[Federal Register Volume 69, Number 169 (Wednesday, September 1, 2004)]
[Rules and Regulations]
[Pages 53338-53341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19919]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2004-0006, FRL-7808-4]
RIN 2060-AK32


National Emission Standards for Hazardous Air Pollutants: Solvent 
Extraction for Vegetable Oil Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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SUMMARY: On April 12, 2001, the EPA issued national emission standards 
for hazardous air pollutants for solvent extraction for vegetable oil 
production (Vegetable Oil Production NESHAP) under section 112 of the 
Clean Air Act (CAA). This action will amend the compliance requirements 
for vegetable oil production processes that exclusively use a 
qualifying low-hazardous air pollutants (HAP) extraction solvent. The 
amendments are being made to require only the necessary recordkeeping 
and reporting requirements for facilities using the low-HAP extraction 
solvent compliance option. We are making the amendments by direct final 
rule, without prior proposal, because we view the revisions as 
noncontroversial and anticipate no adverse comments.

DATES: The direct final rule is effective on November 1, 2004 without 
further notice, unless EPA receives adverse written comment by October 
1, 2004 or if a public hearing is requested by September 13, 2004. If 
EPA receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register indicating which provisions 
will become effective and which provisions are being withdrawn due to 
adverse comment.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2004-0006. 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 
and Radiation Docket is (202) 566-1742. See the Proposed Rules section 
in this Federal Register for the proposed rule which contains more 
information.

FOR FURTHER INFORMATION CONTACT: Mr. Greg Nizich, U.S. EPA, Waste and 
Chemical Processes Group (C439-03), Emission Standards Division, Office 
of Air Quality Planning and Standards, Research Triangle Park, North 
Carolina 27711, telephone number (919) 541-3078, facsimile number (919) 
541-3207, electronic mail address: [email protected]. Questions 
regarding the applicability of this action to a particular entity 
should be directed to the appropriate EPA Regional Office 
representative.

SUPPLEMENTARY INFORMATION: Regulated Entities. If your facility 
produces vegetable oil from corn germ, cottonseed, flax, peanuts, 
rapeseed (for example, canola), safflower, soybeans, or sunflower, it 
may be a ``regulated entity.'' Categories and entities potentially 
regulated by this action include:

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                                                                                       Examples of regulated
                          Category                             SIC code    NAICS              entities
----------------------------------------------------------------------------------------------------------------
Industry....................................................       2074    311223  Cottonseed oil mills.
                                                                   2075    311222  Soybean oil mills.
                                                                   2076    311223  Other vegetable oil mills,
                                                                                    excluding soybeans and
                                                                                    cottonseed mills.
                                                                   2079    311223  Other vegetable oil mills,
                                                                                    excluding soybeans and
                                                                                    cottonseed mills.
                                                                   2048    311119  Prepared feeds and feed
                                                                                    ingredients for animals and
                                                                                    fowls, excluding dogs and
                                                                                    cats.
                                                                   2041    311211  Flour and other grain mill
                                                                                    product mills.
                                                                   2046    311221  Wet corn milling.
Federal government..........................................  .........  ........  Not affected.
State/local/tribal government...............................  .........  ........  Not affected.
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[[Page 53339]]

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility is regulated by this action, 
you should examine the applicability criteria in 40 CFR part 63, 
subpart GGGG. If you have any questions regarding the applicability of 
this action to a particular entity, consult the individual described in 
the preceding FOR FURTHER INFORMATION CONTACT section.
    Comments. We are publishing the direct final rule without prior 
proposal because we view the amendments as noncontroversial and do not 
anticipate adverse comments. We consider the changes to be 
noncontroversial because the only effect is to eliminate recordkeeping 
and reporting that is unnecessary for determining compliance for 
facilities using a low-HAP extraction solvent in the production 
process. Compliance with the rule is assured merely by properly 
documenting use of the low-HAP extraction solvent. In the Proposed 
Rules section of this Federal Register, we are publishing a separate 
document that will serve as the proposal to make the amendments to the 
Vegetable Oil Production NESHAP set forth in the direct final rule in 
the event that timely and significant adverse comments are received.
    If we receive any relevant adverse comments on the amendments, we 
will publish a timely withdrawal in the Federal Register informing the 
public which provisions will become effective and which provisions 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 today's 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.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action will also be available through the 
WWW. Following signature, a copy of this action will be posted on 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.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial 
review of the direct final rule is available only by filing a petition 
for review in the U.S. Court of Appeals for the District of Columbia 
Circuit by November 1, 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 established by the direct final rule may not be 
challenged separately in any civil or criminal proceedings brought by 
the EPA to enforce these requirements.
    Outline. The following outline is provided to aid in reading this 
preamble to the direct final rule.

I. Background
II. Technical Amendment to the Solvent Extraction for Vegetable Oil 
Production NESHAP
    A. How are compliance requirements being revised for low-HAP 
extraction solvent operations?
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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Background

    On April 12, 2001, the Federal Register published EPA's National 
Emission Standards for Hazardous Air Pollutants for Solvent Extraction 
for Vegetable Oil Production (Vegetable Oil Production NESHAP), 40 CFR 
part 63, subpart GGGG (66 FR 19006). The NESHAP contains regulatory 
provisions for documenting certain parameters in the vegetable oil 
production process: oilseed use and solvent use, HAP content of the 
solvent, and determining compliance based on a ratio of actual versus 
allowable HAP loss for the applicable types of oilseeds. Today's direct 
final rule amendments eliminate the recordkeeping and reporting 
requirements that are unnecessary for determining compliance at 
vegetable oil production facilities that exclusively use a qualifying 
low-HAP extraction solvent.

II. Technical Amendment to the Vegetable Oil Production NESHAP

    The Vegetable Oil Production NESHAP require that certain parameters 
be documented and that actual versus allowable HAP use be compared to 
determine compliance. Today's direct final amendment specifies, only 
for facilities that use a low-HAP extraction solvent, the recordkeeping 
and reporting requirements necessary to assure compliance with the 
NESHAP.

A. How Are Compliance Requirements Being Revised for Low-HAP Extraction 
Solvent Operations?

    When we promulgated the Vegetable Oil Production NESHAP, the rule 
required compliance to be demonstrated by calculating a compliance 
ratio that was a comparison of the actual versus allowable amount of 
HAP loss from the production process. Determination of the compliance 
ratio required the facility owner or operator to document, on a monthly 
basis, the following parameters in the solvent extraction process: the 
quantity of each type of oilseed used, the quantity of solvent loss, 
and the volume fraction of each HAP exceeding 1 percent in the 
extraction solvent used. By inputting this information into the 
equations in the rule, the compliance ratio, and thus compliance, is 
determined. If the facility's compliance ratio is one or less, the 
facility is in compliance. During the approximately 3 year period since 
the NESHAP were promulgated, a solvent has been developed where none of 
the HAP constituents are present in an amount greater than 1 percent by 
volume. We refer to this solvent as ``low-HAP extraction solvent.'' The 
extraction solvent available until recently, and the one the equations 
in the NESHAP are based on, was comprised of, on average, 64 percent 
HAP, primarily n-hexane. When facilities using a low-HAP extraction 
solvent determine their compliance ratio in accordance with the 
equations in the NESHAP, the result will always be zero. This is true 
because the volume fraction of each HAP comprising more than 1 percent 
in the extraction solvent used is zero. Since a facility with a 
compliance ratio below one is in compliance, any facility with a 
compliance ratio of zero will always be in compliance with the NESHAP. 
Neither quantity and/or type of oilseed processed, nor the amount of 
solvent loss, has any bearing on the compliance determination. 
Therefore, it is no longer necessary to measure these production-
related parameters to determine compliance. The direct final

[[Page 53340]]

amendment adds language to 40 CFR 63.2840 specifying that, for 
facilities using the low-HAP extraction solvent in their processes, we 
are requiring only the necessary recordkeeping and reporting 
requirements to assure that the solvent used meets the low-HAP 
criteria.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 5173, October 4, 1993), the 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 
standards 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 entitlement, 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 amendments do not constitute a ``significant 
regulatory action'' because they do 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 information collection requirements in subpart GGGG were 
submitted to and approved by OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and assigned OMB control No. 2060-0433. Today's 
action does not impose any new information collection requirements on 
industry or EPA. For that reason, we have not revised the ICR for the 
Vegetable Oil Production NESHAP.

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 Procedures 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. The EPA has determined that the amendments will not have a 
significant economic impact on a substantial number of small entities. 
For purposes of assessing the impact of today's technical amendments on 
small entities, small entities are defined as: (1) A small business 
that has fewer than 750 employees; (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 which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's direct final rule 
amendments on small entities, the EPA has concluded that this action 
will not have a significant impact on a substantial number of small 
entities. The direct final rule amendments will not impose any new 
requirements on small entities.

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 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 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 of 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 potential 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 the direct final 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 aggregate, 
or the private sector in any 1 year, nor does the 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 the UMRA do not apply to the direct final rule 
amendments.

E. Executive Order 13132: Federalism

    Executive Order 13132,(64 FR 43255, August 10, 1999) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    The direct final amendments do not have federalism implications. 
The amendments only clarify a compliance option and eliminate 
unnecessary recordkeeping and reporting requirements for that option. 
This change does not modify existing or create new responsibilities 
among EPA Regional Offices, States, or local enforcement agencies. The 
technical amendments 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. 
Thus, Executive Order 13132 does not apply to the direct final rule 
amendments.

[[Page 53341]]

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

    Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' The direct final rule amendments do 
not have tribal implications as specified in Executive Order 13175. 
They would 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 amendments.

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 EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency 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 Agency.
    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. The direct final rule 
amendments are not subject to Executive Order 13045 because they do not 
establish an environmental standard intended to mitigate health or 
safety risks.

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

    The direct final rule amendments are not subject to Executive Order 
13211 (66 FR 28355, May 22, 2001) because they are not a significant 
regulatory action under Executive Order 13211.

I. National Technology Transfer and Advancement Act

    Because today's action contains no new test methods, sampling 
procedures or other technical standards, there is no need to consider 
the availability of voluntary consensus standards.

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 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. The direct final 
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

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: August 25, 2004.
Michael O. Leavitt,
Administrator.

0
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]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart GGGG--[Amended]

0
2. Section 63.2840 is amended by adding introductory text and adding 
paragraphs (e) and (f) to read as follows:


Sec.  63.2840  What emission requirements must I meet?

    For each facility meeting the applicability criteria in Sec.  
63.2832, you must comply with either the requirements specified in 
paragraphs (a) through (d), or the requirements in paragraph (e) of 
this section.
    (a)(1) * * *
    (e) Low-HAP solvent option. For all vegetable oil production 
processes subject to this subpart, you must exclusively use solvent 
where the volume fraction of each HAP comprises 1 percent or less by 
volume of the solvent (low-HAP solvent) in each delivery, and you must 
meet the requirements in paragraphs (e)(1) through (5) of this section. 
Your vegetable oil production process is not subject to the 
requirements in Sec. Sec.  63.2850 through 63.2870 unless specifically 
referenced in paragraphs (e)(1) through (5) of this section.
    (1) You shall determine the HAP content of your solvent in 
accordance with the specifications in Sec.  63.2854(b)(1).
    (2) You shall maintain documentation of the HAP content 
determination for each delivery of the solvent at the facility at all 
times.
    (3) You must submit an initial notification for existing sources in 
accordance with Sec.  63.2860(a).
    (4) You must submit an initial notification for new and 
reconstructed sources in accordance with Sec.  63.2860(b).
    (5) You must submit an annual compliance certification in 
accordance with Sec.  63.2861(a). The certification should only include 
the information required under Sec.  63.2861(a)(1) and (2), and a 
certification indicating whether the source complied with all of the 
requirements in paragraph (e) of this section.
    (f) You may change compliance options for your source if you submit 
a notice to the Administrator at least 60 days prior to changing 
compliance options. If your source changes from the low-HAP solvent 
option to the compliance ratio determination option, you must determine 
the compliance ratio for the most recent 12 operating months beginning 
with the first month after changing compliance options.
* * * * *
[FR Doc. 04-19919 Filed 8-31-04; 8:45 am]
BILLING CODE 6560-50-P