[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
------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P