[Federal Register Volume 72, Number 208 (Monday, October 29, 2007)]
[Rules and Regulations]
[Pages 61060-61063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5295]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2003-0048; FRL-8482-2]
RIN 2060-AO65
National Emission Standards for Hazardous Air Pollutants: Plywood
and Composite Wood Products
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On June 19, 2007, the United States Court of Appeals for the
District of Columbia Circuit (the Court) vacated EPA's provisions in
the National Emission Standards for Hazardous Air Pollutants: Plywood
and Composite Wood Products that established an October 1, 2008,
compliance deadline and that created and delisted a low risk
subcategory of plywood and composite wood products facilities. This
action announces the Court's decision and promulgates ministerial
amendments that will incorporate the Court's decision into the Code of
Federal Regulations.
DATES: This rule was effective on October 29, 2007.
ADDRESSES: The EPA does not seek comment on this final rule. The
opinion issued by the Court on June 19, 2007 and other information
about the rule are contained in Docket ID No. OAR-2003-0048 and Legacy
Docket ID No. A-98-44. All documents in the docket are listed in the
www.regulations.gov index. 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, will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2003-
0048, EPA West Building, Room 3334, 1301 Constitution Avenue, 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: For information concerning
applicability and compliance assistance, contact your State or local
representative or appropriate EPA Regional Office representative. For
other information, contact Ms. Mary Tom Kissell, Office of Air Quality
Planning and Standards, Sector Policies and Program Division, Coatings
and Chemicals Group (E143-01), EPA, Research Triangle Park, NC 27711;
telephone number: (919) 541-4516; fax number: (919) 541-0246; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION: 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 final rule
without first providing notice and an opportunity for public comment on
a proposed rule. There is good cause for making today's rule final
without prior proposal and opportunity for comment because the Court
vacated EPA's promulgation of the October 1, 2008, compliance date and
of the low-risk provisions. The Court ruled that EPA was without
statutory authority in our 2006 amendments to the national emission
standards for hazardous air pollutants (NESHAP) to re-set the
compliance date of October 1, 2007, first promulgated in the 2004
NESHAP. The Court also ruled that EPA had no statutory authority to
create and then delist the low-risk Plywood and Composite Wood Products
(PCWP) subcategory.\1\ Therefore, today's action has no legal effect
beyond ministerially fulfilling the Court's order and is clerical in
nature: we are merely revising the Code of Federal Regulations to
conform our rules to the Court's order and announcing the Court's
decision. Thus, notice and public procedure are unnecessary.
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\1\ The Court also remanded and vacated EPA's determinations
that certain process units at PCWP facilities need not be subject to
emissions controls. EPA will respond to that portion of the Court's
ruling in a separate notice and comment rulemaking, and is not
addressing that issue in today's final rule.
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EPA finds that this constitutes good cause under 5 U.S.C.
553(b)(B). Providing an opportunity to comment on a proposed conforming
amendment would be impracticable because it would unacceptably delay
EPA's action beyond the October 1, 2007, compliance deadline the Court
ruled EPA must re-impose. It would also be unnecessary, since the
Court's direction was clear that EPA must remove the 2006 NESHAP's
amendment re-setting the deadline beyond October 1, 2007, and the 2004
and 2006 provisions creating and delisting the low-risk PCWP
subcategory was beyond EPA's statutory authority. Finally, it is not in
the public
[[Page 61061]]
interest to delay revising the rule to conform to the Court's order on
these issues, as continuing to leave the vacated provisions in place
creates confusion among the regulated community, implementing States
and local governments, and the general public.
Regulated Entities
Categories and entities potentially affected by today's action
include:
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Category SIC code \a\ NAICS code \b\ Examples of regulated entities
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Industry................................... 2421 321999 Sawmills with lumber kilns.
2435 321211 Hardwood plywood and veneer plants.
2436 321212 Softwood plywood and veneer plants.
2493 321219 Reconstituted wood products plants
(particleboard, medium density
fiberboard, hardboard, fiberboard,
and oriented strandboard plants).
2439 321213 Structural wood members, not
elsewhere classified (engineered
wood products plants).
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\a\ Standard Industrial Classification.
\b\ North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by today's
action. To determine whether your facility is affected by today's
action, you should examine the applicability criteria in Sec. 63.2231
of the final rule. If you have questions regarding the applicability of
today's action to a particular entity, consult your State or local
representative or the appropriate EPA Regional Office representative.
Worldwide Web (WWW)
In addition to being available in the docket, an electronic copy of
today's action also will be available on the Worldwide Web (WWW)
through EPA's Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of this action 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.
I. Background
We proposed NESHAP for the PCWP source category on January 9, 2003
(68 FR 1276). The final rule (subpart DDDD in 40 CFR part 63) was
published on July 30, 2004 (69 FR 45944). In addition to adopting
maximum achievable control technology (MACT) standards for the PCWP
category, we adopted a risk-based approach in the 2004 final rule by
establishing and delisting a low-risk subcategory of PCWP affected
sources, which would have allowed low-risk sources to avoid complying
with MACT. Except for eight sources that we determined were already
eligible to join the low-risk subcategory and avoid MACT, all PCWP
sources were initially included in the category subject to MACT, and
any would-be low-risk sources could subsequently join the low-risk
subcategory after EPA approved their submitted low-risk demonstrations.
The methodology and criteria for PCWP affected sources to use in
demonstrating that they are eligible to join the delisted low-risk
subcategory were promulgated in the 2004 final rule in appendix B to
subpart DDDD of 40 CFR part 63. Any source who failed to obtain EPA
approval of a low-risk demonstration would remain subject to MACT.
Following promulgation of the 2004 final PCWP rule, the
Administrator received a petition for reconsideration filed by the
Natural Resources Defense Council (NRDC) and Environmental Integrity
Project (EIP) pursuant to section 307(d)(7)(B) of the Clean Air Act
(CAA). The petition requested reconsideration of nine aspects of the
final rule including the legal basis for the risk-based provisions. The
petition for reconsideration also requested a stay of the effectiveness
of the risk-based provisions. In a letter dated December 6, 2004, EPA
granted NRDC's and EIP's petition for reconsideration and declined the
petitioners' request that we take action to stay the effectiveness of
the risk-based provisions.
On July 29, 2005 (70 FR 44012), we published a notice of
reconsideration and requested comment on the issues in the petition for
reconsideration, including the full content of appendix B to subpart
DDDD. In a separate notice published on July 29, 2005 (70 FR 44012), we
proposed amendments to subpart DDDD and both of the appendices to
subpart DDDD including a request for comment on whether the MACT
compliance date should be extended for sources submitting low-risk
demonstrations or for all sources. On February 16, 2006, EPA
promulgated amendments to the National Emission Standards for Hazardous
Air Pollutants: Plywood and Composite Wood Products. In the 2006 final
rule, we promulgated a revised compliance deadline of October 1, 2008,
for sources subject to the rule, which was 1 year later than the date
originally promulgated.
Following promulgation of the 2004 final PCWP rule, four petitions
for judicial review of the final PCWP rule were filed with the Court by
NRDC and Sierra Club (No. 04-1323, D.C. Cir.), EIP (No. 04-1235, D.C.
Cir.), Louisiana-Pacific Corporation (No. 04-1328, D.C. Cir.), and
Norbord Incorporated (No. 04-1329, D.C. Cir.). The four cases were
consolidated. The NRDC, Sierra Club, and EIP petitions for judicial
review \2\ addressed three major concerns: (1) EPA's legal authority to
create and delist a low-risk subcategory; (2) EPA's re-setting of the
compliance date; and (3) EPA's failure to set emission standards for
HAP from all emission points. In March 2007, before the Court decided
the PCWP case, it ruled in Sierra Club, 479 F.3d 875, that ``EPA's
failure to set floors for existing small tunnel brick kilns and new
periodic brick kilns violated [the] CAA * * * noting that the court had
held unlawful EPA's ``no control'' emissions floors for categories in
which the best performers used no emission control technology.''
Subsequently, in April 2007, EPA requested a voluntary remand and
vacatur of the 2004 final MACT determinations for PCWP emissions points
that do not have emission limits (i.e., the ``no emission reduction''
MACT determinations also commonly known as ``no-control MACT floors'').
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\2\ The Louisiana-Pacific Corporation and Norbord Incorporated
petition for judicial review did not result in any change to the
PCWP NESHAP and is not discussed in this preamble.
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On June 19, 2007, the Court issued its opinion remanding and
vacating EPA's no emission reduction MACT determinations, the low-risk
provisions,
[[Page 61062]]
and the October 1, 2008 compliance date.
While today's rule implements the Court's order regarding the
compliance date and low-risk subcategory provisions, EPA will
separately reconsider the MACT determinations for the emission points
for which EPA had previously determined MACT to be ``no emissions
reduction,'' and publish our proposed responses to the Court's remand
of those decisions in a separate notice.
II. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is, therefore,
not subject to review by the Office of Management and Budget. Because
the agency has made a ``good cause'' finding that this action is not
subject to notice-and-comment requirements under the Administrative
Procedure Act or any other statute (see the SUPPLEMENTARY INFORMATION
section of this preamble), it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601,
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not
significantly or uniquely affect small governments or impose a
significant intergovernmental mandate, as described in sections 203 and
204 of UMRA. This rule also does not significantly or uniquely affect
the communities of tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 6, 2000). This rule 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 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
This final rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule
also does not involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). In issuing this rule, EPA has taken the necessary
steps to eliminate ambiguity as required by section 3 of Executive
Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.). EPA's compliance with these statutes and Executive Orders for
the underlying rule is discussed in the July 30, 2004 Federal Register
notice.
The Congressional Review Act (CRA) (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. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore. EPA will submit a report containing this rule
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 rule in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects for 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: October 18, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons stated 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.
Subpart A--[Amended]
0
2. Section 63.14 is amended by revising paragraphs (b)(54), (f)(3) and
(f)(4) to read as follows:
Sec. 63.14 Incorporation by reference.
* * * * *
(b) * * *
(54) ASTM D6348-03, Standard Test Method for Determination of
Gaseous Compounds by Extractive Direct Interface Fourier Transform
Infrared (FTIR) Spectroscopy, incorporation by reference (IBR) approved
for Table 4 to Subpart DDDD of this part as specified in the subpart.
* * * * *
(f) * * *
* * * * *
(3) NCASI Method IM/CAN/WP-99.02, Impinger/Canister Source Sampling
Method for Selected HAPs and Other Compounds at Wood Products
Facilities, January 2004, Methods Manual, NCASI, Research Triangle
Park, NC, IBR approved for Table 4 to Subpart DDDD of this part.
(4) NCASI Method ISS/FP A105.01, Impinger Source Sampling Method
for Selected Aldehydes, Ketones, and Polar Compounds, December 2005,
Methods Manual, NCASI, Research Triangle Park, NC, IBR approved for
table 4 to subpart DDDD of this part.
* * * * *
Subpart DDDD--National Emission Standards for Hazardous Air
Pollutants: Plywood and Composite Wood Products--[Amended]
0
3. Section 63.2231 is amended by revising the introductory paragraph to
read as follows:
Sec. 63.2231 Does this subpart apply to me?
This subpart applies to you if you meet the criteria in paragraphs
(a) and (b) of this section.
* * * * *
0
4. Section 63.2233 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 63.2233 When do I have to comply with this subpart?
* * * * *
(b) If you have an existing affected source, you must comply with
the compliance options, operating requirements, and work practice
requirements for existing sources no later than October 1, 2007.
(c) If you have an area source that increases its emissions or its
potential to emit such that it becomes a major source of HAP, you must
be in compliance with this subpart by October 1, 2007 or
[[Page 61063]]
upon initial startup of your affected source as a major source,
whichever is later.
* * * * *
0
5. Section 63.2291 is amended by revising paragraph (c) introductory
text and removing paragraph (c)(5) to read as follows:
Sec. 63.2291 Who implements and enforces this subpart?
* * * * *
(c) The authorities that will not be delegated to State, local, or
tribal agencies are listed in paragraphs (c)(1) through (4) of this
section.
(1) * * *
* * * * *
Appendices B and C--[Removed]
0
6. Appendices B and C to Subpart DDDD of part 63 are removed.
[FR Doc. 07-5295 Filed 10-26-07; 8:45 am]
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