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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; stay for permit applications.

SUMMARY:

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 that EPA is reconsidering is a requirement that certain affected sources obtain a permit. EPA is staying until March 14, 2011, the requirement for certain affected sources to comply with the title V permit program. Because we believe the reconsideration process may not be completed within 90 days, we are also proposing in a separate notice to stay the provision requiring certain sources to obtain a permit after the final reconsideration rule is published in the Federal Register.

DATES:

Effective December 14, 2010, 40 CFR 63.11494(e) of subpart VVVVVV is stayed until March 14, 2011.

FOR FURTHER INFORMATION CONTACT:

Mr. Randy McDonald, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number: (919) 541-5402; fax number: (919) 541-0246; e-mail address: mcdonald.randy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The EPA published final National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources on October 29, 2009. 40 CFR part 63, subpart VVVVVV (74 FR 56008). Included in the final rule was a new provision requiring any major source that had installed a control device on a chemical manufacturing process unit after November 15, 1990, and, as a result, became an area source under CFR 40 part 63, obtain a title V permit under 40 CFR part 70 or 40 CFR part 71. 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, “under one interpretation of EPA's [40 CFR part 70 and 40 CFR part 71] regulations, existing sources must file title V permit applications: 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. As explained below, EPA believes that it is appropriate to stay the effectiveness of the requirement in 40 CFR 63.11494(e) for certain sources to obtain a title V permit during the pendency of the reconsideration process.

Pursuant to Clean Air Act (CAA) section 307(d)(7)(B), EPA is staying for 90 days 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.” This provision was first introduced in the final rule and represented a significant change from the proposal. Facilities had no chance to comment on this new requirement in the final rule. We are staying this provision because both the affected universe of sources and the substantive requirement could change as a result of this reconsideration process. Specifically, we will be reconsidering whether the affected sources noted above should be subject to title V, or whether they should be exempt from title V requirements. Because we cannot pre-judge the outcome of the reconsideration process, we think 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.

EPA believes that it may not be able to complete the reconsideration process within the 3-month stay period authorized in CAA section 307(d)(7)(B). For this reason, we are also proposing in a separate notice to stay the provision requiring certain sources 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.

II. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), 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 (Public Law 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). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). 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. The stay of these particular provisions in 40 CFR subpart VVVVVV is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

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

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 December 14, 2010 until March 14, 2011.