[Federal Register Volume 73, Number 64 (Wednesday, April 2, 2008)]
[Proposed Rules]
[Pages 17940-17944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6816]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2002-0086, FRL-8549-9]
RIN 2060-AN80


National Emission Standards for Hazardous Air Pollutants for 
Semiconductor Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: On October 19, 2006, EPA proposed amendments to the National 
Emission Standards for Hazardous Air Pollutants for Semiconductor 
Manufacturing, published on May 22, 2003. The purpose of the proposed 
amendments was to clarify the emission requirements for process vents 
by establishing a new maximum achievable control technology floor level 
of control for existing combined hazardous air pollutants process vent 
streams containing inorganic and organic hazardous air pollutants and 
adding requirements for new and reconstructed combined hazardous air 
pollutants process vents. For existing combined hazardous air 
pollutants process vents, EPA had proposed that the floor was no 
control. In light of Sierra Club v. EPA, we are re-proposing the 
requirements for existing and new combined hazardous air pollutants 
process in this supplemental proposal.

DATES: Comments must be received by EPA on or before May 2, 2008, 
unless a public hearing is requested by April 14, 2008. If a hearing is 
requested, EPA will hold a public hearing on April 17, 2008. If a 
hearing is requested, written comments must be received by May 19, 
2008. If you are interested in attending the public hearing, contact 
Mr. John Schaefer at (919) 541-0296 to verify that a hearing will be 
held.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2002-0086, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected], Attention Docket ID No. 
EPA-HQ-OAR-2002-0086.
     Fax: (202) 566-9744
     Mail: U.S. Postal Service, send comments to: EPA Docket 
Center (2822T), Attention Docket ID No. EPA-HQ-OAR-2002-0086, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies.
    Hand Delivery: In person or by courier, deliver comments to: EPA 
Docket Center (2822T), Attention Docket ID No. EPA-HQ-OAR-2002-0086, 
EPA West Building, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20004. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information. Please include a total of two 
copies.
    Instructions. Direct your comments to Docket ID No. EPAHQ-OAR-2002-
0086. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
Send or deliver information identified as CBI to only the following 
address: Mr. Roberto Morales, OAQPS Document Control Officer, EPA 
(C404-02), Attention Docket ID No. EPA-HQ-OAR-2002-0086, Research 
Triangle Park, NC 27711. Clearly mark the part or all of the 
information that you claim to be CBI. The www.regulations.gov Web site 
is an ``anonymous access'' system, 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.
    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, e.g., CBI 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-2002-0086, EPA West Building, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center is (202) 566-1742. A reasonable fee may be charged for 
copying docket materials.

FOR FURTHER INFORMATION CONTACT: Mr. John Schaefer, EPA, Office of Air 
Quality Planning and Standards, Sector Policies and Programs Division, 
Measurement Policy Group (D243-05), Research Triangle Park, NC 27711; 
telephone number (919) 541-0296; fax number (919) 541-1039; e-mail 
address [email protected].

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Entities potentially affected by the proposed 
amendments to the National Emission Standards for Hazardous Air 
Pollutants for Semiconductor Manufacturing include:

[[Page 17941]]



                   Table 1.--Regulated Entities Table
------------------------------------------------------------------------
                                                  Examples of regulated
           Category                NAICS \1\            entities
------------------------------------------------------------------------
Industry......................          334413  Semiconductor crystal
                                                 growing facilities,
                                                 semiconductor wafer
                                                 fabrication facilities,
                                                 semiconductor test and
                                                 assembly facilities.
------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that may potentially be 
affected by this action. To determine whether your facility is 
regulated by this action, you should carefully examine the 
applicability criteria in 40 CFR 63.7181 of the rule. If you have 
questions regarding the applicability of the proposed amendments to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Send or deliver information identified 
as CBI only to the address listed in the ADDRESSES section of this 
document. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI information submitted on a disk or CD-ROM that 
you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then 
identify electronically within the disk or 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.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's proposal will also be available through 
the WWW. Following the Administrator's signature, a copy of this action 
will be posted on EPA's Technology Transfer Network (TTN) policy and 
guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg/. Information may also be obtained from the Web 
page for the proposed rulemaking at: http://www.epa.gov/ttn/atw/pcem/pcempg.html. The TTN at EPA's Web site provides information and 
technology exchange in various areas of air pollution control.
    Public Hearing. If a public hearing is held, it will be held at 10 
a.m. at the EPA's Environmental Research Center Auditorium, Research 
Triangle Park, NC, or at an alternate site nearby.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
II. Summary of the Proposed Amendments
III. Rationale for the Proposed Amendments
IV. Impacts of the Proposed Amendments
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health 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
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Background

    On May 22, 2003 (68 FR 27913), we issued the national emission 
standards for hazardous air pollutants (NESHAP) for semiconductor 
manufacturing (40 CFR part 63, subpart BBBBB). The NESHAP implement 
section 112(d) of the Clean Air Act (CAA) by requiring all major 
sources to meet emission standards for hazardous air pollutants (HAP) 
reflecting application of the maximum achievable control technology 
(MACT). The NESHAP establish emission limitations for emission sources 
at operations used to manufacture p-type and n-type semiconductors and 
active solid-state devices from a wafer substrate.
    After promulgation of the NESHAP, it was brought to our attention 
that while the NESHAP established separate emission standards for 
organic and inorganic HAP from process vents, there was one plant that 
has a different process vent approach system. Specifically, this plant 
combines inorganic and organic vent streams into a single atmospheric 
process vent. At the time we developed the MACT standard, we were not 
aware of any sources that combined their inorganic and organic vent 
streams, and, therefore, we had no data on such sources. Rather, during 
the development phase of the rule, we determined that since 1980 
industry practice has been to strictly separate process vent emissions 
into streams containing either organic or inorganic HAP (71 FR 61701, 
61702-03, October 19, 2006). In order to address the combined process 
vent stream segment of which we are now aware, on October 19, 2006, we 
proposed amending the final rule by establishing emission standards for 
existing and new combined process vent streams (71 FR 61701). For the 
limited number of existing combined process vents, we proposed no 
control. For new and reconstructed combined HAP process vents, we 
proposed the same requirements that currently apply to new inorganic 
HAP process vents and new organic HAP process vents (71 FR 61703).
    In light of the DC Circuit's decision in Sierra Club v. EPA, 479 
F.3d 875 (DC Circuit 2007), we are issuing this supplementary proposal 
to change the requirements for existing and new combined HAP process 
vents that we proposed in the October 2006 amendments. This 
supplementary proposal is limited to revising the emission standards 
for existing and new combined HAP process vents, and we are requesting 
comments only on these proposed changes.

II. Summary of the Proposed Amendments

    The October 2006 proposed amendments proposed no control 
requirements for existing combined HAP process vents. In addition, for 
new and reconstructed combined HAP process vents, we proposed the 
requirement for inorganic HAP components to be the same as the current 
requirement for inorganic HAP process vents and the requirement for 
organic HAP to be the same as the requirement for organic HAP process 
vents (71 FR 61703).
    These proposed amendments establish the following emission limit 
for HAP emitted from new and existing combined HAP process vents: 14.22 
parts per million by volume (ppmv).

[[Page 17942]]

III. Rationale for the Proposed Amendments

    In the October 2006 proposed amendments, we proposed the 
requirements for existing combined HAP process vents would be no 
reductions in emissions or no control. Subsequently, the DC Circuit in 
Sierra Club v. EPA, 479 F.3d 875 (DC Circuit 2007) found that EPA's 
decision to set no control emission floors for source categories where 
the best performing sources did not use emission control technology was 
in direct contravention of CAA section 112(d)(3). In response to this 
decision, we are proposing revised standards for existing and new 
combined HAP process vents in this supplementary proposal.
    Specifically, we are proposing that existing combined HAP process 
vents achieve a control level of 14.22 ppmv, which is the average level 
of emissions control achieved by the best performing four combined HAP 
process vents that we are aware of at maximum representative operating 
conditions. We are basing the MACT floor on four combined HAP process 
vents because we only identified four such vents in our recent 
assessment of the semiconductor industry. This level of control 
represents the level actually achieved by the best performing sources, 
consistent with Sierra Club v. EPA 479 F.3d 875 (DC Circuit 2007) and 
CAA section 112(d)(3).
    In addition, we are proposing that new combined HAP process vents 
also achieve a control level of 14.22 ppmv. This is because, for new 
and reconstructed sources, CAA section 112(d)(3) requires that we set 
emissions limitations that are no less stringent than the emissions 
control achieved in practice by the best performing similar source, 
which in this instance are the existing four combined HAP process 
vents. Our technical analysis of these four process vents, the 
information used to develop the 14.22 ppmv limitation, and the beyond 
the MACT floor analysis is available in the docket for this rulemaking.
    We examined establishing limitations beyond the floor level of 
control for existing and new combined HAP process vents. Establishing a 
meaningful control level below the 14.22 ppmv limitation would require 
the segregation of organic and inorganic process vent streams and 
process heat into separate vent streams. The separate organic and 
inorganic process vents could then be controlled by add-on control 
devices. We looked at one option that segregated the process vents into 
organic and inorganic constituents and controlled the inorganic process 
streams with a wet scrubber as needed to meet the existing emission 
limit for inorganic process vent streams. We rejected this control 
option because the associated costs were calculated to be in excess of 
$7.5 million per ton of HAP controlled. We believe that this option is 
not a reasonable beyond the floor control option because the associated 
costs are prohibitive. Therefore, we are proposing the selected 
limitation or control level of 14.22 ppmv as the floor level of control 
for existing combined HAP process vents.

IV. Impacts of the Proposed Amendments

    The proposed amendments do not affect the level of emissions 
control required by the existing NESHAP and therefore, there is no 
change to the analysis of nonair, health, environmental, and energy 
impacts from the final rule. This is because the proposed MACT level of 
control is achieved by three of the four process vents evaluated. We 
expect the fourth process vent will be able to meet the standard 
through operational changes rather than through the use of add on 
control devices. In addition, we do not expect new semiconductor 
manufacturing facilities will utilize combined HAP process vents, so we 
do not expect any new combined HAP process vents will be constructed in 
the future. Therefore, a re-evaluation of costs associated with the 
final rule was not necessary.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Order 12866 and any changes made in response to 
OMB recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The information collection requirements in the final rule have not been 
changed by these proposed amendments. However, OMB has previously 
approved the information collection requirements contained in the 
existing regulations (40 CFR part 63, subpart BBBBB) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and 
has assigned OMB control number 2060-0591. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administrations' regulations at 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; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this proposed rule 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 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 
one 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

[[Page 17943]]

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 why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or to the 
private sector in any one year. This rule affects only one facility in 
the nation. Total rule impacts were estimated to be approximately 
$22,000. Thus, this proposed rule is not subject to the requirements of 
sections 202 and 205 of the UMRA. EPA has determined that this proposed 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments because it contains no requirements 
that apply to such governments or impose obligations upon them. 
Therefore, the proposed rule is not subject to section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (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 proposed 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 13132. None of the affected 
semiconductor facilities are owned or operated by State or local 
governments. Thus, Executive Order 13132 does not apply to this 
proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    Executive Order 13175, entitled ``Coordination with Indian Tribal 
Governments'' (65 FR 67249, November 9, 2000) requires EPA to develop 
an accountable process to ensure ``meaningful and timely input by 
tribal officials in the development of regulatory policies that have 
tribal implications.'' This proposed rule does not have tribal 
implications as specified in Executive Order 13175. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. No tribal governments own or operate 
semiconductor manufacturing facilities and are not subject to the 
proposed standards. Thus, Executive Order 13175 does not apply to this 
proposed rule. EPA specifically solicits additional comment on this 
proposed rule from tribal officials.

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

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it is based on technology 
performance and not on health or safety risks.

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

    This proposed rule 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. This rule 
does not require the use of add-on control devices and will therefore 
not have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 112(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995 (Pub. L. No. 104-113, 12(d)(15 U.S.C. 272 note), 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. The 
NTTAA directs EPA to provide Congress, through OMB, explanations when 
the Agency decides not to use available and applicable VCS.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any

[[Page 17944]]

disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. This proposed rule affects one facility in the nation. This 
facility emits approximately one ton per year of regulated HAP and does 
not significantly affect the local population.

List of Subjects in 40 CFR Part 63

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

    Dated: March 27, 2008.
Stephen L. Johnson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I, part 
63, of the Code of the Federal Regulations is proposed to be amended as 
follows:

PART 63--[AMENDED]

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

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

Subpart BBBBB--[Amended]

    2. Section 63.7184 is amended by adding paragraph (f) to read as 
follows:


Sec.  63.7184  What emission limitations, operating limits, and work 
practice standards must I meet?

* * * * *
    (f) Process vents--combined HAP emissions. For each combined HAP 
process vent, other than process vents from storage tanks, you must 
reduce or maintain the concentration of emitted HAP from the process 
vent to less than or equal to 14.22 ppmv. These limitations can be met 
by venting emissions from your process vent through a closed vent 
system to any combination of control devices meeting the requirements 
of Sec.  63.982(a)(2).

 [FR Doc. E8-6816 Filed 4-1-08; 8:45 am]
BILLING CODE 6560-50-P