[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Rules and Regulations]
[Pages 58837-58839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22084]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7812-8]
National Emission Standards for Hazardous Air Pollutants for
Secondary Aluminum Production
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interpretative rule.
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SUMMARY: This interpretative rule concerns the applicability of the
NESHAP for secondary aluminum producers, 40 CFR part 63, subpart RRR,
to a specific type of facility which thermally delaminates aluminum
foil from paper and plastic and then mechanically granulates the
recovered metal. We decided to reconsider this matter after reviewing
two applicability determinations which were issued by EPA regional
offices for facilities of this type operated by the U.S. Granules
Corporation in Plymouth, IN, and Henrietta, MO. We concluded that these
applicability determinations reflected conflicting constructions of
subpart RRR, and that the determinations should be vacated while we
undertook a review to develop a uniform national construction of the
rule.
In today's interpretative rule, we conclude that a delamination
chamber of the type operated by the U.S. Granules facilities is a
``scrap dryer/delacquering kiln/decoating kiln'' as that term is
defined in 40 CFR 63.1503. Accordingly, we believe that the facilities
operated by U.S. Granules in Plymouth and Henrietta, and any other
facilities which may engage in similar operations, are subject to the
emission control requirements of subpart RRR.
EFFECTIVE DATE: This interpretative rule will take effect on November
1, 2004. After that date, this interpretative rule will govern all
decisions concerning the applicability of 40 CFR part 63, subpart RRR,
to affected facilities by EPA and by State and local permitting
authorities.
FOR FURTHER INFORMATION CONTACT: For specific questions concerning the
interpretation of 40 CFR part 63, subpart RRR, adopted in this notice,
contact Scott Throwe at EPA by telephone at: (202) 564-7013, or by e-
mail at: [email protected].
SUPPLEMENTARY INFORMATION: Regulated Entities. This interpretative rule
concerns applicability of 40 CFR part 63, subpart RRR, to specific
facilities that thermally delaminate aluminum foil from paper and
plastic and then mechanically granulate the recovered metal. This
interpretative rule determines that these facilities are secondary
aluminum production facilities as defined by subpart RRR, and that such
facilities are therefore subject to regulation under that subpart. This
interpretative rule does not govern determinations regarding the
applicability of subpart RRR to other types of activities or
operations, although the rationale for the conclusions in this
interpretative rule may be relevant in other contexts.
Judicial Review. This interpretative rule is based on a
determination of nationwide scope and effect. Under section 307(b)(1)
of the CAA, judicial review of this interpretative rule is available
only by filing a petition for review in the U.S. Court of Appeals for
the District of Columbia Circuit by November 30, 2004. Moreover, under
section 307(b)(2) of the CAA, any judicial review of this
interpretative rule must be obtained pursuant to section 307(b)(1) and
this interpretation may not be subjected to separate judicial review in
any civil or criminal proceedings for enforcement.
I. Background for This Interpretative Rule
This interpretative rule is the outcome of a review by EPA of the
applicability of the NESHAP for secondary aluminum producers, 40 CFR
part 63, subpart RRR, to a specific type of facility which thermally
delaminates aluminum foil from paper and plastic and then mechanically
granulates the recovered metal. This review was undertaken following
the decision of EPA to vacate two applicability determinations which
were previously made by the EPA regional offices concerning facilities
of this type owned and operated by the U.S. Granules Corporation.
One of these applicability determinations concerned the U.S.
Granules facility in Plymouth, Indiana and was made by the EPA Region 5
Air Enforcement and Compliance Assurance Branch on August 21, 2002, in
response to a request for such a determination by U.S. Granules dated
August 14, 2002. Notice of this applicability determination (Control
No. M020112) was published in the Federal Register on February 13,
2003. 68 FR 7373. EPA Region 5 based its conclusions in this
determination on a phrase in the definition in subpart RRR of a ``scrap
dryer/delaquering kiln/decoating kiln'' which states that such units
are used to remove contaminants from aluminum scrap ``prior to
melting.'' EPA Region 5 concluded that the delamination chamber at the
Plymouth facility does not fit within this definition because all
processing of the recovered aluminum at the Plymouth facility is
entirely mechanical and the recovered aluminum is never melted.
The other applicability determination concerned the U.S. Granules
facility in Henrietta, Missouri, and was made by the EPA Region 7 Air
Permitting and Compliance Branch on October 22, 2002, in response to a
request for such a determination by U.S. Granules dated
[[Page 58838]]
October 11, 2002. Notice of this applicability determination (Control
No. M020117) was also published in the Federal Register on February 13,
2003. 68 FR 7373. In the determination concerning the Henrietta
facility, Region 7 concluded that the delamination chamber at the
Henrietta facility is within the definition of a ``scrap dryer/
delacquering kiln/decoating kiln'' even though the recovered aluminum
is not melted at the Henrietta facility. Region 7 reasoned that the
phrase ``prior to melting'' in the definition is merely intended to
indicate that the recovery process is normally performed before the
recovered aluminum is placed in a furnace to be melted. Region 7 noted
that it is the use of heat to remove contaminants from scrap aluminum
that generates the emissions of dioxins and furans that subpart RRR is
intended to control. Region 7 also found that a unit at the Henrietta
facility that dries alumninum chips was a ``thermal chip dryer''
subject to subpart RRR.
After issuance of these two applicability determinations, EPA
determined that these determinations reflected conflicting
constructions concerning the applicability of subpart RRR to aluminum
delamination operations like those conducted at the U.S. Granules
facilities. EPA also determined that the retention of such conflicting
constructions would be inappropriate as a matter of law and policy.
Accordingly, EPA decided to vacate both of these applicability
determinations and to commence a process to adopt a single uniform
construction of subpart RRR which would apply to all operations like
those conducted at the U.S. Granules facilities.
The decision to vacate the determination concerning the Plymouth
facility was announced in a letter to U.S. Granules dated June 19,
2003. The decision to vacate the Henrietta determination was announced
in a letter to U.S. Granules dated June 23, 2003. Although the vacature
of each of these applicability determinations was final and effective
on the date that each letter announcing that vacature was signed, EPA
also published a notice announcing vacature of these two applicability
determinations. 68 FR 42397, September 3, 2003.
Following issuance of the affirmative determination concerning the
applicability of subpart RRR to the Henrietta facility, U.S. Granules
Corporation brought an action seeking judicial review of that
determination. U.S. Granules Corp. v. Whitman, No. 03-1946 (8th
Circuit). After EPA vacated the Henrietta determination and published
the notice of vacature, U.S. Granules moved to dismiss its petition for
review. That case was dismissed on September 4, 2003.
II. Interpretation Adopted by This Rule
After EPA decided to adopt a single uniform construction of subpart
RRR which would apply to all operations like those conducted at the
U.S. Granules facilities, EPA concluded that the appropriate vehicle to
announce such a uniform construction is an interpretative rule. The
interpretation adopted in an interpretative rule is binding on all EPA
offices and permitting authorities, thereby assuring a uniform and
predictable outcome. However, the reasonableness of the construction of
subpart RRR adopted in this interpretative rule is still subject to
appropriate judicial review.
This interpretative rule is limited solely to the question of
whether a delamination chamber of the type operated at the Plymouth and
Henrietta U.S. Granules facilities is a ``scrap dryer/delacquering
kiln/decoating kiln'' as that term is defined in 40 CFR 63.1503.
Although we believe that the affirmative applicability determination
concerning the unit that dries aluminum chips at the Henrietta facility
was correct, we do not believe it is necessary to revisit that
determination because counsel for U.S. Granules advised EPA in a letter
dated December 23, 2002, that U.S. Granules did not contest the
determination concerning the chip dryer and that U.S. Granules intended
to decomission and remove the chip dryer from that facility before the
effective date of subpart RRR.
This interpretative rule is intended to be nationwide in scope and
effect. It applies to any and all facilities that operate delamination
units similar to those operated at the U.S. Granules Plymouth and
Henrietta facilities, although we note that U.S. Granules believes that
there are no other sources in North America that thermally delaminate
aluminum scrap and then mechanically granulate the recovered metal.
We note at the outset that subpart RRR applies to ``each new and
existing scrap dryer/delacquering kiln/decoating kiln'' at a facility
that is a major source or area source of hazardous air pollutants. 40
CFR 63.1500(b)(3) and 63.1500(c)(2). 40 CFR 63.1503 defines a ``scrap
dryer/delacquering kiln/decoating kiln'' as ``a unit used primarily to
remove various organic contaminants such as oil, paint, lacquer, ink,
plastic, and/or rubber from aluminum scrap (including used beverage
containers) prior to melting.''
The delamination chambers at the U.S. Granules Plymouth and
Henrietta facilities use heat to separate aluminum foil from paper and
plastic in scrap, but the chambers operate at a maximum temperature of
900 degrees Fahrenheit and no melting of the recovered aluminum occurs
in the chamber. If an identical delamination unit were located at a
facility that itself melts the recovered aluminum, there would be no
question that it would fit within this definition, and we do not
understand U.S. Granules to dispute that conclusion. It is also clear
that the delamination units used by U.S. Granules perform the same
general type of operations for recovery of aluminum from scrap that EPA
intended to regulate in subpart RRR. However, we acknowledge that the
use of the phrase ``prior to melting'' in the definition of a scrap
dryer/delacquering kiln/decoating kiln cannot simply be disregarded. In
its affirmative applicability determination, Region 7 argues that the
phrase ``prior to melting'' indicates that the recovery of aluminum
from scrap would normally occur prior to melting. However, we think
this argument is not persuasive unless the phrase in question was
intended to be solely illustrative, and that is not clear on the face
of the definition. If our conclusion turned solely on this factor, we
would be more inclined to amend the rule in a manner which resolved the
ambiguity than to try and construe the existing definition.
Fortunately, we need not resolve this issue to conclude that the
delamination chambers at the U.S. Granules facilities are within the
definition. The negative applicability determination by Region 5
appears to be based on the argument by U.S. Granules that the recovered
aluminum must be melted at the same facility in order for the
definition to apply. However, nothing in the definition indicates that
the subsequent melting of recovered aluminum must occur at the same
facility that conducts the recovery operation. Our discussions with
U.S. Granules personnel and our review of the company's Web site
indicate that some of the customers who buy the recovered aluminum
granules from U.S. Granules subsequently melt the purchased material to
produce new aluminum products. While some customers may use the
aluminum granules without melting them, those granules which are
subsequently melted are produced by an identical recovery process. This
is sufficient to confirm that the operations to recover aluminum from
scrap at the U.S. Granules facilities should not be treated differently
from otherwise similar operations at sources
[[Page 58839]]
who themselves melt the recovered aluminum.
If we were to construe the definition in any other way, this would
permit other sources to evade the applicability of emission controls
required by the rule by merely moving those operations which melt the
recovered secondary aluminum to another site. This result would violate
our established requirement that sources may not fragment an operation
in order to avoid regulation under an applicable standard. See 40 CFR
63.4(b)(3). We decline to construe the definitions in subpart RRR in a
manner which would allow secondary aluminum production facilities to
fragment their operations to evade emission control requirements.
Based on this analysis, we conclude that the delamination chambers
operated by the U.S. Granules Plymouth and Henrietta facilities, and
any similar secondary aluminum operations which may be conducted now or
in the future at other sources, are governed by subpart RRR. Although
this interpretative rule will take effect on November 1, 2004, we note
that subpart RRR itself is already in effect. That is why the letters
that we sent to U.S. Granules vacating the two previous conflicting
applicability determinations stated that, if we were to adopt a
construction of subpart RRR resulting in a new positive applicability
determination for the affected facilities, we would afford U.S.
Granules a reasonable period to undertake any activities required to
come into compliance or to establish continued compliance with subpart
RRR. Consequently, U.S. Granules will be required to comply with
subpart RRR within 240 days of the effective date of this
Interpretative Rule.
III. Other Review Requirements
Under Executive Order 12866, (58 FR 51736, October 4, 1993), this
interpretative rule is not a ``significant regulatory action'' and is
therefore not subject to review by the Office of Management and Budget.
Section 553(b)(3)(A) of the Administrative Procedure Act provides
that interpretative rules are not subject to notice-and-comment
requirements under the Administrative Procedure Act. Interpretative
rules which do not involve the internal revenue laws of the United
States are not subject to the regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because notice-and-
comment requirements do not apply to this interpretative rule, this
rule is also not subject to sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532 and 1535).
In addition, this action does not significantly or uniquely affect
small governments or impose a significant intergovernmental mandate, as
described in sections 203 and 204 of UMRA. This interpretative rule
also does not significantly or uniquely affect the communities of
tribal governments, as specified by Executive Order 13084 (63 FR 27655,
May 10, 1998). This interpretative rule will not have significant
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 (64 FR 43255, August 10, 1999).
This interpretative rule is also not subject to Executive Order
13045 (62 FR 19885, April 23, 1997) because it is not economically
significant. This action does not involve technical standards; thus,
the requirements of section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This
interpretative rule also does not involve special consideration of
environmental justice related issues as required by Executive Order
12898 (59 FR 7629, February 16, 1994).
In issuing this interpretative rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct, as
required by section 3 of Executive Order 12988 (61 FR 4729, February 7,
1996). The EPA has complied with Executive Order 12630 (53 FR 8859,
March 15, 1988) by examining the takings implications of the
interpretative rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the Executive Order. This
interpretative rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). Our compliance with statutes and Executive Orders in
promulgating the rule which is interpreted herein (40 CFR part 63,
subpart RRR) is discussed in the Federal Register notice concerning the
original promulgated rule (63 FR 15690, March 23, 2000), and in the
Federal Register notice concerning subsequent amendments to that rule
(67 FR 79808, December 30, 2002).
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. We have established an effective date of November 1,
2004. 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
Dated: August 18, 2004.
Thomas V. Skinner,
Acting Assistant Administrator, Office of Enforcement and Compliance
Assurance.
[FR Doc. 04-22084 Filed 9-30-04; 8:45 am]
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