Prevention of Significant Deterioration, Nonattainment New Source
Review, and Title V: Treatment of Corn Milling Facilities Under the
``Major Emitting Facility'' Definition
[Federal Register: March 9, 2006 (Volume 71, Number 46)]
[Proposed Rules]
[Page 12239-12249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr06-22]
[[Page 12240]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52, 70, and 71
[FRL-8041-5, Docket ID No. EPA-HQ-OAR-2006-0089]
RIN 2060-AN77
Prevention of Significant Deterioration, Nonattainment New Source
Review, and Title V: Treatment of Corn Milling Facilities Under the
``Major Emitting Facility'' Definition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA has treated wet and dry corn milling facilities
differently under the Clean Air Act (CAA or Act) depending on whether
the facilities in question produce ethanol fuel or ethanol fit for
human consumption. In particular, EPA has applied different major
source size cut offs to these facilities under the Prevention of
Significant Deterioration (PSD) program based on the product these
facilities produce. Additionally, when the list of source categories
relative to the definition of ``major emitting facility'' was first
promulgated on August 7, 1980, this same list was promulgated in the
same final regulatory package for determining from which source
categories fugitive emissions were to be counted in determining whether
a source is a major source. As a result, although two of the regulatory
changes being proposed today address the major source threshold for PSD
sources, the remaining proposed regulatory changes address when
fugitive emissions are counted for purposes of determining whether a
source is a major source under the PSD, nonattainment New Source Review
(NSR), or title V programs.
In today's action, we are requesting public comment on two options
under consideration by EPA with respect to corn milling facilities.
Under Option 1, EPA would treat wet and dry corn milling facilities in
the same manner under the PSD, nonattainment NSR, and title V programs
regardless of whether they produce ethanol fuel or ethanol fit for
human consumption. If EPA adopts Option 1, EPA would redefine chemical
process plants under the definition of ``major emitting facility'' to
exclude wet and dry corn milling facilities which produce ethanol fuel.
Under Option 2, EPA would retain the current distinction between wet
and dry corn milling facilities under these regulatory programs based
on whether they produce ethanol fuel or ethanol fit for human
consumption. The EPA's preferred option is Option 1. We are requesting
comment on these two options and on the revisions that we propose to
make if we adopt Option 1.
DATES: Comments. Comments must be received on or before May 8, 2006.
Public Hearing. If anyone contacts us requesting to speak at a
public hearing March 29, 2006, we will hold a public hearing
approximately 30 days after publication in the Federal Register.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0089 by one of the following methods:
? http://www.regulations.gov: 
Follow the on-line
instructions for submitting comments.
? Fax: 202-566-1741.
? Mail: Attention Docket ID No. EPA-HQ-OAR-2006-0089, U.S.
Environmental Protection Agency, EPA West (Air Docket), 1200
Pennsylvania Avenue, Northwest, B102, Mail code 6102T, Washington, DC
20460. Please include a total of 2 copies.
? Hand Delivery: U.S. Environmental Protection Agency, EPA
West (Air Docket), 1301 Constitution Avenue, Northwest, Room B102,
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2006-0089.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0089. 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 regulations.gov, or
e-mail. The http://www.regulations.gov Web site is an ``anonymous
access'' systems, 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 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, 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.
For additional instructions on submitting comments, please see section
B. of the SUPPLEMENTARY INFORMATION section of this document.
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, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov
or in hard copy at the U.S. Environmental Protection Agency, EPA
West (Air Docket), 1200 Pennsylvania Avenue, Northwest, B102, Mail code:
6102T, Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0089,
Washington, DC 20004]. This Docket Facility and 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-HQ-OAR-2006-0089
is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Joanna Swanson, (C339-03), Air
Quality Policy Division, U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711, telephone number: (919) 541-5282; fax number:
(919) 541-5509, or electronic mail at swanson.joanna@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What Are the Regulated Entities?
Entities potentially affected by the subject rule for today's
action include wet and dry corn milling facilities and industrial ethyl
alcohol production.
[[Page 12241]]
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Industry group SIC a NAICS b
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Wet Corn Milling........................ 2046 311221
Industrial Organic Chemicals (Ethyl 2869 325193
Alcohol)...............................
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a Standard Industrial Classification (1987)
b North American Industry Classification System. Entities potentially
affected by the subject rule for today's action also include State,
local, and tribal governments.
B. How Should I Submit CBI Material to the Agency?
1. Submitting CBI. Do not submit this information that you consider to
be CBI electronically 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 in a disk or CD ROM that you mail to EPA, mark
the 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. Also, send an additional copy
clearly marked as above not only to the Air docket but to: Roberto
Morales, c/o OAQPS Document Control Officer, (C339-03), U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711,
Attention Docket ID No. EPA-HQ-OAR-2006-0089.
C. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived
at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
D. How Can I Find Information About a Possible Public Hearing?
Persons interested in presenting oral testimony should contact Mrs.
Pamela S. Long, Air Quality Division (C339-03), U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711, telephone number
(919) 541-0641, at least 2 days in advance of the public hearing.
Persons interested in attending the public hearing should also contact
Mrs. Long to verify the time, date, and location of the hearing. The
public hearing will provide interested parties the opportunity to
present data, views, or arguments concerning these proposed changes.
E. How Is This Preamble Organized?
The information presented in this preamble is organized as follows:
I. General Information
A. What Are the Regulated Entities?
B. How Should I Submit CBI Material to the Agency?
C. What Should I Consider as I Prepare My Comments for EPA?
D. How Can I Find Information About a Possible Public Hearing?
E. How Is This Preamble Organized?
II. Background
A. What Is the History of the Term ``Major Emitting Facility''?
B. What Is the Basis for the Source Categories Listed in the
Definition of ``Major Emitting Facility'' in Section 169(1) of the Act?
C. How Was the Chemical Process Plants Source Category Addressed
in the Research Corp. NSPS Study?
D. How Have Ethanol Production Facilities Been Considered Under
the PSD Program?
III. Today's Proposed Rule
A. What Is Being Proposed?
B. What Are the Implications of Changing the Classification of
Facilities Which Produce Ethanol Fuel as a Result of the Wet or Dry
Milling Process?
C. What Are the Implications of Not Changing the Classification
for Facilities Which Produce Ethanol Fuel as a Result of the Dry or
Wet Milling Process?
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Analysis (RFA)
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
II. Background
The NSR program legislated by Congress in parts C and D of title I
of the Act is a preconstruction review and permitting program
applicable to new or modified major stationary sources of air
pollutants regulated under the Act. In areas not meeting health-based
NAAQS and in ozone transport regions (OTR), the program is implemented
under the requirements of part D of title I of the Act for
``nonattainment'' NSR. In areas meeting NAAQS (``attainment'' areas) or
for which there is insufficient information to determine whether they
meet the NAAQS (``unclassifiable'' areas), the NSR requirements for the
prevention of significant deterioration of air quality under part C of
title I of the Act apply. The NSR regulations are contained in 40 CFR
51.165, 51.166, 52.21, 52.24, and Appendix S of part 51.
The Act, as implemented by our regulations, sets applicability
thresholds for major sources in attainment areas (100 or 250 tons per
year (tpy) depending on the source type) and nonattainment areas (100
tpy or less, depending on the nonattainment classification). A new
source with a potential to emit (PTE) at or above the applicable
threshold amount ``triggers,'' or is subject to, major NSR. To
determine whether a source is subject to a 100 or a 250 tpy threshold
for purposes of determining whether it is a ``major emitting
facility,'' section 169(1) of the Act contains a definition of major
emitting facility.
Title V of the CAA required EPA to promulgate regulations governing
the establishment of operating permits programs. The current
regulations are codified at 40 CFR parts 70 and 71. All major sources,
as that term is defined for title V purposes, are required to obtain
title V operating permits. Sources required to obtain title V permits also
[[Page 12242]]
include those sources subject to PSD and nonattainment NSR. Therefore,
title V relies in part on the definition of major emitting facility for
the PSD program and any change to this definition under this program
could affect whether a source is required to obtain a title V permit.
A. What Is the History of the Term ``Major Emitting Facility''?
On August 7, 1977, the President signed the Clean Air Act
Amendments of 1977 (1977 Amendments) into law. Those amendments
established, in Part C of Title I of the Clean Air Act (the Act or
CAA), a set of requirements for the prevention of significant
deterioration (PSD) of air quality in so-called ``clean air,'' or
attainment, areas. See sections 160-69, 42 U.S.C. 7470-79. As part of
these amendments, the major emitting facility definition in section
169(1) was added to the CAA. The definition of major emitting facility
as incorporated into section 169(1) of the 1977 Amendments reads as
follows:
The term ``major emitting facility'' means any of the following
stationary sources of air pollutants which emit, or have the
potential to emit,\1\ one hundred tons per year or more of any air
pollutant from the following types of stationary sources: fossil-
fuel fired steam electric plants of more than two hundred and fifty
million British thermal units per hour heat input, coal cleaning
plants (thermal dryers), kraft pulp mills, Portland Cement plants,
primary zinc smelters, iron and steel mill plants, primary aluminum
ore reduction plants, primary copper smelters, municipal
incinerators capable of charging more than two hundred and fifty
tons of refuse per day, hydrofluoric, sulfuric, and nitric acid
plants, petroleum refineries, lime plants, phosphate rock processing
plants, coke oven batteries, sulfur recovery plants, carbon black
plants (furnace process), primary lead smelters, fuel conversion
plants, sintering plants, secondary metal production facilities,
chemical process plants, fossil-fuel boilers of more than two
hundred and fifty million British thermal units per hour heat input,
petroleum storage and transfer facilities with a capacity exceeding
three hundred thousand barrels, taconite ore processing facilities,
glass fiber processing plants, charcoal production facilities. Such
term also includes any other source with the potential to emit two
hundred and fifty tons per year or more of any air pollutant. This
term shall not include new or modified facilities which are
nonprofit health or education institutions which have been exempted
by the State.
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\1\ Under the PSD program, we define potential to emit (PTE) as
the maximum capacity of a source to emit under its physical and
operational design, taking into account any physical or operational
limitations on the source that are enforceable as a practical matter.
(See, for example, Sec. 52.21(b)(4) for the full definition of PTE.)
The source categories established in the above definition have wide
applicability under the major New Source Review (NSR) and title V
operating permits programs. Although the above definition includes a
number of source categories, it is the history and definition of the
chemical process plants source category that we will be examining
relative to the production of ethanol by wet or dry corn milling (also
known as wet or dry milling) in this proposal.
B. What Is the Basis for the Source Categories Listed in the Definition
of ``Major Emitting Facility'' in Section 169(1) of the Act?
Section 111 of the Act requires the Administrator of EPA to
establish Federal standards of performance for new stationary sources
which may significantly contribute to air pollution and was intended by
Congress to complement the other air quality management approaches
authorized by the 1970 Act. After enactment of section 111, EPA hired
Research Corporation of New England (Research Corp.) to study
stationary sources of air pollution in order to establish priorities
for developing and promulgating New Source Performance Standards
(NSPS). Because of limited resources, EPA could not feasibly set NSPS
requirements for all categories of stationary sources simultaneously.
Therefore, the goal of the Research Corp. study was to identify sources
for which NSPS controls would have the greatest impact on reducing the
quantity of atmospheric emissions. Research Corp. examined
approximately 190 different types of stationary sources that
potentially could be determined to be major emitting facilities, and
provided information on the types of air pollutants that those sources
emitted. The Research Corp. study was used by EPA in setting priorities
for the order in which it would promulgate NSPS requirements for
categories of stationary sources.
The Research Corp. study was also relied on by Congress in
identifying the 28 categories of stationary sources specifically listed
in the definition of the term ``major emitting facility'' in section
169(1) of the Act. 122 Cong. Rec. 24,520-23 (1976). As explained by
Senator McClure in the Congressional Record, the EPA Administrator
examined the data from the draft Research Corp. study and determined
that 19 of the stationary source categories examined should initially
be classified as major emitting facilities. Senator McClure further
explained that the Senate Committee added nine more categories of
stationary sources to the 19 selected by EPA for a total of 28 source
categories. 122 Cong. Rec. at 24,521.\2\
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\2\ Although a draft of the Research Corp. study is referenced
in the Congressional Record, the study entitled ``Impact of New
Source Performance Standards on 1985 National Emissions from
Stationary Sources'' was finalized in April, 1977 (EPA-450/3-76-017).
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In discussing the specific sources identified in section 169(1),
Senator McClure stated:
Mr. President, I ask unanimous consent that an extract from that
report of the Research Corp. of New England, listing the 190 types
of sources, from which the EPA took 19, and the committee took 28,
be printed in the Record at this point as an illustration of what
the committee examined and the kinds of sources the committee
intended to include and exclude, recognizing that it is neither
exclusive nor invariable. There is administrative discretion to add
to the list, to change the list. But the committee spoke very
clearly on its intent on that question.
122 Cong. Rec. at 24,521 (1976). As a result of Senator McClure's
action, the table from the draft Research Corp. report containing the
list of 190 types of sources was printed in the Congressional Record.
C. How Was the Chemical Process Plants Source Category Addressed in the
Research Corp. NSPS Study?
The approximately 190 source categories identified in Research
Corporation's report were further classified into ten general groups
for purposes of the study--stationary combustion sources, chemical
processing industries, food and agricultural industries, mineral
products industries, metallurgical industries, and miscellaneous
sources (evaporation losses, petroleum industry, wood products
industry, and assembly plants).
For the chemical process industry grouping, the Research Corp.
study considered 24 different source categories and their associated
pollutants. Notably, within the chemical process industry listings in
the 1977 final report and in the 1976 draft report (as incorporated
into the Congressional Record) there is no listing which refers to
ethanol production, ethanol fuel production, or corn milling
operations. Of course, it is worth noting that although the first U.S.
ethanol fuel plant was built by the U.S. Army in the 1940's, few, if
any, ethanol fuel production facilities existed in the mid to late
1970's. Thus, at the time that Congress drafted section 169(1), for
which it appears to have relied on the draft Research Corp. study
developed for NSPS purposes, plants producing
[[Page 12243]]
ethanol were not listed among the types of facilities that fell within
the category for chemical processing industries.
D. How Have Ethanol Production Facilities Been Considered Under the PSD
Program?
In addition to the term ``major emitting facility'' addressing
sources within specified source categories which emit, or have the
potential to emit, 100 tons per year or more of any air pollutant, this
term also establishes a potential to emit threshold of 250 tons per
year or more of any air pollutant for sources which fall outside of the
source categories specified in section 169(1) of the Act. Thus, for new
sources which are locating in attainment areas, the applicable major
source threshold under the PSD program will be either 100 tons per year
for sources in one of the source categories specifically listed in
section 169(1), or 250 tons per year for all other sources. For new
sources located in nonattainment areas, the applicable thresholds for
the nonattainment pollutants will depend on the nonattainment area's
status. For operating sources in attainment areas, the relevant major
source threshold under title V is 100 tons per year, but is lowered in
nonattainment areas for the relevant pollutant.
In its August 7, 1980, rulemaking, EPA decided to use the 2-digit
``Major Group'' listings as defined by the SIC manual of 1972 (as
amended in 1977) \3\ as its basis for defining a source under PSD and
nonattainment NSR. Thus, to determine which source category a source
belongs to, and therefore what major source thresholds apply, EPA
determines which 2-digit ``Major Group'' code applies to the source.
These classifications are based on the source's primary activity, which
is determined by the source's principal product(s)--either produced or
distributed--or services rendered. (August 7, 1980, 45 FR 52676, 52694).
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\3\ The version of the SIC code manual that is used for purposes
of classifying sources under the title V operating permits is the
1987 SIC Manual. See, e.g., the definition of ``Major Source'' in 40
CFR 70.2. However, there are no differences between these manuals in
terms of how wet corn milling facilities and facilities which
produce ``ethanol, industrial'' or ``ethyl alcohol, industrial
(nonbeverage)'' are classified.
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It is important to note that the Standard Industrial Classification
(SIC) manual was not designed for regulatory application, but was
developed primarily for the collection of economic statistics and for
the consistent comparison of economic data between various sectors of
the U.S. economy. The use of SIC codes by EPA is also not required by
the Act or even mentioned in the Act. As explained above, EPA chose to
use SIC codes to define sources, including sources within the 28 listed
source categories. EPA's regulatory use of SIC codes does not have to
follow the exact approach taken by the SIC manual. While it may be
appropriate for economic statistical purposes to place ethanol fuel and
ethanol fit for human consumption in different categories (``Major
Groups'' 28 and 20 respectively), this does not limit EPA's discretion
to treat both types of ethanol in the same manner for regulatory purposes.
Ethanol Production Facilities
In the U.S., ethanol (ethyl alcohol) is currently being produced
either synthetically or through the fermentation of sugars derived from
agricultural feedstocks. For ethanol produced synthetically, either
ethylene or hydrogen (H2) and carbon monoxide (CO) are used
as the feedstock. As of 2002, only two facilities in the U.S. were
producing synthetic ethanol. (Memorandum from Mary Lalley, Easter
Research Group, Inc., to Bob Rosensteel, U.S. EPA, July 2, 2002.)
The majority of ethanol produced in the U.S. is produced from sugar
or starch-based feedstock (e.g., corn, millet, beverage waste) using
two basic processes: the dry mill process and the wet mill process. The
key difference between these two processes is the initial treatment of
the grain. In the wet mill process, the grain is soaked and then ground
to remove germ, fiber, and gluten from the starch prior to cooking. In
the dry mill process, the grain or feedstock is not separated into its
constituent parts prior to cooking.
Both wet and dry milling operations produce ethanol as well as
other co-products. ``Co-products from the dry mill process, separated
from the ethanol in the distillation step, include distiller's dried
grain (DDG) and solubles (S), which are often combined and referred to
as DDGS. DDGS is used as an animal feed. In the wet mill process, co-
products are separated from the ethanol production process in the
initial grinding or milling step. Co-products from the wet milling
process include fiber and gluten, which are used for animal feed and
corn oil.'' (Memorandum from Mary Lalley, July 2, 2002).
Most new ethanol production capacity comes from dry mill processing
facilities (R.W. Beck, Inc., Renewable Energy Bulletin, Special
Projects). Wet milling operations, on the other hand, can produce
ethanol, including ethanol for fuel, but are typically primarily
engaged in producing starch, syrup, oil, sugar, and by-products, such
as gluten feed and meal. For ethanol which will be used as fuel, toxic
solvents (typically gasoline) are added to the ethanol to render it
unfit for human consumption (denatured). This additional step is
required to develop ethanol fuel regardless of whether the dry or wet
mill process was employed to develop the initially potable ethanol. It
is EPA's understanding that whether the wet or dry milling process is
used, the process for making ethanol for food products, and that for
making ethanol for fuel, is essentially the same up until the step at
which gasoline or other toxic solvents are added in the process for
using ethanol for making fuel.
As noted above, one of the source categories in the list of 28
source categories included in the ``major emitting facility''
definition (and in the NSR and title V regulations) is chemical process
plants.\4\ The major group SIC code (2-digit SIC code) in which
chemical process plants falls is major group 28--``Chemicals and Allied
Products.'' The 4-digit SIC code which is directly applicable to the
production of ethanol for fuel is SIC code 2869--``Industrial Organic
Chemicals, Not Elsewhere Classified.'' ``Ethanol, industrial'' and
``Ethyl alcohol, industrial (nonbeverage)'' are both listed in the SIC
Manual as a specific product within this 4-digit category.
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\4\ It is important to note that although this document refers
to the list of 28 source categories, you will actually see a list of
27 categories when you review the NSR and Title V regulations. This
is because when the list was first promulgated on August 7, 1980 (45
FR 52676), the hydrofluoric, sulfuric, and nitric acid plants were
listed as one category and an additional category (the 27th
category) was added to address sources regulated by section 111 or
112 standards as of August 7, 1980.
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In addition to the specific references in the SIC Manual relative
to ethanol production, EPA also specifically addressed this issue in an
internal EPA memorandum dated March 31, 1981, from Edward Reich,
Director, Division of Stationary Source Enforcement, Office of
Enforcement to the Directors, Air and Hazardous Materials Divisions,
Regions I-X, and the Directors, Enforcement Divisions, Regions I-X. In
this memo, Mr. Reich states the following:
This is to clarify the proper classification for ethanol fuel
plants for purposes of PSD applicability. The Agency regards any
source listed under major Group 28 of the Standard Industrial
Classification (SIC) manual as a chemical process plant. Ethanol
fuel is listed under SIC Group 286: Industrial Organic Chemicals.
Ethanol fuel plants should therefore be considered a chemical process
[[Page 12244]]
plant subject to the 100 tons per year threshold for PSD review.
Given that ethanol fuel production is specifically listed under the 2-
digit ``Major Group'' SIC code of 28 in the SIC manual and given the
above-noted memo, EPA has historically required production facilities
or units which produce ethanol fuel to be classified as chemical
process plants (regardless of whether they are wet or dry corn mills);
such facilities are therefore subject to the 100 tons per year
threshold under PSD.
Wet milling operations are specifically addressed under SIC Code
2046 (``Wet Corn Milling'') in the SIC Manual. Although the SIC Manual
lists this category as ``Wet Corn Milling'' the description for this 4-
digit category specifically notes that this category applies to
establishments primarily engaged in milling corn or sorghum grain
(milo) by the wet process. The relevant Major Group for ``Wet Corn
Milling'' is ``Major Group'' 20--``Food and Kindred Products.''
Accordingly, units at wet corn milling operations engaged in producing
the food products noted in the SIC Manual are classified under ``Major
Group'' 20. Since they do not fall within one of the 28 categories of
industrial sources listed in section 169(1) of the Act and in the PSD
regulations, wet corn milling units primarily engaged in producing food
products are subject to the 250 tons per year threshold under PSD.
As discussed above, both wet and dry corn milling processes can
produce ethyl alcohol for human consumption. Our understanding is that
the processes in these facilities are identical to a facility which
produces ethyl alcohol for fuel with the exception of an additional
step in which a toxic solvent is added to the ethyl alcohol to render
it unfit for human consumption.
Some industry stakeholders believe that it is unfair for EPA and
States to have applied two different thresholds, i.e., a 100 tons per
year threshold for ethanol fuel production and a 250 tons per year
threshold for ethanol intended for human consumption, especially since
the processes are the same except for the additional step of adding
toxic solvents to the ethyl alcohol. Some stakeholders have mentioned
to EPA that this permitting practice is not consistent. EPA requests
information on (1) whether the corn milling processes for making
ethanol for fuel and ethanol for food are essentially the same up until
the step at which gasoline or another toxic solvent is added to the
ethanol intended for fuel; (2) what steps, if any, take place beyond
the step at which gasoline or another toxic solvent is added to the
ethanol intended for fuel; (3) what steps in the ethanol intended for
food (e.g., beverage) process are different from the ethanol for fuel
process; (4) whether the technology used to manufacture the ethanol
fuel and ethanol for food is the same technology; and (5) how the corn
milling process for producing industrial ethanol varies from the corn
milling processes used to produce ethanol fuel or ethanol fit for human
consumption. Finally, we also request information on how EPA and States
have permitted corn mills that produce ethanol for fuel, ethanol for
food, and industrial ethanol.
III. Today's Proposed Rule
A. What Is Being Proposed?
Today we are taking comment on two options that EPA is considering
with respect to the treatment of wet and dry corn mills that produce
either ethanol for fuel or ethanol for food under the ``major emitting
facility'' thresholds. Under the first option, EPA proposes to redefine
chemical process plants under the definition of ``major emitting
facility'' found in section 169(1) of the Act to exclude wet and dry
corn milling facilities which produce ethanol fuel. Under the second
option, we would continue to include wet and dry corn milling
facilities that produce ethanol fuel within the definition of chemical
process plants and within the definition of ``major emitting facility''
found in section 169(1). EPA's preferred option is Option 1. If EPA
selects Option 1, we would base this proposal on several factors: (1)
EPA's discretion to define chemical process plants to exclude wet and
dry corn milling facilities; and (2) the desire to treat wet and dry
corn milling facilities in the same manner under the PSD, nonattainment
NSR, and title V permits programs due to the similar processes that are
employed by these facilities regardless of whether ethanol fuel or
potable ethanol is being produced.
The PSD and nonattainment NSR regulations that we are proposing to
amend today if we select option 1 are found in 40 CFR 51.165, 51.166,
52.21, and 52.24. We are not proposing to amend Appendix S of part 51
in today's action. The title V regulations that we are proposing to
amend today are found in 40 CFR parts 70 and 71.
In this proposal, we are soliciting comment on whether wet and dry
corn milling facilities that produce ethanol for fuel should continue
to be considered a part of the chemical process plants source category.
In addition, we are also soliciting comment on whether other types of
facilities which produce ethanol fuel, such as those using cellulosic
biomass feedstocks, e.g., solid waste, agricultural wastes, wood, and
grasses, should also be considered for exclusion from the chemical
process plants definition due to having production processes similar to
those found at wet and dry milling facilities in cases where potable
ethanol or ethanol fuel is being produced. We request information,
including process flow diagrams, on the processes used to develop
ethanol fuel using the above-noted feedstocks.
B. What Additional Changes Are Being Proposed for Wet and Dry Corn
Milling Facilities?
Two of the regulatory changes being proposed today address the
major source threshold for PSD sources, i.e., 40 CFR 51.166(b)(1)(i)(a)
and 52.21(b)(1)(i)(a). The remaining proposed regulatory changes
address when fugitive emissions are counted for purposes of determining
whether a source is a major source under the PSD, nonattainment NSR, or
title V programs.
Section 302(j) of the Act states:
Except as otherwise expressly provided, the terms ``major
stationary source'' and ``major emitting facility'' mean any
stationary facility or source of air pollutants which directly
emits, or has the potential to emit, one hundred tons per year or
more of any air pollutant (including any major emitting facility or
source of fugitive emissions of any such pollutant, as determined by
rule by the Administrator).
When the list of source categories relative to the definition of
``major emitting facility'' was first promulgated in the NSR
regulations on August 7, 1980 (45 FR 52676), this same list was
promulgated in the NSR regulations for determining from which source
categories fugitive emissions were to be counted in determining whether
a source was a major source. These 28 source categories were
promulgated as a result of the decision in Alabama Power v. Costle, 626
F. 2d. 323 (D.C. Cir. 1979). In Alabama Power, the court held that
``fugitive emissions are to be included in determining whether a source
or modification is major only if and when EPA issues an appropriate
legislative rule.'' EPA conducted rulemaking by which it identified the
28 source categories for which fugitive emissions would be counted in
determining whether a source is a major source. We also identified the
two criteria by which we would decide whether a source's fugitive
emissions would be included in major source determinations: (1) Sources
in the category could degrade air quality significantly, and (2) there
[[Page 12245]]
were no unreasonable costs compared to benefits associated with listing
the category. See 49 FR 43203 (1984).
However, as to the 28 initial source categories listed under
section 302(j), EPA provided no discussion of the types of sources
within the 28 source categories, nor any specific analyses associated
with the development of this list, when the list was proposed (1979)
and then promulgated (1980). Thus, the term ``chemical process plants''
was included in the list developed under section 302(j) of source
categories whose fugitive emissions would be counted in a determination
of whether it is a major source, even though no specific analysis was
done as to that source category. Furthermore, EPA also did not perform
any analysis of the specific types of plants that may have fallen
within the category of ``chemical process plants.''
Thus, pursuant to section 302(j) of the Act, EPA by rulemaking
listed categories of sources from which fugitive emissions shall be
included for purposes of determining whether a source is a ``major
stationary source.'' One of the categories of sources on that list is
chemical process plants. If we adopt Option 1, we are not proposing to
change the list of categories that we developed by rule under 302(j).
However, we are proposing to change the definition of chemical process
plants to exclude wet and dry corn milling facilities. Since we are not
changing the list of source categories that we listed under section
302(j), but merely redefining one of those listed categories, we do not
believe that it is now necessary to conduct a rulemaking which meets
the requirements of 302(j) of the Act in order to redefine when we
count fugitive emissions relative to chemical process plants. We
solicit comment, however, on whether it is appropriate to define
chemical process plants to exclude wet and dry corn milling facilities
for the purpose of determining when fugitives are to be counted in
major source determinations under PSD, nonattainment NSR, and title V
without specifically addressing the requirements associated with a
302(j) rulemaking.
1. EPA's Discretion To Modify Its Approach if We Adopt Option 1
As explained previously (See ``II. Background''), we have no
knowledge that ethanol production facilities, ethanol fuel production
facilities, or corn milling facilities were specifically considered by
Congress when major emitting facilities as specified in section 169(1)
of the Act were being defined. We do know, however, that none of these
facilities were specifically listed within the chemical process plants
source category in either the draft report (as incorporated into the
Congressional Record) or in the final Research Corp. report entitled
``Impact of New Source Performance Standards on 1985 National Emissions
from Stationary Sources.'' (See 122 Cong. Rec. 24,520-23 (1976)). This
report by EPA's contractor (Research Corp.) appears to be a significant
source upon which Congress relied when it drafted section 169(1) and,
more specifically, when it developed the list of identified source
categories in this statutory provision. Therefore Congress, when it
enacted section 169(1), appears not to have expressed its intent as to
whether ethanol production facilities, ethanol fuel production
facilities, or corn milling facilities should be considered within the
``chemical process plants'' source category.
As explained previously, in its August 7, 1980, rulemaking, EPA
decided, in the exercise of its discretion and in the absence of an
expression of Congressional intent on the issue, to use the 2-digit
``Major Group'' listings as defined by the SIC manual of 1972 (as
amended in 1977) as its basis for defining a source. Using this
approach to define a source, a facility producing ethanol fuel would be
classified under ``Major Group 28--Chemicals and Allied Products''
given that ``Ethanol, industrial'' and ``Ethyl alcohol, industrial
(nonbeverage)'' are two specific products under the more specific 4-
digit SIC code of ``Industrial Organic Chemicals, Not Elsewhere
Classified.''
Although EPA's policy, as defined in its March 31, 1981, memorandum
above, has been to define wet and dry corn milling facilities which
produce ethanol fuel as being within Major Group 28, EPA has the
discretion to modify its classification of these facilities through
notice and comment rulemaking. Congress did not indicate an intent,
either in the statutory provision, or in the legislative history, to
define ethanol fuel production facilities or wet and dry corn milling
facilities as being within the chemical process plants source category,
nor did Congress assign such facilities to any particular 2-digit
``Major Group'' within the SIC system. Given this absence of
Congressional intent on the issue, EPA has the discretion to promulgate
reasonable regulations on the appropriate treatment of plants that
manufacture ethanol for fuel under section 169(1) of the CAA and under
the PSD, nonattainment NSR, and title V programs.
EPA's discretion to modify its approach given that Congress has not
spoken directly to how wet and dry corn mills are to be classified is
allowed by the Chevron decision (Chevron U.S.A., Inc. v. Natural Res.
Def. Council, 467 U.S. 837 (1984)). This decision was recently
explained in New York v. EPA, 413 F.3d 3, 18 (D.C. Cir. 2005) as follows:
As to EPA's interpretation of the CAA, we proceed under
Chevron's familiar two-step process. See 467 U.S. at 842-43. In the
first step (``Chevron Step 1''), we determine whether based on the
Act's language, legislative history, structure, and purpose,
``Congress has directly spoken to the precise question at issue.''
Id. at 842. If so, EPA must obey. But if Congress's intent is
ambiguous, we proceed to the second step (``Chevron Step 2'') and
consider ``whether the agency's [interpretation] is based on a
permissible construction of the statute.'' Id. at 843. If so, we
will give that interpretation ``controlling weight unless [it is]
arbitrary, capricious, or manifestly contrary to the statute.'' Id. at 844.
As a result, although it remains EPA's policy to classify sources under
the PSD, nonattainment NSR, and title V programs using the 2-digit
``Major Group'' classification system as defined by the SIC manual, EPA
is proposing to depart from this approach in classifying wet and dry
corn mills. As summarized above, EPA has the discretion to modify its
approach to classifying sources as appropriate through notice and
comment rulemaking if it meets the criteria outlined in Chevron.
2. Similar Treatment of Wet and Dry Corn Milling Facilities Regardless
of the Product Produced
Within this rulemaking, the two basic processes that are discussed
for producing ethanol fuel are the wet mill and dry mill process. Both
of these processes result in fermentation ethanol as opposed to synthetic
ethanol. As discussed above, the primary feedstock for fermentation
ethanol is corn, millet, or beverage waste; for synthetic ethanol, it is
ethylene or hydrogen (H2) and carbon monoxide (CO).
As also discussed above, the key differences between the wet and
dry mill processes is the initial treatment of the grain or feedstock.
Additionally, in situations where ethanol fuel is being produced,
whether as a result of the dry or wet milling process, a denaturing
step is added to the process in order to make the ethanol unfit for
human consumption. This denaturing step is a step in which a small
amount of gasoline (2-5%) or other toxic solvents are added to the
ethanol. This additional step is what causes the ethanol fuel
production facility to be classified under ``Major Group'' 28 of
[[Page 12246]]
the SIC manual. If the gasoline or other toxic solvents were not added
to the ethanol in this additional step, the facility would produce
ethanol fit for human consumption and would be classified under ``Major
Group'' 20--``Food and Kindred Products.'' In this latter
classification, a facility would not be subject to the 100 tons per
year threshold under the PSD regulations, but instead would be subject
to the 250 tons per year threshold under these regulations. The Agency
does not believe that the denaturing step makes an ethanol fuel
production facility into a chemical process plant and therefore prefers
to subject production facilities which produce ethanol fit for human
consumption and those production facilities which produce ethanol fuel
to the same major source threshold.
As discussed in this section, if EPA adopts its preferred option,
Option 1, EPA is proposing to depart from its practice of classifying
ethanol fuel production facilities, which use the wet or dry milling
process, as chemical process plants. EPA solicits comment on whether we
should retain our current practice of classifying an ethanol fuel
production facility, which uses the wet or dry milling process, as a
chemical process plant, or if the Agency should adopt a different
approach for classifying these facilities such as is discussed above.
EPA also solicits comment on whether characteristics of the wet and dry
milling processes for producing ethanol fuel are such that they are in
important ways distinct from other sources that are included in the
``chemical process plants'' source category.
B. What Are the Implications of Changing the Classification of
Facilities Which Produce Ethanol Fuel as a Result of the Wet or Dry
Milling Process?
The obvious implication of changing the classification of
facilities which produce ethanol fuel as a result of the wet or dry
milling process to a classification other than chemical process plants
is that this will allow these sources to expand production without
triggering PSD permitting requirements, as a result of raising the
applicable major source threshold from 100 tons per year to 250 tons
per year. Many existing sources have taken PTE limits just below the
100 tons per year threshold to avoid PSD. Such sources would be able to
raise these limits to just below 250 tons per year if the proposed rule
is finalized as proposed. Alternatively, even without raising the
current 100 tons per year threshold, sources could expand production to
some extent without triggering PSD, nonattainment NSR, or title V
permitting requirements, because the calculation of actual and
potential emissions would no longer need to include fugitive emissions
at the facilities. This is because if the proposed rule is finalized as
proposed, fugitive emissions would no longer be counted in determining
whether the facility producing ethanol fuel as a result of the wet or
dry milling process is a major source under these programs.\5\
---------------------------------------------------------------------------
\5\ A wet or dry corn milling facility may be required to count
its fugitive emissions to determine whether it is a major source
regardless of whether today's proposal is finalized as proposed.
This is because even if the facility isn't considered to be a part
of the chemical process plants source category, one or more units
within the facility may be considered to fall within another source
category for which fugitive emissions are required to be counted.
---------------------------------------------------------------------------
Moreover, such a change may have implications as to the use of the
SIC Manual and SIC codes in the PSD, nonattainment NSR, and title V
programs. This classification process is important and has implications
in determining (1) what major source threshold under the PSD program is
applicable to a source; (2) whether fugitive emissions from a source
are considered in determining whether the source is subject to the PSD,
nonattainment NSR, and title V programs; and (3) how a source is to be
aggregated with other collocated sources at the site to determine
whether a major source exists. The Agency does not believe, however,
that this proposed change would have a significant impact on the use of
the SIC codes for other source categories in the PSD, nonattainment
NSR, and title V programs.
Another implication of a classification change is that it would
create a disparity in how facilities which produce ethanol fuel as a
result of the dry or wet milling process are considered under the NSR
and title V programs versus how other ethanol fuel producers are
considered under these programs. However, currently, ethanol fuel from
corn milling accounts for the vast majority of ethanol fuel production
from agricultural feedstocks.
A number of existing dry mills and wet mills which produce ethanol
fuel have installed emission controls and have synthetic minor permits
that limit plant-wide emissions to less than 100 tons per year.
Changing the facility classification such that the major source
threshold would be 250 tons per year could allow these sources to
increase their emissions by more than 149 tons and still remain minor
sources. EPA is seeking comment on the potential environmental effects
of increasing the major source threshold from 100 tons per year to 250
tons per year, and eliminating the requirement to count fugitive
emissions in these threshold determinations, for ethanol fuel
facilities which have been proposed for construction and which will
employ the wet or dry milling process.
C. What Are the Implications of Not Changing the Classification for
Facilities Which Produce Ethanol Fuel as a Result of the Dry or Wet
Milling Process?
If the classification for facilities which produce ethanol fuel as
a result of the dry or wet milling process is not changed to a
classification other than chemical process plants, then these
facilities will continue to be subject to the 100 tons per year
threshold under the PSD program and will be required to continue
counting their fugitive emissions in determining whether they are
subject to PSD or nonattainment NSR (whichever program is applicable)
and title V. This could potentially stymie the growth of the ethanol
production industry which, in turn, could lead to reduced energy
diversification and independence in this country. Industry information
shows that these facilities have experienced robust growth in recent
years, even though they were subject to the major source threshold of
100 tons per year and the requirement to count fugitive emissions in
their major source determinations. However, it is unclear whether this
growth would have been greater without the current 100 tons per year
threshold.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
[[Page 12247]]
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it is determined
that this rule is a ``significant regulatory action'' because it raises
policy issues arising from the President's priorities. The EPA has
submitted this action to OMB for review. Changes made in response to
OMB suggestions or recommendations will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
We are not promulgating any new paperwork requirements (e.g.,
monitoring, reporting, recordkeeping) as part of today's proposed
action. However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations (40 CFR parts 51 and 52) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and
has assigned OMB control number 2060-0003, EPA ICR number 1230.17. A
copy of the OMB approved Information Collection Request (ICR) EPA ICR
number 1230.17 may be obtained from Susan Auby, Collection Strategies
Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania
Avenue, NW., Washington, DC 20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Analysis (RFA)
The 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 statue 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 today's action on small
entities, a small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 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; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
After considering the economic impacts of today's proposed action
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 are only requesting public comment on whether or not corn milling
facilities should be subject to the same major source threshold
regardless of whether they produce ethanol fuel or ethanol fit for
human consumption. 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
1 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 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 as to 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. Today's rule contains no Federal mandates
(under the regulatory provisions of Title II of the UMRA) for State,
local, or tribal governments or the private sector.
Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
E. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (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 proposal 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 13175. Thus, Executive Order 13175 does
not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA
[[Page 12248]]
and State and local governments, EPA is soliciting comment on today's
proposal from State and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 13175, 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. There
are no Tribal authorities currently issuing major NSR and title V
permits. Thus, Executive Order 13175 does not apply to this rule.
Although Executive Order 13175 does not apply to this proposed
rule, EPA specifically solicits comment on this proposed rule from
tribal officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866; and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
Today's action is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. Today's proposed action is not
expected to present a disproportionate environmental health or safety
risk for children.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Today's action 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.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
Today's action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
List of Subjects
40 CFR Parts 51 and 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides.
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 71
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: February 28, 2006.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth below.
PART 51--[AMENDED]
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401, et seq.
Subpart I--[Amended]
2. Section 51.165 is amended by revising paragraphs
(a)(1)(iv)(C)(20) and (a)(4)(xx) to read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
(1) * * *
(iv) * * *
(C) * * *
(20) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
(4) * * *
(xx) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
3. Section 51.166 is amended by revising paragraphs (b)(1)(i)(a),
(b)(1)(iii)(t), and (i)(1)(ii)(t) to read as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
* * * * *
(b) Definitions. * * *
(1)(i) Major stationary source means:
(a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant: Fossil fuel-fired steam electric plants of
more than 250 million British thermal units per hour heat input, coal
cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, iron and steel mill plants,
primary aluminum ore reduction plants, primary copper smelters,
municipal incinerators capable of charging more than 250 tons of refuse
per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum
refineries, lime plants, phosphate rock processing plants, coke oven
batteries, sulfur recovery plants, carbon black plants (furnace
process), primary lead smelters, fuel conversion plants, sintering
plants, secondary metal production plants, chemical process plants
(which does not include wet and dry corn milling facilities which
produce ethanol fuel), fossil-fuel boilers (or combinations thereof)
totaling more than 250 million British thermal units per hour heat
input, petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels, taconite ore processing plants,
glass fiber processing plants, and charcoal production plants;
* * * * *
[[Page 12249]]
(iii) * * *
(t) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
(i) Exemptions.
(1) * * *
(ii) * * *
(t) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
PART 52--[AMENDED]
4. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
5. Section 52.21 is amended by revising paragraphs (b)(1)(i)(a),
(b)(1)(iii)(t), and (i)(1)(vii)(t) to read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(b) Definitions. * * *
(1)(i) Major stationary source means:
(a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant: Fossil fuel-fired steam electric plants of
more than 250 million British thermal units per hour heat input, coal
cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, iron and steel mill plants,
primary aluminum ore reduction plants, primary copper smelters,
municipal incinerators capable of charging more than 250 tons of refuse
per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum
refineries, lime plants, phosphate rock processing plants, coke oven
batteries, sulfur recovery plants, carbon black plants (furnace
process), primary lead smelters, fuel conversion plants, sintering
plants, secondary metal production plants, chemical process plants
(which does not include wet and dry corn milling facilities which
produce ethanol fuel), fossil-fuel boilers (or combinations thereof)
totaling more than 250 million British thermal units per hour heat
input, petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels, taconite ore processing plants,
glass fiber processing plants, and charcoal production plants;
* * * * *
(iii) * * *
(t) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
(i) Exemptions.
(1) * * *
(vii) * * *
(t) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
6. Section 52.24 is amended by revising paragraphs (f)(4)(iii)(t)
and (h)(20) to read as follows:
Sec. 52.24 Statutory restrictions on new sources.
* * * * *
(f) * * *
(4) * * *
(iii) * * *
(t) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
(h) * * *
(20) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
PART 70--[AMENDED]
7. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
8. Section 70.2 is amended by revising paragraph (2)(xx) of the
definition of Major source to read as follows:
Sec. 70.2 Definitions.
* * * * *
Major source * * *
(2) * * *
(xx) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
PART 71--[AMENDED]
9. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
10. Section 71.2 is amended by revising paragraph (2)(xx) of the
definition of Major source to read as follows:
Sec. 71.2 Definitions.
* * * * *
Major source * * *
(2) * * *
(xx) Chemical process plants--which does not include wet and dry
corn milling facilities which produce ethanol fuel;
* * * * *
[FR Doc. 06-2148 Filed 3-8-06; 8:45 am]
BILLING CODE 6560-50-P
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