[Federal Register Volume 70, Number 134 (Thursday, July 14, 2005)]
[Rules and Regulations]
[Pages 40672-40674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13871]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 63

[OAR-2003-0185; FRL-7938-5]
RIN 2060-AE46


National Emission Standards for Hazardous Air Pollutants for 
Primary Copper Smelting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: EPA is amending the national emission standards for hazardous 
air pollutants (NESHAP) for primary copper smelting to correct the 
monitoring requirements for control systems other than baghouses and 
venturi wet scrubbers.

DATES: Effective July 14, 2005.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OAR-2003-0185. 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., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other information, such as copyrighted 
materials, 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 form at the 
Air and Radiation Docket, Docket ID No. OAR-2003-0185, 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.

FOR FURTHER INFORMATION CONTACT: Mr. Steve Fruh, Emission Standards 
Division (C439-02), Office of Air Quality Planning and Standards, U.S. 
EPA, Research Triangle Park, NC 27711, telephone number (919) 541-2837, 
e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities 
potentially regulated by this action include:

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                   Category                      NAICS code \1\           Examples of regulated entities
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Industry......................................           331411  Primary copper smelters.
Federal government............................  ...............  Not affected.
State/local/tribal government.................  ...............  Not affected.
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\1\ North American Industry Classification System.

    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 63.1441 of the 
NESHAP for primary copper smelting. If you have any questions regarding 
the applicability of this action to a particular entity, consult the 
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's final amendments will also be available 
on the World Wide Web (WWW) through the Technology Transfer Network 
(TTN). A copy of the final amendments will be placed on the TTN's 
policy and guidance page for newly proposed or promulgated rules at 
http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control.

I. Background

    We promulgated the NESHAP for primary copper smelting (40 CFR 63, 
subpart QQQ) on June 12, 2002 (68 FR 40478). The final rule establishes 
emissions limitations and work practice standards for primary copper 
smelters that use batch copper converters and are a major source of 
hazardous air pollutant (HAP) emissions. We received a petition 
(included in the docket for today's final amendments) asking us to 
review the requirements for specific operating parameters that must be 
monitored when an owner or operator uses a control device other than a 
baghouse (fabric filter) or a venturi wet scrubber to comply with the 
rule. Upon review of the monitoring requirements in subpart QQQ, we 
discovered an error in the regulatory language for the final rule that 
references the operating parameters to be monitored when a control 
device other than a baghouse or a venturi wet scrubber is used.
    If an owner or operator of a primary copper smelter elects to use a 
control device other than a baghouse or venturi wet scrubber for an 
emissions source subject to a particulate emissions limit under the 
final rule (e.g., use an electrostatic precipitator), the rule requires 
that the owner or operator continuously monitor and record appropriate 
operating parameters for the type of control device used to demonstrate 
compliance with the applicable emissions standard. In such cases, the 
final rule does not specify the individual operating parameters that 
must be monitored. Instead, the owner or operator is required to select 
specific operating parameters appropriate for the control device design 
that the owner or operator determines to be a representative and 
reliable indicator of the control device performance. During the 
initial performance test that the owner or operator conducts to 
demonstrate compliance with the applicable emissions standard, 
operating limits for each of the selected operating parameters are 
established on a site-specific basis using the actual operating values 
for the control device recorded while the performance test is 
conducted. Continuous compliance with the emissions standard is 
demonstrated by maintaining the selected operating parameters within 
the operating limits established during the performance test.
    Under the monitoring requirements for control devices other than 
baghouses or venturi wet scrubbers in 40 CFR 63.1452(d) and 40 CFR 
63.1453(e), language referencing the operating parameters for venturi 
wet scrubbers (i.e., hourly average pressure drop and water flow) was 
incorrectly included in these paragraphs. In place of the reference to 
venturi wet scrubbers, the rule language in 40 CFR 63.1452(d) and 40 
CFR 63.1453(e) should implement

[[Page 40673]]

the monitoring requirements as described above, and reference the 
operating parameters appropriate for the control device design that the 
owner or operator has determined to be a representative and reliable 
indicator of the control device performance.
    Today's amendments correct our error by revising the language in 40 
CFR 63.1452(d) and 40 CFR 63.1453(e) to reference the appropriate set 
of control device operating parameters. For cases when a control device 
other than a baghouse or venturi wet scrubber is used to comply with 
subpart QQQ, the owner or operator must continuously monitor and record 
the selected operating parameters appropriate for the control device 
design according the requirements in the final rule.

II. Good Cause Findings

    Section 553(b) of the Administrative Procedure Act (APA) provides 
that, when any agency for good cause finds that notice and public 
procedure are impracticable, unnecessary, or contrary to the public 
interest, the agency may issue a rule without providing notice and an 
opportunity for public comment. Similarly, under section 553(d) of the 
APA, an agency may find that there is good cause to make the rule 
effective upon publication in the Federal Register.
    We have determined that there is good cause for making today's 
amendments final without prior proposal and opportunity for public 
comment because we are merely correcting an error in the existing rule. 
This error conflicted with the approach we had taken and explained in 
the proposed rule. The final rule published on June 12, 2002, gave no 
explanation that this approach was being changed. In fact, the error 
resulted in adopting monitoring requirements that have no practical 
application.
    Today's amendments are necessary to establish a monitoring 
requirement that is applicable to the control option and consistent 
with the rule as proposed. Notice and public comment on the correcting 
amendments are unnecessary due to their noncontroversial nature and 
because they do not substantively change the rule requirements, but 
rather correct the rule so that it is promulgated as we intended and 
explained to the public in the original rulemaking process. Therefore, 
we find that this constitutes good cause under 5 U.S.C. 553(b)(B). We 
also find, for the same reasons, that good cause exists under APA 
section 553(d)(3) to make the amendments effective upon publication in 
the Federal Register rather than 30 days later.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866, this action is not a ``significant 
regulatory action'' and is, therefore, not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health and Safety Risks'' (62 FR 19885, April 23, 1997), 
or to Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28344, May 22, 2001). This action does not impose any new information 
collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Because the agency has made a ``good cause'' finding 
that this action is not subject to notice-and-comment requirements 
under the APA or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform 
Act (UMRA) of 1995 (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant federal intergovernmental mandate, as described in sections 
203 and 204 of UMRA. Also, the final rule amendments do 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 governments, as 
specified by Executive Order 13132, ``Federalism'' (64 FR 43255, August 
10, 1999), nor does it have a substantial direct effect on one or more 
Indian tribes, 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 by 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments'' (59 FR 22951, November 9, 2000). This action does 
not involve technical standards. EPA's compliance with section 12(d) of 
the National Technology Transfer Act of 1995 (Public Law No. 104-113; 
15 U.S.C. 272 note) has been addressed in the preamble of the 
underlying final rule (67 FR 40478, June 12, 2002).
    The Congressional Review Act (CRA), 5 U.S.C.801 et seq., as added 
by the Small Business Regulatory Enforcement Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to public interest. This determination must be 
supported by a brief statement. 5 U.S.C. 808(2). As stated previously, 
EPA has made such a good cause finding, including the reasons 
therefore, and established an effective date of July 14, 2005. The EPA 
will submit a report containing the final amendments 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 final amendments in the Federal Register. This action is not a 
``major rule'' as defined by 5 U.S.C 804(2).

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: July 7, 2005.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.

0
For the reasons stated 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 QQQ--[Amended]

0
2. Section 63.1452 is amended by revising paragraph (d) introductory 
text to read as follows:


Sec.  63.1452  What are my monitoring requirements?

* * * * *
    (d) Other control devices. For each control device other than a 
baghouse or venturi wet scrubber subject to the operating limits for 
appropriate parameters in Sec. Sec.  63.1444(h) or 63.1446(e), you must 
at all times monitor each of your selected parameters using an 
appropriate CPMS. You must install, operate, and maintain each CPMS 
according to the equipment manufacturer's specifications and the 
requirements in paragraphs (d)(1) though (5) of this section.
* * * * *

[[Page 40674]]


0
3. Section 63.1453 is amended by revising paragraph (e)(2) to read as 
follows:


Sec.  63.1453  How do I demonstrate continuous compliance with the 
emission limitations, work practice standards, and operation and 
maintenance requirements that apply to me?

* * * * *
    (e) * * *
    (2) Inspect and maintain each CPMS operated according to Sec.  
63.1452(d) and record all information needed to document conformance 
with these requirements; and
* * * * *

[FR Doc. 05-13871 Filed 7-13-05; 8:45 am]
BILLING CODE 6560-50-P