02-12842. National Emission Standards for Hazardous Air Pollutants: Generic Maximum Achievable Control Technology

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule; amendments.

SUMMARY:

The EPA is taking direct final action to amend the “generic” maximum achievable control technology (MACT) standards to clarify the agency's intent concerning dry spinning spandex production processes. The national emission standards for hazardous air pollutants (NESHAP) for the Spandex Production source category, along with the NESHAP for three other source categories, are being included in the Generic MACT rule in this issue of the Federal Register.

DATES:

The direct final rule will be effective on September 25, 2002 without further notice, unless significant adverse comments are received by August 12, 2002, or by August 26, 2002 if a public hearing is requested. See the proposed rule in this issue of the Federal Register for information on the hearing. If we receive timely adverse comments, we will withdraw this direct final rule and take final action pursuant to the proposed rule.

ADDRESSES:

Comments. By U.S. Postal Service, send comments (in duplicate, if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-98-25, U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. In person or by courier, deliver comments (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-98-25, U.S. EPA, 401 M Street, SW., Washington DC 20460. The EPA requests that a separate copy of each public comment be sent to the contact person listed below (see FOR FURTHER INFORMATION CONTACT). Comments may also be submitted electronically by following the instructions provided in SUPPLEMENTARY INFORMATION.

Docket. Docket No. A-98-25 contains supporting information used in developing the NESHAP. The docket is located at the U.S. EPA, 401 M Street, SW., Washington, DC 20460 in Room M-1500, Waterside Mall (ground floor), and may be inspected from 8 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Ms. Elaine Manning, Waste and Chemical Processes Group, Emission Standards Division (Mailcode C43903), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number [phone], electronic mail (e-mail) address: [e-mail].

SUPPLEMENTARY INFORMATION:

Comments. Comments and data may be submitted by e-mail to: [e-mail]. Electronic comments must be submitted as an ASCII file to avoid the use of special characters and encryption problems and will also be accepted on disks in WordPerfect file format. All comments and data submitted in electronic form must note the docket number A-98-25. No confidential business information (CBI) should be submitted by e-mail. Electronic comments may be filed online at many Federal Depository Libraries.

Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Ms. Elaine Manning, c/o OAQPS Document Control Officer (Mailcode C404-02), U.S. EPA, Research Triangle Park, NC 27711. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.

Docket. The docket is an organized and complete file of the administrative record compiled by EPA in the development of this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards 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 Clean Air Act (CAA).) 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]. A reasonable fee may be charged for copying docket materials.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this action will also be available through the WWW. Following signature, a copy of this action will be posted on the EPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules: 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. The regulated category and entities affected by this action include:

Category	NAICS codes	SIC codes	Examples of regulated entities
Industry	325222	2824	Producers of spandex.

This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the regulation affected by this action. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine all of the applicability criteria in § 63.1104 of the rule. If you have questions regarding the applicability of these amendments to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Judicial Review. Under section 307(b)(1) of the CAA, judicial review of this direct final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia by September 10, 2002. Under section 307(d)(7)(B) of the CAA, only an objection to this direct final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review.

Outline. The information presented in this preamble is organized as follows:

I. Why are we publishing these amendments as a direct final rule?

II. What amendments are we making to the NESHAP for spandex production?

III. What are the administrative requirements?

A. Executive Order 12866, Regulatory Planning and Review

B. Executive Order 13132, Federalism

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

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

E. Unfunded Mandates Reform Act of 1995

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

G. Paperwork Reduction Act

H. National Technology Transfer and Advancement Act

I. Congressional Review Act

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

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

The EPA received several comments on the proposed standards for spandex production. One commenter was concerned that because the dry spinning spandex production process was not mentioned in the proposal, an interpretation could be made that EPA failed to make any decision concerning a MACT standard for this group of sources, and as a result these facilities would be subject to a case-by-case MACT determination under CAA section 112(j). Prior to proposal, we evaluated HAP emissions from dry spinning spandex production and determined that adoption of MACT standards requiring additional emissions reductions for these facilities is not necessary or appropriate. Our silence concerning these facilities in the proposal was intended to reflect this conclusion.

However, we agree with the commenter that our silence in the proposal regarding the dry spinning production process might be interpreted as a failure to specifically address the need for standards governing emissions of hazardous air pollutants (HAP) from these facilities and, thereby, trigger the case-by-case determinations required by the “hammer” provision in CAA section 112(j). Since we did not explicitly state our decision not to adopt any standards for these sources or describe our rationale for that decision in the proposed rule, we have determined that we should supplement our proposal. However, since we do not expect our decision that no MACT standards are necessary for spandex dry spinning facilities to be controversial, and we do not anticipate any adverse comments concerning our decision, we have determined that it is appropriate to effectuate this decision through a direct final rule. This assures that any ambiguity which might otherwise exist concerning our intention to adopt MACT requirements for these facilities will be resolved in a timely manner.

If any adverse comment is received concerning our decision not to adopt MACT standards for spandex dry spinning facilities, we will withdraw this direct final rule. In the “Proposed Rules” section of this issue of the Federal Register, we are publishing a separate document that will serve as the proposal for our decision not to adopt MACT standards for these facilities in the event we receive any adverse comment. In that case, EPA will publish a timely withdrawal notice before the effective date of this direct final rule and will take final action concerning the proposal after considering the comments received.

II. What Amendments Are We Making to the NESHAP for Spandex Production?

During the rule development, we investigated emissions from dry spinning spandex production processes (comparing the emissions to the reaction spinning process) and made the following findings.

While dry and reaction spinning processes have many similarities, there are significant differences in HAP emissions and controls between the processes. The dry and reaction spinning processes are similar in their use of reactants and process chemistry. Both processes involve the same basic process steps, including production of prepolymer, production of polymer, extrusion of fibers, and drying of fibers. However, a major process difference that affects the amount of HAP emissions from the dry spinning process is the type of solvent used in the production. In the dry spinning production process, non-HAP solvents are used as opposed to HAP-containing solvents used in the reaction spinning process. The estimated total HAP from the three dry spinning production facilities is approximately 4.1 megagrams per year (mg/yr) (4.5 tons per year (tpy)) whereas the two reaction spinning processes emit 303 mg/yr (334 tpy).

Although the dry spinning production process does not use HAP solvents, small amounts of organic HAP are used and generated. The HAP that is produced in the dry spinning process is formaldehyde. Formaldehyde is generated as a byproduct of heating the dimethyl acetamide in the spin cells and is emitted from the process vent along with the non-HAP solvent. None of the existing dry spinning production facilities have controls in place for formaldehyde emissions. Therefore, the floor for dry spinning production process vents is no control. A beyond-the-floor analysis (development of a regulatory option and analysis of the costs associated with the option) was performed on the HAP emissions from the dry spinning production process. The flow rates for process vent streams from the dry spinning production process are large and the concentration of formaldehyde is low. The total annual cost to control these emissions would be approximately $49 million per year, or $12 million per ton of formaldehyde controlled. This is an unreasonable cost to go beyond the floor. Controlling this stream would also use significant amounts of energy. We do not know of a way to change the process or the feeds to reduce the HAP emissions. We have, therefore, decided not to select the beyond-the-floor regulatory option.

The other source of HAP emissions from dry spinning production sources is methylene diphenyl diisocyanate (MDI) storage. The MDI is one of the raw materials used in the spandex production process and has a very low volatility. Thus, we would expect emissions of MDI from the storage tanks to also be very low, perhaps even undetectable. All MDI storage tanks at dry spinning spandex production facilities are fixed-roof tanks. Additionally, one facility has carbon canisters on the vents from the MDI storage tanks (although the control efficiency of the canisters cannot be determined). We estimate that the combined annual MDI emissions from the storage tanks at all three dry spinning facilities do not exceed 500 pounds. We do not believe that requiring additional controls on these storage tanks would yield any meaningful emission reductions. This conclusion is corroborated by our determination that all of the MDI storage tanks at dry spinning production facilities are below the size and vapor pressure requirements for control under all existing MACT standards.

Based on the above analysis, we have concluded that the MACT floor for spandex dry spinning facilities is no control and that adoption of additional emission controls is not warranted. Therefore, we determined that it is not necessary or appropriate to promulgate any MACT requirements for these facilities.

III. What Are the Administrative Requirements?

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and, therefore, subject to 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, it has been 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 (64 FR 43255, August 10, 1999) requires 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.”

These rule amendments do not have federalism implications. They 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, because State and local governments do not own or operate any sources that would be subject to these amendments. Thus, the requirements of section 6 of the Executive Order do not apply.

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 officals 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 the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

These 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. No tribal governments own or operate spandex 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 (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, EPA 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 EPA.

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

E. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires 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 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 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 rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or the private sector in any 1 year. Today's amendments do not add new requirements that would increase the costs of the rule. Thus, these rule amendments are not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that these rule 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 upon them. Therefore, these rule amendments are not subject to the requirements of section 203 of the UMRA.

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

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as: (1) A small business in the North American Industrial Classification System (NAICS) code 325411 or 325412 that has as many as 750 employees; (2) a small business in NAICS code 325199 that has as many as 1,000 employees; (3) 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 (4) 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 the rule amendments on small entities, the EPA has determined that this action will not have a significant economic impact on a substantial number of small entities. The EPA has determined that none of the small entities will experience a significant impact because the amendments impose no additional regulatory requirements on owners or operators of affected sources.

G. Paperwork Reduction Act

This action does not impose any new information collection burden. However, an information collection request (ICR) has been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., for the rule which is amended by today's direct final rule. An ICR document has been prepared by EPA (ICR No. 1983.02) and a copy may be obtained from Sandy Farmer by mail at the U.S. EPA, Office of Environmental Information, Collection Strategies Division (2822), 1200 Pennsylvania Avenue NW, Washington, DC 20460, by e-mail at [e-mail], or by calling [phone]. A copy may also be downloaded off the internet at http://www.epa.gov/​icr.

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.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113 (March 7, 1996), directs all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling and analytical procedures, and business practices) that are developed or adopted by one or more voluntary consensus bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), and the Society of Automotive Engineers (SAE). The NTTAA requires Federal agencies like EPA to provide Congress, through OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

This direct final rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

I. Congressional Review Act

The Congressional Review Act (CRA), 5 U.S.C. 801, et seq., as added by the SBREFA of 1996, generally provides that before a rule may take effect, the agency adopting 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 direct final 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 this rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This direct final rule is not a “major rule” as defined by 5 U.S.C. 804(2). This direct final rule will be effective on September 25, 2002.

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

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

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 15, 2002.

Christine Todd Whitman,

Administrator.

For the reasons set out in the preamble, part 63 of title 40, chapter I of the Code of Federal Regulations are 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 YY—[Amended]

2. Section 63.1103 is amended by:

a. Revising paragraph (h)(1)(i) introductory text;

b. Adding paragraph (h)(1)(ii)(C); and

c. Adding, in alphabetical order, definitions of dry spinning and reaction spinning to paragraph (h)(2).

The revision and additions are to read as follows:

§ 63.1103

Source category-specific applicability, definitions, and requirements.

* * * * *

(h) * * *

(1) * * *

(i) Affected source. For the spandex production (as defined in paragraph (h)(2) of this section) source category, the affected source shall comprise all emission points listed in paragraphs (h)(1)(i)(A) through (C) of this section that are associated with a spandex production process unit located at a major source, as defined in section 112(a) of the Act.

* * * * *

(ii) * * *

(C) Emission points listed in paragraphs (h)(1)(i)(A) through (C) of this section that are associated with a dry spinning spandex production process unit.

* * * * *

(2) Definitions.

Dry spinning means a fiber-forming process where prepolymer is reacted with a chain-extender to generate polymer prior to spinning; the polymer is dissolved in a solvent and is extruded into a cell of hot gases for fiber formation.

* * * * *

Reaction spinning means a fiber-forming process where prepolymer is extruded into a spin bath that contains a chain-extender; the chemical reaction to make polymer occurs simultaneously with extrusion/fiber formation.

* * * * *