

[Federal Register: August 27, 2007 (Volume 72, Number 165)]
[Rules and Regulations]               
[Page 48938-48942]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au07-3]                         

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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:
     http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     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

[[Page 48939]]

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://.

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 melton.lula@epa.gov.

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

[[Page 48940]]

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

[[Page 48941]]

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

[[Page 48942]]

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]

BILLING CODE 6560-50-P
