[Federal Register: May 30, 2003 (Volume 68, Number 104)]
[Rules and Regulations]
[Page 32585-32603]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my03-26]
[[Page 32585]]
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Part II
Environmental Protection Agency
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40 CFR Part 63
National Emission Standards for Hazardous Air Pollutants for Source
Categories: General Provisions; and Requirements for Control Technology
Determinations for Major Sources in Accordance With Clean Air Act
Sections, Sections 112(g) and 112(j); Final Rule
[[Page 32586]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL -7498-8]
RIN 2060-AK52
National Emission Standards for Hazardous Air Pollutants for
Source Categories: General Provisions; and Requirements for Control
Technology Determinations for Major Sources in Accordance With Clean
Air Act Sections, Sections 112(g) and 112(j)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: In this action, we are adopting final amendments to the
General Provisions for national emission standards for hazardous air
pollutants (NESHAP) and to the rule which establishes criteria and
procedures for equivalent emission limitations adopted pursuant to
Clean Air Act (CAA) section 112(j). These final rule amendments
establish a new timetable for the submission of section 112(j) Part 2
applications, which is based on the timetable we have agreed to follow
for promulgation of the remaining NESHAP, and modify the content
requirements for Part 2 applications. These final rule amendments also
establish revised procedures for requests for applicability
determination previously submitted under the section 112(j) rule, and
for section 112(j) applications submitted by sources that previously
obtained a case-by-case determination under CAA section 112(g). These
final rule amendments also adopt various amendments to the NESHAP
General Provisions governing startup, shutdown, and malfunction (SSM)
plans, some of which were proposed by EPA pursuant to a settlement
agreement in a judicial action concerning the prior amendments
published on April 5, 2002.
EFFECTIVE DATE: May 30, 2003.
ADDRESSES: Docket No. OAR-2002-0038 (formerly A-2002-21) is located at
the EPA Docket Center, EPA West, U.S. EPA (6102T), 1301 Constitution
Avenue, NW., Room B-102, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: For information concerning
applicability and rule determinations, contact your State or local
permitting agency representative or the appropriate EPA Regional Office
representative. For further information concerning the development of
these rule amendments, contact Mr. Rick Colyer, U.S. EPA, Office of Air
Quality Planning and Standards, Minerals and Inorganic Chemicals Group,
C504-05, Research Triangle Park, North Carolina 27711, telephone number
(919) 541-5262, e-mail colyer.rick@epa.gov.
SUPPLEMENTARY INFORMATION: Docket. We have established an official
public docket for this action under Docket ID No. OAR-2002-0038. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information or other information whose disclosure is restricted by
statute. The official public docket is the collection of materials that
is available for public viewing at the Office of Air and Radiation
Docket and Information Center (Air Docket) in the EPA Docket Center,
(EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW.,
Washington, DC 20460. The EPA Docket Center 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 Reading Room is (202) 566-1744,
and the telephone number for the Air Docket is (202) 566-1742.
Electronic Docket Access. You may access the final rule
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility in the above paragraph
entitled ``Docket.'' Once in the system, select ``search,'' then key in
the appropriate docket identification number.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's promulgated rule amendments will also be
available on the WWW through the Technology Transfer Network (TTN).
Following the Administrator's signature, a copy of the rule amendments
will be posted on the TTN's policy and guidance page for newly proposed
or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg.
The TTN provides information and technology exchange in various
areas of air pollution control. If more information regarding the TTN
is needed, call the TTN HELP line at (919) 541-5384.
Regulated Entities. Categories and entities potentially regulated
by this action include all section 112 source categories listed under
section 112(c) of the CAA.
Industry Group: Source Category
Fuel Combustion
Combustion Turbines
Engine Test Facilities
Industrial Boilers
Institutional/Commercial Boilers
Process Heaters
Reciprocating Internal Combustion Engines
Rocket Testing Facilities
Non-Ferrous Metals Processing
Primary Aluminum Production
Primary Copper Smelting
Primary Lead Smelting
Primary Magnesium Refining
Secondary Aluminum Production
Secondary Lead Smelting
Ferrous Metals Processing
Coke By-Product Plants
Coke Ovens: Charging, Top Side, and Door Leaks
Coke Ovens: Pushing, Quenching, Battery Stacks
Ferroalloys Production: Silicomanganese and Ferromanganese
Integrated Iron and Steel Manufacturing
Iron Foundries Electric Arc Furnace (EAF) Operation
Steel Foundries
Steel Pickling--HCl Process Facilities and Hydrochloric Acid
Regeneration
Mineral Products Processing
Alumina Processing
Asphalt Concrete Manufacturing
Asphalt Processing
Asphalt Roofing Manufacturing
Asphalt/Coal Tar Application--Metal Pipes
Clay Products Manufacturing
Lime Manufacturing
Mineral Wool Production
Portland Cement Manufacturing
Refractories Manufacturing
Taconite Iron Ore Processing
Wool Fiberglass Manufacturing
Petroleum and Natural Gas Production and Refining
Oil and Natural Gas Production
Natural Gas Transmission and Storage
Petroleum Refineries--Catalytic Cracking (Fluid and other) Units,
Catalytic Reforming Units, and Sulfur Plant Units
Petroleum Refineries--Other Sources Not Distinctly Listed
[[Page 32587]]
Liquids Distribution
Gasoline Distribution (Stage 1)
Marine Vessel Loading Operations
Organic Liquids Distribution (Non-Gasoline)
Surface Coating Processes
Aerospace Industries
Auto and Light Duty Truck
Large Appliance
Magnetic Tapes
Manufacture of Paints, Coatings, and Adhesives
Metal Can
Metal Coil
Metal Furniture
Miscellaneous Metal Parts and Products
Paper and Other Webs
Plastic Parts and Products
Printing, Coating, and Dyeing of Fabrics
Printing/Publishing
Shipbuilding and Ship Repair
Wood Building Products
Wood Furniture
Waste Treatment and Disposal
Hazardous Waste Incineration
Municipal Landfills
Off-Site Waste and Recovery Operations
Publicly Owned Treatment Works (POTW) Emissions
Sewage Sludge Incineration
Site Remediation
Solid Waste Treatment, Storage and Disposal Facilities (TSDF)
Agricultural Chemicals Production
Pesticide Active Ingredient Production
Fibers Production Processes
Acrylic Fibers/Modacrylic Fibers Production
Rayon Production
Spandex Production
Food and Agriculture Processes
Manufacturing of Nutritional Yeast
Cellulose Food Casing Manufacturing
Vegetable Oil Production
Pharmaceutical Production Processes
Pharmaceuticals Production
Polymers and Resins Production
Acetal Resins Production
Acrylonitrile-Butadiene-Styrene Production
Alkyd Resins Production
Amino Resins Production
Boat Manufacturing
Butyl Rubber Production
Carboxymethylcellulose Production
Cellophane Production
Cellulose Ethers Production
Epichlorohydrin Elastomers Production
Epoxy Resins Production
Ethylene-Propylene Rubber Production
Flexible Polyurethane Foam Production
Hypalon (tm) Production
Maleic Anhydride Copolymers Production
Methylcellulose Production
Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene Production
Methyl Methacrylate-Butadiene-Styrene Terpolymers Production
Neoprene Production
Nitrile Butadiene Rubber Production
Nitrile Resins Production
Non-Nylon Polyamides Production
Phenolic Resins Production
Polybutadiene Rubber Production
Polycarbonates Production
Polyester Resins Production
Polyether Polyols Production
Polyethylene Terephthalate Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polystyrene Production
Polysulfide Rubber Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Polyvinyl Chloride and Copolymers Production
Reinforced Plastic Composites Production
Styrene-Acrylonitrile Production
Styrene-Butadiene Rubber and Latex Production
Production of Inorganic Chemicals
Ammonium Sulfate Production--Caprolactam By-Product Plants
Carbon Black Production
Chlorine Production
Cyanide Chemicals Manufacturing
Fumed Silica Production
Hydrochloric Acid Production
Hydrogen Fluoride Production
Phosphate Fertilizers Production
Phosphoric Acid Manufacturing
Uranium Hexafluoride Production
Production of Organic Chemicals
Ethylene Processes
Quaternary Ammonium Compounds Production
Synthetic Organic Chemical
Miscellaneous Processes
Benzyltrimethylammonium Chloride Production
Butadiene Dimers Production
Carbonyl Sulfide Production
Cellulosic Sponge Manufacturing
Chelating Agents Production
Chlorinated Paraffins
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Dry Cleaning (Petroleum Solvent)
Ethylidene Norbornene Production
Explosives Production
Flexible Polyurethane Foam Fabrication Operations
Friction Products Manufacturing
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Hydrazine Production
Industrial Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Industrial Dry Cleaning (Perchloroethylene)--Transfer Machines
Industrial Process Cooling Towers
Leather Tanning and Finishing Operations
OBPA/1,3-Diisocyanate Production
Paint Stripping Operations
Photographic Chemicals Production
Phthalate Plasticizers Production
Plywood and Composite Wood Products
Polyether Polyols Production
Pulp and Paper Production
Rubber Chemicals Manufacturing
Rubber Tire Manufacturing
Semiconductor Manufacturing
Symmetrical Tetrachloropyridine Production
Categories of Area Sources
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Secondary Lead Smelting
This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether you are regulated by this action, you
should examine the section 112(d) regulation for your source category.
If you have any questions regarding the applicability of this action to
a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section. Only source categories listed in
Table 1 for which standards have not been promulgated are affected by
the section 112(j) regulation.
[[Page 32588]]
Table 1.--Section 112(j) Part 2 Application Due Dates
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Due date MACT standard
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10/30/03............... Combustion Turbines.
Lime Manufacturing.
Site Remediation.
Iron and Steel Foundries.
Taconite Iron Ore Processing.
Miscellaneous Organic Chemical Manufacturing
(MON) \1\.
Organic Liquids Distribution.
Primary Magnesium Refining.
Metal Can (Surface Coating).
Plastic Parts and Products (Surface Coating).
Chlorine Production.
Miscellaneous Metal Parts and Products (Surface
Coating) (and Asphalt/Coal Tar Application--
Metal Pipes) \2\.
4/28/04................ Industrial Boilers, Institutional/Commercial
Boilers and Process Heaters \3\ Plywood and
Composite Wood Product Reciprocating Internal
Combustion Engines \4\ Auto and Light-Duty
Truck (Surface Coating).
8/13/05................ Industrial Boilers, Institutional/Commercial
Boilers, and Process Heaters \5\ Hydrochloric
Acid Production \6\.
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\1\ Covers 23 source categories, see Table 2 of this preamble.
\2\ Two source categories.
\3\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn no
hazardous waste.
\4\ Includes engines greater than 500 brake horsepower.
\5\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn
hazardous waste.
\6\ Includes furnaces that produce acid from hazardous waste at sources
in the category Hydrochloric Acid Production.
Table 2.--MON Source Categories
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Manufacture of Paints, Coatings, and Adhesives.
Alkyd Resins Production.
Maleic Anhydride Copolymers Production.
Polyester Resins Production.
Polymerized Vinylidene Chloride Production.
Polymethyl Methacrylate Resins Production.
Polyvinyl Acetate Emulsions Production.
Polyvinyl Alcohol Production.
Polyvinyl Butyral Production.
Ammonium Sulfate Production-Caprolactam By-Product Plants.
Quaternary Ammonium Compounds Production.
Benzyltrimethylammonium Chloride Production.
Carbonyl Sulfide Production.
Chelating Agents Production.
Chlorinated Paraffins Production.
Ethylidene Norbornene Production.
Explosives Production.
Hydrazine Production.
OBPA/1,3-Diisocyanate Production.
Photographic Chemicals Production.
Phthalate Plasticizers Production.
Rubber Chemicals Manufacturing.
Symmetrical Tetrachloropyridine Production.
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Judicial Review. The amendments to the General Provisions and the
section 112(j) provisions were proposed on December 9, 2002 (67 FR
72875). Today's action announces EPA's final decision concerning the
amendments. Under section 307(b)(1) of the CAA, judicial review of
these amendments is available only by filing a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit by July
29, 2003. Under section 307(d)(7)(B) of the CAA, only those objections
to this rule that were raised with reasonable specificity during the
period for public comment may be raised during judicial review.
Moreover, under section 307(b)(2) of the CAA, the requirements that are
the subject of today's final rule may not be challenged separately in
civil or criminal proceedings brought by the EPA to enforce these
requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. General Provisions
B. CAA Section 112(j) Provisions
C. The Sierra Club Litigation
D. Review of Proposed Settlement Under CAA Section 113(g)
E. Proposed Rule
II. Final Amendments to the General Provisions
A. Startup, Shutdown, and Malfunction Plans
B. Other Sections of the General Provisions
III. Final Amendments to the Section 112(j) Provisions
A. General Applicability
B. New Schedule for Part 2 Applications
C. Requests for Applicability Determination
D. Prior Section 112(g) Determinations
E. Later Part 1 Applications
F. Content of Part 2 Applications
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Background
A. General Provisions
Section 112 of the CAA requires us to list categories and
subcategories of major sources and area sources of hazardous air
pollutants (HAP) and to establish NESHAP for the listed source
categories and subcategories. Major sources of HAP are those that have
the potential to emit 10 tons/yr or more of any one HAP or 25 tons/yr
or more of any combination of HAP. Area sources of HAP are those
sources that do not have potential to emit 10 tons/yr or more of any
one HAP and 25 tons/yr or more of any combination of HAP.
The General Provisions in 40 CFR part 63 establish the framework
for emission standards and other requirements developed pursuant to
section 112 of the CAA. The General Provisions eliminate the repetition
of general information and requirements in individual NESHAP by
consolidating all generally applicable information in one location.
They include sections on applicability, definitions, compliance dates
and requirements, monitoring, recordkeeping and reporting, among
others. In addition, they include administrative sections concerning
actions that the EPA (or delegated authorities) must take, such as
making determinations of applicability, reviewing applications for
approval of new construction, responding to requests for extensions or
waivers of applicable requirements, and generally enforcing national
air toxics standards. The General Provisions become
[[Page 32589]]
applicable to a CAA section 112(d) source category rule when the source
category rule is promulgated and becomes effective.
The NESHAP General Provisions were first promulgated on March 16,
1994 (59 FR 12408). We subsequently proposed a variety of amendments to
that initial rule, based in part on settlement negotiations with
industrial trade organizations which had sought judicial review of the
rule and in part on our practical experience in developing and
implementing NESHAP, also know as maximum achievable control technology
(MACT) standards, under the General Provisions (66 FR 16318, March 23,
2001). We then promulgated final amendments to the General Provisions
pursuant to that proposal (67 FR 16582, April 5, 2002).
B. CAA Section 112(j) Provisions
The 1990 Amendments to section 112 of the CAA included a new
section 112(j), which is entitled ``Equivalent Emission Limitation by
Permit.'' Section 112(j)(2) provides that the provisions of section
112(j) apply if EPA misses a deadline for promulgation of a standard
under section 112(d) established in the source category schedule for
standards. After the effective date of a title V permit program in a
State, section 112(j)(3) requires the owner or operator of a major
source in a source category, for which the EPA failed to promulgate a
section 112(d) standard, to submit a permit application 18 months after
the missed promulgation deadline.
We first promulgated a rule to implement section 112(j) on May 20,
1994 (59 FR 26429). We subsequently proposed a variety of amendments to
that initial rule, based in part on settlement negotiations with
industrial trade organizations which had sought judicial review of the
rule and in part on our own further evaluation of the existing
procedures (66 FR 16318, March 23, 2001). We then promulgated final
amendments to the section 112(j) rule, along with our final amendments
to the General Provisions (67 FR 16582, April 5, 2002).
C. The Sierra Club Litigation
We promulgated the final rule amending the NESHAP General
Provisions and the requirements for case-by-case determinations under
CAA section 112(j) on April 5, 2002 (67 FR 16582). The Sierra Club
filed a petition seeking judicial review of that final rule on April
25, 2002, Sierra Club v. U.S. Environmental Protection Agency, No. 02-
1135 (DC Circuit). The Sierra Club also filed a petition seeking
administrative reconsideration of certain provisions in the final rule,
pursuant to CAA section 307(d)(7)(B).
Shortly after the filing of the petition, EPA commenced discussions
with the Sierra Club concerning a settlement agreement. We reached
initial agreement with the Sierra Club on the terms of a settlement and
lodged the tentative agreement with the court on August 15, 2002. Under
the proposed settlement, we agreed to propose a rule to make specified
amendments to the General Provisions and section 112(j) rules no later
than 2 months after signature and to take final action on the proposed
amendments within 7 months after signature.
D. Review of Proposed Settlement Under CAA Section 113(g)
As required by section 113(g) of the CAA, EPA published a notice in
the Federal Register affording interested persons an opportunity to
comment on the terms of the proposed settlement in Sierra Club v. U.S.
Environmental Protection Agency, No. 02-1135 (DC Circuit) (67 FR 54804,
August 26, 2002). In response to that notice, we received 110 timely
comments, the vast majority of which opposed one or more provisions of
the proposed settlement.
Virtually all of the commenters expressed concern about the
practical consequences of a provision in the proposed settlement which
required us to propose reducing the time between section 112(j) Part 1
and Part 2 applications from 24 months to 12 months. We agreed with the
commenters that this approach would have resulted in wasteful
expenditures by the applicants and the permitting agencies to prepare
and to process applications which in all likelihood would never have
been acted upon. Given the strong opposition to this approach reflected
in the comments both by industry sources and organizations and by State
and local permitting authorities, we were pleased when the Sierra Club
agreed to discuss modifying the proposed settlement to establish an
alternative timetable for submission of section 112(j) Part 2
applications.
The EPA and the Sierra Club then negotiated a revised settlement
based on a new approach suggested by organizations representing State
and local governments. In the revised settlement, we agreed to propose
a schedule requiring that section 112(j) Part 2 applications for
affected sources in those categories for which MACT standards were
scheduled to be promulgated prior to May 15, 2002, be submitted by May
15, 2003, and section 112(j) Part 2 applications for all remaining
source categories be submitted by 60 days after the scheduled
promulgation date for the source category in question. We also agreed
to propose the same amendments to the General Provisions concerning SSM
plans which were set forth in the original settlement. The EPA and the
Sierra Club executed a final settlement agreement in Sierra Club v.
U.S. Environmental Protection Agency, No. 02-1135 (DC Circuit), and
filed it with the court on November 26, 2002.
E. Proposed Rule
Following execution of the final settlement agreement, we published
a proposed rule effectuating its terms (67 FR 72875, December 9, 2002).
In addition to the proposed amendments required by the settlement, we
also proposed to revise a new recordkeeping provision concerning SSM
plans we adopted in the April 5, 2002 final rule, and we requested
comment on issues presented by the section governing the content of
section 112(j) Part 2 applications and on certain other sections in the
NESHAP General Provisions we amended in the April 5, 2002 final rule.
We received 73 public comment letters in response to our proposal.
We have carefully evaluated all of these comments and have modified the
amendments we proposed in certain respects. Our responses to some of
the major comments we received, and the decisions we have made
concerning appropriate final amendments to the NESHAP General
Provisions and the section 112(j) rule, are discussed in the sections
which follow.
II. Final Amendments to the General Provisions
A. Startup, Shutdown, and Malfunction Plans
1. The General Duty To Minimize Emissions
We proposed revisions in the language in 40 CFR 63.6(e)(1)(i) to
correct a potential problem in interpreting the relationship between
the general duty to minimize emissions established by that section and
the compliance of a source with its SSM plan. The section in question
was modified in the April 5, 2002 final rule because the prior language
appeared to impose on a source a general duty to further reduce
emissions even when the source is already in full compliance with the
applicable MACT standard. We deemed this result to be unreasonable and
made corresponding changes in the language of the rule.
[[Page 32590]]
However, when we made that change, we inadvertently adopted some
language which could be construed as contrary to the policies regarding
the relationship between the general duty to minimize emissions and SSM
plans which we stated in the proposal preamble for the preceding
amendments. The SSM plans must be drafted in a manner which satisfies
the general duty to minimize emissions (40 CFR 63.6(e)(3)(i)(A)). Thus,
compliance with a properly drafted SSM plan during a period of startup,
shutdown, or malfunction will necessarily also constitute compliance
with the duty to minimize emissions, even though compliance with the
MACT standard itself during a period of SSM may not be practicable.
When we proposed the preceding amendments, we stated explicitly that
``* * * compliance with an inadequate or improperly developed SSM plan
is no defense for failing to minimize emissions.'' (66 FR 16327, March
23, 2001).
The Sierra Club subsequently pointed out to us that the actual
language of the section as promulgated could be construed to indicate
that a facility that complies with its SSM plan--regardless of whether
the plan is inadequate or improperly developed--thereby satisfies its
general duty to minimize emissions. We did not intend this result. Such
a construction could encourage abuse because SSM plans do not have to
be reviewed or approved by the permitting authority before they take
effect, and because such plans may also be revised by the owner or
operator of the source without prior notice to the permitting
authority. The revisions to 40 CFR 63.6(e)(1)(i) which we proposed in
this rulemaking were intended to assure that this section would not be
construed in this manner.
We received numerous comments from industry opposing the proposed
revised language. In general, the commenters did not disagree with the
general principles concerning the relationship between the general duty
to minimize emissions and the compliance of a source with its SSM plan
which we articulated in the proposal preamble. Rather, the commenters
expressed concerns about the interpretation of the proposed language.
We believe that much of the concern expressed by the commenters is
based on one alternative construction of the phrase ``to the levels
required by the relevant standards,'' which replaced the phrase ``at
least to the levels required by the relevant standards'' in several
sections of the April 5, 2002 final rule. While we intended this phrase
to mean that emissions must be minimized to the greatest extent which
is practicable, unless and until the levels required by the applicable
MACT standard are achieved, some commenters were concerned that this
phrase would be construed to require that the standard be met at all
times. While we believe that such a construction would be unreasonable
in the context of the remainder of the rule, we do understand how the
literal language could be construed in this manner. The parenthetical
phrase which followed this language in one section of the April 5, 2002
final rule helped to mitigate the potential that readers might adopt
this alternative construction. However, as we have explained, it also
created the significant problem identified by the Sierra Club.
Many commenters suggested that we modify the language of the rule
itself to more clearly establish those general principles which we
stated in the proposal preamble. We agree with these commenters.
Accordingly, we have adopted new language for Sec. 63.6(e)(1)(i),
which establishes the general duty to minimize emissions. This new
language makes it clear that during a period of SSM, the general duty
to minimize emissions requires the owner or operator to reduce
emissions to the greatest extent consistent with safety and good air
pollution control practices. However, during an SSM event, the general
duty to minimize emissions does not require an owner or operator to
achieve the levels required by the applicable MACT standard at other
times, or to make further efforts to reduce emissions if such levels
have been successfully achieved.
Rather than restating these principles in other sections of the
rule, we have instead cross-referenced the revised language of Sec.
63.6(e)(1)(i) in Sec. 63.6(e)(3)(i)(A) and Sec. 63.6(e)(3)(vii)(B).
This assures that the same principles concerning the duty to minimize
emissions will also be applied in the drafting of an SSM plan and in
determining whether a particular SSM plan requires revision. We believe
that this combination of amendments is responsive to the concerns
expressed by the industry commenters. However, it also achieves our
original purpose by assuring that a source will not be considered to
have satisfied the duty to minimize emissions merely because it has
complied with the provisions of an inadequate SSM plan.
We note that the Sierra Club argued in its comments that the whole
concept that a MACT standard does not apply during periods of SSM has a
questionable legal basis, and that any exemption for such activities
should be strictly limited to those instances where violation of
emission limitations is ``unavoidable.'' We believe that we have
discretion to make reasonable distinctions concerning those particular
activities to which the emission limitations in a MACT standard apply,
and we, therefore, disagree with the legal position taken by the Sierra
Club. However, we note that the general duty to minimize emissions is
intended to be a legally enforceable duty which applies when the
emission limitations in a MACT standard do not apply, thereby limiting
exceedances of generally applicable emission limitations to those
instances where they cannot be reasonably avoided.
The general duty to minimize emissions requires that owners or
operators review their SSM plans on an ongoing basis and make
appropriate improvements to assure that excess emissions are avoided.
Our experience in another regulatory context illustrates how sources
and regulatory authorities can work together to improve procedures for
SSM events. We have been working with the petroleum refining industry
to reduce the number and significance of refinery acid gas flaring
episodes, and a refinery flaring reduction protocol has now been
implemented at about 35 refinery facilities nationwide. The protocol
helps sources to determine the root cause of certain flaring events,
determine the corrective action(s) for such problems, and then to
implement the corrections.
Use of this protocol has resulted in a dramatic drop in the number
of SSM events. For example, one company reduced the percentage of time
in flare at its refineries (including all startup, shutdown,
maintenance, upset activities) from 29.0% in 1998 to 1.6% in 2002. The
EPA intends to develop guidance this year that will highlight the best
practices that have been implemented by various refiners around the
country to improve their response to SSM events. We believe that the
experience we have gained in this process may also be beneficial to
other facilities as they work to improve the quality and
comprehensiveness of their SSM plans.
2. Public Access to SSM Plans
We also proposed some changes to 40 CFR 63.6(e)(3)(v), the section
that governs submission of SSM plans to the EPA Administrator, and to
the State or local permitting authorities which operate as the
Administrator's designated representatives. That section provides that
the current SSM plan must be made available upon request to the
Administrator for ``inspection and
[[Page 32591]]
copying.'' The ``Administrator'' is defined to include a State which
has received delegation and is therefore the Administrator's
``authorized representative'' (40 CFR 63.2).
We stated in the proposal preamble for the previous rulemaking (66
FR 16326, March 23, 2001) that the permit writer or the Administrator
may also require submission of the SSM plan. However, Sierra Club
observed during settlement discussions that the rule as amended in
April 5, 2002 did not expressly require that SSM plans be submitted to
the Administrator or to the permitting authority upon request.
Because SSM plans are required for facilities subject to CAA
section 112, they clearly are covered by CAA section 114(a). Therefore,
to address the concern expressed by Sierra Club, we have revised the
rule to make it clear that the owner or operator of an affected
facility is required to submit its SSM plan to the Administrator or the
permitting authority upon request. We also note that SSM plans are
considered to be submitted to the Administrator under CAA section 114
even if they are submitted to a State or local agency acting on the
Administrator's behalf (40 CFR 2.301(b)(2)). Under CAA section 114(c),
any plan that is submitted to EPA or the permitting authority must also
be made available to the public, unless the submitter makes a
satisfactory showing that disclosure would divulge methods or processes
that are entitled to protection under the Trade Secrets Act, 18 U.S.C.
1905.
During settlement discussions, the Sierra Club also expressed
concern that some permitting authorities might not construe the rule to
require that an SSM plan be obtained from the affected source when it
is requested by a member of the public. We agreed to propose some
revisions to the rule to facilitate better public access. We proposed
to require sources to submit a copy of the SSM plan to the permitting
authority at the time it is first adopted and each time it is
subsequently revised.
Many commenters vigorously opposed these proposed amendments. A
number of industry commenters argued that there is no general
obligation to provide public access to SSM plans, and that only those
plans that the States or EPA actually elect to obtain from the sources
must be made available to the public. These commenters argued that EPA
has incorrectly construed the SSM plan as an integral part of the
permit documentation that must be made available to the public under
CAA sections 114(c) and 503(e).
Industry commenters also argued that requiring routine submission
of SSM plans would be very burdensome for sources, because SSM plans
are often fully integrated into other operating procedures at a source,
and production of a complete SSM plan might, therefore, require copying
and compilation of other documents. Commenters also expressed concern
about the burden on sources associated with identification and
segregation of claimed Confidential Business Information (CBI), and the
danger that permitting authorities might inadvertently disclose such
information. Commenters also argued that routine submission of SSM
plans would be burdensome for the permitting authorities.
A number of commenters suggested that appropriate public access to
SSM plans could be assured by a less burdensome approach, focusing on
the specific problems with the current rule that we identified in the
proposal. Some commenters suggested that EPA could adopt new regulatory
language specifically requiring sources to submit SSM plans when
requested by the permitting authority. Others suggested that EPA
provide clearer guidance to permitting authorities indicating that they
are responsible and have the authority to obtain SSM plans when
requested by the public. We think that these ideas are constructive.
We acknowledge that adopting a requirement that copies of SSM plans
be routinely submitted to the permitting authorities would be
burdensome. In particular, we think that significant resources would be
expended on the process of identifying and segregating claimed CBI in
each plan. We also acknowledge that the proper maintenance of these
extra records would necessarily involve additional resource
expenditures by the permitting authorities.
We have concluded that these additional burdens are not necessary
to assure appropriate public access to SSM plans. As suggested by some
commenters, we have decided instead to adopt a less burdensome approach
tailored to the specific problems we identified in the proposal.
We believe that SSM plans will be most effective in minimizing
emissions during periods of startup, shutdown, or malfunction if they
are fully integrated with the detailed process and operating procedures
of a facility. We also recognize that these types of procedures may
contain trade secrets and other sensitive information, and that the
integration of SSM plans with these other procedures may make it more
difficult and costly for a facility to redact them in a way that would
be suitable for public disclosure. We do not wish to discourage
facilities from integrating SSM plans with other procedures.
On the other hand, we recognize that there will sometimes be
substantial public interest in the details of SSM plans. There is
increasing concern about emissions that may occur during a period of
startup, shutdown, or malfunction. In addition, SSM plans may include
basic information about when the emission limitations in a MACT
standard apply to a particular facility and when they do not. To strike
the right balance between public disclosure and the need to make SSM
plans comprehensive and effective, we have adopted the following
approach in this final rule.
First, we believe that the permitting authorities, acting on behalf
of the public, can and should play the primary role in reviewing SSM
plans and ensuring that affected sources take the necessary steps to
minimize emissions during periods of startup, shutdown, or malfunction.
We know that some permitting authorities review these plans during the
process for initial permit issuance. In other instances, we expect that
permitting authorities will review SSM plans in conjunction with
inspections and other site visits, when they can more readily observe
how the SSM plan relates to other operational procedures at the
facility. In addition, under the language we are adopting, owners or
operators must promptly submit a copy of any SSM plan (or any portion
thereof) maintained at the affected source if requested by the
permitting authority.
If a member of the public wishes to review the SSM plan for a
particular facility, or a specific portion of that plan, he or she can
ask that the permitting authority request the plan from the facility.
We are also adding language requiring that the permitting authority
request that the owner or operator submit to the permitting authority a
particular SSM plan (or the relevant portion thereof) whenever a member
of the public makes a specific and reasonable request to examine or
receive a copy. Upon receipt of such a request, the permitting
authority should take prompt action to make the plan available to the
requestor. We also expect that, upon receiving a request that is
insufficiently specific or may be overly broad, the permitting
authority will work with the requestor to clarify the request and to
assure that it is focused on the requestor's specific needs or
interests.
As in our proposal, the owner or operator may elect to submit the
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requested SSM plan in an electronic format, and any portion of the plan
that is claimed to be CBI entitled to protection under CAA section
114(c) or the Trade Secrets Act must be clearly designated in the
submission. Moreover, we want to encourage all parties to adopt
procedures for providing public access to SSM plans which avoid
unnecessary burdens or delays. Therefore, if an owner or operator and a
requestor both agree that it would be more expedient or convenient for
the requestor to examine the SSM plan (or a portion thereof) at the
facility where it is maintained, this approach could be utilized
instead of requiring submission of the SSM plan to the permitting
authority. This on-site inspection procedure would be most practicable
in those instances where the owner or operator has concluded that it is
not necessary to redact claimed CBI when the plan is being examined at
the facility that maintains it.
We think this approach assures appropriate public access to SSM
plans, but dramatically reduces the aggregate expenditure of resources
by sources and permitting authorities. We recognize that this approach
could result in some additional delay before a member of the public
could obtain a copy of the non-confidential portions of an SSM plan.
However, we think that requiring routine submission of every SSM plan,
without regard for whether any member of the public will ultimately
seek access to it, involves a resource burden which is disproportionate
to the time which may be saved when a specific plan is actually
requested by a member of the public.
As for the concern of some commenters that claimed CBI information
might be inadvertently disclosed, we think this is less probable when
SSM plans must be submitted only on demand rather than routinely. If a
submitter knows that the non-confidential portions of a plan will
definitely be disclosed, we believe the submitter will be more likely
to do a good job of segregating claimed CBI and preparing to properly
substantiate its claim.
Some commenters expressed concern about the Homeland Security
implications of public access to SSM plans. It may be that some
information in a particular SSM plan could be sensitive from a Homeland
Security perspective. In most instances, we think that such sensitive
information would also be entitled to confidential treatment under CAA
section 114(c). However, we note that the entire Federal government is
presently reviewing public access requirements to assure that they are
compatible with Homeland Security, and it is possible that we may in
the future propose other changes in public access to SSM plans as part
of this important effort.
3. Reporting Requirements
During the April 5, 2002, rulemaking concerning revisions to the
General Provisions and section 112(j) rules, we received a comment from
representatives of the State and local permitting authorities
indicating that it would assist them in performing their oversight
function if facilities were required to include the number and a
description of all malfunctions that occurred during the prior
reporting period in the required semiannual report. In response to that
comment, we added a new reporting obligation to the language governing
periodic SSM reporting in 40 CFR 63.10(d)(5)(i). However, the language
we added was not limited to malfunctions and required that the facility
report ``the number, duration, and a brief description of each startup,
shutdown, and malfunction.'' We later concluded that the inclusion of
startups and shutdowns in this reporting requirement was unnecessary
and burdensome, and we proposed to delete these events from this
provision.
Many commenters supported that proposal. The Sierra Club opposed
the deletion of startups and shutdowns from this reporting requirement,
arguing that sources might improperly define events as startups and
shutdowns. We consider this type of abuse unlikely, and we do not
believe in any case that the routine reporting of all startups and
shutdowns would be particularly helpful in preventing it.
In some industries, startup and shutdown events are numerous and
routine. So long as the provisions of the SSM plan are followed, there
does not appear to be any real utility in requiring that each
individual startup and shutdown be reported or described. As many
commenters noted, in those instances where a startup or shutdown
includes actions which do not conform to the SSM plan and the standard
is exceeded, the facility is otherwise required to promptly report
these deviations from the plan.
Some commenters objected to our retention of the new malfunction
reporting requirement. These commenters argue that a requirement to
report all malfunctions is duplicative of other requirements, except in
those instances where an SSM plan was followed during an event and no
excess emissions occurred. We do not agree with these commenters that
the malfunction reporting requirement should be entirely eliminated,
but we have concluded that its scope can be narrowed.
With respect to malfunctions, the rule expressly requires that the
SSM plan must be revised by the facility if there is an event meeting
the characteristics of a malfunction which is not addressed by the plan
(40 CFR 63.6(e)(3)(vii)). At the time of proposal, we believed that
reporting of all malfunctions is necessary to assure that this
requirement is satisfied. However, after reviewing the comments and
evaluating this issue in the context of the rule as a whole, we believe
that the problem of identifying new kinds of malfunctions which would
require revision of the SSM plan is adequately addressed by other
provisions in the rule. If a type of malfunction is not addressed by
the current SSM plan, we believe that any actions taken during such a
malfunction cannot be reasonably construed as actions consistent with
the plan and that such actions would otherwise be reportable under
Sec. 63.10(d)(5)(i) or Sec. 63.10(d)(5)(ii). We discuss these
reporting provisions further below.
However, we also agree with a comment by the Sierra Club that
reporting of malfunctions would help permitting authorities determine
whether sources are attempting to circumvent the standard by improperly
defining events as malfunctions. To prevent this type of potential
abuse, we do not think that all malfunctions need to be reported.
Rather, we think this problem can be addressed by requiring that the
affected source report only those malfunctions which occurred during
the reporting period and which caused or may have caused an emission
limitation in the relevant standard to be exceeded. Thus, we have
decided to retain the requirement that the owner or operator report
malfunctions in the periodic report, but to limit its scope to those
malfunctions which caused or may have caused an emission limitation in
the relevant standard to be exceeded.
Moreover, we stated in the proposal that minor or routine events
that do not have a significant impact on the ability of a source to
meet the standard need not be classified as a malfunction, addressed by
the SSM plan, or included in periodic reports. We think there is no
reason to classify an event as a malfunction if it does not cause, or
have the potential to cause, the emission limitations in an applicable
standard to be exceeded.
A number of commenters requested that we make this policy clear in
the regulatory language, rather than only in the preamble. These
commenters
[[Page 32593]]
suggested that the definition of malfunction could be revised to
accomplish this. We think this is a good idea, and we have revised the
definition accordingly. We think that this change will make it clear
that events that do not cause, or have the potential to cause, emission
limitations in an applicable standard to be exceeded need not be
included either in the SSM plan or in periodic malfunction reports.
We note that 40 CFR 63.10(d) describes two distinct types of SSM
reports. Periodic SSM reports are submitted on a semiannual basis and
are described in Sec. 63.10(d)(5)(i). Immediate SSM reports which are
triggered by a particular event, and which require an oral or facsimile
report within 2 working days and a written report within 7 working
days, are described in Sec. 63.10(d)(5)(ii). During our review of the
comments concerning the various SSM reporting provisions, we realized
that there is an unresolved conflict between an amendment we made in
the April 5, 2002 final rule and the language of 40 CFR 63.10(d) as it
is currently codified. Although we amended 40 CFR 63.6(e)(3)(iv) to
limit the immediate reporting obligation for actions which are not
consistent with the SSM plan to those instances where the source
exceeds the relevant emission standard, we did not make a similar
conforming change in 40 CFR 63.10(d)(5)(ii). This discrepancy was also
specifically identified by one commenter. We are amending Sec.
63.10(d)(5)(ii) to correct this problem.
We are also making another conforming amendment in Sec.
63.10(d)(5)(i). Since immediate reports of actions not consistent with
the SSM plan are not required if the emission limitations in the
standard are not exceeded, we believe that the periodic SSM report
should identify any instances in which actions taken were not
consistent with the plan but no emission limitations were exceeded.
4. Correction of Plan Deficiencies
We proposed another small change to 40 CFR 63.6(e)(7). The rule as
amended in April 5, 2002 provides that EPA or the permitting authority
``may'' require that an SSM plan be revised if certain specified
deficiencies are found. In the proposal, we stated that we could not
foresee any circumstance where revision of an SSM plan should not be
mandatory if it has been specifically found to be deficient under one
of the criteria set forth in this section. Therefore, we proposed to
change the language to make such revisions mandatory rather than
discretionary.
Some commenters objected to this proposal, but their principal
concern was that the criterion requiring the SSM plan to satisfy the
duty to minimize emissions might be interpreted in a manner contrary to
the other general principles we have articulated. We believe this
concern is fully resolved by the amendments to the provisions
concerning the general duty to minimize emissions which we are adopting
and described above.
Some commenters also argued that the current practice of giving
permitting authorities discretion concerning whether to require changes
in an SSM plan works well, and there is no reason to change it unless a
problem can be demonstrated. We find this argument unpersuasive. If a
permitting authority has specifically found that a plan is deficient
according to one of the criteria, we see no reason why it should not be
mandatory for corrective action to be taken.
B. Other Sections of the General Provisions
1. Monitoring Definition
During the April 5, 2002, rulemaking, one commenter suggested that
we revise the definition of ``monitoring'' in 40 CFR 63.2 to include
the phrase ``or to verify a work practice standard.'' There are times
when we must adopt a work practice standard under CAA section 112(h)
rather than an emission standard under CAA section 112(d), and
compliance with such a work practice standard is sometimes verified by
activities which are similar in character to those required to monitor
compliance with an emission standard. Therefore, we thought that the
suggested revision was a sensible one. However, because the additional
language was not originally proposed by EPA, we decided to take
additional comment concerning this language.
One industry commenter supported the revised monitoring definition.
Other commenters expressed concern that the revised definition could
make changes in work practice verification a significant permit
modification, or that the revised definition might require verification
of work practices beyond the procedures specified in a particular MACT
standard. We do not intend either of these results, and we are not
persuaded that the revised definition will cause either of these
problems. Therefore, we have retained the revised definition without
change.
2. Combined Compliance Reports
In the April 5, 2002, rulemaking, we also made a small change in
the language of 40 CFR 63.9(h)(2)(ii), by adding the phrase ``(or
activities that have the same compliance date)'' in response to a
industry commenter. The commenter was concerned that separate
compliance reports might be required for compliance obligations that
have the same date and requested the option of filing a single
compliance status report covering multiple compliance obligations.
Because the new language we adopted was not originally proposed by EPA,
and some questioned whether it clearly achieved the intended purpose,
we decided to request additional comment concerning this revision and
potential alternatives.
All commenters on this change agreed with our original intent in
making the change, but some commenters suggested that the language is
confusing and proposed alternative language. We have adopted new
language for Sec. 63.9(h)(2)(ii) which is similar to the alternative
language suggested by one of these commenters.
III. Final Amendments to the Section 112(j) Provisions
A. General Applicability
In the proposed rule, we stated our intent to include new language
concerning general applicability in the final amendments to the section
112(j) rule. We proposed to state explicitly that no further process to
develop a case-by-case MACT determination under section 112(j) is
required for any source once a generally applicable Federal MACT
standard governing that source has been promulgated. In our view, it is
obvious that no further process to implement section 112(j) with
respect to a particular source is required or appropriate once a
Federal standard governing that source has been promulgated under CAA
section 112(d) or 112(h). All commenters who addressed this issue
supported our proposal. A new paragraph effectuating it has been added
to the general applicability provisions as 40 CFR 63.50(c).
Just as it is obvious that all activities to develop an equivalent
emission limitation under CAA section 112(j) should end following
promulgation of a generally applicable Federal standard, it is also
clear from the statutory language that any final equivalent emission
limitation which may be issued prior to adoption of such a standard is
itself an enforceable Federal requirement, which remains in force until
revised or supplanted pursuant to section 112(j)(6) and 40 CFR 63.56.
Although it is clear from the statute that permitting authorities are
expected to utilize the
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title V permitting procedures to adopt and issue an equivalent emission
limitation under section 112(j), it is also clear that the authority to
establish and require compliance with such a limitation is provided by
section 112(j) itself rather than title V. Section 112(j)(4) requires
that each equivalent emission limitation be submitted for review and
approval by EPA under the procedures established by CAA section 505,
and upon final adoption at the time of permit issuance such an
equivalent emission limitation is a binding order which may be enforced
directly under Federal law. An equivalent emission limitation takes
effect upon issuance of the permit containing it under section
112(j)(5), and it remains applicable to the source until it is revised
or superceded, regardless of the subsequent status of the permit in
which it was initially contained. For the sake of clarity, we have
included additional general applicability language in 40 CFR 63.50(d)
which embodies these principles.
B. New Schedule for Part 2 Applications
Under our final settlement agreement with the Sierra Club, we
proposed to replace the existing schedule for submission of section
112(j) Part 2 applications (also referred to as Part 2 MACT
applications or simply Part 2 applications), under which most Part 2
applications would have been due on May 15, 2004, with a new schedule
establishing a specific deadline for submission of all Part 2
applications for all affected sources in a given category or
subcategory. With respect to those categories or subcategories for
which MACT standards are scheduled to be promulgated after this
rulemaking is complete, we proposed specific Part 2 application
deadlines which are 60 days after each respective scheduled
promulgation date. For those categories or subcategories for which MACT
standards were scheduled to be promulgated while this rulemaking was
pending, we proposed a Part 2 application deadline of May 15, 2003.
However, because all of the standards scheduled to be promulgated
during this rulemaking process have in fact been promulgated, there is
no need to take any further action concerning the proposed Part 2
application deadline for those categories.
We note that commenters were generally supportive of the new
approach to scheduling of section 112(j) Part 2 applications which we
proposed. We agree with commenters that the proposed schedule will
permit us to avoid a wasteful expenditure of public and private
resources, so long as there are no further delays in promulgation of
the remaining MACT standards. We note also that the prompt and
significant consequences if a promulgation deadline is missed will
create new incentives for EPA and the other stakeholders to assure that
the agreed promulgation deadlines are met.
The Part 2 application deadlines which we proposed for each
category or subcategory were based on a separate agreement in principle
we had reached with the Sierra Club on a schedule for promulgation of
all remaining MACT standards which were included in the original
schedule established pursuant to CAA section 112(e)(1) and 112(e)(3).
While this rulemaking was pending, this agreed schedule was
incorporated in a proposed consent decree and filed in Sierra Club v.
Whitman, 01-1337 (D.D.C.). On March 27, 2003 (68 FR 14976), we
published a notice pursuant to CAA section 113(g) affording interested
persons 30 days to submit comments concerning the proposed consent
decree. We have now reviewed all timely comments received concerning
the proposed consent decree and have determined that there is no basis
at this time for modification of the schedule incorporated in that
decree.
We note that many commenters on this rulemaking opposed the
promulgation schedule for particular MACT standards. We received
comments arguing that the promulgation schedule should be extended for
the MACT standards for Brick and Structural Clay Products, Combustion
Turbines, Iron and Steel Foundries, Taconite Iron Ore Processing,
Miscellaneous Organic Chemical Manufacturing (MON), and Metal Can
Surface Coating. We understand why these comments were submitted on
this rulemaking since the notice providing an opportunity to comment on
the proposed consent decree had not been published at the time they
were submitted. However, we also believe that the most appropriate
context for consideration of these comments is the review of the
proposed consent decree under CAA section 113(g). Accordingly, we have
deemed all comments submitted on this rulemaking concerning the
schedule for promulgation of particular MACT standards to also be
comments concerning the proposed consent decree in Sierra Club v.
Whitman. Although some commenters complained that they were denied due
process or otherwise prejudiced by the failure of EPA to provide a
comment opportunity concerning that consent decree, these objections
are now moot in view of the fact that their comments have been
considered both in this rulemaking and as part of the section 113(g)
process.
In general, we believe that it is incumbent on EPA to issue all
MACT standards for which the mandatory statutory promulgation date has
already passed as rapidly as is practicable. We also believe that EPA
is in the best position to evaluate those tasks that remain and the
resources that are available to accomplish those tasks and then to
establish an appropriate schedule for promulgation of overdue
standards. We respectfully disagree with those commenters who argue
that EPA will be unable to adhere to the agreed schedule for
promulgation of particular standards.
After considering all of the comments, we have decided to adopt the
schedule for section 112(j) Part 2 applications with respect to MACT
standards that have not yet been promulgated, exactly as it was
proposed. We have added appropriate implementing language and related
tables to 40 CFR 63.52(e)(1).
Many commenters expressed concern about the possibility of
additional delays in the promulgation of MACT standards and requested
that EPA provide advance notice if it expects to miss one of the
promulgation deadlines in the consent decree. As we stated in the
proposal, we recognize that the schedule for submission of section
112(j) Part 2 applications leaves relatively little time for sources to
prepare and submit such applications if a particular promulgation
deadline is missed. In recognition of the tight time frames, we will
try to provide prompt advance notice to affected sources and to
permitting authorities if we have reason to believe that an impending
promulgation deadline for a particular MACT standard will not be met.
Many commenters also requested that EPA extend the corresponding
Part 2 application deadline in the event that the date for promulgation
of a MACT standard in the consent decree is itself extended. We note
that the dates we are adopting in this rulemaking for submission of
Part 2 applications for particular categories and subcategories cannot
be made automatically contingent on the content of a consent decree
which has not itself been codified. We do not expect to consider any
future revisions to the schedule for submission of Part 2 applications
unless the schedule set forth in the consent decree is itself modified.
If the deadline for promulgation of any MACT standard which appears in
the consent decree is extended by the District Court in accordance with
the provisions of that decree, we will consider at that time whether
any corresponding adjustment
[[Page 32595]]
in the schedule for Part 2 applications set forth in this rule is
necessary and appropriate. If we conclude that a change in the schedule
for Part 2 applications is warranted, we will consider the use of
expedited procedures including direct final rulemaking.
C. Requests for Applicability Determination
In the proposed rule, we noted that some additional structural
changes in the section 112(j) rule are required to assure that the new
schedule for Part 2 applications is as uniform as practicable for the
sources in a given category or subcategory. To achieve this uniformity,
we proposed certain changes in the procedures for those sources which
have previously submitted a request for applicability determination
under 40 CFR 63.52(e)(2)(i).
In the section 112(j) rule as amended on April 5, 2002, Sec.
63.52(e)(2)(i) established a process by which major sources could
request that the permitting authority determine whether or not specific
sources at their facility belong in any category or subcategory
requiring a case-by-case determination under section 112(j). All
requests for applicability determination were due at the same time as
the section 112(j) Part 1 applications (also referred to as Part 1 MACT
applications or simply Part 1 applications) on May 15, 2002. Under the
old procedures, a negative determination by the permitting authority
concerning such a request meant that no further action was required,
while a positive determination meant that the applicant was required to
submit a Part 2 application within 24 months.
We lack precise information concerning how many requests for
applicability determination were submitted to permitting authorities on
or before May 15, 2002, but we believe that hundreds of such requests
are pending. We know that some of these requests reflected genuine
uncertainty concerning the scope of the activities or equipment
governed by a particular category or subcategory. For some of these
requests, the subsequent issuance of a proposed MACT standard or other
subsequent events may have resolved such uncertainty. However, we also
believe that many of these requests were filed merely because the
filing of such a request operated to defer the deadline for submission
of a Part 2 application.
To reconcile the processing of pending requests for applicability
determination with the new uniform schedule for Part 2 applications, we
proposed that each affected source which still wishes to pursue a
previously filed request for applicability determination under 40 CFR
63.52(e)(2)(i) be required to resubmit and supplement that request
within 60 days after EPA publishes final action in this rulemaking, or
within 60 days after EPA publishes a proposed MACT standard for the
category or subcategory in question, whichever is later. We proposed to
delay the requirement to resubmit and supplement a request for
applicability determination until after a proposed MACT standard is
available because our experience tells us that most uncertainties
regarding applicability can be resolved by examining the specific
applicability language in the proposed MACT standard. We also proposed
to require that each resubmitted request for an applicability
determination be supplemented to specifically discuss the relation
between the source(s) in question and the applicability provision in
the proposed MACT standard for the category or subcategory in question,
and to explain why there may still be uncertainties that require a
determination of applicability. Finally, we proposed to require that
the permitting authority act upon each resubmitted and supplemented
request for applicability determination within an additional 60 days
after the applicable deadline for the resubmitted request.
Comment on our proposals concerning processing of requests for
applicability determination was more limited than on many other
elements of our proposal. Some commenters requested that we provide for
extensions of the deadline for action by the permitting authority. We
understand that the time frame for action on a resubmitted request for
applicability determination by the permitting authority is an expedited
one, but we believe that extending this time frame would undermine our
efforts to establish a single uniform schedule for Part 2 applications.
We are hopeful that sources will act in a responsible manner and will
resubmit only those requests for which genuine unresolved applicability
issues remain after publication of a proposed MACT standard. This is a
reasonable expectation because the procedural incentives for submission
of such requests which existed previously will be eliminated. We also
think that the availability of a proposed MACT standard, and the
mandatory supplementation of the resubmitted request to address the
effect of that proposed standard, should assure an adequate record for
expedited decisions by the permitting authorities on those requests
that are resubmitted.
Some commenters requested that we establish a presumption of
negative applicability if the permitting authority does not make a
timely decision concerning a resubmitted request. We disagree with this
concept because it would establish a substantial new incentive for a
source to resubmit a pending request, regardless of whether there are
any genuine and significant remaining questions regarding
applicability. However, we also believe it would not be appropriate to
establish a presumption of positive applicability if the permitting
authority does not act in a timely manner on a resubmitted request.
This would penalize those sources who sincerely believe that they are
not covered by the proposed rule, but are merely seeking confirmation
of that conclusion by the permitting authority. We intend the absence
of either a negative or a positive presumption to create a strong
incentive for a source to work closely with the permitting authority to
resolve any genuine applicability issues in a timely manner.
Several commenters requested that EPA make provision for the
submission of new requests for applicability determination. We do not
believe that the creation of a new adjudicatory process of this type in
this rulemaking is either appropriate or practical. However, we
encourage those sources that have new questions concerning the
applicability of a proposed MACT standard to their operations or
equipment to seek guidance from responsible personnel at the permitting
authority and the appropriate EPA Regional Office.
One commenter requested that we make it clear that any decision by
a permitting authority concerning a request for applicability
determination is null and void once a final MACT standard has been
promulgated. The commenter noted that a determination of applicability
based on the language of the proposed standard may not always correctly
anticipate the ultimate applicability of the final promulgated
standard. We agree with this comment. Requests for applicability
determination submitted under 40 CFR 63.52(e)(2)(i) are intended solely
to determine whether a source must submit a section 112(j) application,
not to resolve applicability issues which may arise in other contexts.
As we discussed in the section concerning general applicability above,
no further process to develop an equivalent emission limitation under
section 112(j) is necessary or
[[Page 32596]]
appropriate once a generally applicable Federal standard has been
promulgated.
After reviewing all of the comments, we have decided to adopt
amendments to the procedures for requests for applicability
determination as we proposed them. We have added new language to 40 CFR
63.52(e)(2)(i) which effectuates this decision.
As we noted in the proposal, those major sources which elect to
resubmit requests for applicability determination with respect to
sources that may be governed by one of the MACT standards which are
scheduled to be promulgated by August 31, 2003, may not be entitled to
receive a determination by the permitting authority on the resubmitted
request until shortly after the scheduled promulgation date. If such a
standard is delayed, and there is no negative determination by the
permitting authority on the resubmitted request, the Part 2 application
for sources within the category in question will be due on October 30,
2003. This tight time frame underscores the importance of careful
coordination between such sources and the permitting authority if it
appears that a MACT standard will be delayed. As discussed above, EPA
will endeavor to provide timely information to affected sources and
permitting authorities if it becomes apparent that the promulgation
schedule for any of the remaining MACT standards will not be met.
D. Prior Section 112(g) Determinations
As part of our proposal to establish a single uniform Part 2
application deadline for all sources in a given category or
subcategory, we also proposed some changes to the procedures governing
CAA section 112(j) applications for those sources which have previously
received a case-by-case determination pursuant to CAA section 112(g).
To understand the effect of this proposal, it is helpful to review the
substantive relationship between these separate statutory requirements.
In general, we anticipate that emission control requirements
established as part of a previous case-by-case determination under
section 112(g) will subsequently be adopted by the permitting authority
to satisfy any applicable 112(j) requirements as well. This is because
the determination required for any sources subject to CAA section
112(g) is supposed to be based on new source MACT, and the subsequent
application of section 112(j) requirements to those same sources will
be based on existing source MACT. Moreover, to assure that
inconsequential differences in emission control do not result in unduly
burdensome sequential case-by-case determinations, the section 112(j)
rule requires the permitting authority to adopt any prior case-by-case
determination under section 112(g) as its determination for the same
sources under section 112(j) if it ``determines that the emission
limitations in the prior case-by-case determination are substantially
as effective as the emission limitations which the permitting authority
would otherwise adopt under section 112(j).'' See 40 CFR 63.52(a)(3),
(b)(2), and (e)(2)(ii).
Under the rule as it was amended on April 5, 2002, sources which
had previously obtained a case-by-case determination under CAA section
112(g) were generally required to submit a request for an ``equivalency
determination'' to decide if the applicable section 112(g) requirements
are ``substantially as effective'' as the requirements which would
otherwise apply under section 112(j). As explained above, we believe
that this determination will generally be positive. However, the rule
as amended on April 5, 2002 provided that, if such a determination were
negative, the source would then be required to submit a Part 2
application within 24 months. As in the case of requests for
applicability determination, changes to the old language are required
to place all sources in a given category or subcategory on the same
schedule for submission of Part 2 applications.
Thus, we proposed to adopt the Part 2 application deadline for a
given category or subcategory as the final deadline for submission of a
request for an ``equivalency determination'' by any affected source
that previously obtained a case-by-case determination under CAA section
112(g). Those sources who submitted such requests earlier under the
provisions of the existing rule need not resubmit them. However, we
also proposed to construe all requests for an equivalency
determination, regardless of when they were submitted, as a section
112(j) Part 2 application as well.
Under the amendments we proposed, the permitting authority must
first make an equivalency determination. In the event of a negative
determination, the permitting authority will then proceed to adopt a
separate set of case-by-case requirements pursuant to section 112(j).
This process will be completed in the same 18-month period that applies
to the processing of all other Part 2 applications.
In the proposal, we explained that this revised process would not
impose any new burden on sources or permitting authorities, because the
permitting authority should already have all of the information
required for a Part 2 application in any instance where it is already
administering section 112(g) requirements applicable to the same
source.
As in the case of requests for applicability determination,
relatively few comments were received concerning this element of our
proposal. Commenters generally accepted our view that a source which
has already received a case-by-case determination under section 112(g)
should not need to submit additional information in a section 112(j)
application. A couple of commenters requested that the deadline for
submission of a request for an equivalency determination be delayed if
the promulgation of a MACT standard is delayed. Since we are proposing
that the deadline for submission of requests for an equivalency
determination be the same as the deadline for Part 2 applications, our
discussion above of the effect of potential delays applies equally to
this issue.
After reviewing all of the comments, we have decided to adopt
amendments to the procedures for requests for equivalency determination
exactly as we proposed them. We have added new language to 40 CFR
63.52(e)(2)(ii) which effectuates this decision.
E. Later Part 1 Applications
In drafting new language to effectuate our amendments to the
section 112(j) rule, we identified one additional conforming change in
the prior rule language which is necessary. There are a few instances
where a source may be required to submit a Part 1 application meeting
the requirements of 40 CFR 63.53(a) for the first time on a date which
is after the otherwise uniform date for submission of Part 2
applications which we are establishing. This may occur under 40 CFR
63.52(b) when new emission units are installed at a major source, when
there is an increase in the potential to emit that causes an area
source to become a major source, or when EPA establishes a lesser
quantity emission rate that causes an area source to become a major
source. This may also occur under 40 CFR 63.52(c) if a source that has
previously obtained a section 112(j) determination changes the
equipment or activities which were previously covered by that
determination.
We consider it relatively unlikely that any of these provisions
will be triggered, even if there is a delay in the promulgation of one
or more MACT standards which results in submission of some Part 2
applications. However, in the event that any Part 1 applications must
be submitted for the first time after
[[Page 32597]]
the deadline for submission of Part 2 applications, we think it is
appropriate to provide an additional 60 days for submission of a Part 2
application after the applicable deadline for the Part 1 application.
We have added another sentence to 40 CFR 63.52(e)(1) which addresses
this matter.
F. Content of Part 2 Applications
We intend to meet the obligations we will be assuming under the
consent decree in Sierra Club v. Whitman to promulgate the remaining
MACT standards in a timely manner. If we succeed in promulgating all
remaining MACT standards by the applicable deadlines, there will be no
need for submission of any Part 2 applications. However, we also made
it clear in the proposed rule that we want to minimize any unnecessary
burdens associated with the submission of Part 2 applications if such
applications do become necessary. We do not want to require the
submission of any information which is not truly necessary to prepare
for potential issuance of case-by-case MACT determinations. To that
end, our proposal included some general guidance concerning the
relationship between Part 2 applications and an applicable proposed
MACT standard, and we also asked some additional questions intended to
assist us in further limiting any unnecessary burden associated with
Part 2 applications.
In our proposal, we stated that we think it is reasonable for an
affected source submitting a Part 2 application to rely directly on the
content of the applicable proposed MACT standard in identifying
affected emission points. We also stated that applicants could
reasonably limit the information they submit concerning HAP emissions
to those specific HAP or groups of HAP which would be subject to actual
control in the applicable proposed MACT standard. Commenters were
generally supportive of these principles. Rather than merely providing
guidance, we have decided to revise the language of 40 CFR 63.53(b) to
expressly incorporate these principles.
Many commenters argued that the burden of compiling a Part 2
application could be diminished by permitting cross-referencing of
various other documents. We agree generally with this concept, although
we think that the specific information which is being cross-referenced
needs to be clearly identified and the information being cross-
referenced should also be information that is readily available to the
permitting authority. Rather than attempting to specify those
particular documents that may be appropriately cross-referenced, we
have decided to adopt language setting forth general principles
regarding the cross-referencing of other documents in Part 2
applications. These general principles are included in a new paragraph
codified as 40 CFR 63.53(b)(1).
We have concluded that an applicant should be permitted to cross-
reference specific information in any prior submission to the
permitting authority, so long as the applicant does not presume
favorable action on any prior application or request which is still
pending. Further, we have concluded that an applicant should be
permitted to cross-reference any part of a standard proposed by EPA
pursuant to CAA section 112(d) or 112(h) for a category or subcategory
which includes sources to which the Part 2 application applies. We also
want to assure applicants that they can cross-reference a proposed
standard as part of their Part 2 application without necessarily
supporting the proposal itself. Thus, an applicant who cross-references
a proposed standard is free to argue that another approach (other than
the approach proposed by EPA) should be used in making the case-by-case
MACT determination.
We received numerous comments in response to our question asking
whether the applicant needs to provide ``estimated total uncontrolled
and controlled emission rates'' for HAP, and in response to our
question asking whether new emission testing should be required if an
applicant lacks sufficient information to make meaningful estimates.
Many commenters argued that estimated emission rates are not necessary,
and that no new emission testing should be required. Commenters also
argued that such information can be requested by the permitting
authority in those instances where it may be needed.
In evaluating these comments, we have considered whether estimates
of controlled and uncontrolled emission rates are consistently needed
to process a Part 2 application. In some instances, such emission data
may be necessary to identify those emission points which would be
subject to control under a proposed MACT standard, but we believe that
the provision requiring the applicant to otherwise identify such
emission points is sufficient in those instances where this is true.
Such emission information may also be necessary in some cases to
develop permit terms which apply the general requirements of a
particular MACT standard or determination to the particular
characteristics of an affected source. However, we believe that it is
sufficient to assure that the permitting authority can request that an
applicant provide specific emission information it needs for this
purpose. We note that if such information is not provided in the Part 2
application, the permitting authority will still be able to obtain it
in the context of the permitting process which follows. Based on this
analysis, we have decided to delete the provision requiring estimates
of total uncontrolled and controlled HAP emission rates in Part 2
applications, and to add a provision requiring the applicant to submit
any additional emission data or other information specifically
requested by the permitting authority.
Commenters generally argued that the applicant should not be
required to submit ``information relevant to establishing the MACT
floor.'' We agree with this conclusion. We do not think applicants
should be required to submit such information, but we do think they
should be free to do so if they wish to propose an alternative to the
floor determination set forth in the proposed MACT standard.
Accordingly, we have deleted this information as a mandatory
requirement, but have retained the provision permitting the applicant
to suggest an alternative set of emission limitations or work practice
provisions on a discretionary basis.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether a regulatory action is ``significant'' and,
therefore, subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on 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
the Executive Order.
[[Page 32598]]
It has been determined that these final amendments are not a
``significant regulatory action'' under the terms of Executive Order
12866 and are, therefore, not subject to OMB review.
B. Paperwork Reduction Act
As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., the OMB must approve any reporting and recordkeeping requirements
that qualify as an information collection request (ICR) under the PRA.
Approval of an ICR is not required for the General Provisions
amendments because, for sources affected by CAA section 112 only, the
General Provisions do not require any activities until source category-
specific standards have been promulgated or until title V permit
programs become effective. The actual recordkeeping and reporting
burden that would be imposed by the General Provisions for each source
category covered by 40 CFR part 63 will be estimated when standards
applicable to such category are promulgated.
Approval of an ICR is not required for the section 112(j) rule
amendments, either. The EPA fully expects to promulgate all remaining
MACT standards before the Part 2 permit applications are due, thus
eliminating the burden associated with preparing the application and
developing case-by-case MACT determinations for individual sources.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act (RFA)
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with these final
amendments. The EPA has also determined that these amendments will not
have a significant economic impact on a substantial number of small
entities. For purposes of assessing the impact of today's rule
amendments on small entities, small entities are defined as: (1) A
small business whose parent company has fewer than 1,000 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; or (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final amendments
on small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
A regulatory flexibility analysis is not necessary for the General
Provisions amendments because it is unknown at this time which
requirements from the General Provisions will be applicable to any
particular source category, whether such category includes small
businesses, and how significant the impacts of those requirements would
be on small businesses. Impacts on small entities associated with the
General Provisions will be assessed when specific emission standards
affecting those sources are developed. ``Small entities'' will be
defined in the context of the applicability of those standards.
Similarly, no analysis has been prepared for the amendments to the
section 112(j) rule. The rule provides general guidance and procedures
concerning the implementation of an underlying statutory requirement,
but it does not by itself impose any regulatory requirements or
prescribe the specific content of any case-by-case determination which
might be made under section 112(j). Although the final amendments will
not have a significant economic impact on a substantial number of small
entities, EPA nonetheless has tried to reduce the impact of the rule
amendments on small entities. We do not require the Part 2 permit
applications until 60 days after the scheduled MACT standard
promulgation date. We fully anticipate that all MACT standards will be
promulgated before any Part 2 applications are due, thus eliminating
the burden of submitting a Part 2 application.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
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 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 objective 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 final 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. The EPA has determined that this action
is not a ``significant'' regulatory action within the meaning of
Executive Order 12866, and it does not impose any additional Federal
mandate on State, local and tribal governments or the private sector
within the meaning of the UMRA. Thus, today's final rule amendments are
not subject to the requirements of sections 202, 203, and 205 of the
UMRA.
[[Page 32599]]
E. 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'' are 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.''
These final amendments do not have federalism implications and 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. Nevertheless, in the spirit of
Executive Order 13132 and consistent with EPA policy to promote
communications between EPA, State and local governments, EPA
specifically solicited comment on the rule amendments from State and
local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects 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.''
These final rule amendments do not have tribal implications. They
will not have substantial direct effects on tribal governments, or on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are currently no tribal governments that have approved title V
permit programs to which sources would submit permit applications on
May 15, 2002. Accordingly, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonable alternatives considered by the Agency.
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. The final amendments to the
General Provisions are not subject to Executive Order 13045 because the
provisions provide general technology performance and compliance
guidelines for section 112(d) standards, which are not based on health
or safety risks. Likewise, the final amendments to the section 112(j)
rule are not subject to Executive Order 13045 because they establish
the process for developing case-by-case MACT, and thus are based on
technology performance and not on safety or health risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, Or Use
These final amendments are not subject to Executive Order 13211 (66
FR 26355, May 22, 2001), because they are not a significant regulatory
action under Executive Order 12866.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Pub. L. No. 104-113) (15 U.S.C. 272 note),
directs the EPA to use voluntary consensus standards in their
regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices)
developed or adopted by one or more voluntary consensus bodies. The
NTTAA directs the EPA to provide Congress, through annual reports to
OMB, with explanations when an agency does not use available and
applicable voluntary consensus standards.
The final amendments to the General Provisions do not include any
technical standards; they consist primarily of revisions to the
generally applicable procedural and administrative requirements that
the General Provisions overlay on NESHAP. The final amendments to the
section 112(j) rule, which establishes requirements and procedures for
owners or operators of major sources of HAP and permitting authorities
to follow if the EPA misses the deadline for promulgation of section
112(d) standards, clarify and amend current procedural and
administrative provisions to establish equivalent emissions limitations
by permit. Therefore, section 112(j) is also not a vehicle for the
application of voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
SBREFA, 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. Therefore, we will submit a
report containing the final amendments and other required information
to the U.S. Senate, the U.S. House of Representatives, and the
Comptroller General of the United States prior to publication of the
rule in the Federal Register. A major rule cannot take effect until 60
days after it is published in the Federal Register. These final
amendments are not a ``major rule'' as defined by 5 U.S.C. 804(2), and
therefore will be effective May 30, 2003.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: May 8, 2003.
Christine Todd Whitman,
Administrator.
0
For the reasons cited in the preamble, part 63, title 40, chapter I of
the Code of Federal Regulations is amended as follows:
[[Page 32600]]
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
2. Section 63.2 is amended by revising the first sentence in the
definition of Malfunction to read as follows:
Sec. 63.2 Definitions.
* * * * *
Malfunction means any sudden, infrequent, and not reasonably
preventable failure of air pollution control and monitoring equipment,
process equipment, or a process to operate in a normal or usual manner
which causes, or has the potential to cause, the emission limitations
in an applicable standard to be exceeded. * * *
* * * * *
0
3. Section 63.6 is amended by:
0
a. Revising paragraph (e)(1)(i);
0
b. Revising the first sentence in paragraph (e)(3)(i) introductory
text;
0
c. Revising paragraph (e)(3)(i)(A);
0
d. Revising paragraph (e)(3)(iv);
0
e. Adding five sentences to the end of paragraph (e)(3)(v);
0
f. Revising paragraph (e)(3)(vi);
0
g. Revising the introductory text to paragraph (e)(3)(vii) and revising
paragraph (e)(3)(vii)(B); and
0
h. Revising the last sentence in paragraph (e)(3)(viii).
0
The revisions and addition read as follows:
Sec. 63.6 Compliance with standards and maintenance requirements.
* * * * *
(e) * * *
(1)(i) At all times, including periods of startup, shutdown, and
malfunction, the owner or operator must operate and maintain any
affected source, including associated air pollution control equipment
and monitoring equipment, in a manner consistent with safety and good
air pollution control practices for minimizing emissions. During a
period of startup, shutdown, or malfunction, this general duty to
minimize emissions requires that the owner or operator reduce emissions
from the affected source to the greatest extent which is consistent
with safety and good air pollution control practices. The general duty
to minimize emissions during a period of startup, shutdown, or
malfunction does not require the owner or operator to achieve emission
levels that would be required by the applicable standard at other times
if this is not consistent with safety and good air pollution control
practices, nor does it require the owner or operator to make any
further efforts to reduce emissions if levels required by the
applicable standard have been achieved. Determination of whether such
operation and maintenance procedures are being used will be based on
information available to the Administrator which may include, but is
not limited to, monitoring results, review of operation and maintenance
procedures (including the startup, shutdown, and malfunction plan
required in paragraph (e)(3) of this section), review of operation and
maintenance records, and inspection of the source.
* * * * *
(3) Startup, shutdown, and malfunction plan. (i) The owner or
operator of an affected source must develop and implement a written
startup, shutdown, and malfunction plan that describes, in detail,
procedures for operating and maintaining the source during periods of
startup, shutdown, and malfunction, and a program of corrective action
for malfunctioning process and air pollution control and monitoring
equipment used to comply with the relevant standard. * * *
(A) Ensure that, at all times, the owner or operator operates and
maintains each affected source, including associated air pollution
control and monitoring equipment, in a manner which satisfies the
general duty to minimize emissions established by paragraph (e)(1)(i)
of this section;
* * * * *
(iv) If an action taken by the owner or operator during a startup,
shutdown, or malfunction (including an action taken to correct a
malfunction) is not consistent with the procedures specified in the
affected source's startup, shutdown, and malfunction plan, and the
source exceeds any applicable emission limitation in the relevant
emission standard, then the owner or operator must record the actions
taken for that event and must report such actions within 2 working days
after commencing actions inconsistent with the plan, followed by a
letter within 7 working days after the end of the event, in accordance
with Sec. 63.10(d)(5) (unless the owner or operator makes alternative
reporting arrangements, in advance, with the Administrator).
(v) * * * The Administrator may at any time request in writing that
the owner or operator submit a copy of any startup, shutdown, and
malfunction plan (or a portion thereof) which is maintained at the
affected source or in the possession of the owner or operator. Upon
receipt of such a request, the owner or operator must promptly submit a
copy of the requested plan (or a portion thereof) to the Administrator.
The Administrator must request that the owner or operator submit a
particular startup, shutdown, or malfunction plan (or a portion
thereof) whenever a member of the public submits a specific and
reasonable request to examine or to receive a copy of that plan or
portion of a plan. The owner or operator may elect to submit the
required copy of any startup, shutdown, and malfunction plan to the
Administrator in an electronic format. If the owner or operator claims
that any portion of such a startup, shutdown, and malfunction plan is
confidential business information entitled to protection from
disclosure under section 114(c) of the Act or 40 CFR 2.301, the
material which is claimed as confidential must be clearly designated in
the submission.
(vi) To satisfy the requirements of this section to develop a
startup, shutdown, and malfunction plan, the owner or operator may use
the affected source's standard operating procedures (SOP) manual, or an
Occupational Safety and Health Administration (OSHA) or other plan,
provided the alternative plans meet all the requirements of this
section and are made available for inspection or submitted when
requested by the Administrator.
(vii) Based on the results of a determination made under paragraph
(e)(1)(i) of this section, the Administrator may require that an owner
or operator of an affected source make changes to the startup,
shutdown, and malfunction plan for that source. The Administrator must
require appropriate revisions to a startup, shutdown, and malfunction
plan, if the Administrator finds that the plan:
* * * * *
(B) Fails to provide for the operation of the source (including
associated air pollution control and monitoring equipment) during a
startup, shutdown, or malfunction event in a manner consistent with the
general duty to minimize emissions established by paragraph (e)(1)(i)
of this section;
* * * * *
(viii) * * * In the event that the owner or operator makes any
revision to the startup, shutdown, and malfunction plan which alters
the scope of the activities at the source which are deemed to be a
startup, shutdown, or malfunction, or otherwise modifies the
applicability of any emission limit, work practice requirement, or
other requirement in a standard established
[[Page 32601]]
under this part, the revised plan shall not take effect until after the
owner or operator has provided a written notice describing the revision
to the permitting authority.
* * * * *
0
4. Section 63.9 is amended by revising the first sentence in paragraph
(h)(2)(ii) and adding a sentence to the end of paragraph (h)(2)(ii) to
read as follows:
Sec. 63.9 Notification requirements.
* * * * *
(h) * * *
(2) * * *
(ii) The notification must be sent before the close of business on
the 60th day following the completion of the relevant compliance
demonstration activity specified in the relevant standard (unless a
different reporting period is specified in the standard, in which case
the letter must be sent before the close of business on the day the
report of the relevant testing or monitoring results is required to be
delivered or postmarked). * * * Notifications may be combined as long
as the due date requirement for each notification is met.
* * * * *
0
5. Section 63.10 is amended by revising paragraphs (d)(5)(i) and (ii)
to read as follows:
Sec. 63.10 Recordkeeping and reporting requirements.
* * * * *
(d) * * *
(5)(i) Periodic startup, shutdown, and malfunction reports. If
actions taken by an owner or operator during a startup, shutdown, or
malfunction of an affected source (including actions taken to correct a
malfunction) are consistent with the procedures specified in the
source's startup, shutdown, and malfunction plan (see Sec.
63.6(e)(3)), the owner or operator shall state such information in a
startup, shutdown, and malfunction report. Such a report shall identify
any instance where any action taken by an owner or operator during a
startup, shutdown, or malfunction (including actions taken to correct a
malfunction) is not consistent with the affected source's startup,
shutdown, and malfunction plan, but the source does not exceed any
applicable emission limitation in the relevant emission standard. Such
a report shall also include the number, duration, and a brief
description for each type of malfunction which occurred during the
reporting period and which caused or may have caused any applicable
emission limitation to be exceeded. Reports shall only be required if a
startup, shutdown, or malfunction occurred during the reporting period.
The startup, shutdown, and malfunction report shall consist of a
letter, containing the name, title, and signature of the owner or
operator or other responsible official who is certifying its accuracy,
that shall be submitted to the Administrator semiannually (or on a more
frequent basis if specified otherwise in a relevant standard or as
established otherwise by the permitting authority in the source's title
V permit). The startup, shutdown, and malfunction report shall be
delivered or postmarked by the 30th day following the end of each
calendar half (or other calendar reporting period, as appropriate). If
the owner or operator is required to submit excess emissions and
continuous monitoring system performance (or other periodic) reports
under this part, the startup, shutdown, and malfunction reports
required under this paragraph may be submitted simultaneously with the
excess emissions and continuous monitoring system performance (or
other) reports. If startup, shutdown, and malfunction reports are
submitted with excess emissions and continuous monitoring system
performance (or other periodic) reports, and the owner or operator
receives approval to reduce the frequency of reporting for the latter
under paragraph (e) of this section, the frequency of reporting for the
startup, shutdown, and malfunction reports also may be reduced if the
Administrator does not object to the intended change. The procedures to
implement the allowance in the preceding sentence shall be the same as
the procedures specified in paragraph (e)(3) of this section.
(ii) Immediate startup, shutdown, and malfunction reports.
Notwithstanding the allowance to reduce the frequency of reporting for
periodic startup, shutdown, and malfunction reports under paragraph
(d)(5)(i) of this section, any time an action taken by an owner or
operator during a startup, shutdown, or malfunction (including actions
taken to correct a malfunction) is not consistent with the procedures
specified in the affected source's startup, shutdown, and malfunction
plan, and the source exceeds any applicable emission limitation in the
relevant emission standard, the owner or operator shall report the
actions taken for that event within 2 working days after commencing
actions inconsistent with the plan followed by a letter within 7
working days after the end of the event. The immediate report required
under this paragraph (d)(5)(ii) shall consist of a telephone call (or
facsimile (FAX) transmission) to the Administrator within 2 working
days after commencing actions inconsistent with the plan, and it shall
be followed by a letter, delivered or postmarked within 7 working days
after the end of the event, that contains the name, title, and
signature of the owner or operator or other responsible official who is
certifying its accuracy, explaining the circumstances of the event, the
reasons for not following the startup, shutdown, and malfunction plan,
and describing all excess emissions and/or parameter monitoring
exceedances which are believed to have occurred. Notwithstanding the
requirements of the previous sentence, after the effective date of an
approved permit program in the State in which an affected source is
located, the owner or operator may make alternative reporting
arrangements, in advance, with the permitting authority in that State.
Procedures governing the arrangement of alternative reporting
requirements under this paragraph (d)(5)(ii) are specified in Sec.
63.9(i).
* * * * *
0
6. Section 63.13 is amended by revising the address for EPA Region IV
in paragraph (a) to read as follows:
Sec. 63.13 Addresses of State air pollution control agencies and EPA
Regional Offices.
(a) * * *
EPA Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee). Director, Air, Pesticides
and Toxics Management Division, Atlanta Federal Center, 61 Forsyth
Street, Atlanta, GA 30303-3104.
* * * * *
Subpart B--[Amended]
0
7. Section 63.50 is amended by adding paragraph (c) and paragraph (d)
to read as follows:
Sec. 63.50 Applicability.
* * * * *
(c) The procedures in Sec. Sec. 63.50 through 63.56 apply for each
affected source only after the section 112(j) deadline for the source
category or subcategory in question has passed, and only until such
time as a generally applicable Federal standard governing that source
has been promulgated under section 112(d) or 112(h) of the Act. Once a
generally applicable Federal standard governing that source has been
promulgated, the owner or operator of the affected source and the
permitting authority are not required to take any further actions to
develop an equivalent
[[Page 32602]]
emission limitation under section 112(j) of the Act.
(d) Any final equivalent emission limitation for an affected source
which is issued by the permitting authority pursuant to Sec. Sec.
63.50 through 63.56 prior to promulgation of a generally applicable
Federal standard governing that source under section 112(d) or 112(h)
of the Act shall be deemed an applicable Federal requirement adopted
pursuant to section 112(j) of the Act. Each such equivalent emission
limitation shall take effect upon issuance of the permit containing
that limitation under section 112(j)(5) of the Act, and shall remain
applicable to the source until such time as it may be revised or
supplanted pursuant to the procedures established by Sec. Sec. 63.50
through 63.56. Such a final equivalent emission limitation, and all
associated requirements adopted pursuant to Sec. 63.52(f)(2), are
directly enforceable under Federal law regardless of whether or not any
permit in which they may be contained remains in effect.
0
8. Section 63.52 is amended by revising paragraphs (e)(1) and (e)(2)(i)
through (ii) to read as follows:
Sec. 63.52 Approval process for new and existing affected sources.
* * * * *
(e) Permit application review.
(1) Each owner or operator who is required to submit to the
permitting authority a Part 1 MACT application which meets the
requirements of Sec. 63.53(a) for one or more sources in a category or
subcategory subject to section 112(j) must also submit to the
permitting authority a timely Part 2 MACT application for the same
sources which meets the requirements of Sec. 63.53(b). Each owner or
operator shall submit the Part 2 MACT application for the sources in a
particular category or subcategory no later than the applicable date
specified in Table 1 to this subpart. The submission date specified in
Table 1 to this subpart for Miscellaneous Organic Chemical
Manufacturing shall apply to sources in each of the source categories
listed in Table 2 to this subpart. When the owner or operator is
required by Sec. Sec. 63.50 through 63.56 to submit an application
meeting the requirements of Sec. 63.53(a) by a date which is after the
date for a Part 2 MACT application for sources in the category or
subcategory in question established by Table 1 to this subpart, the
owner or operator shall submit a Part 2 MACT application meeting the
requirements of Sec. 63.53(b) within 60 additional days after the
applicable deadline for submission of the Part 1 MACT application. Part
2 MACT applications must be reviewed by the permitting authority
according to procedures established in Sec. 63.55. The resulting MACT
determination must be incorporated into the source's title V permit
according to procedures established under title V, and any other
regulations approved under title V in the jurisdiction in which the
affected source is located.
(2) Notwithstanding paragraph (e)(1) of this section, the owner or
operator may request either an applicability determination or an
equivalency determination by the permitting authority as provided in
paragraphs (e)(2)(i) and (ii) of this section.
(i) Each owner or operator who submitted a request for an
applicability determination pursuant to paragraph (d)(1) of this
section on or before May 15, 2002, which remains pending before the
permitting authority on May 30, 2003, and who still wishes to obtain
such a determination, must resubmit that request by July 29, 2003, or
by the date which is 60 days after the Administrator publishes in the
Federal Register a proposed standard under section 112(d) or 112(h) of
the Act for the category or subcategory in question, whichever is
later. Each request for an applicability determination which is
resubmitted under this paragraph (e)(2)(i) must be supplemented to
discuss the relation between the source(s) in question and the
applicability provision in the proposed standard for the category or
subcategory in question, and to explain why there may still be
uncertainties that require a determination of applicability. The
permitting authority must take action upon each properly resubmitted
and supplemented request for an applicability determination within an
additional 60 days after the applicable deadline for the resubmitted
request. If the applicability determination is positive, the owner or
operator must submit a Part 2 MACT application meeting the requirements
of Sec. 63.53(b) by the date specified for the category or subcategory
in question in Table 1 to this subpart. If the applicability
determination is negative, then no further action by the owner or
operator is necessary.
(ii) As specified in paragraphs (a) and (b) of this section, an
owner or operator who has submitted an application meeting the
requirements of Sec. 63.53(a) may request a determination by the
permitting authority of whether emission limitations adopted pursuant
to a prior case-by-case MACT determination under section 112(g) that
apply to one or more sources at a major source in a relevant category
or subcategory are substantially as effective as the emission
limitations which the permitting authority would otherwise adopt
pursuant to section 112(j) for the source in question. Such a request
must be submitted by the date for the category or subcategory in
question specified in Table 1 to this subpart. Any owner or operator
who previously submitted such a request under a prior version of this
paragraph (e)(2)(ii) need not resubmit the request. Each request for an
equivalency determination under this paragraph (e)(2)(ii), regardless
of when it was submitted, will be construed in the alternative as a
complete application for an equivalent emission limitation under
section 112(j). The process for determination by the permitting
authority of whether the emission limitations in the prior case-by-case
MACT determination are substantially as effective as the emission
limitations which the permitting authority would otherwise adopt under
section 112(j) must include the opportunity for full public, EPA, and
affected State review prior to a final determination. If the permitting
authority determines that the emission limitations in the prior case-
by-case MACT determination are substantially as effective as the
emission limitations which the permitting authority would otherwise
adopt under section 112(j), then the permitting authority must adopt
the existing emission limitations in the permit as the emission
limitations to effectuate section 112(j) for the source in question. If
more than 3 years remain on the current title V permit, the owner or
operator must submit an application for a title V permit revision to
make any conforming changes in the permit required to adopt the
existing emission limitations as the section 112(j) MACT emission
limitations. If less than 3 years remain on the current title V permit,
any required conforming changes must be made when the permit is
renewed. If the permitting authority determines that the emission
limitations in the prior case-by-case MACT determination under section
112(g) are not substantially as effective as the emission limitations
which the permitting authority would otherwise adopt for the source in
question under section 112(j), the permitting authority must make a new
MACT determination and adopt a title V permit incorporating an
appropriate equivalent emission limitation under section 112(j). Such a
determination constitutes final action for purposes of judicial review
under 40 CFR 70.4(b)(3)(x) and corresponding State title V program
provisions.
* * * * *
[[Page 32603]]
0
9. Section 63.53 is amended by:
0
a. Redesignating paragraphs (b)(1) and (2) as paragraphs (b)(2) and
(3);
0
b. Adding a new paragraph (b)(1); and
0
c. Revising newly designated paragraph (b)(2).
0
The addition and revision read as follows:
Sec. 63.53 Application content for case-by-case MACT determinations.
* * * * *
(b) * * *
(1) In compiling a Part 2 MACT application, the owner or operator
may cross-reference specific information in any prior submission by the
owner or operator to the permitting authority, but in cross-referencing
such information the owner or operator may not presume favorable action
on any prior application or request which is still pending. In
compiling a Part 2 MACT application, the owner or operator may also
cross-reference any part of a standard proposed by the Administrator
pursuant to section 112(d) or 112(h) of the Act for any category or
subcategory which includes sources to which the Part 2 application
applies.
(2) The Part 2 application for a MACT determination must contain
the information in paragraphs (b)(2)(i) through (b)(2)(v) of this
section.
(i) For a new affected source, the anticipated date of startup of
operation.
(ii) Each emission point or group of emission points at the
affected source which is part of a category or subcategory for which a
Part 2 MACT application is required, and each of the hazardous air
pollutants emitted at those emission points. When the Administrator has
proposed a standard pursuant to section 112(d) or 112(h) of the Act for
a category or subcategory, such information may be limited to those
emission points and hazardous air pollutants which would be subject to
control under the proposed standard.
(iii) Any existing Federal, State, or local limitations or
requirements governing emissions of hazardous air pollutants from those
emission points which are part of a category or subcategory for which a
Part 2 application is required.
(iv) For each identified emission point or group of affected
emission points, an identification of control technology in place.
(v) Any additional emission data or other information specifically
requested by the permitting authority.
* * * * *
0
10. Subpart B is amended by adding Tables 1 and 2 to the end of the
subpart to read as follows:
Tables to Subpart B of Part 63
Table 1 to Subpart B of Part 63.--Section 112(j) Part 2 Application Due
Dates
------------------------------------------------------------------------
Due date MACT standard
------------------------------------------------------------------------
10/30/03............................ Combustion Turbines.
Lime Manufacturing.
Site Remediation.
Iron and Steel Foundries.
Taconite Iron Ore Processing.
Miscellaneous Organic Chemical
Manufacturing (MON).\1\
Organic Liquids Distribution.
Primary Magnesium Refining.
Metal Can (Surface Coating).
Plastic Parts and Products
(Surface Coating).
Chlorine Production.
Miscellaneous Metal Parts and
Products (Surface Coating) (and
Asphalt/Coal Tar Application--
Metal Pipes).\2\
4/28/04............................. Industrial Boilers, Institutional/
Commercial Boilers and Process
Heaters.\3\
Plywood and Composite Wood
Products.
Reciprocating Internal Combustion
Engines.\4\
Auto and Light-Duty Truck (Surface
Coating).
8/13/05............................. Industrial Boilers, Institutional/
Commercial Boilers, and Process
Heaters.\5\
Hydrochloric Acid Production.\6\
------------------------------------------------------------------------
\1\ Covers 23 source categories, see Table 2 to this subpart.
\2\ Two source categories.
\3\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn no
hazardous waste.
\4\ Includes engines greater than 500 brake horsepower.
\5\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn
hazardous waste.
\6\ Includes furnaces that produce acid from hazardous waste at sources
in the category Hydrochloric Acid Production.
Table 2 to Subpart B of Part 63.--MON Source Categories
------------------------------------------------------------------------
---------------------------------------------------------------------------
Manufacture of Paints, Coatings, and Adhesives.
Alkyd Resins Production.
Maleic Anhydride Copolymers Production.
Polyester Resins Production.
Polymerized Vinylidene Chloride Production.
Polymethyl Methacrylate Resins Production.
Polyvinyl Acetate Emulsions Production.
Polyvinyl Alcohol Production.
Polyvinyl Butyral Production.
Ammonium Sulfate Production-Caprolactam By-Product Plants.
Quaternary Ammonium Compounds Production.
Benzyltrimethylammonium Chloride Production.
Carbonyl Sulfide Production.
Chelating Agents Production.
Chlorinated Paraffins Production.
Ethylidene Norbornene Production.
Explosives Production.
Hydrazine Production.
OBPA/1,3-Diisocyanate Production.
Photographic Chemicals Production.
Phthalate Plasticizers Production.
Rubber Chemicals Manufacturing.
Symmetrical Tetrachloropyridine Production.
------------------------------------------------------------------------
[FR Doc. 03-13178 Filed 5-29-03; 8:45 am]
BILLING CODE 6560-50-P