[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Rules and Regulations]
[Pages 17352-17358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3315]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2004-0019, FRL-8054-5]
RIN 2060-AK10
National Emission Standards for Gasoline Distribution Facilities
(Bulk Gasoline Terminals and Pipeline Breakout Stations)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final decision; and final rule, amendment.
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SUMMARY: On December 14, 1994, we promulgated National Emission
Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals
and Pipeline Breakout Stations). Section 112(f)(2) of the Clean Air Act
directs us to assess the risk remaining (residual risk) after the
application of national emission standards controls for hazardous air
pollutants. Also, section 112(d)(6) requires us to review and revise
the national emission standards as necessary by taking into account
developments in practices, processes, and control technologies. On
August 10, 2005, we proposed not to revise the national emission
standards based on our residual risk assessment and technology review.
This action finalizes that decision not to revise the national emission
standards and amends a reference error.
DATES: This final decision and final rule amendment is effective on
April 6, 2006.
ADDRESSES: We have established a docket for this action under Docket ID
No. EPA-HQ-OAR-2004-0019. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air and Radiation Docket, EPA/DC, EPA West, Room B-102, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air and Radiation Docket is
(202) 566-1742.
FOR FURTHER INFORMATION CONTACT:
General and Technical Information. Mr. Stephen Shedd, Office of Air
Quality Planning and Standards, Sector Policies and Programs Division,
Coatings and Chemicals Group (E143-01), Environmental Protection
Agency, Research Triangle Park, North Carolina 27711, telephone (919)
541-5397, facsimile number (919) 685-3195, electronic mail (e-mail)
address: [email protected].
Residual Risk Assessment Information. Mr. Ted Palma, Office of Air
Quality Planning and Standards, Health and Environmental Impacts
Division, Sector Based Assessment Group (C539-02), Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone (919) 541-5470, facsimile number (919) 541-0840, electronic
mail (e-mail) address: [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities. The regulated categories and entities affected
by the national emission standards include:
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Category NAICS \a\ (SIC \b\) Examples of regulated entities
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Industry................................. 324110 (2911) Operations at major sources that transfer and
493190 (4226) store gasoline, including petroleum
486910 (4613) refineries, pipeline breakout stations, and
424710 (5171) bulk terminals.
Federal/State/local/tribal governments
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\a\ North American Industry Classification System.
\b\ Standard Industrial Classification.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by the
national emission standards. To determine whether your facility would
be affected by the national emission standards, you should examine the
applicability criteria in 40 CFR 63.420. If you have any questions
regarding the applicability of the national emission standards to a
particular entity, consult either the air permit authority for the
entity or your EPA regional representative as listed in 40 CFR 63.13.
World Wide Web (WWW). In addition to being available in the docket,
an electronic copy of today's final decision will also be available on
the WWW through the Technology Transfer Network (TTN). Following
signature, a copy of the final decision will be posted on the TTN's
policy and guidance page for newly proposed or promulgated rules at the
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides
information and technology exchange in various areas of air pollution
control.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of this final decision is available only by
filing a petition for review in the United States Court of Appeals for
the District of Columbia Circuit by June 5, 2006. 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 the final decision may not
be challenged separately in civil or criminal proceedings brought to
enforce these requirements.
Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This
[[Page 17353]]
section also provides a mechanism for us to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to the EPA that it was impracticable to raise such objection within
[the period for public comment] or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule.'' Any person seeking to make such
a demonstration to us should submit a Petition for Reconsideration to
the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to both the person(s) listed in the preceding FOR FURTHER
INFORMATION CONTACT section, and the Associate General Counsel for the
Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. What Is the Statutory Authority for These Actions?
B. What Did We Propose?
II. Risk and Technology Review Final Decision
III. Summary of Comments and Responses
IV. Correction to the December 19, 2003 Final Rule
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Background
A. What Is the Statutory Authority for These Actions?
Section 112 of the CAA establishes a comprehensive regulatory
process to address hazardous air pollutants (HAP) from stationary
sources. In implementing this process, we have identified categories of
sources emitting one or more of the HAP listed in the CAA, and gasoline
distribution facilities are identified as one such source category.
Section 112(d) requires us to promulgate national technology-based
emission standards for sources within those categories that emit or
have the potential to emit any single HAP at a rate of 10 tons or more
per year or any combination of HAP at a rate of 25 tons or more per
year (known as major sources), as well as for certain area sources
emitting less than those amounts. These technology-based national
emission standards for hazardous air pollutants (NESHAP) must reflect
the maximum reductions of HAP achievable (after considering cost,
energy requirements, and nonair health and environmental impacts) and
are commonly referred to as maximum achievable control technology
(MACT) standards. We promulgated the National Emission Standards for
Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline
Breakout Stations) at 59 FR 64318 on December 14, 1994 (Gasoline
Distribution NESHAP).
In what is referred to as the technology review, we are required
under section 112(d)(6) of the CAA to review these technology-based
standards no less frequently than every 8 years. Further, if we
conclude that a revision is necessary, we have the authority to revise
these standards, taking into account ``developments in practices,
processes, and control technologies.''
The residual risk review is described in section 112(f) of the CAA.
Section 112(f)(2) requires us to determine for each section 112(d)
source category, except area source categories for which we issued a
generally available control technology standard, whether the NESHAP
protects public health with an ample margin of safety. If the NESHAP
for HAP ``classified as a known, probable, or possible human carcinogen
do not reduce lifetime excess cancer risks to the individual most
exposed to emissions from a source in the category or subcategory to
less than one in one million,'' we must decide whether additional
reductions are necessary to provide an ample margin of safety. As a
part of this decision, we may consider costs, technological
feasibility, uncertainties, or other relevant factors. We must
determine whether more stringent standards are necessary to prevent
adverse environmental effect (defined in section 112(a)(7) as ``any
significant and widespread adverse effect, which may reasonably be
anticipated to wildlife, aquatic life, or other natural resources,
including adverse impacts on populations of endangered or threatened
species or significant degradation of environmental quality over broad
areas''), but in making this decision we must consider cost, energy,
safety, and other relevant factors.
B. What Did We Propose?
We promulgated the Gasoline Distribution NESHAP in 1994. On August
10, 2005 (70 FR 46452), we proposed to take no further action to revise
the Gasoline Distribution NESHAP and requested public comments on the
residual risk and technology review for the Gasoline Distribution
NESHAP.
II. Risk and Technology Review Final Decision
In our proposal, we presented the analysis and conclusions on
residual risk and technology review, concluding that the maximum
individual cancer risk for this source category already meets the level
of 100 in 1 million that we generally consider acceptable, and that
further control requirements would achieve minimal additional risk
reduction at a very high cost. Further, the analyses showed that both
the chronic noncancer and acute risks from this source category are
below their respective relevant health thresholds, and that there are
no adverse impacts to the environment (i.e., ecological risks). As a
result, we concluded that no additional control should be required
because an ample margin of safety (considering cost, technical
feasibility, and other factors) has been achieved by the 1994 NESHAP
for the gasoline distribution source category.
In the technology review, we concluded that additional controls at
existing sources would achieve, at best, minimal emission and risk
reductions at a very high cost. Additionally, we did not identify any
significant developments in practices, processes, or control
technologies since promulgation of the original standards in 1994 which
represent the best controls. Thus, we proposed no additional controls
under the technology review under CAA section 112(d)6).
We conclude in this rulemaking, as proposed, that there is not a
need to revise the Gasoline Distribution NESHAP under the provisions of
CAA section 112(f) or 112(d)(6).
III. Summary of Comments and Responses
The proposal provided a 60-day comment period ending October 11,
2005. We received comments from eight commenters. Commenters included
one State agency, one State and local agency association, three
industry trade associations, one industrial consultant, and two
individual commenters. We
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have considered the public comments as discussed below and did not find
that the comments changed any results of our risk or technology reviews
or analyses, or any of our determinations.
1. General Approach
Comment: We received comments both in favor of and objecting to the
consideration of facilitywide emissions in the risk analyses; objecting
to what was perceived as an implication within the proposal that we
must conduct mandatory facilitywide risk determinations in future CAA
section 112(f) rulemakings; and concerns with emissions from other
source categories at the facility providing an overly conservative
analysis not consistent with the CAA.
Response: In our ample margin of safety analysis, we calculated
residual risk from facilitywide emissions of the nine HAP found in
gasoline. However, we did not have sufficiently detailed information to
analyze the emissions from various specific sources within a facility
but outside the gasoline distribution source category. Because the
facilities in this source category also frequently handle other, non-
gasoline, petroleum products, we could not always associate the
reported emissions to a particular source category. As a result, we
could not evaluate the existing levels of control or the potential for
applying additional controls at the facilities where HAP emissions from
non-gasoline distribution sources contributed to the risk. Therefore,
as stated in the August 2005 proposal, we did not use the residual risk
calculated from facilitywide emissions in our decision to require no
additional controls because we did not have the control cost and
feasibility data necessary to do so.
Our position on the potential consideration of both source
category-only emissions and facilitywide emissions is fully discussed
in the final Coke Oven Batteries NESHAP (70 FR 19996-19998, April 15,
2005).
Comment: Comments were received objecting to the need to perform a
separate technology review for the source category.
Response: As discussed in the proposal, we performed a separate
technology review for the gasoline distribution source category under
section 112(d)(6), but recommended no changes to the NESHAP. It is
possible that future advances in control technologies for this source
category could allow for further emission reductions (possibly reducing
risk to below 1 in 1 million) at a reasonable cost. We continue to
believe that the technology review required under section 112(d)(6) is
applicable to this source category.
2. Risk Analysis Assumptions
Comment: One commenter stated that the methodology used in the
gasoline distribution risk assessment sets a poor precedent for future
residual risk determinations that must be carried out for other source
categories, recommending that, because there is no mechanism to revisit
the section 112(f) assessments, the risk assessment be corrected to
account for reasonably foreseeable changes that could result in
increased risk.
Response: We disagree with the commenter's assertions that there is
no mechanism to revisit risks from the source category and that the
risk assessment must include consideration of foreseeable changes that
may occur in the future. We have the authority to revisit (and revise,
if necessary) any rulemaking if there is sufficient evidence that
changes within the affected industry or significant improvements to
science suggests the public is exposed to significant increases in risk
as compared to the risk assessment prepared for the rulemaking (e.g.,
CAA section 301).
Comment: One commenter stated that the use of a number of overly
conservative assumptions make the modeling results more conservative
than necessary and do not accurately reflect reality. Another commenter
also pointed out these same conservative assumptions and stated that
``the conservative level of analysis determined that the risk was
acceptable, and thus, there was no need to go further with the
analysis.''
Response: We agree with the second commenter. Several assumptions
mentioned by the commenters as conservative are used in the risk
assessment because the specific intent of that risk assessment is to
perform an initial screening analysis. If this initial conservative
risk assessment predicts negligible levels of risk, then no further
analysis or action would be required. However, if it showed
unacceptable risk, then additional data would be collected and
incorporated into a refined analysis so that the results would more
accurately reflect the true risks posed by the source category. Our
position is that this type of screening approach is valuable because it
allows us to focus resources on source categories that potentially pose
unacceptable risks versus those that pose clearly negligible risks.
Other assumptions mentioned by commenters as being overly
conservative include the use of the 24 hours a day, 7 days a week, 70-
year exposure duration for determining maximum individual risk (MIR)
and the use of a Hazard Index threshold of 1.0. In the final Coke Oven
Batteries NESHAP, we stated that we are currently working on additional
revisions to refine the residual risk analysis. A more realistic
assessment of population mobility is part of this effort (70 FR 20004,
April 15, 2005). Our rationale for the use of both the exposure
duration and the Hazard Index threshold that were used in this
assessment is fully addressed in the final Coke Oven Batteries NESHAP
(70 FR 19999-20000, April 15, 2005).
Comment: Two commenters recommended that the impacts be
recalculated based on concentrations at the property line and beyond,
rather than at the centroid of the most highly-exposed census block;
because census blocks can be large geographically, the maximum point of
impact can be far from the centroid and, thus, the use of the census
block centroid does not take into account the maximum exposed
individual who may live adjacent to the fence-line.
Response: In a national-scale assessment of lifetime inhalation
exposures and health risks from a category of facilities, it is
appropriate to identify exposure locations where an individual may
reasonably be expected to spend a majority of his or her lifetime.
Further, it is appropriate to use census block information on where
people actually reside, rather than points on a fence-line, to locate
the estimation of exposures and risks to individuals living near such
facilities. This is the approach that we took for this analysis to
predict the MIR.
Census blocks are the finest resolution available for the
nationwide population data set (as developed by the United States
Census Bureau); each is typically comprised of approximately 40 people
or about 10 households. In our risk assessments, we use the geographic
centroid of each census block containing at least one person to
represent the location where all the people in that census block live.
The census block centroid with the highest estimated exposure then
becomes the location of maximum exposure, and the entire population of
that census block experiences the MIR. In some cases, since actual
residence locations may be closer to or farther from facility emission
points, this may result in an overestimate or underestimate of the
actual chronic risks. However, given the relatively small dimensions of
census blocks in densely-populated areas and
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the relatively large number of sources being assessed for any given
source category, these uncertainties are small and do not bias our
estimates of MIR for a source category.
Comment: Two commenters recommended that the risk assessment be
based on potential emissions rather than on only actual reported
emissions, stating that facility emissions could increase over time and
that determining risk based on actual emissions does not address the
potential risk to the public. One commenter stated that major source
HAP thresholds are based on maximum potential to emit and that air
agencies issue permits based on potential emissions, further stating
that limiting the scope of the risk evaluation to actual emissions is
inconsistent with the CAA section 112 rules.
Response: Our position on the use of both allowable and actual
emissions is fully discussed in the final Coke Oven Batteries NESHAP
(70 FR 19998-19999, April 15, 2005). We used reported emissions (from
the National Emissions Inventory database) for the gasoline
distribution risk analysis. The reported emissions are a mix of actual,
allowable, and potential emissions, but we do not have the necessary
information to distinguish between the types of data reported. While we
generally recognize that most facilities overcomply with the MACT
requirements (thus, actual emissions are lower than allowable), we do
not have data to determine the degree of overcompliance that facilities
are achieving or reporting. However, the possible inclusion of actual
emissions in our analysis is not significant enough to change the
results even if we could more accurately account for it. For example,
if the modeled emissions doubled because of our use of some reported
actual emissions, the regulatory decision would be the same as
proposed.
Comment: One commenter recommended that the effects of building
downwash be included in the risk assessment. The commenter stated that
downwind concentrations from a point source vary and that the
concentrations are skewed highest close to a source when it is affected
by building downwash.
Response: While the effects of building downwash are not
specifically accounted for in the model (Human Exposure Model--Screen)
used, these effects generally occur only very close to the buildings or
structures from which emissions emanate, and in most cases, only occur
on the property of the facility. Further, for this source category,
emissions are from low-level structures (i.e., storage tanks and tank
truck loading racks), and this minimizes the impacts of downwash. In
determining the MIR for this source category, we note that the
locations of the census block centroids where the risks are maximum are
well beyond the zone of influence of any building downwash effects.
Comment: One commenter stated that the cost-effectiveness analysis
should have been performed in terms of dollars per cancer incidence
reduced (rather than dollars per ton of emissions reduced) because it
takes into account toxicity and exposure.
Response: Our residual risk decisions are based on the approach in
the 1989 benzene decision framework.\1\ In that decision, we stated
that the level of the MIR, distribution of risk in exposed population,
incidence, science policy assumptions, and uncertainties associated
with risk measures, and weight of evidence that a pollutant is harmful
to health are all important factors which may be considered in the
acceptability judgment (first step). In the second step, we again
consider all of the health risk and other health information considered
in the first step. Beyond that information, additional factors relating
to the appropriate level of control will also be considered, including
costs and economic impacts of controls, technological feasibility,
uncertainties, and any other relevant factors.
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\1\ Our decisions regarding residual risk in the gasoline
distribution and other source categories follows the two-step
framework established in the Benzene NESHAP (54 FR 38044, September
14, 1989, National Emission Standards for Hazardous Air Pollutants
(NESHAP): Benzene Emissions from Maleic Anhydride Plants,
Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene
Equipment Leaks, and Coke By Product Recovery Plants). In the
Benzene NESHAP, we interpreted and applied the two-step test drawn
from the D.C. Circuit Court's Vinyl Chloride opinion.
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For the Gasoline Distribution NESHAP ample margin of safety
analysis, we developed cost data for a hypothetical model terminal to
apply additional controls because we do not have data on the actual
control levels being achieved at real terminals. Thus, we do not have
data on the actual emission reductions that could be achieved or on the
control costs that real terminals would incur. We examined the
hypothetical emission reductions (at best, a 30 percent reduction) that
could be achieved through the application of additional controls and
the estimated costs of these additional controls.
We found the 30 percent reduction would reduce the highest
calculated MIR cancer risk from this source category from about 5 in 1
million to about 3 in 1 million. Given these relatively low risk
reductions and lack of data concerning actual controls at real
terminals, we did not further consider incidence or change in
distribution of risks. The costs and emission reductions of these
additional controls were compared to the controls required by the MACT
standards and we found the additional costs to be very high compared to
the emission reduction of the MACT standards and considering the
limited risk reduction these controls would achieve. Thus, our model
terminal analysis led us to conclude in our ample margin of safety
decision that ``additional control requirements would achieve minimal
risk reduction at a very high cost'' (70 FR 46456, August 10, 2005).
Thus, while we did not calculate cost effectiveness, we did account for
toxicity, exposure, and control costs in our decision, as the commenter
recommended.
3. Conclusions
Comment: One commenter does not believe the current standards for
gas distribution facilities protect children and recommended that we
consult a children's environmental health toxicologist due to recent
research on the risks posed by these facilities.
Response: The commenter did not provide or reference a particular
research study. Our most recent assessment activity on cancer effects
due to early-life exposure is reflected in the ``Supplemental Guidance
for Assessing Susceptibility from Early-Life Exposure to Carcinogens''
(EPA/630/R-03/003F, March 2005). The Supplemental Guidance addresses a
number of issues pertaining to cancer risks associated with early-life
exposures generally, but provides specific guidance on potency
adjustments only for carcinogens that have been determined to cause
cancer through a mutagenic mode of action. While some recent articles
have suggested an association between gasoline vapors and childhood
leukemia, the carcinogenic HAP commonly found in gasoline (benzene and
naphthalene) have not yet been determined by us to act through a
mutagenic mode of action. If we determine in the future that these
pollutants do cause cancer by a mutagenic mode of action, and assuming
early life exposure, the approximately 60 percent increase in estimated
lifetime cancer risk would still result in a risk well below the
generally considered acceptable level of 100 in 1 million. In addition,
regarding effects other than cancer, EPA Reference Concentration values
are designed to be protective of sensitive populations, including
children.
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IV. Correction to the December 19, 2003 Final Rule
On August 18, 1983, we promulgated Standards of Performance for
Bulk Gasoline Terminals (48 FR 37590) and on December 14, 1994, we
promulgated National Emission Standards for Gasoline Distribution
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (59
FR 64318). On December 19, 2003, we promulgated final rule amendments
in the Federal Register (68 FR 70960) for the 1983 standards of
performance and 1994 national emission standards. An error was
subsequently discovered in a cross-reference in the final rule
amendments. Under 40 CFR 63.428, Reporting and Recordkeeping, paragraph
(b)(1) refers to 40 CFR 63.425(k). The correct reference is to 40 CFR
63.425(i). Today's final amendment corrects the reference error.
This correction does not affect the substance of the above-noted
regulatory action, nor does it change the rights or obligations of any
party. Thus, it is proper to issue this notice of final rule
corrections without notice and comment. Section 553 of the
Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when
an agency for good cause finds that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest, the
agency may issue a rule without providing notice and an opportunity for
public comment. We have determined that there is good cause for making
today's action final without prior proposal and opportunity for comment
because the change to the rule is a minor correction, is
noncontroversial, and does not substantively change the agency actions
taken in the final rule. Thus, notice and public procedure are
unnecessary. We find that this constitutes good cause under 5 U.S.C.
553(b)(B).
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 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 government 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, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. We have submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
However, OMB has previously approved the information collection
requirements for the national emissions standards under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and has
assigned OMB control number 2060-0325, EPA ICR number 1659. A copy of
the OMB approved Information Collection Request (ICR) may be obtained
from Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1672.
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 purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search 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 numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
We have established a public docket for this action, which includes
the ICR, under Docket ID number EPA-HQ-OAR-2004-0019, which can be
found in http://www.regulations.gov. Today's final decision will not
change the burden estimates from those developed and approved in 1994
for the national emission standards.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 rule on small
entities, small entity is defined as: (1) a small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(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.
After considering the economic impacts of today's final decision on
small entities, we have concluded that this action will not have a
significant economic impact on a substantial number of small entities.
We are taking no further action at this time to revise the national
emission standards. Thus, the final decision will not impose any
requirements on small entities. Today's final decision on the residual
risk assessment and technology review for the national emission
standards imposes no additional burden on facilities impacted by the
national emission standards.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may
[[Page 17357]]
result in expenditures to State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows us to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
We have determined that today's final decision does not contain a
Federal mandate that may result in expenditures of $100 million or more
to State, local, and tribal governments in the aggregate, or to the
private sector in any 1 year. Thus, today's final decision is not
subject to the requirements of sections 202 and 205 of the UMRA. In
addition, today's final decision does not significantly or uniquely
affect small governments because it contains no requirements that apply
to such governments or impose obligations upon them. Therefore, today's
final decision is not subject to section 203 of the UMRA.
E. 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 the States, or on the distribution of power and
responsibilities among the various levels of government.''
Today's final decision 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 the Executive Order do not apply to today's final
decision.
F. 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 9, 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.''
Today's final decision does not have tribal implications. It 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.
Thus, Executive Order 13175 does not apply to today's final decision.
G. Executive Order 13045: Protection of Children From Environmental
Health & 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, we 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.
Today's final decision is not subject to the Executive Order
because it is not economically significant as defined in Executive
Order 12866, and because, as explained earlier, the Agency does not
have reason to believe the environmental health or safety risk
addressed by this action present a disproportionate risk to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Today's final decision is not an economically significant energy
action as defined in Executive Order 13211 (66 FR 28355, May 22, 2001)
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy. Further, we have concluded that
today's final decision is not likely to have any adverse energy
impacts.
I. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal
agencies are required to use voluntary consensus standards (VCS) in
their regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impractical. VCS are
technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) developed or adopted by one or
more voluntary consensus bodies. The NTTAA requires Federal agencies to
provide Congress, through annual reports to OMB, with explanations when
the agency does not use available and applicable VCS.
Today's final decision does not involve technical standards.
Therefore, the requirements of the NTTAA are not applicable.
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. We will submit a report containing this
final decision and other required information to the United States
Senate, the United States House of Representatives, and the Comptroller
General of the United States prior to publication of the final decision
in the Federal Register. A major rule cannot take effect until 60 days
after it is published in the Federal Register. This
[[Page 17358]]
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). The final
decision becomes effective on April 6, 2006.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I, part 63
of the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart R--[Amended]
0
2. Section 63.428 is amended by revising paragraph (b)(1) to read as
follows:
Sec. 63.428 Reporting and recordkeeping.
* * * * *
(b) * * *
(1) Annual certification testing performed under Sec. 63.425(e)
and railcar bubble leak testing performed under Sec. 63.425(i); and
* * * * *
[FR Doc. 06-3315 Filed 4-5-06; 8:45 am]
BILLING CODE 6560-50-P