National Emission Standards for Aerospace Manufacturing and Rework Facilities

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; amendments.

SUMMARY:

On September 1, 1995, we promulgated the National Emission Standards for Aerospace Manufacturing and Rework Facilities. On January 24, 2000, we proposed to amend the standards to include a separate emission limit for exterior primers used for large commercial aircraft at existing facilities that produce fully assembled, large commercial aircraft. This action finalizes those proposed amendments.

In addition, we are making a minor correction to the monitoring requirements section of the aerospace emission standards. The amendment helps correct regulatory language that erroneously made reference to a list of requirements for initial compliance demonstrations when using incinerators and carbon adsorbers.

EFFECTIVE DATE:

December 8, 2000.

ADDRESSES:

Docket No. A-92-20 contains supporting information used in developing the standards. The docket is located at the U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460 in room M-1500, Waterside Mall (ground floor), and may be inspected from 8:30 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Mr. Jaime Pagán, Policy, Planning, and Standards Group, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5340, facsimile (919) 541-0942, electronic mail address pagan.jaime@epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Categories and entities potentially affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Technical Support Document

A summary of the public comments received on the proposed amendments and our response to those comments is included in a memorandum in the docket for this rule (Docket No. A-92-20). The title of the memorandum is “Summary of Comments and Responses for the Proposed Amendments to the Aerospace Manufacturing and Rework Facilities NESHAP.”

Judicial Review

Under section 307(b) of the Clean Air Act (CAA), judicial review of these final amendments is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 6, 2001. Under section 307(d)(7)(B) of the CAA, only an objection to these amendments which was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by today's final action may not be challenged separately in any civil or criminal proceeding we bring to enforce these requirements.

I. What Is the Background for the Amendments?

On September 1, 1995 (60 FR 45948), we promulgated the National Emission Standards for Aerospace Manufacturing and Rework Facilities (40 CFR part 63, subpart GG) under section 112(d) of the CAA. The rule includes standards to control organic hazardous air pollutants (HAP) and volatile organic compounds (VOC) emissions from primers with an organic HAP and VOC content level of 350 grams per liter (g/L) (2.9 pounds per gallon (lb/gal)) or less (§ 63.745(c)(1) and (2)). These limits applied where no add-on control systems were used. Alternatively, an affected source could use a control system to reduce the organic HAP and VOC emissions to the atmosphere by 81 percent or greater (§ 63.745(d)).

On January 24, 2000, we proposed to amend the promulgated emission limits contained in § 63.745(c)(1) and (2) for primer operations with no add-on control systems by proposing a separate emission limit of 650 g/L (5.4 lb/gal) or less of organic HAP and VOC for exterior primers, as applied to large commercial aircraft components (parts or assemblies) or fully assembled, large commercial aircraft at existing affected sources that produce fully assembled, large commercial aircraft (65 FR 3642). Our basis for the proposed amendments was data submitted to us by a manufacturer of large commercial aircraft and a reevaluation of the original data used to establish the MACT floor for primer application operations (e.g., the primer containing 1,1,1-trichloroethane (TCA) that was evaluated and included in the floor determination is no longer available).

Today's action finalizes those amendments based on comments received on the proposed amendments and our response to those comments. Five comment letters were received on the proposed amendments. Two of the comment letters were supportive of the proposal and the decisions we made with respect to the applicability, definitions and the revised HAP and VOC content limits. One commenter submitted information on the potential use of a chemical in coating formulations to meet organic HAP and VOC content limits. Another commenter disagreed with our proposal by stating that there is add-on control technology available to help reduce emissions to the currently required levels. Finally, one commenter expressed the opinion that the proposal should apply to both original equipment manufacturers and rework facilities, and that a definition of large commercial aircraft components should be added to the standards.

We carefully considered each of the public comments and concluded that no changes to the proposed amendments were warranted. A complete summary of the public comments received on the proposed amendments and our responses to those comments is included in a memorandum in the docket (Docket No A-92-20). Our responses to the public comments are briefly summarized here. First, with regard to new coating formulations, we appreciate the information and encourage the development of new coatings, but the coatings described by the first commenter are still in the testing and development stages for aerospace applications. With regard to the information on add-on controls provided by the second commenter, we did not change our decisions about the basis for the standards; but the standards do still provide for the option to use add-on controls to meet the emission limitations. Likewise, we were not persuaded based on information from the third commenter that the amendments should be extended to rework operations, especially given supportive comments from a company with similar operations. Lastly, we considered adding a definition of “large commercial aircraft components”. The term “large commercial aircraft” was already defined in the proposal, but we were unable to create a definition of “aircraft components” that is all inclusive and that would not be subject to change in the future. Further, we believe that the definition of exterior primer included in the amendments provides a clear explanation of where the primer is to be applied.

In addition to the amendments described above, we are making a minor correction to the monitoring requirements section of the aerospace emission standards. This revision helps correct regulatory language that erroneously made reference to a list of requirements for initial compliance demonstrations when using incinerators and carbon adsorbers. In § 63.751, requirements for initial compliance demonstrations are listed in paragraphs (b)(1) through (12). The introductory language of paragraph (b) indicates that the requirements in paragraphs (b)(1) through (7) apply when using carbon adsorbers. Then, the introductory language in paragraph (b) incorrectly indicates that paragraphs (b)(9) through (12) apply when using incinerators. The revision that we are making in this action clarifies the paragraph to correctly state that paragraphs (b)(8) through (12) apply when using incinerators.

Although the revision to § 63.751 described above was not part of the proposal in 65 FR 3642, section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for finalizing this revision without prior proposal and opportunity for comment because the change corrects an inadvertent mistake in an introductory paragraph referencing a list of requirements for initial compliance demonstrations. Thus, notice and public procedure are unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

II. What Are the Impacts Associated With These Amendments?

This action will not significantly affect the estimated emissions reductions or the control costs for the standards promulgated for aerospace manufacturing and rework facilities. Only one company has been identified as being affected by the proposed amendments. These amendments address significant technical concerns regarding this aircraft manufacturer's ability to achieve the promulgated 350 g/L (2.9 lb/gal) HAP and VOC content limit requirements when using exterior primers.

Finally, the amendment that we are making to the monitoring requirements section of the aerospace emission standards is a minor correction needed to revise an inadvertent mistake in the regulatory language of the original regulation. As such, there are no impacts associated with this correction.

III. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866, (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that OMB determines is likely to result in a rule that may:

(1) Have an annual effect of the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” because none of the listed criteria apply to this action. Consequently, this action was not submitted to OMB for review under Executive Order 12866.

B. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

If the EPA complies by consulting, Executive Order 13132 requires the EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of the EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when the EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, the EPA must include a certification from the Agency's Federalism Official stating that the EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

These amendments 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. Thus, the requirements of section 6 of the Executive Order do not apply to these amendments.

C. Executive Order 13084, Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance cost incurred by the Tribal governments, or if the EPA consults with those governments. If the EPA complies by consulting, the EPA is required to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of the EPA's prior consultation with representatives of affected Tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, the EPA is required to develop an effective process permitting elected officials and other representatives of Indian Tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

These amendments do not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this action.

D. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045 applies to any rule that (1) OMB determines is “economically significant,” as defined under Executive Order 12866, and (2) the EPA determines the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental, health, or safety aspects of the rule on children and explain why the rule is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These amendments are not subject to Executive Order 13045 because they are based on technology performance and not on health or safety risks. Furthermore, these amendments have been determined not to be “economically significant” as defined under Executive Order 12866.

E. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that these amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. There is no cost associated with these amendments. Thus, today's amendments are not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the EPA has determined that these amendments do not contain regulatory requirements that might significantly or uniquely affect small governments because they do not contain requirements that apply to such governments or impose obligations upon them. Therefore, today's amendments are not subject to the requirements of section 203 of the UMRA.

Because these amendments do not include a Federal mandate and are estimated to result in expenditures less than $100 million in any 1 year by State, local, and tribal governments, the EPA has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. In addition, because small governments would not be significantly or uniquely affected by these amendments, the EPA is not required to develop a plan with regard to small governments. Therefore, the requirements of the UMRA do not apply to this action.

F. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA 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 amendments to the final rule on small entities, small entity is defined as: (1) A small business that has fewer than 1,500 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed amendments on small entities, it has been determined that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. It affects only manufacturers of large commercial aircraft. There are no small-entity manufacturers of large commercial aircraft.

G. Paperwork Reduction Act

These proposed amendments would not impose any new information collection requirements that would result in changes to the currently approved collection. The OMB approved the information collection requirements contained in the Aerospace Manufacturing and Rework Facilities NESHAP under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB Control Number 2060-0314.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

H. 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 all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test method, sampling and analytical procedures, business practices, etc.) that are developed or adopted by one or more voluntary consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), and the Society of Automotive Engineers (SAE). The NTTAA requires Federal agencies like EPA to provide Congress, through OMB, with explanations when an agency decides not to use available and applicable voluntary consensus standards.

These amendments do not require the use of any new technical standards, therefore section 12(d) does not apply.

I. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the SBREFA 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 corrections amendments, to each House of the Congress and to the Comptroller General of the United States. Therefore, we will submit a report containing these amendments 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 in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action does not constitute a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects for 40 CFR Part 63

• Environmental protection
• Air pollution control
• Hazardous substances
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, part 63, 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.

Subpart GG—National Emission Standards for Aerospace Manufacturing and Rework Facilities

2. Section 63.742 is amended by adding in alphabetical order definitions for “Exterior primer” and “Large commercial aircraft” to read as follows:

3. Section 63.745 is amended by revising paragraphs (c)(1) and (2) to read as follows:

4. Section 63.751 is amended by revising paragraph (b) introductory text to read as follows: