02-5862. National Emission Standards for Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil Production

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule; amendments.

SUMMARY:

We are taking direct final action to amend the national emission standards for hazardous air pollutants (NESHAP) for solvent extraction for vegetable oil production plants which were promulgated on April 12, 2001 under authority of section 112 of the Clean Air Act (CAA). The amendments will clarify the startup, shutdown, and malfunction requirements for owners or operators subject to the Vegetable Oil NESHAP. The amendments will also clarify the applicability of the NESHAP General Provisions.

DATES:

This direct final action rule will be effective on June 4, 2002 without further notice, unless significant adverse comments are received by May 6, 2002.

If significant adverse comments are received we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect.

ADDRESSES:

Comments. By U.S. Postal Service, submit written comments (in duplicate, if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-97-59, U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, submit comments (in duplicate, if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-97-59, Room M-1500, U.S. EPA, 401 M Street, SW., Washington DC 20460. We request that a separate copy of each public comment also be sent to the contact person listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:

Mr. Rick Colyer, Minerals and Inorganic Chemicals Group (C504-05), Emission Standards Division, U.S. EPA, Research Triangle Park, NC 27711, telephone number [phone], electronic mail (e-mail): [e-mail].

SUPPLEMENTARY INFORMATION:

Comments. We are publishing this direct final rule without proposal because we view the amendments as noncontroversial and do not anticipate adverse comments. However, in the Proposed Rules section of this Federal Register, we are publishing a separate document that will serve as the proposal in the event that adverse comments are filed.

If we receive any significant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this direct final rule. Any parties interested in commenting must do so at this time.

Docket

The docket is an organized and complete file of the administrative record compiled developing this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to help you to readily identify and locate documents so that you can effectively participate in the rulemaking process. Along with the proposed and promulgated rules and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section 307(d)(7)(A)) of the CAA.) You may obtain the regulatory text and other materials related to this rulemaking are available for review in the docket or copies may be mailed on request from the Air Docket by calling [phone]. We may charge a reasonable fee for copying docket materials. You may also obtain docket indexes by facsimile, as described on the Office of Air and Radiation, Docket and Information Center Website at http://www.epa.gov/​airprogm/​oar/​docket/​faxlist.html.

Worldwide Web

In addition to being available in the docket, an electronic copy of this direct final rule will also be available through the Worldwide Web (WWW). Following signature, a copy of the direct final rule will be posted on the EPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/​ttn/​oarpg. The TTN at EPA's web site 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 [phone].

Regulated Entities

If your facility produces vegetable oil from corn germ, cottonseed, flax, peanuts, rapeseed (for example, canola), safflower, soybeans, or sunflower, it may be a “regulated entity.” Categories and entities potentially regulated by this action include:

Category	NAICS	Examples of regulated entities
Industry	311223	Cottonseed oil mills.
	311222	Soybean oil mills.
	311223	Other vegetable oil mills, excluding soybeans and cottonseed mills.
	311223	Other vegetable oil mills, excluding soybeans and cottonseed mills.
	311119	Prepared feeds and feed ingredients for animals and fowls, excluding dogs and cats.
	311211	Flour and other grain mill product mills.
	311221	Wet corn milling.
Federal government		Not affected.
State/local/tribal government		Not affected.

This table 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 your facility is regulated by this action, you should examine the applicability criteria in § 63.2832 of the rule. If you have any questions regarding the applicability of these amendments to a particular entity, consult the appropriate EPA Regional Office representative.

Judicial Review

Under section 307(b)(1) of the CAA, judicial review of this direct final rule is available after the effective date by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit no later than June 4, 2002. Under section 307(d)(7)(B) of the CAA, only an objection to a rule or procedure raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by this direct final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.

I. Why Are We Publishing These Amendments as a Direct Final Rule?

On May 26, 2000, we proposed National Emission Standards for Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil Production (65 FR 34252). The proposed rule included requirements for limiting emissions during vegetable oil production, including requirements during startup, shutdown, and malfunction (SSM) of vegetable oil production processes. As with all NESHAP, the regulatory development process included an examination of which specific provisions in the General Provisions at 40 CFR part 63, subpart A, should be applicable to sources subject to subpart GGGG. Based on a review of the General Provisions promulgated on March 16, 1994 (59 FR 12408), we determined that 40 CFR 63.6(e), which contains various procedures related to operation and maintenance and SSM, would apply to sources subject to subpart GGGG.

Based on public comments, we made one major change to the proposed regulation, which was to allow the use of an accounting month rather than a calendar month to determine solvent losses and quantities of oilseed processed by an affected source. There were no substantive public comments on the proposed SSM provisions and they were not changed in the final rule. On April 12, 2001, we promulgated National Emission Standards for Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil Production (66 FR 19006).

On March 23, 2001 (66 FR 16318), we proposed amendments to the General Provisions to part 63. The proposed amendments included several changes to the SSM requirements. Among others, these changes included proposed 40 CFR 63.6(e)(3)(iii) requiring records related to malfunctions; proposed 40 CFR 63.6(e)(3)(iv) which requires reporting of actions inconsistent with the startup, shutdown, and malfunction plan (SSMP); and proposed 40 CFR 63.6(e)(3)(viii) which requires reporting modifications to the SSM plan in the semiannual report. In addition, the proposed changes to the General Provisions SSMP clarify that the title V permit must require that an SSMP be prepared and followed but the SSMP is not itself part of the title V permit.

In the preamble to the proposed General Provisions amendments, we specifically requested comment on “any conflicts * * * that result solely from applying these proposed amendments to the General Provisions to promulgated part 63 subparts.” One commenter identified such a conflict between SSM provisions of the Vegetable Oil Production NESHAP and those provisions in the General Provisions. Specifically, the commenter noted that proposed 40 CFR 63.6(e)(3)(iii), which requires records related to malfunctions under 40 CFR 63.10(b), should not apply to subpart GGGG, as subpart GGGG states that 40 CFR 63.10(b)(2)(ii) through (iii) relating to malfunction records do not apply. Also, proposed 40 CFR 63.6(e)(3)(iv), which requires reporting of actions inconsistent with the SSMP if the emissions exceed the relevant standard, does not comport with subpart GGGG. The Vegetable Oil Production NESHAP require reporting of such actions regardless of whether the standard was exceeded. The commenter also specifically noted that proposed 40 CFR 63.6(e)(3)(viii), the requirement to report modifications to the SSM plan in the semiannual report, should not apply to sources subject to subpart GGGG, as subpart GGGG does not require a semiannual report.

We agree with the commenter that these proposed provisions conflict with those in the promulgated Vegetable Oil Production NESHAP. As we proposed to codify in 40 CFR 63.1(a)(4)(i), each relevant part 63 standard should identify explicitly whether each provision in subpart A is or is not included in each standard. This regulatory language is based on our conviction that each NESHAP must determine which of the General Provisions do or do not make sense for a particular source category. It was not our intent to alter the SSMP requirements of the Vegetable Oil Production NESHAP.

We have discussed the implications of the General Provisions amendments with the commenter and as a result are editing subpart GGGG to correct the inconsistencies. These changes will ensure the minimization of emissions at all times, clarify the SSM requirements, and specify the relationship of the General Provisions to Vegetable Oil Production NESHAP affected sources.

II. What Are the Amendments to the Final Rule?

With this direct final action, we are amending several provisions related to SSM requirements. Specifically, we are amending the explanation column of Table 1 of 40 CFR 63.2870 as it applies to 40 CFR 63.6(e) to state, “implement your plan as specified in § 63.2852.” Table 1 also now indicates that 40 CFR 63.6(e)(3)(iii), (iv) and (viii) do not apply to Vegetable Oil Production NESHAP affected sources.

We are also amending the first sentence of 40 CFR 63.2861(d) to clarify that owner/operators must submit an immediate SSM report if an SSM is handled differently from the procedures in the SSM plan and the emission standards are exceeded.

We are also amending the third sentence of 40 CFR 63.2852 to clarify that the SSMP does not have to be incorporated into the title V permit.

These changes will ensure the minimization of emissions at all times, clarify the SSM requirements, and specify the relationship of the General Provisions to Vegetable Oil Production NESHAP affected sources.

Please note that these changes are contained within the Vegetable Oil Production NESHAP and that they are being made for consistency with the General Provisions amendments, where appropriate. The Vegetable Oil Production NESHAP, however, also contains specifically tailored SSMP provisions for this industry and one should look expressly to that rule for the applicable SSMP provisions.

III. What Are the Administrative Requirements?

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993) the EPA must determine whether the regulatory action is “significant” and therefore subject to 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.

Pursuant to the terms of Executive Order 12866, we have determined that these amendments do not constitute a “significant regulatory action” because they do not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.

B. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This direct final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of Executive Order 13132 do not apply to this direct final rule.

C. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (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.”

These rule amendments do not have tribal implications, as specified in Executive Order 13175. No tribal governments are known to own or operate solvent extraction for vegetable oil production facilities. Thus, Executive Order 13175 does not apply to these rule amendments.

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

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (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 the 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 reasonably feasible 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 Order has the potential to influence the regulation. This direct final rule is not subject to the Executive Order because it is based on technology performance and not on health or safety risks.

E. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use

The direct final rule amendments are not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because they are not significant regulatory actions under Executive Order 12866.

F. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

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

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

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. The EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impact of today's rule on small entities, small entities are defined as: (1) A small business that has less than 750 employees and is unaffiliated with a larger domestic entity; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that 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. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. sections 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. The amendments better clarify and make the startup, shutdown, and malfunction plan consistent with the amended part 63 subpart A; the effect is to clarify that sources do not have to modify their title V permit each time the SSMP is changed. We have therefore concluded that today's direct final rule will relieve regulatory burden for all small entities.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the EPA must consider the paperwork burden imposed by any information collection request in a proposed or final rule. The OMB has previously approved the information collection requirements for the subject facilities under the Paperwork Reduction Act (OMB Control No. 2060-0471). The amendments contained in this direct final rule will have no net impact on the information collection burden estimates made previously. Consequently, the ICR has not been revised.

I. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (March 7, 1996) (15 U.S.C. 272 note), directs all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or would be otherwise impractical. Voluntary consensus standards are technical standards (for example, material specifications, test methods, sampling and analytical procedures, business practices, etc.) that are developed or adopted by one or more voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when EPA does not use available and applicable voluntary consensus standards.

This action does not involve the use of any new technical standards. Accordingly, the NTTAA requirement to use applicable voluntary consensus standards does not apply to this direct final rule.

J. The Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Hazardous substances
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: March 5, 2002.

Christine Todd Whitman,

Administrator.

For the reasons cited in the preamble, part 63, title 40, chapter I of the Code of Federal Regulations is amended as follows:

PART 63—[AMENDED]

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

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

Subpart GGGG—[AMENDED]

2. Section 63.2852 is amended by revising the first three sentences to read as follows:

§ 63.2852

What is a startup, shutdown, and malfunction plan?

You must develop a written SSM plan in accordance with § 63.6(e)(3) and implement the plan, when applicable. You must complete the SSM plan before the compliance date for your source. You must also keep the SSM plan on-site and readily available as long as the source is operational.* * *

3. Section 63.2861 is amended by revising the first sentence of paragraph (d) introductory text to read as follows:

§ 63.2861

What reports must I submit and when?

* * * * *

(d) Immediate SSM reports. If you handle a SSM during an initial startup period subject to § 63.2850(c)(2) or (d)(2) or a malfunction period subject to § 63.2850(e)(2) differently from procedures in the SSM plan and the relevant emission requirements in § 63.2840 are exceeded, then you must submit an immediate SSM report. * * *

* * * * *

4. Table 1 of § 63.2870 is amended by revising the entry to § 63.6(e) to read as follows:

§ 63.2870

What parts of the General Provisions apply to me?

* * * * *

Table 1 of § 63.2870.—Applicability of 40 CFR Part 63, Subpart A, to 40 CFR Part 63, Subpart GGGG

General provisions citation	Subject of citation	Brief description of requirement	Applies to subpart	Explanation
*         *         *         *         *         *         *
§ 63.6(e)(1) through (e)(3)(ii) and § 63.6(e)(3)(v) through (vii)	Operation and maintanance requirements		Yes	Implement your SSM plan, as specified in § 63.2852.
§ 63.6(e)(3)(v)(iii)	Operation and maintenance requirements		No	Implement your plan, as specified in § 63.2852.
§ 63.6(e)(3)(iv)	Operation and maintenance requirements		No	Report SSM and in accordance with § 63.2861(c) and (d).
§ 63.6(e)(3)(viii)	Operation and maintenance requirements		Yes	Except, report each revision to your SSM plan in accordance with § 63.2861(c) rather than § 63.10(d)(5) as required under § 63.6(e)(3) (viii).
*         *         *         *         *         *         *