[Federal Register Volume 72, Number 208 (Monday, October 29, 2007)]
[Rules and Regulations]
[Pages 61060-61063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5295]



40 CFR Part 63

[EPA-HQ-OAR-2003-0048; FRL-8482-2]
RIN 2060-AO65

National Emission Standards for Hazardous Air Pollutants: Plywood 
and Composite Wood Products

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: On June 19, 2007, the United States Court of Appeals for the 
District of Columbia Circuit (the Court) vacated EPA's provisions in 
the National Emission Standards for Hazardous Air Pollutants: Plywood 
and Composite Wood Products that established an October 1, 2008, 
compliance deadline and that created and delisted a low risk 
subcategory of plywood and composite wood products facilities. This 
action announces the Court's decision and promulgates ministerial 
amendments that will incorporate the Court's decision into the Code of 
Federal Regulations.

DATES: This rule was effective on October 29, 2007.

ADDRESSES: The EPA does not seek comment on this final rule. The 
opinion issued by the Court on June 19, 2007 and other information 
about the rule are contained in Docket ID No. OAR-2003-0048 and Legacy 
Docket ID No. A-98-44. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2003-
0048, EPA West Building, Room 3334, 1301 Constitution Avenue, 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: For information concerning 
applicability and compliance assistance, contact your State or local 
representative or appropriate EPA Regional Office representative. For 
other information, contact Ms. Mary Tom Kissell, Office of Air Quality 
Planning and Standards, Sector Policies and Program Division, Coatings 
and Chemicals Group (E143-01), EPA, Research Triangle Park, NC 27711; 
telephone number: (919) 541-4516; fax number: (919) 541-0246; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedure 
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause 
finds that notice and public procedure are impracticable, unnecessary 
or contrary to the public interest, the agency may issue a final rule 
without first providing notice and an opportunity for public comment on 
a proposed rule. There is good cause for making today's rule final 
without prior proposal and opportunity for comment because the Court 
vacated EPA's promulgation of the October 1, 2008, compliance date and 
of the low-risk provisions. The Court ruled that EPA was without 
statutory authority in our 2006 amendments to the national emission 
standards for hazardous air pollutants (NESHAP) to re-set the 
compliance date of October 1, 2007, first promulgated in the 2004 
NESHAP. The Court also ruled that EPA had no statutory authority to 
create and then delist the low-risk Plywood and Composite Wood Products 
(PCWP) subcategory.\1\ Therefore, today's action has no legal effect 
beyond ministerially fulfilling the Court's order and is clerical in 
nature: we are merely revising the Code of Federal Regulations to 
conform our rules to the Court's order and announcing the Court's 
decision. Thus, notice and public procedure are unnecessary.

    \1\ The Court also remanded and vacated EPA's determinations 
that certain process units at PCWP facilities need not be subject to 
emissions controls. EPA will respond to that portion of the Court's 
ruling in a separate notice and comment rulemaking, and is not 
addressing that issue in today's final rule.

    EPA finds that this constitutes good cause under 5 U.S.C. 
553(b)(B). Providing an opportunity to comment on a proposed conforming 
amendment would be impracticable because it would unacceptably delay 
EPA's action beyond the October 1, 2007, compliance deadline the Court 
ruled EPA must re-impose. It would also be unnecessary, since the 
Court's direction was clear that EPA must remove the 2006 NESHAP's 
amendment re-setting the deadline beyond October 1, 2007, and the 2004 
and 2006 provisions creating and delisting the low-risk PCWP 
subcategory was beyond EPA's statutory authority. Finally, it is not in 
the public

[[Page 61061]]

interest to delay revising the rule to conform to the Court's order on 
these issues, as continuing to leave the vacated provisions in place 
creates confusion among the regulated community, implementing States 
and local governments, and the general public.

Regulated Entities

    Categories and entities potentially affected by today's action 

                  Category                    SIC code \a\   NAICS code \b\     Examples of regulated entities
Industry...................................            2421          321999  Sawmills with lumber kilns.
                                                       2435          321211  Hardwood plywood and veneer plants.
                                                       2436          321212  Softwood plywood and veneer plants.
                                                       2493          321219  Reconstituted wood products plants
                                                                              (particleboard, medium density
                                                                              fiberboard, hardboard, fiberboard,
                                                                              and oriented strandboard plants).
                                                       2439          321213  Structural wood members, not
                                                                              elsewhere classified (engineered
                                                                              wood products plants).
\a\ Standard Industrial Classification.
\b\ North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by today's 
action. To determine whether your facility is affected by today's 
action, you should examine the applicability criteria in Sec.  63.2231 
of the final rule. If you have questions regarding the applicability of 
today's action to a particular entity, consult your State or local 
representative or the appropriate EPA Regional Office representative.

Worldwide Web (WWW)

    In addition to being available in the docket, an electronic copy of 
today's action also will be available on the Worldwide Web (WWW) 
through EPA's Technology Transfer Network (TTN). Following the 
Administrator's signature, a copy of this action 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.

I. Background

    We proposed NESHAP for the PCWP source category on January 9, 2003 
(68 FR 1276). The final rule (subpart DDDD in 40 CFR part 63) was 
published on July 30, 2004 (69 FR 45944). In addition to adopting 
maximum achievable control technology (MACT) standards for the PCWP 
category, we adopted a risk-based approach in the 2004 final rule by 
establishing and delisting a low-risk subcategory of PCWP affected 
sources, which would have allowed low-risk sources to avoid complying 
with MACT. Except for eight sources that we determined were already 
eligible to join the low-risk subcategory and avoid MACT, all PCWP 
sources were initially included in the category subject to MACT, and 
any would-be low-risk sources could subsequently join the low-risk 
subcategory after EPA approved their submitted low-risk demonstrations. 
The methodology and criteria for PCWP affected sources to use in 
demonstrating that they are eligible to join the delisted low-risk 
subcategory were promulgated in the 2004 final rule in appendix B to 
subpart DDDD of 40 CFR part 63. Any source who failed to obtain EPA 
approval of a low-risk demonstration would remain subject to MACT.
    Following promulgation of the 2004 final PCWP rule, the 
Administrator received a petition for reconsideration filed by the 
Natural Resources Defense Council (NRDC) and Environmental Integrity 
Project (EIP) pursuant to section 307(d)(7)(B) of the Clean Air Act 
(CAA). The petition requested reconsideration of nine aspects of the 
final rule including the legal basis for the risk-based provisions. The 
petition for reconsideration also requested a stay of the effectiveness 
of the risk-based provisions. In a letter dated December 6, 2004, EPA 
granted NRDC's and EIP's petition for reconsideration and declined the 
petitioners' request that we take action to stay the effectiveness of 
the risk-based provisions.
    On July 29, 2005 (70 FR 44012), we published a notice of 
reconsideration and requested comment on the issues in the petition for 
reconsideration, including the full content of appendix B to subpart 
DDDD. In a separate notice published on July 29, 2005 (70 FR 44012), we 
proposed amendments to subpart DDDD and both of the appendices to 
subpart DDDD including a request for comment on whether the MACT 
compliance date should be extended for sources submitting low-risk 
demonstrations or for all sources. On February 16, 2006, EPA 
promulgated amendments to the National Emission Standards for Hazardous 
Air Pollutants: Plywood and Composite Wood Products. In the 2006 final 
rule, we promulgated a revised compliance deadline of October 1, 2008, 
for sources subject to the rule, which was 1 year later than the date 
originally promulgated.
    Following promulgation of the 2004 final PCWP rule, four petitions 
for judicial review of the final PCWP rule were filed with the Court by 
NRDC and Sierra Club (No. 04-1323, D.C. Cir.), EIP (No. 04-1235, D.C. 
Cir.), Louisiana-Pacific Corporation (No. 04-1328, D.C. Cir.), and 
Norbord Incorporated (No. 04-1329, D.C. Cir.). The four cases were 
consolidated. The NRDC, Sierra Club, and EIP petitions for judicial 
review \2\ addressed three major concerns: (1) EPA's legal authority to 
create and delist a low-risk subcategory; (2) EPA's re-setting of the 
compliance date; and (3) EPA's failure to set emission standards for 
HAP from all emission points. In March 2007, before the Court decided 
the PCWP case, it ruled in Sierra Club, 479 F.3d 875, that ``EPA's 
failure to set floors for existing small tunnel brick kilns and new 
periodic brick kilns violated [the] CAA * * * noting that the court had 
held unlawful EPA's ``no control'' emissions floors for categories in 
which the best performers used no emission control technology.'' 
Subsequently, in April 2007, EPA requested a voluntary remand and 
vacatur of the 2004 final MACT determinations for PCWP emissions points 
that do not have emission limits (i.e., the ``no emission reduction'' 
MACT determinations also commonly known as ``no-control MACT floors'').

    \2\ The Louisiana-Pacific Corporation and Norbord Incorporated 
petition for judicial review did not result in any change to the 
PCWP NESHAP and is not discussed in this preamble.

    On June 19, 2007, the Court issued its opinion remanding and 
vacating EPA's no emission reduction MACT determinations, the low-risk 

[[Page 61062]]

and the October 1, 2008 compliance date.
    While today's rule implements the Court's order regarding the 
compliance date and low-risk subcategory provisions, EPA will 
separately reconsider the MACT determinations for the emission points 
for which EPA had previously determined MACT to be ``no emissions 
reduction,'' and publish our proposed responses to the Court's remand 
of those decisions in a separate notice.

II. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is, therefore, 
not subject to review by the Office of Management and Budget. Because 
the agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute (see the SUPPLEMENTARY INFORMATION 
section of this preamble), it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601, 
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of UMRA. This rule also does not significantly or uniquely affect 
the communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 6, 2000). This rule 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 (64 FR 43255, August 10, 1999). This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    This final rule does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule 
also does not involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994). In issuing this rule, EPA has taken the necessary 
steps to eliminate ambiguity as required by section 3 of Executive 
Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.). EPA's compliance with these statutes and Executive Orders for 
the underlying rule is discussed in the July 30, 2004 Federal Register 
    The Congressional Review Act (CRA) (5 U.S.C. 801, et seq.), as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore. EPA will submit a report containing this rule 
and other required information to the United States Senate, the United 
States House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects for 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous substances, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 

    Dated: October 18, 2007.
Stephen L. Johnson,

For the reasons stated in the preamble, title 40, chapter I, part 63 of 
the Code of Federal Regulations is amended as follows:


1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401.

Subpart A--[Amended]

2. Section 63.14 is amended by revising paragraphs (b)(54), (f)(3) and 
(f)(4) to read as follows:

Sec.  63.14  Incorporation by reference.

* * * * *
    (b) * * *
    (54) ASTM D6348-03, Standard Test Method for Determination of 
Gaseous Compounds by Extractive Direct Interface Fourier Transform 
Infrared (FTIR) Spectroscopy, incorporation by reference (IBR) approved 
for Table 4 to Subpart DDDD of this part as specified in the subpart.
* * * * *
    (f) * * *
* * * * *
    (3) NCASI Method IM/CAN/WP-99.02, Impinger/Canister Source Sampling 
Method for Selected HAPs and Other Compounds at Wood Products 
Facilities, January 2004, Methods Manual, NCASI, Research Triangle 
Park, NC, IBR approved for Table 4 to Subpart DDDD of this part.
    (4) NCASI Method ISS/FP A105.01, Impinger Source Sampling Method 
for Selected Aldehydes, Ketones, and Polar Compounds, December 2005, 
Methods Manual, NCASI, Research Triangle Park, NC, IBR approved for 
table 4 to subpart DDDD of this part.
* * * * *

Subpart DDDD--National Emission Standards for Hazardous Air 
Pollutants: Plywood and Composite Wood Products--[Amended]

3. Section 63.2231 is amended by revising the introductory paragraph to 
read as follows:

Sec.  63.2231  Does this subpart apply to me?

    This subpart applies to you if you meet the criteria in paragraphs 
(a) and (b) of this section.
* * * * *

4. Section 63.2233 is amended by revising paragraphs (b) and (c) to 
read as follows:

Sec.  63.2233  When do I have to comply with this subpart?

* * * * *
    (b) If you have an existing affected source, you must comply with 
the compliance options, operating requirements, and work practice 
requirements for existing sources no later than October 1, 2007.
    (c) If you have an area source that increases its emissions or its 
potential to emit such that it becomes a major source of HAP, you must 
be in compliance with this subpart by October 1, 2007 or

[[Page 61063]]

upon initial startup of your affected source as a major source, 
whichever is later.
* * * * *

5. Section 63.2291 is amended by revising paragraph (c) introductory 
text and removing paragraph (c)(5) to read as follows:

Sec.  63.2291  Who implements and enforces this subpart?

* * * * *
    (c) The authorities that will not be delegated to State, local, or 
tribal agencies are listed in paragraphs (c)(1) through (4) of this 
    (1) * * *
* * * * *

Appendices B and C--[Removed]

6. Appendices B and C to Subpart DDDD of part 63 are removed.

[FR Doc. 07-5295 Filed 10-26-07; 8:45 am]