[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Rules and Regulations]
[Pages 58837-58839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22084]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7812-8]


National Emission Standards for Hazardous Air Pollutants for 
Secondary Aluminum Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interpretative rule.

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SUMMARY: This interpretative rule concerns the applicability of the 
NESHAP for secondary aluminum producers, 40 CFR part 63, subpart RRR, 
to a specific type of facility which thermally delaminates aluminum 
foil from paper and plastic and then mechanically granulates the 
recovered metal. We decided to reconsider this matter after reviewing 
two applicability determinations which were issued by EPA regional 
offices for facilities of this type operated by the U.S. Granules 
Corporation in Plymouth, IN, and Henrietta, MO. We concluded that these 
applicability determinations reflected conflicting constructions of 
subpart RRR, and that the determinations should be vacated while we 
undertook a review to develop a uniform national construction of the 
rule.
    In today's interpretative rule, we conclude that a delamination 
chamber of the type operated by the U.S. Granules facilities is a 
``scrap dryer/delacquering kiln/decoating kiln'' as that term is 
defined in 40 CFR 63.1503. Accordingly, we believe that the facilities 
operated by U.S. Granules in Plymouth and Henrietta, and any other 
facilities which may engage in similar operations, are subject to the 
emission control requirements of subpart RRR.

EFFECTIVE DATE: This interpretative rule will take effect on November 
1, 2004. After that date, this interpretative rule will govern all 
decisions concerning the applicability of 40 CFR part 63, subpart RRR, 
to affected facilities by EPA and by State and local permitting 
authorities.

FOR FURTHER INFORMATION CONTACT: For specific questions concerning the 
interpretation of 40 CFR part 63, subpart RRR, adopted in this notice, 
contact Scott Throwe at EPA by telephone at: (202) 564-7013, or by e-
mail at: [email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. This interpretative rule 
concerns applicability of 40 CFR part 63, subpart RRR, to specific 
facilities that thermally delaminate aluminum foil from paper and 
plastic and then mechanically granulate the recovered metal. This 
interpretative rule determines that these facilities are secondary 
aluminum production facilities as defined by subpart RRR, and that such 
facilities are therefore subject to regulation under that subpart. This 
interpretative rule does not govern determinations regarding the 
applicability of subpart RRR to other types of activities or 
operations, although the rationale for the conclusions in this 
interpretative rule may be relevant in other contexts.
    Judicial Review. This interpretative rule is based on a 
determination of nationwide scope and effect. Under section 307(b)(1) 
of the CAA, judicial review of this interpretative 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 30, 2004. Moreover, under 
section 307(b)(2) of the CAA, any judicial review of this 
interpretative rule must be obtained pursuant to section 307(b)(1) and 
this interpretation may not be subjected to separate judicial review in 
any civil or criminal proceedings for enforcement.

I. Background for This Interpretative Rule

    This interpretative rule is the outcome of a review by EPA of the 
applicability of the NESHAP for secondary aluminum producers, 40 CFR 
part 63, subpart RRR, to a specific type of facility which thermally 
delaminates aluminum foil from paper and plastic and then mechanically 
granulates the recovered metal. This review was undertaken following 
the decision of EPA to vacate two applicability determinations which 
were previously made by the EPA regional offices concerning facilities 
of this type owned and operated by the U.S. Granules Corporation.
    One of these applicability determinations concerned the U.S. 
Granules facility in Plymouth, Indiana and was made by the EPA Region 5 
Air Enforcement and Compliance Assurance Branch on August 21, 2002, in 
response to a request for such a determination by U.S. Granules dated 
August 14, 2002. Notice of this applicability determination (Control 
No. M020112) was published in the Federal Register on February 13, 
2003. 68 FR 7373. EPA Region 5 based its conclusions in this 
determination on a phrase in the definition in subpart RRR of a ``scrap 
dryer/delaquering kiln/decoating kiln'' which states that such units 
are used to remove contaminants from aluminum scrap ``prior to 
melting.'' EPA Region 5 concluded that the delamination chamber at the 
Plymouth facility does not fit within this definition because all 
processing of the recovered aluminum at the Plymouth facility is 
entirely mechanical and the recovered aluminum is never melted.
    The other applicability determination concerned the U.S. Granules 
facility in Henrietta, Missouri, and was made by the EPA Region 7 Air 
Permitting and Compliance Branch on October 22, 2002, in response to a 
request for such a determination by U.S. Granules dated

[[Page 58838]]

October 11, 2002. Notice of this applicability determination (Control 
No. M020117) was also published in the Federal Register on February 13, 
2003. 68 FR 7373. In the determination concerning the Henrietta 
facility, Region 7 concluded that the delamination chamber at the 
Henrietta facility is within the definition of a ``scrap dryer/
delacquering kiln/decoating kiln'' even though the recovered aluminum 
is not melted at the Henrietta facility. Region 7 reasoned that the 
phrase ``prior to melting'' in the definition is merely intended to 
indicate that the recovery process is normally performed before the 
recovered aluminum is placed in a furnace to be melted. Region 7 noted 
that it is the use of heat to remove contaminants from scrap aluminum 
that generates the emissions of dioxins and furans that subpart RRR is 
intended to control. Region 7 also found that a unit at the Henrietta 
facility that dries alumninum chips was a ``thermal chip dryer'' 
subject to subpart RRR.
    After issuance of these two applicability determinations, EPA 
determined that these determinations reflected conflicting 
constructions concerning the applicability of subpart RRR to aluminum 
delamination operations like those conducted at the U.S. Granules 
facilities. EPA also determined that the retention of such conflicting 
constructions would be inappropriate as a matter of law and policy. 
Accordingly, EPA decided to vacate both of these applicability 
determinations and to commence a process to adopt a single uniform 
construction of subpart RRR which would apply to all operations like 
those conducted at the U.S. Granules facilities.
    The decision to vacate the determination concerning the Plymouth 
facility was announced in a letter to U.S. Granules dated June 19, 
2003. The decision to vacate the Henrietta determination was announced 
in a letter to U.S. Granules dated June 23, 2003. Although the vacature 
of each of these applicability determinations was final and effective 
on the date that each letter announcing that vacature was signed, EPA 
also published a notice announcing vacature of these two applicability 
determinations. 68 FR 42397, September 3, 2003.
    Following issuance of the affirmative determination concerning the 
applicability of subpart RRR to the Henrietta facility, U.S. Granules 
Corporation brought an action seeking judicial review of that 
determination. U.S. Granules Corp. v. Whitman, No. 03-1946 (8th 
Circuit). After EPA vacated the Henrietta determination and published 
the notice of vacature, U.S. Granules moved to dismiss its petition for 
review. That case was dismissed on September 4, 2003.

II. Interpretation Adopted by This Rule

    After EPA decided to adopt a single uniform construction of subpart 
RRR which would apply to all operations like those conducted at the 
U.S. Granules facilities, EPA concluded that the appropriate vehicle to 
announce such a uniform construction is an interpretative rule. The 
interpretation adopted in an interpretative rule is binding on all EPA 
offices and permitting authorities, thereby assuring a uniform and 
predictable outcome. However, the reasonableness of the construction of 
subpart RRR adopted in this interpretative rule is still subject to 
appropriate judicial review.
    This interpretative rule is limited solely to the question of 
whether a delamination chamber of the type operated at the Plymouth and 
Henrietta U.S. Granules facilities is a ``scrap dryer/delacquering 
kiln/decoating kiln'' as that term is defined in 40 CFR 63.1503. 
Although we believe that the affirmative applicability determination 
concerning the unit that dries aluminum chips at the Henrietta facility 
was correct, we do not believe it is necessary to revisit that 
determination because counsel for U.S. Granules advised EPA in a letter 
dated December 23, 2002, that U.S. Granules did not contest the 
determination concerning the chip dryer and that U.S. Granules intended 
to decomission and remove the chip dryer from that facility before the 
effective date of subpart RRR.
    This interpretative rule is intended to be nationwide in scope and 
effect. It applies to any and all facilities that operate delamination 
units similar to those operated at the U.S. Granules Plymouth and 
Henrietta facilities, although we note that U.S. Granules believes that 
there are no other sources in North America that thermally delaminate 
aluminum scrap and then mechanically granulate the recovered metal.
    We note at the outset that subpart RRR applies to ``each new and 
existing scrap dryer/delacquering kiln/decoating kiln'' at a facility 
that is a major source or area source of hazardous air pollutants. 40 
CFR 63.1500(b)(3) and 63.1500(c)(2). 40 CFR 63.1503 defines a ``scrap 
dryer/delacquering kiln/decoating kiln'' as ``a unit used primarily to 
remove various organic contaminants such as oil, paint, lacquer, ink, 
plastic, and/or rubber from aluminum scrap (including used beverage 
containers) prior to melting.''
    The delamination chambers at the U.S. Granules Plymouth and 
Henrietta facilities use heat to separate aluminum foil from paper and 
plastic in scrap, but the chambers operate at a maximum temperature of 
900 degrees Fahrenheit and no melting of the recovered aluminum occurs 
in the chamber. If an identical delamination unit were located at a 
facility that itself melts the recovered aluminum, there would be no 
question that it would fit within this definition, and we do not 
understand U.S. Granules to dispute that conclusion. It is also clear 
that the delamination units used by U.S. Granules perform the same 
general type of operations for recovery of aluminum from scrap that EPA 
intended to regulate in subpart RRR. However, we acknowledge that the 
use of the phrase ``prior to melting'' in the definition of a scrap 
dryer/delacquering kiln/decoating kiln cannot simply be disregarded. In 
its affirmative applicability determination, Region 7 argues that the 
phrase ``prior to melting'' indicates that the recovery of aluminum 
from scrap would normally occur prior to melting. However, we think 
this argument is not persuasive unless the phrase in question was 
intended to be solely illustrative, and that is not clear on the face 
of the definition. If our conclusion turned solely on this factor, we 
would be more inclined to amend the rule in a manner which resolved the 
ambiguity than to try and construe the existing definition.
    Fortunately, we need not resolve this issue to conclude that the 
delamination chambers at the U.S. Granules facilities are within the 
definition. The negative applicability determination by Region 5 
appears to be based on the argument by U.S. Granules that the recovered 
aluminum must be melted at the same facility in order for the 
definition to apply. However, nothing in the definition indicates that 
the subsequent melting of recovered aluminum must occur at the same 
facility that conducts the recovery operation. Our discussions with 
U.S. Granules personnel and our review of the company's Web site 
indicate that some of the customers who buy the recovered aluminum 
granules from U.S. Granules subsequently melt the purchased material to 
produce new aluminum products. While some customers may use the 
aluminum granules without melting them, those granules which are 
subsequently melted are produced by an identical recovery process. This 
is sufficient to confirm that the operations to recover aluminum from 
scrap at the U.S. Granules facilities should not be treated differently 
from otherwise similar operations at sources

[[Page 58839]]

who themselves melt the recovered aluminum.
    If we were to construe the definition in any other way, this would 
permit other sources to evade the applicability of emission controls 
required by the rule by merely moving those operations which melt the 
recovered secondary aluminum to another site. This result would violate 
our established requirement that sources may not fragment an operation 
in order to avoid regulation under an applicable standard. See 40 CFR 
63.4(b)(3). We decline to construe the definitions in subpart RRR in a 
manner which would allow secondary aluminum production facilities to 
fragment their operations to evade emission control requirements.
    Based on this analysis, we conclude that the delamination chambers 
operated by the U.S. Granules Plymouth and Henrietta facilities, and 
any similar secondary aluminum operations which may be conducted now or 
in the future at other sources, are governed by subpart RRR. Although 
this interpretative rule will take effect on November 1, 2004, we note 
that subpart RRR itself is already in effect. That is why the letters 
that we sent to U.S. Granules vacating the two previous conflicting 
applicability determinations stated that, if we were to adopt a 
construction of subpart RRR resulting in a new positive applicability 
determination for the affected facilities, we would afford U.S. 
Granules a reasonable period to undertake any activities required to 
come into compliance or to establish continued compliance with subpart 
RRR. Consequently, U.S. Granules will be required to comply with 
subpart RRR within 240 days of the effective date of this 
Interpretative Rule.

III. Other Review Requirements

    Under Executive Order 12866, (58 FR 51736, October 4, 1993), this 
interpretative rule is not a ``significant regulatory action'' and is 
therefore not subject to review by the Office of Management and Budget.
    Section 553(b)(3)(A) of the Administrative Procedure Act provides 
that interpretative rules are not subject to notice-and-comment 
requirements under the Administrative Procedure Act. Interpretative 
rules which do not involve the internal revenue laws of the United 
States are not subject to the regulatory flexibility provisions of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because notice-and-
comment requirements do not apply to this interpretative rule, this 
rule is also not subject to sections 202 and 205 of the Unfunded 
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532 and 1535).
    In addition, this action does not significantly or uniquely affect 
small governments or impose a significant intergovernmental mandate, as 
described in sections 203 and 204 of UMRA. This interpretative rule 
also does not significantly or uniquely affect the communities of 
tribal governments, as specified by Executive Order 13084 (63 FR 27655, 
May 10, 1998). This interpretative rule will not have significant 
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 (64 FR 43255, August 10, 1999).
    This interpretative rule is also not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997) because it is not economically 
significant. This action does not involve technical standards; thus, 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This 
interpretative rule also does not involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994).
    In issuing this interpretative rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct, as 
required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 
1996). The EPA has complied with Executive Order 12630 (53 FR 8859, 
March 15, 1988) by examining the takings implications of the 
interpretative rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the Executive Order. This 
interpretative rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Our compliance with statutes and Executive Orders in 
promulgating the rule which is interpreted herein (40 CFR part 63, 
subpart RRR) is discussed in the Federal Register notice concerning the 
original promulgated rule (63 FR 15690, March 23, 2000), and in the 
Federal Register notice concerning subsequent amendments to that rule 
(67 FR 79808, December 30, 2002).
    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. We have established an effective date of November 1, 
2004. The EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

    Dated: August 18, 2004.
Thomas V. Skinner,
Acting Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 04-22084 Filed 9-30-04; 8:45 am]
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