[Federal Register Volume 72, Number 74 (Wednesday, April 18, 2007)]
[Rules and Regulations]
[Pages 19385-19387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7362]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63 and 65

[EPA-HQ-OAR-2004-0094; FRL-8301-2]
RIN 2060-AO40


National Emission Standards for Hazardous Air Pollutants: General 
Provisions: Notice of Decision Denying Petition for Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision denying petition for reconsideration.

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SUMMARY: On April 20, 2006, EPA published final rules entitled, 
``National Emission Standards for Hazardous Air Pollutants: General 
Provisions.'' Following that final action, the Administrator received a 
petition for reconsideration from Coalition for a Safe Environment 
(CFASE). CFASE's petition for reconsideration can be found in the 
rulemaking docket under Docket ID No. EPA-HQ-OAR-2004-0094. After 
carefully considering the petition and information in the rulemaking 
docket, EPA is denying CFASE's petition for reconsideration.

ADDRESSES: The docket for EPA's denial of CFASE's petition for 
reconsideration is Docket ID No. EPA-HQ-OAR-2004-0094. All documents in 
the docket are listed on the www.regulations.gov Web site. Although 
listed in the index, some information may not be publicly available, 
i.e., confidential business information 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 through 
www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID 
No. EPA-HQ-OAR-2004-0094, EPA West, Room 3334, 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.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, U.S. EPA Office of 
Air Quality Planning and Standards, Sector Policies and Programs 
Division, Program Design Group (D205-02), Research Triangle Park, NC 
27711; telephone number (919) 541-5262; fax number (919) 541-5600; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

    In addition to being available in the docket, an electronic copy of 
today's notice of EPA's decision denying CFASE's petition for 
reconsideration will also be available on the WWW through the 
Technology Transfer Network (TTN). Following signature, a copy of this 
notice will be posted on the TTN's policy and guidance page for newly 
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides 
information and technology exchange in various areas of air pollution 
control.
    Outline. The information presented in this preamble is organized as 
follows:

I. General Information
II. Background Information
III. Basis for Denial of Reconsideration

II. Background Information

    On April 20, 2006, EPA issued certain amendments to the 40 CFR 
parts 63 and 65 startup, shutdown, and malfunction (SSM) general 
provisions requirements affecting sources subject to the National 
Emission Standards for Hazardous Air Pollutants (NESHAP). On June 19, 
2006, EarthJustice filed a petition for review challenging those 
amendments in the

[[Page 19386]]

United States Court of Appeals for the District for Columbia Circuit on 
behalf of Environmental Integrity Project, Friends of Hudson, Louisiana 
Environmental Action Network and Coalition for a Safe Environment 
(CFASE). On the same day, CFASE filed a petition for administrative 
reconsideration with EPA pursuant to section 307(d)(7)(B).
    CFASE appears to base its petition for reconsideration on a claim 
that it did not receive adequate notice of certain changes EPA made in 
the final rule to the SSM recordkeeping and reporting requirements. EPA 
made changes to the recordkeeping and reporting requirements in the 
final rule to address comments on the proposed rule submitted by 
EarthJustice and Environmental Integrity Project. In comments on the 
proposed rule, EarthJustice and Environmental Integrity Project 
asserted that the proposed rule's elimination of the requirement that a 
source implement an SSM plan renders the SSM rule's general duty to 
minimize emissions vague and unenforceable and violates the Clean Air 
Act (CAA) Title V requirement that permits contain enforceable limits 
and standards and conditions necessary to assure compliance. (Docket 
number EPA-HQ-OAR-2004-0094, items 29 through 32.)
    The General Provisions to 40 CFR part 63 require that ``at all 
times, including periods of startup, shutdown, and malfunction, the 
owner or operator must operate and maintain any affected source, 
including associated air pollution control equipment and monitoring 
equipment, in a manner consistent with safety and good air pollution 
control practices for minimizing emissions. During a period of startup, 
shutdown, or malfunction, this general duty to minimize emissions 
requires that the owner or operator reduce emissions from the affected 
source to the greatest extent which is consistent with safety and good 
air pollution control practices.'' \1\ In the proposed rule preamble, 
we explained that the reporting and recordkeeping requirements would 
allow the permitting authority and the public to determine compliance 
with the general duty clause. 70 FR at 43394 (July 29, 2005). However, 
in an effort to address the above-mentioned concerns raised by 
commenters, we reevaluated the recordkeeping and reporting requirements 
and made minor revisions to those requirements to clarify that the 
information required in SSM records and reports include a description 
of the ``actions taken'' at the facility during SSM events that involve 
an exceedance of the applicable standard.\2\ The final rule preamble 
explained the revisions as follows:
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    \1\ This petition denial describes the general duty to minimize 
emissions as it applies during SSM events and does not address the 
application of the general duty to minimize emissions at other 
times.
    \2\ EPA responded to the comments by revising 40 CFR 
63.10(d)(5)(i) and (ii) to require that a description of actions 
taken to minimize emissions be included in SSM reports whether or 
not the SSM plan was followed. EPA also revised the recordkeeping 
requirement at 40 CFR 63.10(b)(2)(v)(the requirement to keep a 
record of ``all information necessary to demonstrate conformance'' 
with the SSM plan when actions taken during SSM events are 
consistent with the SSM plan) to require that such records include 
all actions taken during the SSM event to minimize emissions. 70 FR 
at 20448.

    With these clarifications, any time there is an exceedance of an 
emission limit (or could have been in the case of malfunctions) and 
thus a possibility that the general duty requirement was violated, 
there will be a report filed that will describe what actions were 
taken to minimize emissions that will be available to the public.
    Any member of the public could use the information in these 
reports to evaluate whether adequate steps were taken to meet the 
general duty requirement. This information is likely to be of as 
much if not more use in determining compliance with the general duty 
requirement than a facility's general SSM plan because the 
information will be specific to the particular SSM event that caused 
the exceedance.

71 FR 20448 (April 20, 2006).
    In its petition, CFASE argues that EPA's reliance on the revised 
recordkeeping and reporting requirements to assure compliance with the 
general duty to minimize emissions is insufficient. CFASE further 
argues that the SSM rule violates the CAA section 504(a) requirement 
that title V permits contain ``conditions as are necessary to assure 
compliance'' with the general duty to minimize emissions and that 
reliance on reporting alone does not ``assure compliance.'' CFASE also 
asserts that a vague generalized requirement such as the general duty 
to minimize emissions must be supplemented with permit conditions 
sufficient to explain how the requirement applies specifically to the 
permitted facility.

III. Basis for Denial of Reconsideration

    EPA denies CFASE's petition for reconsideration. Section 
307(d)(7)(B) of the CAA requires EPA to convene a proceeding for 
reconsideration based on objections that were not raised during the 
public comment period only if ``it was impracticable to raise such 
objection within such time or if the grounds for such objection arose 
after the period for public comment * * * and if such objection is of 
central relevance to the outcome of the rule * * *''
    Petitioner has failed to establish that the objections raised are 
based on grounds that ``arose after the public comment period.'' As 
noted above, the preamble to the proposed rule clearly articulates 
EPA's reliance on recordkeeping and reporting to allow the permitting 
agency and the public to determine compliance with the general duty to 
minimize emissions. Specifically, the proposal provides:

    These periodic and immediate SSM reports provide the permitting 
authority with adequate information to determine if the facility has 
SSM problems above and beyond what might normally be expected. The 
types and frequency of SSM events will vary from source category to 
source category. Sources that report much higher number of SSM 
events than other sources within the same source category would be 
subject to higher scrutiny by the permitting authority, by EPA, and 
presumably by the public. Inspectors would examine the facility's 
records and its SSM plan to determine its adequacy and whether it 
conformed to the general duty clause. If not, the facility could be 
cited for violating the general duty clause and required to revise 
its plan to minimize emissions to the satisfaction of the permitting 
authority. As such, the reports identify potential problems that can 
be followed up with appropriate action.

70 FR at 43394.
    Nor were CFASE's objections to the recordkeeping and reporting 
requirements ``impracticable to raise'' during the public comment 
period. Indeed, the arguments raised by CFASE in its petition for 
reconsideration are merely a variation of the arguments raised in its 
comments on the proposal. The revisions to regulatory language made in 
the final rule were made by EPA in direct response to the comments of 
EarthJustice and Environmental Integrity project concerning 
enforceability of the general duty to minimize emissions.
    As explained in the preamble to the proposed and final rules (70 FR 
at 43994 and 71 FR at 20448-9), the recordkeeping and reporting 
requirements adequately assure compliance with the general duty to 
minimize emissions. As we explained in the preamble to the proposed 
rule, the general duty clause is the applicable requirement under MACT 
standards for emission reductions during periods of SSM and ``* * * is 
designed to recognize that technology-based standards may not always be 
met, as technology fails occasionally beyond the control of the owner 
or operator * * *. If standards cannot be met during a

[[Page 19387]]

period of SSM, then the owner or operator must take steps to minimize 
emissions to the extent practicable.'' 70 FR at 43993.
    The exception to technology-based emission standards during SSM 
events, which applies when a source cannot meet the technology-based 
standard using all practicable steps to minimize emissions that are 
consistent with safety and good air pollution control practices, is 
appropriate and may be necessary to preserve the reasonableness of the 
underlying MACT standards. Essex Chemical Corporation v. EPA, 486 F.2d. 
427, 432-33 (D.C. Cir 1973) (addressing exemption from New Source 
Performance Standards during SSM events); Portland Cement Association 
v. Ruckelshaus, 486 F.2d. 375, 398-99 (D.C. Cir. 1973) (same); Marathon 
Oil v. EPA, 564 F.2d. 1253, 1272-73 (9th Cir. 1977) (discussing need to 
provide upset defense for technology-based effluent limits to account 
for technology failure).
    As discussed above and in the preamble to the proposed and final 
rules, the general duty to minimize emissions is sufficiently specific 
(71 FR 20448-49), and the SSM recordkeeping and reporting requirements 
are sufficient to assure compliance with the general duty clause. We 
note that in the Title V context, EPA's regulations specifically 
provide that recordkeeping requirements can adequately assure 
compliance. In particular, 40 CFR 70.6(a)(3)(i), which implements the 
statutory requirement of section 504(a) of the CAA, specifies that 
periodic testing and monitoring to determine compliance with an 
applicable requirement ``may consist of recordkeeping designed to serve 
as monitoring.'' Moreover, 40 CFR 70.6(a)(3)(i)(b) (which requires 
title V permits to include monitoring and testing provisions when an 
underlying applicable requirement does not contain provisions) 
specifies that ``[r]ecordkeeping provisions may be sufficient to meet 
the requirements of this paragraph (a)(3)(i)(B).''

    Dated: April 12, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-7362 Filed 4-17-07; 8:45 am]
BILLING CODE 6560-50-P