[Federal Register: August 18, 2004 (Volume 69, Number 159)]
[Rules and Regulations]
[Page 51184-51188]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au04-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2003-0196; FRL-7783-7]
RIN 2060-AK73
National Emission Standards for Hazardous Air Pollutants for
Stationary Combustion Turbines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; stay.
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SUMMARY: The EPA is staying the effectiveness of two subcategories of
the National Emission Standards for Hazardous Air Pollutants (NESHAP)
for stationary combustion turbines: Lean premix gas-fired turbines and
diffusion flame gas-fired turbines. Pending the outcome of EPA's
proposal to delete these subcategories from the source category list
(68 FR 18338, April 7, 2004), EPA is staying the effectiveness of the
emissions and operating limitations in the stationary combustion
turbines NESHAP for new sources in the lean premix gas-fired turbines
and diffusion flame gas-fired turbines subcategories. This action is
necessary to avoid wasteful and unwarranted expenditures on
installation of emission controls which will not be required if the
subcategories are delisted.
DATES: The final rule is effective on August 18, 2004.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2003-0196. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the EPA Docket Center (Air Docket), EPA/DC,
EPA West, Room B-102, 1301 Constitution Avenue, NW., Washington, DC
10460. 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, and the telephone number
for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Kelly Rimer, Office of Air Quality
Planning and Standards, Emission Standards Division, C404-01,
Environmental Protection Agency, Research Triangle Park, NC 27709;
telephone number: (919) 541-2962; fax number: 919-541-0840; e-mail
address: rimer.kelly@epa.gov.
SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities
potentially regulated by this action include:
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Category SIC NAICS Examples of regulated entities
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Any industry using a stationary combustion 4911 2211 Electric power generation, transmission, or distribution.
turbine as defined in the regulation.
4922 486210 Natural gas transmission.
1311 211111
........... ........... Crude petroleum and natural gas production.
1321 211112 Natural gas liquids producers.
4931 221
........... ........... Electric and other services combined.
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[[Page 51185]]
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is affected by this action,
you should examine the applicability criteria in Sec. 63.6085 of the
final rule and the subcategory definitions in Sec. 63.6090. 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.
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review is available only by filing a petition for review in the U.S.
Court of Appeals for the District of Columbia Circuit by 60 days from
publication in the Federal Register. Under section 307(d)(7)(B) of the
CAA, only an objection to a rule or procedure 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 may not be challenged
separately in any civil or criminal proceeding brought to enforce these
requirements.
I. Summary of Final Rule
EPA is issuing a final rule to stay the effectiveness of the
emission standards for new sources in two subcategories of the NESHAP
for stationary combustion turbines. The effect of this stay is to
suspend the obligation of sources in the lean premix gas-fired turbines
and diffusion flame gas-fired turbines subcategories to comply with the
emissions limitations and operating limitations set forth in 40 CFR
part 63, subpart YYYY. EPA is codifying this stay by amending the text
of 40 CFR 63.6095 as set forth below.
Under this stay, new sources in the in the lean premix gas-fired
turbines and diffusion flame gas-fired turbines subcategories, sources
constructed or reconstructed after January 14, 2003, are temporarily
relieved of the obligation to apply pollution controls and to comply
with associated operating, monitoring, and reporting requirements.
However, such sources must continue to submit Initial Notifications
pursuant to 40 CFR 63.6145.
The final stay shall take effect immediately upon publication in
the Federal Register, but only during the pendency of a separate
rulemaking to delist the subcategories. It is not our intention by
staying the effectiveness of the standards to change the definition of
new sources within these subcategories or to alter the status of any
individual source. If the subcategories are not ultimately delisted,
the stay will be lifted, and all sources in the subcategories
constructed or reconstructed after January 14, 2003 will then be
subject to the final standards. The sources will then be given the same
time to make the requisite demonstration of compliance they would have
had if there had been no stay.
II. Background
The final MACT standards for stationary combustion turbines were
published on March 5, 2004 (69 FR 10512). These standards, codified at
40 CFR part 63, subpart YYYY, define the subcategories for the
Stationary Combustion Turbines source category.
On April 7, 2004, EPA proposed a rule to amend the list of
categories of sources that was developed pursuant to Clean Air Act
(CAA) section 112(c)(1)(69 FR 18327). EPA proposed to delete four
subcategories from the Stationary Combustion Turbines source category.
The subcategories proposed for delisting, as defined in 40 CFR 63.6175,
are: (1) Lean premix gas-fired stationary combustion turbines (also
referred to herein as ``lean premix gas-fired turbines''), (2)
diffusion flame gas-fired stationary combustion turbines (also referred
to herein as ``diffusion flame gas-fired turbines''), (3) emergency
stationary combustion turbines, and 4) stationary combustion turbines
located on the North Slope of Alaska.
The proposed rule to amend the source category list was issued in
part to respond to a petition submitted by the Gas Turbine Association
(GTA) and in part upon the Administrator's own motion. Petitions to
remove a source category from the source category list are permitted
under section 112(c)(9) of the CAA. The proposed rule to delete the
four subcategories is based on an initial determination by EPA that the
subcategories satisfy the substantive criteria for deletion set forth
in section 112(c)(9)(B). The proposed rule to delete the subcategories
contains a detailed description of the technical basis for the initial
determination.
At the same time that EPA proposed to delist the four combustion
turbines subcategories, we also proposed a companion action to stay the
effectiveness of the standards in the lean premix gas-fired and
diffusion flame-subcategories (69 FR 18338, April 7, 2004).
III. Basis for Stay
Although EPA proposed to delete from the source category list four
subcategories established by the final MACT standards for stationary
combustion turbines, CAA section 112(d)(10) provides that the standards
as promulgated for the four subcategories take effect upon publication
of the standards. Without a stay, all turbines in the lean premix gas-
fired turbine and the diffusion flame gas-fired turbine subcategories
which were constructed or reconstructed after January 14, 2003, would
have been required to comply immediately with the emission standards
for new sources. This would have caused some sources in the two
subcategories to make immediate expenditures on installation and
testing of emission controls, even though such controls will not be
required if we issue a final rule to delete these subcategories.
In view of our initial determination that the statutory criteria
for delisting have been met for all sources in the four subcategories,
we consider it inappropriate and contrary to statutory intent to
mandate such expenditures until a final determination has been made
whether or not these subcategories should be delisted. Such
expenditures would be wasteful and unwarranted if we take final action
to delist these subcategories. Moreover, if we take final action to
delist the subcategories, sources constructed or reconstructed while
the rulemaking to delist is pending would bear a regulatory burden not
placed on identical sources constructed or reconstructed thereafter.
Accordingly, we are issuing this stay to the effectiveness of the
emission standards for new sources for the lean premix gas-fired
turbine and diffusion flame gas-fired turbine subcategories during the
pendency of the rulemaking to delete these subcategories.
We are mindful that there would be no need to stay the
effectiveness of the standards for new sources in the two subcategories
if a rulemaking to delist the affected sources had been completed
before promulgation of the final MACT standards for combustion
turbines. However, we note that the GTA petition was not submitted
until quite late in the regulatory process. Moreover, we generally do
not make a definite determination concerning the characteristics of
subcategories until promulgation of final MACT standards. In these
circumstances, we do not believe it would be fair to make certain
affected sources bear the burden of a delay in our determination that a
subcategory meets the statutory criteria for delisting.
The final stay is consistent with the precedents we have
established in similar circumstances in the past. In 1991, we issued a
final rule staying the effective date of the National Emission
[[Page 51186]]
Standards for Radionuclear Emissions From Federal Facilities Other Than
Nuclear Regulatory Commission Licensees and Not Covered by Subpart H
(40 CFR part 61, subparts H and I) for commercial nuclear power
reactors during the pendency of another rulemaking to rescind the
standards for those facilities (56 FR 37158, August 5, 1991). The
rescission was authorized by section 112(d)(9) of the CAA (the
``Simpson amendment''), which provides that we may decline to regulate
Nuclear Regulatory Commission (NRC) licensees under CAA section 112 if
the Administrator determines that the regulatory program established by
the NRC for a category or subcategory provides an ample margin of
safety to protect the public health. We had made an initial
determination that the NRC program for commercial nuclear power
reactors met this test, and we reasoned that ``it would frustrate the
evident purpose of Section 112(d)(9) if EPA were to permit Subpart I to
take effect for this subcategory during the pendency of the rulemaking
on rescission'' (56 FR 37159). That action was not challenged.
In 1995, we acted to provide another type of interim relief during
a delisting rulemaking. We suspended the listing of caprolactam during
a rulemaking to delete caprolactam from the list of hazardous air
pollutants established by CAA section 112(b)(1) for purposes of
determining the applicability of title V permitting requirements (60 FR
081, September 18, 1995). We based that action on our determination
that ``retention, during the rulemaking to delist caprolactam, of
permit application requirements which will no longer exist after the
delisting process has been completed would result in unnecessary
private and public expenditures on preparation, submission, and
processing of such applications, and would yield no environmental
benefits'' (60 FR 084-85). That interim relief action also was not
challenged.
IV. Summary of Comments and EPA Responses
The EPA received six comments on the proposed stay and all
commenters supported the proposed EPA action; we received no comments
opposing the stay.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adverse affect in a material way the economy, a sector to 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 obligation 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 the final action constitutes a ``significant regulatory
action'' because it may raise novel policy issues and is therefore
subject to OMB review. Changes made in response to OMB suggestions or
recommendations are documented in the public record (see ADDRESSES
section of this preamble).
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.
The final action stays the effectiveness of the combustion turbines
NESHAP for new sources in the lean premix gas-fired turbines and
diffusion flame gas-fired turbines subcategories until a conclusion is
reached regarding deletion of these subcategories. Therefore, this rule
eliminates the need for information collection for regulatory
compliance purposes under the CAA.
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 are
listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act (RFA)
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final rule. For
the purposes of assessing the impacts of today's final rule on small
entities, small entity is defined as: (1) A small business that meets
the definitions for small business based on the Small Business
Association (SBA) size standards which, for this final action, can
include manufacturing (NAICS 3999-03) and air transportation (NAICS
4522-98 and 4512-98) operations that employ less 1,000 people and
engineering services operations (NAICS 8711-98) that earn less than $20
million annually; (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 impact of today's final rule on
small entities, EPA has concluded that this final action will not have
a significant economic impact on a substantial number of small
entities. In determining whether a rule has 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 final rule on small entities.'' (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 effect on all of the small entities subject to the rule.
The final rule stays the effectiveness of the stationary combustion
turbines NESHAP for new sources in the lean premix gas-fired turbines
and diffusion flame gas-fired turbines subcategories. This will suspend
the requirements to apply pollution controls and associated
[[Page 51187]]
operating, monitoring, and reporting requirements. These requirements
will be permanently lifted if EPA ultimately removes the four source
categories from the Stationary Combustion Turbines source category, and
temporarily lifted if EPA does not ultimately delist the subcategories.
We have, therefore, concluded that today's final rule will relieve
regulatory burden for all small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 1044, 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
1 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.
Today's final rule contains no Federal mandates for State, local,
or tribal governments or the private sector. The final rule imposes no
enforceable duty on any State, local or tribal governments or the
private sector. In any event, EPA has determined that the final rule
does not contain a Federal mandate that may result in expenditures of
$100 million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. Thus, today's final
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
The EPA has determined that the final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The final rule relieves a regulatory requirement.
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.'' The term ``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 final
regulation. The 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
final regulation.
Today's action stays the effectiveness of the stationary combustion
turbines NESHAP for new sources in the lean premix gas-fired turbines
and diffusion flame gas-fired turbines subcategories. It does not
impose any additional requirements on the States and does not affect
the balance of power between the States and the Federal government.
Thus, the requirements of section 6 of Executive Order 13132 do not
apply to the final 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.'' The final rule does not have
tribal implications, as specified in Executive Order 13175. The final
action stays the effectiveness of the stationary combustion turbines
NESHAP for new sources in the lean premix gas-fired turbines and
diffusion flame gas-fired turbines subcategories. Executive Order 13175
does not apply to the final rule.
G. 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 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.
The EPA interprets Executive Order 13045 as applying only to those
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 final rule is not
subject to Executive Order 13045 because it is not economically
significant as defined in Executive Order 12866, and because this
action is not based on health or safety risks. Thus, Executive Order
13045 does not apply to the final rule.
H. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211, ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), requires EPA to prepare and submit a Statement of
Energy Effects to the Administrator of the Office of Information and
Regulatory Affairs, Office of Management and Budget, for certain
actions identified as ``significant energy actions.'' The final rule is
not a ``significant energy action'' because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
[[Page 51188]]
I. National Technology Transfer and Advancement Act
Section 112(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) 915 U.S.C. 272
note), directs all Federal agencies to use voluntary consensus
standards instead of government-unique standards in their regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., material specifications, test method, sampling and
analytical procedures, business practices, etc.) that are developed or
adopted by one or more voluntary consensus standards bodies. Examples
of organizations generally regarded as voluntary consensus standards
bodies include the American society for Testing and Materials (ASTM),
the National Fire Protection Association (NFPA), and the Society of
Automotive Engineers (SAE). The NTTAA requires Federal agencies like
EPA to provide Congress, through OMB, with explanations when an agency
decides not to use available and applicable voluntary consensus
standards. The final rule 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 will submit a report containing today's 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 rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2). The final rule
will be effective on August 18, 2004.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: July 1, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I, part 63
of the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart YYYY--National Emissions Standards for Hazardous Air
Pollutants for Stationary Combustion Turbines
0
2. Section 63.6095 is amended by revising paragraph (a) and by adding
paragraph (d) to read as follows:
Sec. 63.6095 When do I have to comply with this subpart?
(a) Affected sources. (1) If you start up a new or reconstructed
stationary combustion turbine which is a lean premix oil-fired
stationary combustion turbine or a diffusion flame oil-fired stationary
combustion turbine as defined by this subpart on or before March 5,
2004, you must comply with the emissions limitations and operating
limitations in this subpart no later than March 5, 2004.
(2) If you start up a new or reconstructed stationary combustion
turbine which is a lean premix oil-fired stationary combustion turbine
or a diffusion flame oil-fired stationary combustion turbine as defined
by this subpart after March 5, 2004, you must comply with the emissions
limitations and operating limitations in this subpart upon startup of
your affected source.
* * * * *
(d) Stay of standards for gas-fired subcategories.
If you start up a new or reconstructed stationary combustion
turbine that is a lean premix gas-fired stationary combustion turbine
or diffusion flame gas-fired stationary combustion turbine as defined
by this subpart, you must comply with the Initial Notification
requirements set forth in Sec. 63.6145 but need not comply with any
other requirement of this subpart until EPA takes final action to
require compliance and publishes a document in the Federal Register.
[FR Doc. 04-15529 Filed 8-17-04; 8:45 am]
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