[Federal Register: August 2, 2005 (Volume 70, Number 147)]
[Rules and Regulations]
[Page 44285-44289]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au05-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OGC-2004-0004; FRL-7947-3]
RIN 2060-AM83
National Emission Standards for Hazardous Air Pollutants for Coke
Ovens: Pushing, Quenching, and Battery Stacks
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On October 13, 2004, the EPA issued amendments to the national
emission standards for coke oven pushing, quenching, and battery stacks
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 the provisions related to
operation and maintenance requirements, we have previously withdrawn
the corresponding part of the direct final rule. After considering the
comment, EPA is promulgating the provisions that were withdrawn based
on the proposed rule published on October 13, 2004.
EFFECTIVE DATE: August 2, 2005.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OGC-2004-0004. 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 or other information whose disclosure is
restricted by statute. Certain other information, such as copyrighted
materials, 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 form at the
Air and Radiation Docket, Docket ID No. OGC-2004-0004, EPA Docket
Center (EPA/DC), EPA West, Room B102, 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 Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Bob Schell, Emission Standards
Division (C439-02), Office of Air Quality Planning and Standards, EPA,
Research Triangle Park, NC 27711, telephone number (919) 541-4116, e-
mail address schell.bob@epa.gov.
SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities
potentially regulated by this action include:
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Category NAICS code \1\ Examples of regulated entities
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Industry.................................... 331111, 324199 Coke plants and integrated iron and steel mills.
Federal government.......................... ................ Not affected.
State/local/tribal government............... ................ Not affected.
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\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 this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in 40 CFR 63.7281 of the
national emission standards for hazardous air pollutants (NESHAP) for
coke ovens: pushing, quenching, and battery stacks. 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. In addition to being
available in the docket, an electronic copy of today's final rule
amendments will also be available on the Worldwide Web (WWW) through
the Technology Transfer Network (TTN). Following the Administrator's
signature, a copy of the final rule amendments will be placed 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.
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 October 3, 2005. 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. Under CAA section
307(b)(2), the requirements established by the final rule amendments
may not be challenged later in civil or criminal proceedings brought by
EPA to enforce these requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Background
II. Summary of the Final Rule Amendments
III. Response to Comments on the Proposed Amendments to the NESHAP
for Coke Oven Pushing, Quenching, and Battery Stacks
[[Page 44286]]
IV. Summary of Environmental, Energy, and Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
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 April 14, 2003 (68 FR 18008), EPA issued the NESHAP for pushing,
quenching, and battery stacks at new and existing coke oven batteries
(40 CFR part 63, subpart CCCCC). The NESHAP implement section 112(d) of
the CAA by requiring all major sources to meet emission standards for
hazardous air pollutants reflecting application of the maximum
achievable control technology.
After publication of the NESHAP, the American Iron and Steel
Institute (AISI)/American Coke and Coal Chemicals Institute (ACCCI)
Coke Oven Environmental Task Force (COETF) filed a petition for review
challenging the final rule (AISI/ACCCI Coke Oven Environmental Task
Force v. U.S. Environmental Protection Agency, No. 03-1167, D.C. Cir.).
The petitioners raised issues concerning:
The provisions requiring owners or operators of coke
plants having a pushing emission control device to install, operate and
maintain devices to monitor daily average fan motor amperes (or
volumetric flow rate at the inlet of the control device and maintain
daily average volumetric flow rate) at or above minimum levels
established during initial performance tests. These provisions are
included in 40 CFR 63.7290, 63.7323(c), 63.7326(a)(4), 63.7330(d),
63.7331(g) and (h), and 63.7333(d).
The provisions requiring monthly inspections of pressure
sensors, dampers, damper switches and other equipment important to the
performance of the total emissions capture system which also require
that a facility's operation and maintenance plan include requirements
to repair any defect or deficiency in the capture system before the
next scheduled inspection. These provisions are included in 40 CFR
63.7300(c)(1).
Amendments developed to resolve these concerns were set out in
attachment A to a proposed settlement agreement between EPA and COETF.
In accordance with CAA section 113(g), we published a notice of the
proposed settlement agreement (69 FR 31372, June 3, 2004) and provided
a 30-day comment period which ended July 6, 2004. We received no
comments on the proposed settlement agreement.
On October 13, 2004, we issued a direct final rule (69 FR 60813)
and a parallel proposal (69 FR 60837) to amend the NESHAP. We stated in
the preamble to the direct final rule and parallel proposal that if we
received significant adverse comments by November 12, 2004 (or by
November 29, 2004 if a public hearing was requested), we would publish
a timely withdrawal in the Federal Register indicating which provisions
would become effective and which provisions would be withdrawn due to
adverse comment. We subsequently received an adverse comment from one
commenter on the provisions related to the operation and maintenance
requirements and withdrew the amendments to 40 CFR 63.7300(c)(1) on
January 10, 2005 (70 FR 1670). The remaining provisions, for which we
did not receive any adverse comments, became effective on January 11,
2005. After full and careful consideration of the comment, we are
promulgating the amendments previously withdrawn based on the parallel
proposal published on October 13, 2004.
II. Summary of the Final Rule Amendments
The final rule amendments affect the requirement in 40 CFR
63.7300(c)(1) for the repair of any defect or deficiency in the capture
system before the next scheduled inspection. In the event a defect or
deficiency is found in the capture system (during a monthly inspection
or between inspections), the final rule amendments require the plant
owner or operator to complete repairs within 30 days after the date
that the defect or deficiency is discovered. If the repairs cannot be
completed within 30 days, the plant owner or operator must submit a
written request to the permitting authority for an extension of time to
complete the repairs. The permitting authority must receive the request
no more than 20 days after the date that the defect or deficiency is
discovered. The request must contain a description of the defect or
deficiency, the steps needed and taken to correct the problem, the
interim steps being taken to mitigate the emissions impact of the
defect or deficiency, and a proposed schedule for completing the
repairs. The request is deemed approved unless and until such time as
the permitting authority notifies the plant owner or operator that it
objects to the request. The permitting authority may consider all
relevant factors in deciding whether to approve or deny the request
(including feasibility and safety). Each approved schedule must provide
for completion of repairs as expeditiously as practicable, and the
permitting authority may request modifications to the proposed schedule
as part of the approval process.
We are also making a minor technical clarification to the sampling
procedures in 40 CFR 63.7322(b)(2). This clarification is simply that
the minimum sample volume is measured as ``dry standard'' cubic feet.
III. Response to Comments on the Proposed Amendments to the NESHAP for
Coke Oven Pushing, Quenching, and Battery Stacks
We received one significant adverse comment on the amendments
contained in the parallel proposal published on October 13, 2004. The
commenter objected to the proposed requirement that would have allowed
the owner or operator an additional 30 days (a total of 60 days) to
repair a defect in the capture system applied to pushing emissions. The
commenter stated that EPA had many years of experience in reviewing
malfunction reports and suggested that any such extension be restricted
to specific defects and historical repair times.
We reviewed the proposal and discussed in detail with coke plant
operators the types of defects that might require 60 days to repair and
their frequency of occurrence. Such defects occur very infrequently and
are usually related to structural problems that require an engineering
evaluation, scheduling a contractor to make the repairs, and
coordinating with the plant's production schedule to allow the repair
to be made safely. It is not possible to identify in advance what
defects may require more than 30 days, and the events are so
infrequent, there is not much historical information on repair times.
However, we agree with the commenter in that EPA or the permitting
authority should decide when additional time is needed, and that this
decision should not be left solely to the discretion of the owner or
operator. Consequently, we have revised the operation and maintenance
requirement to require the owner or operator to submit a request for
approval by the permitting authority for an extension of time to
complete a
[[Page 44287]]
repair that cannot be completed within 30 days. The request must be
received by the permitting authority within 20 days after the defect is
first discovered. The owner or operator must provide enough information
for the permitting authority to evaluate the request, including a
description of the defect, the steps needed and taken to correct the
problem, the interim steps being taken to mitigate the emissions impact
of the defect, and a proposed schedule for completing the repairs. The
permitting authority may approve or disapprove the request or request
additional information to aid in the decision.
The commenter also suggested that the owner or operator notify EPA
by fax within 24 hours of finding a deficiency with confirmation in
writing by mail within 7 days. We do not agree that this notification
is necessary because the notification and recordkeeping requirements
for startups, shutdowns, and malfunctions (SSM) in 40 CFR 63.6(e) of
the General Provisions (40 CFR part 63, subpart A) are in full effect
in this case. The specific requirements in these amendments for capture
systems as applied to pushing emissions are in addition to the SSM
requirements and do not replace them. The SSM notification requirements
have been designed to provide the permitting authority with timely and
relevant information in the event that all steps in the SSM plan are
not implemented. These requirements attempt to strike a balance between
providing relevant information and avoiding unnecessary reporting of
minor events (e.g., when a malfunction is promptly corrected) that
would increase the burden to both the permitting authority and the
owner or operator.
IV. Summary of Environmental, Energy, and Economic Impacts
The final rule amendments will have no effect on environmental,
energy, or non-air health impacts because none of the changes affect
the stringency of the existing emission limits. No costs or economic
impacts are associated with the amendments.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 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 entitlement, 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 this action is not a ``significant
regulatory action'' under the terms of Executive Order 12886 and is,
therefore, not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The costs of the information collection requirements associated with
the amendments to the operation and maintenance requirements do not
increase the existing burden estimates for the final rule. The OMB has
previously approved the information collection requirements in the
existing rule (40 CFR part 63, subpart CCCCC) under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2060-0521, EPA ICR number 1995.02. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division, U.S. Environmental
Protection Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1672.
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.
C. Regulatory Flexibility Act
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the final rule
amendments. For purposes of assessing the impact of today's final rule
amendments on small entities, small entity is defined as: (1) A small
business, as defined by the Small Business Administration's regulations
at 13 CFR 121.201; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's final rule
amendments on small entities, EPA has concluded that this action will
not have 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 analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed 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.
We believe there will be a positive impact on small entities
because the final rule amendments increase flexibility by providing
more time for plants to make repairs that can not be completed within
30 days. These changes are voluntary and do not impose new costs. We
have, therefore, concluded that today's final rule amendments 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 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private
[[Page 44288]]
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 by 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.
EPA has determined that the final rule amendments do 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 to the
private sector in any 1 year. No new costs are attributable to the
final rule amendments. Thus, the final rule amendments are not subject
to the requirements of sections 202 and 205 of the UMRA. In addition,
the final rule amendments do not significantly or uniquely affect small
governments because they contain no requirements that apply to such
governments or impose obligations upon them. Therefore, the final rule
amendments are not subject to 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.''
The 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
plants 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.'' The final rule amendments do not have
tribal implications, as specified in Executive Order 13175. No tribal
governments own or operate any plants subject to the NESHAP for coke
oven pushing, quenching, and battery stacks. 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 Agency.
We interpret 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 amendments
are not subject to Executive Order 13045 because the final rule (and
these amendments) are based on technology performance and not on health
or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
These final 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 112(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs the
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. VCS are technical standards
(e.g., material specifications, test methods, sampling procedures,
business practices) developed or adopted by one or more voluntary
consensus bodies. The NTTAA requires EPA to provide Congress, through
the OMB, explanations when the Agency decides not to use available and
applicable VCS.
This action does not involve technical standards. Therefore, EPA is
not considering the use of any VCS.
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 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 the Federal
Register. A major rule cannot take effect until 60 days after its
publication in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2). The final rule amendments will be
effective on August 2, 2005.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
[[Page 44289]]
substances, Reporting and recordkeeping requirements.
Dated: July 26, 2005.
Stephen L. Johnson,
Administrator.
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 CCCCC--[Amended]
0
2. Section 63.7300 is amended by removing the third (last) sentence in
paragraph (c)(1) and adding in its place six new sentences to read as
follows:
Sec. 63.7300 What are my operation and maintenance requirements?
* * * * *
(c) * * *
(1) * * * In the event a defect or deficiency is found in the
capture system (during a monthly inspection or between inspections),
you must complete repairs within 30 days after the date that the defect
or deficiency is discovered. If you determine that the repairs cannot
be completed within 30 days, you must submit a written request for an
extension of time to complete the repairs that must be received by the
permitting authority not more than 20 days after the date that the
defect or deficiency is discovered. The request must contain a
description of the defect or deficiency, the steps needed and taken to
correct the problem, the interim steps being taken to mitigate the
emissions impact of the defect or deficiency, and a proposed schedule
for completing the repairs. The request shall be deemed approved unless
and until such time as the permitting authority notifies you that it
objects to the request. The permitting authority may consider all
relevant factors in deciding whether to approve or deny the request
(including feasibility and safety). Each approved schedule must provide
for completion of repairs as expeditiously as practicable, and the
permitting authority may request modifications to the proposed schedule
as part of the approval process.
* * * * *
0
3. Section 63.7322 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 63.7322 What test methods and other procedures must I use to
demonstrate initial compliance with the emission limits for particulate
matter?
* * * * *
(b) * * *
(2) During each particulate matter test run, sample only during
periods of actual pushing when the capture system fan and control
device are engaged. Collect a minimum sample volume of 30 dry standard
cubic feet of gas during each test run. Three valid test runs are
needed to comprise a performance test. Each run must start at the
beginning of a push and finish at the end of a push (i.e., sample for
an integral number of pushes).
* * * * *
[FR Doc. 05-15217 Filed 8-1-05; 8:45 am]
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