[Federal Register Volume 86, Number 46 (Thursday, March 11, 2021)]
[Rules and Regulations]
[Pages 13819-13821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04936]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0094; FRL-10019-05-OAR]
RIN 2060-AU98


Court Vacatur of Exemption From Emission Standards During Periods 
of Startup, Shutdown, and Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is amending the 
Code of Federal Regulations (CFR) to reflect a court order regarding 
the General Provisions for National Emissions Standards for Hazardous 
Air Pollutants (NESHAP) issued on

[[Page 13820]]

December 19, 2008, by the United States Court of Appeals for the 
District of Columbia Circuit (the court). The court vacated two 
provisions in the General Provisions that exempted sources from 
hazardous air pollutant (HAP) non-opacity and opacity emission 
standards during periods of startup, shutdown, and malfunction (SSM). 
The court held that under the Clean Air Act (CAA), emissions standards 
or limitations must be continuous in nature and that the SSM exemptions 
in these two provisions violate this requirement. This ministerial 
action revises these two NESHAP General Provisions in the CFR to 
conform to the court's order.

DATES: This final rule is effective on March 11, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2004-0094. All documents in the docket are 
listed in https://www.regulations.gov/. Although listed, 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, is not 
placed on the internet and will be publicly available only in hard copy 
form. With the exception of such material, publicly available docket 
materials are available electronically in https://www.regulations.gov/. 
Out of an abundance of caution for members of the public and our staff, 
the EPA Docket Center and Reading Room are closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19. Our 
Docket Center staff will continue to provide remote customer service 
via email, phone, and webform. The EPA continues to carefully and 
continuously monitor information from the Centers for Disease Control 
and Prevention, local area health departments, and our Federal partners 
so that we can respond rapidly as conditions change regarding COVID-19. 
For further information and updates on EPA Docket Center services, 
please visit us online at https://www.epa.gov/dockets or call the 
Public Reading Room at (202) 566-1744 or the EPA Docket Center at (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: Lisa Conner, Sector Policies and 
Programs Division (D205-02), Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, Research Triangle 
Park, North Carolina 27711, telephone number: (919) 541-5060; fax 
number: (919) 541-4991; email address: [email protected]. You may 
also consult your state or local permitting representative or the 
appropriate EPA Regional office representative.

SUPPLEMENTARY INFORMATION: 
    Organization of this document. The information in this preamble is 
organized as follows:
I. Why is the EPA issuing this final rule?
II. Background
III. Which provisions are being amended?
IV. Statutory and Executive Order Reviews

I. Why is the EPA issuing this final rule?

    This action is amending the CFR to reflect the 2008 court decision 
in Sierra Club v. EPA vacating 40 CFR 63.6(f)(1) and (h)(1). Section 
553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B) provides 
that, when an agency for good cause finds that notice and public 
procedures are impracticable, unnecessary or contrary to the public 
interest, the agency may issue a rule without providing notice and an 
opportunity for public comment. The EPA has determined that there is 
good cause for amending these provisions without prior proposal and 
opportunity for public procedures because the correction of the CFR is 
a ministerial act to effectuate the court order and public notice and 
comment is unnecessary and would serve no useful purpose. Removal of 
the two SSM exemptions in the General Provisions of the NESHAP at 40 
CFR 63.6(f)(1) and (h)(1) has no legal effect beyond fulfilling the 
court's vacatur in Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008) 
and is ministerial in nature. The court issued the mandate for its 
decision on October 16, 2009, at which point the vacatur became 
effective.

II. Background

    The NESHAP program implementing requirements in section 112 of the 
CAA regulates over 100 industrial source categories that emit HAP. The 
NESHAP regulations applicable to specific source categories are 
organized by subparts within part 63 of 40 CFR.\1\ As a component of 40 
CFR part 63, the EPA established subpart A which contains the General 
Provisions and, when incorporated by reference within a specific source 
category NESHAP, eliminates unnecessary repetition of general 
information and requirements that often apply (e.g., emission testing, 
monitoring, recordkeeping, and reporting provisions). As a result, the 
General Provisions contain requirements that are general in nature and 
apply only if the source category-specific NESHAP subpart states that 
some (or all) of the subpart A requirements apply. See 59 FR 12408, 
12408/3 (March 16, 1994) (``1994 Rule''). The General Provisions have 
the legal force and effect of emission standards when incorporated by 
reference into a NESHAP. 40 CFR 63.1(a)(4).
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    \1\ A list of the source categories regulated in the NESHAP 
program can be found at: https://www.epa.gov/stationary-sources-air-pollution/national-emission-standards-hazardous-air-pollutants-neshap-9.
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    Beginning in 2002, the Sierra Club and various other environmental 
groups filed petitions seeking judicial review of the SSM exemptions in 
the NESHAP General Provisions in 40 CFR part 63, subpart A. In response 
to these petitions, the court vacated portions of two provisions 
governing the emissions of HAP during periods of SSM. Sierra Club v. 
EPA, 551 F. 3d 1019 (D.C. Cir. 2008). Specifically, the court vacated 
the SSM exemptions contained in 40 CFR 63.6(f)(1) and (h)(1) of the 
General Provisions. When incorporated by reference into the NESHAP 
regulations for specific source categories, these two provisions 
exempted sources from the requirement to comply with the otherwise 
applicable emission standards during periods of SSM. The court held 
that under CAA section 302(k), emissions standards or limitations 
issued pursuant to section 112 of the CAA must be continuous in nature 
and that the SSM exemptions in 40 CFR 63.6(f)(1) and (h)(1) violate 
this CAA requirement.
    As noted above, the court mandated its decision on October 16, 
2009, making it immediately effective. However, 40 CFR part 63, subpart 
A, has not yet been amended in the record. Since then, the EPA has been 
codifying the court decision by modifying SSM exemptions in individual 
NESHAP as they are opened for review and modification.

III. Which provisions are being amended?

    This final rule amends the NESHAP General Provisions at 40 CFR part 
63, subpart A, to remove universally the SSM exemptions contained in 40 
CFR 63.6(f)(1) and (h)(1) from non-opacity and opacity emission 
standards, respectively, by deleting the phrase ``except during periods 
of startup, shutdown, and malfunction.'' As explained above, removal of 
the exemptions corrects the CFR to conform to the court's order in 
Sierra Club v. EPA and so is ministerial in nature and has no legal 
effect. The legal effect of the vacatur occurred upon the court's

[[Page 13821]]

decision in 2008 and subsequently in the court's mandate issued in 
2009.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden, or otherwise has a positive economic effect on the small 
entities subject to the rule. This regulatory action is ministerial in 
nature as it codifies a court issued mandate vacating regulatory 
provisions. We have, therefore, concluded that this action will have no 
net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538. This action imposes no enforceable duty on 
any state, local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. The action presents no additional burden on 
implementing authorities beyond existing requirements. Thus, Executive 
Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This regulatory action is 
ministerial in nature as it codifies a court issued mandate vacating 
regulatory provisions and does not have any impact on human health or 
the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA 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 comment rulemaking procedures are 
impracticable, unnecessary, or contrary to the public interest (5 
U.S.C. 808(2)). The EPA has made a good cause finding for this rule in 
section I of this preamble, including the basis for that finding.

List of Subjects for 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, General Provisions, Hazardous substances.

Jane Nishida,
Acting Administrator.

    For the reasons set forth in the preamble, the EPA amends 40 CFR 
part 63 as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart A--General Provisions

0
2. Revise Sec.  63.6(f)(1) and (h)(1) to read as follows:


Sec.  63.6  Compliance with standards and maintenance requirements.

* * * * *
    (f) * * *
    (1) Applicability. The non-opacity emission standards set forth in 
this part shall apply at all times except as otherwise specified in an 
applicable subpart. If a startup, shutdown, or malfunction of one 
portion of an affected source does not affect the ability of particular 
emission points within other portions of the affected source to comply 
with the non-opacity emission standards set forth in this part, then 
that emission point must still be required to comply with the non-
opacity emission standards and other applicable requirements.
* * * * *
    (h) * * *
    (1) Applicability. The opacity and visible emission standards set 
forth in this part must apply at all times except as otherwise 
specified in an applicable subpart. If a startup, shutdown, or 
malfunction of one portion of an affected source does not affect the 
ability of particular emission points within other portions of the 
affected source to comply with the opacity and visible emission 
standards set forth in this part, then that emission point shall still 
be required to comply with the opacity and visible emission standards 
and other applicable requirements.
* * * * *
[FR Doc. 2021-04936 Filed 3-10-21; 8:45 am]
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