[Federal Register Volume 67, Number 218 (Tuesday, November 12, 2002)]
[Rules and Regulations]
[Pages 68526-68533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28499]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[FRL-7405-6]
RIN 2060-AJ87


National Emission Standard Benzene Waste Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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SUMMARY: This action amends the national emission standards for 
hazardous air pollutants (NESHAP) for benzene waste operations. The 
amendments add an exemption for organic vapors routed to the fuel gas 
system and a new compliance option for tanks, and clarify the standards 
for containers.
    We are publishing the direct final rule without prior proposal 
because we view this as a noncontroversial amendment and anticipate no 
adverse comment. 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.

DATES: The amendments are effective on February 10, 2003 without 
further notice, unless significant, adverse comments are received by 
December 12, 2002, or by February 18, 2003 if a public hearing is 
requested. See the proposed rule in this issue of the Federal Register 
for information on the hearing. If EPA receives adverse comments, EPA 
will publish a timely withdrawal of the direct final rule in the 
Federal Register and inform the public that the rule will not take 
effect.

ADDRESSES: Comments. By U.S. Postal Service, send comments (in 
duplicate, if possible) to: Air and Radiation Docket and Information 
Center (6102T), Attention Docket No. A-2001-23, U.S. EPA, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. In person or by 
courier, deliver comments (in duplicate, if possible) to: Air and 
Radiation Docket and Information Center (6102T), Attention Docket No. 
A-2001-23, Room B-108, U.S. EPA, 1301 Constitution Avenue, NW., 
Washington, DC 20460. We request that a separate copy of each public 
comment be sent to the EPA contact person listed below (see FOR FURTHER 
INFORMATION CONTACT). Docket. Docket No. A-2001-23 contains supporting 
information used in developing the amendments. The docket is located at 
the U.S. EPA, 1301 Constitution Avenue, NW., Washington, DC 20460 in 
room B-108, 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. Robert B. Lucas, Waste and 
Chemical Process Group (C439-03), Emission Standards Division, Office 
of Air Quality Planning and Standards, U.S. EPA, Research Triangle 
Park, North Caroline 27711, telephone number (919) 541-0884, electronic 
mail address, [email protected].

SUPPLEMENTARY INFORMATION: For information concerning applicability and 
rule determinations, contact the appropriate regional representative:

U.S. EPA New England, Director, Air Compliance Programs, 1 Congress 
Street, Suite 1100 (SEA), Boston, MA 02114-2023. Phone: (617) 918-1656, 
Fax: (617) 918-1112.
U.S. EPA--Region II, Air Compliance Branch, 290 Broadway, New York, NY 
10007-1866, Phone: (212) 637-3000, Fax: (212) 637-3526.
U.S. EPA--Region III, Chief, Air Enforcement Branch (3AP12), 1650 Arch 
Street, Philadelphia, PA 19103-2029, Phone: (215) 814-3438, Fax: (215) 
814-2134, Region III Office Web site: www.epa.gov/reg3artd/hazpollut/hazairpol.htm.
U.S. EPA--Region IV, Air and Radiation Technology Branch, Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-3104, Phone: 
(404) 562-9105, Fax: (404) 562-9095.
U.S. EPA--Region V, Air Enforcement and Compliance Assurance Branch 
(AE17J), 77 West Jackson Boulevard, Chicago, IL 60604-3590, Phone: 
(312) 353-2088, Fax: (312) 353-8289.
U.S. EPA--Region VI, Chief, Toxics Enforcement Section ([caret]EN-AT), 
1445 Ross Avenue, Dallas, TX 75202-2733, Phone: (214) 665-7224, Fax: 
(214) 665-2146, Region VI Office Web site: www.epa.gov/region6.
U.S. EPA Region VII, Bill Peterson, 726 Minnesota Avenue, Kansas City, 
KS 66101, Phone: (913) 551-7881, Fax: (913) 551-7467.
U.S. EPA--Region VIII, MACT Enforcement, 999 18th Street, Suite 500, 
Denver, Colorado 80202, Phone: (303) 312-6312, Fax: (303) 312-6409.
U.S. EPA--Region IX, Air Division, 75 Hawthorne Street, San Francisco, 
CA 94105, Phone: (415) 744-1219, Fax: (415) 744-1076.
U.S. EPA--Region X, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, 
Seattle, Washington 98101, Phone: (206) 553-4273, Fax: (206) 553-0110.

    Comments. All public comments will be addressed in a subsequent 
final rule based on the proposed amendments. If we receive any 
significant adverse comments, we will publish a timely withdrawal in 
the Federal Register before the effective date of the amendments. If an 
adverse comment

[[Page 68527]]

applies to a specific amendment, and that provision can be addressed 
separately from the remainder of the direct final rule, we will 
withdraw only that provision on which we received adverse comments. In 
the Proposed Rules section of today's Federal Register, we are 
publishing a separate action that will serve as the proposal for any 
provisions in the direct final rule if we receive adverse comments. If 
all or part of the direct final rule is withdrawn, all public comments 
received will be addressed in a subsequent final rule based on the 
proposal. We will not institute a second comment period on the 
subsequent final rule. If you are interested in commenting, you must do 
so at this time.
    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. Comments will also be accepted on disks in WordPerfect[reg] 
file format. All comments and data submitted in electronic form must 
note the docket number: A-2001-23. 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 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. Robert Lucas, c/o 
OAQPS Document Control Officer (C404-02), U.S. EPA, Research Triangle 
Park, NC 27711.
    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, without further notice, 
to the public.
    Docket. The docket is an organized and complete file of all the 
information considered by EPA in the development of the amendments. The 
docket is a dynamic file because information 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 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 the direct 
final rule 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 today's direct final rule will also be available 
on the WWW through the Technology Transfer Network (TTN). Following 
signature, a copy of the direct final rule will be posted on the TTN's 
policy and guidance page for newly proposed or promulgated rules at 
http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control. If more 
information regarding the TTN is needed, call the TTN HELP line at 
(919) 541-5384.
    Regulated Entities. Categories and entities potentially regulated 
by this action include:

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                                                                                           Examples of regulated
           Category                    SIC code                       NAIC                       entities
----------------------------------------------------------------------------------------------------------------
Industry......................  2800's................  32512-325182....................  Chemical manufacturing
                                2911..................  32411...........................   plants, petroleum
                                3312..................  331111..........................   refineries, coke by-
                                4925..................  22121...........................   product recovery
                                4953..................  562211..........................   plants, and
                                9511..................  324110..........................   commercial hazardous
                                                                                           waste treatment,
                                                                                           storage, and disposal
                                                                                           facilities that
                                                                                           manage waste
                                                                                           generated by these
                                                                                           industries.
Federal government............  ......................  ................................   Not affected.
State/local/tribal government.  ......................  ................................   Not affected.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
direct final rule. To determine whether your facility is regulated by 
the direct final rule, you should examine the applicability criteria in 
40 CFR 61.340 of the NESHAP for benzene waste operations. If you have 
any questions regarding the applicability of this action to a 
particular entity, consult the appropriate person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial 
review of the 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 13, 2002. Under section 307(d)(7)(B) of the CAA, only an 
objection to the direct final rule raised with reasonable specificity 
during the period for public comment can be raised during judicial 
review. Moreover, section 307(b)(2) of the CAA, the requirements that 
are the subject of the direct final rule may not be challenged later in 
civil or criminal proceedings brought by the EPA to enforce the 
requirements.
    Outline. The information in this preamble is organized as follows:

I. Background
II. Why Are We Publishing the Amendments as a Direct Final Rule?
III. How Are We Changing the Applicability of the Final Rule?
IV. What Is the New Compliance Option for Tanks?
V. How Are We Clarifying the Standards for Containers?
VI. How Do I Demonstrate Initial and Continuous Compliance?
VII. What Are the Administrative Requirements?
A. Executive Order 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments
D. Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks
E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
F. Unfunded Mandates Reform Act of 1995
G. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
H. Paperwork Reduction Act
I. National Technology Transfer and Advancement Act of 1995
J. Congressional Review Act

[[Page 68528]]

I. Background

    The NESHAP for benzene waste operations (40 CFR part 61, subpart 
FF) applies to equipment and processes at certain chemical 
manufacturing plants, coke by-product recovery plants, petroleum 
refineries, and facilities that treat, store, or dispose of waste 
generated by those industries. In today's direct final rule, we are 
adding a new compliance option for tanks adopted from similar standards 
established under the Resource Conservation and Recovery Act (RCRA) for 
hazardous waste treatment, storage, and disposal facilities (40 CFR 
parts 264 and 265, subpart CC). The change was first suggested by a 
company subject to both the benzene waste NESHAP and the RCRA subpart 
CC final rules.
    The new compliance option allows tanks to be located inside a 
permanent total enclosure that routes organic vapors through a closed-
vent system to an enclosed combustion control device. The requirements 
for the permanent total enclosure are the same as the Tank Level 2 
control requirements in 40 CFR 264.1084(i) and 40 CFR 265.1085(i) of 
the RCRA final rules. The closed-vent system and control device must 
meet the design and operational standards in the existing NESHAP. 
Adding that option reduces regulatory burden by allowing companies to 
use one set of equipment to comply with both waste final rules.
    We are also amending the benzene waste NESHAP requirements for 
containers to clarify when covers are or are not required. That change 
is being made to improve understanding of the existing requirements 
within the regulated community. The amendment specifies requirements 
for use of a permanent total enclosure with a closed-vent system that 
routes organic vapors to a control device; the requirements for a 
permanent total enclosure are the same as for tanks.
    In the third change, we are amending the benzene waste NESHAP in 
response to a request from a petroleum refinery subject to the benzene 
waste NESHAP. That facility has requested that the benzene waste NESHAP 
exempt organic vapors from a waste management unit, treatment process, 
or wastewater treatment system that are routed to a fuel gas system. 
That exemption is already included in the air standards for petroleum 
refineries in 40 CFR part 63, subpart CC. With that change, any 
facility subject to the benzene waste NESHAP can save energy and costs 
by routing gases to the fuel gas system to recover the heating value of 
the waste stream. The same definition of ``fuel gas system'' in the 
petroleum refinery final rule is added to the benzene waste NESHAP for 
consistency.

II. Why Are We Publishing the Amendments as a Direct Final Rule?

    We are publishing the amendments without prior proposal because we 
view the changes as noncontroversial and anticipate no adverse comment. 
The amendments to the benzene waste NESHAP increase flexibility by 
adding new compliance options and clarifying existing requirements. The 
amendments do not alter the stringency of the benzene waste NESHAP, 
have no adverse health or environmental impacts, and will reduce costs. 
For those reasons, we view the amendments as noncontroversial, 
anticipate no adverse comments, and are publishing the amendments as a 
direct final rule.
    The nature of the changes contained in the direct final rule are 
such that it will benefit both industry and the States for the changes 
to become effective sooner, rather than later.

III. How Are We Changing the Applicability of the Final Rule?

    The existing NESHAP for benzene waste operations require that 
organic vapors be routed to a control device that meets the applicable 
design and operation requirements in 40 CFR 61.349. Provisions are 
included for enclosed combustion devices (e.g., vapor incinerator, 
boiler, or process heater) and vapor recovery systems (carbon canister, 
condenser).
    We are adding an exemption to 40 CFR 61.340 of the NESHAP for 
gaseous waste streams from a waste management unit, treatment process, 
or wastewater treatment system that are routed to a fuel gas system. 
With the exemption, a facility can route the waste gas stream to the 
fuel gas system to reuse the gases as fuel for heaters, furnaces, 
boilers, incinerators, gas turbines, or other combustion devices. 
Because the gas stream goes into the general fuel gas system where it 
mixes with other fuel gases, it is not possible to specify which 
particular combustion device ultimately receives the waste stream 
gases. For that reason, the exemption allows the use of any control 
device (enclosed combustion unit) connected to the fuel gas system, and 
does not require the owner or operator to specify a specific control 
device. A similar exemption is included in the existing NESHAP for 
petroleum refineries (40 CFR part 63, subpart CC).
    Including the exemption eliminates conflicting regulatory 
requirements, reduces energy needs, and saves costs. The exemption 
already contained in the petroleum refinery NESHAP implements the 
current technology-based requirements of section 112 of the CAA. We 
have determined that the exemption also satisfies the risk-based 
requirements of the benzene waste NESHAP since no increase in air 
emissions (or associated health risk) will result. Air emissions are 
not increased because the gases are ultimately burned in enclosed 
combustion devices within the facility that typically have high 
combustion efficiencies for organic HAP. Additional information is 
available in Docket A-2001-23.

IV. What Is The New Compliance Option for Tanks?

    Currently, 40 CFR 63.343 of the benzene waste NESHAP requires a 
fixed-roof and closed-vent system that routes all organic vapors from 
the tank to a control device. In certain cases, only a fixed-roof is 
required for tanks with low-volatility waste.
    The new control option allows tanks to be located inside a 
permanent total enclosure with a closed-vent system that routes organic 
vapors to an enclosed combustion control device. The requirements for 
that option are the same as Tank Level 2 control requirements in 40 CFR 
264.1084(i) and 40 CFR 265.1085(i) of the subpart CC rules and include:

    [sbull] Locating the tank inside an enclosure designed and operated 
to meet the criteria for a permanent total enclosure in ``Procedure T--
Criteria for and Verification of a Permanent or Temporary Total 
Enclosure'' in 40 CFR 52.741, appendix B. Provisions are included for 
permanent or temporary openings in the enclosure to allow for access 
and other needs.
    [sbull] Routing emissions from the total enclosure through a 
closed-vent system to an enclosed combustion control device. The 
combustion control device must be designed and operated to meet the 
standards for a vapor incinerator, boiler, or process heater in 40 CFR 
63.349(a)(2)(i) of subpart FF.
    The Tank Level 2 requirements implement RCRA provisions (42 U.S.C. 
6924(n)) which require health-based rules sufficient to protect human 
health and the environment from air emissions from hazardous waste. We 
have determined that those provisions also satisfy the statutory risk-
based requirements of the benzene waste NESHAP.
    The Tank Level 2 requirements result in an overall HAP control 
efficiency equivalent to the existing control requirements in the 
benzene waste NESHAP. That is because the overall

[[Page 68529]]

control efficiency for a fixed roof tank is determined by the 
efficiency of the control device. The overall control efficiency for a 
control system with a permanent total enclosure is the product of the 
enclosure capture efficiency times the efficiency of the control 
device. The capture efficiency of a permanent total enclosure that 
meets the Procedure T criteria in 40 CFR 52.741, appendix B is 
considered to be 100 percent. The enclosed combustion control devices 
required by the new option are the same combustion control devices 
required by the existing benzene waste NESHAP (vapor incinerator, 
boiler, or process heater). The option also requires that the control 
devices be designed and operated according to the benzene waste NESHAP 
requirements. Thus, the overall control efficiency achieved under the 
new option is equivalent to the control efficiency achieved under the 
existing benzene waste NESHAP. Additional information on our 
determination is available in Docket A-2001-23.
    The subpart CC rules allow for safety devices to be added to 
enclosures and for venting emissions through the safety devices in the 
event of an emergency. Today's amendments contain the same, needed 
provisions, along with a definition of ``safety device.'' Briefly, a 
safety device is a pressure relief valve, frangible disc, fusible plug, 
or other type of device that opens only to prevent damage during an 
unplanned, accidental, or emergency event by venting gases to the 
atmosphere. Safety devices may be put on any enclosure or control 
device as needed.

V. How Are We Clarifying the Standards for Containers?

    We are revising the language in 40 CFR 61.345 of the benzene waste 
NESHAP to clarify when a total enclosure is and is not required and 
what requirements must be met for total enclosures. There are two ways 
to control emissions from containers: (1) Vent emissions from a covered 
or closed container directly to a control device, or (2) vent the 
container inside a permanent total enclosure with a closed-vent system 
that routes organic vapors to a control device. To further clarify the 
requirements, we have added the same provisions for permanent total 
enclosures as described for tanks. Those requirements are also the same 
as the Container Level 3 controls in 40 CFR 264.1086(e) and 40 CFR 
265.1087(e) of the RCRA air rules. Like tanks, we have determined that 
the HAP control efficiency is equivalent to that achieved by a closed 
container vented to a control device and that the provisions satisfy 
the statutory risk-based requirements for that final rule. (See Docket 
A-2001-23.)

VI. How Do I Demonstrate Initial and Continuous Compliance?

    The requirements for demonstrating initial and continuous 
compliance with the requirements for tanks or containers in a total 
enclosure are the same as those required in the RCRA rules for 
hazardous waste treatment, storage, and disposal facilities (40 CFR 
parts 264 and 265, subpart CC). When the enclosure is first installed, 
you must verify that the enclosure meets the criteria for a permanent 
total enclosure according to the requirements in section 5 of 
``Procedure T--Criteria for and Verification of a Permanent or 
Temporary Total Enclosure'' in 40 CFR 52.741, appendix B. To 
demonstrate continuous compliance, you must repeat the verification 
procedure annually and keep records of the most recent set of 
calculations and measurements performed to verify that the enclosure 
meets the criteria in Procedure T, in addition to records required for 
a closed-vent system and control device. A new paragraph is added to 40 
CFR 61.356 of the benzene waste NESHAP to differentiate the 
recordkeeping requirements for total enclosures from those associated 
with the inspection requirements for covers, closed-vent systems, and 
control devices.
    To eliminate regulatory overlap, we have added a provision stating 
that demonstration of compliance with the RCRA subpart CC rules also 
demonstrates compliance with the requirements of the benzene waste 
NESHAP. That means that no demonstration of initial compliance is 
required by the NESHAP for a tank located inside a total enclosure if 
the facility has demonstrated initial compliance with the Tank Level 2 
control requirements in 40 CFR 264.1084(i) or 40 CFR 265.1085(i). That 
provision also applies to a container located inside a total enclosure 
if the facility has demonstrated initial compliance with the Container 
Level 3 control requirements in 40 CFR 264.1086(e) or 40 CFR 
265.1087(e). The same is true for demonstrating continuous compliance 
by conducting annual verifications and keeping records of the 
information required by 40 CFR 264.1089(d) or 40 CFR 264.1090(d). The 
NESHAP require that records used for RCRA compliance purposes be made 
available for inspection upon request.

VII. 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 review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines a ``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 today's amendments do not constitute a ``significant regulatory 
action'' because they do not meet any of the above criteria. The 
revisions are primarily technical actions with no significant policy 
issues, are based on established criteria included in other EPA rules, 
and employ accepted scientific methods. Amending the benzene waste 
NESHAP increases flexibility, improves understanding of the existing 
requirements, makes the benzene waste NESHAP consistent with the RCRA 
air rules for waste management, reduce costs, and have no environmental 
impacts. Consequently, the action was 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 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

[[Page 68530]]

the States, or on the distribution of power and responsibilities among 
the various levels of government.''
    The 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. None of the affected 
facilities are owned or operated by State governments. Thus, the 
requirements of section 6 of the Executive Order do not apply to the 
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.'' ``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.''
    The rule amendments do not have tribal implications. They will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. No 
tribal governments own facilities subject to the benzene waste NESHAP. 
Thus, Executive Order 13175 does not apply to the direct final rule 
amendments.

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, the 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 the EPA.
    The direct final rule is not subject to Executive Order 13045 
because it is not an economically significant regulatory action as 
defined by Executive Order 12866. The EPA interprets Executive Order 
13045 as applying only to 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. The 
NESHAP for benzene waste operations is based on protection of the 
public health with an ample margin of safety. However, the amendments 
to the benzene waste NESHAP have no effect on the level of emissions 
from benzene waste operations or associated risk and are not subject to 
Executive Order 13045.

E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    The direct final rule is not subject to Executive Order 13211, (66 
FR 28355, May 22, 2001) because it is not a significant regulatory 
action under Executive Order 12866.

F. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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 by 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 the amendments do not contain a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments, in the aggregate, or to the 
private sector in any 1 year. No costs are attributable to the 
amendments. In addition, the direct final rule does not significantly 
or uniquely impact small governments because it contains no 
requirements that apply to such governments or impose obligations upon 
them. Thus, the requirements of the UMRA do not apply to the direct 
final rule.

G. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business 
according to the Small Business Administration (SBA) size standards by 
NAICS code; (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 which is independently owned and operated 
and is not dominant in its field.
    The EPA determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with these final amendments. The EPA 
also determined that the amendments will not impose a significant 
economic impact on a substantial number of small

[[Page 68531]]

entities. The amendments impose no additional requirements on new or 
existing regulated facilities. In addition, by allowing the use of 
existing equipment under new alternative compliance options, these 
amendments decrease the compliance costs and reduce capital and 
operating costs for a few facilities. Therefore, pursuant to the 
provisions of 5 U.S.C. 605(b), I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities.

H. Paperwork Reduction Act

    The OMB approved the information collection requirements in the 
1990 NESHAP for benzene waste operations under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB 
control number No. 2060-0183. A copy of the information collection 
request (ICR) document for the 1990 NESHAP for benzene waste operations 
(ICR No. 1541.06) may be obtained from Susan Auby by mail at U.S EPA, 
Office of Environmental Information, Collection Strategies Division 
(2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail 
at [email protected], or by calling (202) 566-1672.
    The amendments require facilities using total enclosures for tanks 
or containers to verify the integrity of the enclosure initially, when 
first installed, and annually thereafter. The amendments also require 
facilities to keep records of the most recent set of calculations and 
measurements performed to verify that the total enclosure meets the 
specified criteria. The requirements are identical to other EPA air 
rules for waste management in 40 CFR parts 264 and 265, subpart CC. A 
facility that is already meeting the subpart CC requirements is not 
required to make duplicate verifications or keep duplicate records, but 
must make the subpart CC records available for inspection upon request. 
The recordkeeping requirements, which are needed to determine 
compliance, are specifically authorized under section 114 of the CAA 
(42 U.S.C. 7414). The information collection requirements in the direct 
final rule will have no net impact on the information collection burden 
estimates included in the ICR for the 1990 benzene waste NESHAP, 
because the only facility with a total enclosure is already conducting 
annual verifications and keeping the prescribed records. Consequently, 
the ICR has not been revised.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purpose of collecting, validating, and 
verifying information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
respond to a collection of information; search existing data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control number for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

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 EPA to use voluntary consensus standards (VCS) in their 
regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impracticable. Voluntary 
consensus standards are technical standards (e.g., material 
specifications, test methods, sampling and analytical procedures, 
business practices, etc.) developed or adopted by one or more voluntary 
consensus bodies. The NTTAA directs EPA to provide Congress, through 
annual reports to OMB, with explanations when EPA does not use 
available and applicable VCS.
    The direct final rule requires the use of ``Procedure T-Criteria 
for and Verification of a Permanent or Temporary Total Enclosure'' in 
40 CFR 52.741, appendix B. That procedure uses established and 
commonly-accepted techniques and calculations to confirm the efficiency 
of the enclosure. The procedure is required for all State 
implementation plans and in other EPA rules. We have not been able to 
identify any applicable VCS. Accordingly, the NTTAA requirement does 
not apply to the direct final rule. Nevertheless, as provided by the 
NESHAP General Provisions in 40 CFR part 61, subpart A, any State or 
facility may apply to EPA for permission to use an alternative method.

J. 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 the direct final 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the direct final rule in the Federal Register. 
The direct final rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2). The direct final rule will be effective on February 10, 2002.

List of Subjects in 40 CFR Part 61

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous substances, Reporting and 
recordkeeping requirements.

    Dated: November 1, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
61 of the Code of Federal Regulations is amended as follows:

PART 61--[AMENDED]

    1. The authority citation for part 61 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart FF--[AMENDED]

    2. Section 61.340 is amended by adding paragraph (d) to read as 
follows:


Sec.  61.340  Applicability.

* * * * *
    (d) At each facility identified in paragraph (a) or (b) of this 
section, any gaseous stream from a waste management unit, treatment 
process, or wastewater treatment system routed to a fuel gas system, as 
defined in Sec.  61.341, is exempt from this subpart. No testing, 
monitoring, recordkeeping, or reporting is required under this subpart 
for any gaseous stream from a waste management unit, treatment process, 
or wastewater treatment unit routed to a fuel gas system.

    3. Section 61.341 is amended by adding new definitions in 
alphabetical order for the terms ``Fuel gas system'' and ``Safety 
device'' to read as follows:


Sec.  61.341  Definitions.

* * * * *
    Fuel gas system means the offsite and onsite piping and control 
system that gathers gaseous streams generated by facility operations, 
may blend them with sources of gas, if available, and

[[Page 68532]]

transports the blended gaseous fuel at suitable pressures for use as 
fuel in heaters, furnaces, boilers, incinerators, gas turbines, and 
other combustion devices located within or outside the facility. The 
fuel is piped directly to each individual combustion device, and the 
system typically operates at pressures over atmospheric.
* * * * *
    Safety device means a closure device such as a pressure relief 
valve, frangible disc, fusible plug, or any other type of device which 
functions exclusively to prevent physical damage or permanent 
deformation to a unit or its air emission control equipment by venting 
gases or vapors directly to the atmosphere during unsafe conditions 
resulting from an unplanned, accidental, or emergency event. For the 
purpose of this subpart, a safety device is not used for routine 
venting of gases or vapors from the vapor headspace underneath a cover 
such as during filling of the unit or to adjust the pressure in this 
vapor headspace in response to normal daily diurnal ambient temperature 
fluctuations. A safety device is designed to remain in a closed 
position during normal operations and open only when the internal 
pressure, or another relevant parameter, exceeds the device threshold 
setting applicable to the air emission control equipment as determined 
by the owner or operator based on manufacturer recommendations, 
applicable regulations, fire protection and prevention codes, standard 
engineering codes and practices, or other requirements for the safe 
handling of flammable, ignitable, explosive, reactive, or hazardous 
materials.
* * * * *

    4. Section 61.343 is amended by:
    a. Revising paragraph (a) introductory text;
    b. Adding paragraph (a)(2); and
    c. Adding paragraph (e).
    The revision and additions read as follows:


Sec.  61.343  Standards: Tanks.

    (a) Except as provided in paragraph (b) of this section and in 
Sec.  61.351, the owner or operator must meet the standards in 
paragraph (a)(1) or (2) of this section for each tank in which the 
waste stream is placed in accordance with Sec.  61.342 (c)(1)(ii). The 
standards in this section apply to the treatment and storage of the 
waste stream in a tank, including dewatering.
    (1) * * *
    (2) The owner or operator must install, operate, and maintain an 
enclosure and closed-vent system that routes all organic vapors vented 
from the tank, located inside the enclosure, to an enclosed combustion 
control device in accordance with the requirements specified in 
paragraph (e) of this section.
* * * * *
    (e) Each owner or operator who controls air pollutant emissions by 
using an enclosure vented through a closed-vent system to an enclosed 
combustion control device must meet the requirements specified in 
paragraphs (e)(1) through (4) of this section.
    (1) The tank must be located inside a total enclosure. The 
enclosure must be designed and operated in accordance with the criteria 
for a permanent total enclosure as specified in ``Procedure T--Criteria 
for and Verification of a Permanent or Temporary Total Enclosure'' in 
40 CFR 52.741, appendix B. The enclosure may have permanent or 
temporary openings to allow worker access; passage of material into or 
out of the enclosure by conveyor, vehicles, or other mechanical means; 
entry of permanent mechanical or electrical equipment; or direct 
airflow into the enclosure. The owner or operator must perform the 
verification procedure for the enclosure as specified in section 5.0 of 
Procedure T initially when the enclosure is first installed and, 
thereafter, annually. A facility that has conducted an initial 
compliance demonstration and that performs annual compliance 
demonstrations in accordance with the requirements for Tank Level 2 
control requirements 40 CFR 264.1084(i) or 40 CFR 265(i) is not 
required to make repeat demonstrations of initial and continuous 
compliance for the purposes of this subpart.
    (2) The enclosure must be vented through a closed-vent system to an 
enclosed combustion control device that is designed and operated in 
accordance with the standards for either a vapor incinerator, boiler, 
or process heater specified in Sec.  61.349.
    (3) Safety devices, as defined in this subpart, may be installed 
and operated as necessary on any enclosure, closed-vent system, or 
control device used to comply with the requirements of paragraphs 
(e)(1) and (2) of this section.
    (4) The closed-vent system must be designed and operated in 
accordance with the requirements of Sec.  61.349.
    5. Section 61.345 is amended by revising paragraph (a)(3) to read 
as follows:


Sec.  61.345  Standards: containers.

    (a) * * *
    (3) Treatment of a waste in a container, including aeration, 
thermal or other treatment, must be performed by the owner or operator 
in a manner such that while the waste is being treated the container 
meets the standards specified in paragraphs (a)(3)(i) through (iii) of 
this section, except for covers and closed-vent systems that meet the 
requirements in paragraph (a)(4) of this section.
    (i) The owner or operator must either:
    (A) Vent the container inside a total enclosure which is exhausted 
through a closed-vent system to a control device in accordance with the 
requirements of paragraphs (a)(3)(ii)(A) and (B) of this section; or
    (B) Vent the covered or closed container directly through a closed-
vent system to a control device in accordance with the requirements of 
paragraphs (a)(3)(ii)(B) and (C) of this section.
    (ii) The owner or operator must meet the following requirements, as 
applicable to the type of air emission control equipment selected by 
the owner or operator:
    (A) The total enclosure must be designed and operated in accordance 
with the criteria for a permanent total enclosure as specified in 
section 5 of the ``Procedure T--Criteria for and Verification of a 
Permanent or Temporary Total Enclosure'' in 40 CFR 52.741, appendix B. 
The enclosure may have permanent or temporary openings to allow worker 
access; passage of containers through the enclosure by conveyor or 
other mechanical means; entry of permanent mechanical or electrical 
equipment; or direct airflow into the enclosure. The owner or operator 
must perform the verification procedure for the enclosure as specified 
in section 5.0 of ``Procedure T--Criteria for and Verification of a 
Permanent or Temporary Total Enclosure'' initially when the enclosure 
is first installed and, thereafter, annually. A facility that has 
conducted an initial compliance demonstration and that performs annual 
compliance demonstrations in accordance with the Container Level 3 
control requirements in 40 CFR 264.1086(e)(2)(i) or 40 CFR 
265.1086(e)(2)(i) is not required to make repeat demonstrations of 
initial and continuous compliance for the purposes of this subpart.
    (B) The closed-vent system and control device must be designed and 
operated in accordance with the requirements of Sec.  61.349.
    (C) For a container cover, the cover and all openings (e.g., doors, 
hatches) must be designed to operate with no detectable emissions as 
indicated by an instrument reading of less than 500 ppmv above 
background, initially and

[[Page 68533]]

thereafter at least once per year by the methods specified in Sec.  
61.355(h).
    (iii) Safety devices, as defined in this subpart, may be installed 
and operated as necessary on any container, enclosure, closed-vent 
system, or control device used to comply with the requirements of 
paragraph (e)(1) of this section.
* * * * *

    6. Section 61.356 is amended by adding paragraph (n) to read as 
follows:


Sec.  61.356  Recordkeeping requirements.

* * * * *
    (n) Each owner or operator using a total enclosure to comply with 
control requirements for tanks in Sec.  61.343 or the control 
requirements for containers in Sec.  61.345 must keep the records 
required in paragraphs (n)(1) and (2) of this section. Owners or 
operators may use records as required in 40 CFR 264.1089(b)(2)(iv) or 
40 CFR 265.1090(b)(2)(iv) for a tank or as required in 40 CFR 
264.1089(d)(1) or 40 CFR 265.1090(d)(1) for a container to meet the 
recordkeeping requirement in paragraph (n)(1) of this section. The 
owner or operator must make the records of each verification of a total 
enclosure available for inspection upon request.
    (1) Records of the most recent set of calculations and measurements 
performed to verify that the enclosure meets the criteria of a 
permanent total enclosure as specified in ``Procedure T--Criteria for 
and Verification of a Permanent or Temporary Total Enclosure'' in 40 
CFR 52.741, appendix B;
    (2) Records required for a closed-vent system and control device 
according to the requirements in paragraphs (d) (f), and (j) of this 
section.
* * * * *

[FR Doc. 02-28499 Filed 11-8-02; 8:45 am]
BILLING CODE 6560-50-P