[Federal Register Volume 68, Number 36 (Monday, February 24, 2003)]
[Proposed Rules]
[Pages 8574-8580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4245]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[FRL-7453-1; Docket ID No. OAR-2002-0046]
RIN 2060-AJ53


Standards of Performance for Volatile Organic Liquid Storage 
Vessels (Including Petroleum Liquid Storage Vessels) for Which 
Construction, Reconstruction, or Modification Commenced After July 23, 
1984

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; amendments.

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SUMMARY: On March 27, 2000, the EPA issued a memorandum which stated 
that process tanks are ``storage vessels'' under the definition in the 
Standards of Performance for Volatile Organic Liquid Storage Vessels 
(Including Petroleum Liquid Storage Vessels) for Which Construction, 
Reconstruction, or Modification Commenced After July 23, 1984. On May 
26, 2000, the American Forest and Paper Association (AF&PA) filed a 
petition for judicial review of the March 27, 2000 memorandum. The EPA 
is proposing to amend the standards to address the issues raised by 
AF&PA in its petition for review. The EPA is also proposing to amend 
the standards to exempt storage vessels that are subject to the 
National Emission Standards for Hazardous Air Pollutants: Solvent 
Extraction for Vegetable Oil Production.

DATES: The EPA will accept comments regarding this proposal on or 
before March 26, 2003.

ADDRESSES: Mail. Send your comments to: Air Docket, U.S. EPA, Mailcode: 
6102T, Room B108, 1200 Pennsylvania Ave, NW., Washington, DC, 20460, 
Attention Docket ID No. OAR-2002-0046.

[[Page 8575]]

    Hand Delivery or Courier. Deliver your comments to: Air Docket, 
U.S. EPA, 1301 Constitution Avenue, NW., Room B108, Mail Code: 6102T, 
Washington, DC 20004, Attention Docket ID No. OAR-2002-0046.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Morris, Organic Chemicals 
Group, Emission Standards Division (Mail Code C504-04), U.S. EPA, 
Research Triangle Park, North Carolina 27711, telephone number (919) 
541-5416, electronic mail address [email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated category 
and entities affected by this action include:

------------------------------------------------------------------------
                                                          Examples of
            Category                  NAICS code           regulated
                                                           entities
------------------------------------------------------------------------
Industrial......................  325...............  Chemical
                                                       manufacturing
                                                       facilities.
                                  324...............  Petroleum and coal
                                                       products
                                                       manufacturing
                                                       facilities
                                  424710............  Petroleum bulk
                                                       stations and
                                                       terminals.
------------------------------------------------------------------------

    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 Sec.  
60.110b of the standards, as well as in the proposed amendments to the 
applicability sections contained in this proposal. If you have 
questions regarding the applicability of these amendments to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Docket. The EPA has established an official public docket for this 
action under Docket ID No. OAR-2002-0046. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The EPA 
Docket Center 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 Reading Room is (202) 566-1744, and the telephone number for 
the Air and Radiation Docket is (202) 566-1742.
    Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. An electronic version of the 
public docket is available through the EPA's electronic public docket 
and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the 
index listing of the contents of the official public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.
    Certain types of information will not be placed in EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in the EPA's 
electronic public docket. The EPA's policy is that copyrighted material 
will not be placed in the EPA's electronic public docket but will be 
available only in printed, paper form in the official public docket. To 
the extent feasible, publicly available docket materials will be made 
available in the EPA's electronic public docket. When a document is 
selected from the index list in EPA Dockets, the system will identify 
whether the document is available for viewing in the EPA's electronic 
public docket. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility. The EPA intends to work 
toward providing electronic access to all of the publicly available 
docket materials through the EPA's electronic public docket.
    For public commenters, it is important to note that the EPA's 
policy is that public comments, whether submitted electronically or in 
paper, will be made available for public viewing in the EPA's 
electronic public docket as the EPA receives them and without change, 
unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. When the EPA 
identifies a comment containing copyrighted material, the EPA will 
provide a reference to that material in the version of the comment that 
is placed in the EPA's electronic public docket. The entire printed 
comment, including the copyrighted material, will be available in the 
public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to the EPA's electronic 
public docket. Public comments that are mailed or delivered to the 
docket will be scanned and placed in the EPA's electronic public 
docket. Where practical, physical objects will be photographed, and the 
photograph will be placed in the EPA's electronic public docket along 
with a brief description written by the docket staff.
    For additional information about the EPA's electronic public 
docket, visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
    Comments. You may submit comments electronically, by mail, by 
facsimile, or through hand delivery/courier. To ensure proper receipt 
by the EPA, include Docket ID No. OAR-2002-0046 in the subject line on 
the first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' The EPA is not 
required to consider these late comments.
    Electronically. If you submit an electronic comment as prescribed 
below, the EPA recommends that you include your name, mailing address, 
and an e-mail address or other contact information in the body of your 
comment. Also include this contact information on the outside of any 
disk or CD ROM you submit, and in any cover letter accompanying the 
disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows the EPA to contact you in case the 
EPA cannot read your comment due to technical difficulties or needs 
further information on the substance of your comment. The EPA's policy 
is that the EPA will not edit your comment, and any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in the EPA's electronic public docket. If the EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the EPA may not be able to consider your 
comment.
    EPA Dockets. Your use of the EPA's electronic public docket to 
submit comments to the EPA electronically is the EPA's preferred method 
for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket and follow the online instructions for

[[Page 8576]]

submitting comments. To access the EPA's electronic public docket from 
the EPA Internet Home Page, select ``Information Sources,'' 
``Dockets,'' and ``EPA Dockets.'' Once in the system, select 
``search,'' and then key in Docket ID No. OAR-2002-0046. The system is 
an ``anonymous access'' system, which means the EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OAR-2002-0046. In contrast to 
the EPA's electronic public docket, the EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the docket without going through the EPA's electronic public docket, 
the EPA's e-mail system automatically captures your e-mail address. E-
mail addresses that are automatically captured by the EPA's e-mail 
system are included as part of the comment that is placed in the 
official public docket, and made available in the EPA's electronic 
public docket.
    Disk or CD ROM. You may submit comments on a disk or CD ROM to the 
mailing address in the ADDRESSES section. These electronic submissions 
will be accepted in WordPerfect or ASCII file format. Avoid the use of 
special characters and any form of encryption.
    Facsimile. Fax your comments to: (202) 566-1741, Attention Docket 
ID No. OAR-2002-0046.
    Confidential Business Information. Do not submit information that 
you consider to be CBI electronically through the EPA's electronic 
public docket or by e-mail. Send or deliver information identified as 
CBI only to the following address: Attention: Mr. Mark Morris, c/o 
OAQPS Document Control Officer (Mailcode C404-02), U.S. EPA, Research 
Triangle Park, NC, 27711, Attention Docket ID No. OAR-2002-0046. You 
may claim information that you submit to the EPA as CBI by marking any 
part or all of that information as CBI (if you submit CBI on disk or CD 
ROM, mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is CBI). Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and the EPA's electronic public docket. If you 
submit the copy that does not contain CBI on disk or CD ROM, mark the 
outside of the disk or CD ROM clearly that it does not contain CBI. 
Information not marked as CBI will be included in the public docket and 
the EPA's electronic public docket without prior notice. If you have 
any questions about CBI or the procedures for claiming CBI, please 
consult the person identified in the FOR FURTHER INFORMATION CONTACT 
section.
    Outline. The information presented in this preamble is organized as 
follows:

I. What standards are we proposing to amend and how does this action 
relate to the overall scope of the subpart Kb rule?
II. Why are we proposing amendments to the standards and what 
amendments are we proposing?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act

I. What Standards Are We Proposing to Amend and How Does This Action 
Relate to the Overall Scope of the Subpart Kb Rule?

    We are proposing to amend various provisions in 40 CFR part 60, 
subpart Kb, Standards of Performance for Volatile Organic Liquid 
Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which 
Construction, Reconstruction, or Modification Commenced After July 23, 
1984. In doing so, we are indicating by necessary implication that 
subpart Kb applies to all industries where volatile organic liquid 
(VOL) (as defined in Sec.  60.111b(k)) is stored, and thus applies to 
industries in addition to the petroleum and synthetic organic chemical 
manufacturing industries.
    The EPA proposed the subpart Kb rules on July 23, 1984 (49 FR 
29698) and promulgated them on April 8, 1987 (52 FR 11420). The 
standards implement section 111 of the Clean Air Act (CAA) and are 
based on the Administrator's determination that VOL storage vessels 
cause or contribute significantly to air pollution which may reasonably 
be anticipated to endanger public health or welfare. Section 111 of the 
CAA requires that the EPA publish a list of major stationary sources of 
air pollution (priority list) and to establish standards reflecting the 
performance of the best system of emissions reductions (taking cost and 
non-air environmental impacts into account) which is adequately 
demonstrated for the new sources in that listed source category.
    Subpart Kb indicates on its face that it applies to all industries 
where VOL storage vessels are located and is not limited to the 
petroleum industry and the synthetic organic chemical manufacturing 
industry (SOCMI). Thus, the applicability to affected sources is 
comprehensive (Sec.  60.110b(a)), except for enumerated exceptions, 
some of which are to non-SOCMI, non-petroleum sources (such as coke 
oven by-product plants). If the rule only applied to SOCMI and 
petroleum sources, of course, it would have been unnecessary for the 
EPA to have crafted the enumerated exceptions.
    The history of the section 111 priority list with respect to VOL 
storage vessels likewise demonstrates that the scope of subpart Kb 
includes non-SOCMI, non-petroleum industries. The EPA listed the 
synthetic organic chemical manufacturing industry on August 21, 1979 
(44 FR 49222), including a subcategory for SOCMI storage vessels and 
handling equipment. The EPA, however, formally amended the section 111 
priority list at the same time (April 8, 1987) it promulgated subpart 
Kb to include storage vessels that are not in SOCMI service, renaming 
the subcategory Volatile Organic Liquid (VOL) Storage Vessels and 
Handling Equipment.
    Regulatory history likewise confirms what is facially apparent: the 
subpart Kb rules apply to all storage vessels (subject to enumerated 
exceptions) storing VOL. For example, the preamble to the proposed 
subpart Kb stated that there are storage vessels emitting volatile 
organic compounds located at plants not in SOCMI, such as liquid bulk 
storage terminals, that store the same or similar liquids as those at 
SOCMI plants and that can be controlled with the same effectiveness, 
costs, and control technology as storage vessels located at SOCMI 
plants (49 FR 29700).
    The EPA intended to achieve emissions reductions beyond those 
available from controlling emissions from SOCMI vessels by extending 
regulation to these non-SOCMI storage vessels (49 FR 29700). The EPA 
estimated that in 1977, volatile organic compound emissions from 
storage vessels not located at SOCMI plants were 13,230 megagrams per 
year (Mg/yr), compared to 24,570 Mg/yr from SOCMI storage vessels.

[[Page 8577]]

    In sum, based on the text of the regulation, the history of the 
regulation, and the EPA's contemporaneous action to expand the priority 
list, the EPA interprets subpart Kb to apply to all storage vessels 
(subject to enumerated exceptions) including but not limited to those 
located at SOCMI plants and those not located at SOCMI plants.

II. Why Are We Proposing Amendments to the Standards and What 
Amendments Are We Proposing?

    Background. In subpart Kb, ``storage vessel'' is defined as ``each 
tank, reservoir, or container used for the storage of volatile organic 
liquids,'' excluding subsurface caverns and porous rock reservoirs, and 
components not directly involved in the containment of liquids or 
vapors, such as frames and auxiliary supports (40 CFR 60.111b). A 
specific issue presented for purposes of this proposal is whether the 
definition applies to process tanks, which are intermediate tanks 
within a process that are not used for the storage of raw materials or 
the product(s) of the process.
    The EPA has issued two formal interpretations addressing this 
question. In an October 29, 1998 letter from the EPA's Office of 
Enforcement and Compliance Assurance (OECA) to the AF&PA, the EPA 
stated that the definition of ``storage vessel'' in subpart Kb does not 
include ``flow-through process tanks,'' defined in the Underground 
Storage Tank Program (40 CFR 280.12) as tanks that form an integral 
part of a production process through which there is a steady, variable, 
recurring, or intermittent flow of materials during the operation of 
the process, and that are not used for the storage of materials prior 
to their introduction into the production process or for the storage of 
finished products or by-products from the production process.
    After further evaluation, however, the EPA determined (post-
issuance) that the interpretation given in the letter to AF&PA was not 
the best reading of the rule and that the definition of ``storage 
vessel'' in subpart Kb does not exclude process tanks. This 
interpretation appears in a March 27, 2000 memorandum (2000 Memorandum) 
from OECA to EPA Region IV.
    The EPA continues to believe, as a purely interpretive issue, that 
the 2000 Memorandum is the better reading of the current rule. For 
example, there is no mention of intermediate or process tanks in the 
regulatory text of subpart Kb. The definition of ``storage vessel'' in 
subpart Kb is broad and does not specify that only raw material and 
product tanks are included. Aside from the exclusions specifically 
mentioned in the definition of ``storage vessel,'' the only language 
that limits the applicability of subpart Kb is in Sec.  60.110b(d), 
which lists vessels to which subpart Kb does not apply (for example, 
vessels at coke oven by-product plants and vessels located at gasoline 
service stations). The regulatory history also tends to support the 
2000 Memorandum.
    On May 26, 2000, the AF&PA filed a petition for judicial review of 
the 2000 Memorandum in the U.S. District Court of Appeals for the 
District of Columbia (AF&PA v. EPA, No. 00-1218). The petitioner felt 
that the EPA had inappropriately expanded the scope of ``storage 
vessels'' with the interpretation in the 2000 Memorandum.
    On August 23, 2001 (66 FR 44342), AF&PA and the EPA signed a 
settlement agreement which provides that the EPA will propose to amend 
subpart Kb to exclude from its applicability storage vessels that have 
a capacity less than 75 cubic meters (m\3\) or that contain a liquid 
with a maximum true vapor pressure below 3.5 kilopascals (kPa), and 
take final action on that proposal within a reasonable time. Today's 
proposed amendments fulfill the agreement to propose these amendments 
to subpart Kb.
    Today's proposed amendments also address concerns raised by parties 
other than the petitioner. One party commented that in addition to the 
proposed amendments required by the settlement agreement, the EPA 
should exempt process tanks from subpart Kb. Another party commented 
that the regulatory overlap between subpart Kb and the National 
Emission Standards for Hazardous Air Pollutants: Solvent Extraction for 
Vegetable Oil Production (40 CFR part 63, subpart GGGG) should be 
addressed.
    Proposal to Exempt Certain Storage Vessels by Capacity and Vapor 
Pressure. The EPA believes that limiting the rule's applicability by 
vessel size and vapor pressure is reasonable and does not undermine the 
rule's fundamental basis as reflecting the best system of emissions 
reductions for volatile organics in storage vessels, taking cost, non-
air impacts, and energy into consideration. Presently, subpart Kb does 
not apply to storage vessels with a capacity less than 40 m\3\. 
However, the only requirements that apply to storage vessels with a 
capacity less than 75 m\3\, to storage vessels with a capacity between 
75 and 151 m\3\ storing liquid with vapor pressure less than 15 kPa, 
and to storage vessels with a capacity equal to or greater than 151 
m\3\ storing liquid with vapor pressure less than 3.5 kPa, is minimal 
recordkeeping (40 CFR 60.110b(b) and (c)). The EPA in essence is 
proposing to eliminate these recordkeeping requirements in today's 
proposal. Put another way, the EPA is proposing to exempt from subpart 
Kb those storage vessels presently subject to recordkeeping 
requirements only.
    Today's proposed amendments to increase the vessel capacity 
applicability cutoff and to include vapor pressure applicability 
cutoffs, thus, reduce the burden on sources without sacrificing 
emissions reductions. As explained above, increasing the vessel 
capacity applicability cutoff from 40 m\3\ to 75 m\3\ would decrease 
the number of sources affected by subpart Kb, but no emissions 
reductions would be lost because emission control is required only on 
vessels larger than 75 m\3\. The proposed vapor pressure applicability 
cutoffs of 3.5 kPa and 15.0 kPa would also decrease the number of 
affected sources, but, again, no emissions reductions would be lost 
because emission control is required only for liquids with vapor 
pressures of at least 5.2 kPa and 27.6 kPa, respectively (40 CFR 
60.112b(a)).
    Proposal to Exempt Process Tanks. The EPA is also proposing to 
exempt process tanks from subpart Kb. If the EPA were writing on a 
blank slate, the EPA would take the view that the better reading of 
subpart Kb is that process tanks are within the scope of the 
regulation, as explained earlier. However, the EPA is not writing on a 
blank slate. The 1998 interpretation of the rule was definitive (in the 
sense that it was intended to set out the EPA's view and was written by 
an entity within the EPA with authority to do so), and as such, can 
only be changed after notice-and-comment rulemaking (see Paralyzed 
Veterans of America v. D.C. Arena L.P., 117 F. 3d 579, 586-87 (D.C. 
Cir. 1997)). That interpretation thus sets out the current scope of the 
rule with respect to process tanks, the 2000 Memorandum 
notwithstanding. The question, therefore, becomes whether it is 
justified to amend subpart Kb to include process tanks within its 
scope. Moreover, such a rule would apply only to new sources, that is, 
only to those process tanks for which construction, reconstruction, or 
modification commenced after the date of proposal of the action (see 
CAA sections 111(a)(2) and (b)(1)(B)).
    The data used in the initial development of subpart Kb indicate 
that if process tanks were exempted, then about 4 percent of new tanks 
may go uncontrolled that would otherwise have to be controlled. 
However, there are several reasons why the actual amount

[[Page 8578]]

of potentially foregone emissions reductions is less and possibly even 
zero. First, because process tanks are small, and tank emissions 
generally are proportional to tank size, emissions from these tanks 
will be correspondingly small. Further, process tanks are, in many 
cases, required to be controlled under the national emission standards 
for hazardous air pollutants that affect the industries with most of 
the VOL tanks.
    Considering all these factors, the EPA believes that it would not 
be worthwhile to now propose to include process tanks under subpart Kb. 
Although one would come to this same result based on the 1998 
interpretation, in light of confusion due to the conflicting 
interpretations in the 1998 and 2000 Memoranda, the EPA is today 
proposing to amend subpart Kb to exempt process tanks to codify the 
1998 position.
    Proposal to Exempt Storage Vessels Subject to the Vegetable Oil 
National Emission Standards for Hazardous Air Pollutants (NESHAP). The 
EPA is also proposing to exempt from subpart Kb all storage vessels 
that are subject to the Vegetable Oil Production NESHAP. In most 
NESHAP, where there are existing standards that apply to the same 
emission points, the NESHAP usually include provisions which exempt the 
emission points from the existing standards and make the emission 
points subject only to the NESHAP. The Vegetable Oil Production NESHAP 
do not include any of these ``overlap'' provisions, and we are 
proposing here to rectify that omission.
    The Vegetable Oil Production NESHAP contain a sourcewide emission 
limit in the form of the amount of hazardous air pollutant emissions 
per ton of oilseed processed. Since the limit is sourcewide, there are 
no requirements to control specific emission points. Consequently, a 
storage vessel that must be controlled under subpart Kb is not required 
to be controlled under the Vegetable Oil Production NESHAP.
    According to information used in the development of the Vegetable 
Oil Production NESHAP, there are approximately 300 storage vessels in 
the source category. Sixty-four percent of these vessels have a 
capacity less than 75 m\3\ and, therefore, would not be subject to 
subpart Kb because of today's proposed amendment to exempt such 
vessels.
    Thirty percent of the vessels in the Vegetable Oil Production 
source category have a capacity between 40 and 75 m\3\. The vapor 
pressure at which control is required for vessels in this size range 
under subpart Kb is 27.6 kPa. The main solvent used in vegetable oil 
production is n-hexane, which has a vapor pressure significantly below 
27.6 kPa. Therefore, the EPA expects that no vessels in this size range 
would be subject to the control requirements of subpart Kb because the 
vessels do not store a liquid with a vapor pressure which exceeds 27.6 
kPa. Moreover, many of these vessels are controlled by routing the 
emissions to a solvent recovery system.
    The remaining 6 percent of vessels in the Vegetable Oil Production 
source category have a capacity larger than 75 m\3\ and would be 
required to be controlled under subpart Kb (assuming they are new 
sources for purposes of subpart Kb) because the vapor pressure of n-
hexane exceeds the vapor pressure at which control is required for 
large vessels. Since these vessels are large, they are even more likely 
to be routed to a solvent recovery system, and the EPA has information 
indicating that all large tanks are either currently controlled in this 
manner or will be controlled in the near future to comply with the 
Vegetable Oil Production NESHAP.
    The EPA, thus, contends that the overall emissions to the 
environment would not increase by exempting vessels from subpart Kb 
that are subject to the Vegetable Oil Production NESHAP, and that such 
exemption essentially amounts to avoiding duplicative regulation. The 
EPA is, therefore, proposing to exempt from subpart Kb all storage 
vessels that are subject to the Vegetable Oil Production NESHAP.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency 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 the proposed rule amendments are not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and are, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action exempts certain sources from 40 CFR part 60, subpart Kb. 
Therefore, it is likely that this action could only reduce the 
information collection burden. The OMB has previously approved the 
information collection requirements contained in the existing 
regulations under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and has assigned OMB control number 2060-0074 (EPA 
ICR No. 1132.06).
    Copies of the ICR document(s) may be obtained from Susan Auby, by 
mail at the Office of Environmental Information, Collection Strategies 
Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460, by email at [email protected], or by calling (202) 566-1672. A 
copy may also be downloaded off the internet at http://www.epa.gov/icr. 
Include the ICR or OMB number in any correspondence.
    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.

[[Page 8579]]

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 
amendments on small entities, a small entity is defined as: (1) A small 
business in the North American Industrial Classification System (NAICS) 
code 324 or 325 that has up to 500 employees; (2) a small business in 
NAICS code 424710 that has up to 100 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 proposed 
amendments 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 amendments impose 
no additional regulatory requirements on owners or operators of 
affected sources. In fact, the proposed amendments should decrease the 
impacts on small businesses because the proposed amendments exempt some 
sources from regulation.

D. Unfunded Mandates Reform Act

    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, the 
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 the 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 the 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 the 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 rule amendments do not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any 1 year. The proposed rule 
amendments exempt certain sources from regulation. Thus, today's 
proposed rule amendments are not subject to the requirements of 
sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires the 
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.''
    The proposed rule amendments do not have federalism implications. 
They 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. The proposed rule 
amendments exempt certain sources from regulation. The proposed rule 
amendments impose no additional burden on sources, and the emissions 
reductions lost because of the proposed exemptions are not significant. 
Thus, Executive Order 13132 does not apply to the proposed rule 
amendments.
    In the spirit of Executive Order 13132 and consistent with EPA 
policy to promote communications between the EPA and State and local 
governments, the EPA specifically solicits comment on these proposed 
amendments from State and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000) requires the 
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 proposed rule amendments do not 
have tribal implications, as specified in Executive Order 13175. The 
proposed rule amendments exempt certain sources from regulation. The 
proposed rule amendments impose no additional burden on sources, and 
the emissions reductions lost because of the proposed exemptions are 
not significant. Thus, Executive Order 13175 does not apply to the 
proposed rule amendments.
    The EPA specifically solicits additional comment on the proposed 
rule amendments from tribal officials.

G. 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 the EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the 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 the 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 amendments 
are not subject to Executive Order 13045 because they are

[[Page 8580]]

based on technology performance, not health or safety risks. 
Furthermore, the proposed rule amendments have been determined not to 
be ``economically significant'' as defined under Executive Order 12866.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    The proposed rule amendments are not subject to Executive Order 
13211 (66 FR 28355, May 22, 2001) because it is not a significant 
regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note), directs the 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) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs the 
EPA to provide Congress, through OMB, explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards.
    The proposed rulemaking does not involve technical standards. 
Therefore, the EPA is not considering the use of any voluntary 
consensus standards.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: Februry 14, 2003.
Christine Todd Whitman,
Administrator.
    For the reasons set out in the preamble, part 60 of title 40, 
chapter I of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

    1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401-7601.

Subpart Kb--Standards of Performance for Volatile Organic Liquid 
Storage Vessels (Including Petroleum Liquid Storage Vessels) for 
Which Construction, Reconstruction, or Modification Commenced after 
July 23, 1984

    2. Section 60.110b is amended by:
    a. Revising paragraphs (a) and (b);
    b. Removing paragraph (c);
    c. Redesignating paragraphs (d) and (e) as paragraphs (c) and (d); 
and
    d. Adding paragraph (d)(8).
    The revisions and addition read as follows:


Sec.  60.110b  Applicability and designation of affected facility.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
the affected facility to which this subpart applies is each storage 
vessel with a capacity greater than or equal to 75 cubic meters 
(m3) that is used to store volatile organic liquids (VOL) 
for which construction, reconstruction, or modification is commenced 
after July 23, 1984.
    (b) This subpart does not apply to storage vessels with a capacity 
greater than or equal to 151 m3 storing a liquid with a 
maximum true vapor pressure less than 3.5 kilopascals (kPa) or with a 
capacity greater than or equal to 75 m3 but less than 151 
m3 storing a liquid with a maximum true vapor pressure less 
than 15.0 kPa.
* * * * *
    (d) * * *
    (8) Vessels subject to subpart GGGG of 40 CFR part 63.
* * * * *
    3. Section 60.111b is amended by:
    a. Removing the paragraph designations and placing the definitions 
in alphabetical order;
    b. Revising the definition of ``Storage vessel;''
    c. Revising the definition of ``Volatile organic liquid (VOL);'' 
and
    d. Adding, in alphabetical order, a definition of ``Process tank.''
    The revisions and addition read as follows:


Sec.  60.111  Definitions.

* * * * *
    Process tank means a tank that is used within a process to collect 
material discharged from a feedstock storage vessel or equipment within 
the process before the material is transferred to other equipment 
within the process or a product storage vessel. In many process tanks, 
unit operations such as reactions and blending are conducted. Other 
process tanks, such as surge control vessels and bottoms receivers, 
however, may not involve unit operations.
* * * * *
    Storage vessel means each tank, reservoir, or container used for 
the storage of volatile organic liquids but does not include:
    (1) Frames, housing, auxiliary supports, or other components that 
are not directly involved in the containment of liquids or vapors;
    (2) Subsurface caverns or porous rock reservoirs; or
    (3) Process tanks.
* * * * *
    Volatile organic liquid (VOL) means any organic liquid which can 
emit volatile organic compounds into the atmosphere.
* * * * *
    4. Section 60.116b is amended by removing the last sentence of 
paragraph (b).
[FR Doc. 03-4245 Filed 2-21-03; 8:45 am]
BILLING CODE 6560-50-P