[Federal Register Volume 66, Number 157 (Tuesday, August 14, 2001)]
[Rules and Regulations]
[Pages 42608-42610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20260]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[FRL-7033-8]
RIN 2060-AJ22
Standards of Performance for Electric Utility Steam Generating
Units for Which Construction Is Commenced After September 18, 1978; and
Standards of Performance for Industrial-Commercial-Institutional Steam
Generating Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; removal of provisions.
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SUMMARY: This action removes certain provisions of the nitrogen oxides
( NOX) emission standards for new electric utility steam
generating units and industrial-commercial-institutional steam
generating units, which were promulgated on September 16, 1998.
Specifically, we are removing the provisions of the final rules
applicable to electric utility steam generating units and industrial-
commercial-institutional steam generating units for which modification
was commenced after July 9, 1997. The removal of the provisions is
based on the issuance of an order by the United States Court of Appeals
for the District of Columbia Circuit in Lignite Energy Council, et al.,
v. Environmental Protection Agency, No. 98-1525 (and consolidated
cases) on September 21, 1999, granting summary vacatur of the
provisions. 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 removal of these provisions without prior
proposal and opportunity for comment because the changes to the rules
are minor, noncontroversial in nature, and do not substantively change
the requirements of the revised NOX NSPS. Thus, notice and
public procedure are unnecessary. The EPA finds that this constitutes
good cause under 5 U.S.C. 553(b)(B).
EFFECTIVE DATE: August 14, 2001.
ADDRESSES: Docket number A-92-71, containing supporting information
used in the development of the rulemaking is available for public
inspection and copying between 8 a.m. and 5:30 p.m., Monday through
Friday (excluding Federal holidays) at the following address: U.S. EPA,
Air and Radiation Docket and Information Center (6102), 401 M Street,
SW., Washington, DC 20460; telephone number (202) 260-7548. The docket
is located at the above address in Room M-1500, Waterside Mall (ground
floor). A reasonable fee may be charged for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Mr. James Eddinger, Combustion Group,
Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park,
North Carolina 27711; telephone number (919) 541-5426; facsimile number
(919) 541-5450; electronic mail address ``[email protected]''.
SUPPLEMENTARY INFORMATION: Docket. The dockets are organized and
complete files of all the information submitted to or otherwise
considered by EPA in the development of the standards. The docket is a
dynamic file because material is added throughout the rulemaking
process. The principal purposes of the docket are to allow interested
parties to readily identify and locate documents so that they can
intelligently and effectively participate in the rulemaking process;
and to serve as the record in case of judicial review.
Regulated Entities. Categories and entities potentially regulated
by this action include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Industry * * *............................ Electric utility steam
generating units,
industrial steam generating
units, commercial steam
generating units and
institutional steam
generating units.
------------------------------------------------------------------------
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 carefully examine the applicability criteria in Secs. 60.40a
and 60.40b of the rules. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of this nationally applicable final action is
available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit by October 15, 2001. Under
section 307(b)(2) of the CAA, the requirements that are subject to this
action may not be challenged later in civil or criminal proceedings
brought by EPA to enforce the requirements.
World Wide Web (WWW). In addition to being available in the docket,
an electronic copy of this final rule will also be available through
the Technology Transfer Network (TTN). Following promulgation, a copy
of the rule will be posted on the TTN's policy and guidance page for
newly proposed or promulgated rules (http://www.epa.gov/ttn/oarpg/t3pfpr.html). 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.
I. Why Are We Taking This Action?
Acting in accordance with sections 407(c) and 111 of the CAA, the
EPA published proposed revisions to the emission standards for
NOX contained in the standards of performance for new
electric utility steam generating units and industrial-commercial-
institutional steam generating units, 40 CFR part 60, subparts Da and
Db, respectively, at 62 FR 36948 on July 9, 1997. Under section
111(a)(2) of the CAA, any stationary source, as identified in a
proposed new source performance standard (NSPS), on which construction,
modification or reconstruction is commenced after the date of proposal
of that NSPS is subject to any final standards promulgated by EPA. See
United States of America v. City of Painesville, Ohio, 644 F.2d 1186
(6th Cir. 1981). Thus, any affected facility, as defined in the
proposed rule, on which construction, modification or reconstruction
was or is commenced after July 9, 1997, would normally be subject to
the standards of performance as promulgated. Modification means ``any
physical change in, or change in the method of operation of, a
stationary source which increases the amount of any air pollutant
emitted by such source or which results in the emission of any air
pollutant not previously emitted.'' (see CAA section 111(a)(4)). See
also 40 CFR 60.14, ``a physical or operational change to an existing
facility which results in an increase in the emission rate to the
atmosphere of any pollutant to which a standard applies shall be
considered a modification within the meaning of section 111 of the
Act.''
On September 16, 1998 (63 FR 49553), we published final rules
revising the nitrogen oxides emission standards in subparts Da and Db.
Following
[[Page 42609]]
promulgation of the final rules, a number of industry groups
(Petitioners) filed petitions for review pursuant to CAA section 307(b)
in the United States Court of Appeals for the District of Columbia
Circuit. Those petitions were subsequently consolidated by the court;
Lignite Energy Council, et al., v. United States Environmental
Protection Agency, No. 98-1525 and consolidated cases. Petitioners
filed their initial brief in the case on May 28, 1999. We filed our
initial brief on July 30, 1999. At the same time we filed our initial
brief, we also filed a motion for partial voluntary remand that
requested that the court remand the standards, as applied to modified
or reconstructed boilers, to EPA for further consideration and
explanation. In our motion, we explained that in light of issues raised
in the Petitioners' brief, we recognized that in the final rules we
provided an inadequate explanation of the standards as applied to
modified or reconstructed boilers. We further informed the court that
we believed that a remand of the standards, as applied to modified or
reconstructed boilers, was appropriate to allow us to further consider
the matter and articulate more fully the basis for our action. In
response to our motion, the Petitioners filed a motion for partial
summary vacatur of the standards as applied to modified boilers. On
September 21, 1999, the court issued an order granting the Petitioners'
motion for summary vacatur of the provisions of the final rules
pertaining to modified boilers, thereby vacating the provisions of the
final rules applicable to boilers modified after July 9, 1997.
We are taking today's action pursuant to our general rulemaking
authority under section 301(a) of the CAA, 42 U.S.C. 7601(a). Section
301(a) grants the Administrator of EPA the authority ``to prescribe
such regulations as are necessary to carry out [her] functions under
this Act.''
II. What Is the Legal Authority for Promulgating an Immediately
Effective Final Rule Without Prior Notice and Opportunity for
Public Comment?
Section 307(d) of the CAA generally requires that we provide notice
of our intent to revise standards of performance and an opportunity for
interested persons to comment thereon before promulgating such
revisions. Section 307(d) expressly does not apply in circumstances
where we make a good cause determination under 5 U.S.C. 553(b), which
authorizes an agency to forego the otherwise applicable requirement for
providing notice of proposed rulemaking in the Federal Register and an
opportunity for interested persons to comment on the proposed
rulemaking ``when the agency for good cause finds (and incorporates the
finding and a brief statement of the reason therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' Section 111(b)(1)(B)
of the CAA expressly makes revisions to standards of performance
``effective upon promulgation.'' (see 42 U.S.C. 7411(b)(1)(B)).
We believe that there is good cause for not providing notice and an
opportunity for comment for the following reason. As a matter of law,
the order issued by the United States Court of Appeals for the District
of Columbia Circuit on September 21, 1999 vacated the provisions of the
final rules applicable to modified boilers thereby making them not
binding and unenforceable. It is, therefore, unnecessary to provide
notice and an opportunity for comment on this action which merely
carries out the court's order.
As indicated above, section 111(b)(1)(B) of the CAA expressly
provides that revisions to standards of performance become effective
upon promulgation, in this case publication in the Federal Register.
III. What Does the Final Rule Withdrawal of Provisions Do and What
Are Its Consequences?
A. To Whom Does the Final Rule Withdrawal of Provisions Apply?
This final rule withdrawal of provisions applies only to the owners
and operators of electric utility steam generating units and
industrial-commercial-institutional steam generating units on which
modification is commenced after July 9, 1997. We plan to further
consider the issues associated with modified boilers and will develop
standards as appropriate in the future. It does not affect 40 CFR part
60, subparts Da and Db, as they apply to the owners and operators of
new and reconstructed electric utility steam generating units and
industrial-commercial-institutional steam generating units on which
construction or reconstruction is commenced after July 9, 1997.
B. What Standards Are Being Withdrawn?
Section 60.44a(d)(2) of 40 CFR is amended by removing the language
relating to modified boilers. Section 60.44b(l) of 40 CFR is amended by
removing the language relating to modified boilers.
C. Are There Any Other Impacts on Affected Facilities on Which
Modification Is Commenced After July 9, 1997?
Owners and operators of electric utility steam generating units on
which modification is commenced after July 9, 1997 will be required to
comply with the applicable NOX emission limits specified in
the pre-existing NSPS (40 CFR 60.44a(a) and (c)). Similarly, owners and
operators of industrial-commercial-institutional steam generating units
on which modification is commenced after July 9, 1997 will be required
to comply with the applicable NOX emission limits specified
in the pre-existing NSPS (40 CFR 60.44b(a), (b), (c), (d) and (e)).
Each of the cited subsections contains different requirements. The
subsection that applies to a particular affected facility is determined
based on the type or combination of fuel being used.
IV. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget (OMB). Because
the EPA 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) (Public Law 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 the 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 6, 2000). This action does not have
substantial direct effects on the States, or on the relationship
between the national government and the States, 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 does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) do not apply. This
action also does not involve special consideration of environmental
justice related issues as
[[Page 42610]]
required by Executive Order 12898 (59 FR 7629, February 16, 1994). In
issuing this action, EPA has taken the 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 taking implications of these rule withdrawal of
provisions 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 statues and Executive Orders for the underlying rule is
discussed in the September 16, 1998 Federal Register document.
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. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the
Congressional Review Act 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, the EPA has made
such a good cause finding, including the reasons therefore, and
established an effective date of August 14, 2001. The EPA will submit a
report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the technical correction
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 60
Environmental protection, Air pollution control, Electric power
plants.
Dated: August 7, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, title 40, chapter 1, part
60 of the Code of Federal Regulations is amended 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 Da--[Amended]
2. Section 60.44a is amended by revising paragraph (d)(2) to read
as follows:
Sec. 60.44a Standard for nitrogen oxides.
* * * * *
(d)(1) * * *
(2) On and after the date on which the initial performance test
required to be conducted under Sec. 60.8 is completed, no existing
source owner or operator subject to the provisions of this subpart
shall cause to be discharged into the atmosphere from any affected
facility for which reconstruction commenced after July 9, 1997 any
gases which contain nitrogen oxides (expressed as NO2) in
excess of 65 ng/Jl (0.15 pounds per million Btu) heat input, based on a
30-day rolling average.
Subpart Db--[Amended]
3. Section 60.44b is amended by revising paragraph (l) to read as
follows:
Sec. 60.44b Standard for nitrogen oxides.
* * * * *
(l) On and after the date on which the initial performance test is
completed or is required to be completed under Sec. 60.8, whichever
date comes first, no owner or operator of an affected facility which
commenced construction or reconstruction after July 9, 1997 shall cause
to be discharged into the atmosphere from that affected facility any
gases that contain nitrogen oxides (expressed as NO2) in
excess of the following limits:
(1) If the affected facility combusts coal, oil, or natural gas, or
a mixture of these fuels, or with any other fuels: A limit of 86 ng/
JI (0.20 lb/million Btu) heat input unless the affected
facility has an annual capacity factor for coal, oil, and natural gas
of 10 percent (0.10) or less and is subject to a federally enforceable
requirement that limits operation of the facility to an annual capacity
factor of 10 percent (0.10) or less for coal, oil, and natural gas; or
(2) If the affected facility has a low heat release rate and
combusts natural gas or distillate oil in excess of 30 percent of the
heat input from the combustion of all fuels, a limit determined by use
of the following formula:
En = [(0.10 * Hgo) + (0.20 * Hr)]/
(Hgo + Hr)
Where:
En is the NOX emission limit, (lb/million Btu),
Hgo is the heat input from combustion of natural gas or
distillate oil, and
Hr is the heat input from combustion of any other fuel.
[FR Doc. 01-20260 Filed 8-13-01; 8:45 am]
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