[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Proposed Rules]
[Pages 61411-61417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21188]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2004-0004, FRL-7987-4]
RIN 2060-AK16


National Emission Standards for Hazardous Air Pollutants for 
Industrial Process Cooling Towers

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action; request for public comment.

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SUMMARY: On September 8, 1994, we promulgated national emission 
standards for hazardous air pollutants (NESHAP) from industrial process 
cooling towers (59 FR 46350). The NESHAP eliminated the use of 
chromium-based water treatment chemicals that are known or suspected to 
cause cancer or have a serious health or environmental effect.
    Section 112(f)(2) of the Clean Air Act (CAA) directs EPA to assess 
the risk remaining (residual risk) after the application of the NESHAP 
and promulgate additional standards if warranted to provide an ample 
margin of safety to protect public health or prevent an adverse 
environmental effect. Also, section 112(d)(6) of the CAA requires EPA 
to review and revise the NESHAP as necessary at least every 8 years, 
taking into account developments in practices, processes, and control 
technologies. Based on our findings from the residual risk review and 
technology review, we are proposing no further action at this time to 
revise the NESHAP. This proposed action requests public comments on the 
residual risk review and technology review for the NESHAP.

DATES: Comments. Comments must be received on or before December 8, 
2005.
    Public Hearing. If anyone contacts EPA requesting to speak at a 
public hearing by November 8, 2005, a public hearing will be held 
approximately 20 days following publication of this action in the 
Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0004, 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] and [email protected].
     Fax: (202) 566-1741 and (919) 541-5450.
     Mail: U.S. Postal Service, send comments to: EPA Docket 
Center (6102T), Attention Docket Number OAR-2004-0004, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: In person or by courier, deliver comments 
to: EPA Docket Center (6102T), Attention Docket ID Number OAR-2004-
0004, 1301 Constitution Avenue, NW., Room B-102, Washington, DC 20004. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. Please include a total of two copies. We request 
that a separate copy of each public comment also be sent to the contact 
person for the proposed action listed below (see FOR FURTHER 
INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. OAR-2004-0004. 
The 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.)
    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 EPA Docket Center, Docket ID Number OAR-2004-0004, EPA West 
Building, 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 EPA 
Docket Center is (202) 566-1742. A reasonable fee may be charged for 
copying docket materials.

FOR FURTHER INFORMATION CONTACT: For questions about the proposed 
action, contact Mr. Phil Mulrine, U.S. EPA, Office of Air Quality 
Planning and Standards, Emission Standards Division, Metals Group 
(C439-02), Research Triangle Park, North Carolina

[[Page 61412]]

27711, telephone (919) 541-5289, fax number (919) 541-5450, e-mail 
address: [email protected]. For questions on the residual risk 
analysis, contact Mr. Scott Jenkins, U.S. EPA, Office of Air Quality 
Planning and Standards, Emission Standards Division, Risk and Exposure 
Assessment Group (C404-01), Research Triangle Park, North Carolina 
27711, telephone (919) 541-1167, fax number (919) 541-0840, e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:
    Regulated Entities. The regulated categories and entities affected 
by the NESHAP include:

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                                                 NAICS code
                   Category                          a        SIC code b      Examples of regulated entities
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Industry......................................       324110       (2911)  Industrial process cooling towers
                                                     325181       (2812)   located at major sources, including
                                                     325120       (2813)   petroleum refineries, chemical
                                                     325131       (2816)   manufacturing plants, primary metals
                                                     325188       (2819)   processing plants, glass
                                                     325191       (2861)   manufacturing plants, tobacco
                                                     325311       (2873)   products manufacturing plants, rubber
                                                     325312       (2874)   products manufacturing plants, and
                                                     325314       (2875)   textile finishing plants.
                                                     325320       (2879)
                                                     325520       (2891)
                                                     325920       (2892)
                                                     325910       (2893)
                                                     325182       (2895)
                                                     325998       (2899)
                                                     331111       (3312)
                                                     331411       (3331)
                                                     331419       (3339)
                                                     327211       (3211)
                                                     327213       (3221)
                                                     327212       (3229)
                                                     312221       (2111)
                                                     312229       (2121)
                                                     312229       (2131)
                                                     326211       (3011)
                                                     313311       (2261)
                                                     313311       (2262)
                                                     313312       (2269)
Federal/State/local/tribal governments .......
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a North American Industry Classification System.
b Standard Industrial Classification.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by the 
NESHAP. To determine whether your facility would be affected by the 
NESHAP, you should examine the applicability criteria in 40 CFR part 
63.400(a) of subpart Q (NESHAP for Industrial Process Cooling Towers). 
If you have any questions regarding the applicability of the NESHAP to 
a particular entity, consult either the air permit authority for the 
entity or your EPA regional representative as listed in 40 CFR part 
63.13 of subpart A (General Provisions). Worldwide Web (WWW). In 
addition to being available in the docket, an electronic copy of 
today's proposed action will also be available on the Worldwide Web 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the proposed action will be posted on the TTN's policy and 
guidance page for newly proposed or promulgated rules at the following 
address: http://www.epa.gov/ttn/oarpg/. The TTN provides information 
and technology exchange in various areas of air pollution control.
    Public Hearing. If a public hearing is held, it will begin at 10 
a.m. and will be held at EPA's campus in Research Triangle Park, North 
Carolina, or at an alternate facility nearby. Persons interested in 
presenting oral testimony or inquiring as to whether a public hearing 
is to be held should contact Ms. Barbara Miles, Risk and Exposure 
Group, Emission Standards Division, U.S. EPA (C404-01), Research 
Triangle Park, NC 27711, telephone (919) 541-5648. Outline. The 
information presented in this preamble is organized as follows:

I. Background
    A. What Is the Statutory Authority for This Action?
    B. What Did the Industrial Process Cooling Tower NESHAP 
Accomplish?
    C. What Are the Conclusions of the Residual Risk Review?
    D. What Are the Conclusions of the Technology Review?
II. Proposed Action
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 and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act

I. Background

A. What Is the Statutory Authority for This Action?

    Section 112 of the CAA establishes a two-stage regulatory process 
to address emissions of hazardous air pollutants (HAP) from stationary 
sources. In the first stage, after EPA has identified categories of 
sources emitting one or more of the HAP listed in the CAA, section 
112(d) calls for us to promulgate

[[Page 61413]]

national technology-based emission standards for sources within those 
categories that emit or have the potential to emit any single HAP at a 
rate of 10 tons or more per year or any combination of HAP at a rate of 
25 tons or more per year (known as ``major sources''), as well as for 
certain ``area sources'' emitting less than those amounts. These 
technology-based standards must reflect the maximum reductions of HAP 
achievable (after considering cost, energy requirements, and non-air 
health and environmental impacts) and are commonly referred to as 
maximum achievable control technology (MACT) standards. For area 
sources, CAA section 112(d)(5) provides that in lieu of MACT, the 
Administrator may elect to promulgate standards or requirements which 
provide for the use of generally available control technologies or 
management practices and such standards are commonly referred to as 
generally available control technology (GACT) standards. EPA is then 
required to review these technology-based standards and to revise them 
``as necessary, taking into account developments in practices, 
processes and control technologies,'' no less frequently than every 8 
years.
    The second stage in standard-setting is described in section 112(f) 
of the CAA. This provision requires, first, that EPA prepare a Report 
to Congress discussing (among other things) methods of calculating risk 
posed (or potentially posed) by sources after implementation of the 
MACT standards, the public health significance of those risks, the 
means and costs of controlling them, actual health effects to persons 
in proximity to emitting sources, and recommendations as to legislation 
regarding such remaining risk. EPA prepared and submitted this report 
(``Residual Risk Report to Congress,'' EPA-453/R-99-001) in March 1999. 
The Congress did not act on any of the recommendations in the report, 
triggering the second stage of the standard-setting process, the 
residual risk phase.
    Section 112(f)(2) requires us to determine for each section 112(d) 
source category whether the MACT standards protect public health with 
an ample margin of safety. If the MACT standards for HAP ``classified 
as a known, probable, or possible human carcinogen do not reduce 
lifetime excess cancer risks to the individual most exposed to 
emissions from a source in the category or subcategory to less than one 
in one million,'' EPA must promulgate residual risk standards for the 
source category (or subcategory) as necessary to provide an ample 
margin of safety. EPA must also adopt more stringent standards to 
prevent an adverse environmental effect (defined in section 112(a)(7) 
as ``any significant and widespread adverse effect * * * to wildlife, 
aquatic life, or natural resources * * *.''), but must consider cost, 
energy, safety, and other relevant factors in doing so.

B. What Did the Industrial Process Cooling Tower NESHAP Accomplish?

    On September 8, 1994, we promulgated the NESHAP for industrial 
process cooling towers (IPCT) (59 FR 46350) and required existing 
sources to comply with the NESHAP by March 8, 1996.
    Cooling towers are devices that are used to remove heat from a 
cooling fluid, typically water, by contacting the fluid with ambient 
air. The IPCT source category includes cooling towers that are used to 
remove heat that is produced as an input or output of chemical or 
industrial processes. The IPCT source category also includes cooling 
towers that cool industrial processes in combination with heating, 
ventilation, and air conditioning (HVAC) systems. The IPCT NESHAP 
applies specifically to IPCT that use chromium-based water treatment 
chemicals and are located at major sources of HAP emissions. Standards 
to control chromium emissions from cooling towers that cool HVAC 
systems exclusively (comfort cooling towers) were promulgated under 
section 6 of the Toxic Substances Control Act (TSCA)(55 FR 222 January 
3, 1990).
    The primary industries that use IPCT include petroleum refineries, 
chemical manufacturing plants, primary metals processing plants, glass 
manufacturing plants, rubber products manufacturing plants, tobacco 
products manufacturing plants, and textile manufacturing plants. When 
the IPCT NESHAP were promulgated, we estimated that there were 
approximately 6,945 IPCT located at these plants nationwide and that 
approximately 260 of these IPCT used chromium-based water treatment 
chemicals. We estimated that the IPCT NESHAP would reduce emissions of 
chromium compounds from these facilities by 22.7 megagrams per year 
(Mg/yr) (25 tons per year (tpy)) by prohibiting the use of chromium-
based water treatment chemicals in IPCT. In addition, we estimated that 
the NESHAP would prevent emissions of 1.6 Mg/yr (1.8 tpy) of chromium 
compounds from the 870 new IPCT projected by the 5th year of the 
standards (1998).
    When the NESHAP were promulgated, we had no information that 
indicated that HAP other than chromium compounds were emitted from 
IPCT. Consequently, we did not address emissions of other HAP in the 
IPCT NESHAP.

C. What Are the Conclusions of the Residual Risk Review? Source 
Category Characterization

    As required by section 112(f)(2) of the CAA, we prepared a risk 
assessment to determine the residual risk posed by IPCT after 
implementation of the NESHAP. To evaluate the residual risk for the 
IPCT source category, we identified the HAP emitted from IPCT and, as a 
discretionary matter in this instance, estimated worst-case emission 
rates for each of those HAP. These worst-case emission rates were used, 
along with facility parameters representing an actual facility, to 
perform the risk assessment.
Emissions Data
    Because the IPCT NESHAP prohibits the use of chromium-based water 
treatment chemicals in IPCT, we believe that chromium compound 
emissions from IPCT have been eliminated by the NESHAP. In assessing 
the residual risk for the source category, however, we have also 
considered emissions of other HAP from IPCT.
    In the absence of process leaks or malfunctions, the chemical 
species that are emitted from IPCT consist of the naturally-occurring 
constituents of the cooling water and any substances that are added to 
the cooling water. To determine what other HAP may be emitted from 
IPCT, we first contacted suppliers of cooling water treatment chemicals 
for information on cooling water additives that either contain HAP or 
form HAP, which could be emitted from IPCT. Then, we conducted a 
literature search for information on emissions from cooling towers.
    The majority of IPCT are designed to recirculate the cooling water 
through the system to minimize the costs associated with wastewater 
disposal and permitting. As the water is recirculated, cooling water is 
lost through evaporation and emissions, which is referred to as drift. 
Because of these losses, the concentrations of the dissolved and 
suspended chemical constituents of the cooling water steadily increase, 
and water treatment chemicals must be added to the cooling water to 
ensure continued operation of the system. These chemicals generally 
serve to inhibit corrosion, control scaling and fouling, limit the 
growth of microorganisms, and control the pH of the cooling water.
    To determine which of these water treatment chemicals may contain 
or

[[Page 61414]]

form HAP and subsequently be emitted from IPCT, we contacted seven 
companies that supply chemicals for industrial cooling water system 
treatment. These companies include the largest suppliers of cooling 
water treatment chemicals; combined, the seven companies account for 
the major share of the cooling water treatment chemical market.
    We also conducted a literature search of trade journals, conference 
proceedings, EPA publications, and other documents for information on 
emissions from IPCT. The results of the search were placed in the 
public docket for this proposed action. The information collected from 
the water treatment chemical suppliers and through the literature 
search indicated that some biocides used to treat industrial cooling 
water either contain HAP or form HAP that can be emitted from IPCT. 
These HAP include chlorine, chloroform, methanol, and ethylene 
thiourea. However, chlorine emissions occur only under acidic 
conditions (i.e., pH of 3.0 or less). Because IPCT water treatment 
programs all operate under alkaline conditions, with the pH of the 
cooling water maintained in the range of 7.5 to 9.0, chlorine emissions 
from IPCT are unlikely under normal operating conditions.
    Industrial process cooling towers typically use one and not all of 
the three listed HAP at any given time. Therefore, IPCT emit no more 
than one of the three listed HAP. We estimated worst-case emission 
rates for chloroform, methanol, and ethylene thiourea based on the 
range of concentrations of these constituents in cooling water and the 
model plants developed for the IPCT NESHAP.\1\ We used these emission 
rates to model exposure concentrations surrounding those sources, 
calculated the risk of possible chronic cancer and noncancer health 
effects, evaluated whether acute exposures might exceed relevant health 
thresholds, and investigated human health multi-pathway and ecological 
risks.
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    \1\ We ask for comment on what approach might be appropriate 
when no pre-existing NESHAP level of emissions exists.
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Results
    Consistent with the tiered modeling approach described in the 
Residual Risk Report to Congress, the risk assessment for this source 
category started with a simple assessment which used conservative 
assumptions in lieu of site-specific data. The results demonstrated 
negligible risks for potential chronic cancer, chronic noncancer, and 
acute noncancer health endpoints. Also, no significant human health 
multi-pathway or ecological risks were identified. Had the resulting 
risks been determined to be non-negligible, a more refined analysis 
with site-specific data would have been necessary. The assessment is 
described in detail in the memorandum ``Residual Risk Assessment for 
the Industrial Process Cooling Source Category'' available in the 
docket. Brief summaries of the results follow.
    Cancer. Both ethylene thiourea and chloroform are classified as 
probable human carcinogens by EPA. The estimated maximum lifetime 
(i.e., 70-year) individual cancer risk due to the combined emissions of 
these two HAP from industrial process cooling towers was 4 x 
10-7, or 0.4-in-a-million. This is less than the statutory 
trigger of 1-in-a-million in section 112(f)(2) of the CAA.
    Chronic Noncancer. Chronic inhalation exposure to chloroform, 
ethylene thiourea, and methanol have been associated with a variety of 
noncancer health effects including depression of the central nervous 
system, hepatitis, jaundice, thyroid effects, birth defects, blurred 
vision, headache, dizziness, and nausea. Our risk assessment 
demonstrated that exposure to these HAP due to emissions from IPCT is 
unlikely to cause adverse chronic noncancer health effects. The maximum 
calculated hazard index (HI) is 0.002, even when emissions of all three 
HAP are assumed to come from the same cooling towers, which is an 
unlikely event. This HI is well below a HI of 1, which is the minimum 
level of potential concern.
    Acute. Acute inhalation exposure to chloroform and/or methanol has 
been associated with a variety of adverse health effects including 
blurred vision, headache, dizziness, nausea, and depression of the 
central nervous system. Our risk assessment demonstrated that acute 
exposure to these HAP due to worst-case emissions from IPCT is unlikely 
to cause adverse health effects. The maximum acute hazard quotient (HQ) 
for any of the HAP evaluated with any of the relevant acute dose-
response values considered is 0.07. This is well below a HQ of 1, which 
is the minimum level of potential concern.
    Human Health Multipathway and Ecological. None of the HAP 
considered in this risk assessment are believed to persist in the 
environment or to bioaccumulate. Therefore, risks to human health, 
resulting from multipathway exposure to HAP emitted by IPCT, are not 
believed to be significant.
    We are also required to consider adverse environmental effect as a 
part of a residual risk assessment. As we stated previously, none of 
the chemicals considered in this risk assessment are believed to 
persist in the environment or to bioaccumulate. Therefore, we have no 
evidence that suggests adverse environmental effect indicating a need 
for further controls. Regarding the inhalation exposure pathway for 
terrestrial mammals, we have concluded that the human toxicity values 
for the inhalation pathway are generally protective of terrestrial 
mammals. The maximum cancer and noncancer hazards to humans from 
inhalation exposure are very low, and we expect there to be no 
significant and widespread adverse effect to terrestrial mammals from 
inhalation exposure to HAP emitted from facilities in this source 
category. Therefore, an adverse environmental effect is not a concern 
for emissions from cooling towers. Since our analysis shows no 
significant ecological effect, we also do not believe that there is any 
potential for an effect on threatened or endangered species or on their 
critical habitat within the meaning of 50 CFR 402.14(a). Because of 
these results, EPA has concluded that a consultation with the Fish and 
Wildlife Service is not necessary.
Assessment
    Since our assessment shows that the IPCT NESHAP poses maximum 
lifetime excess cancer significantly less than one in a million, and 
since noncancer health risks and ecological risks were found to be 
insignificant for this source category, EPA is not obligated to adopt 
standards under section 112(f) of the CAA.
    EPA recognizes that there may be circumstances where it would be 
appropriate to delist a source category or subcategory after MACT 
standards have been promulgated. For example, an industry may have 
changed sufficiently in the years since the category was listed and the 
MACT standards promulgated, such that even in the absence of the MACT 
standards, emissions from the category would be sufficiently low to 
meet the delisting criteria of CAA section 112(c)(9). In the case of 
IPCT, EPA promulgated MACT standards prohibiting the use of chromium-
based water treatment chemicals. Currently, none of the sources in this 
category are using chromium-based water treatment chemicals. EPA's 
analysis suggests that the risks associated with other HAP are well 
below levels of concern. As a result, changes with this category, i.e., 
the use of nonchromium-based water treatment chemicals, may allow EPA 
to determine that the section 112(c)(9) criteria have been met in the 
absence of

[[Page 61415]]

the MACT standards. In the present case, we have not developed data to 
support this conclusion. We request comment on EPA's ability to delist 
a category or subcategory under section 112(c)(9) after promulgation of 
section 112(d) MACT standards. We also request comment (and supporting 
data) on whether this industry has changed such that it would be 
appropriate for EPA to delist the source category or a distinct 
subcategory. We also solicit comment on the possibility of 
subcategorizing source categories for purposes of satisfying section 
112(f)(2).

D. What Are the Conclusions of the Technology Review?

    Section 112(d)(6) of the CAA requires that the Administrator review 
and revise ``the emission standards promulgated under this section'' as 
necessary. In this instance, the emission standards imposed an absolute 
prohibition on the use of chromium-based water treatment chemicals in 
IPCT. As the emission standards imposed for this particular source are 
already at the most stringent, no more stringent standards could be 
imposed. Nor has EPA received any evidence which would justify a 
downward revision of the standards. In the residual risk analysis 
discussed above, EPA has considered risks for HAP emissions that are 
not currently subject to an emission standards but are attributable to 
the source category or subcategory. The text of section 112(d)(6) 
suggests that the technology review is not so extensive. EPA has 
tentatively concluded that the section 112(d)(6) review should be 
limited to the ``emission standards'' already issued under section 
112(d). As the MACT emission standards for IPCT are the most stringent 
possible, the Agency has concluded that no further controls are 
necessary.\2\
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    \2\ We reviewed available information and talked with industry 
representatives to investigate available emission control 
technologies and the potential for additional emission reductions 
for any nonchromium HAP emitted from IPCT. Our investigation did not 
identify any significant developments in practices, processes, or 
control technologies.
---------------------------------------------------------------------------

    In light of today's low-risk finding under CAA section 112(f) 
(i.e., that, given compliance with the existing MACT standards every 
source in the category poses excess lifetime individual cancer risks 
less than 1-in-a-million and no significant noncancer or ecological 
risks), the Agency seeks comment on the notion that, barring any 
unforeseeable circumstances which might substantially change this 
source category or its emissions, we would have no obligations to 
conduct future technology reviews under CAA section 112(d)(6).

II. Proposed Action

    We believe that no further revisions to the standards are needed 
and are proposing not to revise the standards under section 112(d)(6) 
or 112(f)(2) of the CAA.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether a 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, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any information collection burden. It 
will not change the burden estimates from those previously developed 
and approved for the existing NESHAP. OMB has previously approved the 
information collection requirements contained in the existing 
regulation (59 FR 46350, September 8, 1994) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq. However, this 
information collection request has been discontinued because the 
information requested in the original regulation is no longer needed.
    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 in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 action on 
small entities, small entity is defined as: (1) A small business whose 
parent company has fewer than 500 to 1,000 employees, depending on the 
size definition for the affected 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 
which is independently owned and operated and is not dominant in its 
field.
    After considering the economic impacts of today's proposed action 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
The proposed action will not impose any requirements on small entities.
    We continue to be interested in the potential impacts of the 
proposed action

[[Page 61416]]

on small entities and welcome comments on issues related to such 
impacts.

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 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 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 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, 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.
    EPA has determined that this proposed action does 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 to the 
private sector in any 1 year. Thus, today's proposed action is not 
subject to the requirements of sections 202 and 205 of the UMRA. In 
addition, EPA has determined that the proposed action contains no 
regulatory requirements that might significantly or uniquely affect 
small governments, because it contains no requirements that apply to 
such governments or impose obligations upon them.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (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'' 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.''
    Today's proposed action does not have federalism implications. It 
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. Thus, Executive 
Order 13132 does not apply to the proposed action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (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 proposed action 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 today's proposed action.

G. Executive Order 13045: Protection of Children From Environmental 
Health 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, 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 EPA.
    The proposed action is not subject to the Executive Order because 
it is not economically significant as defined in Executive Order 12866 
and because EPA does not have reason to believe the environmental 
health or safety risks addressed by this action present a significant 
disproportionate risk to children.

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

    Today's proposed decision is not a ``significant energy action'' as 
defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because 
it is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that today's 
proposed decision is not likely to have any adverse energy impacts.

I. National Technology Transfer Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, Sec.  12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) 
in its regulatory activities, unless to do so would be inconsistent 
with applicable law or otherwise impractical. The VCS are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted VCS 
bodies. The NTTAA directs EPA to provide Congress, through OMB, 
explanations when the Agency does not use available and applicable VCS.
    The proposed action does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. EPA welcomes comments on this aspect of the proposed action 
and, specifically, invites the public to identify potentially 
applicable VCS and to explain why such standards should be used in the 
proposed action.

[[Page 61417]]

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: October 18, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-21188 Filed 10-21-05; 8:45 am]
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