[Federal Register Volume 67, Number 56 (Friday, March 22, 2002)]
[Rules and Regulations]
[Pages 13508-13511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6975]



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Part V





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants for Pesticide 
Active Ingredient Production; Direct Final Rule

  Federal Register / Vol. 67, No. 56 / Friday, March 22, 2002 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7162-5]
RIN 2060-AJ34


National Emission Standards for Hazardous Air Pollutants for 
Pesticide Active Ingredient Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendment.

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SUMMARY: We are taking direct final action to amend the national 
emission standards for hazardous air pollutants (NESHAP) for Pesticide 
Active Ingredient (PAI) Production. This amendment will extend the 
compliance date of the PAI Production NESHAP as currently promulgated 
by 18 months. Under the promulgated rule, the compliance date is June 
23, 2002. With this action, existing sources will be required to comply 
with the rule by December 23, 2003.

DATES: This direct final rule will be effective May 21, 2002 without 
further notice, unless the EPA receives adverse comments by April 22, 
2002. If we receive any adverse comments on the amendment, we will 
publish a timely withdrawal of this direct final rule in the Federal 
Register indicating that the amendment in this rule will not take 
effect.

ADDRESSES: Comments. By U.S. Postal Service, send comments (in 
duplicate if possible) to: Air and Radiation Docket and Information 
Center (6102), Attention Docket Number A-95-20, U.S. EPA, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. In person or by 
courier, deliver comments (in duplicate if possible) to: Air and 
Radiation Docket and Information Center (6102), Attention Docket Number 
A-95-20, U.S. EPA, 401 M Street, SW., Washington, DC 20460. A separate 
copy of each public comment must also be sent to the contact person 
listed in FOR FURTHER INFORMATION CONTACT.
    Docket. Docket No. A-95-20 contains supporting information used in 
developing the PAI Production NESHAP. The docket is located at the U.S. 
EPA, 401 M Street, SW., Washington, DC 20460 in Room 
M-1500, Waterside Mall (ground floor), and may be inspected from 8:30 
a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals 
Group, Emission Standards Division (C504-04), U.S. EPA, Research 
Triangle Park, North Carolina 27711, telephone number (919) 541-5402, 
electronic mail address [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. All comments and data submitted in electronic form must 
note the docket number A-95-20. 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: Mr. Randy McDonald, c/o 
OAQPS Document Control Officer (C404-02), U.S. EPA, Research Triangle 
Park, NC 27709. The EPA will disclose information identified as CBI 
only to the extent allowed by the procedures set forth in 40 CFR part 
2. If no claim of confidentiality accompanies a submission when it is 
received by EPA, the information may be made available to the public 
without further notice to the commenter.
    Docket. The docket is an organized and complete file of all the 
information considered by the EPA in the development of this 
rulemaking. The docket is a dynamic file because material is added 
throughout the rulemaking process. The docketing system is intended to 
allow members of the public and industries involved to readily identify 
and locate documents so that they can effectively participate in the 
rulemaking process. Along with the proposed and promulgated standards 
and their preambles, the contents of the docket will serve as the 
record in the case of judicial review. (See section 307(d)(7)(A) of the 
Clean Air Act (CAA).) The regulatory text and other materials related 
to this rulemaking are available for review in the docket or copies may 
be mailed on request from the Air Docket by calling (202) 260-7548. A 
reasonable fee may be charged for copying docket materials.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action will also be available through the 
WWW. Following signature, a copy of this action will be posted on the 
EPA's Technology Transfer Network (TTN) policy and guidance page for 
newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg. The 
TTN at EPA's web site provides information and technology exchange in 
various areas of air pollution control. If more information regarding 
the TTN is needed, call the TTN HELP line at (919) 541-5384.
    Regulated Entities. The regulated category and entities affected by 
this action include:

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                                                                                        Examples of regulated
              Category                     NAICS codes              SIC codes                  entities
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Industry...........................  Typically, 325199 and   Typically, 2869 and     Producers of pesticide
                                      325320.                 2879.                   active ingredients that
                                                                                      contain organic compounds
                                                                                      that are used in
                                                                                      herbicides, insecticides,
                                                                                      or fungicides.
                                                                                     Producers of any integral
                                                                                      intermediate used in
                                                                                      onsite production of an
                                                                                      active ingredient used in
                                                                                      herbicides, insecticides,
                                                                                      or fungicides.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers likely to be interested in the revisions to the 
regulation affected by this action. To determine whether your facility, 
company, business, organization, etc., is regulated by this action, you 
should carefully examine all of the applicability criteria in 40 CFR 
part 63, subpart MMM. If you have questions regarding the applicability 
of the amendment to a particular entity, consult the person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial 
review of this direct final rule is available only by

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filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia by May 21, 2002. Under section 307(d)(7)(B) of the 
CAA, only an objection to this rule that was raised with reasonable 
specificity during the period for public comment can be raised during 
judicial review.

I. Why Are We Amending the Rule?

    Today's action is necessary to extend the compliance deadline of 
the PAI Production NESHAP pending review and approval of a proposed 
Settlement Agreement between EPA and the American Crop Protection 
Association (ACPA) and BASF Corporation and promulgation of rule 
amendments described in that Settlement Agreement. The ACPA and BASF, 
as well as the American Coke and Coal Chemicals Institute and Eastman 
Chemical Company, filed petitions for judicial review of the PAI 
Production NESHAP promulgated on June 23, 1999 (64 FR 33550). On 
January 18, 2002, EPA entered into a Settlement Agreement with ACPA and 
BASF, resolving petitioners' litigation. Notice of that Agreement was 
published in the Federal Register pursuant to the requirements of CAA 
section 113(g) on February 4, 2002 (67 FR 5116). The Agreement calls 
for EPA to propose a number of amendments to the PAI Production NESHAP.
    Upon final approval of the Settlement Agreement, EPA will publish a 
notice of proposed rulemaking with the agreed upon amendments to the 
PAI Production NESHAP in the Federal Register.
    Today's direct final rulemaking extends the compliance date for 
existing sources from June 23, 2002 to December 23, 2003. We believe 
this extension reasonably allows sources time to assess the compliance 
impacts of proposed Settlement Agreement and the agreed upon rule 
amendments included in that Settlement Agreement. While we believe the 
18-month extension of the compliance date will be sufficient for all 
sources to come into compliance with the amendments to be proposed, 
should a source be unable to meet that compliance date because of the 
need to install controls that cannot be installed by that date, that 
source may request an extension of up to 1 year in accordance with 40 
CFR 63.1364(a)(2).

II. What Amendment Are We Making to the Rule Today?

    Today's action extends the compliance date by 18 months. Under the 
promulgated PAI Production NESHAP, existing affected sources would be 
required to be in compliance by June 23, 2002. With today's action, 
existing sources must be in compliance by December 23, 2003.

III. Why Are We Publishing the Amendment as a Direct Final Rule?

    We are taking separate direct final action on the compliance date 
extension in order to ensure that this change can be completed before 
the current June 23, 2002 compliance deadline for existing sources. We 
believe this 18-month extension is a noncontroversial change because it 
provides a reasonable extension to allow sources to assess the 
compliance impacts of the agreed upon rule amendments included in the 
Settlement Agreement. As a result, we anticipate no adverse comments.
    If we receive an adverse comment on this action, we will publish a 
timely notice before the effective date of this amendment indicating 
that the rule is being withdrawn. In the ``Proposed Rules'' section of 
this Federal Register, we are publishing a separate document that will 
serve as the proposal for the amendment in the event that we receive an 
adverse comment. We will respond to all public comments in a subsequent 
final rule based on the proposed rule. We will not institute a second 
comment period on the subsequent final rule. Any parties interested in 
commenting must do so at this time.

IV. What Are the Administrative Requirements for This Direct Final 
Rule?

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 Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule amendment is a not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to OMB 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.''
    This direct final rule amendment 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, 
because State and local governments do not own or operate any sources 
that would be subject to the PAI Production NESHAP. Thus, Executive 
Order 13132 does not apply to this direct final rule amendment.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.''
    The final rule does not have tribal implications, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
the rule.

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

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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. This rule amendment is not 
subject to Executive Order 13045 because it is based on technology 
performance, not health or safety risks. Furthermore, this rule 
amendment 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), 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 number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this rule amendment 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. For existing sources, the total annual 
cost of the PAI Production NESHAP has been estimated to be 
approximately $39.4 million (64 FR 33559, June 23, 1999). Today's 
amendment does not add new requirements that would increase this cost. 
Thus, this rule amendment is not subject to the requirements of 
sections 202 and 205 of the UMRA. In addition, EPA has determined that 
this rule amendment 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, this rule amendment 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 
this direct final rule amendment on small entities, a small entity is 
defined as: (1) A small business in the North American Industrial 
Classification System (NAICS) code 325320 that has as many as 500 
employees; (2) a small business in NAICS code 325199 that has as many 
as 1,000 employees; (3) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (4) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's amendment on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact on small entities'' (5 U.S.C. 603 and 604). Thus, an 
agency may conclude that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, or otherwise has a positive economic effect on all 
of the small entities subject to the rule. Today's amendment imposes no 
additional regulatory requirements on owners or operators of affected 
sources. The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with this direct final 
rule amendment.

G. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
contained in the 1999 PAI Production NESHAP under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control No. 2060-0370. An Information Collection Request (ICR) document 
has been prepared by EPA (ICR No. 1807.01), 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.
    The amendment contained in this direct final rule will have no 
impact on the information collection burden estimates made previously. 
Consequently, the ICR has not been revised.

H. National Technology Transfer and Advancement Act of 1995

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use 
voluntary consensus standards in its regulatory activities, unless to 
do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides

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not to use available and applicable voluntary consensus standards.
    Today's action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

I. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
adopting the rule must submit a rule report, which includes a copy of 
the rule, to each House of the Congress and to the Comptroller General 
of the United States. The EPA will submit a report containing this rule 
amendment and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of this rule amendment in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

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

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

List of Subjects in 40 CFR Part 63

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

    Dated: March 19, 2002.
Christine Todd Whitman,
Administrator.


    For the reasons set out 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:

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

Subpart MMM--National Emission Standards for Hazardous Air 
Pollutants for Pesticide Active Ingredient Production

    2. Section 63.1364 is amended by revising paragraph (a)(1) as 
follows:


Sec. 63.1364  Compliance dates.

    (a) Compliance dates for existing sources. (1) An owner or operator 
of an existing affected source must comply with the provisions in this 
subpart by December 23, 2003.
* * * * *
[FR Doc. 02-6975 Filed 3-21-02; 8:45 am]
BILLING CODE 6560-50-P