[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16317-16322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5862]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7155-9]
National Emission Standards for Hazardous Air Pollutants: Solvent
Extraction for Vegetable Oil Production
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule; amendments.
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[[Page 16318]]
SUMMARY: We are taking direct final action to amend the national
emission standards for hazardous air pollutants (NESHAP) for solvent
extraction for vegetable oil production plants which were promulgated
on April 12, 2001 under authority of section 112 of the Clean Air Act
(CAA). The amendments will clarify the startup, shutdown, and
malfunction requirements for owners or operators subject to the
Vegetable Oil NESHAP. The amendments will also clarify the
applicability of the NESHAP General Provisions.
DATES: This direct final action rule will be effective on June 4, 2002
without further notice, unless significant adverse comments are
received by May 6, 2002.
If significant adverse comments are received we will publish a
timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect.
ADDRESSES: Comments. By U.S. Postal Service, submit written comments
(in duplicate, if possible) to: Air and Radiation Docket and
Information Center (6102), Attention Docket Number A-97-59, U.S. EPA,
1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by
courier, submit comments (in duplicate, if possible) to: Air and
Radiation Docket and Information Center (6102), Attention Docket Number
A-97-59, Room M-1500, U.S. EPA, 401 M Street, SW., Washington DC 20460.
We request that a separate copy of each public comment also be sent to
the contact person listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Minerals and
Inorganic Chemicals Group (C504-05), Emission Standards Division, U.S.
EPA, Research Triangle Park, NC 27711, telephone number (919) 541-5262,
electronic mail (e-mail): [email protected].
SUPPLEMENTARY INFORMATION: Comments. We are publishing this direct
final rule without proposal because we view the amendments as
noncontroversial 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 the administrative
record compiled developing this rulemaking. The docket is a dynamic
file because material is added throughout the rulemaking process. The
docketing system is intended to help you to readily identify and locate
documents so that you can effectively participate in the rulemaking
process. Along with the proposed and promulgated rules 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 CAA.) You
may obtain 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. We may
charge a reasonable fee for copying docket materials. You may also
obtain docket indexes by facsimile, as described on the Office of Air
and Radiation, Docket and Information Center Website at http://www.epa.gov/airprogm/oar/docket/faxlist.html.
Worldwide Web
In addition to being available in the docket, an electronic copy of
this direct final rule will also be available through the Worldwide Web
(WWW). Following signature, a copy of the direct final rule will be
posted on the EPA's Technology Transfer Network (TTN) policy and
guidance page for newly proposed or promulgated rules at 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
If your facility produces vegetable oil from corn germ, cottonseed,
flax, peanuts, rapeseed (for example, canola), safflower, soybeans, or
sunflower, it may be a ``regulated entity.'' Categories and entities
potentially regulated by this action include:
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Category NAICS Examples of regulated entities
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Industry........................................ 311223 Cottonseed oil mills.
311222 Soybean oil mills.
311223 Other vegetable oil mills, excluding soybeans and
cottonseed mills.
311223 Other vegetable oil mills, excluding soybeans and
cottonseed mills.
311119 Prepared feeds and feed ingredients for animals
and fowls, excluding dogs and cats.
311211 Flour and other grain mill product mills.
311221 Wet corn milling.
Federal government.............................. ........... Not affected.
State/local/tribal government................... ........... Not affected.
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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. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in Sec. 63.2832 of the
rule. If you have any questions regarding the applicability of these
amendments to a particular entity, consult the appropriate EPA Regional
Office representative.
Judicial Review
Under section 307(b)(1) of the CAA, judicial review of this direct
final rule is available after the effective date by filing a petition
for review in the U.S. Court of Appeals for the District of Columbia
Circuit no later than June 4, 2002. Under section 307(d)(7)(B) of the
CAA, only an objection to a rule or procedure raised with reasonable
specificity during the period for public comment can be raised during
judicial review. Moreover, under section 307(b)(2) of the CAA, the
requirements established by this direct final rule may not be
challenged later in civil or criminal proceedings brought by the EPA to
enforce these requirements.
[[Page 16319]]
I. Why Are We Publishing These Amendments as a Direct Final Rule?
On May 26, 2000, we proposed National Emission Standards for
Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil
Production (65 FR 34252). The proposed rule included requirements for
limiting emissions during vegetable oil production, including
requirements during startup, shutdown, and malfunction (SSM) of
vegetable oil production processes. As with all NESHAP, the regulatory
development process included an examination of which specific
provisions in the General Provisions at 40 CFR part 63, subpart A,
should be applicable to sources subject to subpart GGGG. Based on a
review of the General Provisions promulgated on March 16, 1994 (59 FR
12408), we determined that 40 CFR 63.6(e), which contains various
procedures related to operation and maintenance and SSM, would apply to
sources subject to subpart GGGG.
Based on public comments, we made one major change to the proposed
regulation, which was to allow the use of an accounting month rather
than a calendar month to determine solvent losses and quantities of
oilseed processed by an affected source. There were no substantive
public comments on the proposed SSM provisions and they were not
changed in the final rule. On April 12, 2001, we promulgated National
Emission Standards for Hazardous Air Pollutants: Solvent Extraction for
Vegetable Oil Production (66 FR 19006).
On March 23, 2001 (66 FR 16318), we proposed amendments to the
General Provisions to part 63. The proposed amendments included several
changes to the SSM requirements. Among others, these changes included
proposed 40 CFR 63.6(e)(3)(iii) requiring records related to
malfunctions; proposed 40 CFR 63.6(e)(3)(iv) which requires reporting
of actions inconsistent with the startup, shutdown, and malfunction
plan (SSMP); and proposed 40 CFR 63.6(e)(3)(viii) which requires
reporting modifications to the SSM plan in the semiannual report. In
addition, the proposed changes to the General Provisions SSMP clarify
that the title V permit must require that an SSMP be prepared and
followed but the SSMP is not itself part of the title V permit.
In the preamble to the proposed General Provisions amendments, we
specifically requested comment on ``any conflicts * * * that result
solely from applying these proposed amendments to the General
Provisions to promulgated part 63 subparts.'' One commenter identified
such a conflict between SSM provisions of the Vegetable Oil Production
NESHAP and those provisions in the General Provisions. Specifically,
the commenter noted that proposed 40 CFR 63.6(e)(3)(iii), which
requires records related to malfunctions under 40 CFR 63.10(b), should
not apply to subpart GGGG, as subpart GGGG states that 40 CFR
63.10(b)(2)(ii) through (iii) relating to malfunction records do not
apply. Also, proposed 40 CFR 63.6(e)(3)(iv), which requires reporting
of actions inconsistent with the SSMP if the emissions exceed the
relevant standard, does not comport with subpart GGGG. The Vegetable
Oil Production NESHAP require reporting of such actions regardless of
whether the standard was exceeded. The commenter also specifically
noted that proposed 40 CFR 63.6(e)(3)(viii), the requirement to report
modifications to the SSM plan in the semiannual report, should not
apply to sources subject to subpart GGGG, as subpart GGGG does not
require a semiannual report.
We agree with the commenter that these proposed provisions conflict
with those in the promulgated Vegetable Oil Production NESHAP. As we
proposed to codify in 40 CFR 63.1(a)(4)(i), each relevant part 63
standard should identify explicitly whether each provision in subpart A
is or is not included in each standard. This regulatory language is
based on our conviction that each NESHAP must determine which of the
General Provisions do or do not make sense for a particular source
category. It was not our intent to alter the SSMP requirements of the
Vegetable Oil Production NESHAP.
We have discussed the implications of the General Provisions
amendments with the commenter and as a result are editing subpart GGGG
to correct the inconsistencies. These changes will ensure the
minimization of emissions at all times, clarify the SSM requirements,
and specify the relationship of the General Provisions to Vegetable Oil
Production NESHAP affected sources.
II. What Are the Amendments to the Final Rule?
With this direct final action, we are amending several provisions
related to SSM requirements. Specifically, we are amending the
explanation column of Table 1 of 40 CFR 63.2870 as it applies to 40 CFR
63.6(e) to state, ``implement your plan as specified in Sec. 63.2852.''
Table 1 also now indicates that 40 CFR 63.6(e)(3)(iii), (iv) and (viii)
do not apply to Vegetable Oil Production NESHAP affected sources.
We are also amending the first sentence of 40 CFR 63.2861(d) to
clarify that owner/operators must submit an immediate SSM report if an
SSM is handled differently from the procedures in the SSM plan and the
emission standards are exceeded.
We are also amending the third sentence of 40 CFR 63.2852 to
clarify that the SSMP does not have to be incorporated into the title V
permit.
These changes will ensure the minimization of emissions at all
times, clarify the SSM requirements, and specify the relationship of
the General Provisions to Vegetable Oil Production NESHAP affected
sources.
Please note that these changes are contained within the Vegetable
Oil Production NESHAP and that they are being made for consistency with
the General Provisions amendments, where appropriate. The Vegetable Oil
Production NESHAP, however, also contains specifically tailored SSMP
provisions for this industry and one should look expressly to that rule
for the applicable SSMP provisions.
III. What Are the Administrative Requirements?
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 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.
Pursuant to the terms of Executive Order 12866, we have determined
that these amendments do not constitute a ``significant regulatory
action'' because they do not meet any of the above criteria.
Consequently, this action was
[[Page 16320]]
not submitted to OMB for review under Executive Order 12866.
B. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the 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 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 Executive Order 13132 do not apply to this
direct final rule.
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.''
These rule amendments do not have tribal implications, as specified
in Executive Order 13175. No tribal governments are known to own or
operate solvent extraction for vegetable oil production facilities.
Thus, Executive Order 13175 does not apply to these rule amendments.
D. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``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 the EPA has reason to
believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, the Agency 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 the Agency.
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 Order has the
potential to influence the regulation. This direct final rule is not
subject to the Executive Order because it is based on technology
performance and not on health or safety risks.
E. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy, Supply, Distribution, or Use
The direct final rule amendments are not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy, Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001),
because they are not significant regulatory actions under Executive
Order 12866.
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, the
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 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 an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the 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 the 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 the 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 these amendments do 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 in the
private sector in any 1 year. Thus, the amendments are not subject to
the requirements of sections 202 and 205 of the UMRA. In addition, the
EPA has determined that these amendments contain no regulatory
requirements that might significantly or uniquely affect small
governments, because they contain no requirements that apply to such
governments or impose obligations on them. Therefore, today's
amendments are not subject to the requirements of section 203 of the
UMRA.
G. Regulatory Flexibility Act, As Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final rule. The
EPA has also determined that this rule will not have a significant
economic impact on a substantial number of small entities. For purposes
of assessing the impact of today's rule on small entities, small
entities are defined as: (1) A small business that has less than 750
employees and is unaffiliated with a larger domestic entity; (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; and (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 today's final amendments
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
[[Page 16321]]
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 of the
proposed rule 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. The amendments better
clarify and make the startup, shutdown, and malfunction plan consistent
with the amended part 63 subpart A; the effect is to clarify that
sources do not have to modify their title V permit each time the SSMP
is changed. We have therefore concluded that today's direct final rule
will relieve regulatory burden for all small entities.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the EPA
must consider the paperwork burden imposed by any information
collection request in a proposed or final rule. The OMB has previously
approved the information collection requirements for the subject
facilities under the Paperwork Reduction Act (OMB Control No. 2060-
0471). The amendments contained in this direct final rule will have no
net impact on the information collection burden estimates made
previously. Consequently, the ICR has not been revised.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113 (March 7, 1996) (15 U.S.C. 272
note), directs all Federal agencies to use voluntary consensus
standards instead of government-unique standards in their regulatory
activities unless to do so would be inconsistent with applicable law or
would be otherwise impractical. Voluntary consensus standards are
technical standards (for example, material specifications, test
methods, sampling and analytical procedures, business practices, etc.)
that are developed or adopted by one or more voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
annual reports to OMB, with explanations when EPA does not use
available and applicable voluntary consensus standards.
This action does not involve the use of any new technical
standards. Accordingly, the NTTAA requirement to use applicable
voluntary consensus standards does not apply to this direct final rule.
J. The 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 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. 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 rule 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).
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: March 5, 2002.
Christine Todd Whitman,
Administrator.
For the reasons cited in the preamble, part 63, 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 GGGG--[AMENDED]
2. Section 63.2852 is amended by revising the first three sentences
to read as follows:
Sec. 63.2852 What is a startup, shutdown, and malfunction plan?
You must develop a written SSM plan in accordance with
Sec. 63.6(e)(3) and implement the plan, when applicable. You must
complete the SSM plan before the compliance date for your source. You
must also keep the SSM plan on-site and readily available as long as
the source is operational.* * *
3. Section 63.2861 is amended by revising the first sentence of
paragraph (d) introductory text to read as follows:
Sec. 63.2861 What reports must I submit and when?
* * * * *
(d) Immediate SSM reports. If you handle a SSM during an initial
startup period subject to Sec. 63.2850(c)(2) or (d)(2) or a malfunction
period subject to Sec. 63.2850(e)(2) differently from procedures in the
SSM plan and the relevant emission requirements in Sec. 63.2840 are
exceeded, then you must submit an immediate SSM report. * * *
* * * * *
4. Table 1 of Sec. 63.2870 is amended by revising the entry to
Sec. 63.6(e) to read as follows:
Sec. 63.2870 What parts of the General Provisions apply to me?
* * * * *
Table 1 of Sec. 63.2870.--Applicability of 40 CFR Part 63, Subpart A, to 40 CFR Part 63, Subpart GGGG
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Brief
description Applies to
General provisions citation Subject of citation of subpart Explanation
requirement
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* * * * * *
*
Sec. 63.6(e)(1) through Operation and ............ Yes............. Implement your SSM plan,
(e)(3)(ii) and Sec. maintanance as specified in Sec.
63.6(e)(3)(v) through (vii). requirements. 63.2852.
Sec. 63.6(e)(3)(v)(iii)........ Operation and ............ No.............. Implement your plan, as
maintenance specified in Sec.
requirements. 63.2852.
Sec. 63.6(e)(3)(iv)............ Operation and ............ No.............. Report SSM and in
maintenance accordance with Sec.
requirements. 63.2861(c) and (d).
[[Page 16322]]
Sec. 63.6(e)(3)(viii).......... Operation and ............ Yes............. Except, report each
maintenance revision to your SSM
requirements. plan in accordance with
Sec. 63.2861(c) rather
than Sec. 63.10(d)(5)
as required under Sec.
63.6(e)(3) (viii).
* * * * * *
*
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[FR Doc. 02-5862 Filed 4-4-02; 8:45 am]
BILLING CODE 6560-50-P