[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58396-58400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7106-6]
National Emission Standards for Hazardous Air Pollutants for
Pesticide Active Ingredient Production
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; amendment.
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SUMMARY: On June 23, 1999 (64 FR 33550), EPA promulgated national
emission standards for hazardous air pollutants (NESHAP) for Pesticide
Active Ingredient (PAI) Production. On August 19, 20, and 23, 1999,
petitions for review of the June 1999 rule were filed in the U.S. Court
of Appeals for the District of Columbia Circuit. This action is in
response to issues raised by one of those petitioners--the American
Coke and Coal Chemicals Institute (ACCCI). The EPA is taking direct
final action to amend the NESHAP for PAI Production by revising the
definition of the term ``process tank'' for clarity. We view this
revision to be minor and noncontroversial, and we anticipate no adverse
comment.
DATES: This direct final rule will be effective on February 4, 2002
without further notice, unless the EPA receives adverse comments by
December 21, 2001, or by January 7, 2002 if a public hearing is
requested. See the proposed rule in this Federal Register for
information on the hearing. If we receive any adverse comments on the
amended definition, we will publish a timely withdrawal of this direct
final rule in the Federal Register indicating that the revisions in
this notice will not take effect.
ADDRESSES: Comments. Written comments should be submitted (in
duplicate, if possible) to: Air and Radiation Docket and Information
Center (6102), Attention Docket Number A-95-20, Room M-1500, U.S. EPA,
1200 Pennsylvania Avenue, NW., Washington, DC 20460. The EPA requests
that a separate copy of each public comment be sent to the contact
person listed in FOR FURTHER INFORMATION CONTACT. Comments may also be
submitted electronically by following the instructions provided in
SUPPLEMENTARY INFORMATION.
Docket. Docket No. A-95-20 contains supporting information used in
developing the PAI Production NESHAP. The docket is located at the U.S.
EPA, 401 M Street, SW., Washington, DC 20460 in Room M-1500, Waterside
Mall (ground floor), and may be inspected from 8:30 a.m. to 5:30 p.m.,
Monday through Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals
Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle
Park, North Carolina 27711, telephone number (919) 541-5402, electronic
mail address [email protected].
SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted
by electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file to avoid the use of special
characters and encryption problems and will also be accepted on disks
in WordPerfect version 5.1, 6.1, or Corel 8 file format. All comments
and data submitted in electronic form must note the docket number A-95-
20. No confidential business information (CBI) should be submitted by
e-mail. Electronic comments may be filed online at many Federal
Depository Libraries.
Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and clearly label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: Attention: Mr. Randy McDonald, c/o
OAQPS Document Control Officer (Room 740B), U.S. EPA, 411 W. Chapel
Hill Street, Durham, NC 27701. The EPA will disclose information
identified as CBI only to the extent allowed by the procedures set
forth in 40 CFR part 2. If no claim of confidentiality accompanies a
submission when it is received by EPA, the information may be made
available
[[Page 58397]]
to the public without further notice to the commenter.
Docket. The docket is an organized and complete file of all the
information considered by the EPA in the development of this
rulemaking. 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 contents of the docket will serve as the
record in the case of judicial review. (See section 307(d)(7)(A) of the
Clean Air Act (CAA).) The regulatory text and other materials related
to this rulemaking are available for review in the docket or copies may
be mailed on request from the Air Docket by calling (202) 260-7548. A
reasonable fee may be charged for copying docket materials.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of this action will also be available through the
WWW. Following signature, a copy of this action will be posted on the
EPA's Technology Transfer Network (TTN) policy and guidance page for
newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg. The
TTN at EPA's web site 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 category and entities affected by
this action include:
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Examples of regulated
Category NAICS codes SIC codes entities
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Industry........................... Typically, 325199 and Typically, 2869 and Producers of
325320. 2879. pesticide active
ingredients that contain
organic compounds that are
used in herbicides,
insecticides, or
fungicides.
Producers of any
integral intermediate used
in onsite production of an
active ingredient used in
an herbicide, insecticide,
or fungicide.
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This table is not intended to be exhaustive, but rather provides a
guide for readers likely to be interested in the revisions to the
regulation affected by this action. To determine whether your facility,
company, business, organization, etc., is regulated by this action, you
should carefully examine all of the applicability criteria in 40 CFR
part 63, subpart MMM. If you have questions regarding the applicability
of these amendments 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 CAA, judicial
review of this direct final rule is available only by filing a petition
for review in the U.S. Court of Appeals for the District of Columbia by
January 22, 2002. Under section 307(d)(7)(B) of the CAA, only an
objection to this rule that was raised with reasonable specificity
during the period for public comment can be raised during judicial
review.
I. Why Are We Amending the Rule?
On June 23, 1999, we promulgated NESHAP for Pesticide Active
Ingredient Production as subpart MMM in 40 CFR part 63 (64 FR 33550).
On August 23, 1999, ACCCI filed a petition for review of the
promulgated PAI Production NESHAP in the U.S. Court of Appeals for the
District of Columbia Circuit, ACCCI v. EPA, No. 99-1339 (consolidated
with American Crop Protection Association v. EPA, No. 99-1332) (D.C.
Circuit). On June 15, 2001, ACCCI and EPA signed a settlement agreement
which provides that EPA will undertake a rulemaking to revise the
definition of the term ``process tank.'' The settlement agreement also
provides that EPA will sign final rule amendments no later than 12
months after the signature date of the settlement.
II. What Amendments Are We Making to the Rule?
This direct final rule revises the definition of the term ``process
tank'' in 40 CFR 63.1361 because the current definition is ambiguous
and internally inconsistent. The current provision defines ``process
tank'' as:
* * * a tank that is used to collect material discharged from a
feedstock storage vessel or equipment within the process and
transfer of this material to other equipment within the process or a
product storage vessel. Processing steps occur both upstream and
downstream of the tank within a given process unit. Surge control
vessels and bottoms receivers that fit these conditions are
considered process tanks.
According to the first sentence of the current definition, tanks
that transfer material to other equipment within the process or to a
product storage vessel are process tanks. At the same time, according
to the second sentence of the current definition, processing steps are
required upstream and downstream of the tank for it to be a process
tank. Some tanks covered by the first sentence would not seem to be
covered by the second sentence because the downstream storage vessels
would not provide the downstream processing that the second sentence
seems to require. To eliminate this inconsistency, we are revising the
definition by deleting the reference to processing upstream and
downstream of the process tank. In addition, we are revising the
definition to clarify that process tanks may include both tanks used
for certain unit operations (e.g., reactions and blending), and tanks
that are not used for unit operations (e.g., a surge control vessel or
bottom receiver). Tanks that are clearly omitted from the definition of
a process tank include feedstock and product storage vessels.
III. Why Are We Publishing These Amendments as a Direct Final Rule?
In this direct final rule, we are revising the definition of the
term ``process tank.'' The revised definition is consistent with our
original intent, and we believe that the revision will not change the
number of affected sources, the number of emission points subject to
control, or the required level of control. The clearer definition also
may preclude the need for certain applicability determinations, thereby
reducing the burden on State and local agencies implementing the rule.
We view this amendment as noncontroversial and anticipate no
adverse comments. Therefore, we are publishing this amendment in a
direct final rule. If we receive an adverse comment on the amended
definition, we will withdraw it. To withdraw the amended definition, we
will publish a timely notice before the effective date of this rule
indicating that the amended definition is being withdrawn. In the
``Proposed Rules'' section of this Federal Register, we are publishing
a separate document that will serve as the proposal for the amended
definition in the event that we receive an adverse
[[Page 58398]]
comment. We will respond to all public comments in a subsequent final
rule based on the proposed rule. We will not institute a second comment
period on the subsequent final rule. Any parties interested in
commenting must do so at this time.
IV. What Are the Administrative Requirements for This Direct Final
Rule?
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review 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 rule amendment is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.
B. 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.''
This direct final rule amendment 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,
because State and local governments do not own or operate any sources
that would be subject to the PAI Production NESHAP. Thus, Executive
Order 13132 does not apply to this direct final rule amendment.
C. 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 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.'' ``Policies that have tribal
implications'' is 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 the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This direct final rule amendment does not have tribal implications.
It will not have substantial direct effects on tribal governments, or
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 because no tribal governments own or operate PAI production
facilities. Thus, Executive Order 13175 does not apply to this rule
amendment.
D. Executive Order 13045, Protection of Children From Environmental
Health Risks 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, 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 EPA.
The EPA interprets 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 rule amendment is not
subject to Executive Order 13045 because it is based on technology
performance, not health or safety risks. Furthermore, this rule
amendment has been determined not to be ``economically significant'' as
defined under Executive Order 12866.
E. 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, 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 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 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 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.
The EPA has determined that this rule amendment does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, or tribal governments, in the aggregate, or the
private sector in any one year. For
[[Page 58399]]
existing sources, the total annual cost of the PAI Production NESHAP
has been estimated to be approximately $39.4 million (64 FR 33559, June
23, 1999). Today's amendment does not add new requirements that would
increase this cost. Thus, this rule amendment is not subject to the
requirements of sections 202 and 205 of the UMRA. In addition, EPA has
determined that this rule amendment contains no regulatory requirements
that might significantly or uniquely affect small governments because
it contains no requirements that apply to such governments or impose
obligations upon them. Therefore, this rule amendment is not subject to
the requirements of section 203 of the UMRA.
F. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et seq.
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this direct final
rule amendment. The EPA has also determined that this direct final rule
amendment will not have a significant impact on a substantial number of
small entities. For purposes of assessing the impacts of this direct
final rule amendment on small entities, a small entity is defined as:
(1) A small business in the North American Industrial Classification
System (NAICS) code 325320 that has as many as 500 employees; (2) a
small business in NAICS code 325199 that has as many as 1,000
employees; (3) 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 (4) 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 amendment 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 on small entities'' (5 U.S.C. sections 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. Today's amendment
only clarifies the definition of one term; no additional regulatory
requirements are imposed on owners or operators of affected sources. We
have, therefore, concluded that today's final rule amendment will have
no impact on small entities.
G. Paperwork Reduction Act
The OMB has approved the information collection requirements
contained in the 1999 PAI Production NESHAP under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control No. 2060-0370. An Information Collection Request (ICR) document
has been prepared by EPA (ICR No. 1807.01), and a copy may be obtained
from Sandy Farmer by mail at U.S. EPA, Office of Environmental
Information, Collection Strategies Division (2822), 1200 Pennsylvania
Avenue, NW, Washington, DC 20460, by email at [email protected], or
by calling (202) 260-2740.
The amendment contained in this direct final rule will have no
impact on the information collection burden estimates made previously.
Consequently, the ICR has not been revised.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), directs all
Federal agencies to use voluntary consensus standards in their
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling and analytical procedures, and business practices) that are
developed or adopted by one or more voluntary consensus bodies. The
NTTAA requires Federal agencies like EPA to provide Congress, through
OMB, with explanations when an agency does not use available and
applicable voluntary consensus standards.
Today's action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
I. 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
adopting 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 this rule
amendment 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 rule amendment in the Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
J. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This direct final rule amendment is not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001)
because it is not a significant regulatory action under Executive Order
12866.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: November 15, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, part 63 of title 40,
chapter I of the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart MMM--National Emission Standards for Pesticide
Active Ingredient Production
2. Section 63.1361 is amended by revising the definition for
process tank to read as follows:
Sec. 63.1361 Definitions.
* * * * *
Process tank means a tank that is used within a process to collect
material discharged from a feedstock storage vessel or equipment within
the process before the material is transferred to other equipment
within the process or a product storage vessel. In many
[[Page 58400]]
process tanks, unit operations such as reactions and blending are
conducted. Other process tanks, such as surge control vessels and
bottom receivers, however, may not involve unit operations.
* * * * *
[FR Doc. 01-29098 Filed 11-20-01; 8:45 am]
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