[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Proposed Rules]
[Pages 65653-65661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27441]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2010-0223; FRL-9482-5]
RIN 2060-AO60
New Source Performance Standards (NSPS) Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advanced notice of proposed rulemaking.
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SUMMARY: The purpose of this advanced notice of proposed rulemaking
(ANPRM) is to request public comment on a proposed approach the EPA has
developed to carry out the statutorily required periodic evaluation of
the new source performance standards (NSPS) program. Consistent with
Executive
[[Page 65654]]
Order 13563, ``Improving Regulation and Regulatory Review,'' issued on
January 18, 2011, this proposed approach will provide a streamlined
process to ensure that public and private resources are focused on the
rules that provide the greatest public health protection and are most
likely to warrant revision to include current technology and eliminate
obsolete or unnecessary requirements. By demonstrating the continued
efficacy of the standards, the agency will be able to fulfill its
statutory requirement to review, and, if necessary, revise NSPS at a
minimum of every 8 years. This ANPRM is part of the EPA's effort to
meet these statutory obligations. The agency is seeking comment on the
overall approach to managing the NSPS program, in particular the
criteria used to determine that no review is needed for a subset of
NSPS.
DATES: Comments must be received on or before November 23, 2011.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2010-0223. All documents in the docket are
listed in the Federal Docket Management System index at http://www.regulations.gov. Publicly available docket materials are available
either electronically through http://www.regulations.gov or in hard
copy at the NSPS Review Under CAA Section 111(b)(1)(B) ANPRM Docket,
EPA/DC, 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
Air Docket is (202) 566-1742.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0223. The U.S. Environmental Protection Agency's (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 http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means the 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 the EPA without going through
http://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, the 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 the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
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 the
EPA's public docket visit the EPA Docket Center homepage at
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the Public Reading
Room.
FOR FURTHER INFORMATION CONTACT: Ms. Janice Godfrey, Policy and
Strategies Group, Office of Air Quality Planning and Standards (D205-
02), Environmental Protection Agency, Research Triangle Park, North
Carolina 27711; telephone number: (919) 541-3391; fax number: (919)
541-4991; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Outline. The information in this ANPRM is
organized as follows:
I. General Information
A. What should I consider as I prepare my comments for the EPA?
B. Where can I get a copy of this document and other related
information?
II. Background Information
A. What is the NSPS program?
B. What is the status of the NSPS program?
C. What is the purpose of this ANPRM?
III. Developing an NSPS Evaluation Strategy
A. What are the goals of an evaluation strategy for the NSPS
program?
B. Which NSPS do not need review?
C. NSPS Potentially in Need of a Review
IV. Request for Comment and Next Steps
V. Statutory and Executive Order Review
I. General Information
A. What should I consider as I prepare my comments for the EPA?
Please provide data and explanatory information in a format that is
thorough and complete enough for use by the EPA to justify any
modifications to the proposed approach. Do not submit CBI to the EPA
through http://www.regulations.gov or e-mail. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information on
a disk or CD-ROM that you mail to the 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.
[[Page 65655]]
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this ANPRM will be available on the Worldwide Web through the
Technology Transfer Network (TTN). The TTN provides information about
various areas of air pollution control. Following signature, an
electronic version of this document will be posted at http://www.epa.gov/ttn/oarpg under ``Recent Additions.''
The EPA has also created a technical support document (TSD) that
provides supporting data and information for this ANPRM. The TSD will
also be available in the docket and on the TTN at http://www.epa.gov/ttn/oarpg under ``Recent Additions.''
II. Background Information
A. What is the NSPS program?
Clean Air Act (CAA) section 111 requires the EPA Administrator to
list categories of stationary sources if such sources cause or
contribute significantly to air pollution which may reasonably be
anticipated to endanger public health or welfare. The EPA must then
issue NSPS for such source categories. NSPS reflect the degree of
emission limitation achievable through the application of the ``best
system of emission reduction'' which the EPA determines has been
adequately demonstrated. The EPA may consider certain costs and non-air
quality health and environmental impacts and energy requirements when
establishing NSPS. For a NAAQS pollutant or a Hazardous Air Pollutant
(one listed under 112), only new or modified or reconstructed
stationary sources are regulated. For other regulated pollutants,
section 111(d) also requires states to set standards for existing
sources.
Under section 111(b), the EPA has the authority to define the
source categories, determine the pollutants for which standards should
be developed, identify the facilities within each source category to be
covered, and set the emission level of the standards. Air pollutants
currently regulated through various CAA section 111(b) standards
include particulate matter (PM, PM2.5, PM10),
nitrogen oxides (NOX), carbon monoxide (CO), lead (Pb),
volatile organic compounds (VOC), sulfur dioxide (SO2),
sulfuric acid mist, fluorides, hydrogen sulfide, reduced sulfur
compounds, total reduced sulfur, and landfill gas. CAA section
111(b)(1)(B) generally requires the EPA to ``at least every 8 years
review and, if appropriate, revise'' NSPS. While conducting a review of
existing NSPS, the EPA has also promulgated emission limits for
pollutants not currently regulated for that source category and added
additional affected facilities where appropriate. See, e.g., 75 FR
54970 (Sept. 9, 2010),\1\ 73 FR 35883 (June 24, 2009).\2\ In addition,
section 111(b)(1)(B) also states that the EPA need not conduct this
review if the EPA determines that reviewing an NSPS ``is not
appropriate in light of readily available information on the efficacy
of such standard.''
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\1\ EPA promulgated emission limits for nitrogen oxides and
sulfur dioxide to the NSPS for Portland Cement plants which had
previously only regulated particulate matter emissions.
\2\ In this rulemaking, EPA extended the coverage of the NSPS
program to include additional affected facilities (e.g., delayed
coking units) at a petroleum refinery.
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In setting or revising NSPS, CAA section 111(a)(1) provides that
NSPS are to ``reflect the degree of emission limitation achievable
through the application of the best system of emission reduction which
(taking into account the cost of achieving such reduction and any non-
air quality health and environmental impact and energy requirements)
the Administrator determines has been adequately demonstrated.'' The
format of NSPS can vary from source category to source category (and
even from facility type to facility type within an NSPS) including a
numerical emission limit, a design standard, an equipment standard, or
a work practice standard. In determining the best system of emission
reduction, we typically conduct a review that identifies what emission
reduction systems exist and how much they reduce air pollution in
practice. This allows the EPA to identify potential emission limits. We
evaluate each system in conjunction with cost of achieving such
reduction and any non-air quality health and environmental impact and
energy requirements. The resultant standard is usually a numerical
emissions limit, expressed as a performance level (i.e., a rate-based
standard or percent control). Although such standards are based on the
effectiveness of one or more specific air pollution control systems,
section 111(b)(5) provides that the EPA may not prescribe a particular
technology that must be used to comply with an NSPS, except in
instances where the Administrator determines it is not feasible to
prescribe or enforce a standard of performance, as defined in section
111(h). Upon promulgation, NSPS become national standards to which all
new, modified, or reconstructed sources must comply.
B. What is the status of the NSPS program?
Since December 23, 1971, the Administrator has promulgated over 70
NSPS. These standards can be found in the Code of Federal Regulations
(CFR) at 40 CFR part 60. A list of all NSPS promulgated under the
authority of CAA 111(b)(1)(B) is provided in Table 1, which includes
the promulgation date of the original standards and information on the
most recent activity. Not all Federal Register actions indicate a
review of the standard. In many cases the most recent action includes
only minor amendments. For example, on October 17, 2000, EPA made final
minor amendments to numerous NSPS to include miscellaneous editorial
changes and technical corrections to stationary testing and monitoring
rules. See 65FR61768 through 65FR61792. Seventeen standards have been
promulgated or revised within the last 8 years. In addition to those
standards that are current within their review cycle, there are also
multiple standards in different phases of the review process, including
some standards that are in various stages of the litigation process.
[[Page 65656]]
Table 1--List of CAA Sec. 111(b)(1)(B)NSPS \3\
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NSPS Subpart Date of promulgation (FR citation) Date of most recent action (FR citation) \4\
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Ammonium Sulfate Manufacture....... PP 11/12/1980 (45FR74846) 10/17/2000 5 6 (65FR61760)
Asphalt Concrete (Hot Mix Asphalt). I 03/08/1974 02/14/1989 \4\ (54FR6667)
Asphalt Processing and Roofing UU 08/06/1982 (47FR34147) 10/17/2000 3 4 (65FR61762)
Manufacture.
Auto/Light Duty Truck Surface MM 12/24/1980 (45FR85410) 10/17/2000 3 4 (65FR61760)
Coating.
Basic Oxygen Process Furnaces...... N 03/08/1974 (39FR9318) 10/17/2000 3 4 (65FR61756)
Basic Process Steelmak-............ Na 01/02/1986 (51FR161) 10/17/2000 3 4 (65FR61756)
ing Facilities (Integrated Steel
Plants).
Beverage Can Surface Coating....... WW 08/25/1983 (48FR38728) 10/17/2000 3 4 (65FR61763)
Bulk Gasoline Terminals............ XX 08/18/1983 (48FR37578) 12/19/2003 (68FR70965)
Calciners and Dryers in Mineral UUU 09/28/1992 (57FR44496) 10/17/2000 3 4 (65FR61778)
Industries.
Coal Prep Plants................... Y 01/15/1976 (41FR2234) 10/08/2009 (74FR51977)
Electric Utility Steam Generating Da 06/11/1979 (44FR33581) 01/28/2009 \4\ (74FR5078)
Units \7\.
Ferroalloy Production Facilities... Z 05/04/1976 (41FR18501) 10/17/2000 3 4 (65FR61758)
Flexible Vinyl/Urethane Coating and FFF 06/29/1984 (49FR26885) 10/17/2000 3 4 (65FR61768)
Printing.
Fossil-Fuel Fired Steam Generators D 12/12/1971 01/28/2009 3 4 (74FR5078)
\4\.
Glass Manufacturing................ CC 10/07/1980 (45FR66742) 10/17/2000 3 4 (65FR61759)
Grain Elevators.................... DD 08/03/1978 (43FR34347) 10/17/2000 3 4 (65FR61759)
Graphic Arts Industry/Publi-cation QQ 11/08/1982 (47FR50644) 04/09/2004 \4\ (69FR18803)
Rotogravure Printing.
Industrial, Commercial, Db 11/25/1986 (51FR42768) 01/28/2009 \4\ (74FR5084)
Institutional Steam Generating
Units.
Kraft Pulp Mills................... BB 02/23/1978 (43FR7568) 09/21/2006 \4\ (71FR55127)
Large Appliances Surface Coating... SS 10/27/1982 (47FR47778) 10/17/2000 3 4 (65FR61761)
Lead Acid Batteries................ KK 04/16/1982 (47FR16564) 10/17/2000 3 4 (65FR61760)
Lime Manufacturing................. HH 03/07/1978 10/17/2000 3 4 (65FR61760)
Magnetic Tape Coating Facilities... SSS 10/03/1988 (53FR38892) 02/12/1999 (64FR7467)
Metal Coil Surface Coating......... TT 11/01/1982 (47FR49606) 10/17/2000 3 4 (65FR61761)
Metal Furniture Surface Coating.... EE 10/29/1982 (47FR49278) 10/17/2000 3 4 (65FR61759)
Metallic Mineral Processing Plants. LL 02/21/1984 (49FR6458) 10/17/2000 3 4 (65FR61760)
Municipal Solid Waste Landfills.... WWW 03/12/1996 (60FR9905) 09/21/2006 (71FR55127)
New Residential Wood Heaters....... AAA 08/02/1985 (50FR31504) 10/17/2000 3 4 (65FR61764)
Nitric Acid Plants................. G 12/23/1971 02/14/1989 \4\ (54FR6666)
Nonmetallic Mineral Processing OOO 08/01/1985 (50FR31328) 04/28/2009 (74FR19309)
Plants.
Onshore Natural Gas Processing KKK 06/24/1985 (50FR26122) 10/17/2000 3 4 (65FR61773)
Plants--Equipment Leaks.
Onshore Natural Gas Processing: SO2 LLL 10/01/1985 (50FR40158) 10/17/2000 3 4 (65FR61773)
Emissions.
Petroleum Dry Cleaners............. JJJ 09/21/1984 (49FR37331) 10/17/2000 3 4 (65FR61773)
Petroleum Refineries............... J 03/08/1974 (39FR9308) 06/24/2008 (73FR35865)
Petroleum Refineries............... Ja 06/24/2008 (73FR35867) 12/22/2008 \4\ (73FR78552) (Stay)
Phosphate Fertilizers--Diammonium V 08/06/1975 (40FR33155) 10/17/2000 3 4 (65FR61757)
Phosphate Plants.
Phosphate Fertilizers--Granular X 08/06/1975 (40FR33156) 10/17/2000 3 4 (65FR61757)
Triple Superphosphate Storage
Facilities.
Phosphate Fertilizers-- U 08/06/1975 (40FR33155) 10/17/2000 3 4 (65FR61757)
Superphosphoric Acid Plants.
Phosphate Fertilizers--Triple W 08/06/1975 (40FR33156) 10/17/2000 3 4 (65FR61757)
Superphosphate Plants.
Phosphate Fertilizers--Wet-Process T 08/06/1975 (40FR33154) 10/17/2000 3 4 (65FR61757)
Phosphoric Acid Plants.
Phosphate Rock Plants.............. NN 04/16/1982 (47FR16589) 10/17/2000 3 4 (65FR61760)
Polymeric Coating of Supporting VVV 09/11/1989 (54FR37551) ...............................................
Substrates.
Polymers Manufacturing Industry.... DDD 12/11/1990 (55FR51035) 12/14/2000 (65FR78278)
Portland Cement.................... F 12/23/1971 (36FR24877) 08/09/2010 (75FR54970)
Pressure Sensitive Tape and Label RR 10/18/1983 (48FR48375) 10/17/2000 3 4 (65FR61761)
Surface Coating Operations.
Primary Aluminum Reduction Plants.. S 01/26/1976 (41FR3826) 10/17/2000 3 4 (65FR61757)
Primary Copper Smelters............ P 01/15/1976 (41FR2338) 10/17/2000 3 4 (65FR61756)
Primary Lead Smelters.............. R 01/15/1976 (41FR2340) 02/14/1989 \4\ (54FR6668)
Primary Zinc Smelters.............. Q 01/15/1976 (41FR2340) 02/14/1989 \4\ (54FR6668)
Refineries: Equipment Leaks........ GGG 05/30/1984 (49FR22606) 06/02/2008 \4\ (73FR31376)
Refineries: Wastewater............. QQQ 11/23/1988 (53FR47623) 10/17/2000 3 4 (65FR61778)
Rubber Tire Manufacturing.......... BBB 09/15/1987 (52FR34874) 10/17/2000 3 4 (65FR61765)
Secondary Brass and Bronze M 03/08/1974 (39FR9318) 10/17/2000 3 4 (65FR61756)
Production Plants.
Secondary Lead Smelters............ L 03/08/1974 (39FR9317) 10/17/2000 3 4 (65FR61756)
Small Industrial, Commercial, Dc 09/12/1990 (55FR37674) 01/28/2009 (74FR5091)
Institutional Steam Generating
Units.
SOCMI Air Ox Unit Processes........ III 06/29/1990 (55FR 26922) 12/14/2000 (65FR78278)
SOCMI Distillation................. NNN 06/29/1990 (55FR 26942) 12/14/2000 (65FR78279)
SOCMI Equipment Leaks.............. VV 01/18/1983 (48FR48335) 06/02/2008 \4\ (73FR31375) (Stay)
SOCMI Reactor Processes............ RRR 08/31/1993 (58FR45962) 12/14/2000 (65FR78279)
Stationary Combustion Turbines..... KKKK 06/06/2006 (71FR38497) 3/20/2009 \4\ (74FR11858)
Stationary Compression Ignition IIII 7/11/2006 (71FR39172) 06/08/2011 (75FR32612)
Internal Combustion Engines.
Stationary Gas Turbines............ GG 09/10/1979 (44FR 52798) 02/24/2006 \4\ (71FR9458)
Stationary Spark Ignition Internal JJJJ 01/18/2008 (73FR 3591) 06/08/2011 (75FR32612)
Combustion Engines.
Steel Plants: Electric Arc Furnaces AA 09/23/1975 (40FR43850) 02/22/2005 (70FR8532)
Steel Plants: Electric Arc Furnaces AAa 10/31/1984 (49FR43845) 02/22/2005 (70FR8533)
and Argon-Oxygen Decarburization
Vessels.
Sulfuric Acid Plants............... H 12/23/1971 (36FR24877) 02/14/1989 (54FR6666)
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Surface Coating of Plastic Parts TTT 01/29/1988 (53FR2676) 10/17/2000 3 4 (65FR61778)
for Business Machines.
Synthetic Fibers................... HHH 04/05/1984 (49FR13651) 10/17/2000 3 4 (65FR61768)
Volatile Organic Liquid Storage Ka 04/04/1980 (45FR23379) 12/14/2000 (65FR78275)
Vessels \8\.
Volatile Organic Liquid Storage Kb 04/08/1987 (52FR11429) 10/15/2003 \4\ (68FR 59333)
Vessels (incl. Petroleum Liquid
Storage Vessels).
Wool Fiberglass Insulation PPP 02/25/1985 (50FR7699) 10/17/2000 3 4 (65FR61778)
Manufacturing Plants.
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C. What is the purpose of this ANPRM?
The purpose of this ANPRM is to request public comment on a
strategy for focusing reviews of the NSPS so as to maximize the public
health and welfare benefits while ensuring that the resources of
stakeholders, state and local agencies, and the federal government are
used most efficiently and effectively. As part of this strategy, we are
proposing criteria that would be used to assess whether review of a
particular NSPS is necessary during the review cycle. A listing of any
NSPS for which we recommend not reviewing the standard based on these
criteria (after considering comments to this ANPRM) will be published
in the Federal Register for public comment. Subsequent to this ANPRM,
all NSPS for which no review is warranted will be addressed with
detailed technical information in a rulemaking proposal which will
provide a further opportunity for public comment.
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\3\ Table only includes NSPS promulgated under the authority of
CAA Sec. 111(b) (1) (B), and does not include standards promulgated
under the authority of CAA Sec. 129 or Sec. 111(d).
\4\ ``Date of Most Recent Action'' refers to the most recently
dated Federal Register action affecting the referenced Subpart as
referenced in the electronic Code of Federal Regulations (http://www.gpoaccess.gov/cfr/).
\5\ On October 17, 2000 (65FR61743), EPA made editorial and
technical changes to test method and continuous emission modeling
system (CEMS) performance specification requirements for Part 60 and
other regulations. This included organizational changes and the
promulgation of Performance Specification 15, for Fourier Transform
Infrared (FTIR) CEMS.
\6\ Action was only minor amendment and not a full review of the
standard.
\7\ Subpart D was superseded by subpart Da and, thus, will not
be reviewed or revised as all subpart D units that modify or
reconstruct would be subject to subpart Da.
\8\ Subpart K was superseded by subpart Ka and, thus, will not
be reviewed or revised as all subpart K units that modify or
reconstruct would be subject to subpart Ka.
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If, after review of the public comments, EPA determines there is
sufficient evidence that a full review of a standard is warranted, EPA
would withdraw its no review conclusion for that standard. Otherwise by
having demonstrated the continued effectiveness of an NSPS, the agency
will have fulfilled its statutory obligations under 111(b) with respect
to the 8-year review requirement for that standard.
In addition to fulfilling the mandate in CAA section 111(b)(1)(B),
this process is also responsive to Executive Order 13563, ``Improving
Regulation and Regulatory Review,'' issued on January 18, 2011, which
directs each federal agency to ``periodically review its existing
significant regulations to determine whether any such regulations
should be modified, streamlined, expanded, or repealed so as to make
the agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.'' The EPA's proposed approach will
allow this process to be made more efficient, so that both public and
private resources can be focused where it makes the most sense. This
strategy will reduce the resource burden to the government and
stakeholders by eliminating the need for costly and time consuming
reviews of certain standards, which are not expected to result in any
environmental benefits. By determining which NSPS are not in need of
review, the agency can then focus its resources on the remaining NSPS
that are in need of revision (or at least a closer review to determine
if revision is needed). This ANPRM is seeking comment on this proposed
process and on the appropriateness of the proposed criteria for making
a finding that a current NSPS does not need review, and the application
of those criteria in this evaluation of the NSPS program. Additionally,
this ANPRM is seeking comment on pertinent factors for the
prioritization of NSPS to be reviewed, and potentially revised.
III. Developing an NSPS Evaluation Strategy
A. What are the goals of an evaluation strategy for the NSPS program?
The primary goal of the NSPS strategy is to assist the agency in
fulfilling our statutory obligations in a streamlined process that
ensures both public and private resources are focused on the rules that
provide the greatest improvement in air quality, health and welfare
benefits and are most likely to warrant review and revision to include
current technology and eliminate obsolete or unnecessary requirements.
At the same time, this focus on NSPS where greatest emission reductions
can be achieved promotes better use of resources for industry,
government agencies, environmental organizations, and all other
stakeholders and participants in the regulatory review process.
Additionally, in some instances, sources remain well controlled through
other CAA programs, such as the national emission standards for
hazardous air pollutants (NESHAP), that have provided similar, if not
more stringent, regulations than what would be required through the
revision of existing NSPS or implementation of new NSPS. We are also
aware that, in some instances, an evaluation of NSPS may show the
current requirements of the standard continue to meet the statutory
requirements, and no review is required.
To optimize the air quality, health and welfare benefits of the
NSPS program, the EPA is proposing to prioritize NSPS reviews such that
those NSPS likely to bring about greater benefits to public health and
welfare through air quality improvements, including environmental
justice considerations, are reviewed first. This prioritization is
being done with consideration of multiple pollutants and processes, and
synchronization of regulatory efforts as the primary driver, allowing
the EPA to seek opportunities for increased air quality, health and
welfare benefits, and greater administrative efficiency.
B. Which NSPS do not need review?
1. What is the EPA's authority in determining whether to review NSPS?
As described previously, CAA section 111(b) (1) (B) requires the
agency to review and, if appropriate, revise NSPS ``at least every 8
years''. Section 111(b) (1) (B) also gives the EPA authority to
determine that reviewing an NSPS ``is not appropriate in light of
readily available information on the efficacy of
[[Page 65658]]
such standard.'' In most instances, the EPA has met the requirement of
this section solely through formal review and revision (when deemed
appropriate) of standards.
We note that the majority of NSPS will be reviewed and considered
for revision, as there are likely potential process improvements and
technology advances that would alter the best system of emission
reduction. In addition, a regular evaluation gives the EPA and the
public the opportunity to consider whether requirements of a particular
NSPS are outmoded or no longer necessary. However, there are some NSPS
where currently available information indicates that there are no
potential gains to public health and welfare from a review of the NSPS.
When the continued efficacy of a standard is demonstrated, the agency
believes that using its authority to not devote resources to a
rulemaking in these cases should also be considered as an option. All
NSPS, including those that we determined do not need review, will be
subject to continual evaluation cycles, at least every 8 years. This
ANPRM presents three independent criteria that the agency believes can
be used to demonstrate that review of NSPS would not provide emission
reductions and associated air quality, health and welfare benefits.
2. What are the criteria we believe are appropriate for determining the
continued efficacy of NSPS?
We have identified three criteria that we have determined are
appropriate to determine that review of existing NSPS would not result
in any health and welfare benefits, and, thus, should not be reviewed
in the current review cycle. For this programmatic evaluation, we
believe that in most cases NSPS that meet any one of these criteria do
not need to be reviewed. However, several possible conditions exist
where a review might be appropriate, even if one or more of the
criteria described above are met. For instance, if there are emissions
units not addressed by the existing NSPS, or if there has been
stakeholder interest (e.g., environmental justice concerns) in updating
an NSPS, then additional deliberation would be necessary before a
decision not to review NSPS could be made.
The first criterion focuses on the existence of updated or new
control technology, which is used to inform a decision on the potential
improvement in air quality or health and welfare benefits. We address
the criterion with the following questions: Have there been advances in
control technologies, process operations, design or efficiency
improvements, or other factors that would lead to selection of a more
stringent best system of emission reduction? Are there available
controls for pollutants or emission sources that were previously
uncontrolled? If available information on control technology indicates
that review of the standard would not result in more stringent emission
limits or no greater level of control, and would not provide
improvements in air quality and health and welfare benefits, such
standard would be listed as a potential candidate for no review.
There are certain source categories for which the information
available from national databases (e.g., the National Emissions
Inventory), publicly available data, the EPA's interaction with
stakeholders from industries, environmental organizations, state,
local, and Tribal governments on other rulemakings provides a strong
technical basis to assess the availability and economic feasibility of
employing new control technologies, or design or efficiency
improvements that could result in a revised best system of emission
reduction determination. As an example, information developed under the
CAA section 112 air toxics program provides a significant amount of
information on control technologies and pollution control measures for
stationary sources.
We specifically request comment on this criterion and the level of
certainty required in making a finding that no review is needed based
upon an evaluation of readily available information that indicates no
greater level of control would be expected at the conclusion of an
evaluation under this criterion.
The second criterion considers whether we anticipate any new,
modified, or reconstructed sources within a source category, which
would trigger applicability under the NSPS in question over the next 8
years. The predicted growth rate of an industry is used as an indicator
of satisfying this criterion to the extent that no new, modified, or
reconstructed sources are anticipated over the next 8 years. It is
possible to have a predicted negative growth rate, and still trigger
NSPS applicability through modification or construction of new sources
at a rate less than the closure rate of existing facilities. Some of
the source categories covered by the NSPS represent very mature
industries for which there is currently no growth, and this trend has
existed for numerous years. For example, industries that rely on metal
and mineral raw materials have tended to move out of the country to be
closer to the sources of the raw materials. Copper mines in the U.S.
have closed while new mines have opened in South America where there is
greater access to raw materials. In other industries there have
historically been multiple processes used to make some products, but
cost, efficiency, and other forces have reduced the variety of
processes in use. The result of these trends may be that NSPS address
emission sources which are no longer in use, technology is outdated,
and which likely will not be used in the future. Some other source
categories include industries whose primary product has been superseded
by a substitute product which serves the same purpose, but is produced
using an entirely different process (e.g., optical storage media as a
substitute for magnetic tape) and as a result there are no expected new
facilities or modifications of existing facilities. If this criterion
were met, the rule would remain in effect for the remainder of the
review cycle in the event that sources no longer in operation were to
begin operation again.
The agency is requesting comment on the appropriateness of this
second criterion. Specifically, we request comment on the level of
certainty required in making a finding that no review is needed based
on the expectation that no new sources are to be constructed,
reconstructed or modified in the source category within the current 8
year review cycle.
The third criterion that may support a finding that review is not
necessary is the existence of other regulatory programs that are
applicable to the same pollutants (either directly or as surrogates)
and emission sources as the NSPS, such that a revision of the NSPS
would result in best system of emission reduction requirements that are
no more stringent than another applicable CAA requirement. When
evaluating a standard by this criterion, we will also ensure that no
inconsistencies or conflicts exist with these other rules. The intent
of this criterion is to avoid reviewing NSPS to adopt more stringent
emission limitations that are already being achieved by another
regulation, and, thus, providing no or limited actual additional health
and welfare benefit while redirecting resources from revision of
standards where there are potential significant emission decreases.
For example, the air toxics program implemented under CAA section
112(d) includes standards for major sources of toxic air pollutants
based on Maximum Achievable Control Technology (MACT). Although the CAA
section 112(d) program regulates air toxics, rules under the program
sometimes
[[Page 65659]]
regulate the air toxics through the use of surrogates, such as criteria
pollutants (PM and VOC). Section 112 establishes a minimum baseline or
``MACT floor'' for standards, which, for existing sources in categories
or subcategories with 30 or more sources, is based on the average
emission limitation achieved by the best performing 12 percent of
existing sources. For new sources, the standards for a source category
or subcategory cannot be less stringent than the emission control that
is achieved in practice by the best controlled similar sources, as
determined by the Administrator (CAA section 112(d)(3)). The MACT
floors form the least stringent regulatory option the EPA may consider
in the determination of MACT standards under section 112(d) for a
source category. The EPA must also determine whether to control
emissions ``beyond-the-floor,'' after considering the costs, non-air
quality health and environmental impacts, and energy requirements of
such more stringent control (CAA section 112(d) (2)).
MACT for new sources is the most stringent level of control
identified under CAA section 112(d). Therefore, where the EPA regulated
air toxics through regulation of criteria pollutants as surrogates for
the toxic pollutant(s), it would be expected in most cases that the
level of the MACT standard would reflect a level that would meet or
exceed the best system of emission reduction when the same pollutants
are covered. Therefore, where the MACT and NSPS have comparable
applicability (e.g., covers the same emission sources and effectively
controls the same pollutants), the MACT would in many cases accomplish
emissions reductions that would be equivalent to or greater than those
achieved by a revised NSPS. In such cases, even if new facilities are
constructed, the MACT would serve to achieve the level of control that
would otherwise be achieved through updating the NSPS through the
review process. Under CAA section 112(d) (6), the MACT standards are
also subject to technology reviews every 8 years.
Another potential consideration for applying this criterion is the
potential interaction with other CAA programs such as Best Available
Control Technology (BACT) requirements for New Source Review (NSR). The
CAA and corresponding implementing regulations require that a
permitting authority conduct a BACT analysis on a case-by-case basis,
and the permitting authority must evaluate the amount of emissions
reductions that each available emissions-reducing technology or
technique would achieve, as well as the energy, environmental, economic
and other costs associated with each technology or technique. Based on
this assessment, the permitting authority must establish a numeric
emissions limitation that reflects the maximum degree of reduction
achievable for each pollutant subject to BACT through the application
of the selected technology or technique. BACT requirements must be at
least as stringent as the best system of emission reduction set by the
NSPS.
The agency is requesting comment on the appropriateness of this
third criterion. Although we are taking the position that this
criterion is sufficient to make a finding that no review is needed, we
solicit comment on whether interaction with other CAA requirements
would make source categories meeting this criterion more appropriate
for a streamlined review that incorporates the level of control
achieved by the MACT into the NSPS, rather than a no review
determination. We also solicit comment on how interaction with the
CAA's NSR programs (including the BACT, offset and netting regulations)
should be accounted for in developing and implementing this criterion.
In addition to the three detailed criteria, several possible
conditions exist where a review might be appropriate, even if one or
more of the criteria described above are met. For instance, if there
are emissions units not addressed by the existing NSPS, or if there has
been stakeholder interest (e.g., environmental justice concerns) in
updating an NSPS, then additional deliberation would be necessary
before a decision not to review NSPS could be made. In addition, if
there are pollutants that are not currently regulated by an NSPS, but
which the agency believes should be, we would likely take the
opportunity to review the existing standards to see if they should be
updated at the same time. If the NSPS is outdated, or could be made
less burdensome without lessening the public health protection it
provides, or conflicts with another applicable requirement, review
might well be appropriate. These conditions have been considered in
addition to a standard's ability to meet one or more of the three
criteria as the agency developed the NSPS evaluation. In instances
where one of the above conditions indicated the need for further
consideration, those NSPS would be recommended to undergo a traditional
review, with subsequent potential revision.
In addition to taking comment on the general approach described in
this ANPRM, we also request comment on the following: (1) Are the three
criteria appropriate for determining whether NSPS should be reviewed,
(2) are there additional criteria that should be used to make a finding
that NSPS remains efficacious and, therefore, review of the standard is
not needed, and (3) are there different criteria that should be used.
In judging the appropriateness of criteria, commenters should also
consider Executive Order 13563, which calls for periodic review of
regulations ``to make the agency's regulatory program more effective or
less burdensome in achieving the regulatory objectives.''
3. How many NSPS are potentially not in need of review?
Of the NSPS requiring periodic review, the majority of NSPS would
be subject to review and potential revision, and would not meet the
criteria for establishing no review as defined in this document.
However, using the criteria outlined in this ANPRM, the agency has
identified a limited number of NSPS as potential candidates to not
undergo review. These NSPS are listed in Table 2 along with the
applicable criteria.
Table 2--NSPS Potentially Meeting Criteria To Not Be Reviewed Based on CAA 111(b)(1)(B) Authority
----------------------------------------------------------------------------------------------------------------
No review criteria
--------------------------------------------------------
No expected
Level of control applicability of Equivalent/more
Subpart NSPS in current NSPS (No new/ stringent
standard remains modified/ requirements in
appropriate reconstructed other CAA actions
sources)
----------------------------------------------------------------------------------------------------------------
P............................ Primary Copper Smelters. X X X
Q............................ Primary Zinc Smelters... X X X
T............................ Phosphate Fertilizers-- ................. ................. X
Wet-Process Phosphoric
Acid Plants.
[[Page 65660]]
U............................ Phosphate Fertilizers-- ................. ................. X
Super Phosphoric Acid
Plants.
V............................ Phosphate Fertilizers-- ................. ................. X
Diammonium Phosphate
Plants.
W............................ Phosphate Fertilizers-- ................. X X
Triple Superphosphate
Plants.
X............................ Phosphate Fertilizers-- ................. X X
Granular Triple
Superphosphate Storage
Facilities.
EE........................... Metal Furniture Surface ................. X .................
Coating.
MM........................... Auto/Light Duty Truck ................. ................. X
Surface Coating.
NN........................... Phosphate Rock Plants... X X .................
QQ........................... Graphic Arts Industry/ ................. ................. X
Publication Rotogravure
Printing.
BBB.......................... Rubber Tire ................. ................. X
Manufacturing.
HHH.......................... Synthetic Fibers........ X ................. .................
SSS.......................... Magnetic Tape Coating ................. X .................
Facilities.
----------------------------------------------------------------------------------------------------------------
We are requesting comment on the list of NSPS provided in Table 2
as potentially not in need of review. Specifically, we are soliciting
comment on the appropriateness of NSPS not undergoing review based on
the criteria indicated in Table 2. We are also soliciting comment on
any additional NSPS that should be considered as potentially not in
need of review based on the criteria provided in this document. For
example, the following three NSPS may meet the third criterion that
revision of the NSPS would result in best system of emission reduction
requirements that are no more stringent than another applicable CAA
requirement (i.e., NESHAP). However, a more detailed assessment would
be necessary to ensure that the emission points covered by the other
regulatory programs are comparable to those covered by the NSPS:
Large Appliances Surface Coating, Subpart SS
Flexible Vinyl/Urethane Coating and Printing, Subpart FFF
Surface Coating of Plastic Parts for Business Machines,
Subpart TTT
EPA is soliciting comments as to the extent to which the NESHAP
sufficiently covers the above NSPS categories.
4. What are examples of how the no review criteria would be applied to
NSPS categories?
Evaluation of NSPS categories for which no review is recommended
may be influenced by comments received regarding the criteria as
discussed in this document. However, we present as examples three NSPS
categories that meet one or more of the criteria for which we believe,
based on a preliminary evaluation, review of the standards is not
necessary. These three categories are described below, along with a
brief description of the reasons for their selection. A more detailed
description of these three examples, including the rationale for
recommending no review, is provided in the TSD. All NSPS for which no
review is recommended, including the three examples presented in this
ANPRM, will be presented, with detailed technical supporting
documentation, in a proposal following this ANPRM and will have further
and full opportunity for public comment.
a. Primary Zinc Smelters NSPS Example
Primary Zinc Smelters is a source category for which currently
available information indicates that there is no need at this time for
review of the NSPS (40 CFR 60 subpart Q). Following an evaluation of
the currently available technologies (i.e., double-absorption on
sulfuric acid plant), we believe that a revised standard would not
result in a more stringent level of control because no new control
technologies, or design or efficiency improvements exist that would
result in more stringent requirements.\9\ We do not find the current
requirements of the rule to be outmoded or unnecessarily burdensome. We
also do not expect any applicability of the standard over the next 8
years as no new, modified, or reconstructed facilities subject to the
NSPS are expected, due to changes in the types of processes typically
used (i.e., there have been no new facilities since 1974, and only one
facility remains in operation). Furthermore, this category meets the
criterion presented in this document that another CAA requirement would
apply to any new, modified, or reconstructed facility with provisions
that are effectively as stringent as what would likely be considered
the best system of emission reduction under NSPS review. Specifically,
in complying with the NESHAP (40 CFR part 63, subpart GGGGGG), the
source must use control technologies that provide equal or more
stringent SO2, PM, and opacity requirements than would
result from revisions to the NSPS for both roaster and sinter
processes. The agency believes that the Primary Zinc Smelters NSPS
(subpart Q) meets all three of the criteria to not review a standard as
described in this document. Therefore, the current standard would
remain in effect until the next review cycle.
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\9\ The criterion that no new control technology exists that
would result in more stringent requirements can be met when there is
no new technology in existence at all or when there is no new
technology that provides more effective controls. In the case of
Primary Zinc smelters both conditions are met.
---------------------------------------------------------------------------
b. Magnetic Tape Production Operations NSPS Example
The second example of an NSPS category for which currently
available information indicates that there is no need at this time for
review of the NSPS is Magnetic Tape Production Operations (40 CFR 60
subpart SSS), consisting of coating and mixing operations at affected
facilities. The agency concluded this because this industry has been in
continual decline for over 20 years. As a result, there is no growth
anticipated in the industry over the next 8 years, and there are no
anticipated new sources, reconstructions, or modifications that would
trigger NSPS
[[Page 65661]]
applicability. Consumer preferences and technology have changed such
that the primary product of this industry has been superseded by a
substitute product(s) which serves the same purpose, but is produced
using an entirely different process (i.e., optical storage media). On
this basis, we believe that there would be no emission reductions and
associated air quality and health and welfare benefits in reviewing the
best system of emission reduction for the magnetic tape production
operations NSPS category. The new process for manufacturing optical
storage media (e.g., compact disks) is assessed under the NESHAP for
Surface Coating of Plastic Parts and Products (40 CFR part 63 subpart
PPPP). Therefore, the current rule would remain in effect for the
remainder of the review cycle. In subsequent NSPS reviews, the EPA
would consider whether rescinding the rule permanently is an
appropriate action in accordance with E.O. 13563.
c. Graphic Arts Industry/Publication Rotogravure Printing NSPS Example
The third example of an NSPS category for which currently available
information indicates that there is no need at this time for review of
the applicable NSPS is Graphic Arts Industry/Publication Rotogravure
Printing (40 CFR part 60 subpart QQ). In accordance with criterion 3,
the NESHAP (40 CFR subpart KK) for Printing and Publishing is
significantly more stringent than the NSPS under subpart QQ. The NESHAP
recently went through the EPA's Risk and Technology Review (RTR)
process and no additional technology standards were adopted pursuant to
CAA section 112(d)(6). Only two new facilities have been built in the
past 15 years since the NESHAP was promulgated in 1996. Both of these
facilities placed their presses in permanent total enclosures using
carbon absorbers to achieve very efficient solvent recovery. As part of
the EPA's RTR, it was determined that no new advancements in practices,
processes or control technologies beyond those in place at the two new
facilities were identified. The BACT level control at the two new
facilities is representative of current industry practice and is state
of the art technology, and a revised best system of emission reduction
for the solvent recovery practice listed in the NSPS would not be more
stringent. Under criterion 2, there has been almost no growth in the
industry in the past decade. The number of publication rotogravure
printing facilities has declined from 27 to under 20 in the last 10
years. Only two facilities have been built in the last 15 years. No new
facilities are anticipated during the next 8 year review cycle.
Therefore, we do not expect applicability of the NSPS in the
foreseeable future. Therefore, we believe no additional emission
reductions would be achieved from a revision to the current standard.
Thus the agency believes that the Publication Rotogravure Printing NSPS
(subpart QQ) meets the criteria to not review as described in this
document.
Detailed evaluations of the Primary Zinc Smelters source category,
the Magnetic Tape Production Operations source category, and the
Graphic Arts Industry/Publication Rotogravure Printing source category
can be found in the TSD. Following comment on this ANPRM, more detailed
analyses will be completed for other NSPS that meet one or more of the
criteria listed in this document. The EPA is seeking comment on the
appropriateness of the application of the proposed criteria as shown in
these three examples. We are also seeking comment on any additional
independent criteria that could be used in making a determination to
not review NSPS.
C. NSPS Potentially in Need of Review
After identifying those NSPS that do not currently need review, the
focus of the NSPS strategy will be on reviewing, and potentially
revising, those remaining standards as required by the statute. This
will be done through prioritization of NSPS based on multi-pollutant
and sector-based \10\ approaches. The benefits of multi-pollutant and
sector-based analyses and approaches include the ability to identify
optimal strategies that consider feasibility, costs, and benefits
across multiple pollutant types--criteria, toxics, and others.
---------------------------------------------------------------------------
\10\ A sector-based approach is based on integrated assessments
that consider multiple pollutants in a comprehensive and coordinated
manner to manage emissions and CAA requirements. (National Emission
Standards for Hazardous Air Pollutants from the Portland Cement
Manufacturing Industry and Standards of Performance for Portland
Cement Plants; August, 2010.)
---------------------------------------------------------------------------
We intend to prioritize NSPS in need of a review based on a number
of different criteria. Possible prioritization criteria would include
the types and magnitude of emissions, population exposure, trends in
industry growth, advances in control measures and technologies, level
and accuracy of monitoring required by the existing standards, expected
NSPS applicability, ability to synchronize NSPS review with other CAA
requirements (e.g., RTR under CAA sections 112(f) and 112(d) (6)), and
availability of relevant information.
IV. Request for Comment and Next Steps
As described throughout this ANPRM, the EPA is soliciting comments
to develop an evaluation plan for the NSPS program. We also encourage
readers to submit other comments and supporting data that could help us
further improve NSPS review strategies. To ensure a well balanced
response and develop the best possible product, we encourage the
submittal of both comments offering suggestions and changes and those
supporting the strategies included in this ANPRM.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this is a ``significant
regulatory action'' because we expected this action to raise novel
legal or policy issues. Accordingly, the EPA submitted this action to
the Office of Management and Budget (OMB) for review under Executive
Order 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes
made in response to OMB recommendations will be documented in the
docket for this action. Because this action does not propose or impose
any requirements, and instead seeks comments and suggestions for the
agency to consider in possibly developing a subsequent proposed rule,
the various statutes and Executive Orders that normally apply to
rulemakings do not apply in this case. Should the EPA subsequently
determine to pursue a rulemaking, the EPA will address the statutes and
Executive Orders as applicable to that rulemaking.
List of Subjects in 40 CFR Part 60
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: October 18, 2011.
Gina McCarthy,
Assistant Administrator for Air and Radiation.
[FR Doc. 2011-27441 Filed 10-21-11; 8:45 am]
BILLING CODE 6560-50-P