[Federal Register: July 11, 2005 (Volume 70, Number 131)]
[Rules and Regulations]
[Page 39662-39664]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy05-11]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2002-0038, FRL-7935-4]
RIN 2060-AK52
National Emission Standards for Hazardous Air Pollutants:
Requirements for Control Technology Determinations for Major Sources in
Accordance With Clean Air Act Sections, Sections 112(g) and 112(j)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendment.
-----------------------------------------------------------------------
SUMMARY: We are amending table 1 to subpart B of part 63 to reflect the
revised deadlines in a recently amended consent decree. The final rule
amendment (and amended consent decree) relates to boilers and
hydrochloric acid production furnaces that burn hazardous waste. We are
making the amendment by final rule, without prior proposal, because we
view the amendment as a technical correction to an existing regulation.
DATES: Effective Dates: July 11, 2005.
ADDRESSES: Docket: The docket for the final rule amendment is Docket ID
No. OAR-2002-0038. 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., confidential
business information (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 HQ
EPA Docket Center, Docket ID No. OAR-2002-0038, EPA West Building, Room
B-102, 1301 Constitution Ave., NW., Washington, DC. 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 EPA Docket
Center is (202) 566-1742. A reasonable fee may be charged for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, EPA, Office of Air
Quality Planning and Standards, Emission Standards Division, Minerals
and Inorganic Chemicals Group (C504-05), Research Triangle Park, North
Carolina 27711; telephone number (919) 541-5262; fax number (919) 541-
5600; e-mail address: colyer.rick@epa.gov.
SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause
finds that notice and public procedure are impracticable, unnecessary,
or contrary to the public interest, the agency may issue a rule without
providing notice and an opportunity for public comment. The EPA has
determined that there is good cause for making today's rule final
without prior proposal and opportunity for public comment because the
change is simply a conforming change to be
[[Page 39663]]
consistent with a judicial consent decree date change. Thus, notice and
public procedure are unnecessary. EPA finds that this constitutes good
cause under 5 U.S.C. 553(b)(B).
Regulated Entities. Categories and entities potentially regulated
by this action include:
Table 1.--Regulated Categories and Entities
----------------------------------------------------------------------------------------------------------------
Examples of regulated
Category NAICS \1\ entities
----------------------------------------------------------------------------------------------------------------
Industrial/commercial /institutional 327992.................................... Ground or treated mineral and
boilers and process heaters, and 325....................................... earth manufacturing.
hydrochloric acid production 324....................................... Chemical manufacturers.
furnaces that combust hazardous 331....................................... Petroleum refiners.
waste. 333....................................... Primary aluminum.
488, 561, 562............................. Photographic equipment and
supplies.
Sanitary services, N.E.C.\2\
421....................................... Scrap and waste materials.
422....................................... Chemical and allied products,
N.E.C.\2\
512, 541, 561, 812........................ Business services, N.E.C.\2\
512, 514, 541, 711........................ Services, N.E.C.\2\
924....................................... Air, water, and solid waste
management.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ Not elsewhere classified.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. 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.
Worldwide Web (WWW). In addition to being available in the docket,
electronic copies of today's action will be posted on the Technology
Transfer Network's (TTN) policy and guidance information page at http://www.epa.gov/ttn/caaa.
The TTN provides information and technology
exchange in various areas of air pollution control.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of the final rule amendment is available only by
filing a petition for review in the U.S. Court of Appeals for the
District of Columbia by September 9, 2005. Moreover, under section
307(b)(2) of the CAA, the requirements established by the final rule
amendment may not be challenged separately in any civil or criminal
proceedings brought by EPA to enforce these requirements.
I. New Schedule for Part 2 Permit Applications
Section 112(j) of the CAA provides a mechanism for subjecting major
sources to emission standards reflecting performance of maximum
available control technology (MACT) in the event that EPA fails to
issue a MACT standard within the deadlines established in CAA section
112(e). In essence, if EPA fails to issue a timely MACT standard,
section 112(j) requires major sources to submit permit applications to
the relevant permitting authority. The permitting authority must then
establish emission limitations for the source representing the
authority's best estimate of what the MACT standard for the source
would have been.
On May 30, 2003 (68 FR 32586), EPA issued final rules establishing
dates for submitting CAA section 112(j) Part 2 permit applications, and
provisions relating to the substance of those applications should they
become due. Today's action deals solely with the issue of applicable
dates for submitting applications.
Section 112(j) Part 2 permit application submittal dates are
codified in subpart B of 40 CFR part 63 by source category. The dates
are 60 days after the scheduled MACT rule completion dates for the
respective source category established by the consent decree entered in
Sierra Club v. Johnson, no. 1:01CV01537 (D.C.D.C.). In adopting these
dates, and in particular by which the dates are tied to consent decree
deadlines, we considered the possibility of what would happen if the
consent decree deadlines were modified. We stated that if the deadline
for promulgation of any MACT standards which appear in the consent
decree is extended by the District Court in accordance with the
provisions of that decree, we will consider at that time whether any
corresponding adjustment in the schedule for section 112(j) Part 2
applications set forth in 40 CFR part 63, subpart B, is necessary and
appropriate. We added that if we conclude that a change in the schedule
for section 112(j) Part 2 applications is warranted, we will consider
the use of expedited procedures. (See 68 FR 32594-32595.)
That possibility has now occurred. On March 30, 2005, EPA filed an
unopposed motion to modify the consent decree dates for completing MACT
standards for two source categories, boilers that burn hazardous waste
and hydrochloric acid production furnaces that burn hazardous waste.
The court entered its order modifying the decree on April 1, 2005. EPA
is now required to complete the MACT standards for these source
categories by September 14, 2005, a 90-day extension of the original
date.
The current deadline for submitting CAA section 112(j) Part 2
permit applications is August 13, 2005 (60 days from the original rule
completion date in the consent decree). We are amending the section
112(j) Part 2 permit application date so that it now follows the
revised consent decree date by 60 days. Consequently, the new date in
table 1 to subpart B of part 63 is November 14, 2005. The EPA fully
expects to meet the revised consent decree deadline (and so informed
the court in our extension motion), so we do not anticipate these
permit applications having to be submitted.
We are issuing today's amendment as a final rule without prior
proposal. We view this as a technical correction to the original rule,
since permit applications are tied to consent decree dates (an issue
discussed and fully commented upon in the initial rulemaking). Today's
rule thus simply conforms the permit application date to the date in
the revised consent decree. Under these circumstances, we believe that
opportunity for comment is unnecessary, within the meaning of 5 U.S.C.
553(b)(3)(B). For the same reason, we believe there is good cause
within the meaning of 5 U.S.C. 553(d)(3) to make this amendment
effective immediately.
II. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is
[[Page 39664]]
not a ``significant regulatory action'' and is, therefore, not subject
to review by the Office of Management and Budget. Because the agency
has made a ``good cause'' finding that this action is not subject to
notice-and-comment requirements under the Administrative Procedure Act
or any other statute, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) or
to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104-4). In addition, this action does not significantly
or uniquely affect small governments or impose a significant
intergovernmental mandate, as described in sections 203 and 204 of
UMRA. This action also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999). This
action also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997) because it is not economically significant. This action is
not a ``significant energy action'' as defined in Executive Order 13211
(66 FR 28355, May 22, 2001) because it will not have a significant
adverse effect on the supply, distribution, or use of energy.
This technical correction action does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995, (15 U.S.C. 272 note)
do not apply. This action also does not involve special consideration
of environmental justice related issues as required by Executive Order
12898 (59 FR 7629, February 16, 1994). In issuing the final rule
amendment, EPA has taken necessary steps to eliminate drafting errors
and ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct, as required by section 3 of Executive
Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988), by examining the
takings implications of the final rule amendment in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the executive
order. This action does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501, et seq.). The EPA's compliance with these statutes and Executive
Orders for the underlying rule is discussed in the May 30, 2003 Federal
Register action.
The Congressional Review Act (CRA), (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. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary, or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and established an effective date of July 11,
2005. The EPA will submit a report containing this action and other
required information to the United States Senate, the United States
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).
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: July 5, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.
0
For the reasons stated 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 B--[Amended]
0
2. Table 1 to subpart B of part 63 is amended by revising the entry
dated ``8/13/05'' to read as follows:
Table 1 to Subpart B of Part 63--Section 112(j) Part 2 Application Due
Dates
------------------------------------------------------------------------
Due date MACT standard
------------------------------------------------------------------------
* * * * *
11/14/05.......................... Industrial Boilers, Institutional/
Commercial Boilers, and Process
Heaters.5
Hydrochloric Acid Production.6
------------------------------------------------------------------------
* * * * *
[FR Doc. 05-13555 Filed 7-8-05; 8:45 am]
BILLING CODE 6560-50-U