501-7515, is the NNSR program, which applies in areas that are not in attainment of the NAAQS—“nonattainment” areas. Collectively, the PSD and NNSR programs are referred to as the “New Source Review” or NSR programs. EPA regulations implementing these programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S. The CAA's NSR programs are preconstruction review and permitting programs applicable to new and modified stationary sources of air pollutants regulated under the CAA. The NSR programs of the CAA include a combination of air quality planning and air pollution control technology program requirements. Briefly, section 109 of the CAA, 42 U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public health and secondary NAAQS to protect public welfare. Once EPA sets those standards, states must develop, adopt, and submit to EPA for approval, a SIP that contains emissions limitations and other control measures to attain and maintain the NAAQS. Each SIP is required to contain a preconstruction review program for the construction and modification of any stationary source of air pollution to ensure that the NAAQS are achieved and maintained, to protect areas of clean air, to protect air quality related values (such as visibility) in national parks and other areas, to ensure that appropriate emissions controls are applied, to maximize opportunities for economic development consistent with the preservation of clean air resources, and to ensure that any decision to increase air pollution is made only after full public consideration of the consequences of the decision. The 2002 NSR Reform Rules made changes to five areas of the NSR programs. In summary, the 2002 NSR Reform Rules:

(1)Provide a new method for determining baseline actual emissions;

(2)adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred;

(3)allow major stationary sources to comply with PALs to avoid having a significant emissions increase that triggers the requirements of the major NSR program;

(4)provide a new applicability provision for emissions units that are designated clean units; and

(5)exclude pollution control projects

(PCPs)from the definition of “physical change or change in the method of operation.” On November 7, 2003, EPA published a notice of final action on its reconsideration of the 2002 NSR Reform Rules (68 FR 63021), which added a definition for “replacement unit” and clarified an issue regarding PALs. For additional information on the 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and *http://www.epa.gov/nsr.* After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), industry, state, and environmental petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) issued a decision on the challenges to the 2002 NSR Reform Rules. New York v. United States, 413 F.3d 3 (D.C. Cir. 2005). In summary, the D.C. Circuit Court vacated portions of the rules pertaining to clean units and PCPs, remanded a portion of the rules regarding recordkeeping, e.g. 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did not comment on the other provisions included as part of the 2002 NSR Reform Rules. EPA has not yet responded to the Court's remand regarding the recordkeeping provisions. Today's action is consistent with the decision of the D.C. Circuit Court because Mississippi's submittal does not include any portions of the 2002 NSR Reform Rules that were vacated as part of the June 2005, decision. The 2002 NSR Reform Rules require that state agencies adopt and submit revisions to their SIP permitting programs implementing the minimum program elements of the 2002 NSR Reform Rules no later than January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i), state agencies are now required to adopt and submit SIP revisions within 3 years after new amendments are published in the **Federal Register** .) State agencies may meet the requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with different but equivalent regulations. However, if a state decides not to implement any of the new applicability provisions, that state is required to demonstrate that its existing program is at least as stringent as the federal program. In adopting changes to federal law, a state may write the federal requirements into the state rules or the state may incorporate the federal rule by referencing the citation of the federal rule. As is discussed in greater detail below, with regard to the present revision, Mississippi primarily incorporated the federal rule by reference. On August 10, 2005, the State of Mississippi submitted a SIP revision for the purpose of revising the State's NSR permitting provisions for both major and minor stationary sources. These changes were made primarily to adopt EPA's 2002 NSR Reform Rules. The submittal also contains revisions to the State's general regulations for the construction and operation of sources of air pollution. These changes are discussed below. EPA believes the revisions contained in the Mississippi submittal are approvable for inclusion into the Mississippi SIP. III. What Is EPA's Analysis of Mississippi's NSR Rule Revisions? Mississippi currently has a SIP-approved NSR program for new and modified stationary sources. Today, EPA is proposing to approve revisions to Mississippi's existing NSR program in the SIP. These proposed revisions were submitted to EPA on August 10, 2005, and became state-effective on August 27, 2005. Copies of the revised rules, as well as the State's Technical Support Document, can be obtained from the Docket, as discussed in the “Docket” section above. A discussion of the specific changes to Mississippi's rules, proposed for inclusion in the SIP, follows. A. Requirements for Prevention of Significant Deterioration of Air Quality *Incorporation by reference of 40 CFR 52.21, 51.166(f), and 51.166(q).* The State of Mississippi's PSD program incorporates by reference the federal requirements, found at 40 CFR 52.21, into the State's major source PSD program, found at APC-S-5 (MAC 08-034-005). The original incorporation by reference was adopted on June 28, 1990, and amended in 1991, 1993, and 1996. The current revision to APC-S-5, which EPA is now proposing to approve into the SIP, incorporates by reference the provisions of 40 CFR 52.21, as amended and promulgated on July 1, 2004. In addition, the federal provisions at 40 CFR 51.166(f), “Exclusions from Increment Consumption,” and 40 CFR 51.166(q), “Public Participation,” are also incorporated by reference into the Mississippi rule. In summary, the revisions update Mississippi's existing incorporation by reference of the federal NSR program to include the 2002 NSR Reform Rules plus subsequent revisions to the federal program made through July 1, 2004. Mississippi did not adopt those sections of the federal rules that do not apply to state activities or are reserved for the Administrator of the EPA, such as the “delegation of authority,” and “plan disapproval” sections found in 40 CFR 52.21. The Mississippi incorporation by reference properly clarified the circumstances in which the term “Administrator,” found throughout the federal rules, was to remain Administrator, and when it was intended to refer to the “Mississippi Environmental Quality Board,” instead. The Mississippi rule does not incorporate the portions of the federal rules that were recently stayed or vacated, including the clean unit provisions, the PCP exclusion, and the equipment replacement provision which was promulgated shortly after the 2002 NSR Reform Rules. The revised Mississippi rule includes the recordkeeping provisions set forth in the federal rules at 40 CFR 52.21(r)(6). However, Mississippi chose to exclude the phrase, “reasonable possibility.” This phrase in the federal rule limits the recordkeeping provisions to modifications at facilities that use the actual-to-future-actual methodology to calculate emissions changes and that may have a “reasonable possibility” of resulting in a significant emissions increase. The Mississippi rule, therefore, requires all modifications that use the actual-to-future-actual methodology to meet the recordkeeping requirements. Mississippi's minor source permitting regulations already contain recordkeeping requirements for modifications, so there is limited practical effect of this difference in Mississippi. As noted earlier, EPA has not yet responded to the D.C. Circuit Court's remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules. As a result, EPA's final decision with regard to the remand may require EPA to take further action on this portion of Mississippi's rules. At this time, however, Mississippi's recordkeeping provisions are at least as stringent as the federal requirements, and are therefore, approvable. The requirements included in Mississippi's PSD program are substantively the same as the federal provisions, due to Mississippi's incorporation of the federal rules by reference. EPA has, therefore, determined that the proposed revisions are consistent with the program requirements for the preparation, adoption and submittal of implementation plans for the Prevention of Significant Deterioration of Air Quality, as set forth at 40 CFR 51.166, and are approvable as part of the Mississippi SIP. B. General Permitting Requirements *Minor Source Program Rule Revisions.* Mississippi's general permitting requirements, including permit requirements for minor sources, are contained in the State rule entitled, “Permit Regulations for the Construction and/or Operation of Air Emissions Equipment,” (APC-S-2), found at MAC 08-034-002. Today's action proposes to approve recent changes to this rule. EPA has reviewed the proposed revisions and finds them to be consistent with the requirements of EPA's regulations for minor NSR programs found at 40 CFR 51.160 through 51.164. On May 2, 1995 (60 FR 21443), EPA approved APC-S-2 as meeting the criteria necessary to allow the State of Mississippi to issue federally enforceable state operating permits (FESOPs). The provisions in APC-S-2 that were relied upon for the approval of the FESOP program have not changed with this latest revision of that rule. Therefore, the FESOP program approval remains effective. Mississippi's minor source permit regulations do contain a new provision. APC-S-2, Section XV.B., entitled “Optional Pre-Permit Construction,” allows construction to commence on certain non-major sources and non-major modifications prior to receiving a final permit to construct, provided certain conditions are met. EPA approved this approach to minor source permitting for the State of Idaho's permit to construct regulations, which were approved into the Idaho SIP in 2003. 68 FR 2217 (January 16, 2003). As discussed below, Mississippi's new provision is consistent with the requirements of section 110(a)(2)(C) of the CAA and federal regulations found at 40 CFR 51.160 through 51.164, including 40 CFR 51.160(b), which requires states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS. Mississippi's Optional Pre-Permit Construction provision includes requirements and safeguards to ensure that no major source or major modification would be allowed to commence construction prior to receiving a final permit to construct. For example, the provision does not allow new major stationary sources, major modifications, medical waste incinerators, hazardous waste incinerators, any modification involving medical waste incineration or hazardous waste incineration, or new stationary sources or modifications requiring a case-by-case Maximum Achievable Control Technology determination, to commence construction prior to receiving a final permit to construct. Furthermore, no source, including minor sources, can begin actual construction unless the source has received approval from the State in the form of either a written approval described in the rule, or an actual permit to construct. Mississippi's Optional Pre-Permit Construction provision also includes requirements that limit its applicability to only sources that have sufficiently demonstrated that they will be able to comply with all requirements, and therefore, will receive a final permit to construct. These requirements include: submittal of a comprehensive permit application, public notice of the application for pre-permit construction approval, and written approval from the Permit Board before a source can commence construction. Additionally, the permit application must include the request for pre-permit construction, certification that construction is at the applicant's risk, certification that the applicant will not contest the final permit on the basis that construction has begun, and certification that the applicant will comply with any restrictions being sought to limit potential to emit, including applicable monitoring and recordkeeping requirements. Furthermore, the Optional Pre-Permit Construction provision precludes any actual operation of the new or modified source until the final permit to construct is issued. Regardless of the status of the construction, the Permit Board may deny the pre-permit construction approval application, or revoke an existing pre-permit construction approval, for any reason it deems valid, including objections from the public. The Mississippi Optional Pre-Permit Construction provision also allows a source with a valid CAA title V operating permit to incorporate the preconstruction modification provisions into the title V permit, rather than obtaining a separate permit to construct. Section 110(a)(2)(C) of the CAA requires that state SIPs include a program for regulating the construction and modification of stationary sources as necessary to ensure that the NAAQS are achieved. Federal regulations require that the SIP include a procedure to prevent the construction of a source or modification that would violate a SIP control strategy or interfere with attainment or maintenance of the NAAQS. As discussed above, the Mississippi Optional Pre-Permit Construction provision includes enforceable procedures to prevent the construction of any source or modification that would violate SIP requirements or the NAAQS. Although the Mississippi provision is somewhat different than traditional minor NSR programs in other states, the Mississippi program is consistent with the requirements of the CAA and EPA's regulations, and is therefore approvable as part of the SIP. IV. What Action Is EPA Proposing To Take? EPA is proposing to approve revisions to the Mississippi SIP submitted by MDEQ on August 10, 2005. The submittal consists of revisions to the State “Permit Regulations for the Construction and Operation of Air Emissions Equipment,” APC-S-2, and “Regulations for the Prevention of Significant Deterioration of Air Quality,” APC-S-5. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: March 16, 2006. A. Stanley Meiburg, Acting Regional Administrator, Region 4. [FR Doc. E6-4199 Filed 3-22-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 55 [OAR-2006-0091; FRL-8048-4] Outer Continental Shelf Air Regulations Consistency Update for California AGENCY: Environmental Protection Agency (“EPA”). ACTION: Proposed rule—consistency update. SUMMARY: EPA is proposing to update a portion of the Outer Continental Shelf (“OCS”) Air Regulations. Requirements applying to OCS sources located within 25 miles of States' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (“COA”), as mandated by section 328(a)(1) of the Clean Air Act, as amended in 1990 (“the Act”). The portion of the OCS air regulations that is being updated pertains to the requirements for OCS sources by the Ventura County Air Pollution Control District (Ventura County APCD). The intended effect of approving the OCS requirements for the Ventura County APCD is to regulate emissions from OCS sources in accordance with the requirements onshore. The change to the existing requirements discussed below is proposed to be incorporated by reference into the Code of Federal Regulations and is listed in the appendix to the OCS air regulations. DATES: Any comments must arrive by April 24, 2006. ADDRESSES: Submit comments, identified by docket number OAR-2006-0091, by one of the following methods: 1. Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the on-line instructions. 2. E-mail: *steckel.andrew@epa.gov.* 3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Cynthia Allen, Air Division (Air-4), U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105,

(415)947-4120, *allen.cynthia@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background Information A. Why Is EPA Taking This Action? On September 4, 1992, EPA promulgated 40 CFR part 55, 1 which established requirements to control air pollution from OCS sources in order to attain and maintain federal and state ambient air quality standards and to comply with the provisions of part C of title I of the Act. Part 55 applies to all OCS sources offshore of the States except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the Act requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements. 1 The reader may refer to the Notice of Proposed Rulemaking, December 5, 1991 (56 FR 63774), and the preamble to the final rule promulgated September 4, 1992 (57 FR 40792) for further background and information on the OCS regulations. Pursuant to § 55.12 of the OCS rule, consistency reviews will occur

(1)at least annually;

(2)upon receipt of a Notice of Intent under § 55.4; or

(3)when a state or local agency submits a rule to EPA to be considered for incorporation by reference in part 55. This proposed action is being taken in response to the submittal of requirements submitted by the Ventura County APCD. Public comments received in writing within 30 days of publication of this document will be considered by EPA before publishing a final rule. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan

(SIP)guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP. II. EPA's Evaluation A. What Criteria Were Used To Evaluate Rules Submitted To Update 40 CFR Part 55? In updating 40 CFR part 55, EPA reviewed the rules submitted for inclusion in part 55 to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12 (e). In addition, EPA has excluded administrative or procedural rules, 2 and requirements that regulate toxics which are not related to the attainment and maintenance of federal and state ambient air quality standards. 2 Each COA which has been delegated the authority to implement and enforce part 55, will use its administrative and procedural rules as onshore. However, in those instances where EPA has not delegated authority to implement and enforce part 55, EPA will use its own administrative and procedural requirements to implement the substantive requirements. 40 CFR 55.14 (c)(4). B. What Requirements Were Submitted To Update 40 CFR Part 55? 1. After review of the requirements submitted by the Ventura County APCD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources: Rule No. Name Adoption or amended date 42 Permit Fees 04/12/05 72 New Source Performance Standards

(NSPS)09/13/05 73 National Emission Standards for Hazardous Air Pollutants (NESHAPS) 09/13/05 74.9 Stationary Internal Combustion Engines 11/08/05 III. Administrative Requirements A. Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget

(OMB)has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” B. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. *Union Electric Co.* v. *U.S. EPA* , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). D. Unfunded Mandates Reform Act Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, 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, 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 EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. E. Executive Order 13132, Federalism Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This rule 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, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' This final rule does not have tribal implications, as specified in Executive Order 13175. It 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 this rule. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that:

(1)Is determined to be “economically significant'' as defined under Executive Order 12866, and

(VCS)if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS. List of Subjects in 40 CFR Part 55 Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping requirements, Sulfur oxides. Dated: March 3, 2006. Laura Yoshii, Acting Regional Administrator, Region IX. Title 40, chapter I of the Code of Federal Regulations, is proposed to be amended as follows: PART 55—[AMENDED] 1. The authority citation for part 55 continues to read as follows: Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401 *et seq.* ) as amended by Public Law 101-549. 2. Section 55.14 is amended by revising paragraph (e)(3)(ii)(H) to read as follows: § 55.14 Requirements that apply to OCS sources located within 25 miles of States' seaward boundaries, by State.

(e)* * *

(3)* * *

(ii)* * *

(H)*Ventura County Air Pollution Control District Requirements Applicable to OCS Sources.* Appendix to Part 55—[Amended] 3. Appendix A to CFR Part 55 is amended by revising paragraph (b)(8) under the heading “California” to read as follows: Appendix A to 40 CFR Part 55—Listing of State and Local Requirements Incorporated by Reference Into Part 55, by State California

(b)* * *

(8)The following requirements are contained in Ventura County Air Pollution Control District Requirements Applicable to OCS Sources: Rule 2: Definitions (Adopted 4/13/04) Rule 5: Effective Date (Adopted 4/13/04) Rule 6: Severability (Adopted 11/21/78) Rule 7: Zone Boundaries (Adopted 6/14/77) Rule 10: Permits Required (Adopted 4/13/04) Rule 11: Definition for Regulation II (Adopted 6/13/95) Rule 12: Application for Permits (Adopted 6/13/95) Rule 13: Action on Applications for an Authority to Construct (Adopted 6/13/95) Rule 14: Action on Applications for a Permit to Operate (Adopted 6/13/95) Rule 15.1: Sampling and Testing Facilities (Adopted 10/12/93) Rule 16: BACT Certification (Adopted 6/13/95) Rule 19: Posting of Permits (Adopted 5/23/72) Rule 20: Transfer of Permit (Adopted 5/23/72) Rule 23: Exemptions from Permits (Revised 4/13/04) Rule 24: Source Recordkeeping, Reporting, and Emission Statements (Adopted 9/15/92) Rule 26: New Source Review (Adopted 10/22/91) Rule 26.1: New Source Review—Definitions (Adopted 5/14/02) Rule 26.2: New Source Review—Requirements (Adopted 5/14/02) Rule 26.3: New Source Review—Exemptions (Adopted 5/14/02) Rule 26.6: New Source Review—Calculations (Adopted 5/14/02) Rule 26.8: New Source Review—Permit To Operate (Adopted 10/22/91) Rule 26.10: New Source Review—PSD (Adopted 1/13/98) Rule 26.11: New Source Review—ERC Evaluation At Time of Use (Adopted 5/14/02) Rule 28: Revocation of Permits (Adopted 7/18/72) Rule 29: Conditions on Permits (Adopted 10/22/91) Rule 30: Permit Renewal (Adopted 4/13/04) Rule 32: Breakdown Conditions: Emergency Variances, A., B.1., and D. only. (Adopted 2/20/79) Rule 33: Part 70 Permits—General (Adopted 10/12/93) Rule 33.1: Part 70 Permits—Definitions (Adopted 4/10/01) Rule 33.2: Part 70 Permits—Application Contents (Adopted 4/10/01) Rule 33.3: Part 70 Permits—Permit Content (Adopted 4/10/01) Rule 33.4: Part 70 Permits—Operational Flexibility (Adopted 4/10/01) Rule 33.5: Part 70 Permits—Time frames for Applications, Review and Issuance (Adopted 10/12/93) Rule 33.6: Part 70 Permits—Permit Term and Permit Reissuance (Adopted 10/12/93) Rule 33.7: Part 70 Permits—Notification (Adopted 4/10/01) Rule 33.8: Part 70 Permits—Reopening of Permits (Adopted 10/12/93) Rule 33.9: Part 70 Permits—Compliance Provisions (Adopted 4/10/01) Rule 33.10: Part 70 Permits—General Part 70 Permits (Adopted 10/12/93) Rule 34: Acid Deposition Control (Adopted 3/14/95) Rule 35: Elective Emission Limits (Adopted 11/12/96) Rule 36: New Source Review—Hazardous Air Pollutants (Adopted 10/6/98) Rule 42: Permit Fees (Adopted 4/12/05) Rule 44: Exemption Evaluation Fee (Adopted 9/10/96) Rule 45: Plan Fees (Adopted 6/19/90) Rule 45.2: Asbestos Removal Fees (Adopted 8/4/92) Rule 47: Source Test, Emission Monitor, and Call-Back Fees (Adopted 6/22/99) Rule 50: Opacity (Adopted 4/13/04) Rule 52: Particulate Matter-Concentration (Adopted 4/13/04) Rule 53: Particulate Matter-Process Weight (Adopted 4/13/04) Rule 54: Sulfur Compounds (Adopted 6/14/94) Rule 56: Open Burning (Revised 11/11/03) Rule 57: Incinerators (Adopted 1/11/05) Rule 57.1: Particulate Matter Emissions From Fuel Burning Equipment (Adopted 1/11/05) Rule 62.7: Asbestos—Demolition and Renovation (Adopted 6/16/92) Rule 63: Separation and Combination of Emissions (Adopted 11/21/78) Rule 64: Sulfur Content of Fuels (Adopted 4/13/99) Rule 67: Vacuum Producing Devices (Adopted 7/5/83) Rule 68: Carbon Monoxide (Adopted 4/13/04) Rule 71: Crude Oil and Reactive Organic Compound Liquids (Adopted 12/13/94) Rule 71.1: Crude Oil Production and Separation (Adopted 6/16/92) Rule 71.2: Storage of Reactive Organic Compound Liquids (Adopted 9/26/89) Rule 71.3: Transfer of Reactive Organic Compound Liquids (Adopted 6/16/92) Rule 71.4: Petroleum Sumps, Pits, Ponds, and Well Cellars (Adopted 6/8/93) Rule 71.5: Glycol Dehydrators (Adopted 12/13/94) Rule 72: New Source Performance Standards

(NSPS)(Adopted 9/13/05) Rule 73: National Emission Standards for Hazardous Air Pollutants (NESHAPS) (Adopted 9/13/05) Rule 74: Specific Source Standards (Adopted 7/6/76) Rule 74.1: Abrasive Blasting (Adopted 11/12/91) Rule 74.2: Architectural Coatings (Adopted 11/13/01) Rule 74.6: Surface Cleaning and Degreasing (Revised 11/11/03—effective 7/1/04) Rule 74.6.1: Batch Loaded Vapor Degreasers (Adopted 11/11/03—effective 7/1/04) Rule 74.7: Fugitive Emissions of Reactive Organic Compounds at Petroleum Refineries and Chemical Plants (Adopted 10/10/95) Rule 74.8: Refinery Vacuum Producing Systems, Waste-water Separators and Process Turnarounds (Adopted 7/5/83) Rule 74.9: Stationary Internal Combustion Engines (Adopted 11/8/05) Rule 74.10: Components at Crude Oil Production Facilities and Natural Gas Production and Processing Facilities (Adopted 3/10/98) Rule 74.11: Natural Gas-Fired Residential Water Heaters—Control of NO <sup>X</sup> (Adopted 4/9/85) Rule 74.11.1: Large Water Heaters and Small Boilers (Adopted 9/14/99) Rule 74.12: Surface Coating of Metal Parts and Products (Adopted 11/11/03) Rule 74.15: Boilers, Steam Generators and Process Heaters (Adopted 11/8/94) Rule 74.15.1: Boilers, Steam Generators and Process Heaters (Adopted 6/13/00) Rule 74.16: Oil Field Drilling Operations (Adopted 1/8/91) Rule 74.20: Adhesives and Sealants (Adopted 1/11/05) Rule 74.23: Stationary Gas Turbines (Adopted 1/08/02) Rule 74.24: Marine Coating Operations (Revised 11/11/03) Rule 74.24.1: Pleasure Craft Coating and Commercial Boatyard Operations (Adopted 1/08/02) Rule 74.26: Crude Oil Storage Tank Degassing Operations (Adopted 11/8/94) Rule 74.27: Gasoline and ROC Liquid Storage Tank Degassing Operations (Adopted 11/8/94) Rule 74.28: Asphalt Roofing Operations (Adopted 5/10/94) Rule 74.30: Wood Products Coatings (Revised 11/11/03) Rule 75: Circumvention (Adopted 11/27/78) Rule 101: Sampling and Testing Facilities (Adopted 5/23/72) Rule 102: Source Tests (Adopted 4/13/04) Rule 103: Continuous Monitoring Systems (Adopted 2/9/99) Rule 154: Stage 1 Episode Actions (Adopted 9/17/91) Rule 155: Stage 2 Episode Actions (Adopted 9/17/91) Rule 156: Stage 3 Episode Actions (Adopted 9/17/91) Rule 158: Source Abatement Plans (Adopted 9/17/91) Rule 159: Traffic Abatement Procedures (Adopted 9/17/91) Rule 220: General Conformity (Adopted 5/9/95) Rule 230: Notice to Comply (Adopted 11/9/99) [FR Doc. E6-4204 Filed 3-22-06; 8:45 am] BILLING CODE 6560-50-P 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. 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: *a-and-r-docket@epa.gov* . • 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 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: *behan.frank@epa.gov* , 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 *behan.frank@epa.gov* , 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 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: Category NAICS code SIC code Examples of potentially regulated entities Any industry that combusts hazardous waste as defined in the final rule 562211 4953 Incinerator, hazardous waste. 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 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 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. 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. 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). 2 All references in this notice to emissions data from Ash Grove Cement Company pertain to the cement plant located in Chanute, Kansas. 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. 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. 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 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 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. 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 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. 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 Test date PM emissions (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. 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. 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 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. 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 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. 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) Source category October 2005 final rule floor level Proposed 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) Source category Source type Proposed standard Cement kilns New sources 0.0069 Incinerators New sources 0.0016 Liquid fuel boilers New sources 0.0088 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 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: 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: § 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 §§ 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 § 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: § 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 § 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: § 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: § 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]

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