[Federal Register Volume 67, Number 113 (Wednesday, June 12, 2002)]
[Rules and Regulations]
[Pages 40578-40579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14757]



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Part VII





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants From 
Phosphoric Acid Manufacturing Plants and Phosphate Fertilizers 
Production Plants; Final Rule

  Federal Register / Vol. 67, No. 113 / Wednesday, June 12, 2002 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7229-4]
RIN 2060-AE44


National Emission Standards for Hazardous Air Pollutants From 
Phosphoric Acid Manufacturing Plants and Phosphate Fertilizers 
Production Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendment.

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SUMMARY: The EPA received adverse comment on the direct final action 
published on December 17, 2001 (66 FR 65072) to amend the national 
emission standards for hazardous air pollutants from phosphoric acid 
manufacturing plants and phosphate fertilizers production plants. We 
stated in that direct final action that, if we received adverse comment 
by January 16, 2002, we would publish a timely withdrawal in the 
Federal Register. We, however, did not publish the withdrawal prior to 
the February 15, 2002 effective date of the direct final rule as we did 
not receive the comment until February 12, 2002. (As explained further 
below, the comment was dated within the time period specified for 
submitting comments, and we assume that our late receipt of the comment 
resulted from problems with mail delivery in the Washington, DC area in 
the aftermath of the events of September 11, 2001.) In this action, we 
are removing one of the amendments (an emission limit) that was 
published in the December 17, 2001 direct final rule for phosphoric 
acid manufacturing plants and reinstating the corresponding emission 
limit in existence prior to the effective date of the direct final 
rule. We will address the adverse comment in a subsequent final action 
based on the parallel proposal also published on December 17, 2001. 
Notice of that final action should be published in the Federal Register 
in the very near future.
    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(3)(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 rule without providing 
notice and an opportunity for public comment. We have determined that 
there is good cause for making this rule final without notice and 
comment procedures because under the terms of the December 17, 2001 
direct final action, this amendment to the national emission standards 
for phosphoric acid manufacturing plants should not have occurred. 
Thus, notice and comment are contrary to the public interest and 
unnecessary. We find that the circumstances described constitute good 
cause under 5 U.S.C. 553(b)(3)(B) and 553(d)(3) which authorizes an 
agency to make a rule immediately effective where it finds that there 
is good cause for doing so.

EFFECTIVE DATE: June 12, 2002.

ADDRESSES: Docket No. A-94-02, containing information relevant to the 
direct final action being withdrawn, is available for public inspection 
between 8:00 a.m. and 5:30 p.m., Monday through Friday (except for 
legal holidays) at the following address: Air and Radiation Docket and 
Information Center (6102), U.S. EPA, 401 M Street, SW., Room M-1500, 
Waterside Mall (ground floor), Washington, DC 20460 or by phoning the 
Air Docket Office at (202) 260-7548. Refer to Docket No. A-94-02. The 
Docket Office may charge a reasonable fee for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Tanya Medley, Environmental Protection 
Agency, Office of Air Quality Planning and Standards, at (919) 541-
5422, e-mail: [email protected], facsimile (919) 541-5600.

SUPPLEMENTARY INFORMATION: On June 10, 1999 (64 FR 31358), we published 
the final national emission standards for hazardous air pollutants 
(NESHAP) for phosphoric acid manufacturing plants (40 CFR 63, subpart 
AA) and the NESHAP for phosphate fertilizers production plants (40 CFR 
63, subpart BB). Subsequent to that publication, The Fertilizer 
Institute (TFI) filed a petition with the United States Court of 
Appeals for the District of Columbia Circuit challenging several 
aspects of the NESHAP for phosphoric acid manufacturing plants and 
phosphate fertilizers production plants.
    The EPA entered into discussions with TFI on their issues and 
reached a Settlement Agreement on June 26, 2001. The NESHAP for 
phosphoric acid manufacturing plants and phosphate fertilizers 
production plants were subsequently amended to clarify our intent 
regarding the daily averaging of monitored operating parameters of air 
pollution control devices and the establishment of baseline average 
values for the monitored parameters; and to revise the particulate 
matter emission limit for phosphate rock calciners subject to the 
NESHAP for phosphoric acid manufacturing plants.
    These amendments were accomplished through a direct final action 
(66 FR 65072) and a parallel proposal (66 FR 65079) published in the 
Federal Register on December 17, 2001.
    We stated in the direct final action that if we received adverse 
comment by January 16, 2002, we would publish a withdrawal in the 
Federal Register that this direct final rule will not take effect. We 
received one adverse comment that addressed only the revised emission 
limit for particulate matter emissions from phosphate rock calciners 
that are subject to the NESHAP for phosphoric acid manufacturing 
plants. This comment letter was dated January 11, 2002, but EPA's Air 
Docket marked the letter as being received on February 12, 2002. For 
purposes of today's action, we assume that the comment was received 
after the official close of the comment period due to continuing delays 
in U.S. mail delivery to all EPA offices in Washington DC, including 
EPA's Air Docket, due to concerns about possible contamination. As a 
result, we are rescinding the change to the emission limit in 40 CFR 
63.602 (d) established by the direct final rule and reinstating the 
emission limit in existence prior to the effective date of the direct 
final rule. That will give us an opportunity to further evaluate the 
merits of the comment and respond to it in the context of final action 
on the parallel proposal that was published along with the direct final 
rule.
    Because we received an adverse comment on one of the amendments to 
the NESHAP for phosphoric acid manufacturing plants, the direct final 
rule effecting that amendment, by its terms, should not have become 
effective. We, therefore, are hereby removing that amendment in today's 
action, and reinstating the corresponding provision previously in 
existence.
    This removal action is simply a ministerial correction of one 
provision (i.e. the revised emission limit for particulate emissions 
from phosphate rock calciners) in the prior direct final rulemaking, 
which by its terms should not have become effective because a party 
commented adversely on this amendment to the NESHAP for phosphoric acid 
manufacturing plants. Therefore, we are invoking the good cause 
exception under the APA, 5 U.S.C. 553(b)(3)(B) because we believe that 
notice-and-comment rulemaking of this removal action is contrary to the 
public interest and unnecessary. This removal action merely restores 
the regulatory text for the cited provision that existed prior to the 
direct final rule. We stated in the December 17, 2001

[[Page 40579]]

direct final action that should adverse comment be received, the rule 
would not take effect. The rule took effect because we did not publish 
a timely withdrawal in the Federal Register prior to the rule's 
effective date due to our late receipt of the adverse comment. It would 
be contrary to the public interest to keep the cited provision of the 
direct final rule in effect when it should not have taken effect in the 
first instance due to our receipt of an adverse comment.
    Additionally, further notice-and-comment on this action is 
unnecessary because we are merely restoring the regulatory text of the 
provision as it existed prior to the amendment. We, therefore, find 
that there is good cause for making this action final without 
opportunity for notice and comment.
    For the reasons described in the preceding paragraph, we find there 
is good cause, in accordance with the APA, 5 U.S.C. 553(d)(3), for the 
removal of the amended emission limit and reinstatement of the 
preexisting emission limit to become effective upon publication.
    We will address the single public comment in a subsequent final 
action on the parallel proposed rule amendment.

Administrative Requirements

    Under Executive Order 12866, Regulatory Planning and Review, (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. Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, does not apply to this 
action. Because this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute, it is not subject to the regulatory flexibility provisions of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or sections 202 
and 205 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). 
This rule also is not subject to Executive Order 13045, Protection of 
Children from Environmental Health Risks and Safety Risks, (62 FR 
19885, April 23, 1997) because EPA interprets E.O. 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 is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. This rule is not subject to Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use because it is not a significant regulatory action 
under Executive Order 12866. This rule does not have any federalism 
implications under Executive Order 13132, Federalism. The Paper 
Reduction Act, and the National Technology Transfer and Advancement Act 
do not apply here. 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 
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, and established an effective date of June 12, 
2002. The EPA will submit a report containing this rule 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 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 in 40 CFR Part 63

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: June 5, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
63 of the Code of Federal Regulations is amended to read 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.

    2. Section 63.602 is amended by revising paragraph (d) to read as 
follows:


Sec. 63.602  Standards for existing sources.

* * * * *
    (d) Phosphate rock calciner. On or after the date on which the 
performance test required to be conducted by Secs. 63.7 and 63.606 is 
required to be completed, no owner or operator subject to the 
provisions of this subpart shall cause to be discharged into the 
atmosphere from any affected source any gases which contain particulate 
matter in excess of 0.1810 gram per dry standard cubic meter (g/
dscm)(0.060 grains per dry standard cubic foot (gr/dscf)).
* * * * *
[FR Doc. 02-14757 Filed 6-11-02; 8:45 am]
BILLING CODE 6560-50-P