[Federal Register Volume 72, Number 94 (Wednesday, May 16, 2007)]
[Rules and Regulations]
[Pages 27437-27443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9407]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60, 61, and 63
[EPA-HQ-OAR-2006-0085; FRL-8315-2]
RIN 2060-AN84
Revisions to Standards of Performance for New Stationary Sources,
National Emission Standards for Hazardous Air Pollutants, and National
Emission Standards for Hazardous Air Pollutants for Source Categories
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action promulgates revisions to the General Provisions
for Standards of Performance for New Stationary Sources, for National
Emission Standards for Hazardous Air Pollutants, and for National
Emission Standards for Hazardous Air Pollutants for Source Categories
to allow for extensions to the deadline imposed for source owners and
operators to conduct an initial or subsequent performance test required
by applicable regulations. The General Provisions do not currently
provide for extensions of the deadlines for conducting performance
tests.
DATES: This final rule is effective on May 16, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2006-0085. 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., CBI 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
www.regulations.gov or in hard copy at the Revisions to Standards of
Performance for New Stationary Sources, National Emission Standards for
Hazardous Air Pollutants, and National Emission Standards for Hazardous
Air Pollutants for Source Categories Docket, EPA/DC, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The Docket telephone number is 202-566-1742. 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.
FOR FURTHER INFORMATION CONTACT: Ms. Lula Melton, Air Quality
Assessment Division, Office of Air Quality Planning and Standards,
(C304-02), Environmental Protection Agency, Research Triangle Park,
North Carolina 27711; telephone number: (919) 541-2910; fax number:
(919) 541-4511; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action applies to any source whose owner or operator is
required to conduct performance testing to demonstrate compliance with
applicable standards under the General Provisions for Standards of
Performance for New Stationary Sources, for National Emission Standards
for Hazardous Air Pollutants, and for National Emission Standards for
Hazardous Air Pollutants for Source Categories.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final action will also be available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of the final amendments will be
placed 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.
C. Public Comments on Proposed Rule
The EPA received 15 sets of public comments on the proposed
amendments to the General Provisions for Standards of Performance for
New Stationary Sources, for National Emission Standards for Hazardous
Air Pollutants, and for National Emission Standards for Hazardous Air
Pollutants for Source Categories during the 90-day comment period.
These comments were submitted to the rulemaking docket. The EPA has
carefully considered these comments in developing the final amendments.
Summaries of the comments and EPA's responses are contained in this
preamble.
D. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available by filing a petition for review in the
United States Court of Appeals for the District of Columbia Circuit by
July 16, 2007. Only those objections to this final rule that were
raised with reasonable specificity during the period for public comment
may be raised during judicial review. Under section 307(b)(2) of the
CAA, the requirements that are the subject of this final rule may not
be challenged later in civil or criminal proceedings brought by EPA to
enforce these requirements.
Section 307(d)(7)(B) of the CAA further 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 20460.
E. How is this document organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. Public Comments on Proposed Rule
D. Judicial Review
E. How is this document organized?
II. Summary of Final Action and Rationale
A. What are the requirements?
B. Why did we amend the requirements for performance tests in
the General Provisions?
III. Responses to Comments
A. Clarification of Approving Authority
B. Force Majeure Concept
C. Notifications
D. Approvals
E. Title V Deviations
F. Other Comments
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
[[Page 27438]]
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 Risks and Safety Risks
H. Executive Order 13211: Action That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
II. Summary of Final Action and Rationale
A. What are the requirements?
The final rule allows source owners or operators, in the event of a
force majeure, to petition the Administrator for an extension of the
deadline(s) by which they are required to conduct an initial or
subsequent performance test required by applicable regulations.
Performance tests required as a result of enforcement orders or
enforcement actions are not covered by this rule because enforcement
agreements contain their own force majeure provisions. A ``force
majeure'' is defined as an event that will be or has been caused by
circumstances beyond the control of the affected facility, its
contractors, or any entity controlled by the affected facility that
prevents the owner or operator from complying with the regulatory
requirement to conduct performance tests within the specified timeframe
despite the affected facility's best efforts to fulfill the obligation.
Examples of such events are acts of nature, acts of war or terrorism,
or equipment failure or safety hazard beyond the control of the
affected facility.
If an affected owner or operator intends to assert a claim that a
force majeure is about to occur, occurs, or has occurred, the owner or
operator must notify the Administrator, in writing, as soon as
practicable following the date the owner or operator first knew, or
through due diligence should have known, that the event may cause or
caused a delay in testing beyond the regulatory deadline. The owner or
operator must provide a written description of the event and a
rationale for attributing the delay in testing beyond the regulatory
deadline to the force majeure; describe the measures taken or to be
taken to minimize the delay; and identify a date by which the owner or
operator proposes to conduct the performance test. The test must be
conducted as soon as practicable after the force majeure occurs.
The decision as to whether or not to grant an extension to the
performance test deadline is solely within the discretion of the
Administrator. The Administrator will notify the owner or operator in
writing of approval or disapproval of the request for an extension as
soon as practicable. If an owner or operator misses its performance
test deadline due to a force majeure event, and the request for an
extension is subsequently approved, the owner or operator will not be
held in violation for failure to conduct the performance test within
the prescribed regulatory timeframe.
B. Why did we amend the requirements for performance tests in the
General Provisions?
We recognize that there may be circumstances beyond a source
owner's or operator's control constituting a force majeure event that
could cause an owner or operator to be unable to conduct performance
tests before the regulatory deadline. We developed this rule to provide
a mechanism for consideration of these force majeure events and
granting of extensions where warranted. Under current rules, a source
owner or operator who is unable to comply with performance testing
requirements within the allotted timeframe due to a force majeure is
regarded as being in violation and subject to enforcement action. As a
matter of policy, EPA often exercises enforcement discretion regarding
such violations. However, where circumstances beyond the control of the
source owner or operator constituting a force majeure prevent the
performance of timely performance tests, we believe that it is
appropriate to provide an opportunity to such owners and operators to
make good faith demonstrations and obtain extensions of the performance
testing deadline where approved by the Administrator in appropriate
circumstances.
III. Responses to Comments
A. Clarification of Approving Authority
Comment: Five commenters requested that we clarify or define the
approving authority.
Response: We inadvertently used two terms (Administrator and
delegated agency) in the proposed rule. In 40 CFR Part 60 of the
proposed rule, we stated that the owner or operator shall notify the
Administrator of force majeure events, and in 40 CFR Parts 61 and 63 of
the proposed rule, we stated that the owner or operator shall notify
the delegated agency. We have replaced the term delegated agency with
the term Administrator in 40 CFR Parts 61 and 63 of the final rule to
be consistent with (1) the term (Administrator) used in 40 CFR Part 60
and (2) the term (Administrator) used in Parts 61 and 63 of the General
Provisions that this final rule amends. Nonetheless, we believe that it
may be appropriate for the Administrator to assign the responsibility
of evaluating and approving or denying requests for extensions to
performance test deadlines due to force majeure events to a duly
delegated agency according to applicable procedures.
B. Force Majeure Concept
Comment: Six commenters stated that they thought the scope of the
rule was too narrow and that circumstances beyond what they believed
were covered by the definition of ``force majeure'' warranted similar
extensions (e.g., pandemics, facility shutdowns, and process
constraints that result in non-representative testing conditions).
Response: The proposed rule is not as narrow as indicated by
commenters. Force majeure is defined as ``an event that will be or has
been caused by circumstances beyond the control of the affected
facility, its contractors, or any entity controlled by the affected
facility that prevents the owner or operator from complying with the
regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation.'' Although we provide examples of events that
could meet this definition (i.e., acts of nature, acts of war or
terrorism, and equipment failure or safety hazards beyond the control
of the affected facility), this list is not exhaustive. The focus of
the rule and this definition is an event beyond the control of the
affected facility. Similarly, two definitions of ``force majeure'' in
dictionaries are ``an unexpected or uncontrollable event'' (The
American Heritage Dictionary) and ``an event or effect that cannot be
reasonably anticipated or controlled'' (Merriam-Webster's Online
Dictionary). Thus, any event beyond the control of the affected
facility may qualify for the extension. We can neither provide an
exhaustive list of all of the possible events that may qualify as
``force majeure'' under this rule, nor determine whether the generic
additional examples provided in the public comments would or would not
qualify under all circumstances. The Administrator will exercise his or
her discretion when considering requests for extensions to performance
test deadlines due to ``force majeure'' events.
[[Page 27439]]
Comment: Six commenters requested that we expand the scope of the
rule to allow the force majeure concept to justify extensions for
additional regulatory requirements, such as monitoring, recordkeeping,
reporting, maintenance, and inspections.
Response: The purpose of this rulemaking is to address requests for
extensions to performance test deadlines. Expanding the force majeure
concept to include additional regulatory requirements is beyond the
scope of the proposed rule. Therefore, the final rule covers petitions
for extensions to performance test deadlines only.
C. Notifications
Comment: Four commenters requested that we allow simplified
notifications. One of these commenters requested that we allow a
simplified notification initially followed by the timeline for
completing the performance test later. In addition, one of these
commenters requested that we allow initial notification to the
Administrator in non-written formats followed by written communication
later since during force majeure events means of communication may be
disrupted. Two of these commenters stated that the Administrator should
not require listing of every applicable test and rule for an entire
facility.
Response: We agree that phased notification may be appropriate in
certain circumstances. For example, if a source owner or operator is
unable to determine a date by which the performance test will be
conducted at the time of the force majeure event, verbal notification
to the Administrator that the original performance test deadline will
be missed followed by written communication describing the details
required by the rule may be appropriate. Also, if a force majeure event
results in widespread power outages and no U.S. Postal mail service, an
initial oral notification followed by written notification may be
necessary. The written notification required by this rule does not
include a listing of every applicable test and rule for an entire
facility. The rule requires the source owner or operator to provide to
the permitting authority a written description of the force majeure
event, a rationale for attributing the delay in testing beyond the
regulatory deadline to the force majeure event, a written description
of the measures taken or to be taken to minimize the delay, and a date
(as soon as practicable following the force majeure event) by which the
owner or operator proposes to conduct the performance test.
Comment: Two commenters requested that we clarify that written
notification includes letters, faxes, e-mails, web-based submittals,
etc.
Response: We agree that written notification regarding force
majeure events can be provided to the Administrator in such written
formats as those listed above.
Comment: Three commenters expressed the concern that a legitimate
request for an extension may be denied based on the timing of the
request. For example, source owners and operators may not be aware of
an anticipated hurricane until one day prior to the event. Another
commenter suggested that we require source owners and operators to
notify the Administrator verbally within five days of the force majeure
event and in writing within twenty-one days of the event.
Response: We proposed that the owner or operator would notify the
Administrator, in writing, as soon as practicable following the date
the owner or operator first knew, or should have known that the event
may cause or caused a delay in testing beyond the regulatory deadline.
We do not believe that it is appropriate to establish specific
timelines in the rule. The existence of a force majeure event typically
necessitates flexibility. Thus, the final rule states that the owner or
operator shall notify the Administrator, in writing as soon as
practicable following the date the owner or operator first knew, or
through due diligence should have known that the event may cause or
caused a delay in testing beyond the regulatory deadline, but the
notification must occur before the performance test deadline unless the
initial force majeure or a subsequent force majeure event delays the
notice, and in such cases, the notification shall occur as soon as
practicable.
D. Approvals
Comment: Four commenters suggested that we add a provision that
allows requests for extensions to be automatically granted if the
Administrator does not respond within a specific timeframe. Three of
the four commenters suggested that the Administrator be given thirty
days to respond. Two commenters are concerned that owners and operators
will be subject to enforcement actions until their requests for
extensions are approved.
Response: We disagree with allowing automatic approvals and with
requiring the Administrator to respond within 30 days. We do not
believe that it is appropriate to place this burden on the
Administrator since the Administrator may also have been affected by
the force majeure event. We believe that it is appropriate to require
the Administrator to notify the owner or operator of approval or
disapproval of the request for an extension as soon as practicable.
Furthermore, if an owner or operator misses its performance test
deadline due to a force majeure event, and the request for an extension
is subsequently approved, the owner or operator will not be held in
violation for failure to conduct the performance test within the
prescribed regulatory timeframe.
Comment: Two commenters stated that circumstances, such as during
acts of war, mandatory evacuations, or energy and supply restrictions,
applying for an extension to a performance test deadline should be
self-implementing.
Response: We believe that the Administrator should have the
discretion to determine if a request for an extension warrants approval
and that self-implementation is not appropriate. During any situation
that a source owner or operator believes qualifies as a force majeure
event, the owner or operator must submit a request to the Administrator
that includes the required information, such as a written description
of the force majeure event, a rationale for attributing the delay in
testing beyond the regulatory deadline to the force majeure event, a
description of the measures taken to minimize the delay, and a date (as
soon as practicable) by which the performance test is expected to
occur. The Administrator will notify the owner or operator of approval
or disapproval of the request for an extension as soon as practicable.
Furthermore, if an owner or operator misses its performance test
deadline due to a force majeure event, and the request for an extension
is subsequently approved, the owner or operator will not be held in
violation for failure to conduct the performance test within the
prescribed regulatory timeframe.
Comment: One commenter requested that we add the following
statement to the rule (i.e., ``the Administrator shall approve a
reasonable request for extension of the performance test deadline.'')
Response: We do not believe that it is necessary to add this
statement to the rule. The decision as to whether or not to grant an
extension to the performance test deadline is solely within the
discretion of the Administrator. The Administrator will notify the
owner or operator in writing of approval or disapproval of the request
as soon as practicable.
Comment: Two commenters requested that EPA affirm that we already
have the
[[Page 27440]]
authority to approve requests for extensions to performance tests.
Response: We do not have this authority except through enforcement
discretion. Therefore, we developed this rule to grant this authority.
Comment: Three commenters believe that the Administrator should
have the authority to issue blanket approvals for a designated area in
advance of a force majeuere event.
Response: We do not believe that blanket approvals are necessary
since approvals for requests to extend performance test deadlines can
be granted after the force majeure event occurs. Furthermore, we
believe that requests to extend performance test deadlines should be
reviewed and considered on a case-by-case basis because situations and
circumstances may vary among facilities affected by the same force
majeure event.
E. Title V Deviations
Comment: Four commenters requested that we specify that extensions
granted under this rule are not Title V deviations.
Response: We agree that extensions granted under this rule are not
Title V deviations since the original performance test deadline will
not be applicable once a request for an extension has been approved.
However, where the Administrator has not yet issued a decision on a
request for an extension under today's rule, the failure to conduct the
performance test within the originally prescribed timeframe is a
deviation and should be reported as such.
F. Other Comments
Comment: One commenter requested that we expand the concept of
force majeure to cover regulations for other environmental media, such
as water regulations.
Response: We proposed that this rule address air regulations only
and are maintaining that approach in the final rule.
Comment: One commenter requested that denials for extensions be
administratively appealable.
Response: The commenter did not explain why this recommendation is
appropriate or how it could be implemented. Therefore, we are not
adopting this recommendation.
Comment: One commenter requested that we delete the word
``strictly'' from the statement ``Until an extension of the performance
test deadline has been approved under * * *, the owner or operator of
the affected facility remains strictly subject to the requirements of
this part.''
Response: We disagree with the request to remove the word
``strictly'' because it is intended to emphasize that this rule is one
of strict liability.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735 October 4, 1993) and is
therefore not subject to review under the EO.
B. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
The final rule requires a written notification only if a plant
owner or operator needs an extension of a performance test deadline due
to certain rare events, such as acts of nature, acts of war or
terrorism, or equipment failure or safety hazard beyond the control of
the affected facility. Since EPA believes such events will be rare, the
projected cost and hour burden will be minimal.
The increased annual average reporting burden for this collection
(averaged over the first 3 years of the ICR) is estimated to total 6
labor hours per year at a cost of $377.52. This includes one response
per year from six respondents for an average of 1 hour per response. No
capital/startup costs or operation and maintenance costs are associated
with the final reporting requirements. 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 in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act 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 not-for-profit
enterprises, 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 as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a 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 rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Extensions
to deadlines for conducting performance tests will provide flexibility
to small entities and reduce the burden on them by providing them an
opportunity for additional time to comply with performance test
deadlines during force majeure events. We expect force majeure events
to be rare since these events include circumstances such as, acts of
nature, acts of war or terrorism, and equipment failure or safety
hazard beyond the control of the affected facility.
D. Unfunded Mandates Reform Act
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, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules
[[Page 27441]]
with ``Federal mandates'' that may result in expenditures to State,
local, and Tribal governments, in the aggregate, or to the private
sector, of $100 million or more in any one year. Before promulgating an
EPA rule for which a written statement is needed, section 205 of the
UMRA generally requires EPA to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, most
cost-effective or least burdensome alternative that achieves the
objectives of the rule. The provisions of section 205 do not apply when
they are inconsistent with applicable law. Moreover, section 205 allows
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before EPA establishes any regulatory requirements that
may significantly or uniquely affect small governments, including
Tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that the final rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. The maximum total annual cost of this final
rule for any year has been estimated to be less than $435.00. Thus,
today's final rule is not subject to the requirements of Sections 202
and 205 of the UMRA.
EPA has determined that the final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The final rule requires source owners and operators to
provide a written notification to the Agency only if an extension to a
performance test deadline is necessary due to rare force majeure
events. Therefore, the final rule is not subject to the requirements of
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.''
This 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. The final rule requirements will
not supercede State regulations that are more stringent. In addition,
the final rule requires a written notification only if a plant owner or
operator needs an extension of a performance test deadline due to
certain rare events, such as acts of nature, acts of war or terrorism,
or equipment failure or safety hazard beyond the control of the
affected facility. Since EPA believes such events will be rare, the
projected cost and hour burden will be minimal. Thus, Executive Order
13132 does not apply to this rule.
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.'' This final rule does not have
tribal implications as specified in Executive Order 13175. This final
rule 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 this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866 and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This rule does not affect the
underlying control requirements established by the applicable standards
but only the timeframe associated with performance testing in limited
circumstances.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law
104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. New test methods are not
being proposed in this rulemaking, but EPA is allowing for extensions
of the regulatory deadlines by which owners or operators are required
to conduct performance tests when a force majeure is about to occur,
occurs, or has occurred which prevents owners or operators from testing
within
[[Page 27442]]
the regulatory deadline. Therefore, NTTAA does not apply.
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. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 16, 2007.
List of Subjects in 40 CFR Parts 60, 61, and 63
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: May 10, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, parts 60,
61, and 63 of the Code of Federal Regulations are amended as follows:
PART 60--[AMENDED]
0
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
2. Section 60.2 is amended by adding, in alphabetical order, a
definition for ``Force majeure'' to read as follows:
Sec. 60.2 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 60.8, an event that will
be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
0
3. Section 60.8 is amended by revising paragraph (a) to read as
follows:
Sec. 60.8 Performance tests.
(a) Except as specified in paragraphs (a)(1),(a)(2), (a)(3), and
(a)(4) of this section, within 60 days after achieving the maximum
production rate at which the affected facility will be operated, but
not later than 180 days after initial startup of such facility, or at
such other times specified by this part, and at such other times as may
be required by the Administrator under section 114 of the Act, the
owner or operator of such facility shall conduct performance test(s)
and furnish the Administrator a written report of the results of such
performance test(s).
(1) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure, the owner or operator shall notify the Administrator, in
writing as soon as practicable following the date the owner or operator
first knew, or through due diligence should have known that the event
may cause or caused a delay in testing beyond the regulatory deadline,
but the notification must occur before the performance test deadline
unless the initial force majeure or a subsequent force majeure event
delays the notice, and in such cases, the notification shall occur as
soon as practicable.
(2) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(3) The decision as to whether or not to grant an extension to the
performance test deadline is solely within the discretion of the
Administrator. The Administrator will notify the owner or operator in
writing of approval or disapproval of the request for an extension as
soon as practicable.
(4) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(1), (2), and (3) of
this section, the owner or operator of the affected facility remains
strictly subject to the requirements of this part.
* * * * *
PART 61--[AMENDED]
0
4. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
5. Section 61.02 is amended by adding, in alphabetical order, a
definition for ``Force majeure'' to read as follows:
Sec. 61.02 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 61.13, an event that
will be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
0
6. Section 61.13 is amended as follows:
0
a. By removing ``; or'' at the end of paragraph (a)(1) and adding in
its place a period.
0
b. By revising paragraph (a) introductory text.
0
c. By adding paragraphs (a)(3) through (a)(6).
Sec. 61.13 Emission tests and waiver of emission tests.
(a) Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and
(a)(6) of this section, if required to do emission testing by an
applicable subpart and unless a waiver of emission testing is obtained
under this section, the owner or operator shall test emissions from the
source:
* * * * *
(3) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure, the owner or operator shall notify the Administrator, in
writing as soon as practicable following the date the owner or operator
first knew, or through due diligence should have known that the event
may cause or caused a delay in testing beyond the regulatory deadline
specified in paragraphs (a)(1) or (a)(2) of this section or beyond a
deadline established pursuant to the requirements under paragraph (b)
of this section, but the notification must occur
[[Page 27443]]
before the performance test deadline unless the initial force majeure
or a subsequent force majeure event delays the notice, and in such
cases, the notification shall occur as soon as practicable.
(4) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(5) The decision as to whether or not to grant an extension to the
performance test deadline is solely within the discretion of the
Administrator. The Administrator will notify the owner or operator in
writing of approval or disapproval of the request for an extension as
soon as practicable.
(6) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(3), (a)(4), and
(a)(5) of this section, the owner or operator of the affected facility
remains strictly subject to the requirements of this part.
* * * * *
PART 63--[AMENDED]
0
7. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
8. Section 63.2 is amended by adding, in alphabetical order, a
definition for ``Force majeure'' to read as follows:
Sec. 63.2 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 63.7, an event that will
be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
0
9. Section 63.7 is amended by revising paragraphs (a)(2) introductory
text and (a)(2)(ix) and by adding paragraph (a)(4) to read as follows:
Sec. 63.7 Performance testing requirements.
(a) * * *
(2) Except as provided in paragraph (a)(4) of this section, if
required to do performance testing by a relevant standard, and unless a
waiver of performance testing is obtained under this section or the
conditions of paragraph (c)(3)(ii)(B) of this section apply, the owner
or operator of the affected source must perform such tests within 180
days of the compliance date for such source.
* * * * *
(ix) Except as provided in paragraph (a)(4) of this section, when
an emission standard promulgated under this part is more stringent than
the standard proposed (see Sec. 63.6(b)(3)), the owner or operator of
a new or reconstructed source subject to that standard for which
construction or reconstruction is commenced between the proposal and
promulgation dates of the standard shall comply with performance
testing requirements within 180 days after the standard's effective
date, or within 180 days after startup of the source, whichever is
later. If the promulgated standard is more stringent than the proposed
standard, the owner or operator may choose to demonstrate compliance
with either the proposed or the promulgated standard. If the owner or
operator chooses to comply with the proposed standard initially, the
owner or operator shall conduct a second performance test within 3
years and 180 days after the effective date of the standard, or after
startup of the source, whichever is later, to demonstrate compliance
with the promulgated standard.
* * * * *
(4) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure:
(i) The owner or operator shall notify the Administrator, in
writing as soon as practicable following the date the owner or operator
first knew, or through due diligence should have known that the event
may cause or caused a delay in testing beyond the regulatory deadline
specified in paragraph (a)(2) or (a)(3) of this section, or elsewhere
in this part, but the notification must occur before the performance
test deadline unless the initial force majeure or a subsequent force
majeure event delays the notice, and in such cases, the notification
shall occur as soon as practicable.
(ii) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(iii) The decision as to whether or not to grant an extension to
the performance test deadline is solely within the discretion of the
Administrator. The Administrator will notify the owner or operator in
writing of approval or disapproval of the request for an extension as
soon as practicable.
(iv) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(4)(i), (a)(4)(ii),
and (a)(4)(iii) of this section, the owner or operator of the affected
facility remains strictly subject to the requirements of this part.
* * * * *
0
10. Section 63.91 is amended by adding paragraph (g)(1)(i)(O) to read
as follows:
Sec. 63.91 Criteria for straight delegation and criteria common to
all approval options.
* * * * *
(g) * * *
(1) * * *
(i) * * *
(O) Section 63.7(a)(4), Extension of Performance Test Deadline
* * * * *
[FR Doc. E7-9407 Filed 5-15-07; 8:45 am]
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