[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Proposed Rules]
[Pages 55491-55495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23643]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-6869-3]
RIN 2060-AJ11


National Emission Standards for Hazardous Air Pollutants: 
Secondary Aluminum Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; applicability stay.

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SUMMARY: In this action, EPA is proposing a rule to stay the 
applicability of the national emission standards for hazardous air 
pollutants (NESHAP) for Secondary Aluminum Production, as applied to 
aluminum foundries and aluminum die casting facilities during the 
pendency of a separate rulemaking to adopt alternate MACT requirements 
for these sources. The EPA intends to take final action concerning this 
proposed stay at the same time as it proposes to remove aluminum 
foundries and aluminum die casting facilities from the present 
secondary aluminum standard and to adopt alternate MACT requirements 
deemed necessary and appropriate for these sources.
    In an advance notice of proposed rulemaking (ANPR) published 
elsewhere in this Federal Register, EPA is announcing its intention to 
propose amendments to the NESHAP for Secondary Aluminum Production to 
remove aluminum foundries and aluminum die casting facilities from 
those standards and to make a new determination concerning maximum 
achievable control technology (MACT) requirements for major sources and 
area sources in these industries.

DATES: Comments. Comments must be received on or before October 16, 
2000.

ADDRESSES: Comments. Comments should be submitted (in duplicate, if 
possible) to: Air and Radiation Docket and Information Center (6102), 
Attention: Docket No. A-2000-35, U.S. EPA, 1200 Pennsylvania Ave., NW, 
Washington, DC 20460. We request that a separate copy of each public 
comment be sent to the contact person listed below (see FOR FURTHER 
INFORMATION CONTACT).
    Docket. Docket No. A-2000-35 is available for public inspection and 
copying from 8:30 a.m. to 5:30 p.m., Monday through Friday (except for 
Federal holidays), at the EPA's Air and Radiation Docket and 
Information Center, Waterside Mall, Room M-1500, Ground Floor, 401 M 
Street SW, Washington, DC 20460. A reasonable fee may be charged for 
copying docket items.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
proposed rule, contact Mr. Juan Santiago, Minerals and Inorganic 
Chemicals Group, Emission Standards Division (MD-13), U.S. EPA, 
Research Triangle Park, North Carolina 27711, (919) 541-1084, 
[email protected].

SUPPLEMENTARY INFORMATION:

Comments

    Comments and data may be submitted by electronic mail (e-mail) to: 
[email protected]. Electronic comments must be submitted as an 
ASCII file to avoid the use of special characters and encryption 
problems and will also be accepted on disks in WordPerfect(TM) version 
5.1, 6.1 or Corel 8 file format. All comments and data submitted in 
electronic form must note the docket number: A-2000-35. No confidential 
business information (CBI) should be submitted by e-mail. Electronic 
comments may be filed online at many Federal Depository Libraries.
    Commenters wishing to submit proprietary information for 
consideration must clearly distinguish such information from other 
comments and clearly label it as CBI. Send submissions containing such 
proprietary information directly to the following address, and not to 
the public docket, to ensure that proprietary information is not 
inadvertently placed in the docket: Attention: Juan Santiago, U.S. EPA, 
c/o OAQPS Document Control Officer, 411 W. Chapel Hill Street, Room 
740B, Durham, NC 27701. The EPA will disclose information identified as 
CBI only to the extent allowed by the procedures set forth in 40 CFR 
part 2. If no claim of confidentiality accompanies a submission when it 
is received by the EPA, the information may be made available to the 
public without further notice to the commenter.

Regulated Entities

    The regulated category and entities affected by this action 
include:

[[Page 55492]]



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            Category               NAICS Code    SIC Code               Examples of regulated entities
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Industry........................       331521          3363  Aluminum die casting facilities.
                                       331524          3365  Aluminum foundry facilities.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that the Agency is now 
aware could potentially be affected by this action. If you have 
questions regarding the applicability of this proposed stay to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

Outline

    The information presented in this preamble is organized as follows:

I. What are we proposing?
II. Why are we taking this action?
III. Whom would this stay affect?
IV. What related actions is EPA undertaking?
V. What are the administrative requirements for this stay?
A. Execytuve Irder 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13084, Consultation and Coordination with Indian 
Tribal Governments
D. Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks
E. Unfunded Mandates Reform Act of 1995
F. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C 601 et seq.
G. Paperwork Reduction Act
H. National Technology Transfer and Advancement Act

I. What are we proposing?

    Aluminum foundries and aluminum die casting facilities are subject 
to the current NESHAP for Secondary Aluminum Production, 40 CFR part 
63, subpart RRR. We are proposing to stay the applicability of subpart 
RRR to sources in the aluminum foundry and aluminum die casting 
industries during the pendency of a new rulemaking to remove these 
sources from subpart RRR and to adopt alternate MACT requirements 
deemed necessary and appropriate for such sources.

II. Why are we taking this action?

    The EPA promulgated the NESHAP for the Secondary Aluminum 
Production source category on March 23, 2000 (65 FR 15690). As 
promulgated, these standards apply to major and area source aluminum 
foundries and aluminum die casting facilities, except for those 
facilities that melt no materials other than clean charge and materials 
generated within the facility and that also do not operate a thermal 
chip dryer, sweat furnace or scrap dryer/delacquering kiln/decoating 
kiln.
    The EPA based the NESHAP for aluminum foundries and aluminum die 
casting facilities, as well as its assessment of the economic impacts 
on small businesses in these industry segments, on information 
pertaining to representative facility practices in these industry 
segments. We believed that the information in the record supporting our 
NESHAP for secondary aluminum production facilities was representative 
of the operations and range of emissions at aluminum die casting 
facilities and aluminum foundries and sufficient to support the MACT 
requirements we adopted in those standards for them, although we did 
not have emissions data on dioxin and furan emissions specifically 
measured at aluminum foundries and die casting facilities.
    However, affected aluminum foundry operators and die casters have 
expressed the view that the information and assumptions upon which we 
relied when we promulgated the Secondary Aluminum Production NESHAP may 
be incomplete or may not adequately represent the processes and 
emissions at such facilities. Accordingly, EPA made a commitment as 
part of the NESHAP for the Secondary Aluminum Production source 
category to initiate a formal process to collect further information 
from the facilities in these industries on the activities in which they 
engage and the potential of these activities to contribute to HAP 
emissions. EPA also published that, after evaluating this information, 
it would make a new determination concerning MACT requirements for both 
major sources and area sources in these industries. EPA has since 
entered into a settlement agreement in American Foundrymen's Society, 
et al. v EPA, Civ. No. 00-1208 (D.C. Cir.) that effectuates this 
commitment in the preamble to the NESHAP for the Secondary Aluminum 
Production source category.
    The EPA intends to undertake a new rulemaking to remove aluminum 
foundries and aluminum die casting facilities from subpart RRR and to 
make a new determination concerning alternate MACT requirements deemed 
necessary and appropriate for these sources in the context of a 
separate source category. We intend to collect further information from 
these facilities using our authority under CAA section 114 and to make 
a new determination concerning the MACT floor and any MACT requirements 
deemed necessary and appropriate for these facilities based on this 
information. Our intention to proceed with this new MACT rulemaking is 
expressly contingent on our ability to collect information concerning 
the processes employed at these facilities and the associated 
emissions, sufficient both to fully support establishment of a separate 
MACT floor for such facilities and to resolve any remaining questions 
regarding the practicality, cost, and efficacy of potential emission 
controls.
    In this action, EPA is proposing a rule to stay the applicability 
of subpart RRR to aluminum foundries and aluminum die casting 
facilities during the pendency of the rulemaking to make a new 
determination concerning alternative MACT requirements for these 
facilities. We intend to take final action concerning this proposed 
stay at the same time as we propose to remove aluminum foundries and 
aluminum die casting facilities from subpart RRR and to adopt 
alternative MACT requirements deemed necessary and appropriate for 
these facilities.
    The EPA is proposing this applicability stay because it would make 
no sense to require major and area sources at aluminum foundries and 
aluminum die casting facilities to continue to plan for compliance with 
the existing provisions of subpart RRR once EPA has made a new 
determination of MACT requirements for these facilities and has 
proposed to remove these facilities from subpart RRR. Assuming that the 
information collection process can proceed expeditiously, we believe 
that a new MACT floor for these facilities can be determined and 
alternate MACT requirements deemed necessary and appropriate for 
affected sources can be proposed before any facility would be legally 
obligated to comply with the substantive controls required by subpart 
RRR.
    Any proposed rule to adopt an alternative NESHAP for aluminum 
foundries and die casters will provide affected facilities with a 
reasonable amount of time after the effective date of the promulgated 
standards, and in no event less than one year, to come into compliance 
with the final standards.

[[Page 55493]]

Aluminum foundries and die casters will also have a reasonable amount 
of time to come into compliance with the existing NESHAP for secondary 
aluminum production should EPA elect not to issue a proposed rule to 
remove aluminum foundries and die casters from 40 CFR part 63, subpart 
RRR.

III. Whom would this stay affect?

    When finalized, this proposed stay would affect those aluminum die 
casting facilities and aluminum foundry facilities to which 40 CFR part 
63, subpart RRR, presently applies. Specifically, this proposed stay 
would affect existing aluminum die casting facilities and aluminum 
foundry facilities that meet either, or both, of the following 
descriptions:
     Facilities that melt materials other than clean charge and 
other than materials generated within the facility;
     Facilities that operate a thermal chip dryer, sweat 
furnace, or scrap dryer/delacquering kiln/decoating kiln.
    For the purposes of this proposed stay, aluminum die casting 
facility means a facility that receives molten aluminum or melts solid 
aluminum, such as aluminum ingots, billets, and/or scrap, and pours or 
injects the molten metal into a permanent die to produce a casting. 
Aluminum foundry facility means a facility that receives molten 
aluminum or melts solid aluminum, such as aluminum ingots, billets, 
and/or scrap, and pours molten metal into a mold to produce a casting.

IV. What related actions is EPA undertaking?

    In an ANPR published elsewhere in this Federal Register, EPA is 
announcing its intention to propose amendments to the Secondary 
Aluminum Production NESHAP, 40 CFR part 63, subpart RRR, to remove 
aluminum foundries and aluminum die casting facilities from that NESHAP 
and to make a new determination concerning MACT requirements for major 
sources and area sources in these industries.
    In order to gather information supporting the new determination 
concerning alternate MACT requirements for aluminum foundries and 
aluminum die casting facilities, we intend to collect additional 
information from individual companies and facilities on site-specific 
operating practices, emissions, emission control devices, emission 
control costs and applicable regulations, utilizing our authority under 
CAA section 114. The EPA will seek approval for this information 
collection effort from the Office of Management and Budget (OMB) 
pursuant to the provisions of the Paperwork Reduction Act.

V. What Are the Administrative Requirements for This Stay?

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Executive Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    OMB has determined that this proposed rule is a ``significant 
regulatory action'' because of novel legal or policy reasons. As such, 
this action was submitted to OMB for review.

B. Executive Order 13132, Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to OMB, in a separately identified section of the preamble 
to the rule, a federalism summary impact statement (FSIS). The FSIS 
must include a description of the extent of EPA's prior consultation 
with State and local officials, a summary of the nature of their 
concerns and EPA's position supporting the need to issue the 
regulation, and a statement of the extent to which the concerns of 
State and local officials have been met. Also, when EPA transmits a 
draft final rule with federalism implications to OMB for review 
pursuant to Executive Order 12866, EPA must include a certification 
from the Agency's Federalism Official stating that EPA has met the 
requirements of Executive Order 13132 in a meaningful and timely 
manner.
    Today's proposed stay will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
because State and local governments do not own or operate any sources 
that would be subject to his proposed stay. Thus, the requirements of 
section 6 of the Executive Order do not apply to today's action.

C. Executive Order 13084, Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the

[[Page 55494]]

regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's proposed stay does not significantly or uniquely affect the 
communities of Indian tribal governments. No tribal governments own or 
operate sources subject to this proposed stay. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
today's action.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. Today's proposed stay is not 
subject to Executive Order 13045 because it is based on technology 
performance, not health or safety risks. Furthermore, this proposed 
rule has been determined not to be ``economically significant'' as 
defined under Executive Order 12866.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with Federal mandates that may 
result in expenditures by State, local, and tribal governments, in 
aggregate, or by the private sector, of $100 million or more in any 1 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least-costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost effective, or least-burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    The EPA has determined that the proposed stay does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, or tribal governments, in the aggregate, or the 
private sector in any 1 year. The maximum total annual cost of the 
Secondary Aluminum Production NESHAP for any year has been estimated to 
be approximately $76.7 million (65 FR 15690, March 23, 2000), and 
today's proposed stay does not add new requirements that would increase 
this cost. Thus, today's proposed stay is not subject to the 
requirements of sections 202 and 205 of the UMRA. In addition, EPA has 
determined that this proposed stay contains no regulatory requirements 
that might significantly or uniquely affect small governments because 
it contains no requirements that apply to such governments or impose 
obligations upon them. Therefore, today's proposed stay is not subject 
to the requirements of section 203 of the UMRA.

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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed stay on 
small entities, a small entity is defined as: (1) A small business in 
SIC code 3363 or 3365 that has as many as 500 employees; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed stay on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The EPA has 
determined that none of the small entities will experience a 
significant impact because the proposed stay imposes no additional 
regulatory requirements on owners or operators of affected sources.

G. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
contained in the Secondary Aluminum Production NESHAP under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control No. 2060-0433. An Information Collection 
Request (ICR) document has been prepared by EPA (ICR No. 1894.01), and 
a copy may be obtained from Sandy Farmer by mail at U.S. EPA, Office of 
Environmental Information, Collection Strategies Division (2822), 1200 
Pennsylvania Avenue, NW, Washington DC 20460, by email at 
[email protected], or by calling (202) 260-2740. Today's proposed 
stay of the NESHAP will not increase the information collection burden 
estimates made previously.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), Public Law 104-113 (March 7, 1996), directs all Federal 
agencies to use voluntary consensus standards instead of government-
unique standards in their regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., material 
specifications, test methods,

[[Page 55495]]

sampling and analytical procedures, and business practices) that are 
developed or adopted by one or more voluntary consensus bodies. 
Examples of organizations generally regarded as voluntary consensus 
standards bodies include the American Society for Testing and Materials 
(ASTM), the National Fire Protection Association (NFPA), and the 
Society of Automotive Engineers (SAE). The NTTAA requires Federal 
agencies like EPA to provide Congress, through OMB, with explanations 
when an agency does not use available and applicable voluntary 
consensus standards.
    The proposed stay does not involve the proposal of any new 
technical standards or incorporate by reference existing technical 
standards.

    Dated: September 8, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-23643 Filed 9-13-00; 8:45 am]
BILLING CODE 6560-50-P