National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is issuing this final rule to stay the requirement for certain affected sources to comply with the title V permit program during the pendency of the reconsideration process. On June 15, 2010, EPA notified Petitioners that the Agency intended to initiate the reconsideration process in response to their request for reconsideration of certain provisions in the National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources. Among the provisions EPA is reconsidering is a requirement that certain affected sources obtain a permit.

On December 14, 2010, EPA issued a 90-day stay of the requirement for certain affected sources to comply with the title V permit program. Because we believed that the reconsideration process would not be completed within 90 days, we concurrently proposed to stay the provision requiring certain sources to obtain a permit until the final reconsideration rule is published in the Federal Register. After considering the comments received, EPA is promulgating the stay of compliance through this final rule.

DATES:

This final rule is effective on March 14, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2008-0334. 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, e.g., 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 EPA Docket Center, Public Reading Room, 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.

FOR FURTHER INFORMATION CONTACT:

Mr. Nick Parsons, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Refining and Chemicals Group (E143-01), Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-5372; fax number: (919) 541-0246; e-mail address: parsons.nick@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The EPA published final National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources (CMAS) on October 29, 2009. 40 CFR part 63, subpart VVVVVV (74 FR 56008). Included in the final rule was a new provision that stated “[a]ny source that was a major source and installed a control device on a CMPU after November 15, 1990, and, as a result, became an area source under 40 CFR part 63 is required to obtain a permit under 40 CFR part 70 or 40 CFR part 71.” See 40 CFR 63.11494(e).

On February 12, 2010, the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates (collectively referred to as “Petitioners”) sought reconsideration of six provisions in the final rule, including the provision requiring certain sources to obtain a title V permit. On June 15, 2010, EPA notified Petitioners that the Agency intended to initiate the reconsideration process. EPA also separately notified Petitioners that the provision requiring certain sources to obtain a title V permit was among the provisions for which EPA would grant reconsideration.

By letter dated October 28, 2010, Petitioners requested a stay of the requirement to comply with the title V permit program, specifically the requirement to submit a title V permit application, pending completion of the reconsideration process. Petitioners stated in their letter that they were requesting the stay because EPA has yet to initiate the reconsideration process, and, “under one interpretation of EPA's [40 CFR part 70 and 40 CFR part 71] regulations, existing sources must file Title V permit applications [by] October 29, 2010.” Petitioners maintained that it would be unreasonable and inequitable to require facilities to prepare and submit title V applications at the same time that EPA is reconsidering the requirement to obtain a title V permit.

On December 14, 2010, we issued a 90-day stay of the requirement for certain sources to obtain a title V permit, and we concurrently proposed extending the stay beyond the 90-day period until the reconsideration process is completed (75 FR 77760 and 75 FR 77799). As explained in the proposal notice, we proposed the stay because facilities had no chance to comment on this new requirement in the final rule, and because we are reconsidering the title V permitting requirement. Furthermore, because we cannot pre-judge the outcome of the reconsideration process, we stated that a limited stay during the duration of the administrative reconsideration process is appropriate so that sources are not incurring the cost associated with applying for a title V permit in advance of our final decision on the issue.

II. What action is EPA taking?

We are issuing a stay of the provision in 40 CFR 63.11494(e) that requires “[a]ny source that was a major source and installed a control device on a CMPU after November 15, 1990, and, as a result, became an area source under 40 CFR part 63 is required to obtain a permit under 40 CFR part 70 or 40 CFR part 71” until the final reconsideration rule is published in the Federal Register.

III. What are the major comments and responses to those comments?

We received five comments in support of the proposed stay. In addition, four of the commenters also provided comments objecting to EPA finalizing the title V permit requirement as part of our reconsideration. Because we received no adverse comment on the proposed stay of the title V permitting requirement, we are taking final action to extend the stay until the final reconsideration rule is published in the Federal Register. This action deals only with the stay. We will discuss and request comment on the title V permitting issue in the forthcoming reconsideration notice.

IV. What are the changes since proposal?

No changes have been made to the proposed stay (75 FR 77799). Thus, the final rule is identical to the proposed rule.

V. What are the impacts of the final rule?

The stay will not change the estimated environmental and cost impacts of the rule because it does not apply to the control requirements in the rule. However, the burden associated with conducting activities related to preparing permit applications will, at a minimum, be delayed for the duration of the stay.

VI. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), and Executive Order 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action,” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with State officials, as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues, as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Pursuant to the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any new requirements on small entities. This action also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the October 29, 2009, Federal Register document.

B. Submission to Congress and the Comptroller General

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 notice and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. The stay of these particular provisions in 40 CFR part 63, subpart VVVVVV is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective March 14, 2011.

List of Subjects in 40 CFR Part 63

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Reporting and recordkeeping requirements

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

PART 63—[AMENDED]

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

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

2. In § 63.11494, paragraph (e) is stayed from March 14, 2011, until further notice.