National Emission Standards for Hazardous Air Pollutants: Plywood and Composite Wood Products; List of Hazardous Air Pollutants, Lesser Quantity Designations, Source Category List; Reconsideration, 43826-43832 [05-14533]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 145 (Friday, July 29, 2005)]
[Proposed Rules]
[Pages 43826-43832]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14533]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2003-0048; FRL-7943-1]
RIN 2060-AN05


National Emission Standards for Hazardous Air Pollutants: Plywood 
and Composite Wood Products; List of Hazardous Air Pollutants, Lesser 
Quantity Designations, Source Category List; Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of reconsideration of final rule; request for public 
comment; notice of public hearing.

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SUMMARY: On July 30, 2004, EPA promulgated national emission standards 
for hazardous air pollutants (NESHAP) for the plywood and composite 
wood products (PCWP) source category. The Administrator subsequently 
received a petition for reconsideration of certain provisions in the 
final rule. By a letter dated December 6, 2004, the Assistant 
Administrator for Air and Radiation granted the petition for 
reconsideration, explaining that we would publish a notice in the 
Federal Register to respond to the petition. We are issuing that notice 
and requesting comment on the approach used to delist a low-risk 
subcategory of PCWP affected sources, as outlined in the final rule, 
and on an issue related to the final rule's start-up, shutdown, and 
malfunction (SSM) provisions. We are not requesting comments on any 
other provisions of the final PCWP rule or any other rule. The 
petitioners also requested that we stay the effectiveness of the risk-
based provisions of the final rule, pending reconsideration of those 
provisions. As stated in the December 6, 2004 letter, we are declining 
to take that action at the present time.

DATES: Comments. Comments must be received on or before September 12, 
2005.
    Public Hearing. If anyone contacts EPA requesting to speak at a 
public hearing by August 8, 2005, a public hearing will be held on 
August 15, 2005. For further information on the public hearing and 
requests to speak, see the ADDRESSES section of this preamble.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. 
OAR-2003-0048 (Legacy Docket ID No. A-98-44) by one of the following 
methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web Site: https://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air and Radiation Docket and Information Center, 
EPA, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.
     Hand Delivery: Air and Radiation Docket and Information 
Center, EPA, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions. Direct your comments to Docket ID No. OAR-2003-0048 
(Legacy Docket ID No. A-98-44). EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at https://www.epa.gov/edocket, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
EDOCKET, regulations.gov, or e-mail. EPA EDOCKET and the Federal 
regulations.gov Web sites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Public Hearing. If a public hearing is held, it will be held on 
August 15, 2005 at EPA's RTP campus, Research Triangle Park, NC or an 
alternative site nearby. Persons interested in attending the hearing or 
wishing to present oral testimony should notify Ms. Mary Tom Kissell at 
least 2 days in advance of the public hearing (see FOR FURTHER 
INFORMATION CONTACT section of this preamble). The public hearing will 
provide interested parties the opportunity to present data, views, or 
arguments concerning this notice.
    Docket. EPA has established an official public docket for today's 
notice, including both Docket ID No. OAR-2003-0048 and Legacy Docket ID 
No. A-98-44. The official public docket consists of the documents 
specifically referenced in today's notice, any public comments 
received, and other information related to the notice. All items may 
not be listed under both docket numbers, so interested parties should 
inspect both docket numbers to ensure that they have received all 
materials relevant to today's notice. Although listed in the index, 
some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Air and Radiation Docket and Information 
Center, EPA, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal

[[Page 43827]]

holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air and Radiation Docket and 
Information Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
and questions about the public hearing, contact Ms. Mary Tom Kissell, 
Waste and Chemical Processes Group, Emission Standards Division, 
Mailcode: C439-03, EPA, Research Triangle Park, NC 27711; telephone 
number: (919) 541-4516; fax number: (919) 541-0246; e-mail address: 
kissell.mary@epa.gov.

SUPPLEMENTARY INFORMATION:

Outline

    The information presented in this preamble is organized as 
follows:

I. General Information
    A. Does This Reconsideration Notice Apply to Me?
    B. How do I Submit CBI?
    C. How do I Obtain a Copy of This Document and Other Related 
Information?
II. Background
III. Why Are We Taking This Action?
IV. What Issues Relevant to the Low-Risk Subcategory Were Raised in 
the Petition for Reconsideration?
V. What Issues Relevant to the Requirements for Periods of Startup, 
Shutdown, and Malfunction (SSM) Were Raised in the Petition for 
Reconsideration?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    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 and Advancement Act

I. General Information

A. Does This Reconsideration Notice Apply to Me?

    Categories and entities potentially affected by today's notice 
include:

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                                                           Examples of
       Category          SIC code \a\    NAICS code \b\     regulated
                                                             entities
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Industry.............             2421           321999  Sawmills with
                                                          lumber kilns.
                                  2435           321211  Hardwood
                                                          plywood and
                                                          veneer plants.
                                  2436           321212  Softwood
                                                          plywood and
                                                          veneer plants.
                                  2493           321219  Reconstituted
                                                          wood products
                                                          plants
                                                          (particleboard
                                                          , medium
                                                          density
                                                          fiberboard,
                                                          hardboard,
                                                          fiberboard,
                                                          and oriented
                                                          strandboard
                                                          plants).
                                  2439           321213  Structural wood
                                                          members, not
                                                          elsewhere
                                                          classified
                                                          (engineered
                                                          wood products
                                                          plants).
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\a\ Standard Industrial Classification.
\b\ North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by today's 
notice. To determine whether your facility is affected by today's 
notice, you should examine the applicability criteria in section 
63.2231 of the final rule. If you have questions regarding the 
applicability of today's notice to a particular entity, consult Ms. 
Mary Tom Kissell listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. How Do I Submit CBI?

    Do not submit this information to EPA through EDOCKET, 
regulations.gov, or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI in a disk or CD ROM that 
you mail to EPA, mark the outside of the disk or CD ROM as CBI and then 
identify electronically within the disk or CD ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.

C. How Do I Obtain a Copy of This Document and Other Related 
Information?

    In addition to being available in the docket, an electronic copy of 
today's notice also will be available on the World Wide Web (WWW) 
through EPA's Technology Transfer Network (TTN). Following the 
Administrator's signature, a copy of this notice will be posted on the 
TTN's policy and guidance page for newly proposed rules at https://
www.epa.gov/ttn/oarpg. The TTN provides information and technology 
exchange in various areas of air pollution control.

II. Background

    We proposed NESHAP for the PCWP source category on January 9, 2003 
(68 FR 1276). The preamble for the proposed rule described the 
rationale for the proposed rule and solicited public comments. The 
preamble for the proposed rule requested comment on how and whether we 
should incorporate risk-based approaches into the final rule to avoid 
imposition of regulatory controls on facilities that pose little risk 
to public health and the environment (see 68 FR 1296-1302, January 9, 
2003).
    Fifty-seven interested parties submitted comments on the proposed 
rule during the comment period. Comments were submitted by industry 
trade associations, PCWP companies, State regulatory agencies, local 
government agencies, and environmental groups. We summarized major 
public comments on the proposed rule, along with our responses to those 
comments, in the preamble to the final rule and in the background 
information document. We summarized major public comments on the 
proposed risk-based approaches, along with our responses to those 
comments, in the preamble to the final rule (see 69 FR 45983-46005, 
July 30, 2004).
    The final rule (subpart DDDD in 40 CFR part 63) was published on 
July 30, 2004 (69 FR 45944). We adopted a risk-based approach in the 
final rule by establishing and delisting a low-risk subcategory of PCWP 
affected sources based on our authority under sections 112(c)(1) and 
(9) of the Clean Air Act (CAA). The methodology and criteria for PCWP 
affected sources to use in demonstrating that they are part of the 
delisted low-risk subcategory were promulgated in appendix B to subpart 
DDDD of 40 CFR 63 (see 69 FR 46040-46045, July 30, 2004). A description 
of the procedure for determining that an affected source is part of the 
low-risk subcategory was provided in the preamble to the final rule 
(see 69 FR 45953-45955, July 30, 2004).
    Affected sources demonstrating that they are part of the delisted 
low-risk subcategory are not subject to the CAA

[[Page 43828]]

section 112(d) maximum achievable control technology (MACT) emission 
limitations, operating requirements, and work practice requirements in 
the final PCWP rule (subpart DDDD of CFR part 63), or to any other 
requirements of CAA section 112. For an affected source to be part of 
the delisted low-risk subcategory, it must have a low-risk 
demonstration approved by EPA. It must then have federally enforceable 
conditions reflecting the parameters used in the EPA-approved 
demonstration incorporated into its title V permit to ensure that it 
remains low-risk. EPA conducted low-risk demonstrations for eight 
facilities, and EPA will not require further demonstration from them 
before they become part of the delisted low-risk subcategory. These 
facilities will, however, need to obtain title V permit terms 
reflecting their status in order to maintain their low-risk 
eligibility.

III. Why Are We Taking This Action?

    Following promulgation of the PCWP rule, the Administrator received 
a petition for reconsideration filed by the Natural Resources Defense 
Council (NRDC) and Environmental Integrity Project (EIP) pursuant to 
section 307(d)(7)(B) of the CAA.\1\ The petition requested 
reconsideration of nine elements of the final rule: (1) Risk assessment 
methodology; (2) background pollution and co-located emission sources; 
(3) the dose-response value used for formaldehyde; (4) costs and 
benefits of establishing a low-risk subcategory; (5) ecological risk; 
(6) legal basis for the risk-based approach; (7) MACT compliance date 
for affected sources previously qualifying for the low-risk 
subcategory; (8) SSM provisions; and (9) title V implementation 
mechanism for the risk-based approach. With the exception of the 
petitioners' issue with the SSM provisions in subpart DDDD of 40 CFR 
part 63, all of the petitioners' issues relate to the risk-based 
approach adopted in the final rule. The petitioners stated that 
reconsideration of the above issues is appropriate because they claimed 
that the issues could not have been practicably raised during the 
public comment period. The petition for reconsideration also requested 
a stay of the effectiveness of the risk-based provisions.
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    \1\ In addition to the petition for reconsideration, four 
petitions for judicial review of the final PCWP rule were filed with 
the U.S. Court of Appeals for the District of Columbia by NRDC and 
Sierra Club (No. 04-1323, D.C. Cir.), EIP (No. 04-1235, D.C. Cir.), 
Louisiana-Pacific Corporation (No. 04-1328, D.C. Cir.), and Norbord 
Incorporated (No. 04-1329, D.C. Cir.). The four cases have been 
consolidated. In addition, the following parties have filed as 
interveners: American Forest and Paper Association (AF&PA), Hood 
Industries, Scotch Plywood, Coastal Lumber Company, Composite Panel 
Association, APA--The Engineered Wood Association, American 
Furniture Manufacturers Association, NRDC, Sierra Club, and EIP. 
Finally, the Formaldehyde Council, Inc. and the State and 
Territorial Air Pollution Program Administrators and Association of 
Local Air Pollution Control Officials (STAPPA/ALAPCO) are 
participating in the litigation as amicus curiae.
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    In a letter dated December 6, 2004, EPA granted NRDC's and EIP's 
petition for reconsideration, indicating that the Agency would conduct 
rulemaking to respond to the petition. In that letter, we also declined 
the petitioners' request that we take action to stay the effectiveness 
of the risk-based provisions.
    Following signature of the final rule, PCWP industry 
representatives raised several issues related to implementation of the 
requirements in appendix B to subpart DDDD, including the emissions 
testing procedures, stack height calculations, and permitting 
requirements required to be used by facilities demonstrating 
eligibility for the low-risk subcategory. Industry stakeholders and 
State regulatory agencies also expressed concern about a few narrow 
issues related to subpart DDDD of 40 CFR part 63. We are proposing 
amendments to the final rule in a separate Federal Register action to 
address these issues, correct any other inconsistencies that were 
discovered following promulgation, and clarify some common 
applicability questions. Because the issues raised by the petitioners 
broadly address the risk provisions, the proposed amendments are 
relevant to some of the petitioners' issues.
    The purpose of today's notice is to request comments on the nine 
issues in the petition for reconsideration. Stakeholders who would like 
for us to consider comments relevant to today's reconsideration that 
were previously submitted, may reference the comments instead of 
resubmitting them. To reference previously submitted comments, identify 
the relevant docket entry numbers and page numbers.

IV. What Issues Relevant to the Low-Risk Subcategory Were Raised in the 
Petition for Reconsideration?

    In their petition for reconsideration (Docket ID No. OAR-2003-
0048), NRDC and EIP requested that several of the risk-based provisions 
adopted in the final PCWP rule be reconsidered. The petitioners contend 
that there was inadequate opportunity for public comment on the issues 
prior to promulgation of the final rule and that the issues are of 
central relevance to the outcome of the rule. We are offering another 
opportunity for public comment on the risk-based approach included in 
the final PCWP rule and on the approach included in appendix B to 
subpart DDDD. The following text lists the issues raised by the 
petitioners for which we are requesting comment.

1. Risk Assessment Methodology

    The petitioners believe that EPA's description of the low-risk 
demonstration procedures in the preamble to the proposed PCWP rule did 
not provide key details that would have allowed the public to fully 
comment on EPA's intended approach. The petitioners noted that the 
final PCWP rule contains a new appendix (appendix B to subpart DDDD).
    The petitioners commented on: (1) The methodology for calculating 
the average stack height; (2) the assignment of zero to any hazardous 
air pollutants (HAP) for which EPA has yet to assign a unit risk 
estimate \2\ (URE); (3) the treatment of all PCWP plants as though 
their local topography and climate are identical (e.g., factors such as 
prevailing winds are not considered); (4) the estimate of cancer risks 
for children; (5) the use of nearest residence rather than exposed 
individual, possibly closer to the facility, including workers at PCWP 
facilities; and (6) the facility's ability to choose which criteria to 
use in their site-specific risk demonstrations.
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    \2\ A unit risk estimate is defined as the upper-bound excess 
lifetime cancer risk estimated to result from continuous exposure to 
an agent at a concentration of 1 microgram per cubic meter ([mu]g/
m3) in air.
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    The approach we used to evaluate potential risks from PCWP sources 
and to develop the risk assessment methodology outlined in appendix B 
to subpart DDDD is discussed in the preamble to the final rule (69 FR 
45953-45955 and 45983-46005, respectively), in the preamble to the 
proposed rule (68 FR 1297-1301), and in the supporting documentation 
(Docket ID No. OAR-2003-0048). Our approach to selecting the HAP listed 
in table 1 to appendix B to subpart DDDD is described in the preamble 
to the final rule at 69 FR 45991-45997.

2. Background Pollution and Co-Located Emission Sources

    The petitioners stated that the final rule does not require 
consideration of risks from other HAP sources located at the same plant 
site (co-located sources) or risks from background ambient HAP 
concentrations. Our final rule addressed background exposures 
(including co-located exposures) and hazard index in the preamble to 
the final rule (69 FR

[[Page 43829]]

45997-46001) and in the preamble to the proposed rule (68 FR 1298-
1300).

3. Dose-Response Value Used for Formaldehyde and Other HAP

    The petitioners stated that the preamble to the proposed rule 
indicated that EPA would use the formaldehyde URE (1.3 x 
10-\5\ 1/(ug/m\3\)) from the Integrated Risk Information 
System (IRIS), the agency's toxicological database, to calculate 
whether or not a given source is low-risk. However, the final rule 
relied on a lower (less potent) URE (5.5 x 10-\9\ 1/(ug/
m\3\)) derived by the CIIT Centers for Health Research without offering 
an opportunity for public comment on the CIIT model. The petitioners 
asserted that the CIIT evaluation is limited in a number of important 
ways and that recent studies link formaldehyde to cancers other than 
those evaluated by CIIT.
    In the preamble to the proposed PCWP rule, we stated that recent 
reassessments of formaldehyde carcinogenicity have been conducted by 
the World Health Organization and the Canadian Ministry of Health. 
These reassessments are based on the approach derived by CIIT. We also 
stated that the dose-response assessment for formaldehyde was 
undergoing revision by EPA (see 68 FR 1300). EPA is currently 
reassessing the scientific information on formaldehyde and will 
consider all of the available studies, including the CIIT and other 
studies to which the petitioners referred. The reasoning for our 
selection of the CIIT value for formaldehyde at the time of the final 
rule is discussed in the preamble to the final rule at 69 FR 45993-
45994. Dose-response relationships are discussed in the preamble to the 
proposed rule at 68 FR 1300.
    Given that the state of science with respect to dose-response 
values is constantly evolving, we are continuously monitoring the dose-
response values for HAP emitted by the PCWP industry in addition to the 
13 HAP listed in table 1 to appendix B to subpart DDDD. We are 
continuing to gather and review new information regarding formaldehyde 
toxicity. Development of an IRIS assessment for propionaldehyde is 
underway.
    The final rule addresses changes in potency values. Section 13 in 
appendix B to subpart DDDD requires facilities to consider changes in 
dose-response values should they become more potent. Therefore, if the 
IRIS formaldehyde URE, when updated, is more potent than the CIIT 
value, PCWP facilities would be required to demonstrate that they are 
low-risk using the revised IRIS value.
    If HAP emitted by PCWP sources, other than the 13 specified in 
appendix B to subpart DDDD, become significant contributors to risk, we 
reserve the right to amend the list of HAP that must be included in the 
low risk determinations. Such an amendment to appendix B to subpart 
DDDD would specify methods for PCWP facilities in the low-risk 
subcategory to determine emissions of the HAP and deadlines for 
submittal of revised low-risk demonstrations incorporating the effects 
of the HAP.

4. Costs and Benefits of the Low-Risk Subcategory

    The petitioners questioned the basis of EPA's cost and benefit 
analyses. Our estimates of the costs and benefits of the final rule are 
presented in the preamble to the final rule (69 FR 45955-45958) and the 
supporting documentation (Docket ID No. OAR-2003-0048), ``Cost, 
Environmental, and Energy Impacts Associated with Facilities 
Potentially Eligible for the Delisted Low-Risk Subcategory of Plywood 
and Composite Wood Products Facilities;'' ``Regulatory Impact Analysis 
for the Plywood and Composite Wood Products NESHAP;'' ``Regulatory 
Impact Analysis of the Final Plywood and Composite Wood Products 
NESHAP; Part 2 of 2.'')

5. Ecological Risk

    The petitioners stated that the proposal preamble gave few details 
about how a low-risk subcategory delisting action would be accomplished 
and did not discuss how ecological risks would be considered. Our 
analysis of ecological effects is discussed the preamble to the final 
rule (69 FR 45998-45999) and in supporting documentation (Docket ID No. 
OAR-2003-0048). In response to the petitioners' concerns, we have 
prepared and placed in the docket additional supporting information 
titled, ``Additional Explanation of the Ecological Risk Assessment for 
Members of the Plywood and Composite Wood Products (PCWP) Source 
Category--Appendix B''.

6. Legal Basis

    The petitioners objected to the legal rationale for the low-risk 
subcategory provided in the preamble to the final rule. The petitioners 
stated that the risk-based exemptions contravene the statutory 
language, structure and legislative history of the 1990 CAA Amendments. 
The preamble to the final PCWP rule presents the legal rationale for 
our inclusion of a delisted low-risk subcategory of PCWP affected 
sources in the final rule (see 69 FR 45984-45991, July 30, 2004) and in 
the preamble to the proposed rule at 68 FR 1297-1298. We request 
comment on the legal basis for the risk-based option included in the 
final rule. Because our approach in the final rule relied upon the 
authority in section 112(c)(9) of the CAA, we are not asking for 
comments relating to legal authority under the CAA section 112(d)(4) or 
de minimis principles (see 69 FR 45986-45987).

7. MACT Compliance Date for Affected Sources Previously Qualifying for 
the Low-Risk Subcategory

    The petitioners objected to allowing facilities in the low-risk 
subcategory 3 years to come into compliance with the MACT standard if 
they are no longer low risk due to factors beyond their control. We 
discuss the compliance date for sources that become subject to the MACT 
standards because they no longer are part of the low-risk subcategory 
in the preamble to the final rule (69 FR 45955) and in section 13(b) of 
appendix B to subpart DDDD. As the petitioners noted, under EPA MACT 
rules, sources normally have 3 years following a rule's effective date 
to comply with a MACT standard to which they are subject. Under the 
final rule, sources that are no longer part of the low-risk subcategory 
because of factors within their control (e.g., process changes that 
increase HAP emissions) must comply with MACT immediately. Sources no 
longer part of the low-risk subcategory because of factors outside of 
their control (e.g., changes in dose-response values or population 
shifts) are allowed 3 years from the date they begin operating outside 
the low-risk subcategory to comply with MACT.

8. Title V Implementation Mechanism

    The petitioners contended that the PCWP proposal did not provide 
notice of the title V implementation approach for the CAA section 
112(c)(9) low-risk subcategory adopted in the final rule. The 
petitioners also contended that the way we use title V to implement the 
low-risk subcategory is inappropriate and unsupportable for several 
reasons. Use of title V permits for the implementation of the low-risk 
subcategory is discussed throughout the preamble and final rule (69 FR 
46002-46005).

V. What Issues Relevant to the Requirements for Periods of Startup, 
Shutdown, and Malfunction (SSM) Were Raised in the Petition for 
Reconsideration?

    The petitioners stated that EPA replaced the SSM approach from the

[[Page 43830]]

proposed PCWP rule with an approach based on the amended General 
Provisions issued on May 30, 2003, following the close of the public 
comment period on the PCWP proposal. Thus, the petitioners claimed that 
the public had no opportunity to comment on the revised SSM approach in 
the context of the PCWP rule, which, according to the petitioners, does 
not allow public access to SSM plans. In addition, the petitioners 
noted that EPA removed the text ``you must minimize emissions to the 
greatest extent possible'' when combining proposed sections 63.2250(a) 
and (d) for the final PCWP rule.
    Section 63.2250 of final PCWP rule references the amended sections 
of the General Provisions regarding public access to SSM plans (section 
63.6(e)(3) of the final rule) and general duty to minimize emissions 
(section 63.6(e)(1)(i) of the final rule). The statement ``you must 
minimize emissions to the greatest extent possible'' was removed from 
the final PCWP rule because different language is included in the 
amended General Provisions. As stated in the preamble to the final PCWP 
rule (69 FR 45983), the General Provisions are referenced directly in 
the PCWP rule to avoid confusion and promote consistency. Although the 
amendments to the General Provisions are the subject of ongoing 
litigation and agency reconsideration, the requirements promulgated on 
May 30, 2003, apply to the final PCWP rule. Therefore, in today's PCWP 
notice of reconsideration, we seek comments only on the application of 
the General Provisions' SSM provisions to PCWP sources and on SSM 
issues specific to the PCWP industry.

VI. Statutory and Executive Order Reviews

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 review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines a ``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 entitlement, 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 today's notice of reconsideration is a ``significant 
regulatory action'' because it raises novel legal or policy issues. As 
such, the notice was submitted to OMB for review under Executive Order 
12866. Changes made in response to OMB suggestions or recommendations 
are documented in the public record (see ADDRESSES section of this 
preamble).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
We are not proposing any new paperwork (e.g., monitoring, reporting, 
recordkeeping) as part of today's notice. With this action we are 
seeking additional comments on some of the provisions finalized in the 
July 2004 Federal Register Notice (69 FR 45943). However, OMB has 
previously approved the information collection requirements contained 
in the existing regulations (40 CFR part 63) under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned 
OMB control number 2060-0552, EPA ICR number 1984.02. A copy of the OMB 
approved Information Collection Request (ICR) may be obtained from 
Susan Auby, Collection Strategies Division; EPA (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    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

    The Regulatory Flexibility Act 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 not-for-profit 
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's notice of 
reconsideration on small entities, a small entity is defined as: (1) A 
small business having no more than 500 to 750 employees, depending on 
the business' NAICS code; (2) a small governmental jurisdiction that is 
a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and that is not dominant in its field.
    After considering the economic impacts of today's notice of 
reconsideration on small entities, I certify that the notice will not 
have a significant economic impact on a substantial number of small 
entities. EPA has determined that none of the small entities will 
experience a significant impact because the notice imposes no 
additional regulatory requirements on owners or operators of affected 
sources.

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 by State, local, and tribal governments, in 
the 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

[[Page 43831]]

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's regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that today's notice of reconsideration does 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. Although the final rule 
had annualized costs estimated to range from $74 to $140 million 
(depending on the number of facilities eventually demonstrating 
eligibility for the low-risk subcategory), today's notice does not add 
new requirements that would increase this cost. Thus, today's notice of 
reconsideration is not subject to the requirements of sections 202 and 
205 of the UMRA. In addition, EPA has determined that today's notice 
does not significantly or uniquely affect small governments because it 
contains no requirements that apply to such governments or impose 
obligations upon them. Therefore, today's notice of reconsideration is 
not subject to section 203 of the UMRA.

E. 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'' 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.''
    Today's notice of reconsideration 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. 
None of the affected facilities are owned or operated by State 
governments, and the requirements discussed in today's notice will not 
supersede State regulations that are more stringent. Thus, Executive 
Order 13132 does not apply to today's notice of reconsideration.

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.''
    Today's notice of reconsideration does not have tribal 
implications. It will not have substantial direct effects on tribal 
governments, 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 affected facilities are owned or operated by 
Indian tribal governments. Thus, Executive Order 13175 does not apply 
to today's notice of reconsideration.

G. Executive Order 13045: Protection of Children from Environmental 
Health 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.
    Today's notice is not subject to the Executive Order because EPA 
does not believe that the environmental health or safety risks 
associated with the emissions addressed by the proposed amendments 
present a disproportionate risk to children. The noncancer human health 
toxicity values we used in our analysis at promulgation (e.g., 
reference concentrations) are protective of sensitive subpopulations, 
including children. In addition, for purposes of this rulemaking, EPA 
has not determined that any of the pollutants in question has the 
potential for a disproportionate impact on predicted cancer risks due 
to early-life exposure.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    Executive Order 13211 (66 FR 28355, May 22, 2001) provides that 
agencies shall prepare and submit to the Administrator of the Office of 
Information and Regulatory Affairs, Office of Management and Budget, a 
Statement of Energy Effects for certain actions identified as 
``significant energy actions.'' Section 4(b) of Executive Order 13211 
defines ``significant energy actions'' as ``any action by an agency 
(normally published in the Federal Register) that promulgates or is 
expected to lead to the promulgation of a final rule or regulation, 
including notices of inquiry, advance notices of proposed rulemaking, 
and notices of proposed rulemaking: (1)(i) that is a significant 
regulatory action under Executive Order 12866 or any successor order, 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (2) that is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action.''
    Today's notice of reconsideration is not a ``significant energy 
action'' as defined in Executive Order 13211 (66 FR 28355, May 22, 
2001) because it is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Further, we have concluded 
that today's notice of reconsideration is not likely to have any 
adverse energy effects.

I. National Technology Transfer and Advancement Act

    As noted in the final rule, section 12(d) of the National 
Technology Transfer and Advancement Act

[[Page 43832]]

(NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs 
EPA to use voluntary consensus standards in their regulatory and 
procurement activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. Voluntary consensus 
standards are technical standards (e.g., material specifications, test 
methods, sampling procedures, business practices) developed or adopted 
by one or more voluntary consensus bodies. The NTTAA requires EPA to 
provide Congress, through the OMB, with explanations when EPA decides 
not to use available and applicable voluntary consensus standards.
    During the development of the final rule, EPA searched for 
voluntary consensus standards that might be applicable. The search 
identified two voluntary consensus standards that were considered 
practical alternatives to the specified EPA test methods. An assessment 
of these and other voluntary consensus standards is presented in the 
preamble to the final rule (see 69 FR 46010, July 30, 2004). Today's 
notice of reconsideration does not propose the use of any additional 
technical standards beyond those cited in the final rule. Therefore, 
EPA is not considering the use of any additional voluntary consensus 
standards for this notice.

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: July 18, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-14533 Filed 7-28-05; 8:45 am]
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