[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Rules and Regulations]
[Pages 49830-49834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24075]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[AD-FRL-7066-4]
Standards of Performance for Industrial-Commercial-Institutional
Steam Generating Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; amendment.
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SUMMARY: We are amending the current provisions in the standards of
performance for industrial-commercial-institutional steam generating
units which permit owners and operators of new steam generating units
located at chemical manufacturing plants and petroleum refineries
burning high-nitrogen byproduct/wastes to petition
[[Page 49831]]
the Administrator for a site specific nitrogen oxides ( NOX)
emission limit. The amendment extends the provisions to owners and
operators of new steam generating units located at pulp and paper
mills.
DATES: This direct final rule will be effective on November 30, 2001
without further notice, unless significant adverse comments are
received by October 31, 2001.
If significant material adverse comments are received by October
31, 2001, this direct final rule will be withdrawn and the comments
addressed in a subsequent final rule based on the proposed rule. If no
significant material adverse comments are received, no further action
will be taken on the proposal and this direct final rule will become
effective on November 30, 2001.
ADDRESSES: By U.S. Postal Service, send comments (in duplicate if
possible) to: Air and Radiation Docket and Information Center (6102),
Attention Docket Number A-2001-18, U.S. EPA, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460. In person or by courier, deliver comments
(in duplicate if possible) to: Air and Radiation Docket and Information
Center (6102), Attention Docket Number A-2001-18, U.S. EPA, 401 M
Street, SW., Washington, DC 20460. The EPA requests that a separate
copy of each public comment be sent to the contact person listed below.
FOR FURTHER INFORMATION CONTACT: Mr. Fred Porter, Combustion Group,
Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park,
North Carolina 27711, (919) 541-5251, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: Comments. We are publishing this direct
final rule without prior proposal because we view this as a
noncontroversial amendment and do not anticipate adverse comments.
However, in the Proposed Rules section of this Federal Register, we are
publishing a separate document that will serve as the proposal in the
event that adverse comments are filed.
If we receive any significant adverse comments, we will publish a
timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect. We will address all public
comments in a subsequent final rule based on the proposed rule. We will
not institute a second comment period on this direct final rule. Any
parties interested in commenting must do so at this time.
Docket. The docket is an organized and complete file of information
compiled by EPA in developing this direct final rule. The docket is a
dynamic file because material is added throughout the rulemaking
process. The docketing system is intended to allow members of the
public and industries involved to readily identify and locate documents
so that they can effectively participate in the rulemaking process.
Along with the proposed and promulgated standards and their preambles,
the docket contains the record in the case of judicial review. The
docket number for this rulemaking is A-2001-18.
World Wide Web (WWW). In addition to being available in the docket,
electronic copies of this action will be posted on the Technology
Transfer Network's (TTN) policy and guidance information page http://www.epa.gov/ttn/caaa. The TTN provides information and technology
exchange in various areas of air pollution control. If more information
regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.
Regulated Entities. The regulated categories and entities that
potentially will be affected by this amendment include the following:
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Examples of potentially regulated
Category NAICS codes SIC codes entities
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Pulp and Paper......................... 322 26 Pulp and Paper Mills.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that we are now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility, company, business, organization, etc., is regulated by
this action, you should carefully examine the applicability criteria in
Sec. 60.41b of the rule. If you have 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 Clean Air Act
(CAA), judicial review of the action taken by this direct final rule is
available only on the filing of a petition for review in the U.S. Court
of Appeals for the District of Columbia Circuit by November 30, 2001.
Under section 307(b)(2) of the CAA, the requirements that are subject
to today's action may not be challenged later in civil or criminal
proceedings brought by EPA to enforce these requirements.
Under section 307(d)(7) of the CAA, only an objection to a rule or
procedure raised with reasonable specificity during the period for
public comment or public hearing may be raised during judicial review.
I. Background
On November 25, 1986 (51 FR 42768), we promulgated standards of
performance to limit NOX emissions from new industrial-
commercial-institutional steam generating units. Within the chemical
manufacturing industry and the petroleum refining industry, byproduct/
waste gases or liquids are often co-fired with natural gas or oil in
steam generating units. Although new steam generating units co-firing
byproduct/wastes with natural gas or oil must comply with the same
NOX emission limits as units firing only natural gas or oil,
in most cases, that presents no problems.
Nitrogen oxides emissions, however, are influenced by the presence
of nitrogen in the materials burned, and as we discussed in the Federal
Register notices proposing and promulgating the standards, co-firing
high-nitrogen byproduct/wastes can lead to a significant increase in
NOX emission levels. As a result, to ensure that the
NOX emission limits were not unreasonable, we included
provisions in the standards for petitioning the Administrator for a
site specific NOX emission limit for a new steam generating
unit located at a chemical plant or petroleum refinery where it could
be shown that co-firing specific byproduct/wastes containing nitrogen
prevents compliance with the NOX emission limits.
The provisions require that an owner or operator petitioning the
Administrator present sufficient evidence to demonstrate that the unit
is able to comply with the NOX emission limits when firing
natural gas or oil, but unable to comply when co-firing
[[Page 49832]]
byproduct/waste under the same conditions. Thus, the owner or operator
must first measure NOX emissions when firing only natural
gas or oil and demonstrate compliance with the NOX emission
limits. Excess air levels and other operating conditions must be
recorded, and the owner or operator must then measure NOX
emissions while co-firing the byproduct/waste with natural gas or oil
under these same conditions.
Emissions measured when co-firing the byproduct/waste serve as the
basis for establishing a site specific NOX emission limit
applicable only during those periods when byproduct/waste is co-fired
in the steam generating unit. During periods when byproduct/waste is
not co-fired, the unit must comply with the NOX emission
limits in the standards.
As mentioned, co-firing most byproduct/wastes does not present a
problem with respect to compliance with the NOX emission
limits. As a result, in the 15 years since adoption of the standards,
only three site specific NOX emission limits have been
proposed and promulgated for new steam generating units located at
chemical plants or petroleum refineries.
On April 15, 1998 (63 FR 18504), we promulgated national emission
standards for hazardous air pollutants (NESHAP) to limit emissions of
hazardous air pollutants (HAP) from pulp and paper mills. The standards
require control of HAP waste gases from certain pulp vents. One
alternative to control the HAP waste gases is to co-fire them in a
steam generating unit.
Recently, it has come to our attention that the most reasonable
alternative at one pulp and paper mill subject to the NESHAP is to co-
fire the HAP waste gases in a steam generating unit subject to the
standards of performance for industrial-commercial-institutional steam
generating units. The HAP waste gases, however, contain nitrogen
compounds and, as a result, the steam generating unit may not comply
with the emission limit for NOX emissions.
Other alternatives, such as installing a dedicated incinerator to
burn the HAP waste gases, are substantially more costly and, in
addition, could result in greater NOX emissions. If the
steam generating unit were located at a chemical plant or a petroleum
refinery, the owners and operators could petition the Administrator for
a site specific NOX emission limit. Because the steam
generating unit is located at a pulp and paper mill, however, as the
standards now exist, that is not possible.
In retrospect, the provisions to petition the Administrator for a
site specific NOX emission limit were included in the
standards for steam generating units located at chemical plants or
petroleum refineries only because those were the only two industries
which demonstrated a need for that type of flexibility in the standards
at the time they were developed. With development of the NESHAP for
pulp and paper mills, as illustrated by the example outlined above, it
is clear that the pulp and paper industry also needs that flexibility.
Consequently, we are amending the standards of performance for
industrial-commercial-institutional steam generating units to extend
the provisions to petition the Administrator for a site specific
NOX emission limit to owners and operators of new steam
generating units located at pulp and paper mills which co-fire
byproduct/wastes.
II. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 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 ``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 this direct final rule does not qualify
as a ``significant regulatory action'' under the terms of Executive
Order 12866 and, therefore, is not subject to review by OMB.
B. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This direct final rule is not subject to Executive Order 13211 (66
FR 28355, May 22, 2001) because it is not a significant regulatory
action under Executive Order 12866.
C. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us 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'' are 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 section 6 of Executive Order 13132, we 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 we consult
with State and local officials early in the process of developing the
proposed regulation. Also, we may not issue a regulation that has
federalism implications and that preempts State law, unless we consult
with State and local officials early in the process of developing the
proposed regulation.
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Thus, the
requirements of section 6 of the Executive Order do not apply to this
direct final rule.
D. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires us to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on
[[Page 49833]]
the distribution of power and responsibilities between the Federal
government and Indian tribes.''
This direct final rule does not have tribal implications. It will
not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this direct final rule.
E. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks (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 we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we 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 we considered.
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. This direct final rule is
not subject to Executive Order 13045 because it is based on technology
performance and not on health or safety risks. Also, this direct final
rule is not ``economically significant.''
F. Unfunded Mandates Reform Act of 1995
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, we
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 a rule for which a written statement is
needed, section 205 of the UMRA generally requires us 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 objective of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows us 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 we establish any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, we must develop a small
government agency plan under section 203 of the UMRA. 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 our regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
We have determined that this direct 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, this direct final rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
We have also determined that this direct final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
G. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this direct final rule on
small entities, small entity is defined as (1) A small business in the
regulated industry which has less than 750 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; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
After considering the economic impacts of this direct final rule on
small entities, we have concluded that this action will not have a
significant economic impact on a substantial number of small entities.
This direct final rule will not impose any requirements on small
entities because it does not impose any additional regulatory
requirements.
H. Paperwork Reduction Act
The Office of Management and Budget approved the information
collection requirements contained in the standards under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., at the time the
rules were promulgated on November 25, 1986.
The amendment contained in this direct final rule results in no
changes to the information collection requirements of the standards or
guidelines and will have no impact on the information collection
estimate of project cost and hour burden made and approved by OMB
during the development of the standards and guidelines. Therefore, the
information collection requests have not been revised.
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 our
regulations are listed in 40 CFR part 9 and 40 CFR chapter 15.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs us to use voluntary consensus standards in our regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs us to provide
Congress, through OMB, explanations when we decide not to use available
and applicable voluntary consensus standards.
This direct final rule amendment does not involve technical
standards. Therefore, it is not subject to NTTAA.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the
[[Page 49834]]
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. We will submit a report containing this direct final
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of this direct final rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This direct final rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 60
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: September 20, 2001.
Christine Todd Whitman,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, part
60 of the Code of Federal Regulations is amended to read as follows:
PART 60--[AMENDED]
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart Db--[Amended]
2. Section 60.41b is amended by revising the definition of
Byproduct/waste and adding a definition of Pulp and paper mills to read
as follows:
Sec. 60.41b Definitions.
* * * * *
Byproduct/waste means any liquid or gaseous substance produced at
chemical manufacturing plants, petroleum refineries, or pulp and paper
mills (except natural gas, distillate oil, or residual oil) and
combusted in a steam generating unit for heat recovery or for disposal.
Gaseous substances with carbon dioxide levels greater than 50 percent
or carbon monoxide levels greater than 10 percent are not byproduct/
waste for the purpose of this subpart.
* * * * *
Pulp and paper mills means industrial plants which are classified
by the Department of Commerce under North American Industry
Classification System (NAICS) Code 322 or Standard Industrial
Classification (SIC) Code 26.
* * * * *
[FR Doc. 01-24075 Filed 9-28-01; 8:45 am]
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