[Federal Register: December 4, 2003 (Volume 68, Number 233)]
[Rules and Regulations]
[Page 67931-67936]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de03-13]
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Part V
Environmental Protection Agency
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40 CFR Part 61
National Emission Standard for Benzene Waste Operations; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[OAR-2003-0147; FRL-7594-3]
RIN 2060-AJ87
National Emission Standard for Benzene Waste Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On November 12, 2002, the EPA issued amendments to the
national emission standard for benzene waste operations as a direct
final rule, along with a parallel proposal to be used as a basis for
final action in the event we received any adverse comments. Because an
adverse comment was received on provisions related to control devices,
we withdrew the corresponding parts of the direct final rule on
February 6, 2003. This action promulgates the provisions that were
withdrawn based on the proposed rule published on November 12, 2002.
This action also amends the rule to correct a cross-reference citation.
EFFECTIVE DATE: December 4, 2003.
ADDRESSES: The official public docket is available for public viewing
at the EPA Docket Center, EPA West, Room B-102, 1301 Constitution Ave.,
NW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Waste and
Chemical Process Group (C504-05), Emission Standards Division, Office
of Air Quality Planning and Standards, U.S. EPA, Research Triangle
Park, NC 27711, telephone number (919) 541-0884, facsimile number (919) 541-5600, electronic mail (e-mail) address, lucas.bob@epa.gov.
SUPPLEMENTARY INFORMATION
Regulated Entities. Categories and entities potentially regulated
by this action include:
------------------------------------------------------------------------
Examples of
Category NAIC\1\ regulated entities
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Industry......................... 32512-325182 Chemical
32411 manufacturing
331111 plants, petroleum
22121 refineries, coke by-
562211 product recovery
324110 plants, and
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.
------------------------------------------------------------------------
\1\ North American Industry Classification System
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by the
final rule amendments. To determine whether your facility is regulated
by the final rule amendments, you should examine the applicability
criteria in 40 CFR 61.340 of the national emission standard for benzene
waste operations. If you have any questions concerning applicability
and rule determinations, contact the technical contact person in the
preceding FOR FURTHER INFORMATION CONTACT section.
Docket. The EPA has established an official public docket for this
action including both Docket ID No. OAR-2003-0147 and Docket ID No. A-
2001-23. The official public docket consists of the documents
specifically referenced in this action, any public comments received,
and other information related to this action. All items may not be
listed under both docket numbers, so interested parties should inspect
both docket numbers to ensure that they have received all materials
relevant to the final rule amendments. Although a part of the official
docket, the public docket does not include Confidential Business
Information or other information whose disclosure is restricted by
statute. The official public docket is available for public viewing at
the EPA Docket Center (Air Docket), EPA West, Room B-102, 1301
Constitution Ave., NW., Washington DC. The EPA Docket Center 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 Reading
Room is (202) 566-1744, and the telephone number for the Air Docket is
(202) 566-1742.
Electronic Docket Access. You may access the final rule amendments
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket to view public comments,
access the index listing the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Once in the system, select ``search,'' then key in the
appropriate docket identification number. Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the EPA Docket Center.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's final rule amendments will also be
available on the WWW through the Technology Transfer Network (TTN).
Following the Administrator's signature, a copy of the final rule
amendments 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.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of the final rule amendments is available only
by filing a petition for review in the U.S. Court of Appeals for the
District of Columbia Circuit by February 2, 2004. Under section
307(d)(7)(B) of the CAA, only an objection to the final rule amendments
that was raised with reasonable specificity during the period for
public comment can be raised during judicial review. Moreover, under
section 307(b)(2) of the CAA, the requirements established by the final
rule amendments may not be challenged separately in any civil or
criminal proceedings brought by the EPA to enforce these requirements.
Outline. The information in this preamble is organized as follows:
I. Background
II. Response to Comment on Amendments to the National Emission
Standard for Benzene Waste Operations
III. Editorial Correction to the Amendments
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
[[Page 67933]]
C. Regulatory Flexibility Analysis
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Background
On March 7, 1990, we issued the national emission standard for
benzene waste operations (40 CFR part 61, subpart FF). 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
facilities.
On November 12, 2002, we issued a direct final rule (67 FR 68528)
and a parallel proposed rule (67 FR 68546) to amend the national
emission standard for benzene waste operations. We stated in the
preamble to the direct final rule and parallel proposal that if we
received adverse comments by December 12, 2002 (or February 18, 2003,
if a public hearing was requested), on one or more distinct provisions
of the direct final rule, we would publish a timely notice in the
Federal Register specifying which provisions will become effective and
which provisions will be withdrawn due to adverse comment.
We subsequently received an adverse comment from one commenter on
the provisions related to control devices in a new compliance option
for tanks equipped with an enclosure.
Accordingly, we withdrew 40 CFR 61.343(e) introductory text and
withdrew and reserved paragraph (e)(2) in Sec. 61.343 (68 FR 6082,
February 6, 2003). The remaining provisions, for which we did not
receive any adverse comments, became effective on February 10, 2002.
After full and careful consideration of the comment, we are
promulgating the amendments previously withdrawn based on the parallel
proposal published on November 12, 2002.
II. Response to Comment on Amendments to the National Emission Standard
for Benzene Waste Operations
The direct final rule published on November 12, 2002, included
amendments to 40 CFR 61.343 of the benzene waste final rule that add a
new compliance option for tanks located inside a permanent total
enclosure. The new compliance option was 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, subparts CC). This change was first requested as an
alternative emission limitation by a company subject to both the
benzene waste final rule and the RCRA subparts CC rules. Under 40 CFR
264.1082(c)(5) and 265.1083(c)(5) of the RCRA rules, tanks are
specifically exempted from the standards provided that, among other
conditions, the tank is located inside an enclosure, and the enclosure
is vented to a control device designed and operated in accordance with
the requirements in the benzene waste national emission standard.
Prior to development of the direct final rule amendments and
parallel proposal, we reviewed the information submitted by the company
and determined that their control system (a tank located inside a
permanent total enclosure with emissions vented through a closed vent
system to an enclosed combustion device) provided a level of control of
benzene equivalent to that required by the national emission standard
for benzene waste operations. Based on this equivalency determination,
we issued direct final rule amendments to the national emission
standard by adding a new compliance option that allowed tanks to be
located inside a permanent total enclosure that routes organic vapors
to an ``enclosed combustion control device.'' This is the most common
type of control device used for tanks located inside a total enclosure.
The commenter objected to provisions that restricted applicable
emission controls for the compliance option (i.e. the controls on the
emissions from the tank in the enclosure) to an ``enclosed combustion
control device.'' He correctly pointed out that the national emission
standard allows a wide range of control devices to be used to comply
with the requirements. In fact, a ``control device'' is defined in 40
CFR 61.341 of the rule to mean an enclosed combustion device (vapor
incinerator, boiler, or process heater); a vapor recovery system
(carbon canister or condenser); or flare.
The commenter also stated that the amendments were inconsistent
with the spirit of 40 CFR 264.1082(c)(5) and 265.1083(c)(5) of the RCRA
rules, in that they would lead to situations where the RCRA rules would
continue to apply but were not, in fact, intended to be applicable any
longer. The anomalous situation put forward by the commenter would be
where a tank is located inside an enclosure, and the enclosure is
vented to a vapor recovery system designed and operated in accordance
with the requirements in the benzene waste national emission standard.
The commenter stated that their tanks meet all the requirements for the
exemption from the RCRA rules. In this case, however, the control
device applied to the emissions from the permanent total enclosure is
not an enclosed combustion control device. Consequently, the facility
would not qualify for the RCRA exemption, an unintended outcome.
It was not our intention to restrict the new compliance option for
tanks to enclosed combustion control devices. Any of the control
devices allowed under the benzene waste national emission standard can
be used under the new compliance option provided it meets the control
device performance standards in 40 CFR 61.349 of subpart FF. The
benzene waste national emission standard also contains procedures and
requirements for requesting approval of a control device other than an
enclosed combustion system, vapor recovery system, or flare.
We agree with the issue raised by the commenter and are issuing
final amendments to the new compliance option, based on the parallel
proposal, that refer simply to the use of a ``control device.'' This
change allows a tank meeting all of the conditions for exemption under
40 CFR 264.1082(c)(5) and 265.1083(c)(5) of the RCRA rules to comply
with the new compliance option using a ``control device'' as defined in
40 CFR 61.341 of the benzene waste national emission standard (meaning
an enclosed combustion device, vapor recovery system, or flare). This
change is effective immediately. No risk, environmental, energy, cost,
or economic impacts are associated with this action.
III. Editorial Correction to the Amendments
Since publication of the direct final rule amendments and parallel
proposal, we identified one cross-reference error. As proposed,
paragraph (a)(3)(iii) of 40 CFR 61.345 allowed the use of safety
devices on any container, enclosure, closed-vent system, or control
device used to comply with the requirements of ``paragraph (e)(1) of
this section,'' which does not exist. We have corrected this citation
in today's final rule amendments by referencing the control
requirements in 40 CFR 61.345(a)(3)(i).
[[Page 67934]]
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether 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.
It has been determined that the final rule amendments are not a
``significant regulatory action'' under the terms of Executive Order
12866 and are, therefore, not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
because the only facility with a total enclosure is already conducting
annual verifications and keeping the prescribed records. However, the
OMB has previously approved the information collection requirements in
the existing national emission standard (40 CFR part 61, subpart FF)
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0183.
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 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 Analysis
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the final rule
amendments. For the purposes of assessing the impact of today's final
rule amendments on small entities, small entity is defined as: (1) A
small business according to the Small Business Administration (SBA)
size standards by NAICS code ranging from 500 to 1,500 employees; (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.
After considering the economic impacts of today's final rule
amendments on small entities, EPA has concluded that this action will
not impose a significant economic impact on a substantial number of
small entities. In determining whether a rule has a significant
economic impact on a substantial number of small entities, the impact
of concern is any significant adverse economic impact on small
entities, since the primary purpose of the regulatory flexibility
analysis is to identify and address regulatory alternatives ``which
minimize any significant economic impact of the proposed rule on small
entities.'' (See 5 U.S.C. 603 and 604.) Thus, an agency may conclude
that a rule will not have a significant economic impact on a
substantial number of small entities if the rule relieves regulatory
burden, or otherwise has a positive economic impact on all of the small
entities subject to the rule. These final rule amendments will not
create any new costs for affected firms. In fact, the final rule
amendments will relieve the regulatory burden for all facilities, large
or small, by broadening the types of control devices that can be used
to meet the requirements in RCRA rules for exemption from standards for
tanks. This will decrease compliance costs for a few facilities subject
to both the RCRA and CAA rules. We have, therefore, concluded that
today's final rule amendments will relieve regulatory burden for all
small entities that are subject to both the RCRA and CAA standards for
tanks located inside a permanent total enclosure.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess 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.
Today's final rule amendments contain no Federal mandate (under the
regulatory provisions of the UMRA) for State, local, or tribal
governments. The EPA has determined that the final rule amendments do
not contain a Federal mandate that may result in expenditures for
State, local, or tribal governments, in the aggregate, or to the
private sector of $100 million or more in any 1 year. No costs are
attributable to the amendments. Thus, the final rule amendments are not
subject to the requirements of sections 202 and 205 of the UMRA. The
EPA has also
[[Page 67935]]
determined that the final rule amendments contain no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, the final rule amendments are not subject to the
requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
These final rule amendments do not have federalism implications.
They will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. None of the affected
facilities are owned or operated by State governments. Thus, Executive
Order 13132 does not apply to the final rule amendments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (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.'' These final rule amendments do not
have tribal implications, as specified in Executive Order 13175. They
will not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. No tribal governments own facilities
subject to the benzene waste national emission standard. Thus,
Executive Order 13175 does not apply to the final rule amendments.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant,'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the 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 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 national emission
standard 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 national emission standard have no effect on the
level of emissions from benzene waste operations or associated risk and
are not subject to Executive Order 13045.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
The final rule amendments are not subject to Executive Order 13211
(66 FR 28355, May 22, 2001) because they are not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113; 15 U.S.C. 272 note), directs
EPA to use voluntary consensus standards 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.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
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 has submitted a report containing the final rule
amendments 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 final rule amendments in today's
Federal Register. The final rule amendments are not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 61
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: November 25, 2003.
Michael O. Leavitt,
Administrator.
0
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]
0
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart FF--[AMENDED]
0
2. Section 61.343 is amended by:
0
a. Revising paragraph (a)(2);
0
b. Adding paragraph (e) introductory text; and
0
c. Adding paragraph (e)(2).
The revisions and additions read as follows:
Sec. 61.343 Standards: Tanks.
(a) * * *
(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 a 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 a control
device must meet the requirements specified in paragraphs (e)(1)
through (4) of this section.
[[Page 67936]]
(1) * * *
(2) The enclosure must be vented through a closed-vent system to a
control device that is designed and operated in accordance with the
standards for control devices specified in Sec. 61.349.
* * * * *
0
3. Section 61.345 is amended by revising paragraph (a)(3)(iii) to read
as follows:
Sec. 61.345 Standards: Containers.
(a) * * *
(3) * * *
(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 (a)(3)(i) of this section.
* * * * *
[FR Doc. 03-30163 Filed 12-3-03; 8:45 am]
BILLING CODE 6560-50-P