[Federal Register Volume 72, Number 74 (Wednesday, April 18, 2007)]
[Rules and Regulations]
[Pages 19385-19387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7362]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63 and 65
[EPA-HQ-OAR-2004-0094; FRL-8301-2]
RIN 2060-AO40
National Emission Standards for Hazardous Air Pollutants: General
Provisions: Notice of Decision Denying Petition for Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision denying petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: On April 20, 2006, EPA published final rules entitled,
``National Emission Standards for Hazardous Air Pollutants: General
Provisions.'' Following that final action, the Administrator received a
petition for reconsideration from Coalition for a Safe Environment
(CFASE). CFASE's petition for reconsideration can be found in the
rulemaking docket under Docket ID No. EPA-HQ-OAR-2004-0094. After
carefully considering the petition and information in the rulemaking
docket, EPA is denying CFASE's petition for reconsideration.
ADDRESSES: The docket for EPA's denial of CFASE's petition for
reconsideration is Docket ID No. EPA-HQ-OAR-2004-0094. All documents in
the docket are listed on the www.regulations.gov Web site. Although
listed in the index, some information may not be publicly available,
i.e., 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
www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID
No. EPA-HQ-OAR-2004-0094, EPA West, Room 3334, 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 EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, U.S. EPA Office of
Air Quality Planning and Standards, Sector Policies and Programs
Division, Program Design Group (D205-02), Research Triangle Park, NC
27711; telephone number (919) 541-5262; fax number (919) 541-5600; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
In addition to being available in the docket, an electronic copy of
today's notice of EPA's decision denying CFASE's petition for
reconsideration will also be available on the WWW through the
Technology Transfer Network (TTN). Following signature, a copy of this
notice will be posted on the TTN's policy and guidance page for newly
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides
information and technology exchange in various areas of air pollution
control.
Outline. The information presented in this preamble is organized as
follows:
I. General Information
II. Background Information
III. Basis for Denial of Reconsideration
II. Background Information
On April 20, 2006, EPA issued certain amendments to the 40 CFR
parts 63 and 65 startup, shutdown, and malfunction (SSM) general
provisions requirements affecting sources subject to the National
Emission Standards for Hazardous Air Pollutants (NESHAP). On June 19,
2006, EarthJustice filed a petition for review challenging those
amendments in the
[[Page 19386]]
United States Court of Appeals for the District for Columbia Circuit on
behalf of Environmental Integrity Project, Friends of Hudson, Louisiana
Environmental Action Network and Coalition for a Safe Environment
(CFASE). On the same day, CFASE filed a petition for administrative
reconsideration with EPA pursuant to section 307(d)(7)(B).
CFASE appears to base its petition for reconsideration on a claim
that it did not receive adequate notice of certain changes EPA made in
the final rule to the SSM recordkeeping and reporting requirements. EPA
made changes to the recordkeeping and reporting requirements in the
final rule to address comments on the proposed rule submitted by
EarthJustice and Environmental Integrity Project. In comments on the
proposed rule, EarthJustice and Environmental Integrity Project
asserted that the proposed rule's elimination of the requirement that a
source implement an SSM plan renders the SSM rule's general duty to
minimize emissions vague and unenforceable and violates the Clean Air
Act (CAA) Title V requirement that permits contain enforceable limits
and standards and conditions necessary to assure compliance. (Docket
number EPA-HQ-OAR-2004-0094, items 29 through 32.)
The General Provisions to 40 CFR part 63 require that ``at all
times, including periods of startup, shutdown, and malfunction, the
owner or operator must operate and maintain any affected source,
including associated air pollution control equipment and monitoring
equipment, in a manner consistent with safety and good air pollution
control practices for minimizing emissions. During a period of startup,
shutdown, or malfunction, this general duty to minimize emissions
requires that the owner or operator reduce emissions from the affected
source to the greatest extent which is consistent with safety and good
air pollution control practices.'' \1\ In the proposed rule preamble,
we explained that the reporting and recordkeeping requirements would
allow the permitting authority and the public to determine compliance
with the general duty clause. 70 FR at 43394 (July 29, 2005). However,
in an effort to address the above-mentioned concerns raised by
commenters, we reevaluated the recordkeeping and reporting requirements
and made minor revisions to those requirements to clarify that the
information required in SSM records and reports include a description
of the ``actions taken'' at the facility during SSM events that involve
an exceedance of the applicable standard.\2\ The final rule preamble
explained the revisions as follows:
---------------------------------------------------------------------------
\1\ This petition denial describes the general duty to minimize
emissions as it applies during SSM events and does not address the
application of the general duty to minimize emissions at other
times.
\2\ EPA responded to the comments by revising 40 CFR
63.10(d)(5)(i) and (ii) to require that a description of actions
taken to minimize emissions be included in SSM reports whether or
not the SSM plan was followed. EPA also revised the recordkeeping
requirement at 40 CFR 63.10(b)(2)(v)(the requirement to keep a
record of ``all information necessary to demonstrate conformance''
with the SSM plan when actions taken during SSM events are
consistent with the SSM plan) to require that such records include
all actions taken during the SSM event to minimize emissions. 70 FR
at 20448.
With these clarifications, any time there is an exceedance of an
emission limit (or could have been in the case of malfunctions) and
thus a possibility that the general duty requirement was violated,
there will be a report filed that will describe what actions were
taken to minimize emissions that will be available to the public.
Any member of the public could use the information in these
reports to evaluate whether adequate steps were taken to meet the
general duty requirement. This information is likely to be of as
much if not more use in determining compliance with the general duty
requirement than a facility's general SSM plan because the
information will be specific to the particular SSM event that caused
the exceedance.
71 FR 20448 (April 20, 2006).
In its petition, CFASE argues that EPA's reliance on the revised
recordkeeping and reporting requirements to assure compliance with the
general duty to minimize emissions is insufficient. CFASE further
argues that the SSM rule violates the CAA section 504(a) requirement
that title V permits contain ``conditions as are necessary to assure
compliance'' with the general duty to minimize emissions and that
reliance on reporting alone does not ``assure compliance.'' CFASE also
asserts that a vague generalized requirement such as the general duty
to minimize emissions must be supplemented with permit conditions
sufficient to explain how the requirement applies specifically to the
permitted facility.
III. Basis for Denial of Reconsideration
EPA denies CFASE's petition for reconsideration. Section
307(d)(7)(B) of the CAA requires EPA to convene a proceeding for
reconsideration based on objections that were not raised during the
public comment period only if ``it was impracticable to raise such
objection within such time or if the grounds for such objection arose
after the period for public comment * * * and if such objection is of
central relevance to the outcome of the rule * * *''
Petitioner has failed to establish that the objections raised are
based on grounds that ``arose after the public comment period.'' As
noted above, the preamble to the proposed rule clearly articulates
EPA's reliance on recordkeeping and reporting to allow the permitting
agency and the public to determine compliance with the general duty to
minimize emissions. Specifically, the proposal provides:
These periodic and immediate SSM reports provide the permitting
authority with adequate information to determine if the facility has
SSM problems above and beyond what might normally be expected. The
types and frequency of SSM events will vary from source category to
source category. Sources that report much higher number of SSM
events than other sources within the same source category would be
subject to higher scrutiny by the permitting authority, by EPA, and
presumably by the public. Inspectors would examine the facility's
records and its SSM plan to determine its adequacy and whether it
conformed to the general duty clause. If not, the facility could be
cited for violating the general duty clause and required to revise
its plan to minimize emissions to the satisfaction of the permitting
authority. As such, the reports identify potential problems that can
be followed up with appropriate action.
70 FR at 43394.
Nor were CFASE's objections to the recordkeeping and reporting
requirements ``impracticable to raise'' during the public comment
period. Indeed, the arguments raised by CFASE in its petition for
reconsideration are merely a variation of the arguments raised in its
comments on the proposal. The revisions to regulatory language made in
the final rule were made by EPA in direct response to the comments of
EarthJustice and Environmental Integrity project concerning
enforceability of the general duty to minimize emissions.
As explained in the preamble to the proposed and final rules (70 FR
at 43994 and 71 FR at 20448-9), the recordkeeping and reporting
requirements adequately assure compliance with the general duty to
minimize emissions. As we explained in the preamble to the proposed
rule, the general duty clause is the applicable requirement under MACT
standards for emission reductions during periods of SSM and ``* * * is
designed to recognize that technology-based standards may not always be
met, as technology fails occasionally beyond the control of the owner
or operator * * *. If standards cannot be met during a
[[Page 19387]]
period of SSM, then the owner or operator must take steps to minimize
emissions to the extent practicable.'' 70 FR at 43993.
The exception to technology-based emission standards during SSM
events, which applies when a source cannot meet the technology-based
standard using all practicable steps to minimize emissions that are
consistent with safety and good air pollution control practices, is
appropriate and may be necessary to preserve the reasonableness of the
underlying MACT standards. Essex Chemical Corporation v. EPA, 486 F.2d.
427, 432-33 (D.C. Cir 1973) (addressing exemption from New Source
Performance Standards during SSM events); Portland Cement Association
v. Ruckelshaus, 486 F.2d. 375, 398-99 (D.C. Cir. 1973) (same); Marathon
Oil v. EPA, 564 F.2d. 1253, 1272-73 (9th Cir. 1977) (discussing need to
provide upset defense for technology-based effluent limits to account
for technology failure).
As discussed above and in the preamble to the proposed and final
rules, the general duty to minimize emissions is sufficiently specific
(71 FR 20448-49), and the SSM recordkeeping and reporting requirements
are sufficient to assure compliance with the general duty clause. We
note that in the Title V context, EPA's regulations specifically
provide that recordkeeping requirements can adequately assure
compliance. In particular, 40 CFR 70.6(a)(3)(i), which implements the
statutory requirement of section 504(a) of the CAA, specifies that
periodic testing and monitoring to determine compliance with an
applicable requirement ``may consist of recordkeeping designed to serve
as monitoring.'' Moreover, 40 CFR 70.6(a)(3)(i)(b) (which requires
title V permits to include monitoring and testing provisions when an
underlying applicable requirement does not contain provisions)
specifies that ``[r]ecordkeeping provisions may be sufficient to meet
the requirements of this paragraph (a)(3)(i)(B).''
Dated: April 12, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-7362 Filed 4-17-07; 8:45 am]
BILLING CODE 6560-50-P