[Federal Register Volume 67, Number 106 (Monday, June 3, 2002)]
[Rules and Regulations]
[Pages 38200-38203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13804]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7222-4]
RIN 2060-AJ34


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendment.

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SUMMARY: On June 23, 1999, EPA promulgated national emission standards 
for hazardous air pollutants (NESHAP) for Pesticide Active Ingredient 
(PAI) Production (40 CFR part 63, subpart MMM). On August 19 and 20, 
1999, petitions for judicial review of the June 1999 rule were filed in 
the U.S. Court of Appeals for the District of Columbia Circuit. This 
action is in response to an issue raised by two of those petitioners--
the American Crop Protection Association (ACPA) and the American 
Cyanamid Company (now BASF Corporation). On March 22, 2002 (67 FR 
13504), EPA proposed an amendment to change the existing source 
compliance date of the NESHAP for PAI Production to December 23, 2003. 
Under the promulgated rule, existing affected sources would be required 
to be in compliance by August 22, 2002. With this final action, 
existing sources will be required to be in compliance with the rule by 
December 23, 2003.

EFFECTIVE DATE: June 3, 2002.

ADDRESSES: Docket No. A-95-20 contains supporting information used in 
developing the NESHAP. The docket is located at the U.S. EPA, 401 M 
Street, SW., Washington, DC 20460 in Room M-1500, Waterside Mall 
(ground floor), and may be inspected from 8:30 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: 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 proposed rule 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:

----------------------------------------------------------------------------------------------------------------
                                                                                        Examples of regulated
              Category                     NAICS codes              SIC codes                  entities
----------------------------------------------------------------------------------------------------------------
Industry...........................  Typically, 325199 and   Typically, 2869 and     [sbull] Producers of
                                      325320.                 2879.                   pesticide active
                                                                                      ingredients that contain
                                                                                      organic compounds that are
                                                                                      used in herbicides,
                                                                                      insecticides, or
                                                                                      fungicides.
                                                                                     [sbull] Producers of any
                                                                                      integral intermediate used
                                                                                      in onsite production of an
                                                                                      active ingredient used in
                                                                                      herbicides, insecticides,
                                                                                      or fungicides.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers likely to be interested in the proposed 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 this proposed amendment to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

[[Page 38201]]

I. What Is the History of the PAI Production NESHAP?

    On June 23, 1999, we promulgated NESHAP for PAI Production as 
subpart MMM in 40 CFR part 63 (64 FR 33550). On August 19 and 20, 1999, 
the American Crop Protection Association and American Cyanamid Company 
(now BASF Corporation) filed petitions for judicial review of the 
promulgated PAI Production NESHAP in the U.S. Court of Appeals for the 
District of Columbia Circuit, ACPA v. EPA, No. 99-1332, and American 
Cyanamid Company v. EPA, No. 99-1334 (Consolidated with ACPA v. EPA, 
No. 99-1332) (D.C. Cir.).
    On January 18, 2002, EPA entered into a Settlement Agreement with 
ACPA and BASF, resolving petitioners' litigation. Notice of this 
agreement was published in the Federal Register on February 4, 2002 (67 
FR 5116), pursuant to the requirements of CAA section 113(g). The 
Agreement called for EPA to propose a number of amendments to the PAI 
Production NESHAP, including an amendment to extend the compliance date 
to December 23, 2003. The proposed amendment to change the compliance 
date was published on March 22, 2002 (67 FR 13504). The other agreed-
upon proposed amendments were published on April 10, 2002 (67 FR 
17492).

II. What Public Comments Were Received on the March 22, 2002 Proposal 
and What Changes Were Made for the Final Rule?

    Although EPA received no comment on the proposed settlement 
agreement through the section 113(g) process, one commenter, 
representing an environmental legal defense fund, commented on the 
proposal to extend the rule's effective date. The commenter maintains 
that such an extension is illegal because it would establish an 
effective date for the rule which is longer than the maximum 3 years 
allowed by section 112(i)(3) of the CAA (assuming no case-by-case 1 
year extension). The commenter further maintained that the delay would 
forestall the health benefits resulting from the emissions reductions 
required by the underlying rule.
    We appreciate the commenter's point. Nonetheless, it should be 
noted that section 112(i)(3) deadlines are not as inflexible as the 
commenter maintains. First, section 112(i)(3) is ambiguous as to 
whether an initial compliance date applies to a rule which has been 
substantially amended. Section 112(i)(3) applies to ``any emissions 
standard.'' If a rule is amended so extensively as to be a different 
regulation, then compliance set from the date of that amended rule 
would still be established for ``any emission standard,'' in this case, 
the new rule. Put another way, there will be circumstances where EPA 
changes a rule so extensively that the amended rule should be regarded 
as a new standard, triggering a new effective date. Indeed, it is only 
common sense that this must be so. For example, suppose that we were to 
conclude legitimately that data supporting a standard was flawed, and 
that a new standard was needed, likely necessitating a different means 
of air pollution control. There should be no doubt that we can 
promulgate a new compliance date for this new standard. See also, 
section 112(d)(6) of the CAA, requiring EPA to periodically reexamine 
and, if necessary, revise MACT standards. If such a standard were 
revised, it is obvious that a new compliance date would be needed to 
reflect the time needed to come into compliance with the new standards.
    We believe that the proposed changes to the PAI rule, if adopted, 
are extensive and significant enough to result in a new rule 
necessitating a new compliance date. We proposed these amendments on 
April 10, 2002, and the amendments include revisions to every section 
of the regulation. The public comment period on the proposed amendments 
closed on May 10, 2002. Therefore, final action on the amendments is 
still several months in the future.
    As explained in detail in the April 10 proposal, the amendments 
include approximately 100 revisions to the rule. The revisions address 
numerous issues, make significant amendments, and also make needed 
corrections to the rule. Several amendments address applicability 
issues. For example, we proposed to amend the definition of 
intermediate to cover products of extraction, as well as products of 
chemical synthesis. We also proposed to clarify the demarcation between 
new and existing sources by clarifying new source applicability. The 
proposed amendments go to the most basic feature of the rule--to what 
does it apply--a question which must be answered before any source can 
begin to comply.
    Several amendments include provisions for compliance alternatives 
and alternative standards that give the source additional compliance 
options, which necessarily require time for sources to adopt. One 
example is providing sources the option of demonstrating compliance 
through the use of a common control device, shared among several 
processes, provided they demonstrate compliance using a continuous 
emissions monitor (CEM) instead of parametric monitoring on a per-
process basis. A source desiring to use the environmentally beneficial 
alternative of CEM-based compliance needs time to obtain, install, and 
calibrate the device. See section 504 (b) of the CAA, which allows 
alternatives to a CEM, but in doing so, places the CEM by inference at 
the top of the monitoring hierarchy.
    Given the pervasive nature of the proposed amendments, and the fact 
that final action cannot occur until after the current existing source 
compliance date, we believe it is both appropriate and necessary to 
provide time for sources in the category to review the final changes 
and take appropriate steps to come into compliance with the amended 
rule.

III. What Are the Administrative Requirements for This Action?

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 final rule amendment is 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

[[Page 38202]]

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 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 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.''
    This final rule amendment does not have tribal implications, as 
specified in Executive Order 13175. Thus, Executive Order 13175 does 
not apply to this final rule amendment.

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. This final rule amendment is 
not subject to Executive Order 13045 because it is based on technology 
performance, not health or safety risks. Furthermore, this final 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 final 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 EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with this final rule 
amendment. For purposes of assessing the impacts of this 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, EPA has concluded 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. Sections 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 final rule 
amendment imposes no additional regulatory requirements on owners or 
operators of affected sources. We have, therefore, concluded

[[Page 38203]]

that today's final rule amendment will have no impact on small 
entities.

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.
    This final rule amendment will have no impact on the information 
collection burden estimates made previously, and consequently, the ICR 
has not been revised. Burden means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

H. National Technology Transfer and Advancement Act 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 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 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: May 23, 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) to read 
as follows:


[sect] 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.
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[FR Doc. 02-13804 Filed 5-31-02; 8:45 am]
BILLING CODE 6560-50-P