[Federal Register Volume 71, Number 46 (Thursday, March 9, 2006)]
[Proposed Rules]
[Pages 12240-12249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2148]



[[Page 12239]]

-----------------------------------------------------------------------

Part II





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Parts 51, 52 et al.



Prevention of Significant Deterioration, Nonattainment New Source 
Review, and Title V: Treatment of Corn Milling Facilities Under the 
``Major Emitting Facility'' Definition; Proposed Rule

  Federal Register / Vol. 71, No. 46 / Thursday, March 9, 2006 / 
Proposed Rules  

[[Page 12240]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 70, and 71

[FRL-8041-5, Docket ID No. EPA-HQ-OAR-2006-0089]
RIN 2060-AN77


Prevention of Significant Deterioration, Nonattainment New Source 
Review, and Title V: Treatment of Corn Milling Facilities Under the 
``Major Emitting Facility'' Definition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA has treated wet and dry corn milling facilities 
differently under the Clean Air Act (CAA or Act) depending on whether 
the facilities in question produce ethanol fuel or ethanol fit for 
human consumption. In particular, EPA has applied different major 
source size cut offs to these facilities under the Prevention of 
Significant Deterioration (PSD) program based on the product these 
facilities produce. Additionally, when the list of source categories 
relative to the definition of ``major emitting facility'' was first 
promulgated on August 7, 1980, this same list was promulgated in the 
same final regulatory package for determining from which source 
categories fugitive emissions were to be counted in determining whether 
a source is a major source. As a result, although two of the regulatory 
changes being proposed today address the major source threshold for PSD 
sources, the remaining proposed regulatory changes address when 
fugitive emissions are counted for purposes of determining whether a 
source is a major source under the PSD, nonattainment New Source Review 
(NSR), or title V programs.
    In today's action, we are requesting public comment on two options 
under consideration by EPA with respect to corn milling facilities. 
Under Option 1, EPA would treat wet and dry corn milling facilities in 
the same manner under the PSD, nonattainment NSR, and title V programs 
regardless of whether they produce ethanol fuel or ethanol fit for 
human consumption. If EPA adopts Option 1, EPA would redefine chemical 
process plants under the definition of ``major emitting facility'' to 
exclude wet and dry corn milling facilities which produce ethanol fuel. 
Under Option 2, EPA would retain the current distinction between wet 
and dry corn milling facilities under these regulatory programs based 
on whether they produce ethanol fuel or ethanol fit for human 
consumption. The EPA's preferred option is Option 1. We are requesting 
comment on these two options and on the revisions that we propose to 
make if we adopt Option 1.

DATES: Comments. Comments must be received on or before May 8, 2006.
    Public Hearing. If anyone contacts us requesting to speak at a 
public hearing March 29, 2006, we will hold a public hearing 
approximately 30 days after publication in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0089 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Fax: 202-566-1741.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2006-0089, U.S. 
Environmental Protection Agency, EPA West (Air Docket), 1200 
Pennsylvania Avenue, Northwest, B102, Mail code 6102T, Washington, DC 
20460. Please include a total of 2 copies.
     Hand Delivery: U.S. Environmental Protection Agency, EPA 
West (Air Docket), 1301 Constitution Avenue, Northwest, Room B102, 
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2006-0089. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0089. 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.regulations.gov, 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 regulations.gov, or 
e-mail. The www.regulations.gov Web site is an ``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 
www.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 the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, please see section 
B. of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. 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 www.regulations.gov or 
in hard copy at the U.S. Environmental Protection Agency, EPA West (Air 
Docket), 1200 Pennsylvania Avenue, Northwest, B102, Mail code: 6102T, 
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0089, 
Washington, DC 20004]. This Docket Facility and 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-HQ-OAR-2006-0089 
is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Joanna Swanson, (C339-03), Air 
Quality Policy Division, U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711, telephone number: (919) 541-5282; fax number: 
(919) 541-5509, or electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What Are the Regulated Entities?

    Entities potentially affected by the subject rule for today's 
action include wet and dry corn milling facilities and industrial ethyl 
alcohol production.

[[Page 12241]]



------------------------------------------------------------------------
             Industry group                    SIC a          NAICS b
------------------------------------------------------------------------
Wet Corn Milling........................            2046          311221
Industrial Organic Chemicals (Ethyl                 2869         325193
 Alcohol)...............................
------------------------------------------------------------------------
a Standard Industrial Classification (1987)
b North American Industry Classification System. Entities potentially
  affected by the subject rule for today's action also include State,
  local, and tribal governments.

B. How Should I Submit CBI Material to the Agency?

    1. Submitting CBI. Do not submit this information that you consider 
to be CBI electronically through www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information in a disk or CD ROM that you mail to EPA, mark the CD 
ROM the specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. Also, send an additional copy 
clearly marked as above not only to the Air docket but to: Roberto 
Morales, c/o OAQPS Document Control Officer, (C339-03), U.S. 
Environmental Protection Agency, Research Triangle Park, NC 27711, 
Attention Docket ID No. EPA-HQ-OAR-2006-0089.

C. What Should I Consider as I Prepare My Comments for EPA?

    When submitting comments, remember to:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

D. How Can I Find Information About a Possible Public Hearing?

    Persons interested in presenting oral testimony should contact Mrs. 
Pamela S. Long, Air Quality Division (C339-03), U.S. Environmental 
Protection Agency, Research Triangle Park, NC 27711, telephone number 
(919) 541-0641, at least 2 days in advance of the public hearing. 
Persons interested in attending the public hearing should also contact 
Mrs. Long to verify the time, date, and location of the hearing. The 
public hearing will provide interested parties the opportunity to 
present data, views, or arguments concerning these proposed changes.

E. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. What Are the Regulated Entities?
    B. How Should I Submit CBI Material to the Agency?
    C. What Should I Consider as I Prepare My Comments for EPA?
    D. How Can I Find Information About a Possible Public Hearing?
    E. How Is This Preamble Organized?
II. Background
    A. What Is the History of the Term ``Major Emitting Facility''?
    B. What Is the Basis for the Source Categories Listed in the 
Definition of ``Major Emitting Facility'' in Section 169(1) of the 
Act?
    C. How Was the Chemical Process Plants Source Category Addressed 
in the Research Corp. NSPS Study?
    D. How Have Ethanol Production Facilities Been Considered Under 
the PSD Program?
III. Today's Proposed Rule
    A. What Is Being Proposed?
    B. What Are the Implications of Changing the Classification of 
Facilities Which Produce Ethanol Fuel as a Result of the Wet or Dry 
Milling Process?
    C. What Are the Implications of Not Changing the Classification 
for Facilities Which Produce Ethanol Fuel as a Result of the Dry or 
Wet Milling Process?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis (RFA)
    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

II. Background

    The NSR program legislated by Congress in parts C and D of title I 
of the Act is a preconstruction review and permitting program 
applicable to new or modified major stationary sources of air 
pollutants regulated under the Act. In areas not meeting health-based 
NAAQS and in ozone transport regions (OTR), the program is implemented 
under the requirements of part D of title I of the Act for 
``nonattainment'' NSR. In areas meeting NAAQS (``attainment'' areas) or 
for which there is insufficient information to determine whether they 
meet the NAAQS (``unclassifiable'' areas), the NSR requirements for the 
prevention of significant deterioration of air quality under part C of 
title I of the Act apply. The NSR regulations are contained in 40 CFR 
51.165, 51.166, 52.21, 52.24, and Appendix S of part 51.
    The Act, as implemented by our regulations, sets applicability 
thresholds for major sources in attainment areas (100 or 250 tons per 
year (tpy) depending on the source type) and nonattainment areas (100 
tpy or less, depending on the nonattainment classification). A new 
source with a potential to emit (PTE) at or above the applicable 
threshold amount ``triggers,'' or is subject to, major NSR. To 
determine whether a source is subject to a 100 or a 250 tpy threshold 
for purposes of determining whether it is a ``major emitting 
facility,'' section 169(1) of the Act contains a definition of major 
emitting facility.
    Title V of the CAA required EPA to promulgate regulations governing 
the establishment of operating permits programs. The current 
regulations are codified at 40 CFR parts 70 and 71. All major sources, 
as that term is defined for title V purposes, are required to obtain 
title V operating permits. Sources required to obtain title V permits 
also

[[Page 12242]]

include those sources subject to PSD and nonattainment NSR. Therefore, 
title V relies in part on the definition of major emitting facility for 
the PSD program and any change to this definition under this program 
could affect whether a source is required to obtain a title V permit.

A. What Is the History of the Term ``Major Emitting Facility''?

    On August 7, 1977, the President signed the Clean Air Act 
Amendments of 1977 (1977 Amendments) into law. Those amendments 
established, in Part C of Title I of the Clean Air Act (the Act or 
CAA), a set of requirements for the prevention of significant 
deterioration (PSD) of air quality in so-called ``clean air,'' or 
attainment, areas. See sections 160-69, 42 U.S.C. 7470-79. As part of 
these amendments, the major emitting facility definition in section 
169(1) was added to the CAA. The definition of major emitting facility 
as incorporated into section 169(1) of the 1977 Amendments reads as 
follows:

    The term ``major emitting facility'' means any of the following 
stationary sources of air pollutants which emit, or have the 
potential to emit,\1\ one hundred tons per year or more of any air 
pollutant from the following types of stationary sources: fossil-
fuel fired steam electric plants of more than two hundred and fifty 
million British thermal units per hour heat input, coal cleaning 
plants (thermal dryers), kraft pulp mills, Portland Cement plants, 
primary zinc smelters, iron and steel mill plants, primary aluminum 
ore reduction plants, primary copper smelters, municipal 
incinerators capable of charging more than two hundred and fifty 
tons of refuse per day, hydrofluoric, sulfuric, and nitric acid 
plants, petroleum refineries, lime plants, phosphate rock processing 
plants, coke oven batteries, sulfur recovery plants, carbon black 
plants (furnace process), primary lead smelters, fuel conversion 
plants, sintering plants, secondary metal production facilities, 
chemical process plants, fossil-fuel boilers of more than two 
hundred and fifty million British thermal units per hour heat input, 
petroleum storage and transfer facilities with a capacity exceeding 
three hundred thousand barrels, taconite ore processing facilities, 
glass fiber processing plants, charcoal production facilities. Such 
term also includes any other source with the potential to emit two 
hundred and fifty tons per year or more of any air pollutant. This 
term shall not include new or modified facilities which are 
nonprofit health or education institutions which have been exempted 
by the State.
---------------------------------------------------------------------------

    \1\ Under the PSD program, we define potential to emit (PTE) as 
the maximum capacity of a source to emit under its physical and 
operational design, taking into account any physical or operational 
limitations on the source that are enforceable as a practical 
matter. (See, for example, Sec.  52.21(b)(4) for the full definition 
of PTE.)

The source categories established in the above definition have wide 
applicability under the major New Source Review (NSR) and title V 
operating permits programs. Although the above definition includes a 
number of source categories, it is the history and definition of the 
chemical process plants source category that we will be examining 
relative to the production of ethanol by wet or dry corn milling (also 
known as wet or dry milling) in this proposal.

B. What Is the Basis for the Source Categories Listed in the Definition 
of ``Major Emitting Facility'' in Section 169(1) of the Act?

    Section 111 of the Act requires the Administrator of EPA to 
establish Federal standards of performance for new stationary sources 
which may significantly contribute to air pollution and was intended by 
Congress to complement the other air quality management approaches 
authorized by the 1970 Act. After enactment of section 111, EPA hired 
Research Corporation of New England (Research Corp.) to study 
stationary sources of air pollution in order to establish priorities 
for developing and promulgating New Source Performance Standards 
(NSPS). Because of limited resources, EPA could not feasibly set NSPS 
requirements for all categories of stationary sources simultaneously. 
Therefore, the goal of the Research Corp. study was to identify sources 
for which NSPS controls would have the greatest impact on reducing the 
quantity of atmospheric emissions. Research Corp. examined 
approximately 190 different types of stationary sources that 
potentially could be determined to be major emitting facilities, and 
provided information on the types of air pollutants that those sources 
emitted. The Research Corp. study was used by EPA in setting priorities 
for the order in which it would promulgate NSPS requirements for 
categories of stationary sources.
    The Research Corp. study was also relied on by Congress in 
identifying the 28 categories of stationary sources specifically listed 
in the definition of the term ``major emitting facility'' in section 
169(1) of the Act. 122 Cong. Rec. 24,520-23 (1976). As explained by 
Senator McClure in the Congressional Record, the EPA Administrator 
examined the data from the draft Research Corp. study and determined 
that 19 of the stationary source categories examined should initially 
be classified as major emitting facilities. Senator McClure further 
explained that the Senate Committee added nine more categories of 
stationary sources to the 19 selected by EPA for a total of 28 source 
categories. 122 Cong. Rec. at 24,521.\2\
---------------------------------------------------------------------------

    \2\ Although a draft of the Research Corp. study is referenced 
in the Congressional Record, the study entitled ``Impact of New 
Source Performance Standards on 1985 National Emissions from 
Stationary Sources'' was finalized in April, 1977 (EPA-450/3-76-
017).
---------------------------------------------------------------------------

    In discussing the specific sources identified in section 169(1), 
Senator McClure stated:

    Mr. President, I ask unanimous consent that an extract from that 
report of the Research Corp. of New England, listing the 190 types 
of sources, from which the EPA took 19, and the committee took 28, 
be printed in the Record at this point as an illustration of what 
the committee examined and the kinds of sources the committee 
intended to include and exclude, recognizing that it is neither 
exclusive nor invariable. There is administrative discretion to add 
to the list, to change the list. But the committee spoke very 
clearly on its intent on that question.

122 Cong. Rec. at 24,521 (1976). As a result of Senator McClure's 
action, the table from the draft Research Corp. report containing the 
list of 190 types of sources was printed in the Congressional Record.

C. How Was the Chemical Process Plants Source Category Addressed in the 
Research Corp. NSPS Study?

    The approximately 190 source categories identified in Research 
Corporation's report were further classified into ten general groups 
for purposes of the study--stationary combustion sources, chemical 
processing industries, food and agricultural industries, mineral 
products industries, metallurgical industries, and miscellaneous 
sources (evaporation losses, petroleum industry, wood products 
industry, and assembly plants).
    For the chemical process industry grouping, the Research Corp. 
study considered 24 different source categories and their associated 
pollutants. Notably, within the chemical process industry listings in 
the 1977 final report and in the 1976 draft report (as incorporated 
into the Congressional Record) there is no listing which refers to 
ethanol production, ethanol fuel production, or corn milling 
operations. Of course, it is worth noting that although the first U.S. 
ethanol fuel plant was built by the U.S. Army in the 1940's, few, if 
any, ethanol fuel production facilities existed in the mid to late 
1970's. Thus, at the time that Congress drafted section 169(1), for 
which it appears to have relied on the draft Research Corp. study 
developed for NSPS purposes, plants producing

[[Page 12243]]

ethanol were not listed among the types of facilities that fell within 
the category for chemical processing industries.

D. How Have Ethanol Production Facilities Been Considered Under the PSD 
Program?

    In addition to the term ``major emitting facility'' addressing 
sources within specified source categories which emit, or have the 
potential to emit, 100 tons per year or more of any air pollutant, this 
term also establishes a potential to emit threshold of 250 tons per 
year or more of any air pollutant for sources which fall outside of the 
source categories specified in section 169(1) of the Act. Thus, for new 
sources which are locating in attainment areas, the applicable major 
source threshold under the PSD program will be either 100 tons per year 
for sources in one of the source categories specifically listed in 
section 169(1), or 250 tons per year for all other sources. For new 
sources located in nonattainment areas, the applicable thresholds for 
the nonattainment pollutants will depend on the nonattainment area's 
status. For operating sources in attainment areas, the relevant major 
source threshold under title V is 100 tons per year, but is lowered in 
nonattainment areas for the relevant pollutant.
    In its August 7, 1980, rulemaking, EPA decided to use the 2-digit 
``Major Group'' listings as defined by the SIC manual of 1972 (as 
amended in 1977) \3\ as its basis for defining a source under PSD and 
nonattainment NSR. Thus, to determine which source category a source 
belongs to, and therefore what major source thresholds apply, EPA 
determines which 2-digit ``Major Group'' code applies to the source. 
These classifications are based on the source's primary activity, which 
is determined by the source's principal product(s)--either produced or 
distributed--or services rendered. (August 7, 1980, 45 FR 52676, 
52694).
---------------------------------------------------------------------------

    \3\ The version of the SIC code manual that is used for purposes 
of classifying sources under the title V operating permits is the 
1987 SIC Manual. See, e.g., the definition of ``Major Source'' in 40 
CFR 70.2. However, there are no differences between these manuals in 
terms of how wet corn milling facilities and facilities which 
produce ``ethanol, industrial'' or ``ethyl alcohol, industrial 
(nonbeverage)'' are classified.
---------------------------------------------------------------------------

    It is important to note that the Standard Industrial Classification 
(SIC) manual was not designed for regulatory application, but was 
developed primarily for the collection of economic statistics and for 
the consistent comparison of economic data between various sectors of 
the U.S. economy. The use of SIC codes by EPA is also not required by 
the Act or even mentioned in the Act. As explained above, EPA chose to 
use SIC codes to define sources, including sources within the 28 listed 
source categories. EPA's regulatory use of SIC codes does not have to 
follow the exact approach taken by the SIC manual. While it may be 
appropriate for economic statistical purposes to place ethanol fuel and 
ethanol fit for human consumption in different categories (``Major 
Groups'' 28 and 20 respectively), this does not limit EPA's discretion 
to treat both types of ethanol in the same manner for regulatory 
purposes.
Ethanol Production Facilities
    In the U.S., ethanol (ethyl alcohol) is currently being produced 
either synthetically or through the fermentation of sugars derived from 
agricultural feedstocks. For ethanol produced synthetically, either 
ethylene or hydrogen (H2) and carbon monoxide (CO) are used 
as the feedstock. As of 2002, only two facilities in the U.S. were 
producing synthetic ethanol. (Memorandum from Mary Lalley, Easter 
Research Group, Inc., to Bob Rosensteel, U.S. EPA, July 2, 2002.)
    The majority of ethanol produced in the U.S. is produced from sugar 
or starch-based feedstock (e.g., corn, millet, beverage waste) using 
two basic processes: the dry mill process and the wet mill process. The 
key difference between these two processes is the initial treatment of 
the grain. In the wet mill process, the grain is soaked and then ground 
to remove germ, fiber, and gluten from the starch prior to cooking. In 
the dry mill process, the grain or feedstock is not separated into its 
constituent parts prior to cooking.
    Both wet and dry milling operations produce ethanol as well as 
other co-products. ``Co-products from the dry mill process, separated 
from the ethanol in the distillation step, include distiller's dried 
grain (DDG) and solubles (S), which are often combined and referred to 
as DDGS. DDGS is used as an animal feed. In the wet mill process, co-
products are separated from the ethanol production process in the 
initial grinding or milling step. Co-products from the wet milling 
process include fiber and gluten, which are used for animal feed and 
corn oil.'' (Memorandum from Mary Lalley, July 2, 2002).
    Most new ethanol production capacity comes from dry mill processing 
facilities (R.W. Beck, Inc., Renewable Energy Bulletin, Special 
Projects). Wet milling operations, on the other hand, can produce 
ethanol, including ethanol for fuel, but are typically primarily 
engaged in producing starch, syrup, oil, sugar, and by-products, such 
as gluten feed and meal. For ethanol which will be used as fuel, toxic 
solvents (typically gasoline) are added to the ethanol to render it 
unfit for human consumption (denatured). This additional step is 
required to develop ethanol fuel regardless of whether the dry or wet 
mill process was employed to develop the initially potable ethanol. It 
is EPA's understanding that whether the wet or dry milling process is 
used, the process for making ethanol for food products, and that for 
making ethanol for fuel, is essentially the same up until the step at 
which gasoline or other toxic solvents are added in the process for 
using ethanol for making fuel.
    As noted above, one of the source categories in the list of 28 
source categories included in the ``major emitting facility'' 
definition (and in the NSR and title V regulations) is chemical process 
plants.\4\ The major group SIC code (2-digit SIC code) in which 
chemical process plants falls is major group 28--``Chemicals and Allied 
Products.'' The 4-digit SIC code which is directly applicable to the 
production of ethanol for fuel is SIC code 2869--``Industrial Organic 
Chemicals, Not Elsewhere Classified.'' ``Ethanol, industrial'' and 
``Ethyl alcohol, industrial (nonbeverage)'' are both listed in the SIC 
Manual as a specific product within this 4-digit category.
---------------------------------------------------------------------------

    \4\ It is important to note that although this document refers 
to the list of 28 source categories, you will actually see a list of 
27 categories when you review the NSR and Title V regulations. This 
is because when the list was first promulgated on August 7, 1980 (45 
FR 52676), the hydrofluoric, sulfuric, and nitric acid plants were 
listed as one category and an additional category (the 27th 
category) was added to address sources regulated by section 111 or 
112 standards as of August 7, 1980.
---------------------------------------------------------------------------

    In addition to the specific references in the SIC Manual relative 
to ethanol production, EPA also specifically addressed this issue in an 
internal EPA memorandum dated March 31, 1981, from Edward Reich, 
Director, Division of Stationary Source Enforcement, Office of 
Enforcement to the Directors, Air and Hazardous Materials Divisions, 
Regions I-X, and the Directors, Enforcement Divisions, Regions I-X. In 
this memo, Mr. Reich states the following:

    This is to clarify the proper classification for ethanol fuel 
plants for purposes of PSD applicability. The Agency regards any 
source listed under major Group 28 of the Standard Industrial 
Classification (SIC) manual as a chemical process plant. Ethanol 
fuel is listed under SIC Group 286: Industrial Organic Chemicals. 
Ethanol fuel plants should therefore be considered a chemical 
process

[[Page 12244]]

plant subject to the 100 tons per year threshold for PSD review.

Given that ethanol fuel production is specifically listed under the 2-
digit ``Major Group'' SIC code of 28 in the SIC manual and given the 
above-noted memo, EPA has historically required production facilities 
or units which produce ethanol fuel to be classified as chemical 
process plants (regardless of whether they are wet or dry corn mills); 
such facilities are therefore subject to the 100 tons per year 
threshold under PSD.
    Wet milling operations are specifically addressed under SIC Code 
2046 (``Wet Corn Milling'') in the SIC Manual. Although the SIC Manual 
lists this category as ``Wet Corn Milling'' the description for this 4-
digit category specifically notes that this category applies to 
establishments primarily engaged in milling corn or sorghum grain 
(milo) by the wet process. The relevant Major Group for ``Wet Corn 
Milling'' is ``Major Group'' 20--``Food and Kindred Products.'' 
Accordingly, units at wet corn milling operations engaged in producing 
the food products noted in the SIC Manual are classified under ``Major 
Group'' 20. Since they do not fall within one of the 28 categories of 
industrial sources listed in section 169(1) of the Act and in the PSD 
regulations, wet corn milling units primarily engaged in producing food 
products are subject to the 250 tons per year threshold under PSD.
    As discussed above, both wet and dry corn milling processes can 
produce ethyl alcohol for human consumption. Our understanding is that 
the processes in these facilities are identical to a facility which 
produces ethyl alcohol for fuel with the exception of an additional 
step in which a toxic solvent is added to the ethyl alcohol to render 
it unfit for human consumption.
    Some industry stakeholders believe that it is unfair for EPA and 
States to have applied two different thresholds, i.e., a 100 tons per 
year threshold for ethanol fuel production and a 250 tons per year 
threshold for ethanol intended for human consumption, especially since 
the processes are the same except for the additional step of adding 
toxic solvents to the ethyl alcohol. Some stakeholders have mentioned 
to EPA that this permitting practice is not consistent. EPA requests 
information on (1) whether the corn milling processes for making 
ethanol for fuel and ethanol for food are essentially the same up until 
the step at which gasoline or another toxic solvent is added to the 
ethanol intended for fuel; (2) what steps, if any, take place beyond 
the step at which gasoline or another toxic solvent is added to the 
ethanol intended for fuel; (3) what steps in the ethanol intended for 
food (e.g., beverage) process are different from the ethanol for fuel 
process; (4) whether the technology used to manufacture the ethanol 
fuel and ethanol for food is the same technology; and (5) how the corn 
milling process for producing industrial ethanol varies from the corn 
milling processes used to produce ethanol fuel or ethanol fit for human 
consumption. Finally, we also request information on how EPA and States 
have permitted corn mills that produce ethanol for fuel, ethanol for 
food, and industrial ethanol.

III. Today's Proposed Rule

A. What Is Being Proposed?

    Today we are taking comment on two options that EPA is considering 
with respect to the treatment of wet and dry corn mills that produce 
either ethanol for fuel or ethanol for food under the ``major emitting 
facility'' thresholds. Under the first option, EPA proposes to redefine 
chemical process plants under the definition of ``major emitting 
facility'' found in section 169(1) of the Act to exclude wet and dry 
corn milling facilities which produce ethanol fuel. Under the second 
option, we would continue to include wet and dry corn milling 
facilities that produce ethanol fuel within the definition of chemical 
process plants and within the definition of ``major emitting facility'' 
found in section 169(1). EPA's preferred option is Option 1. If EPA 
selects Option 1, we would base this proposal on several factors: (1) 
EPA's discretion to define chemical process plants to exclude wet and 
dry corn milling facilities; and (2) the desire to treat wet and dry 
corn milling facilities in the same manner under the PSD, nonattainment 
NSR, and title V permits programs due to the similar processes that are 
employed by these facilities regardless of whether ethanol fuel or 
potable ethanol is being produced.
    The PSD and nonattainment NSR regulations that we are proposing to 
amend today if we select option 1 are found in 40 CFR 51.165, 51.166, 
52.21, and 52.24. We are not proposing to amend Appendix S of part 51 
in today's action. The title V regulations that we are proposing to 
amend today are found in 40 CFR parts 70 and 71.
    In this proposal, we are soliciting comment on whether wet and dry 
corn milling facilities that produce ethanol for fuel should continue 
to be considered a part of the chemical process plants source category. 
In addition, we are also soliciting comment on whether other types of 
facilities which produce ethanol fuel, such as those using cellulosic 
biomass feedstocks, e.g., solid waste, agricultural wastes, wood, and 
grasses, should also be considered for exclusion from the chemical 
process plants definition due to having production processes similar to 
those found at wet and dry milling facilities in cases where potable 
ethanol or ethanol fuel is being produced. We request information, 
including process flow diagrams, on the processes used to develop 
ethanol fuel using the above-noted feedstocks.

B. What Additional Changes Are Being Proposed for Wet and Dry Corn 
Milling Facilities?

    Two of the regulatory changes being proposed today address the 
major source threshold for PSD sources, i.e., 40 CFR 51.166(b)(1)(i)(a) 
and 52.21(b)(1)(i)(a). The remaining proposed regulatory changes 
address when fugitive emissions are counted for purposes of determining 
whether a source is a major source under the PSD, nonattainment NSR, or 
title V programs.
    Section 302(j) of the Act states:

    Except as otherwise expressly provided, the terms ``major 
stationary source'' and ``major emitting facility'' mean any 
stationary facility or source of air pollutants which directly 
emits, or has the potential to emit, one hundred tons per year or 
more of any air pollutant (including any major emitting facility or 
source of fugitive emissions of any such pollutant, as determined by 
rule by the Administrator).

    When the list of source categories relative to the definition of 
``major emitting facility'' was first promulgated in the NSR 
regulations on August 7, 1980 (45 FR 52676), this same list was 
promulgated in the NSR regulations for determining from which source 
categories fugitive emissions were to be counted in determining whether 
a source was a major source. These 28 source categories were 
promulgated as a result of the decision in Alabama Power v. Costle, 626 
F. 2d. 323 (D.C. Cir. 1979). In Alabama Power, the court held that 
``fugitive emissions are to be included in determining whether a source 
or modification is major only if and when EPA issues an appropriate 
legislative rule.'' EPA conducted rulemaking by which it identified the 
28 source categories for which fugitive emissions would be counted in 
determining whether a source is a major source. We also identified the 
two criteria by which we would decide whether a source's fugitive 
emissions would be included in major source determinations: (1) Sources 
in the category could degrade air quality significantly, and (2) there

[[Page 12245]]

were no unreasonable costs compared to benefits associated with listing 
the category. See 49 FR 43203 (1984).
    However, as to the 28 initial source categories listed under 
section 302(j), EPA provided no discussion of the types of sources 
within the 28 source categories, nor any specific analyses associated 
with the development of this list, when the list was proposed (1979) 
and then promulgated (1980). Thus, the term ``chemical process plants'' 
was included in the list developed under section 302(j) of source 
categories whose fugitive emissions would be counted in a determination 
of whether it is a major source, even though no specific analysis was 
done as to that source category. Furthermore, EPA also did not perform 
any analysis of the specific types of plants that may have fallen 
within the category of ``chemical process plants.''
    Thus, pursuant to section 302(j) of the Act, EPA by rulemaking 
listed categories of sources from which fugitive emissions shall be 
included for purposes of determining whether a source is a ``major 
stationary source.'' One of the categories of sources on that list is 
chemical process plants. If we adopt Option 1, we are not proposing to 
change the list of categories that we developed by rule under 302(j). 
However, we are proposing to change the definition of chemical process 
plants to exclude wet and dry corn milling facilities. Since we are not 
changing the list of source categories that we listed under section 
302(j), but merely redefining one of those listed categories, we do not 
believe that it is now necessary to conduct a rulemaking which meets 
the requirements of 302(j) of the Act in order to redefine when we 
count fugitive emissions relative to chemical process plants. We 
solicit comment, however, on whether it is appropriate to define 
chemical process plants to exclude wet and dry corn milling facilities 
for the purpose of determining when fugitives are to be counted in 
major source determinations under PSD, nonattainment NSR, and title V 
without specifically addressing the requirements associated with a 
302(j) rulemaking.
1. EPA's Discretion To Modify Its Approach if We Adopt Option 1
    As explained previously (See ``II. Background''), we have no 
knowledge that ethanol production facilities, ethanol fuel production 
facilities, or corn milling facilities were specifically considered by 
Congress when major emitting facilities as specified in section 169(1) 
of the Act were being defined. We do know, however, that none of these 
facilities were specifically listed within the chemical process plants 
source category in either the draft report (as incorporated into the 
Congressional Record) or in the final Research Corp. report entitled 
``Impact of New Source Performance Standards on 1985 National Emissions 
from Stationary Sources.'' (See 122 Cong. Rec. 24,520-23 (1976)). This 
report by EPA's contractor (Research Corp.) appears to be a significant 
source upon which Congress relied when it drafted section 169(1) and, 
more specifically, when it developed the list of identified source 
categories in this statutory provision. Therefore Congress, when it 
enacted section 169(1), appears not to have expressed its intent as to 
whether ethanol production facilities, ethanol fuel production 
facilities, or corn milling facilities should be considered within the 
``chemical process plants'' source category.
    As explained previously, in its August 7, 1980, rulemaking, EPA 
decided, in the exercise of its discretion and in the absence of an 
expression of Congressional intent on the issue, to use the 2-digit 
``Major Group'' listings as defined by the SIC manual of 1972 (as 
amended in 1977) as its basis for defining a source. Using this 
approach to define a source, a facility producing ethanol fuel would be 
classified under ``Major Group 28--Chemicals and Allied Products'' 
given that ``Ethanol, industrial'' and ``Ethyl alcohol, industrial 
(nonbeverage)'' are two specific products under the more specific 4-
digit SIC code of ``Industrial Organic Chemicals, Not Elsewhere 
Classified.''
    Although EPA's policy, as defined in its March 31, 1981, memorandum 
above, has been to define wet and dry corn milling facilities which 
produce ethanol fuel as being within Major Group 28, EPA has the 
discretion to modify its classification of these facilities through 
notice and comment rulemaking. Congress did not indicate an intent, 
either in the statutory provision, or in the legislative history, to 
define ethanol fuel production facilities or wet and dry corn milling 
facilities as being within the chemical process plants source category, 
nor did Congress assign such facilities to any particular 2-digit 
``Major Group'' within the SIC system. Given this absence of 
Congressional intent on the issue, EPA has the discretion to promulgate 
reasonable regulations on the appropriate treatment of plants that 
manufacture ethanol for fuel under section 169(1) of the CAA and under 
the PSD, nonattainment NSR, and title V programs.
    EPA's discretion to modify its approach given that Congress has not 
spoken directly to how wet and dry corn mills are to be classified is 
allowed by the Chevron decision (Chevron U.S.A., Inc. v. Natural Res. 
Def. Council, 467 U.S. 837 (1984)). This decision was recently 
explained in New York v. EPA, 413 F.3d 3, 18 (D.C. Cir. 2005) as 
follows:

    As to EPA's interpretation of the CAA, we proceed under 
Chevron's familiar two-step process. See 467 U.S. at 842-43. In the 
first step (``Chevron Step 1''), we determine whether based on the 
Act's language, legislative history, structure, and purpose, 
``Congress has directly spoken to the precise question at issue.'' 
Id. at 842. If so, EPA must obey. But if Congress's intent is 
ambiguous, we proceed to the second step (``Chevron Step 2'') and 
consider ``whether the agency's [interpretation] is based on a 
permissible construction of the statute.'' Id. at 843. If so, we 
will give that interpretation ``controlling weight unless [it is] 
arbitrary, capricious, or manifestly contrary to the statute.'' Id. 
at 844.

As a result, although it remains EPA's policy to classify sources under 
the PSD, nonattainment NSR, and title V programs using the 2-digit 
``Major Group'' classification system as defined by the SIC manual, EPA 
is proposing to depart from this approach in classifying wet and dry 
corn mills. As summarized above, EPA has the discretion to modify its 
approach to classifying sources as appropriate through notice and 
comment rulemaking if it meets the criteria outlined in Chevron.
2. Similar Treatment of Wet and Dry Corn Milling Facilities Regardless 
of the Product Produced
    Within this rulemaking, the two basic processes that are discussed 
for producing ethanol fuel are the wet mill and dry mill process. Both 
of these processes result in fermentation ethanol as opposed to 
synthetic ethanol. As discussed above, the primary feedstock for 
fermentation ethanol is corn, millet, or beverage waste; for synthetic 
ethanol, it is ethylene or hydrogen (H2) and carbon monoxide 
(CO).
    As also discussed above, the key differences between the wet and 
dry mill processes is the initial treatment of the grain or feedstock. 
Additionally, in situations where ethanol fuel is being produced, 
whether as a result of the dry or wet milling process, a denaturing 
step is added to the process in order to make the ethanol unfit for 
human consumption. This denaturing step is a step in which a small 
amount of gasoline (2-5%) or other toxic solvents are added to the 
ethanol. This additional step is what causes the ethanol fuel 
production facility to be classified under ``Major Group'' 28 of

[[Page 12246]]

the SIC manual. If the gasoline or other toxic solvents were not added 
to the ethanol in this additional step, the facility would produce 
ethanol fit for human consumption and would be classified under ``Major 
Group'' 20--``Food and Kindred Products.'' In this latter 
classification, a facility would not be subject to the 100 tons per 
year threshold under the PSD regulations, but instead would be subject 
to the 250 tons per year threshold under these regulations. The Agency 
does not believe that the denaturing step makes an ethanol fuel 
production facility into a chemical process plant and therefore prefers 
to subject production facilities which produce ethanol fit for human 
consumption and those production facilities which produce ethanol fuel 
to the same major source threshold.
    As discussed in this section, if EPA adopts its preferred option, 
Option 1, EPA is proposing to depart from its practice of classifying 
ethanol fuel production facilities, which use the wet or dry milling 
process, as chemical process plants. EPA solicits comment on whether we 
should retain our current practice of classifying an ethanol fuel 
production facility, which uses the wet or dry milling process, as a 
chemical process plant, or if the Agency should adopt a different 
approach for classifying these facilities such as is discussed above. 
EPA also solicits comment on whether characteristics of the wet and dry 
milling processes for producing ethanol fuel are such that they are in 
important ways distinct from other sources that are included in the 
``chemical process plants'' source category.

B. What Are the Implications of Changing the Classification of 
Facilities Which Produce Ethanol Fuel as a Result of the Wet or Dry 
Milling Process?

    The obvious implication of changing the classification of 
facilities which produce ethanol fuel as a result of the wet or dry 
milling process to a classification other than chemical process plants 
is that this will allow these sources to expand production without 
triggering PSD permitting requirements, as a result of raising the 
applicable major source threshold from 100 tons per year to 250 tons 
per year. Many existing sources have taken PTE limits just below the 
100 tons per year threshold to avoid PSD. Such sources would be able to 
raise these limits to just below 250 tons per year if the proposed rule 
is finalized as proposed. Alternatively, even without raising the 
current 100 tons per year threshold, sources could expand production to 
some extent without triggering PSD, nonattainment NSR, or title V 
permitting requirements, because the calculation of actual and 
potential emissions would no longer need to include fugitive emissions 
at the facilities. This is because if the proposed rule is finalized as 
proposed, fugitive emissions would no longer be counted in determining 
whether the facility producing ethanol fuel as a result of the wet or 
dry milling process is a major source under these programs.\5\
---------------------------------------------------------------------------

    \5\ A wet or dry corn milling facility may be required to count 
its fugitive emissions to determine whether it is a major source 
regardless of whether today's proposal is finalized as proposed. 
This is because even if the facility isn't considered to be a part 
of the chemical process plants source category, one or more units 
within the facility may be considered to fall within another source 
category for which fugitive emissions are required to be counted.
---------------------------------------------------------------------------

    Moreover, such a change may have implications as to the use of the 
SIC Manual and SIC codes in the PSD, nonattainment NSR, and title V 
programs. This classification process is important and has implications 
in determining (1) what major source threshold under the PSD program is 
applicable to a source; (2) whether fugitive emissions from a source 
are considered in determining whether the source is subject to the PSD, 
nonattainment NSR, and title V programs; and (3) how a source is to be 
aggregated with other collocated sources at the site to determine 
whether a major source exists. The Agency does not believe, however, 
that this proposed change would have a significant impact on the use of 
the SIC codes for other source categories in the PSD, nonattainment 
NSR, and title V programs.
    Another implication of a classification change is that it would 
create a disparity in how facilities which produce ethanol fuel as a 
result of the dry or wet milling process are considered under the NSR 
and title V programs versus how other ethanol fuel producers are 
considered under these programs. However, currently, ethanol fuel from 
corn milling accounts for the vast majority of ethanol fuel production 
from agricultural feedstocks.
    A number of existing dry mills and wet mills which produce ethanol 
fuel have installed emission controls and have synthetic minor permits 
that limit plant-wide emissions to less than 100 tons per year. 
Changing the facility classification such that the major source 
threshold would be 250 tons per year could allow these sources to 
increase their emissions by more than 149 tons and still remain minor 
sources. EPA is seeking comment on the potential environmental effects 
of increasing the major source threshold from 100 tons per year to 250 
tons per year, and eliminating the requirement to count fugitive 
emissions in these threshold determinations, for ethanol fuel 
facilities which have been proposed for construction and which will 
employ the wet or dry milling process.

C. What Are the Implications of Not Changing the Classification for 
Facilities Which Produce Ethanol Fuel as a Result of the Dry or Wet 
Milling Process?

    If the classification for facilities which produce ethanol fuel as 
a result of the dry or wet milling process is not changed to a 
classification other than chemical process plants, then these 
facilities will continue to be subject to the 100 tons per year 
threshold under the PSD program and will be required to continue 
counting their fugitive emissions in determining whether they are 
subject to PSD or nonattainment NSR (whichever program is applicable) 
and title V. This could potentially stymie the growth of the ethanol 
production industry which, in turn, could lead to reduced energy 
diversification and independence in this country. Industry information 
shows that these facilities have experienced robust growth in recent 
years, even though they were subject to the major source threshold of 
100 tons per year and the requirement to count fugitive emissions in 
their major source determinations. However, it is unclear whether this 
growth would have been greater without the current 100 tons per year 
threshold.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency 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 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;

[[Page 12247]]

    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it is determined 
that this rule is a ``significant regulatory action'' because it raises 
policy issues arising from the President's priorities. The 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 new information collection burden. 
We are not promulgating any new paperwork requirements (e.g., 
monitoring, reporting, recordkeeping) as part of today's proposed 
action. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing regulations (40 CFR parts 51 and 52) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and 
has assigned OMB control number 2060-0003, EPA ICR number 1230.17. A 
copy of the OMB approved Information Collection Request (ICR) EPA ICR 
number 1230.17 may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Avenue, NW., Washington, DC 20460 or by calling (202) 566-
1672.
    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 Analysis (RFA)

    The 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 statue 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 action on small 
entities, a small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards (see 13 CFR 121.201); (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; or (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    After considering the economic impacts of 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. 
This proposed rule will not impose any requirements on small entities. 
We are only requesting public comment on whether or not corn milling 
facilities should be subject to the same major source threshold 
regardless of whether they produce ethanol fuel or ethanol fit for 
human consumption. We continue to be interested in the potential 
impacts of the proposed rule 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 as to 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. Today's rule contains no Federal mandates 
(under the regulatory provisions of Title II of the UMRA) for State, 
local, or tribal governments or the private sector.
    Thus, today's rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

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'' 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.''
    This proposal rule 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 13175. Thus, Executive Order 13175 does 
not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA

[[Page 12248]]

and State and local governments, EPA is soliciting comment on today's 
proposal 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 13175, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. There 
are no Tribal authorities currently issuing major NSR and title V 
permits. Thus, Executive Order 13175 does not apply to this rule.
    Although Executive Order 13175 does not apply to this proposed 
rule, EPA specifically solicits comment on this proposed rule from 
tribal officials.

G. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (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.
    Today's action is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. Today's proposed action is not 
expected to present a disproportionate environmental health or safety 
risk for children.

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

    Today's action is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical.
    Voluntary consensus standards are technical standards (for example, 
materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    Today's action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

List of Subjects

40 CFR Parts 51 and 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

40 CFR Part 70

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

40 CFR Part 71

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

    Dated: February 28, 2006.
Stephen L. Johnson,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401, et seq.

Subpart I--[Amended]

    2. Section 51.165 is amended by revising paragraphs 
(a)(1)(iv)(C)(20) and (a)(4)(xx) to read as follows:


Sec.  51.165  Permit requirements.

    (a) * * *
    (1) * * *
    (iv) * * *
    (C) * * *
    (20) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    (4) * * *
    (xx) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    3. Section 51.166 is amended by revising paragraphs (b)(1)(i)(a), 
(b)(1)(iii)(t), and (i)(1)(ii)(t) to read as follows:


Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (b) Definitions. * * *
    (1)(i) Major stationary source means:
    (a) Any of the following stationary sources of air pollutants which 
emits, or has the potential to emit, 100 tons per year or more of any 
regulated NSR pollutant: Fossil fuel-fired steam electric plants of 
more than 250 million British thermal units per hour heat input, coal 
cleaning plants (with thermal dryers), kraft pulp mills, portland 
cement plants, primary zinc smelters, iron and steel mill plants, 
primary aluminum ore reduction plants, primary copper smelters, 
municipal incinerators capable of charging more than 250 tons of refuse 
per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum 
refineries, lime plants, phosphate rock processing plants, coke oven 
batteries, sulfur recovery plants, carbon black plants (furnace 
process), primary lead smelters, fuel conversion plants, sintering 
plants, secondary metal production plants, chemical process plants 
(which does not include wet and dry corn milling facilities which 
produce ethanol fuel), fossil-fuel boilers (or combinations thereof) 
totaling more than 250 million British thermal units per hour heat 
input, petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels, taconite ore processing plants, 
glass fiber processing plants, and charcoal production plants;
* * * * *

[[Page 12249]]

    (iii) * * *
    (t) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    (i) Exemptions.
    (1) * * *
    (ii) * * *
    (t) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *

PART 52--[AMENDED]

    4. The authority citation for part 52 continues to read as follows:

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

Subpart A--[Amended]

    5. Section 52.21 is amended by revising paragraphs (b)(1)(i)(a), 
(b)(1)(iii)(t), and (i)(1)(vii)(t) to read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (b) Definitions. * * *
    (1)(i) Major stationary source means:
    (a) Any of the following stationary sources of air pollutants which 
emits, or has the potential to emit, 100 tons per year or more of any 
regulated NSR pollutant: Fossil fuel-fired steam electric plants of 
more than 250 million British thermal units per hour heat input, coal 
cleaning plants (with thermal dryers), kraft pulp mills, portland 
cement plants, primary zinc smelters, iron and steel mill plants, 
primary aluminum ore reduction plants, primary copper smelters, 
municipal incinerators capable of charging more than 250 tons of refuse 
per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum 
refineries, lime plants, phosphate rock processing plants, coke oven 
batteries, sulfur recovery plants, carbon black plants (furnace 
process), primary lead smelters, fuel conversion plants, sintering 
plants, secondary metal production plants, chemical process plants 
(which does not include wet and dry corn milling facilities which 
produce ethanol fuel), fossil-fuel boilers (or combinations thereof) 
totaling more than 250 million British thermal units per hour heat 
input, petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels, taconite ore processing plants, 
glass fiber processing plants, and charcoal production plants;
* * * * *
    (iii) * * *
    (t) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    (i) Exemptions.
    (1) * * *
    (vii) * * *
    (t) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    6. Section 52.24 is amended by revising paragraphs (f)(4)(iii)(t) 
and (h)(20) to read as follows:


Sec.  52.24  Statutory restrictions on new sources.

* * * * *
    (f) * * *
    (4) * * *
    (iii) * * *
    (t) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
    (h) * * *
    (20) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *

PART 70--[AMENDED]

    7. The authority citation for part 70 continues to read as follows:

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

    8. Section 70.2 is amended by revising paragraph (2)(xx) of the 
definition of Major source to read as follows:


Sec.  70.2  Definitions.

* * * * *
    Major source * * *
    (2) * * *
    (xx) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *

PART 71--[AMENDED]

    9. The authority citation for part 71 continues to read as follows:

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

Subpart A--[Amended]

    10. Section 71.2 is amended by revising paragraph (2)(xx) of the 
definition of Major source to read as follows:


Sec.  71.2  Definitions.

* * * * *
    Major source * * *
    (2) * * *
    (xx) Chemical process plants--which does not include wet and dry 
corn milling facilities which produce ethanol fuel;
* * * * *
[FR Doc. 06-2148 Filed 3-8-06; 8:45 am]
BILLING CODE 6560-50-P