[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31, 2001, this direct final rule will be withdrawn and the comments 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
----------------------------------------------------------------------------------------------------------------
Pulp and Paper.........................             322               26   Pulp and Paper Mills.
----------------------------------------------------------------------------------------------------------------

    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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