[Federal Register Volume 72, Number 165 (Monday, August 27, 2007)]
[Rules and Regulations]
[Pages 48938-48942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16840]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 65
[EPA-HQ-OAR-2007-0429; FRL-8459-5]
RIN 2060-A045
Revisions to Consolidated Federal Air Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is taking direct final action on the General
Provisions for Consolidated Federal Air Rule to allow extensions to the
deadline imposed for source owners and operators to conduct required
performance tests in certain specified force majeure circumstances. On
May 16, 2007, we published a final rule that revised 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 extensions to the deadline imposed for source
owners and operators to conduct required performance tests in certain
specified force majeure circumstances. We recently realized that we
should have also revised the Consolidated Federal Air Rule to allow for
similar extensions.
DATES: This rule is effective on November 26, 2007 without further
notice, unless EPA receives adverse comment by September 26, 2007. If
we receive adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that some or all of the
amendments in this rule will not take effect.
ADDRESSES: Submit your comments, identified under Docket ID No. EPA-HQ-
OAR-2007-0429 by one of the following methods:
www.regulations.gov. Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-9744.
Mail: Revisions to Consolidated Federal Air Rule,
Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. Please include a total of two
copies.
Hand Delivery: EPA Docket Center, 1301 Constitution
Avenue, NW., EPA Headquarters Library, Room 3334, EPA West Building,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0429. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which
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means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Revisions to
Consolidated Federal Air Rule Docket, EPA/DC, EPA West Building, EPA
Headquarters Library, 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 Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Lula Melton, Air Quality
Assessment Division (C304-02), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number: (919) 541-2910; fax
number: (919) 541-4511; e-mail address [email protected].
Table of Contents
I. Why Is EPA Using a Direct Final Rule?
II. Does This Action Apply to Me?
III. Judicial Review
IV. This Action
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 Risks and Safety Risks
H. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Congressional Review Act
I. Why Is EPA Using a Direct Final Rule?
The EPA is publishing this rule without a prior proposed rule
because we view this as a non-controversial action and anticipate no
adverse comment. The changes mirror those recently promulgated in the
May 16, 2007 final rule revising 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 (``Force
Majeure Rule'') which allowed extensions to the deadline imposed for
source owners and operators to conduct required performance tests in
certain specified force majeure circumstances. Nonetheless, in the
``Proposed Rules'' section of this Federal Register, we are publishing
a separate document that will serve as the proposed rule if relevant
adverse comments are received on this direct final rule. We will not
institute a second comment period on this action. Any parties
interested in commenting, must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document. If EPA receives adverse comment, we will publish a
timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect. We would address all
public comments in any subsequent final rule based on the proposed
rule.
II. Does This Action Apply to Me?
This action applies to any owner or operator of a source required
to conduct performance testing to demonstrate compliance with
applicable standards under the General Provisions for Consolidated
Federal Air Rule.
III. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this direct final rule is available by filing a petition for review
in the United States Court of Appeals for the District of Columbia
Circuit by October 26, 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
direct final rule may not be challenged later in civil or criminal
proceedings brought by EPA to enforce these requirements.
IV. This Action
The direct 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 the Consolidated
Federal Air Rule. 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
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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.
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.
V. 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 organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business 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), 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 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
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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. 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 direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. 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 direct 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 Risks 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 direct 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 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (59 FR 7629, February 16, 1994) establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this direct final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This direct final rule does not relax the control
requirements on affected sources. It merely allows an extension to the
deadline for conducting performance tests in rare force majeure
circumstances.
I. 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.
J. National Technology Transfer and Advancement Act
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
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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 the
regulatory deadline. Therefore, NTTAA does not apply.
K. 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 on November 26, 2007.
List of Subjects in 40 CFR Part 65
Air pollution control, Environmental protection, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: August 17, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 65 of
the Code of Federal Regulations are amended as follows:
PART 65--[AMENDED]
0
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
2. Section 65.2 is amended by adding, in alphabetical order, a
definition for ``Force majeure'' to read as follows:
Sec. 65.2 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 65.157, 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 65.157 is amended as follows:
0
a. By revising paragraph (c) introductory text.
0
b. By adding paragraphs (c)(1)(viii) through (c)(1)(xi).
Sec. 65.157 Performance test and flare compliance determinations.
* * * * *
(c) Except as specified in paragraphs (c)(1)(viii), (c)(1)(ix),
(c)(1)(x), and (c)(1)(xi) of this section, unless a waiver of
performance testing or flare compliance determination is obtained under
this section or the conditions of another subpart of this part, the
owner or operator shall perform such tests specified in the following:
(1) * * *
(viii) 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.
(ix) 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.
(x) 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.
(xi) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (c)(1)(viii),
(c)(1)(ix), and (c)(1)(x) of this section, the owner or operator of the
affected facility remains strictly subject to the requirements of this
part.
* * * * *
[FR Doc. E7-16840 Filed 8-24-07; 8:45 am]
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