
[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Proposed Rules]
[Pages 65653-65661]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27441]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2010-0223; FRL-9482-5]
RIN 2060-AO60


New Source Performance Standards (NSPS) Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advanced notice of proposed rulemaking.

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SUMMARY: The purpose of this advanced notice of proposed rulemaking 
(ANPRM) is to request public comment on a proposed approach the EPA has 
developed to carry out the statutorily required periodic evaluation of 
the new source performance standards (NSPS) program. Consistent with 
Executive

[[Page 65654]]

Order 13563, ``Improving Regulation and Regulatory Review,'' issued on 
January 18, 2011, this proposed approach will provide a streamlined 
process to ensure that public and private resources are focused on the 
rules that provide the greatest public health protection and are most 
likely to warrant revision to include current technology and eliminate 
obsolete or unnecessary requirements. By demonstrating the continued 
efficacy of the standards, the agency will be able to fulfill its 
statutory requirement to review, and, if necessary, revise NSPS at a 
minimum of every 8 years. This ANPRM is part of the EPA's effort to 
meet these statutory obligations. The agency is seeking comment on the 
overall approach to managing the NSPS program, in particular the 
criteria used to determine that no review is needed for a subset of 
NSPS.

DATES: Comments must be received on or before November 23, 2011.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2010-0223. All documents in the docket are 
listed in the Federal Docket Management System index at http://www.regulations.gov. Publicly available docket materials are available 
either electronically through http://www.regulations.gov or in hard 
copy at the NSPS Review Under CAA Section 111(b)(1)(B) ANPRM Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0223. The U.S. Environmental Protection Agency's (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 means the 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 the 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, the 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 the EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, the 
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 the 
EPA's public docket visit the EPA Docket Center homepage at 
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 Public Reading 
Room.

FOR FURTHER INFORMATION CONTACT: Ms. Janice Godfrey, Policy and 
Strategies Group, Office of Air Quality Planning and Standards (D205-
02), Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711; telephone number: (919) 541-3391; fax number: (919) 
541-4991; e-mail address: godfrey.janice@epa.gov.

SUPPLEMENTARY INFORMATION: Outline. The information in this ANPRM is 
organized as follows:

I. General Information
    A. What should I consider as I prepare my comments for the EPA?
    B. Where can I get a copy of this document and other related 
information?
II. Background Information
    A. What is the NSPS program?
    B. What is the status of the NSPS program?
    C. What is the purpose of this ANPRM?
III. Developing an NSPS Evaluation Strategy
    A. What are the goals of an evaluation strategy for the NSPS 
program?
    B. Which NSPS do not need review?
    C. NSPS Potentially in Need of a Review
IV. Request for Comment and Next Steps
V. Statutory and Executive Order Review

I. General Information

A. What should I consider as I prepare my comments for the EPA?

    Please provide data and explanatory information in a format that is 
thorough and complete enough for use by the EPA to justify any 
modifications to the proposed approach. Do not submit CBI to the EPA 
through http://www.regulations.gov or e-mail. Clearly mark the part or 
all of the information that you claim to be CBI. For CBI information on 
a disk or CD-ROM that you mail to the EPA, mark the outside of the disk 
or CD-ROM as CBI and then identify electronically within the disk or 
CD-ROM the specific information that is claimed as CBI. In addition to 
one complete version of the comment that includes information claimed 
as CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

[[Page 65655]]

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this ANPRM will be available on the Worldwide Web through the 
Technology Transfer Network (TTN). The TTN provides information about 
various areas of air pollution control. Following signature, an 
electronic version of this document will be posted at http://www.epa.gov/ttn/oarpg under ``Recent Additions.''
    The EPA has also created a technical support document (TSD) that 
provides supporting data and information for this ANPRM. The TSD will 
also be available in the docket and on the TTN at http://www.epa.gov/ttn/oarpg under ``Recent Additions.''

II. Background Information

A. What is the NSPS program?

    Clean Air Act (CAA) section 111 requires the EPA Administrator to 
list categories of stationary sources if such sources cause or 
contribute significantly to air pollution which may reasonably be 
anticipated to endanger public health or welfare. The EPA must then 
issue NSPS for such source categories. NSPS reflect the degree of 
emission limitation achievable through the application of the ``best 
system of emission reduction'' which the EPA determines has been 
adequately demonstrated. The EPA may consider certain costs and non-air 
quality health and environmental impacts and energy requirements when 
establishing NSPS. For a NAAQS pollutant or a Hazardous Air Pollutant 
(one listed under 112), only new or modified or reconstructed 
stationary sources are regulated. For other regulated pollutants, 
section 111(d) also requires states to set standards for existing 
sources.
    Under section 111(b), the EPA has the authority to define the 
source categories, determine the pollutants for which standards should 
be developed, identify the facilities within each source category to be 
covered, and set the emission level of the standards. Air pollutants 
currently regulated through various CAA section 111(b) standards 
include particulate matter (PM, PM2.5, PM10), 
nitrogen oxides (NOX), carbon monoxide (CO), lead (Pb), 
volatile organic compounds (VOC), sulfur dioxide (SO2), 
sulfuric acid mist, fluorides, hydrogen sulfide, reduced sulfur 
compounds, total reduced sulfur, and landfill gas. CAA section 
111(b)(1)(B) generally requires the EPA to ``at least every 8 years 
review and, if appropriate, revise'' NSPS. While conducting a review of 
existing NSPS, the EPA has also promulgated emission limits for 
pollutants not currently regulated for that source category and added 
additional affected facilities where appropriate. See, e.g., 75 FR 
54970 (Sept. 9, 2010),\1\ 73 FR 35883 (June 24, 2009).\2\ In addition, 
section 111(b)(1)(B) also states that the EPA need not conduct this 
review if the EPA determines that reviewing an NSPS ``is not 
appropriate in light of readily available information on the efficacy 
of such standard.''
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    \1\ EPA promulgated emission limits for nitrogen oxides and 
sulfur dioxide to the NSPS for Portland Cement plants which had 
previously only regulated particulate matter emissions.
    \2\ In this rulemaking, EPA extended the coverage of the NSPS 
program to include additional affected facilities (e.g., delayed 
coking units) at a petroleum refinery.
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    In setting or revising NSPS, CAA section 111(a)(1) provides that 
NSPS are to ``reflect the degree of emission limitation achievable 
through the application of the best system of emission reduction which 
(taking into account the cost of achieving such reduction and any non-
air quality health and environmental impact and energy requirements) 
the Administrator determines has been adequately demonstrated.'' The 
format of NSPS can vary from source category to source category (and 
even from facility type to facility type within an NSPS) including a 
numerical emission limit, a design standard, an equipment standard, or 
a work practice standard. In determining the best system of emission 
reduction, we typically conduct a review that identifies what emission 
reduction systems exist and how much they reduce air pollution in 
practice. This allows the EPA to identify potential emission limits. We 
evaluate each system in conjunction with cost of achieving such 
reduction and any non-air quality health and environmental impact and 
energy requirements. The resultant standard is usually a numerical 
emissions limit, expressed as a performance level (i.e., a rate-based 
standard or percent control). Although such standards are based on the 
effectiveness of one or more specific air pollution control systems, 
section 111(b)(5) provides that the EPA may not prescribe a particular 
technology that must be used to comply with an NSPS, except in 
instances where the Administrator determines it is not feasible to 
prescribe or enforce a standard of performance, as defined in section 
111(h). Upon promulgation, NSPS become national standards to which all 
new, modified, or reconstructed sources must comply.

B. What is the status of the NSPS program?

    Since December 23, 1971, the Administrator has promulgated over 70 
NSPS. These standards can be found in the Code of Federal Regulations 
(CFR) at 40 CFR part 60. A list of all NSPS promulgated under the 
authority of CAA 111(b)(1)(B) is provided in Table 1, which includes 
the promulgation date of the original standards and information on the 
most recent activity. Not all Federal Register actions indicate a 
review of the standard. In many cases the most recent action includes 
only minor amendments. For example, on October 17, 2000, EPA made final 
minor amendments to numerous NSPS to include miscellaneous editorial 
changes and technical corrections to stationary testing and monitoring 
rules. See 65FR61768 through 65FR61792. Seventeen standards have been 
promulgated or revised within the last 8 years. In addition to those 
standards that are current within their review cycle, there are also 
multiple standards in different phases of the review process, including 
some standards that are in various stages of the litigation process.

[[Page 65656]]



                                                    Table 1--List of CAA Sec.   111(b)(1)(B)NSPS \3\
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                NSPS                      Subpart             Date of promulgation  (FR citation)         Date of most recent action  (FR citation) \4\
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Ammonium Sulfate Manufacture.......  PP                 11/12/1980 (45FR74846)                           10/17/2000 5 6 (65FR61760)
Asphalt Concrete (Hot Mix Asphalt).  I                  03/08/1974                                       02/14/1989 \4\ (54FR6667)
Asphalt Processing and Roofing       UU                 08/06/1982 (47FR34147)                           10/17/2000 3 4 (65FR61762)
 Manufacture.
Auto/Light Duty Truck Surface        MM                 12/24/1980 (45FR85410)                           10/17/2000 3 4 (65FR61760)
 Coating.
Basic Oxygen Process Furnaces......  N                  03/08/1974 (39FR9318)                            10/17/2000 3 4 (65FR61756)
Basic Process Steelmak-............  Na                 01/02/1986 (51FR161)                             10/17/2000 3 4 (65FR61756)
ing Facilities (Integrated Steel
 Plants).
Beverage Can Surface Coating.......  WW                 08/25/1983 (48FR38728)                           10/17/2000 3 4 (65FR61763)
Bulk Gasoline Terminals............  XX                 08/18/1983 (48FR37578)                           12/19/2003 (68FR70965)
Calciners and Dryers in Mineral      UUU                09/28/1992 (57FR44496)                           10/17/2000 3 4 (65FR61778)
 Industries.
Coal Prep Plants...................  Y                  01/15/1976 (41FR2234)                            10/08/2009 (74FR51977)
Electric Utility Steam Generating    Da                 06/11/1979 (44FR33581)                           01/28/2009 \4\ (74FR5078)
 Units \7\.
Ferroalloy Production Facilities...  Z                  05/04/1976 (41FR18501)                           10/17/2000 3 4 (65FR61758)
Flexible Vinyl/Urethane Coating and  FFF                06/29/1984 (49FR26885)                           10/17/2000 3 4 (65FR61768)
 Printing.
Fossil-Fuel Fired Steam Generators   D                  12/12/1971                                       01/28/2009 3 4 (74FR5078)
 \4\.
Glass Manufacturing................  CC                 10/07/1980 (45FR66742)                           10/17/2000 3 4 (65FR61759)
Grain Elevators....................  DD                 08/03/1978 (43FR34347)                           10/17/2000 3 4 (65FR61759)
Graphic Arts Industry/Publi-cation   QQ                 11/08/1982 (47FR50644)                           04/09/2004 \4\ (69FR18803)
 Rotogravure Printing.
Industrial, Commercial,              Db                 11/25/1986 (51FR42768)                           01/28/2009 \4\ (74FR5084)
 Institutional Steam Generating
 Units.
Kraft Pulp Mills...................  BB                 02/23/1978 (43FR7568)                            09/21/2006 \4\ (71FR55127)
Large Appliances Surface Coating...  SS                 10/27/1982 (47FR47778)                           10/17/2000 3 4 (65FR61761)
Lead Acid Batteries................  KK                 04/16/1982 (47FR16564)                           10/17/2000 3 4 (65FR61760)
Lime Manufacturing.................  HH                 03/07/1978                                       10/17/2000 3 4 (65FR61760)
Magnetic Tape Coating Facilities...  SSS                10/03/1988 (53FR38892)                           02/12/1999 (64FR7467)
Metal Coil Surface Coating.........  TT                 11/01/1982 (47FR49606)                           10/17/2000 3 4 (65FR61761)
Metal Furniture Surface Coating....  EE                 10/29/1982 (47FR49278)                           10/17/2000 3 4 (65FR61759)
Metallic Mineral Processing Plants.  LL                 02/21/1984 (49FR6458)                            10/17/2000 3 4 (65FR61760)
Municipal Solid Waste Landfills....  WWW                03/12/1996 (60FR9905)                            09/21/2006 (71FR55127)
New Residential Wood Heaters.......  AAA                08/02/1985 (50FR31504)                           10/17/2000 3 4 (65FR61764)
Nitric Acid Plants.................  G                  12/23/1971                                       02/14/1989 \4\ (54FR6666)
Nonmetallic Mineral Processing       OOO                08/01/1985 (50FR31328)                           04/28/2009 (74FR19309)
 Plants.
Onshore Natural Gas Processing       KKK                06/24/1985 (50FR26122)                           10/17/2000 3 4 (65FR61773)
 Plants--Equipment Leaks.
Onshore Natural Gas Processing: SO2  LLL                10/01/1985 (50FR40158)                           10/17/2000 3 4 (65FR61773)
 Emissions.
Petroleum Dry Cleaners.............  JJJ                09/21/1984 (49FR37331)                           10/17/2000 3 4 (65FR61773)
Petroleum Refineries...............  J                  03/08/1974 (39FR9308)                            06/24/2008 (73FR35865)
Petroleum Refineries...............  Ja                 06/24/2008 (73FR35867)                           12/22/2008 \4\ (73FR78552) (Stay)
Phosphate Fertilizers--Diammonium    V                  08/06/1975 (40FR33155)                           10/17/2000 3 4 (65FR61757)
 Phosphate Plants.
Phosphate Fertilizers--Granular      X                  08/06/1975 (40FR33156)                           10/17/2000 3 4 (65FR61757)
 Triple Superphosphate Storage
 Facilities.
Phosphate Fertilizers--              U                  08/06/1975 (40FR33155)                           10/17/2000 3 4 (65FR61757)
 Superphosphoric Acid Plants.
Phosphate Fertilizers--Triple        W                  08/06/1975 (40FR33156)                           10/17/2000 3 4 (65FR61757)
 Superphosphate Plants.
Phosphate Fertilizers--Wet-Process   T                  08/06/1975 (40FR33154)                           10/17/2000 3 4 (65FR61757)
 Phosphoric Acid Plants.
Phosphate Rock Plants..............  NN                 04/16/1982 (47FR16589)                           10/17/2000 3 4 (65FR61760)
Polymeric Coating of Supporting      VVV                09/11/1989 (54FR37551)                           ...............................................
 Substrates.
Polymers Manufacturing Industry....  DDD                12/11/1990 (55FR51035)                           12/14/2000 (65FR78278)
Portland Cement....................  F                  12/23/1971 (36FR24877)                           08/09/2010 (75FR54970)
Pressure Sensitive Tape and Label    RR                 10/18/1983 (48FR48375)                           10/17/2000 3 4 (65FR61761)
 Surface Coating Operations.
Primary Aluminum Reduction Plants..  S                  01/26/1976 (41FR3826)                            10/17/2000 3 4 (65FR61757)
Primary Copper Smelters............  P                  01/15/1976 (41FR2338)                            10/17/2000 3 4 (65FR61756)
Primary Lead Smelters..............  R                  01/15/1976 (41FR2340)                            02/14/1989 \4\ (54FR6668)
Primary Zinc Smelters..............  Q                  01/15/1976 (41FR2340)                            02/14/1989 \4\ (54FR6668)
Refineries: Equipment Leaks........  GGG                05/30/1984 (49FR22606)                           06/02/2008 \4\ (73FR31376)
Refineries: Wastewater.............  QQQ                11/23/1988 (53FR47623)                           10/17/2000 3 4 (65FR61778)
Rubber Tire Manufacturing..........  BBB                09/15/1987 (52FR34874)                           10/17/2000 3 4 (65FR61765)
Secondary Brass and Bronze           M                  03/08/1974 (39FR9318)                            10/17/2000 3 4 (65FR61756)
 Production Plants.
Secondary Lead Smelters............  L                  03/08/1974 (39FR9317)                            10/17/2000 3 4 (65FR61756)
Small Industrial, Commercial,        Dc                 09/12/1990 (55FR37674)                           01/28/2009 (74FR5091)
 Institutional Steam Generating
 Units.
SOCMI Air Ox Unit Processes........  III                06/29/1990 (55FR 26922)                          12/14/2000 (65FR78278)
SOCMI Distillation.................  NNN                06/29/1990 (55FR 26942)                          12/14/2000 (65FR78279)
SOCMI Equipment Leaks..............  VV                 01/18/1983 (48FR48335)                           06/02/2008 \4\ (73FR31375) (Stay)
SOCMI Reactor Processes............  RRR                08/31/1993 (58FR45962)                           12/14/2000 (65FR78279)
Stationary Combustion Turbines.....  KKKK               06/06/2006 (71FR38497)                           3/20/2009 \4\ (74FR11858)
Stationary Compression Ignition      IIII               7/11/2006 (71FR39172)                            06/08/2011 (75FR32612)
 Internal Combustion Engines.
Stationary Gas Turbines............  GG                 09/10/1979 (44FR 52798)                          02/24/2006 \4\ (71FR9458)
Stationary Spark Ignition Internal   JJJJ               01/18/2008 (73FR 3591)                           06/08/2011 (75FR32612)
 Combustion Engines.
Steel Plants: Electric Arc Furnaces  AA                 09/23/1975 (40FR43850)                           02/22/2005 (70FR8532)
Steel Plants: Electric Arc Furnaces  AAa                10/31/1984 (49FR43845)                           02/22/2005 (70FR8533)
 and Argon-Oxygen Decarburization
 Vessels.
Sulfuric Acid Plants...............  H                  12/23/1971 (36FR24877)                           02/14/1989 (54FR6666)

[[Page 65657]]

 
Surface Coating of Plastic Parts     TTT                01/29/1988 (53FR2676)                            10/17/2000 3 4 (65FR61778)
 for Business Machines.
Synthetic Fibers...................  HHH                04/05/1984 (49FR13651)                           10/17/2000 3 4 (65FR61768)
Volatile Organic Liquid Storage      Ka                 04/04/1980 (45FR23379)                           12/14/2000 (65FR78275)
 Vessels \8\.
Volatile Organic Liquid Storage      Kb                 04/08/1987 (52FR11429)                           10/15/2003 \4\ (68FR 59333)
 Vessels (incl. Petroleum Liquid
 Storage Vessels).
Wool Fiberglass Insulation           PPP                02/25/1985 (50FR7699)                            10/17/2000 3 4 (65FR61778)
 Manufacturing Plants.
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C. What is the purpose of this ANPRM?

    The purpose of this ANPRM is to request public comment on a 
strategy for focusing reviews of the NSPS so as to maximize the public 
health and welfare benefits while ensuring that the resources of 
stakeholders, state and local agencies, and the federal government are 
used most efficiently and effectively. As part of this strategy, we are 
proposing criteria that would be used to assess whether review of a 
particular NSPS is necessary during the review cycle. A listing of any 
NSPS for which we recommend not reviewing the standard based on these 
criteria (after considering comments to this ANPRM) will be published 
in the Federal Register for public comment. Subsequent to this ANPRM, 
all NSPS for which no review is warranted will be addressed with 
detailed technical information in a rulemaking proposal which will 
provide a further opportunity for public comment.
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    \3\ Table only includes NSPS promulgated under the authority of 
CAA Sec.  111(b) (1) (B), and does not include standards promulgated 
under the authority of CAA Sec.  129 or Sec.  111(d).
    \4\ ``Date of Most Recent Action'' refers to the most recently 
dated Federal Register action affecting the referenced Subpart as 
referenced in the electronic Code of Federal Regulations (http://www.gpoaccess.gov/cfr/).
    \5\ On October 17, 2000 (65FR61743), EPA made editorial and 
technical changes to test method and continuous emission modeling 
system (CEMS) performance specification requirements for Part 60 and 
other regulations. This included organizational changes and the 
promulgation of Performance Specification 15, for Fourier Transform 
Infrared (FTIR) CEMS.
    \6\ Action was only minor amendment and not a full review of the 
standard.
    \7\ Subpart D was superseded by subpart Da and, thus, will not 
be reviewed or revised as all subpart D units that modify or 
reconstruct would be subject to subpart Da.
    \8\ Subpart K was superseded by subpart Ka and, thus, will not 
be reviewed or revised as all subpart K units that modify or 
reconstruct would be subject to subpart Ka.
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    If, after review of the public comments, EPA determines there is 
sufficient evidence that a full review of a standard is warranted, EPA 
would withdraw its no review conclusion for that standard. Otherwise by 
having demonstrated the continued effectiveness of an NSPS, the agency 
will have fulfilled its statutory obligations under 111(b) with respect 
to the 8-year review requirement for that standard.
    In addition to fulfilling the mandate in CAA section 111(b)(1)(B), 
this process is also responsive to Executive Order 13563, ``Improving 
Regulation and Regulatory Review,'' issued on January 18, 2011, which 
directs each federal agency to ``periodically review its existing 
significant regulations to determine whether any such regulations 
should be modified, streamlined, expanded, or repealed so as to make 
the agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.'' The EPA's proposed approach will 
allow this process to be made more efficient, so that both public and 
private resources can be focused where it makes the most sense. This 
strategy will reduce the resource burden to the government and 
stakeholders by eliminating the need for costly and time consuming 
reviews of certain standards, which are not expected to result in any 
environmental benefits. By determining which NSPS are not in need of 
review, the agency can then focus its resources on the remaining NSPS 
that are in need of revision (or at least a closer review to determine 
if revision is needed). This ANPRM is seeking comment on this proposed 
process and on the appropriateness of the proposed criteria for making 
a finding that a current NSPS does not need review, and the application 
of those criteria in this evaluation of the NSPS program. Additionally, 
this ANPRM is seeking comment on pertinent factors for the 
prioritization of NSPS to be reviewed, and potentially revised.

III. Developing an NSPS Evaluation Strategy

A. What are the goals of an evaluation strategy for the NSPS program?

    The primary goal of the NSPS strategy is to assist the agency in 
fulfilling our statutory obligations in a streamlined process that 
ensures both public and private resources are focused on the rules that 
provide the greatest improvement in air quality, health and welfare 
benefits and are most likely to warrant review and revision to include 
current technology and eliminate obsolete or unnecessary requirements. 
At the same time, this focus on NSPS where greatest emission reductions 
can be achieved promotes better use of resources for industry, 
government agencies, environmental organizations, and all other 
stakeholders and participants in the regulatory review process. 
Additionally, in some instances, sources remain well controlled through 
other CAA programs, such as the national emission standards for 
hazardous air pollutants (NESHAP), that have provided similar, if not 
more stringent, regulations than what would be required through the 
revision of existing NSPS or implementation of new NSPS. We are also 
aware that, in some instances, an evaluation of NSPS may show the 
current requirements of the standard continue to meet the statutory 
requirements, and no review is required.
    To optimize the air quality, health and welfare benefits of the 
NSPS program, the EPA is proposing to prioritize NSPS reviews such that 
those NSPS likely to bring about greater benefits to public health and 
welfare through air quality improvements, including environmental 
justice considerations, are reviewed first. This prioritization is 
being done with consideration of multiple pollutants and processes, and 
synchronization of regulatory efforts as the primary driver, allowing 
the EPA to seek opportunities for increased air quality, health and 
welfare benefits, and greater administrative efficiency.

B. Which NSPS do not need review?

1. What is the EPA's authority in determining whether to review NSPS?
    As described previously, CAA section 111(b) (1) (B) requires the 
agency to review and, if appropriate, revise NSPS ``at least every 8 
years''. Section 111(b) (1) (B) also gives the EPA authority to 
determine that reviewing an NSPS ``is not appropriate in light of 
readily available information on the efficacy of

[[Page 65658]]

such standard.'' In most instances, the EPA has met the requirement of 
this section solely through formal review and revision (when deemed 
appropriate) of standards.
    We note that the majority of NSPS will be reviewed and considered 
for revision, as there are likely potential process improvements and 
technology advances that would alter the best system of emission 
reduction. In addition, a regular evaluation gives the EPA and the 
public the opportunity to consider whether requirements of a particular 
NSPS are outmoded or no longer necessary. However, there are some NSPS 
where currently available information indicates that there are no 
potential gains to public health and welfare from a review of the NSPS. 
When the continued efficacy of a standard is demonstrated, the agency 
believes that using its authority to not devote resources to a 
rulemaking in these cases should also be considered as an option. All 
NSPS, including those that we determined do not need review, will be 
subject to continual evaluation cycles, at least every 8 years. This 
ANPRM presents three independent criteria that the agency believes can 
be used to demonstrate that review of NSPS would not provide emission 
reductions and associated air quality, health and welfare benefits.
2. What are the criteria we believe are appropriate for determining the 
continued efficacy of NSPS?
    We have identified three criteria that we have determined are 
appropriate to determine that review of existing NSPS would not result 
in any health and welfare benefits, and, thus, should not be reviewed 
in the current review cycle. For this programmatic evaluation, we 
believe that in most cases NSPS that meet any one of these criteria do 
not need to be reviewed. However, several possible conditions exist 
where a review might be appropriate, even if one or more of the 
criteria described above are met. For instance, if there are emissions 
units not addressed by the existing NSPS, or if there has been 
stakeholder interest (e.g., environmental justice concerns) in updating 
an NSPS, then additional deliberation would be necessary before a 
decision not to review NSPS could be made.
    The first criterion focuses on the existence of updated or new 
control technology, which is used to inform a decision on the potential 
improvement in air quality or health and welfare benefits. We address 
the criterion with the following questions: Have there been advances in 
control technologies, process operations, design or efficiency 
improvements, or other factors that would lead to selection of a more 
stringent best system of emission reduction? Are there available 
controls for pollutants or emission sources that were previously 
uncontrolled? If available information on control technology indicates 
that review of the standard would not result in more stringent emission 
limits or no greater level of control, and would not provide 
improvements in air quality and health and welfare benefits, such 
standard would be listed as a potential candidate for no review.
    There are certain source categories for which the information 
available from national databases (e.g., the National Emissions 
Inventory), publicly available data, the EPA's interaction with 
stakeholders from industries, environmental organizations, state, 
local, and Tribal governments on other rulemakings provides a strong 
technical basis to assess the availability and economic feasibility of 
employing new control technologies, or design or efficiency 
improvements that could result in a revised best system of emission 
reduction determination. As an example, information developed under the 
CAA section 112 air toxics program provides a significant amount of 
information on control technologies and pollution control measures for 
stationary sources.
    We specifically request comment on this criterion and the level of 
certainty required in making a finding that no review is needed based 
upon an evaluation of readily available information that indicates no 
greater level of control would be expected at the conclusion of an 
evaluation under this criterion.
    The second criterion considers whether we anticipate any new, 
modified, or reconstructed sources within a source category, which 
would trigger applicability under the NSPS in question over the next 8 
years. The predicted growth rate of an industry is used as an indicator 
of satisfying this criterion to the extent that no new, modified, or 
reconstructed sources are anticipated over the next 8 years. It is 
possible to have a predicted negative growth rate, and still trigger 
NSPS applicability through modification or construction of new sources 
at a rate less than the closure rate of existing facilities. Some of 
the source categories covered by the NSPS represent very mature 
industries for which there is currently no growth, and this trend has 
existed for numerous years. For example, industries that rely on metal 
and mineral raw materials have tended to move out of the country to be 
closer to the sources of the raw materials. Copper mines in the U.S. 
have closed while new mines have opened in South America where there is 
greater access to raw materials. In other industries there have 
historically been multiple processes used to make some products, but 
cost, efficiency, and other forces have reduced the variety of 
processes in use. The result of these trends may be that NSPS address 
emission sources which are no longer in use, technology is outdated, 
and which likely will not be used in the future. Some other source 
categories include industries whose primary product has been superseded 
by a substitute product which serves the same purpose, but is produced 
using an entirely different process (e.g., optical storage media as a 
substitute for magnetic tape) and as a result there are no expected new 
facilities or modifications of existing facilities. If this criterion 
were met, the rule would remain in effect for the remainder of the 
review cycle in the event that sources no longer in operation were to 
begin operation again.
    The agency is requesting comment on the appropriateness of this 
second criterion. Specifically, we request comment on the level of 
certainty required in making a finding that no review is needed based 
on the expectation that no new sources are to be constructed, 
reconstructed or modified in the source category within the current 8 
year review cycle.
    The third criterion that may support a finding that review is not 
necessary is the existence of other regulatory programs that are 
applicable to the same pollutants (either directly or as surrogates) 
and emission sources as the NSPS, such that a revision of the NSPS 
would result in best system of emission reduction requirements that are 
no more stringent than another applicable CAA requirement. When 
evaluating a standard by this criterion, we will also ensure that no 
inconsistencies or conflicts exist with these other rules. The intent 
of this criterion is to avoid reviewing NSPS to adopt more stringent 
emission limitations that are already being achieved by another 
regulation, and, thus, providing no or limited actual additional health 
and welfare benefit while redirecting resources from revision of 
standards where there are potential significant emission decreases.
    For example, the air toxics program implemented under CAA section 
112(d) includes standards for major sources of toxic air pollutants 
based on Maximum Achievable Control Technology (MACT). Although the CAA 
section 112(d) program regulates air toxics, rules under the program 
sometimes

[[Page 65659]]

regulate the air toxics through the use of surrogates, such as criteria 
pollutants (PM and VOC). Section 112 establishes a minimum baseline or 
``MACT floor'' for standards, which, for existing sources in categories 
or subcategories with 30 or more sources, is based on the average 
emission limitation achieved by the best performing 12 percent of 
existing sources. For new sources, the standards for a source category 
or subcategory cannot be less stringent than the emission control that 
is achieved in practice by the best controlled similar sources, as 
determined by the Administrator (CAA section 112(d)(3)). The MACT 
floors form the least stringent regulatory option the EPA may consider 
in the determination of MACT standards under section 112(d) for a 
source category. The EPA must also determine whether to control 
emissions ``beyond-the-floor,'' after considering the costs, non-air 
quality health and environmental impacts, and energy requirements of 
such more stringent control (CAA section 112(d) (2)).
    MACT for new sources is the most stringent level of control 
identified under CAA section 112(d). Therefore, where the EPA regulated 
air toxics through regulation of criteria pollutants as surrogates for 
the toxic pollutant(s), it would be expected in most cases that the 
level of the MACT standard would reflect a level that would meet or 
exceed the best system of emission reduction when the same pollutants 
are covered. Therefore, where the MACT and NSPS have comparable 
applicability (e.g., covers the same emission sources and effectively 
controls the same pollutants), the MACT would in many cases accomplish 
emissions reductions that would be equivalent to or greater than those 
achieved by a revised NSPS. In such cases, even if new facilities are 
constructed, the MACT would serve to achieve the level of control that 
would otherwise be achieved through updating the NSPS through the 
review process. Under CAA section 112(d) (6), the MACT standards are 
also subject to technology reviews every 8 years.
    Another potential consideration for applying this criterion is the 
potential interaction with other CAA programs such as Best Available 
Control Technology (BACT) requirements for New Source Review (NSR). The 
CAA and corresponding implementing regulations require that a 
permitting authority conduct a BACT analysis on a case-by-case basis, 
and the permitting authority must evaluate the amount of emissions 
reductions that each available emissions-reducing technology or 
technique would achieve, as well as the energy, environmental, economic 
and other costs associated with each technology or technique. Based on 
this assessment, the permitting authority must establish a numeric 
emissions limitation that reflects the maximum degree of reduction 
achievable for each pollutant subject to BACT through the application 
of the selected technology or technique. BACT requirements must be at 
least as stringent as the best system of emission reduction set by the 
NSPS.
    The agency is requesting comment on the appropriateness of this 
third criterion. Although we are taking the position that this 
criterion is sufficient to make a finding that no review is needed, we 
solicit comment on whether interaction with other CAA requirements 
would make source categories meeting this criterion more appropriate 
for a streamlined review that incorporates the level of control 
achieved by the MACT into the NSPS, rather than a no review 
determination. We also solicit comment on how interaction with the 
CAA's NSR programs (including the BACT, offset and netting regulations) 
should be accounted for in developing and implementing this criterion.
    In addition to the three detailed criteria, several possible 
conditions exist where a review might be appropriate, even if one or 
more of the criteria described above are met. For instance, if there 
are emissions units not addressed by the existing NSPS, or if there has 
been stakeholder interest (e.g., environmental justice concerns) in 
updating an NSPS, then additional deliberation would be necessary 
before a decision not to review NSPS could be made. In addition, if 
there are pollutants that are not currently regulated by an NSPS, but 
which the agency believes should be, we would likely take the 
opportunity to review the existing standards to see if they should be 
updated at the same time. If the NSPS is outdated, or could be made 
less burdensome without lessening the public health protection it 
provides, or conflicts with another applicable requirement, review 
might well be appropriate. These conditions have been considered in 
addition to a standard's ability to meet one or more of the three 
criteria as the agency developed the NSPS evaluation. In instances 
where one of the above conditions indicated the need for further 
consideration, those NSPS would be recommended to undergo a traditional 
review, with subsequent potential revision.
    In addition to taking comment on the general approach described in 
this ANPRM, we also request comment on the following: (1) Are the three 
criteria appropriate for determining whether NSPS should be reviewed, 
(2) are there additional criteria that should be used to make a finding 
that NSPS remains efficacious and, therefore, review of the standard is 
not needed, and (3) are there different criteria that should be used. 
In judging the appropriateness of criteria, commenters should also 
consider Executive Order 13563, which calls for periodic review of 
regulations ``to make the agency's regulatory program more effective or 
less burdensome in achieving the regulatory objectives.''
3. How many NSPS are potentially not in need of review?
    Of the NSPS requiring periodic review, the majority of NSPS would 
be subject to review and potential revision, and would not meet the 
criteria for establishing no review as defined in this document. 
However, using the criteria outlined in this ANPRM, the agency has 
identified a limited number of NSPS as potential candidates to not 
undergo review. These NSPS are listed in Table 2 along with the 
applicable criteria.

        Table 2--NSPS Potentially Meeting Criteria To Not Be Reviewed Based on CAA 111(b)(1)(B) Authority
----------------------------------------------------------------------------------------------------------------
                                                                            No review criteria
                                                        --------------------------------------------------------
                                                                               No expected
                                                          Level of control   applicability of   Equivalent/more
           Subpart                       NSPS                in current       NSPS (No new/        stringent
                                                          standard remains      modified/       requirements in
                                                            appropriate       reconstructed    other CAA actions
                                                                                 sources)
----------------------------------------------------------------------------------------------------------------
P............................  Primary Copper Smelters.                 X                  X                  X
Q............................  Primary Zinc Smelters...                 X                  X                  X
T............................  Phosphate Fertilizers--   .................  .................                 X
                                Wet-Process Phosphoric
                                Acid Plants.

[[Page 65660]]

 
U............................  Phosphate Fertilizers--   .................  .................                 X
                                Super Phosphoric Acid
                                Plants.
V............................  Phosphate Fertilizers--   .................  .................                 X
                                Diammonium Phosphate
                                Plants.
W............................  Phosphate Fertilizers--   .................                 X                  X
                                Triple Superphosphate
                                Plants.
X............................  Phosphate Fertilizers--   .................                 X                  X
                                Granular Triple
                                Superphosphate Storage
                                Facilities.
EE...........................  Metal Furniture Surface   .................                 X   .................
                                Coating.
MM...........................  Auto/Light Duty Truck     .................  .................                 X
                                Surface Coating.
NN...........................  Phosphate Rock Plants...                 X                  X   .................
QQ...........................  Graphic Arts Industry/    .................  .................                 X
                                Publication Rotogravure
                                Printing.
BBB..........................  Rubber Tire               .................  .................                 X
                                Manufacturing.
HHH..........................  Synthetic Fibers........                 X   .................  .................
SSS..........................  Magnetic Tape Coating     .................                 X   .................
                                Facilities.
----------------------------------------------------------------------------------------------------------------

    We are requesting comment on the list of NSPS provided in Table 2 
as potentially not in need of review. Specifically, we are soliciting 
comment on the appropriateness of NSPS not undergoing review based on 
the criteria indicated in Table 2. We are also soliciting comment on 
any additional NSPS that should be considered as potentially not in 
need of review based on the criteria provided in this document. For 
example, the following three NSPS may meet the third criterion that 
revision of the NSPS would result in best system of emission reduction 
requirements that are no more stringent than another applicable CAA 
requirement (i.e., NESHAP). However, a more detailed assessment would 
be necessary to ensure that the emission points covered by the other 
regulatory programs are comparable to those covered by the NSPS:

 Large Appliances Surface Coating, Subpart SS
 Flexible Vinyl/Urethane Coating and Printing, Subpart FFF
 Surface Coating of Plastic Parts for Business Machines, 
Subpart TTT

    EPA is soliciting comments as to the extent to which the NESHAP 
sufficiently covers the above NSPS categories.
4. What are examples of how the no review criteria would be applied to 
NSPS categories?
    Evaluation of NSPS categories for which no review is recommended 
may be influenced by comments received regarding the criteria as 
discussed in this document. However, we present as examples three NSPS 
categories that meet one or more of the criteria for which we believe, 
based on a preliminary evaluation, review of the standards is not 
necessary. These three categories are described below, along with a 
brief description of the reasons for their selection. A more detailed 
description of these three examples, including the rationale for 
recommending no review, is provided in the TSD. All NSPS for which no 
review is recommended, including the three examples presented in this 
ANPRM, will be presented, with detailed technical supporting 
documentation, in a proposal following this ANPRM and will have further 
and full opportunity for public comment.
a. Primary Zinc Smelters NSPS Example
    Primary Zinc Smelters is a source category for which currently 
available information indicates that there is no need at this time for 
review of the NSPS (40 CFR 60 subpart Q). Following an evaluation of 
the currently available technologies (i.e., double-absorption on 
sulfuric acid plant), we believe that a revised standard would not 
result in a more stringent level of control because no new control 
technologies, or design or efficiency improvements exist that would 
result in more stringent requirements.\9\ We do not find the current 
requirements of the rule to be outmoded or unnecessarily burdensome. We 
also do not expect any applicability of the standard over the next 8 
years as no new, modified, or reconstructed facilities subject to the 
NSPS are expected, due to changes in the types of processes typically 
used (i.e., there have been no new facilities since 1974, and only one 
facility remains in operation). Furthermore, this category meets the 
criterion presented in this document that another CAA requirement would 
apply to any new, modified, or reconstructed facility with provisions 
that are effectively as stringent as what would likely be considered 
the best system of emission reduction under NSPS review. Specifically, 
in complying with the NESHAP (40 CFR part 63, subpart GGGGGG), the 
source must use control technologies that provide equal or more 
stringent SO2, PM, and opacity requirements than would 
result from revisions to the NSPS for both roaster and sinter 
processes. The agency believes that the Primary Zinc Smelters NSPS 
(subpart Q) meets all three of the criteria to not review a standard as 
described in this document. Therefore, the current standard would 
remain in effect until the next review cycle.
---------------------------------------------------------------------------

    \9\ The criterion that no new control technology exists that 
would result in more stringent requirements can be met when there is 
no new technology in existence at all or when there is no new 
technology that provides more effective controls. In the case of 
Primary Zinc smelters both conditions are met.
---------------------------------------------------------------------------

b. Magnetic Tape Production Operations NSPS Example
    The second example of an NSPS category for which currently 
available information indicates that there is no need at this time for 
review of the NSPS is Magnetic Tape Production Operations (40 CFR 60 
subpart SSS), consisting of coating and mixing operations at affected 
facilities. The agency concluded this because this industry has been in 
continual decline for over 20 years. As a result, there is no growth 
anticipated in the industry over the next 8 years, and there are no 
anticipated new sources, reconstructions, or modifications that would 
trigger NSPS

[[Page 65661]]

applicability. Consumer preferences and technology have changed such 
that the primary product of this industry has been superseded by a 
substitute product(s) which serves the same purpose, but is produced 
using an entirely different process (i.e., optical storage media). On 
this basis, we believe that there would be no emission reductions and 
associated air quality and health and welfare benefits in reviewing the 
best system of emission reduction for the magnetic tape production 
operations NSPS category. The new process for manufacturing optical 
storage media (e.g., compact disks) is assessed under the NESHAP for 
Surface Coating of Plastic Parts and Products (40 CFR part 63 subpart 
PPPP). Therefore, the current rule would remain in effect for the 
remainder of the review cycle. In subsequent NSPS reviews, the EPA 
would consider whether rescinding the rule permanently is an 
appropriate action in accordance with E.O. 13563.
c. Graphic Arts Industry/Publication Rotogravure Printing NSPS Example
    The third example of an NSPS category for which currently available 
information indicates that there is no need at this time for review of 
the applicable NSPS is Graphic Arts Industry/Publication Rotogravure 
Printing (40 CFR part 60 subpart QQ). In accordance with criterion 3, 
the NESHAP (40 CFR subpart KK) for Printing and Publishing is 
significantly more stringent than the NSPS under subpart QQ. The NESHAP 
recently went through the EPA's Risk and Technology Review (RTR) 
process and no additional technology standards were adopted pursuant to 
CAA section 112(d)(6). Only two new facilities have been built in the 
past 15 years since the NESHAP was promulgated in 1996. Both of these 
facilities placed their presses in permanent total enclosures using 
carbon absorbers to achieve very efficient solvent recovery. As part of 
the EPA's RTR, it was determined that no new advancements in practices, 
processes or control technologies beyond those in place at the two new 
facilities were identified. The BACT level control at the two new 
facilities is representative of current industry practice and is state 
of the art technology, and a revised best system of emission reduction 
for the solvent recovery practice listed in the NSPS would not be more 
stringent. Under criterion 2, there has been almost no growth in the 
industry in the past decade. The number of publication rotogravure 
printing facilities has declined from 27 to under 20 in the last 10 
years. Only two facilities have been built in the last 15 years. No new 
facilities are anticipated during the next 8 year review cycle. 
Therefore, we do not expect applicability of the NSPS in the 
foreseeable future. Therefore, we believe no additional emission 
reductions would be achieved from a revision to the current standard. 
Thus the agency believes that the Publication Rotogravure Printing NSPS 
(subpart QQ) meets the criteria to not review as described in this 
document.
    Detailed evaluations of the Primary Zinc Smelters source category, 
the Magnetic Tape Production Operations source category, and the 
Graphic Arts Industry/Publication Rotogravure Printing source category 
can be found in the TSD. Following comment on this ANPRM, more detailed 
analyses will be completed for other NSPS that meet one or more of the 
criteria listed in this document. The EPA is seeking comment on the 
appropriateness of the application of the proposed criteria as shown in 
these three examples. We are also seeking comment on any additional 
independent criteria that could be used in making a determination to 
not review NSPS.

C. NSPS Potentially in Need of Review

    After identifying those NSPS that do not currently need review, the 
focus of the NSPS strategy will be on reviewing, and potentially 
revising, those remaining standards as required by the statute. This 
will be done through prioritization of NSPS based on multi-pollutant 
and sector-based \10\ approaches. The benefits of multi-pollutant and 
sector-based analyses and approaches include the ability to identify 
optimal strategies that consider feasibility, costs, and benefits 
across multiple pollutant types--criteria, toxics, and others.
---------------------------------------------------------------------------

    \10\ A sector-based approach is based on integrated assessments 
that consider multiple pollutants in a comprehensive and coordinated 
manner to manage emissions and CAA requirements. (National Emission 
Standards for Hazardous Air Pollutants from the Portland Cement 
Manufacturing Industry and Standards of Performance for Portland 
Cement Plants; August, 2010.)
---------------------------------------------------------------------------

    We intend to prioritize NSPS in need of a review based on a number 
of different criteria. Possible prioritization criteria would include 
the types and magnitude of emissions, population exposure, trends in 
industry growth, advances in control measures and technologies, level 
and accuracy of monitoring required by the existing standards, expected 
NSPS applicability, ability to synchronize NSPS review with other CAA 
requirements (e.g., RTR under CAA sections 112(f) and 112(d) (6)), and 
availability of relevant information.

IV. Request for Comment and Next Steps

    As described throughout this ANPRM, the EPA is soliciting comments 
to develop an evaluation plan for the NSPS program. We also encourage 
readers to submit other comments and supporting data that could help us 
further improve NSPS review strategies. To ensure a well balanced 
response and develop the best possible product, we encourage the 
submittal of both comments offering suggestions and changes and those 
supporting the strategies included in this ANPRM.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this is a ``significant 
regulatory action'' because we expected this action to raise novel 
legal or policy issues. Accordingly, the EPA submitted this action to 
the Office of Management and Budget (OMB) for review under Executive 
Order 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes 
made in response to OMB recommendations will be documented in the 
docket for this action. Because this action does not propose or impose 
any requirements, and instead seeks comments and suggestions for the 
agency to consider in possibly developing a subsequent proposed rule, 
the various statutes and Executive Orders that normally apply to 
rulemakings do not apply in this case. Should the EPA subsequently 
determine to pursue a rulemaking, the EPA will address the statutes and 
Executive Orders as applicable to that rulemaking.

List of Subjects in 40 CFR Part 60

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: October 18, 2011.
Gina McCarthy,
Assistant Administrator for Air and Radiation.
[FR Doc. 2011-27441 Filed 10-21-11; 8:45 am]
BILLING CODE 6560-50-P


