National Emission Standards for Hazardous Air Pollutants: Plywood and Composite Wood Products, 61060-61063 [07-5295]
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61060
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Rules and Regulations
This deviation is effective from
6:30 a.m. on November 5, 2007 through
6:30 p.m. on December 18, 2007.
ADDRESSES: Materials referred to in this
document are available for inspection or
copying at the First Coast Guard
District, Bridge Branch Office, 408
Atlantic Avenue, Boston, Massachusetts
02110, between 7 a.m. and 3 p.m.,
Monday through Friday, except Federal
holidays. The telephone number is (617)
223–8364. The First Coast Guard
District Bridge Branch Office maintains
the public docket for this temporary
deviation.
ENVIRONMENTAL PROTECTION
AGENCY
John
McDonald, Project Officer, First Coast
Guard District, at (617) 223–8364.
SUPPLEMENTARY INFORMATION: The
Carlton Bridge, across the Kennebec
River, mile 14.0, between Bath and
Woolwich, Maine, has a vertical
clearance in the closed position of 10
feet at mean high water and 16 feet at
mean low water. The existing
drawbridge operation regulations are
listed at 33 CFR 117.525.
The owner of the bridge, Maine
Department of Transportation, requested
a temporary deviation to facilitate
bridge painting operations at the Carlton
Bridge. The bridge rarely opens for
vessel traffic in November and
December.
Under this temporary deviation the
Carlton Bridge need not open for the
passage of vessel traffic between 6:30
a.m. and 6:30 p.m. on the days of
November 5, 6, 12, 13, 19, 20, 26, 27,
and December 3, 4, 10, 11, 17, and 18,
2007. Vessels that can pass under the
bridge without a bridge opening may do
so at all times.
In accordance with 33 CFR 117.35(e),
the bridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Should the bridge maintenance
authorized by this temporary deviation
be completed before the end of the
effective period published in this notice,
the Coast Guard will rescind the
remainder of this temporary deviation,
and the bridge shall be returned to its
normal operation schedule.
Notice of the above action shall be
provided to the public in the Local
Notice to Mariners and the Federal
Register, where practicable.
SUMMARY: On June 19, 2007, the United
States Court of Appeals for the District
of Columbia Circuit (the Court) vacated
EPA’s provisions in the National
Emission Standards for Hazardous Air
Pollutants: Plywood and Composite
Wood Products that established an
October 1, 2008, compliance deadline
and that created and delisted a low risk
subcategory of plywood and composite
wood products facilities. This action
announces the Court’s decision and
promulgates ministerial amendments
that will incorporate the Court’s
decision into the Code of Federal
Regulations.
DATES:
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FOR FURTHER INFORMATION CONTACT:
Dated: October 15, 2007.
Gary Kassof,
Bridge Program Manager, First Coast Guard
District.
[FR Doc. E7–21244 Filed 10–26–07; 8:45 am]
BILLING CODE 4910–15–P
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40 CFR Part 63
[EPA–HQ–OAR–2003–0048; FRL–8482–2]
RIN 2060–AO65
National Emission Standards for
Hazardous Air Pollutants: Plywood and
Composite Wood Products
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This rule was effective on
October 29, 2007.
ADDRESSES: The EPA does not seek
comment on this final rule. The opinion
issued by the Court on June 19, 2007
and other information about the rule are
contained in Docket ID No. OAR–2003–
0048 and Legacy Docket ID No. A–98–
44. All documents in the docket are
listed in the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the EPA Docket Center,
Docket ID No. EPA–HQ–OAR–2003–
0048, EPA West Building, Room 3334,
1301 Constitution Avenue, NW.,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the EPA Docket Center is (202) 566–
1742.
DATES:
For
information concerning applicability
and compliance assistance, contact your
State or local representative or
FOR FURTHER INFORMATION CONTACT:
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appropriate EPA Regional Office
representative. For other information,
contact Ms. Mary Tom Kissell, Office of
Air Quality Planning and Standards,
Sector Policies and Program Division,
Coatings and Chemicals Group (E143–
01), EPA, Research Triangle Park, NC
27711; telephone number: (919) 541–
4516; fax number: (919) 541–0246; email address: kissell.mary@epa.gov.
SUPPLEMENTARY INFORMATION: Section
553 of the Administrative Procedure
Act, 5 U.S.C. 553(b)(B), provides that,
when an agency for good cause finds
that notice and public procedure are
impracticable, unnecessary or contrary
to the public interest, the agency may
issue a final rule without first providing
notice and an opportunity for public
comment on a proposed rule. There is
good cause for making today’s rule final
without prior proposal and opportunity
for comment because the Court vacated
EPA’s promulgation of the October 1,
2008, compliance date and of the lowrisk provisions. The Court ruled that
EPA was without statutory authority in
our 2006 amendments to the national
emission standards for hazardous air
pollutants (NESHAP) to re-set the
compliance date of October 1, 2007, first
promulgated in the 2004 NESHAP. The
Court also ruled that EPA had no
statutory authority to create and then
delist the low-risk Plywood and
Composite Wood Products (PCWP)
subcategory.1 Therefore, today’s action
has no legal effect beyond ministerially
fulfilling the Court’s order and is
clerical in nature: we are merely
revising the Code of Federal Regulations
to conform our rules to the Court’s order
and announcing the Court’s decision.
Thus, notice and public procedure are
unnecessary.
EPA finds that this constitutes good
cause under 5 U.S.C. 553(b)(B).
Providing an opportunity to comment
on a proposed conforming amendment
would be impracticable because it
would unacceptably delay EPA’s action
beyond the October 1, 2007, compliance
deadline the Court ruled EPA must reimpose. It would also be unnecessary,
since the Court’s direction was clear
that EPA must remove the 2006
NESHAP’s amendment re-setting the
deadline beyond October 1, 2007, and
the 2004 and 2006 provisions creating
and delisting the low-risk PCWP
subcategory was beyond EPA’s statutory
authority. Finally, it is not in the public
1 The Court also remanded and vacated EPA’s
determinations that certain process units at PCWP
facilities need not be subject to emissions controls.
EPA will respond to that portion of the Court’s
ruling in a separate notice and comment
rulemaking, and is not addressing that issue in
today’s final rule.
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interest to delay revising the rule to
conform to the Court’s order on these
issues, as continuing to leave the
vacated provisions in place creates
Category
SIC code a
Industry .....................
confusion among the regulated
community, implementing States and
local governments, and the general
public.
NAICS code b
2421
2435
2436
2493
321999
321211
321212
321219
2439
321213
61061
Regulated Entities
Categories and entities potentially
affected by today’s action include:
Examples of regulated entities
Sawmills with lumber kilns.
Hardwood plywood and veneer plants.
Softwood plywood and veneer plants.
Reconstituted wood products plants (particleboard, medium density fiberboard, hardboard, fiberboard, and oriented strandboard plants).
Structural wood members, not elsewhere classified (engineered wood products
plants).
a Standard
b North
Industrial Classification.
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 action. To determine
whether your facility is affected by
today’s action, you should examine the
applicability criteria in § 63.2231 of the
final rule. If you have questions
regarding the applicability of today’s
action to a particular entity, consult
your State or local representative or the
appropriate EPA Regional Office
representative.
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Worldwide Web (WWW)
In addition to being available in the
docket, an electronic copy of today’s
action also will be available on the
Worldwide Web (WWW) through EPA’s
Technology Transfer Network (TTN).
Following the Administrator’s signature,
a copy of this action will be posted on
the TTN’s policy and guidance page for
newly promulgated rules at https://
www.epa.gov/ttn/oarpg. The TTN
provides information and technology
exchange in various areas of air
pollution control.
I. Background
We proposed NESHAP for the PCWP
source category on January 9, 2003 (68
FR 1276). The final rule (subpart DDDD
in 40 CFR part 63) was published on
July 30, 2004 (69 FR 45944). In addition
to adopting maximum achievable
control technology (MACT) standards
for the PCWP category, we adopted a
risk-based approach in the 2004 final
rule by establishing and delisting a lowrisk subcategory of PCWP affected
sources, which would have allowed
low-risk sources to avoid complying
with MACT. Except for eight sources
that we determined were already
eligible to join the low-risk subcategory
and avoid MACT, all PCWP sources
were initially included in the category
subject to MACT, and any would-be
low-risk sources could subsequently
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join the low-risk subcategory after EPA
approved their submitted low-risk
demonstrations. The methodology and
criteria for PCWP affected sources to use
in demonstrating that they are eligible to
join the delisted low-risk subcategory
were promulgated in the 2004 final rule
in appendix B to subpart DDDD of 40
CFR part 63. Any source who failed to
obtain EPA approval of a low-risk
demonstration would remain subject to
MACT.
Following promulgation of the 2004
final 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 Clean Air Act
(CAA). The petition requested
reconsideration of nine aspects of the
final rule including the legal basis for
the risk-based provisions. The petition
for reconsideration also requested a stay
of the effectiveness of the risk-based
provisions. In a letter dated December 6,
2004, EPA granted NRDC’s and EIP’s
petition for reconsideration and
declined the petitioners’ request that we
take action to stay the effectiveness of
the risk-based provisions.
On July 29, 2005 (70 FR 44012), we
published a notice of reconsideration
and requested comment on the issues in
the petition for reconsideration,
including the full content of appendix B
to subpart DDDD. In a separate notice
published on July 29, 2005 (70 FR
44012), we proposed amendments to
subpart DDDD and both of the
appendices to subpart DDDD including
a request for comment on whether the
MACT compliance date should be
extended for sources submitting lowrisk demonstrations or for all sources.
On February 16, 2006, EPA promulgated
amendments to the National Emission
Standards for Hazardous Air Pollutants:
Plywood and Composite Wood
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Products. In the 2006 final rule, we
promulgated a revised compliance
deadline of October 1, 2008, for sources
subject to the rule, which was 1 year
later than the date originally
promulgated.
Following promulgation of the 2004
final PCWP rule, four petitions for
judicial review of the final PCWP rule
were filed with the Court by NRDC and
Sierra Club (No. 04–1323, D.C. Cir.), EIP
(No. 04–1235, D.C. Cir.), LouisianaPacific Corporation (No. 04–1328, D.C.
Cir.), and Norbord Incorporated (No.
04–1329, D.C. Cir.). The four cases were
consolidated. The NRDC, Sierra Club,
and EIP petitions for judicial review 2
addressed three major concerns: (1)
EPA’s legal authority to create and delist
a low-risk subcategory; (2) EPA’s resetting of the compliance date; and (3)
EPA’s failure to set emission standards
for HAP from all emission points. In
March 2007, before the Court decided
the PCWP case, it ruled in Sierra Club,
479 F.3d 875, that ‘‘EPA’s failure to set
floors for existing small tunnel brick
kilns and new periodic brick kilns
violated [the] CAA * * * noting that the
court had held unlawful EPA’s ‘‘no
control’’ emissions floors for categories
in which the best performers used no
emission control technology.’’
Subsequently, in April 2007, EPA
requested a voluntary remand and
vacatur of the 2004 final MACT
determinations for PCWP emissions
points that do not have emission limits
(i.e., the ‘‘no emission reduction’’
MACT determinations also commonly
known as ‘‘no-control MACT floors’’).
On June 19, 2007, the Court issued its
opinion remanding and vacating EPA’s
no emission reduction MACT
determinations, the low-risk provisions,
2 The Louisiana-Pacific Corporation and Norbord
Incorporated petition for judicial review did not
result in any change to the PCWP NESHAP and is
not discussed in this preamble.
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and the October 1, 2008 compliance
date.
While today’s rule implements the
Court’s order regarding the compliance
date and low-risk subcategory
provisions, EPA will separately
reconsider the MACT determinations for
the emission points for which EPA had
previously determined MACT to be ‘‘no
emissions reduction,’’ and publish our
proposed responses to the Court’s
remand of those decisions in a separate
notice.
II. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
is, therefore, not subject to review by the
Office of Management and Budget.
Because the agency has made a ‘‘good
cause’’ finding that this action is not
subject to notice-and-comment
requirements under the Administrative
Procedure Act or any other statute (see
the SUPPLEMENTARY INFORMATION section
of this preamble), it is not subject to the
regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 601,
et seq.), or to sections 202 and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). In addition,
this action does not significantly or
uniquely affect small governments or
impose a significant intergovernmental
mandate, as described in sections 203
and 204 of UMRA. This rule also does
not significantly or uniquely affect the
communities of tribal governments, as
specified by Executive Order 13175 (65
FR 67249, November 6, 2000). This rule
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 (64
FR 43255, August 10, 1999). This rule
also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997),
because it is not economically
significant.
This final rule does not involve
technical standards; thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. The rule also
does not involve special consideration
of environmental justice related issues
as required by Executive Order 12898
(59 FR 7629, February 16, 1994). In
issuing this rule, EPA has taken the
necessary steps to eliminate ambiguity
as required by section 3 of Executive
Order 12988 (61 FR 4729, February 7,
1996). EPA has complied with
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Executive Order 12630 (53 FR 8859,
March 15, 1988) by examining the
takings implications of the rule in
accordance with the ‘‘Attorney
General’s Supplemental Guidelines for
the Evaluation of Risk and Avoidance of
Unanticipated Takings’’ issued under
the executive order. This rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.). EPA’s compliance
with these statutes and Executive
Orders for the underlying rule is
discussed in the July 30, 2004 Federal
Register notice.
The Congressional Review Act (CRA)
(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. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that notice
and public procedure is impracticable,
unnecessary or contrary to the public
interest. This determination must be
supported by a brief statement. 5 U.S.C.
808(2). As stated previously, EPA has
made such a good cause finding,
including the reasons therefore. EPA
will submit a report containing this rule
and other required information to the
United States Senate, the United States
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This action is not
a ‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects for 40 CFR Part 63
Environmental protection,
Administrative practice and procedures,
Air pollution control, Hazardous
substances, Incorporation by reference,
Intergovernmental relations, Reporting
and recordkeeping requirements.
For the reasons stated in the preamble,
title 40, chapter I, part 63 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:
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§ 63.14
Incorporation by reference.
*
*
*
*
*
(b) * * *
(54) ASTM D6348–03, Standard Test
Method for Determination of Gaseous
Compounds by Extractive Direct
Interface Fourier Transform Infrared
(FTIR) Spectroscopy, incorporation by
reference (IBR) approved for Table 4 to
Subpart DDDD of this part as specified
in the subpart.
*
*
*
*
*
(f) * * *
*
*
*
*
*
(3) NCASI Method IM/CAN/WP–
99.02, Impinger/Canister Source
Sampling Method for Selected HAPs
and Other Compounds at Wood
Products Facilities, January 2004,
Methods Manual, NCASI, Research
Triangle Park, NC, IBR approved for
Table 4 to Subpart DDDD of this part.
(4) NCASI Method ISS/FP A105.01,
Impinger Source Sampling Method for
Selected Aldehydes, Ketones, and Polar
Compounds, December 2005, Methods
Manual, NCASI, Research Triangle Park,
NC, IBR approved for table 4 to subpart
DDDD of this part.
*
*
*
*
*
Subpart DDDD—National Emission
Standards for Hazardous Air
Pollutants: Plywood and Composite
Wood Products—[Amended]
3. Section 63.2231 is amended by
revising the introductory paragraph to
read as follows:
I
§ 63.2231
Does this subpart apply to me?
This subpart applies to you if you
meet the criteria in paragraphs (a) and
(b) of this section.
*
*
*
*
*
I 4. Section 63.2233 is amended by
revising paragraphs (b) and (c) to read
as follows:
*
I
Authority: 42 U.S.C. 7401.
2. Section 63.14 is amended by
revising paragraphs (b)(54), (f)(3) and
(f)(4) to read as follows:
I
§ 63.2233 When do I have to comply with
this subpart?
Dated: October 18, 2007.
Stephen L. Johnson,
Administrator.
I
Subpart A—[Amended]
*
*
*
*
(b) If you have an existing affected
source, you must comply with the
compliance options, operating
requirements, and work practice
requirements for existing sources no
later than October 1, 2007.
(c) If you have an area source that
increases its emissions or its potential to
emit such that it becomes a major source
of HAP, you must be in compliance
with this subpart by October 1, 2007 or
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6. Appendices B and C to Subpart
DDDD of part 63 are removed.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in https://
www.regulations.gov or in hard copy.
You may view and copy Ohio’s
application from 9 a.m. to 4 p.m. at the
following addresses: U.S. EPA Region 5,
DM–7J, 77 West Jackson Boulevard,
Chicago, Illinois, contact: Gary Westefer
(312) 886–7450; or Ohio Environmental
Protection Agency, Lazarus Government
Center, 50 West Town Street, Suite 700,
Columbus, Ohio, contact: Jeff Mayhugh
(614) 644–2950.
FOR FURTHER INFORMATION CONTACT: Gary
Westefer, Ohio Regulatory Specialist,
U.S. EPA Region 5, DM–7J, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 886–7450, e-mail
westefer.gary@epa.gov.
[FR Doc. 07–5295 Filed 10–26–07; 8:45 am]
SUPPLEMENTARY INFORMATION:
BILLING CODE 6560–50–P
A. Why Are Revisions to State
Programs Necessary?
States which have received final
authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must
maintain a hazardous waste program
that is equivalent to, consistent with,
and no less stringent than the Federal
program. As the Federal program
changes, States must change their
programs and ask EPA to authorize the
changes. Changes to State programs may
be necessary when Federal or State
statutory or regulatory authority is
modified or when certain other changes
occur. Most commonly, States must
change their programs because of
changes to EPA’s regulations in 40 Code
of Federal Regulations (CFR) parts 124,
260 through 266, 268, 270, 273 and 279.
upon initial startup of your affected
source as a major source, whichever is
later.
*
*
*
*
*
I 5. Section 63.2291 is amended by
revising paragraph (c) introductory text
and removing paragraph (c)(5) to read as
follows:
§ 63.2291 Who implements and enforces
this subpart?
*
*
*
*
*
(c) The authorities that will not be
delegated to State, local, or tribal
agencies are listed in paragraphs (c)(1)
through (4) of this section.
(1) * * *
*
*
*
*
*
Appendices B and C—[Removed]
I
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[Docket No. EPA–R05–RCRA–2007–0397;
FRL–8488–6]
Ohio: Final Authorization of State
Hazardous Waste Management
Program Revision
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is granting Ohio Final
authorization of the changes to its
hazardous waste program under the
Resource Conservation and Recovery
Act (RCRA). The agency published a
proposed rule on June 6, 2007 at 72 FR
31237 and provided for public
comment. The public comment period
ended on July 6, 2007. We received no
comments. No further opportunity for
comment will be provided. EPA has
determined that these changes satisfy all
requirements needed to qualify for Final
authorization, and is proposing to
authorize the State’s changes through
this proposed final action.
DATES: The final authorization will be
effective on October 29, 2007.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R05–RCRA–
2007–0397. All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some of the information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
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SUMMARY:
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B. What Decisions Have We Made in
This Rule?
We conclude that Ohio’s application
to revise its authorized program meets
all of the statutory and regulatory
requirements established by RCRA.
Therefore, we are granting Ohio final
authorization to operate its hazardous
waste program with the changes
described in the authorization
application. Ohio has responsibility for
permitting Treatment, Storage, and
Disposal Facilities (TSDFs) within its
borders (except in Indian Country) and
for carrying out the aspects of the RCRA
program described in its revised
program application, subject to the
limitations of the Hazardous and Solid
Waste Amendments of 1984 (HSWA).
New Federal requirements and
prohibitions imposed by Federal
regulations that EPA promulgates under
the authority of HSWA take effect in
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61063
authorized States before they are
authorized for the requirements. Thus,
EPA will implement those requirements
and prohibitions in Ohio, including
issuing permits, until the State is
granted authorization to do so.
C. What Is the Effect of Today’s
Authorization Decision?
The effect of this decision is that a
facility in Ohio subject to RCRA will
now have to comply with the authorized
State requirements instead of the
equivalent Federal requirements in
order to comply with RCRA. Ohio has
enforcement responsibilities under its
State hazardous waste program for
violations of such program, but EPA
retains its authority under RCRA
sections 3007, 3008, 3013, and 7003,
which include, among others, authority
to:
1. Do inspections, and require
monitoring, tests, analyses or reports
2. Enforce RCRA requirements and
suspend or revoke permits
3. Take enforcement actions
regardless of whether the State has
taken its own actions
This action does not impose
additional requirements on the
regulated community because the
regulations for which Ohio is being
authorized by today’s action are already
effective, and are not changed by today’s
action.
D. Proposed Rule
On June 6, 2007 (72 FR 31237), EPA
published a proposed rule. In that rule
we proposed granting authorization of
changes to Ohio’s hazardous waste
program and opened our decision to
public comment. The agency received
no comments on this proposal. EPA
found Ohio’s RCRA program to be
satisfactory.
E. What Has Ohio Previously Been
Authorized for?
Ohio initially received final
authorization on June 28, 1989, effective
June 30, 1989 (54 FR 27170) to
implement the RCRA hazardous waste
management program. We granted
authorization for changes to their
program on April 8, 1991, effective June
7, 1991 (56 FR 14203) as corrected June
19, 1991, effective August 19, 1991 (56
FR 28088); July 27, 1995, effective
September 25, 1995 (60 FR 38502);
October 23, 1996, effective December
23, 1996 (61 FR 54950); January 24,
2003, effective January 24, 2003 (68 FR
3429); and January 20, 2006, effective
January 20, 2006 (71 FR 3220).
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]]>Agencies
[Federal Register Volume 72, Number 208 (Monday, October 29, 2007)]
[Rules and Regulations]
[Pages 61060-61063]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5295]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2003-0048; FRL-8482-2]
RIN 2060-AO65
National Emission Standards for Hazardous Air Pollutants: Plywood
and Composite Wood Products
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On June 19, 2007, the United States Court of Appeals for the
District of Columbia Circuit (the Court) vacated EPA's provisions in
the National Emission Standards for Hazardous Air Pollutants: Plywood
and Composite Wood Products that established an October 1, 2008,
compliance deadline and that created and delisted a low risk
subcategory of plywood and composite wood products facilities. This
action announces the Court's decision and promulgates ministerial
amendments that will incorporate the Court's decision into the Code of
Federal Regulations.
DATES: This rule was effective on October 29, 2007.
ADDRESSES: The EPA does not seek comment on this final rule. The
opinion issued by the Court on June 19, 2007 and other information
about the rule are contained in Docket ID No. OAR-2003-0048 and Legacy
Docket ID No. A-98-44. All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2003-
0048, EPA West Building, Room 3334, 1301 Constitution Avenue, NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For information concerning
applicability and compliance assistance, contact your State or local
representative or appropriate EPA Regional Office representative. For
other information, contact Ms. Mary Tom Kissell, Office of Air Quality
Planning and Standards, Sector Policies and Program Division, Coatings
and Chemicals Group (E143-01), 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: Section 553 of the Administrative Procedure
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause
finds that notice and public procedure are impracticable, unnecessary
or contrary to the public interest, the agency may issue a final rule
without first providing notice and an opportunity for public comment on
a proposed rule. There is good cause for making today's rule final
without prior proposal and opportunity for comment because the Court
vacated EPA's promulgation of the October 1, 2008, compliance date and
of the low-risk provisions. The Court ruled that EPA was without
statutory authority in our 2006 amendments to the national emission
standards for hazardous air pollutants (NESHAP) to re-set the
compliance date of October 1, 2007, first promulgated in the 2004
NESHAP. The Court also ruled that EPA had no statutory authority to
create and then delist the low-risk Plywood and Composite Wood Products
(PCWP) subcategory.\1\ Therefore, today's action has no legal effect
beyond ministerially fulfilling the Court's order and is clerical in
nature: we are merely revising the Code of Federal Regulations to
conform our rules to the Court's order and announcing the Court's
decision. Thus, notice and public procedure are unnecessary.
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\1\ The Court also remanded and vacated EPA's determinations
that certain process units at PCWP facilities need not be subject to
emissions controls. EPA will respond to that portion of the Court's
ruling in a separate notice and comment rulemaking, and is not
addressing that issue in today's final rule.
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EPA finds that this constitutes good cause under 5 U.S.C.
553(b)(B). Providing an opportunity to comment on a proposed conforming
amendment would be impracticable because it would unacceptably delay
EPA's action beyond the October 1, 2007, compliance deadline the Court
ruled EPA must re-impose. It would also be unnecessary, since the
Court's direction was clear that EPA must remove the 2006 NESHAP's
amendment re-setting the deadline beyond October 1, 2007, and the 2004
and 2006 provisions creating and delisting the low-risk PCWP
subcategory was beyond EPA's statutory authority. Finally, it is not in
the public
[[Page 61061]]
interest to delay revising the rule to conform to the Court's order on
these issues, as continuing to leave the vacated provisions in place
creates confusion among the regulated community, implementing States
and local governments, and the general public.
Regulated Entities
Categories and entities potentially affected by today's action
include:
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Category SIC code \a\ NAICS code \b\ Examples of 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
action. To determine whether your facility is affected by today's
action, you should examine the applicability criteria in Sec. 63.2231
of the final rule. If you have questions regarding the applicability of
today's action to a particular entity, consult your State or local
representative or the appropriate EPA Regional Office representative.
Worldwide Web (WWW)
In addition to being available in the docket, an electronic copy of
today's action also will be available on the Worldwide Web (WWW)
through EPA's Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of this action will be posted on the
TTN's policy and guidance page for newly promulgated rules at https://
www.epa.gov/ttn/oarpg. The TTN provides information and technology
exchange in various areas of air pollution control.
I. Background
We proposed NESHAP for the PCWP source category on January 9, 2003
(68 FR 1276). The final rule (subpart DDDD in 40 CFR part 63) was
published on July 30, 2004 (69 FR 45944). In addition to adopting
maximum achievable control technology (MACT) standards for the PCWP
category, we adopted a risk-based approach in the 2004 final rule by
establishing and delisting a low-risk subcategory of PCWP affected
sources, which would have allowed low-risk sources to avoid complying
with MACT. Except for eight sources that we determined were already
eligible to join the low-risk subcategory and avoid MACT, all PCWP
sources were initially included in the category subject to MACT, and
any would-be low-risk sources could subsequently join the low-risk
subcategory after EPA approved their submitted low-risk demonstrations.
The methodology and criteria for PCWP affected sources to use in
demonstrating that they are eligible to join the delisted low-risk
subcategory were promulgated in the 2004 final rule in appendix B to
subpart DDDD of 40 CFR part 63. Any source who failed to obtain EPA
approval of a low-risk demonstration would remain subject to MACT.
Following promulgation of the 2004 final 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 Clean Air Act
(CAA). The petition requested reconsideration of nine aspects of the
final rule including the legal basis for the risk-based provisions. The
petition for reconsideration also requested a stay of the effectiveness
of the risk-based provisions. In a letter dated December 6, 2004, EPA
granted NRDC's and EIP's petition for reconsideration and declined the
petitioners' request that we take action to stay the effectiveness of
the risk-based provisions.
On July 29, 2005 (70 FR 44012), we published a notice of
reconsideration and requested comment on the issues in the petition for
reconsideration, including the full content of appendix B to subpart
DDDD. In a separate notice published on July 29, 2005 (70 FR 44012), we
proposed amendments to subpart DDDD and both of the appendices to
subpart DDDD including a request for comment on whether the MACT
compliance date should be extended for sources submitting low-risk
demonstrations or for all sources. On February 16, 2006, EPA
promulgated amendments to the National Emission Standards for Hazardous
Air Pollutants: Plywood and Composite Wood Products. In the 2006 final
rule, we promulgated a revised compliance deadline of October 1, 2008,
for sources subject to the rule, which was 1 year later than the date
originally promulgated.
Following promulgation of the 2004 final PCWP rule, four petitions
for judicial review of the final PCWP rule were filed with the Court 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 were
consolidated. The NRDC, Sierra Club, and EIP petitions for judicial
review \2\ addressed three major concerns: (1) EPA's legal authority to
create and delist a low-risk subcategory; (2) EPA's re-setting of the
compliance date; and (3) EPA's failure to set emission standards for
HAP from all emission points. In March 2007, before the Court decided
the PCWP case, it ruled in Sierra Club, 479 F.3d 875, that ``EPA's
failure to set floors for existing small tunnel brick kilns and new
periodic brick kilns violated [the] CAA * * * noting that the court had
held unlawful EPA's ``no control'' emissions floors for categories in
which the best performers used no emission control technology.''
Subsequently, in April 2007, EPA requested a voluntary remand and
vacatur of the 2004 final MACT determinations for PCWP emissions points
that do not have emission limits (i.e., the ``no emission reduction''
MACT determinations also commonly known as ``no-control MACT floors'').
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\2\ The Louisiana-Pacific Corporation and Norbord Incorporated
petition for judicial review did not result in any change to the
PCWP NESHAP and is not discussed in this preamble.
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On June 19, 2007, the Court issued its opinion remanding and
vacating EPA's no emission reduction MACT determinations, the low-risk
provisions,
[[Page 61062]]
and the October 1, 2008 compliance date.
While today's rule implements the Court's order regarding the
compliance date and low-risk subcategory provisions, EPA will
separately reconsider the MACT determinations for the emission points
for which EPA had previously determined MACT to be ``no emissions
reduction,'' and publish our proposed responses to the Court's remand
of those decisions in a separate notice.
II. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is, therefore,
not subject to review by the Office of Management and Budget. Because
the agency has made a ``good cause'' finding that this action is not
subject to notice-and-comment requirements under the Administrative
Procedure Act or any other statute (see the SUPPLEMENTARY INFORMATION
section of this preamble), it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601,
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not
significantly or uniquely affect small governments or impose a
significant intergovernmental mandate, as described in sections 203 and
204 of UMRA. This rule also does not significantly or uniquely affect
the communities of tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 6, 2000). This rule 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 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
This final rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule
also does not involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). In issuing this rule, EPA has taken the necessary
steps to eliminate ambiguity as required by section 3 of Executive
Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.). EPA's compliance with these statutes and Executive Orders for
the underlying rule is discussed in the July 30, 2004 Federal Register
notice.
The Congressional Review Act (CRA) (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. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore. EPA will submit a report containing this rule
and other required information to the United States Senate, the United
States House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects for 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Hazardous substances, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: October 18, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 63 of
the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401.
Subpart A--[Amended]
0
2. Section 63.14 is amended by revising paragraphs (b)(54), (f)(3) and
(f)(4) to read as follows:
Sec. 63.14 Incorporation by reference.
* * * * *
(b) * * *
(54) ASTM D6348-03, Standard Test Method for Determination of
Gaseous Compounds by Extractive Direct Interface Fourier Transform
Infrared (FTIR) Spectroscopy, incorporation by reference (IBR) approved
for Table 4 to Subpart DDDD of this part as specified in the subpart.
* * * * *
(f) * * *
* * * * *
(3) NCASI Method IM/CAN/WP-99.02, Impinger/Canister Source Sampling
Method for Selected HAPs and Other Compounds at Wood Products
Facilities, January 2004, Methods Manual, NCASI, Research Triangle
Park, NC, IBR approved for Table 4 to Subpart DDDD of this part.
(4) NCASI Method ISS/FP A105.01, Impinger Source Sampling Method
for Selected Aldehydes, Ketones, and Polar Compounds, December 2005,
Methods Manual, NCASI, Research Triangle Park, NC, IBR approved for
table 4 to subpart DDDD of this part.
* * * * *
Subpart DDDD--National Emission Standards for Hazardous Air
Pollutants: Plywood and Composite Wood Products--[Amended]
0
3. Section 63.2231 is amended by revising the introductory paragraph to
read as follows:
Sec. 63.2231 Does this subpart apply to me?
This subpart applies to you if you meet the criteria in paragraphs
(a) and (b) of this section.
* * * * *
0
4. Section 63.2233 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 63.2233 When do I have to comply with this subpart?
* * * * *
(b) If you have an existing affected source, you must comply with
the compliance options, operating requirements, and work practice
requirements for existing sources no later than October 1, 2007.
(c) If you have an area source that increases its emissions or its
potential to emit such that it becomes a major source of HAP, you must
be in compliance with this subpart by October 1, 2007 or
[[Page 61063]]
upon initial startup of your affected source as a major source,
whichever is later.
* * * * *
0
5. Section 63.2291 is amended by revising paragraph (c) introductory
text and removing paragraph (c)(5) to read as follows:
Sec. 63.2291 Who implements and enforces this subpart?
* * * * *
(c) The authorities that will not be delegated to State, local, or
tribal agencies are listed in paragraphs (c)(1) through (4) of this
section.
(1) * * *
* * * * *
Appendices B and C--[Removed]
0
6. Appendices B and C to Subpart DDDD of part 63 are removed.
[FR Doc. 07-5295 Filed 10-26-07; 8:45 am]
BILLING CODE 6560-50-P
