[Federal Register: November 12, 2002 (Volume 67, Number 218)]
[Rules and Regulations]
[Page 68526-68533]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no02-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[FRL-7405-6]
RIN 2060-AJ87
National Emission Standard Benzene Waste Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; amendments.
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SUMMARY: This action amends the national emission standards for
hazardous air pollutants (NESHAP) for benzene waste operations. The
amendments add an exemption for organic vapors routed to the fuel gas
system and a new compliance option for tanks, and clarify the standards
for containers.
We are publishing the direct final rule without prior proposal
because we view this as a noncontroversial amendment and anticipate no
adverse comment. However, in the Proposed Rules section of this Federal
Register, we are publishing a separate document that will serve as the
proposal in the event that adverse comments are filed.
DATES: The amendments are effective on February 10, 2003 without
further notice, unless significant, adverse comments are received by
December 12, 2002, or by February 18, 2003 if a public hearing is
requested. See the proposed rule in this issue of the Federal Register
for information on the hearing. If EPA receives adverse comments, EPA
will publish a timely withdrawal of the direct final rule in the
Federal Register and inform the public that the rule will not take
effect.
ADDRESSES: Comments. By U.S. Postal Service, send comments (in
duplicate, if possible) to: Air and Radiation Docket and Information
Center (6102T), Attention Docket No. A-2001-23, U.S. EPA, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. In person or by
courier, deliver comments (in duplicate, if possible) to: Air and
Radiation Docket and Information Center (6102T), Attention Docket No.
A-2001-23, Room B-108, U.S. EPA, 1301 Constitution Avenue, NW.,
Washington, DC 20460. We request that a separate copy of each public
comment be sent to the EPA contact person listed below (see FOR FURTHER
INFORMATION CONTACT). Docket. Docket No. A-2001-23 contains supporting
information used in developing the amendments. The docket is located at
the U.S. EPA, 1301 Constitution Avenue, NW., Washington, DC 20460 in
room B-108, and may be inspected from 8:30 a.m. to 5:30 p.m., Monday
through Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Waste and
Chemical Process Group (C439-03), Emission Standards Division, Office
of Air Quality Planning and Standards, U.S. EPA, Research Triangle
Park, North Caroline 27711, telephone number (919) 541-0884, electronic
mail address, lucas.bob@epa.gov.
SUPPLEMENTARY INFORMATION: For information concerning applicability and
rule determinations, contact the appropriate regional representative:
U.S. EPA New England, Director, Air Compliance Programs, 1 Congress
Street, Suite 1100 (SEA), Boston, MA 02114-2023. Phone: (617) 918-1656,
Fax: (617) 918-1112.
U.S. EPA--Region II, Air Compliance Branch, 290 Broadway, New York, NY
10007-1866, Phone: (212) 637-3000, Fax: (212) 637-3526.
U.S. EPA--Region III, Chief, Air Enforcement Branch (3AP12), 1650 Arch
Street, Philadelphia, PA 19103-2029, Phone: (215) 814-3438, Fax: (215)
814-2134, Region III Office Web site: www.epa.gov/reg3artd/hazpollut/
hazairpol.htm.
U.S. EPA--Region IV, Air and Radiation Technology Branch, Atlanta
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-3104, Phone:
(404) 562-9105, Fax: (404) 562-9095.
U.S. EPA--Region V, Air Enforcement and Compliance Assurance Branch
(AE17J), 77 West Jackson Boulevard, Chicago, IL 60604-3590, Phone:
(312) 353-2088, Fax: (312) 353-8289.
U.S. EPA--Region VI, Chief, Toxics Enforcement Section ([caret]EN-AT),
1445 Ross Avenue, Dallas, TX 75202-2733, Phone: (214) 665-7224, Fax:
(214) 665-2146, Region VI Office Web site: www.epa.gov/region6.
U.S. EPA Region VII, Bill Peterson, 726 Minnesota Avenue, Kansas City,
KS 66101, Phone: (913) 551-7881, Fax: (913) 551-7467.
U.S. EPA--Region VIII, MACT Enforcement, 999 18th Street, Suite 500,
Denver, Colorado 80202, Phone: (303) 312-6312, Fax: (303) 312-6409.
U.S. EPA--Region IX, Air Division, 75 Hawthorne Street, San Francisco,
CA 94105, Phone: (415) 744-1219, Fax: (415) 744-1076.
U.S. EPA--Region X, Office of Air Quality (OAQ-107), 1200 Sixth Avenue,
Seattle, Washington 98101, Phone: (206) 553-4273, Fax: (206) 553-0110.
Comments. All public comments will be addressed in a subsequent
final rule based on the proposed amendments. If we receive any
significant adverse comments, we will publish a timely withdrawal in
the Federal Register before the effective date of the amendments. If an
adverse comment
[[Page 68527]]
applies to a specific amendment, and that provision can be addressed
separately from the remainder of the direct final rule, we will
withdraw only that provision on which we received adverse comments. In
the Proposed Rules section of today's Federal Register, we are
publishing a separate action that will serve as the proposal for any
provisions in the direct final rule if we receive adverse comments. If
all or part of the direct final rule is withdrawn, all public comments
received will be addressed in a subsequent final rule based on the
proposal. We will not institute a second comment period on the
subsequent final rule. If you are interested in commenting, you must do
so at this time.
Comments and data may be submitted by electronic mail (e-mail) to
``a-and-r-docket@epa.gov''. Electronic comments must be submitted as an
ASCII file to avoid the use of special characters and encryption
problems. Comments will also be accepted on disks in WordPerfect[reg]
file format. All comments and data submitted in electronic form must
note the docket number: A-2001-23. No confidential business information
(CBI) should be submitted by e-mail. Electronic comments may be filed
online at many Federal Depository libraries.
Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: Attention: Mr. Robert Lucas, c/o
OAQPS Document Control Officer (C404-02), U.S. EPA, Research Triangle
Park, NC 27711.
The EPA will disclose information identified as CBI only to the
extent allowed by the procedures set forth in 40 CFR part 2. If no
claim of confidentiality accompanies a submission when it is received
by EPA, the information may be made available, without further notice,
to the public.
Docket. The docket is an organized and complete file of all the
information considered by EPA in the development of the amendments. The
docket is a dynamic file because information is added throughout the
rulemaking process. The docketing system is intended to allow members
of the public and industries involved to readily identify and locate
documents so they can effectively participate in the rulemaking
process. Along with the proposed and promulgated standards and their
preambles, the contents of the docket will serve as the record in the
case of judicial review. (See section 307(d)(7)(A) of the Clean Air Act
(CAA).) The regulatory text and other materials related to the direct
final rule are available for review in the docket or copies may be
mailed on request from the Air Docket by calling (202) 260-7548. A
reasonable fee may be charged for copying docket materials.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's direct final rule will also be available
on the WWW through the Technology Transfer Network (TTN). Following
signature, a copy of the direct final rule will be posted on the TTN's
policy and guidance page for newly proposed or promulgated rules at
http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control. If more
information regarding the TTN is needed, call the TTN HELP line at
(919) 541-5384.
Regulated Entities. Categories and entities potentially regulated
by this action include:
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Examples of regulated
Category SIC code NAIC entities
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Industry...................... 2800's................ 32512-325182.................... Chemical manufacturing
2911.................. 32411........................... plants, petroleum
3312.................. 331111.......................... refineries, coke by-
4925.................. 22121........................... product recovery
4953.................. 562211.......................... plants, and
9511.................. 324110.......................... commercial hazardous
waste treatment,
storage, and disposal
facilities that
manage waste
generated by these
industries.
Federal government............ ...................... ................................ Not affected.
State/local/tribal government. ...................... ................................ Not affected.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by the
direct final rule. To determine whether your facility is regulated by
the direct final rule, you should examine the applicability criteria in
40 CFR 61.340 of the NESHAP for benzene waste operations. If you have
any questions regarding the applicability of this action to a
particular entity, consult the appropriate person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of the direct final rule is available only by filing a petition
for review in the U.S. Court of Appeals for the District of Columbia by
January 13, 2002. Under section 307(d)(7)(B) of the CAA, only an
objection to the direct final rule raised with reasonable specificity
during the period for public comment can be raised during judicial
review. Moreover, section 307(b)(2) of the CAA, the requirements that
are the subject of the direct final rule may not be challenged later in
civil or criminal proceedings brought by the EPA to enforce the
requirements.
Outline. The information in this preamble is organized as follows:
I. Background
II. Why Are We Publishing the Amendments as a Direct Final Rule?
III. How Are We Changing the Applicability of the Final Rule?
IV. What Is the New Compliance Option for Tanks?
V. How Are We Clarifying the Standards for Containers?
VI. How Do I Demonstrate Initial and Continuous Compliance?
VII. What Are the Administrative Requirements?
A. Executive Order 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments
D. Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks
E. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
F. Unfunded Mandates Reform Act of 1995
G. Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
H. Paperwork Reduction Act
I. National Technology Transfer and Advancement Act of 1995
J. Congressional Review Act
[[Page 68528]]
I. Background
The NESHAP for benzene waste operations (40 CFR part 61, subpart
FF) applies to equipment and processes at certain chemical
manufacturing plants, coke by-product recovery plants, petroleum
refineries, and facilities that treat, store, or dispose of waste
generated by those industries. In today's direct final rule, we are
adding a new compliance option for tanks adopted from similar standards
established under the Resource Conservation and Recovery Act (RCRA) for
hazardous waste treatment, storage, and disposal facilities (40 CFR
parts 264 and 265, subpart CC). The change was first suggested by a
company subject to both the benzene waste NESHAP and the RCRA subpart
CC final rules.
The new compliance option allows tanks to be located inside a
permanent total enclosure that routes organic vapors through a closed-
vent system to an enclosed combustion control device. The requirements
for the permanent total enclosure are the same as the Tank Level 2
control requirements in 40 CFR 264.1084(i) and 40 CFR 265.1085(i) of
the RCRA final rules. The closed-vent system and control device must
meet the design and operational standards in the existing NESHAP.
Adding that option reduces regulatory burden by allowing companies to
use one set of equipment to comply with both waste final rules.
We are also amending the benzene waste NESHAP requirements for
containers to clarify when covers are or are not required. That change
is being made to improve understanding of the existing requirements
within the regulated community. The amendment specifies requirements
for use of a permanent total enclosure with a closed-vent system that
routes organic vapors to a control device; the requirements for a
permanent total enclosure are the same as for tanks.
In the third change, we are amending the benzene waste NESHAP in
response to a request from a petroleum refinery subject to the benzene
waste NESHAP. That facility has requested that the benzene waste NESHAP
exempt organic vapors from a waste management unit, treatment process,
or wastewater treatment system that are routed to a fuel gas system.
That exemption is already included in the air standards for petroleum
refineries in 40 CFR part 63, subpart CC. With that change, any
facility subject to the benzene waste NESHAP can save energy and costs
by routing gases to the fuel gas system to recover the heating value of
the waste stream. The same definition of ``fuel gas system'' in the
petroleum refinery final rule is added to the benzene waste NESHAP for
consistency.
II. Why Are We Publishing the Amendments as a Direct Final Rule?
We are publishing the amendments without prior proposal because we
view the changes as noncontroversial and anticipate no adverse comment.
The amendments to the benzene waste NESHAP increase flexibility by
adding new compliance options and clarifying existing requirements. The
amendments do not alter the stringency of the benzene waste NESHAP,
have no adverse health or environmental impacts, and will reduce costs.
For those reasons, we view the amendments as noncontroversial,
anticipate no adverse comments, and are publishing the amendments as a
direct final rule.
The nature of the changes contained in the direct final rule are
such that it will benefit both industry and the States for the changes
to become effective sooner, rather than later.
III. How Are We Changing the Applicability of the Final Rule?
The existing NESHAP for benzene waste operations require that
organic vapors be routed to a control device that meets the applicable
design and operation requirements in 40 CFR 61.349. Provisions are
included for enclosed combustion devices (e.g., vapor incinerator,
boiler, or process heater) and vapor recovery systems (carbon canister,
condenser).
We are adding an exemption to 40 CFR 61.340 of the NESHAP for
gaseous waste streams from a waste management unit, treatment process,
or wastewater treatment system that are routed to a fuel gas system.
With the exemption, a facility can route the waste gas stream to the
fuel gas system to reuse the gases as fuel for heaters, furnaces,
boilers, incinerators, gas turbines, or other combustion devices.
Because the gas stream goes into the general fuel gas system where it
mixes with other fuel gases, it is not possible to specify which
particular combustion device ultimately receives the waste stream
gases. For that reason, the exemption allows the use of any control
device (enclosed combustion unit) connected to the fuel gas system, and
does not require the owner or operator to specify a specific control
device. A similar exemption is included in the existing NESHAP for
petroleum refineries (40 CFR part 63, subpart CC).
Including the exemption eliminates conflicting regulatory
requirements, reduces energy needs, and saves costs. The exemption
already contained in the petroleum refinery NESHAP implements the
current technology-based requirements of section 112 of the CAA. We
have determined that the exemption also satisfies the risk-based
requirements of the benzene waste NESHAP since no increase in air
emissions (or associated health risk) will result. Air emissions are
not increased because the gases are ultimately burned in enclosed
combustion devices within the facility that typically have high
combustion efficiencies for organic HAP. Additional information is
available in Docket A-2001-23.
IV. What Is The New Compliance Option for Tanks?
Currently, 40 CFR 63.343 of the benzene waste NESHAP requires a
fixed-roof and closed-vent system that routes all organic vapors from
the tank to a control device. In certain cases, only a fixed-roof is
required for tanks with low-volatility waste.
The new control option allows tanks to be located inside a
permanent total enclosure with a closed-vent system that routes organic
vapors to an enclosed combustion control device. The requirements for
that option are the same as Tank Level 2 control requirements in 40 CFR
264.1084(i) and 40 CFR 265.1085(i) of the subpart CC rules and include:
[sbull] Locating the tank inside an enclosure designed and operated
to meet the criteria for a permanent total enclosure in ``Procedure T--
Criteria for and Verification of a Permanent or Temporary Total
Enclosure'' in 40 CFR 52.741, appendix B. Provisions are included for
permanent or temporary openings in the enclosure to allow for access
and other needs.
[sbull] Routing emissions from the total enclosure through a
closed-vent system to an enclosed combustion control device. The
combustion control device must be designed and operated to meet the
standards for a vapor incinerator, boiler, or process heater in 40 CFR
63.349(a)(2)(i) of subpart FF.
The Tank Level 2 requirements implement RCRA provisions (42 U.S.C.
6924(n)) which require health-based rules sufficient to protect human
health and the environment from air emissions from hazardous waste. We
have determined that those provisions also satisfy the statutory risk-
based requirements of the benzene waste NESHAP.
The Tank Level 2 requirements result in an overall HAP control
efficiency equivalent to the existing control requirements in the
benzene waste NESHAP. That is because the overall
[[Page 68529]]
control efficiency for a fixed roof tank is determined by the
efficiency of the control device. The overall control efficiency for a
control system with a permanent total enclosure is the product of the
enclosure capture efficiency times the efficiency of the control
device. The capture efficiency of a permanent total enclosure that
meets the Procedure T criteria in 40 CFR 52.741, appendix B is
considered to be 100 percent. The enclosed combustion control devices
required by the new option are the same combustion control devices
required by the existing benzene waste NESHAP (vapor incinerator,
boiler, or process heater). The option also requires that the control
devices be designed and operated according to the benzene waste NESHAP
requirements. Thus, the overall control efficiency achieved under the
new option is equivalent to the control efficiency achieved under the
existing benzene waste NESHAP. Additional information on our
determination is available in Docket A-2001-23.
The subpart CC rules allow for safety devices to be added to
enclosures and for venting emissions through the safety devices in the
event of an emergency. Today's amendments contain the same, needed
provisions, along with a definition of ``safety device.'' Briefly, a
safety device is a pressure relief valve, frangible disc, fusible plug,
or other type of device that opens only to prevent damage during an
unplanned, accidental, or emergency event by venting gases to the
atmosphere. Safety devices may be put on any enclosure or control
device as needed.
V. How Are We Clarifying the Standards for Containers?
We are revising the language in 40 CFR 61.345 of the benzene waste
NESHAP to clarify when a total enclosure is and is not required and
what requirements must be met for total enclosures. There are two ways
to control emissions from containers: (1) Vent emissions from a covered
or closed container directly to a control device, or (2) vent the
container inside a permanent total enclosure with a closed-vent system
that routes organic vapors to a control device. To further clarify the
requirements, we have added the same provisions for permanent total
enclosures as described for tanks. Those requirements are also the same
as the Container Level 3 controls in 40 CFR 264.1086(e) and 40 CFR
265.1087(e) of the RCRA air rules. Like tanks, we have determined that
the HAP control efficiency is equivalent to that achieved by a closed
container vented to a control device and that the provisions satisfy
the statutory risk-based requirements for that final rule. (See Docket
A-2001-23.)
VI. How Do I Demonstrate Initial and Continuous Compliance?
The requirements for demonstrating initial and continuous
compliance with the requirements for tanks or containers in a total
enclosure are the same as those required in the RCRA rules for
hazardous waste treatment, storage, and disposal facilities (40 CFR
parts 264 and 265, subpart CC). When the enclosure is first installed,
you must verify that the enclosure meets the criteria for a permanent
total enclosure according to the requirements in section 5 of
``Procedure T--Criteria for and Verification of a Permanent or
Temporary Total Enclosure'' in 40 CFR 52.741, appendix B. To
demonstrate continuous compliance, you must repeat the verification
procedure annually and keep records of the most recent set of
calculations and measurements performed to verify that the enclosure
meets the criteria in Procedure T, in addition to records required for
a closed-vent system and control device. A new paragraph is added to 40
CFR 61.356 of the benzene waste NESHAP to differentiate the
recordkeeping requirements for total enclosures from those associated
with the inspection requirements for covers, closed-vent systems, and
control devices.
To eliminate regulatory overlap, we have added a provision stating
that demonstration of compliance with the RCRA subpart CC rules also
demonstrates compliance with the requirements of the benzene waste
NESHAP. That means that no demonstration of initial compliance is
required by the NESHAP for a tank located inside a total enclosure if
the facility has demonstrated initial compliance with the Tank Level 2
control requirements in 40 CFR 264.1084(i) or 40 CFR 265.1085(i). That
provision also applies to a container located inside a total enclosure
if the facility has demonstrated initial compliance with the Container
Level 3 control requirements in 40 CFR 264.1086(e) or 40 CFR
265.1087(e). The same is true for demonstrating continuous compliance
by conducting annual verifications and keeping records of the
information required by 40 CFR 264.1089(d) or 40 CFR 264.1090(d). The
NESHAP require that records used for RCRA compliance purposes be made
available for inspection upon request.
VII. What Are the Administrative Requirements?
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines a ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of 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, we have determined
that today's amendments do not constitute a ``significant regulatory
action'' because they do not meet any of the above criteria. The
revisions are primarily technical actions with no significant policy
issues, are based on established criteria included in other EPA rules,
and employ accepted scientific methods. Amending the benzene waste
NESHAP increases flexibility, improves understanding of the existing
requirements, makes the benzene waste NESHAP consistent with the RCRA
air rules for waste management, reduce costs, and have no environmental
impacts. Consequently, the action was not submitted to OMB for review
under Executive Order 12866.
B. 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
[[Page 68530]]
the States, or on the distribution of power and responsibilities among
the various levels of government.''
The direct final rule 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. None of the affected
facilities are owned or operated by State governments. Thus, the
requirements of section 6 of the Executive Order do not apply to the
direct final rule.
C. 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 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
The rule amendments do not have tribal implications. They will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175. No
tribal governments own facilities subject to the benzene waste NESHAP.
Thus, Executive Order 13175 does not apply to the direct final rule
amendments.
D. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant,'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA 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 EPA.
The direct final rule is not subject to Executive Order 13045
because it is not an economically significant regulatory action as
defined by Executive Order 12866. The EPA interprets Executive Order
13045 as applying only to regulatory actions that are based on health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. The
NESHAP for benzene waste operations is based on protection of the
public health with an ample margin of safety. However, the amendments
to the benzene waste NESHAP have no effect on the level of emissions
from benzene waste operations or associated risk and are not subject to
Executive Order 13045.
E. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
The direct final rule is not subject to Executive Order 13211, (66
FR 28355, May 22, 2001) because it is not a significant regulatory
action under Executive Order 12866.
F. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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, the
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 by State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the 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 the EPA
to adopt an alternative other than the least-costly, most cost-
effective, or least-burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before the EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that the amendments do not contain 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 in any 1 year. No costs are attributable to the
amendments. In addition, the direct final rule does not significantly
or uniquely impact small governments because it contains no
requirements that apply to such governments or impose obligations upon
them. Thus, the requirements of the UMRA do not apply to the direct
final rule.
G. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The 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 impacts of today's final rule on
small entities, small entity is defined as: (1) A small business
according to the Small Business Administration (SBA) size standards by
NAICS code; (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 its field.
The EPA determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with these final amendments. The EPA
also determined that the amendments will not impose a significant
economic impact on a substantial number of small
[[Page 68531]]
entities. The amendments impose no additional requirements on new or
existing regulated facilities. In addition, by allowing the use of
existing equipment under new alternative compliance options, these
amendments decrease the compliance costs and reduce capital and
operating costs for a few facilities. Therefore, pursuant to the
provisions of 5 U.S.C. 605(b), I certify that this action will not have
a significant economic impact on a substantial number of small
entities.
H. Paperwork Reduction Act
The OMB approved the information collection requirements in the
1990 NESHAP for benzene waste operations under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB
control number No. 2060-0183. A copy of the information collection
request (ICR) document for the 1990 NESHAP for benzene waste operations
(ICR No. 1541.06) may be obtained from Susan Auby by mail at U.S EPA,
Office of Environmental Information, Collection Strategies Division
(2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail
at auby.susan@epa.gov, or by calling (202) 566-1672.
The amendments require facilities using total enclosures for tanks
or containers to verify the integrity of the enclosure initially, when
first installed, and annually thereafter. The amendments also require
facilities to keep records of the most recent set of calculations and
measurements performed to verify that the total enclosure meets the
specified criteria. The requirements are identical to other EPA air
rules for waste management in 40 CFR parts 264 and 265, subpart CC. A
facility that is already meeting the subpart CC requirements is not
required to make duplicate verifications or keep duplicate records, but
must make the subpart CC records available for inspection upon request.
The recordkeeping requirements, which are needed to determine
compliance, are specifically authorized under section 114 of the CAA
(42 U.S.C. 7414). The information collection requirements in the direct
final rule will have no net impact on the information collection burden
estimates included in the ICR for the 1990 benzene waste NESHAP,
because the only facility with a total enclosure is already conducting
annual verifications and keeping the prescribed records. Consequently,
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 purpose of collecting, validating, and
verifying information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
respond to a collection of information; search existing 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 number for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113 (March 7, 1996)(15 U.S.C. 272
note), directs EPA to use voluntary consensus standards (VCS) in their
regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impracticable. Voluntary
consensus standards are technical standards (e.g., material
specifications, test methods, sampling and analytical procedures,
business practices, etc.) developed or adopted by one or more voluntary
consensus bodies. The NTTAA directs EPA to provide Congress, through
annual reports to OMB, with explanations when EPA does not use
available and applicable VCS.
The direct final rule requires the use of ``Procedure T-Criteria
for and Verification of a Permanent or Temporary Total Enclosure'' in
40 CFR 52.741, appendix B. That procedure uses established and
commonly-accepted techniques and calculations to confirm the efficiency
of the enclosure. The procedure is required for all State
implementation plans and in other EPA rules. We have not been able to
identify any applicable VCS. Accordingly, the NTTAA requirement does
not apply to the direct final rule. Nevertheless, as provided by the
NESHAP General Provisions in 40 CFR part 61, subpart A, any State or
facility may apply to EPA for permission to use an alternative method.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing the direct final
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the direct final rule in the Federal Register.
The direct final rule is not a ``major rule'' as defined by 5 U.S.C.
804(2). The direct final rule will be effective on February 10, 2002.
List of Subjects in 40 CFR Part 61
Environmental protection, Administrative practice and procedures,
Air pollution control, Hazardous substances, Reporting and
recordkeeping requirements.
Dated: November 1, 2002.
Christine Todd Whitman,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, part
61 of the Code of Federal Regulations is amended as follows:
PART 61--[AMENDED]
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart FF--[AMENDED]
2. Section 61.340 is amended by adding paragraph (d) to read as
follows:
Sec. 61.340 Applicability.
* * * * *
(d) At each facility identified in paragraph (a) or (b) of this
section, any gaseous stream from a waste management unit, treatment
process, or wastewater treatment system routed to a fuel gas system, as
defined in Sec. 61.341, is exempt from this subpart. No testing,
monitoring, recordkeeping, or reporting is required under this subpart
for any gaseous stream from a waste management unit, treatment process,
or wastewater treatment unit routed to a fuel gas system.
3. Section 61.341 is amended by adding new definitions in
alphabetical order for the terms ``Fuel gas system'' and ``Safety
device'' to read as follows:
Sec. 61.341 Definitions.
* * * * *
Fuel gas system means the offsite and onsite piping and control
system that gathers gaseous streams generated by facility operations,
may blend them with sources of gas, if available, and
[[Page 68532]]
transports the blended gaseous fuel at suitable pressures for use as
fuel in heaters, furnaces, boilers, incinerators, gas turbines, and
other combustion devices located within or outside the facility. The
fuel is piped directly to each individual combustion device, and the
system typically operates at pressures over atmospheric.
* * * * *
Safety device means a closure device such as a pressure relief
valve, frangible disc, fusible plug, or any other type of device which
functions exclusively to prevent physical damage or permanent
deformation to a unit or its air emission control equipment by venting
gases or vapors directly to the atmosphere during unsafe conditions
resulting from an unplanned, accidental, or emergency event. For the
purpose of this subpart, a safety device is not used for routine
venting of gases or vapors from the vapor headspace underneath a cover
such as during filling of the unit or to adjust the pressure in this
vapor headspace in response to normal daily diurnal ambient temperature
fluctuations. A safety device is designed to remain in a closed
position during normal operations and open only when the internal
pressure, or another relevant parameter, exceeds the device threshold
setting applicable to the air emission control equipment as determined
by the owner or operator based on manufacturer recommendations,
applicable regulations, fire protection and prevention codes, standard
engineering codes and practices, or other requirements for the safe
handling of flammable, ignitable, explosive, reactive, or hazardous
materials.
* * * * *
4. Section 61.343 is amended by:
a. Revising paragraph (a) introductory text;
b. Adding paragraph (a)(2); and
c. Adding paragraph (e).
The revision and additions read as follows:
Sec. 61.343 Standards: Tanks.
(a) Except as provided in paragraph (b) of this section and in
Sec. 61.351, the owner or operator must meet the standards in
paragraph (a)(1) or (2) of this section for each tank in which the
waste stream is placed in accordance with Sec. 61.342 (c)(1)(ii). The
standards in this section apply to the treatment and storage of the
waste stream in a tank, including dewatering.
(1) * * *
(2) The owner or operator must install, operate, and maintain an
enclosure and closed-vent system that routes all organic vapors vented
from the tank, located inside the enclosure, to an enclosed combustion
control device in accordance with the requirements specified in
paragraph (e) of this section.
* * * * *
(e) Each owner or operator who controls air pollutant emissions by
using an enclosure vented through a closed-vent system to an enclosed
combustion control device must meet the requirements specified in
paragraphs (e)(1) through (4) of this section.
(1) The tank must be located inside a total enclosure. The
enclosure must be designed and operated in accordance with the criteria
for a permanent total enclosure as specified in ``Procedure T--Criteria
for and Verification of a Permanent or Temporary Total Enclosure'' in
40 CFR 52.741, appendix B. The enclosure may have permanent or
temporary openings to allow worker access; passage of material into or
out of the enclosure by conveyor, vehicles, or other mechanical means;
entry of permanent mechanical or electrical equipment; or direct
airflow into the enclosure. The owner or operator must perform the
verification procedure for the enclosure as specified in section 5.0 of
Procedure T initially when the enclosure is first installed and,
thereafter, annually. A facility that has conducted an initial
compliance demonstration and that performs annual compliance
demonstrations in accordance with the requirements for Tank Level 2
control requirements 40 CFR 264.1084(i) or 40 CFR 265(i) is not
required to make repeat demonstrations of initial and continuous
compliance for the purposes of this subpart.
(2) The enclosure must be vented through a closed-vent system to an
enclosed combustion control device that is designed and operated in
accordance with the standards for either a vapor incinerator, boiler,
or process heater specified in Sec. 61.349.
(3) Safety devices, as defined in this subpart, may be installed
and operated as necessary on any enclosure, closed-vent system, or
control device used to comply with the requirements of paragraphs
(e)(1) and (2) of this section.
(4) The closed-vent system must be designed and operated in
accordance with the requirements of Sec. 61.349.
5. Section 61.345 is amended by revising paragraph (a)(3) to read
as follows:
Sec. 61.345 Standards: containers.
(a) * * *
(3) Treatment of a waste in a container, including aeration,
thermal or other treatment, must be performed by the owner or operator
in a manner such that while the waste is being treated the container
meets the standards specified in paragraphs (a)(3)(i) through (iii) of
this section, except for covers and closed-vent systems that meet the
requirements in paragraph (a)(4) of this section.
(i) The owner or operator must either:
(A) Vent the container inside a total enclosure which is exhausted
through a closed-vent system to a control device in accordance with the
requirements of paragraphs (a)(3)(ii)(A) and (B) of this section; or
(B) Vent the covered or closed container directly through a closed-
vent system to a control device in accordance with the requirements of
paragraphs (a)(3)(ii)(B) and (C) of this section.
(ii) The owner or operator must meet the following requirements, as
applicable to the type of air emission control equipment selected by
the owner or operator:
(A) The total enclosure must be designed and operated in accordance
with the criteria for a permanent total enclosure as specified in
section 5 of the ``Procedure T--Criteria for and Verification of a
Permanent or Temporary Total Enclosure'' in 40 CFR 52.741, appendix B.
The enclosure may have permanent or temporary openings to allow worker
access; passage of containers through the enclosure by conveyor or
other mechanical means; entry of permanent mechanical or electrical
equipment; or direct airflow into the enclosure. The owner or operator
must perform the verification procedure for the enclosure as specified
in section 5.0 of ``Procedure T--Criteria for and Verification of a
Permanent or Temporary Total Enclosure'' initially when the enclosure
is first installed and, thereafter, annually. A facility that has
conducted an initial compliance demonstration and that performs annual
compliance demonstrations in accordance with the Container Level 3
control requirements in 40 CFR 264.1086(e)(2)(i) or 40 CFR
265.1086(e)(2)(i) is not required to make repeat demonstrations of
initial and continuous compliance for the purposes of this subpart.
(B) The closed-vent system and control device must be designed and
operated in accordance with the requirements of Sec. 61.349.
(C) For a container cover, the cover and all openings (e.g., doors,
hatches) must be designed to operate with no detectable emissions as
indicated by an instrument reading of less than 500 ppmv above
background, initially and
[[Page 68533]]
thereafter at least once per year by the methods specified in Sec.
61.355(h).
(iii) Safety devices, as defined in this subpart, may be installed
and operated as necessary on any container, enclosure, closed-vent
system, or control device used to comply with the requirements of
paragraph (e)(1) of this section.
* * * * *
6. Section 61.356 is amended by adding paragraph (n) to read as
follows:
Sec. 61.356 Recordkeeping requirements.
* * * * *
(n) Each owner or operator using a total enclosure to comply with
control requirements for tanks in Sec. 61.343 or the control
requirements for containers in Sec. 61.345 must keep the records
required in paragraphs (n)(1) and (2) of this section. Owners or
operators may use records as required in 40 CFR 264.1089(b)(2)(iv) or
40 CFR 265.1090(b)(2)(iv) for a tank or as required in 40 CFR
264.1089(d)(1) or 40 CFR 265.1090(d)(1) for a container to meet the
recordkeeping requirement in paragraph (n)(1) of this section. The
owner or operator must make the records of each verification of a total
enclosure available for inspection upon request.
(1) Records of the most recent set of calculations and measurements
performed to verify that the enclosure meets the criteria of a
permanent total enclosure as specified in ``Procedure T--Criteria for
and Verification of a Permanent or Temporary Total Enclosure'' in 40
CFR 52.741, appendix B;
(2) Records required for a closed-vent system and control device
according to the requirements in paragraphs (d) (f), and (j) of this
section.
* * * * *
[FR Doc. 02-28499 Filed 11-8-02; 8:45 am]
BILLING CODE 6560-50-P