[Federal Register Volume 69, Number 129 (Wednesday, July 7, 2004)]
[Rules and Regulations]
[Pages 40770-40774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15204]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[OAR-2004-0068; FRL-7782-2]
RIN 2060-AK35


Standards of Performance for Industrial-Commercial-Institutional 
Steam Generating Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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SUMMARY: New source performance standards (NSPS) limiting emissions of 
nitrogen oxides (NOX) from industrial-commercial-
institutional steam generating units capable of combusting more than 
100 million British thermal units (Btu) per hour were proposed on June 
19, 1984, and were promulgated on November 25, 1986. The standards 
limit NOX emissions from the combustion of fossil fuels, as 
well as the combustion of fossil fuels with other fuels or wastes. The 
standards include provisions for facility-specific NOX 
standards for steam generating units which simultaneously combust 
fossil fuel and chemical by-product waste under certain conditions. The 
amendments promulgate a facility-specific NOX standard for a 
steam generating unit which simultaneously combusts fossil fuel and 
chemical by-product waste at the Weyerhaeuser Company facility located 
in New Bern, North Carolina.

DATES: The direct final rule will be effective on September 7, 2004, 
without further notice, unless EPA receives significant adverse written 
comments by August 6, 2004. If EPA receives such comments, it will 
publish a timely withdrawal in the Federal Register indicating which 
provisions will become effective and which provisions are being 
withdrawn due to adverse comment.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0068, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: EPA Docket Center, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Please include a duplicate copy, if possible.
     Hand Delivery: Air and Radiation Docket, Environmental 
Protection Agency, 1301 Constitution Avenue, NW., Room B-108, 
Washington, DC 20460. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    We request that a separate copy also be sent to the contact person 
listed below (see FOR FURTHER INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. OAR-2004-0068. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102).

[[Page 40771]]

    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The 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 Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Mr. James A. Eddinger, Combustion 
Group, Emission Standards Division (C439-01), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711; 
telephone number (919) 541-5426; facsimile number (919) 541-5450; 
electronic mail address [email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. The only regulated 
entity that will be affected by the direct final rule amendment is the 
Weyerhaeuser Company facility located in New Bern, North Carolina.
    Comments. We are publishing the direct final rule without prior 
proposal because we view it as noncontroversial and do not anticipate 
adverse comments. However, in the Proposed Rules section of today's 
Federal Register, we are publishing a separate document that will serve 
as the proposal in the event that adverse comments are filed. If we 
receive any adverse comments on a specific element of the direct final 
rule, we will publish a timely withdrawal in the Federal Register 
informing the public which amendments will become effective and which 
amendments are being withdrawn due to adverse comment. We will address 
all public comments in a subsequent final rule based on the proposed 
rule. Any of the distinct amendments in the direct final rule for which 
we do not receive adverse comment will become effective on the date set 
out above. We will not institute a second comment period on the direct 
final rule. Any parties interested in commenting must do so at this 
time.
    World Wide Web (WWW). In addition to being available in the docket, 
electronic copies of today's action will be posted on the Technology 
Transfer Network's (TTN) policy and guidance information page http://www.epa.gov/ttn/caaa. The TTN 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.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the direct final rule is available only on 
the filing of a petition for review in the U.S. Court of Appeals for 
the District of Columbia Circuit by September 7, 2004. Under section 
307(d)(7)(B) of the CAA, only an objection to the direct final rule 
that was raised with reasonable specificity during the period for 
public comment can be raised during judicial review. Moreover, under 
section 307(b)(2) of the CAA, the requirements that are subject to 
today's action may not be challenged later in civil or criminal 
proceedings brought by EPA to enforce these requirements.

I. Background

    The objective of the NSPS, promulgated on November 25, 1986, is to 
limit NOX emissions from the combustion of fossil fuel. For 
steam generating units combusting by-product waste, the requirements of 
the NSPS vary depending on the operation of the steam generating units. 
During periods when only fossil fuel is combusted, the steam generating 
unit must comply with the NOX emission limits in the NSPS 
for fossil fuel. During periods when only by-product waste is 
combusted, the steam generating unit may be subject to other 
requirements or regulations which limit NOX emissions, but 
it is not subject to NOX emission limits under the NSPS. In 
addition, if the steam generating unit is subject to federally 
enforceable permit conditions limiting the amount of fossil fuel 
combusted in the steam generating unit to an annual capacity factor of 
10 percent or less, the steam generating unit is not subject to 
NOX emission limits under the NSPS when it simultaneously 
combusts fossil fuel and by-product waste.
    With the exception noted above, during periods when fossil fuel and 
by-product waste are simultaneously combusted in a steam generating 
unit, the unit must generally comply with NOX emission 
limits under 40 CFR 60.44b(e) of the NSPS. Under 40 CFR 60.44b(e) the 
applicable NOX emission limit depends on the nature of the 
by-product waste combusted. In some situations, however, ``facility-
specific'' NOX emission limits developed under 40 CFR 
60.44b(f) may apply. The order for determining which NOX 
emission limit applies is as follows. A steam generating unit 
simultaneously combusting fossil fuel and by-product waste is expected 
to comply with the NOX emission limit under 40 CFR 
60.44b(e); only in a few situations may NOX emission limits 
developed under 40 CFR 60.44b(f) apply. An equation in 40 CFR 60.44b(e) 
is included to determine the NOX emission limit applicable 
to a steam generating unit when it simultaneously combusts fossil fuel 
and by-product waste.
    Only where a steam generating unit which simultaneously combusts 
fossil fuel and by-product waste is unable to comply with the 
NOX emission limit determined under 40 CFR 60.44b(e), might 
a facility-specific NOX emission limit under 40 CFR 
60.44b(f) apply. That section permits a steam generating unit to 
petition the Administrator for a facility-specific NOX 
emission limit. A facility-specific NOX emission limit will 
be proposed and promulgated by the Administrator for the steam 
generating unit, however, only where the petition is judged to be 
complete. To be considered complete, a petition for a facility-specific 
NOX standard under 40 CFR 60.44b(f) consists of three 
components. The first component is a demonstration that the steam 
generating unit is able to comply with the NOX emission 
limit for fossil fuel when combusting fossil fuel alone. The purposes 
of this provision are to ensure that the steam generating unit has 
installed best demonstrated NOX control technology, to 
identify the NOX control technology installed, and to 
identify the manner in which this technology is operated to achieve 
compliance with the NOX emission limit for fossil fuel.
    The second component of a complete petition is a demonstration that 
the NOX control technology does not enable compliance with 
the NOX emission limit for fossil fuel when the steam 
generating unit simultaneously combusts fossil fuel with chemical by-
product waste under the same conditions used to demonstrate compliance 
on fossil fuel alone. In addition, this component of the petition must 
identify what unique and specific properties of the chemical by-product 
waste are responsible for preventing the steam generating unit from 
complying with the NOX emission limit for fossil fuel.
    The third component of a complete petition consists of data and/or 
analysis to support a facility-specific NOX standard for the 
steam generating unit when it simultaneously combusts fossil fuel and 
chemical by-product waste and operates the NOX control 
technology in

[[Page 40772]]

the same manner in which it would be operated to demonstrate and 
maintain compliance with the NOX emission limit for fossil 
fuel, if only fossil fuel were combusted. This component of the 
petition must identify the NOX emission limit(s) and/or 
operating parameter limits, and appropriate testing, monitoring, 
reporting and recordkeeping requirements which will ensure operation of 
the NOX control technology and minimize NOX 
emissions at all times.
    Upon receipt of a complete petition, the Administrator will propose 
a facility-specific NOX standard for the steam generating 
unit when it simultaneously combusts chemical by-product waste with 
fossil fuel. The NOX standard will include the 
NOX emission limit(s) and/or operating parameter limit(s) to 
ensure operation of the NOX control technology at all times, 
as well as appropriate testing, monitoring, reporting and recordkeeping 
requirements.
    The Weyerhaeuser Company has submitted a petition for a facility-
specific NOX standard for the No. 2 Power Boiler at its 
kraft pulp mill in New Bern, North Carolina. The No. 2 Power Boiler 
combusts residual oil and a byproduct/waste gas from a foul condensate 
steam stripper. The foul condensate steam stripper was installed to 
comply with the maximum achievable control technology (MACT) standards 
for kraft pulping systems under 40 CFR part 63, subpart S. While the 
No. 2 Power Boiler complies with Subpart Db of 40 CFR part 60 while 
firing residual oil, the combustion of stripper off-gas along with 
residual fuel oil in the No. 2 Power Boiler results in a NOX 
emission rate in excess of the NSPS limit for the standard. Based on a 
review of the Weyerhaeuser Company's petition for an alternative 
NOX standard, EPA's Office of Air Quality Planning and 
Standards has determined the petition to be complete and an alternative 
facility-specific standard to be appropriate. An alternative 
NOX standard is provided in the final rule amendment.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that the direct final rule does not constitute a 
``significant regulatory action'' because it does not meet any of the 
above criteria. Consequently, this action was not submitted to OMB for 
review under Executive Order 12866.

B. Paperwork Reduction Act

    The Office of Management and Budget approved the information 
collection requirements contained in the standards under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., at the time the 
rules were promulgated on November 25, 1986.
    This action does not impose any new information collection 
requirements of the standards and will have no impact on the 
information collection estimate of project cost and hour burden made 
and approved by OMB during the development of the standards and 
guidelines. Therefore, the information collection requests have not 
been revised.
    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 our 
regulations are listed in 40 CFR part 9 and 40 CFR chapter 15.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., 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 the direct final rule on 
small entities, small entity is defined as: (1) A small business whose 
parent company has fewer than 100 or 1,000 employees, or fewer than 4 
billion kilowatt (kW)-hr per year of electricity usage, depending on 
the size definition for the affected North American Industry 
Classification System (NAICS) code; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of the direct final rule on 
small entities, we certify that this action will not have a significant 
economic impact on a substantial number of small entities. The direct 
final rule will not impose any requirements on small entities because 
it does not impose any additional regulatory requirements.

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, 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 to State, local, and tribal governments, in 
the aggregate, or to 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 us 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 objective 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

[[Page 40773]]

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 our 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 direct final rule amendment 
contains no 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, nor does the direct 
final rule significantly or uniquely impact small governments, because 
it contains no requirements that apply to such governments or impose 
obligations upon them. Thus, the requirements of sections of the UMRA 
do not apply to the direct final rule.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires us 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'' are 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 direct final rule does not have federalism implications. It 
will not have new 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. Today's action 
codifies a facility-specific NOX standard. There are 
minimal, if any, impacts associated with this action. Thus, Executive 
Order 13132 does not apply to the direct final rule.

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

    Executive Order 13175 (65 FR 67249, November 6, 2000) requires us 
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 direct final rule does not have 
tribal implications as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to the direct final rule.

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 we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, we 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 we considered.
    We interpret 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. The direct final rule is not 
subject to Executive Order 13045 because it is based on technology 
performance and not on health or safety risks.

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

    The direct final rule is 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 (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards in our regulatory 
and procurement 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, business practices) developed or adopted by one or 
more voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through annual reports to OMB, with explanations when an 
agency does not use available and applicable voluntary consensus 
standards.
    The direct final rule amendments do not involve technical 
standards. Therefore, the direct final rule is not subject to NTTAA.

J. 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 
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. The EPA will submit a report containing 
the direct final 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 direct final rule in 
the Federal Register. The direct final rule is not a ``major rule'' as 
defined by 5 U.S.C. section 804(2).

List of Subjects in 40 CFR Part 60

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

    Dated: June 23, 2004.
Jeffrey R. Holmstead,
Assistant Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, part 60 of 
the Code of Federal Regulations is amended to read as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart Db--[Amended]

0
2. Section 60.49b is amended by adding paragraph (x) as follows:


Sec.  60.49b  Reporting and recordkeeping requirements.

* * * * *
    (x) Facility-specific nitrogen oxides standard for Weyerhaeuser 
Company's No. 2 Power Boiler located in New Bern, North Carolina:
    (1) Standard for nitrogen oxides. (i) When fossil fuel alone is 
combusted, the nitrogen oxides emission limit for fossil fuel in Sec.  
60.44b(a) applies.
    (ii) When fossil fuel and chemical by-product waste are 
simultaneously

[[Page 40774]]

combusted, the nitrogen oxides emission limit is 215 ng/J (0.5 lb/
million Btu).
    (2) Emission monitoring for nitrogen oxides. (i) The nitrogen 
oxides emissions shall be determined by the compliance and performance 
test methods and procedures for nitrogen oxides in Sec.  60.46b.
    (ii) The monitoring of the nitrogen oxides emissions shall be 
performed in accordance with Sec.  60.48b.
    (3) Reporting and recordkeeping requirements. (i) The owner or 
operator of the No. 2 Power Boiler shall submit a report on any 
excursions from the limits required by paragraph (x)(2) of this section 
to the Administrator with the quarterly report required by Sec.  
60.49b(i).
    (ii) The owner or operator of the No. 2 Power Boiler shall keep 
records of the monitoring required by paragraph (x)(3) of this section 
for a period of 2 years following the date of such record.
    (iii) The owner or operator of the No. 2 Power Boiler shall perform 
all the applicable reporting and recordkeeping requirements of Sec.  
60.49b.

[FR Doc. 04-15204 Filed 7-6-04; 8:45 am]
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