

[Federal Register: March 1, 2006 (Volume 71, Number 40)]
[Rules and Regulations]               
[Page 10439-10442]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr06-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 63

[EPA-HQ-OAR-2003-0121; FRL-8039-2]
RIN 2060-AM43

 
National Emission Standards for Hazardous Air Pollutants: 
Miscellaneous Organic Chemical Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendment.

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SUMMARY: This action amends the national emission standards for 
hazardous air pollutants (NESHAP) for miscellaneous organic chemical 
manufacturing. The amendment will extend the compliance date for 
existing sources by 18 months. Under the promulgated rule, existing 
affected sources would be required to be in compliance by November 10, 
2006. With this final action, existing sources will be required to 
comply with the rule by May 10, 2008.

DATES: Effective Date: March 1, 2006.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2003-0121. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 

the index, some information is not 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 http://www.regulations.gov or 

in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the Air and 
Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Coatings and 
Chemicals Group (C504-04), Sector Policies and Programs Division, 
Office of Air Quality Planning and Standards, U.S. EPA, Research 
Triangle Park, NC 27711; telephone number: (919) 541-5402; fax number: 
(919) 541-3470; e-mail address: mcdonald.randy@epa.gov.

SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities 
potentially regulated by this action include:

------------------------------------------------------------------------
                                                         Examples of
          Category                 NAICS code*       regulated entities
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Industry....................  3251, 3252, 3253,     Producers of
                               3254, 3255, 3256,     specialty organic
                               and 3259, with        chemicals,
                               several exceptions.   explosives, certain
                                                     polymers and
                                                     resins, and certain
                                                     pesticide
                                                     intermediates.
------------------------------------------------------------------------
*North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility is regulated by this action, 
you should examine the applicability criteria in 40 CFR 63.2435. If you 
have any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rule amendment will also be available 
on the WWW through the Technology Transfer Network (TTN). Following 
signature by the EPA Administrator, a copy of the final rule amendment 
will be posted 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.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the final rule amendment is available only by 
filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia Circuit by May 1, 2006. Under section 307(d)(7)(B) 
of the CAA, only an objection to the final rule amendment that was 
raised with reasonable specificity during the period for public

[[Page 10440]]

comment can be raised during judicial review. Moreover, under section 
307(b)(2) of the CAA, the requirements established by the final rule 
amendment may not be challenged separately in any civil or criminal 
proceedings brought by EPA to enforce these requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
II. Response to Comments on the Proposed Amendment to the Compliance 
Date for Existing Sources
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Background

    On November 10, 2003, we promulgated NESHAP for miscellaneous 
organic chemical manufacturing as subpart FFFF in 40 CFR part 63 (the 
``MON''). Petitions for review of the MON were filed in the U.S. Court 
of Appeals for the District of Columbia Circuit by American Chemistry 
Council, Eastman Chemical Company, Clariant LSM (America), Inc., Rohm 
and Haas Company, General Electric Company, Coke Oven Environmental 
Task Force (``COETF'') and Lyondell Chemical Company (collectively 
``Petitioners'').\1\ These matters were consolidated into American 
Chemistry Council, et al. v. EPA, No. 04-1004, 04-1005, 04-1008, 04-
1009, 04-1010, 04-1012, 04-1013 (D.C. Cir.). Issues raised by the 
petitioners included applicability of the rule; leak detection and 
repair requirements for connectors; definitions of process condenser, 
continuous process vent, and Group 1 wastewater; treatment requirements 
for wastewater that is Group 1 only for soluble hazardous air 
pollutants (HAP); recordkeeping for Group 2 batch process vents; and 
notification requirements for Group 2 emission points that become Group 
1 emission points.
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    \1\ The Fertilizer Institute and Arteva Specialties S. `ar.1 
also filed petitions for review but voluntarily withdrew their 
petitions.
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    In early October 2005, the parties signed a settlement agreement. 
Pursuant to section 113(g) of the CAA, notice of the settlement was 
published in the Federal Register on October 26, 2005 (70 FR 61814). 
The agreement established a schedule by which EPA would propose and 
promulgate revisions to the NESHAP; it also includes preamble language 
for the proposed amendments notice that was agreed to by the parties. 
The settlement agreement provides that EPA would sign a notice of 
proposed rulemaking, including an 18-month compliance extension for 
existing sources, by November 30, 2005. The settlement agreement also 
calls for EPA to take final action on the proposed 18-month compliance 
extension within 30 days of the date the comment period on the proposed 
amendments closes. According to the settlement agreement, notice of 
final rulemaking on the other proposed amendments must be signed within 
150 days of the date the comment period on the proposed amendments 
closes.
    On December 8, 2005 (70 FR 73098), we proposed amendments to 
address issues raised by the petitioners and correct and clarify other 
provisions to ensure that the rule is implemented as intended. In this 
action, we are promulgating the 18-month compliance extension for 
existing sources. Final action on the other proposed amendments will 
occur in a future notice of final rulemaking.

II. Response to Comments on the Proposed Amendment to the Compliance 
Date for Existing Sources

    Eight commenters expressed support for our decision to extend the 
compliance date for existing sources by 18 months, and no adverse 
comments were received. The eight commenters agreed with our position 
in the preamble to the proposed amendments that the proposed 
amendments, if finalized, are sufficiently far-reaching and complex 
that the amended rule would effectively be a new rule warranting a new 
compliance date. Several of the commenters identified changes to 
definitions and compliance options that will require regulated sources 
to reevaluate applicability and control strategies, effectively 
starting over with respect to a number of key provisions. They 
indicated that significant time will be needed to review and revise 
emissions modeling analyses and other calculations; develop revised 
control strategies; redesign, order, and install control equipment; and 
complete permitting activities. Several of the commenters also 
concurred with our rationale in the preamble to the proposed amendments 
that section 112(d)(6) of the CAA provides authority for the 
Administrator to set new compliance dates for revised rules. They also 
noted that there is precedent for such changes, including the extension 
for the Pesticide Active Ingredient NESHAP (67 FR 38200, June 3, 2002). 
Therefore, we are taking final action to extend the compliance date for 
existing sources by 18 months.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and, therefore, subject to review by the Office of Management and 
Budget (OMB) and the requirements of the Executive Order. The Executive 
Order defines a ``significant regulatory action'' as one that is likely 
to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that the final rule amendment is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Extending the compliance date does not alter the information collection 
requirements for any source owner or operator. The OMB has previously 
approved the information collection requirements contained in the 
existing regulations under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060-
0533 (EPA ICR number 1969.02). A copy of the OMB-approved Information 
Collection Request (ICR) may be obtained from Susan Auby, by mail at 
the Office of Environmental Information, Collection

[[Page 10441]]

Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, by e-mail at auby.susan@epa.gov, or by calling 
(202) 566-1672. A copy may also be downloaded off the Internet at 
http://www.epa.gov/icr. Include the ICR or OMB number in any 

correspondence.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule.
    For the purposes of assessing the impacts of the proposed rule on 
small entities, small entity is defined as, (1) A small business as 
defined by the Small Business Administration (SBA) at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise that is independently owned and operated and is not 
dominant in its field.
    For sources subject to this final rule, the NAICS code is 325 and 
associated small business employee sizes range from 750 to 1000. 
Relevant NAICS and associated employee sizes are listed below:

NAICS 32511--Petrochemical Manufacturing--1,000 employees or fewer
NAICS 325192--Cyclic Crude and Intermediate Manufacturing--750 
employees or fewer
NAICS 325199--All Other Organic Chemical Manufacturing--1,000 
employees or fewer
NAICS 325211--Plastics Material and Resin Manufacturing--750 
employees or fewer
NAICS 325212--Synthetic Rubber Manufacturing--1,000 employees or 
fewer
NAICS 325411--Medicinal and Botanical Manufacturing--750 employees 
or fewer
NAICS 325611--Soaps and Other Detergents Manufacturing--750 
employees or fewer
NAICS 32592--Explosives Manufacturing--750 employees or fewer

    After considering the economic impacts of today's final rule 
amendment on small entities, EPA has concluded that this action will 
not have a significant economic impact on a substantial number of small 
entities. In determining whether a rule has a significant economic 
impact on a substantial number of small entities, the impact of concern 
is any significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may conclude that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. The 
final rule amendment extends the compliance date, which will not impose 
any additional requirements on small entities.

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, the 
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 by State, local, and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any 1 year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires the 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 the 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 the 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.
    The EPA has determined that the final rule amendment 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 1 year. No costs are 
attributable to the final rule amendment. Thus, the final rule 
amendment is not subject to the requirements of sections 202 and 205 of 
the UMRA. In addition, the final rule amendment contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because it contains no requirements that apply to such 
governments, and it imposes no obligations upon them. Therefore, the 
final rule amendment is not subject to the requirements of section 203 
of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires the 
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.''
    The final rule amendment 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. None of the affected 
facilities are owned or operated by State or local governments. Thus,

[[Page 10442]]

Executive Order 13132 does not apply to the final rule amendment.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000), requires the 
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.'' The final rule amendment does not have 
tribal implications, as specified in Executive Order 13175. The final 
rule amendment extends the compliance date and, therefore, imposes no 
additional burden on the sources. Thus, Executive Order 13175 does not 
apply to the final rule amendment.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that the EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the EPA 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.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. The final rule amendment is 
not subject to Executive Order 13045 because it is based on technology 
performance and not health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    The final rule amendment does not constitute a ``significant energy 
action'' as defined in Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)) because the final rule amendment 
will not have a significant adverse effect on the supply, distribution, 
or use of energy. Further, we have concluded that the final rule 
amendment will not have any adverse energy effects.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995 (Pub. L. No. 104-113; 15 U.S.C. 272 note) directs 
the EPA to use voluntary consensus standards in its regulatory and 
procurement 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 one or more voluntary consensus bodies. The NTTAA directs 
the EPA to provide Congress, through the OMB, with explanations when 
the Agency decides not to use available and applicable voluntary 
consensus standards.
    During the rulemaking, the EPA conducted searches to identify 
voluntary consensus standards in addition to EPA test methods 
referenced by the final rule. The search and review results have been 
documented and placed in the docket for the NESHAP (Docket ID No. EPA-
HQ-OAR-2003-0121). The final rule amendment does not propose the use of 
any additional technical standards beyond those cited in the final 
rule. Therefore, the EPA is not considering the use of any additional 
voluntary consensus standards for the final rule amendment.

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. The EPA will submit a report containing the final rule 
amendment 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 final rule amendment in the Federal 
Register. The final rule amendment is not a ``major rule'' as defined 
by 5 U.S.C. 804(2). The final rule amendment is effective on March 1, 
2006.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: February 23, 2006.
Stephen L. Johnson,
Administrator.


0
For the reasons stated in the preamble, title 40, chapter I, part 63 of 
the Code of the Federal Regulations is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart FFFF--[Amended]

0
2. Section 63.2445 is amended by revising paragraph (b) to read as 
follows:


Sec.  63.2445  When do I have to comply with this subpart?

* * * * *
    (b) If you have an existing source on November 10, 2003, you must 
comply with the requirements for existing sources in this subpart no 
later than May 10, 2008.
* * * * *
[FR Doc. 06-1918 Filed 2-28-06; 8:45 am]

BILLING CODE 6560-50-P
