Rule2024-20074
Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 10, 2024
Effective
September 10, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The EPA is finalizing requirements for sources that reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. The requirements of this final rule apply to all sources that choose to reclassify after September 10, 2024. The final amendments include a requirement that sources subject to certain major source NESHAP used to meet the Agency's obligations under the Clean Air Act (CAA) for seven specific persistent and bioaccumulative pollutants must remain subject to those NESHAP even if the sources reclassify to area source status. This requirement is based on the EPA's analysis of the statute and of comments received on the EPA's 2023 proposal to amend requirements for NESHAP-regulated sources that choose to reclassify from major to area source status. These final amendments will assure that sources accounting for not less than 90 per centum of the aggregate emissions of each persistent and bioaccumulative hazardous air pollutant (HAP) listed in CAA remain subject to standards promulgated under the CAA, as the Act requires, and will thereby ensure continued health protections from NESHAP that regulate those HAP. Additionally, we are finalizing clarifications to notification requirements and updating language regarding submittal of confidential business information.
Full Text
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<title>Federal Register, Volume 89 Issue 175 (Tuesday, September 10, 2024)</title>
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[Federal Register Volume 89, Number 175 (Tuesday, September 10, 2024)]
[Rules and Regulations]
[Pages 73293-73308]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20074]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2023-0330; FRL-4908.1-02-OAR]
RIN 2060-AV20
Review of Final Rule Reclassification of Major Sources as Area
Sources Under Section 112 of the Clean Air Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing requirements for sources that reclassify
from major source status to area source status under the National
Emission Standards for Hazardous Air Pollutants (NESHAP) program. The
requirements of this final rule apply to all sources that choose to
reclassify after September 10, 2024. The final amendments include a
requirement that sources subject to certain major source NESHAP used to
meet the Agency's obligations under the Clean Air Act (CAA) for seven
specific persistent and bioaccumulative pollutants must remain subject
to those NESHAP even if the sources reclassify to area source status.
This requirement is based on the EPA's analysis of the statute and of
comments received on the EPA's 2023 proposal to amend requirements for
NESHAP-regulated sources that choose to reclassify from major to area
source status. These final amendments will assure that sources
accounting for not less than 90 per centum of the aggregate emissions
of each persistent and bioaccumulative hazardous air pollutant (HAP)
listed in
[[Page 73294]]
CAA remain subject to standards promulgated under the CAA, as the Act
requires, and will thereby ensure continued health protections from
NESHAP that regulate those HAP. Additionally, we are finalizing
clarifications to notification requirements and updating language
regarding submittal of confidential business information.
DATES: This final rule is effective September 10, 2024.
ADDRESSES: The U.S. Environmental Protection Agency (EPA) has
established a docket for this action under Docket ID No. EPA-HQ-OAR-
2023-0330. All documents in the docket are listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. Although listed, some information is not
publicly available, e.g., Confidential Business Information or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, or in hard copy at the EPA Docket Center,
WJC West Building, Room Number 3334, 1301 Constitution Ave. NW,
Washington, DC. The Public Reading Room hours of operation are 8:30
a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For questions about this final action,
contact U.S. EPA, Attn: Nathan Topham, Mail Drop: D243-02, 109 T.W.
Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711; telephone
number: (919) 541-0483; email address: <a href="/cdn-cgi/l/email-protection#ed99829d858c80c3838c99858c83ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="d9adb6a9b1b8b4f7b7b8adb1b8b799bca9b8f7beb6af">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. Throughout this action the use
of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We use
multiple acronyms and terms in this preamble. While this list may not
be exhaustive, to ease the reading of this preamble and for reference
purposes, the EPA defines the following terms and acronyms here:
CAA Clean Air Act
CRA Congressional Review Act
CDX Central Data Exchange
ERT Electronic Reporting Tool
FR Federal Register
HAP hazardous air pollutants(s)
ICR Information Collection Request
MACT maximum achievable control technology
MM2A Major MACT to Area
NESHAP national emission standards for hazardous air pollutants
NTTAA National Technology Transfer and Advancement Act
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIN Regulatory Information Number
tpy tons per year
UMRA Unfunded Mandates Reform Act
Background information. On September 27, 2023, the EPA proposed
revisions to the NESHAP General Provisions of 40 CFR part 63. In this
action, we are finalizing certain decisions and revisions for the
NESHAP General Provisions based on the 2023 proposal and in response to
comments. Other proposed options are still being considered for
possible future action, as discussed below. We summarize the comments
we timely received regarding aspects of the proposed rule that are
directly related to this final rule and provide our responses in this
preamble. A ``track changes'' version of the regulatory language that
incorporates the changes in this action is available in the docket.
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. Judicial Review and Administrative Reconsideration
II. Background
A. What is the statutory authority for this action?
B. What actions has the EPA taken under section 112(c)(6)?
C. What actions has the EPA taken dealing with major source
reclassifications?
D. What did we propose on September 27, 2023, regarding sources
choosing to reclassify?
III. What is included in this final rule?
A. What are the amendments to the General Provisions of 40 CFR
part 63 promulgated as part of this action?
B. What are the effective and compliance dates of the standards?
IV. What is the rationale for our final decisions and amendments for
the General Provisions of 40 CFR part 63?
A. Requirements and Limitations on Reclassification
B. Other Aspects of the September 2023 Proposal
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
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 (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Regulated entities. Categories and entities potentially impacted by
this rule include major sources of HAP that are subject to certain
major source NESHAP requirements and that reclassify from a major to an
area source of HAP pursuant to the requirements in 40 CFR part 63,
subpart A, implementing section 112 of the CAA. If you have any
questions regarding the applicability of any aspect of this final rule,
please contact the appropriate person listed in the preceding FOR
FURTHER INFORMATION CONTACT section of this preamble.
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 final action will also be available on the internet. Following
signature by the EPA Administrator, the EPA will post a copy of this
final action at: <a href="https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112">https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112</a>.
Following publication in the Federal Register (FR), the EPA will post
the FR version and key technical documents at this same website.
C. Judicial Review and Administrative Reconsideration
Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit (the Court) by
November 12, 2024. Under CAA section 307(b)(2), the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by the EPA to enforce the
requirements established herein.
Section 307(d)(7)(B) of the CAA further provides that only an
objection
[[Page 73295]]
to a rule or procedure which was raised with reasonable specificity
during the period for public comment (including any public hearing) may
be raised during judicial review. This section also provides a
mechanism for the EPA to reconsider the rule if the person raising an
objection can demonstrate to the Administrator that it was
impracticable to raise such objection within the period for public
comment or if the grounds for such objection arose after the period for
public comment (but within the time specified for judicial review) and
if such objection is of central relevance to the outcome of the rule.
Any person seeking to make such a demonstration should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460.
II. Background
A. What is the statutory authority for this action?
The statutory authority for this action is provided by sections 112
and 301 of the CAA, as amended (42 U.S.C. 7401 et seq.). Specifically,
the EPA is acting pursuant to its general regulatory authority under
section 301, and to the specific mandate of section 112(c)(6) of the
CAA, which requires the EPA to take action with respect to seven
specific, persistent, bioaccumulative HAP. CAA section 112(c)(6)
states, ``With respect to alkylated lead compounds, polycyclic organic
matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-
tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin, the
Administrator shall, not later than 5 years after November 15, 1990,
list categories and subcategories of sources assuring that sources
accounting for not less than 90 per centum of the aggregate emissions
of each such pollutant are subject to standards under subsection (d)(2)
or (d)(4) of this section.'' \1\
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\1\ CAA section 112(c)(6) also states that ``This paragraph
shall not be construed to require the Administrator to promulgate
standards for such pollutants emitted by electric utility steam
generating units.''
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CAA section 112(c)(6) requires the EPA to address the seven
specific HAPs in two steps. First, CAA section 112(c)(6) requires the
EPA to identify and list the source categories that account for 90% of
the total emissions of the seven HAPs. Next, CAA section 112(c)(6)
requires the EPA to ``assur[e]'' that those sources remain subject to
the standards the EPA established under CAA sections 112(d)(2) and
(d)(4). Per section 301, the EPA has general authority ``to prescribe
regulations as are necessary to carry out his function under this
chapter.'' See 42 U.S.C. 7601(1). Accordingly, the EPA is in this final
rule establishing a requirement that the sources in those source
categories identified and listed by the EPA under CAA section 112(c)(6)
remain subject to the requirements established under CAA section
112(d)(2) or (d)(4), as required by CAA section 112(c)(6), even if any
such source reclassifies from a major to an area source after the
effective date of the final rule.
Some background on the standards the EPA sets under CAA section 112
is helpful to understand the implications of the CAA section 112(c)(6)
requirement. Under section 112 of the CAA the EPA is required to
establish emissions standards for ``major sources'' and ``area
sources'' of HAP to control and reduce their emissions. Section
112(a)(1) defines ``major'' source, in relevant part, as ``any
stationary source or group of stationary sources located within a
contiguous area and under common control that emits or has the
potential to emit considering controls,\2\ in the aggregate, 10 tons
per year or more of any hazardous air pollutant or 25 tons per year or
more of any combination of hazardous air pollutants''; and 112(a)(2)
defines ``area'' source, in relevant part, as ``any stationary source
of hazardous air pollutants that is not a major source.'' 42 U.S.C.
7412(a)(1) and (2).
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\2\ ``Potential to emit'' is defined in the NESHAP General
Provisions as ``the maximum capacity of a stationary source to emit
a pollutant under its physical and operational design. Any physical
or operational limitation on the capacity of the stationary source
to emit a pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of
material combusted, stored, or processed, shall be treated as part
of its design if the limitation or the effect it would have on
emissions is enforceable.'' See definition in 40 CFR 63.2.
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Section 112 of the CAA establishes a two-stage regulatory process
to develop standards for emissions of HAP from major stationary
sources, whereas there is typically a one-stage process to develop
standards for area sources. Generally, the first stage for major
stationary sources involves establishing standards based on maximum
achievable control technology (MACT), and the second stage involves
evaluating the predicted results of those standards to determine
whether additional standards are needed to address any remaining risk
associated with HAP emissions. This second stage is commonly referred
to as the ``residual risk review.'' In addition to the residual risk
review, section 112(d)(6) of the CAA also requires the EPA to review
major and area source standards set under CAA section 112 every 8 years
and revise the standards as necessary, taking into account any
``developments in practices, processes, or control technologies.'' This
review is commonly referred to as the ``technology review.''
In the first stage of the CAA section 112 standard setting process,
the EPA promulgates technology-based standards under CAA section 112(d)
for categories of sources identified as emitting one or more of the HAP
listed in CAA section 112(b). Sources of HAP emissions are either major
sources or area sources, and CAA section 112 establishes different
requirements for the two types. For major sources, CAA section
112(d)(2) provides that the technology-based NESHAP must reflect the
maximum degree of HAP emission reductions achievable (after considering
cost, energy requirements, and non-air quality health and environmental
impacts). These standards are commonly referred to as MACT standards.
CAA section 112(d)(3) also establishes a minimum control level for MACT
standards, known as the MACT ``floor.'' For area sources, by contrast,
CAA section 112(d)(5) allows the EPA discretion to set standards based
either on generally available control technologies or management
practices (GACT standards) or on MACT standards. GACT standards are
based on typical performance within a source category and are generally
less stringent than MACT standards.
For categories of major sources and any area source categories
subject to MACT standards, the second stage in standard-setting focuses
on identifying and addressing any remaining (i.e., ``residual'') risk
pursuant to CAA section 112(f) and concurrently conducting a technology
review pursuant to CAA section 112(d)(6). For categories of area
sources subject to GACT standards, there is no requirement to address
residual risk, but, similar to the major source categories, the section
112(d)(6) technology review is required.
In addition to the general standard setting and review processes
described above, CAA section 112(c)(6) requires the EPA to ensure that
sources responsible for 90 percent of the aggregate emissions of each
of seven
[[Page 73296]]
specified pollutants are subject to standards under sections (d)(2) or
(d)(4) of this section. 42 U.S.C. 7412(c)(6). To accomplish this, as
noted previously, the section required the EPA to list, by November 15,
1995, source categories that account for 90 percent of the aggregate
emissions of the listed pollutants, and to promulgate CAA section
112(d)(2) or (4) standards for those source categories by November 15,
2000.
As noted earlier, CAA section 112(d)(2) MACT standards take into
consideration costs and non-air quality health and environmental
impacts. CAA section 112(d)(4), by contrast, authorizes the EPA to set
a health-based standard for a limited set of hazardous air pollutants
for which a health threshold has been established, and provides that
this health-based standard must provide for ``an ample margin of
safety.'' 42 U.S.C. 7412(d)(4). In sum, therefore, CAA section
112(c)(6) specifies that the EPA must list source categories that
account for 90 percent of the emissions of the seven listed HAPs and
``assure'' those sources are subject to MACT or health-based emission
standards, rather than the GACT standards that generally apply to area
sources. Further, the section ensures that sources subject to these
NESHAP are also subject to the additional reviews required for major
sources under CAA sections 112(f) and 112(d)(6).
B. What actions has the EPA taken under CAA section 112(c)(6)?
The EPA has taken several previous actions to identify and list
categories and subcategories of sources that account for 90 percent of
the aggregate emissions of each of the seven HAP listed in CAA section
112(c)(6). In 1998, the EPA issued a document entitled Source Category
Listing for Section 112(d)(2) Rulemaking Pursuant to Section 112(c)(6)
Requirements, 63 FR 17838, 17839 (April 10th, 1998). In that document,
the EPA explains how it developed a 1990 base-year emissions inventory
for the seven HAP enumerated in section 112(c)(6) of the CAA and used
that inventory as the baseline for determining whether 90 percent of
those emissions are subject to standards. In the same document, based
on that inventory, the EPA identified source categories that,
cumulatively, met the 90 percent requirement in CAA section 112(c)(6).
That is, the EPA determined that emissions from the listed source
categories accounted for 90 percent of the total emissions of the seven
listed HAP, as of the base-year emissions inventory.
That 1990 baseline inventory and the category listing have
undergone several updates since their initial publication in 1998. For
example, in a document dated November 8, 2002, the EPA identified 5
area source categories that were no longer needed to meet the 90
percent requirement of CAA section 112(c)(6). National Emission
Standards for Hazardous Air Pollutants: Revision of Source Category
List for Standards Under Section 112(c)(6) and 112(k) of the Clean Air
Act, 67 FR 68124 (2002).\3\ Further, in the same document, the EPA
removed the Open Burning of Scrap Tires source category from the 1990
baseline inventory. Due to the impact these updates had on the
inventory, the EPA promulgated emission standards for several
additional source categories,\4\ while determining that certain other
categories or subcategories are not necessary to meet the 90 percent
requirement under CAA section 112(c)(6).
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\3\ Section 112(k) of the CAA requires the EPA in relevant part
to ``identify not less than 30 hazardous air pollutants which, as
the result of emissions from area sources, present the greatest
threat to public health in the largest number of urban areas,'' and
to ``assure that sources accounting for 90 per centum or more of the
aggregate emissions of each of the 30 identified hazardous air
pollutants are subject to standards'' under CAA section 112(d).
\4\ The EPA concluded in 2015 that sufficient standards had been
promulgated to reach the 90 percent thresholds and does not reopen
that conclusion here.
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In 2001, Sierra Club filed suit in the U.S. District Court for the
District of Columbia asserting, among other allegations, that the EPA
had failed to promulgate emission standards sufficient to satisfy the
90 percent requirement in CAA section 112(c)(6). See Sierra Club v.
Jackson, No. 01-1537 (D.D.C.). In an order issued March 31, 2006
(``2006 order''), the district court set a deadline (later extended)
for the EPA to complete that task. Sierra Club v. Johnson, 444 F. Supp.
2d 46, 59 (D.D.C. 2006). In the course of that suit, the EPA explained
that ``once [it] completes emission standards for the remaining source
categories under section 112(c)(6), it intends to issue a document that
explains how it has satisfied the requirements of section 112(c)(6) in
terms of issuing emission standards for the source categories that
account for the statutory thresholds identified in section 112(c)(6).''
Id.
On March 21, 2011, having promulgated standards sufficient to meet
the 90 percent requirement under CAA section 112(c)(6), the EPA
published a document in the Federal Register announcing it had met its
statutory obligation. Completion of Requirement to Promulgate Emission
Standards, 76 FR 15308 (March 21, 2011). The March 21, 2011, document
contained the EPA Administrator's conclusion that the ``EPA has
completed sufficient standards to meet the 90-percent requirement under
. . . section 112(c)(6)'' (76 FR 15308). The Administrator based that
determination on a technical memorandum ``document[ing] the actions the
Agency has taken to meet these requirements.'' Id. The technical
memorandum, entitled Emission Standards for Meeting the Ninety Percent
Requirement under Section 112(c)(6) of the Clean Air Act and available
at Docket ID No.: EPA-HQ-OAR-2004-0505, included an updated 1990
baseline inventory, an updated list of the source categories necessary
to meet the 90 percent requirement, and a list of emission standards
the EPA has promulgated for these source categories.
In 2011, Sierra Club filed suit in U.S. Court of Appeals for the
District of Columbia (D.C. Circuit) challenging the March 21, 2011,
document. The D.C. Circuit vacated the document, holding that the
document was a legislative rulemaking that must be issued through a
notice and comment rulemaking. Sierra Club v. EPA, 699 F.3d 530, 535
(D.C. Cir. 2012). In 2013, Sierra Club filed a motion with the district
court, seeking enforcement of the 2006 order. In an opinion dated July
25, 2014, the district court held that the EPA failed to comply with
the 2006 order and directed the EPA to initiate a process of notice and
comment rulemaking before the Agency reissues, reconsiders or modifies
its determination regarding CAA section 112(c)(6).
Therefore, the EPA issued a proposed rule on December 16, 2014 (79
FR 74656), as ordered by the D.C. Circuit, and provided an opportunity
for comment on the EPA's proposed determination that it had fulfilled
the requirements of CAA section 112(c)(6). On June 3, 2015, the EPA
issued a Federal Register document finalizing the EPA's determination
that the Agency had promulgated a sufficient number of section
112(d)(2) and (d)(4) emissions standards to satisfy the CAA section
112(c)(6) requirement that sources accounting for not less than 90
percent of the aggregate emissions of seven specific HAP be subject to
standards under CAA sections 112(d)(2) or 112(d)(4) (80 FR 31470).\5\
As of the
[[Page 73297]]
2015 final rule, therefore, the EPA determined that it had
``assur[ed]'' that ``sources accounting for not less than 90 per centum
of the aggregate emissions of'' the seven HAP enumerated in CAA section
112(c)(6) are ``subject to standards under subsection (d)(2) or
(d)(4).'' 42 U.S.C. 112(c)(6).
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\5\ Following a challenge to the 2015 rule, the court remanded
the record to the EPA for explanation of its reliance on surrogates.
In that case, the court remanded the rule so the EPA could provide
additional information about the how the chosen surrogates relate to
the CAA section 112(c)(6) HAP being regulated by the NESHAP. Sierra
Club v. EPA, 863 F.3d 834 (D.C. Cir. 2017).
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C. What actions has the EPA taken dealing with major source
reclassifications?
Shortly after the EPA began promulgating individual NESHAP
following the 1990 CAA Amendments, the Agency received multiple
requests to clarify when a major source of HAP could avoid CAA section
112 requirements applicable to major sources by taking enforceable
limits to constrain its emissions below the major source thresholds and
reclassifying as an area source. In response, the EPA issued a 1995
memorandum, referred to as the ``1995 Seitz Memorandum,'' \6\ which
provided guidance on timing issues related to avoidance of CAA section
112 requirements for major sources.
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\6\ ``Potential to Emit for MACT Standards--Guidance on Timing
Issues,'' from John Seitz to the EPA Regional Air Division Directors
(May 16, 1995) (``1995 Seitz Memorandum'') (available in the docket
for this action).
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In the 1995 Seitz Memorandum, the EPA interpreted the relevant
statutory language under CAA section 112 to find that facilities that
are major sources of HAP may switch to area source status at any time
until the ``first compliance date'' of the standard.\7\ Under this
interpretation, facilities that met the major source definition on the
first substantive compliance date of an applicable major source NESHAP
were required to continue to comply with that major source NESHAP even
if the source subsequently became an area source by taking physical or
operational limitations on the source's capacity to emit. This position
was commonly referred to as the ``Once In, Always In'' (OIAI) policy.
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\7\ Per the 1995 memo, the ``first substantive compliance date''
was defined as the first date a source must comply with an emission
limitation or other substantive regulatory requirement (i.e., leak
detection and repair programs, work practice measures, etc., but not
a notice requirement) in the applicable standard.
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On January 25, 2018, the EPA issued a memorandum from William L.
Wehrum, Assistant Administrator of the Office of Air and Radiation, to
the EPA Regional Air Division Directors, withdrawing the OIAI
policy.\8\ That memorandum, titled ``Reclassification of Major Sources
as Area Sources Under Section 112 of the Clean Air Act'' and referred
to as the Major MACT to Area (MM2A) Memorandum, discussed the statutory
provisions that govern when a facility subject to major source NESHAP
requirements under section 112 of the CAA may reclassify as an area
source and, so long as it remains below the major source thresholds,
avoid major source NESHAP requirements and other requirements
applicable to major sources under CAA section 112.\9\
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\8\ See notice of issuance of this guidance memorandum at 83 FR
5543 (February 8, 2018).
\9\ 40 CFR 63.6(a)(2) states: ``If an area source that otherwise
would be subject to an emission standard or other requirement
established under this part if it were a major source subsequently
increases its emissions of hazardous air pollutants (or its
potential to emit hazardous air pollutants) such that the source is
a major source, such source shall be subject to the relevant
emission standard or other requirement''.
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In the MM2A Memorandum, the EPA announced the future publication of
a proposed rule to solicit input from the public on regulatory
revisions needed to be consistent with the reading of the statute
described in the Memorandum. On July 26, 2019, the EPA proposed
regulatory text to implement the reading of the statute discussed in
the MM2A Memorandum.\10\
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\10\ See 84 FR 36304 (July 26, 2019).
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The EPA published the 2020 MM2A final rule (85 FR 73854) on
November 19, 2020. The rule formalized the withdrawal of the OIAI
policy from the 2018 MM2A Memorandum and codified that a major source
can reclassify to area source status at any time upon reducing its
emissions and potential to emit HAP to below the CAA section 112 major
source thresholds.
D. What did we propose on September 27, 2023, regarding sources
choosing to reclassify?
In September 2023, the EPA proposed to add requirements under the
NESHAP program for sources seeking to reclassify from major source
status to area source status. See 88 FR 66336, September 27th, 2023.
The aim of this proposal was to provide safeguards to prevent
reclassified sources from increasing their emissions beyond the major
source NESHAP requirements applicable at the time of reclassification.
Specifically, the EPA proposed to codify in a new paragraph, 40 CFR
63.1(c)(6)(iv), that any major source choosing to reclassify to area
source status must implement one of the following control methods or a
combination: (1) continue to employ the emission control methods (e.g.,
control device and/or emission reduction practices) required under the
major source NESHAP requirements, including previously approved
alternatives under the applicable NESHAP and associated monitoring,
recordkeeping, and reporting (MRR); (2) comply with the control methods
prescribed for reclassification under a specific NESHAP subpart; or (3)
install and operate the emission controls that the permitting authority
has reviewed and approved as ensuring the emissions of HAP from units
or activities previously covered will not increase above the emission
standard or level that was required under the major source NESHAP
requirements at the time of reclassification. For this last option, the
proposal would have required the record of the permitting authority
decision to identify the specific units and control methods and include
the data and analysis for the emission controls as well as the
determination that MRR is adequate to assure compliance.
In addition to the safeguards, the EPA also proposed that limits
taken by sources to reclassify from major to area sources must be
federally enforceable as a condition of reclassification.\11\
Specifically, we proposed to codify in a new paragraph, 40 CFR
63.1(c)(6)(iii), that, as a condition of reclassification, any
limitations taken by a major source or required by a permitting
authority to reclassify to area source status must be federally
enforceable. The EPA decided not to propose edits to the definition of
PTE under 40 CFR 63.2, opting rather to address the PTE definitions in
the New Source Review, Title V, NESHAP, and related programs in a
separate rulemaking or guidance at a later date.
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\11\ 40 CFR 63.2 defines ``federally enforceable'' in relevant
part as ``all limitations and conditions that are enforceable by the
Administrator and citizens under the Act or that are enforceable
under other statutes administered by the Administrator.''
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Additionally, in light of the special attention Congress paid to
specific pollutants in section 112(c)(6) of the CAA, we sought comment
on whether additional restrictions are warranted for source categories
that are subject to standards under CAA section 112(d)(2) or 112(d)(4)
for the persistent and bioaccumulative HAP listed in CAA section
112(c)(6). Specifically, we sought comment on whether any of the
following additional restrictions are warranted to achieve Congress'
directive that source categories emitting these HAP be subjected to
MACT standards under CAA section 112(d)(2) or (d)(4). First, we sought
comment on restricting any sources \12\ that are subject to a major
source NESHAP and that are included
[[Page 73298]]
in the EPA's 90 percent list for any of the CAA section 112(c)(6) HAP
from reclassifying from major to area source status. Second, we sought
comment on requiring sources subject to a major source NESHAP to remain
subject to that NESHAP for emissions of the section 112(c)(6) HAP even
if those sources reclassify and no longer remain subject to the major
source NESHAP for emissions of non-112(c)(6) HAP. Third, we considered
allowing such sources to reclassify but requiring them to ``continue to
employ the emission control methods (e.g., control device and/or
emission reduction practices) required under the major source NESHAP
requirements, including previously approved alternatives under the
applicable NESHAP and associated monitoring, recordkeeping, and
reporting (MRR).'' See 88 FR at 66346. Finally, we sought comment on
whether any other restrictions on sources or source categories emitting
CAA section 112(c)(6) HAP may be warranted.
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\12\ See EPA-HQ-OAR-2004-0505-0010 for a list of source
categories and corresponding NESHAP subparts used to reach the 90
percent threshold. See table 1.1 of EPA-HQ-OAR-2004-0505-0006 for
the CAA section 112(c)(6) emission inventory.
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III. What is included in this final rule?
A. What are the amendments to the General Provisions of 40 CFR part 63
promulgated as part of this action?
This action amends the General Provisions of 40 CFR part 63 to
require sources subject to certain major source NESHAP subparts to
remain subject to those NESHAP regardless of whether they reclassify to
area source status. Specifically, after September 10, 2024, sources
that are subject to the NESHAP used to reach the 90 percent
requirements articulated in CAA section 112(c)(6) as of September 10,
2024 must remain subject to such NESHAP even if they reclassify to area
source status. Additionally, this final rule makes minor amendments to
reporting requirements for submission of confidential business
information and clarifies what notifications for a reclassifying
facility must contain.
The EPA intends for these two actions to be severable from one
another. Specifically, the EPA separately analyzed and determined the
appropriateness of requirements for those sources that are subject to
NESHAP used to reach the 90 percent threshold requirements in CAA
section 112(c)(6), and of the unrelated minor amendments and
clarifications to notification and reporting requirements for sources
that reclassify. Each of the requirements in this final rule is
functionally independent, such that each may operate independently of
the other. Thus, the EPA has independently considered and adopted each
portion of this final rule, and each is severable should there be
judicial review. If a court were to invalidate either one of these
elements, the EPA intends the remainder of this action to remain
effective.
Importantly, we have designed the different elements of this final
rule separately and each can function sensibly and independently.
Specifically, the requirement for sources to remain subject to NESHAP
listed under CAA section 112(c)(6) will operate independently and is in
no way impacted by the separate clarifications to reporting
requirements for sources that reclassify, and vice versa. Further, the
supporting bases for each element of the final rule reflect the
Agency's judgment that the element is independently justified and
appropriate, and that each element can function independently even if
one or more other parts of the rule has been set aside.
B. What are the effective and compliance dates of the standards?
The revisions to General Provisions of 40 CFR part 63 being
promulgated in this action are effective on September 10, 2024.
IV. What is the rationale for our final decisions and amendments for
the General Provisions of 40 CFR part 63?
For each issue, this section provides a description of what we
proposed and what we are finalizing for the issue, the EPA's rationale
for the final decisions and amendments, and a summary of key comments
and responses.
A. Requirements and Limitations on Reclassification
1. What requirements and limitations were in the proposal for sources
choosing to reclassify?
As described in section II.C. of this preamble, the EPA proposed to
add requirements for sources that reclassify from major to area source
status. This included proposed requirements for reclassified sources to
take federally enforceable limits on their potential to emit, and for
reclassified sources to maintain the MACT-level controls even after
reclassification, which were termed ``safeguards.'' The EPA also sought
comment on whether there should be additional restrictions on sources
that emit specific pollutants covered by CAA section 112(c)(6).
2. What has changed since proposal?
In the 2023 proposal, the EPA noted that the proposed
``safeguards'' would prevent emission increases from sources that elect
to reclassify, and the EPA sought comment on whether additional
measures or limitations were needed for source categories that are
subject to standards under CAA section 112(d)(2) or 112(d)(4) for HAP
listed pursuant to CAA section 112(c)(6).
The EPA is not, at this time, finalizing the proposed safeguards.
During the public comment period, the EPA received substantial comments
regarding the proposed safeguard requirements, and the EPA is still
evaluating those comments. Because the issue requires more study, the
EPA is leaving the 2023 proposal open as we assess finalizing a rule
based on that aspect of the proposal. The EPA continues to be concerned
about the possibility of sources reclassifying and then increasing
emissions above the levels previously allowed under the applicable
NESHAP. Therefore, the EPA continues to consider comments on the 2023
proposal and is working to develop solutions to prevent emissions
backsliding. As discussed in the 2023 proposal, the EPA recognizes that
backsliding would not be consistent with the intent or spirit of the
Act.
In the interim, the EPA finds there is sufficient clarity in the
language of CAA section 112(c)(6) and in related public comments
submitted on the proposed rule to finalize a requirement that sources
in source categories used to satisfy that section's 90-percent
threshold must remain subject to the relevant NESHAP even if they
reclassify to area source status.\13\ This action addresses the EPA's
obligation under CAA section 112(c)(6) to assure sources from the
listed source categories are subject to CAA section 112(d)(2) or (d)(4)
controls.
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\13\ We note that a small number of the NESHAP used for meeting
the 90 percent threshold are NESHAP that apply to area sources. For
these NESHAP, covered sources that are already area sources are not
affected by this rule, because those sources are subject to
standards under CAA section 112(d)(2) or (d)(4), notwithstanding the
fact that they are area sources.
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The EPA is continuing to evaluate whether additional actions are
warranted to mitigate the impacts of the 2020 MM2A final rule,
including to address the potential that sources may reclassify and then
increase HAP emissions above the levels allowed under the applicable
NESHAP. Since the EPA is only taking final action with respect to a
limited aspect of the September 2023 proposal, we are only responding
to comments related to the aspects of the proposal that we are
finalizing in this action.\14\ The EPA continues to consider other
aspects of the 2023 proposal, including safeguards and federal
enforceability for limits
[[Page 73299]]
used to support reclassification of sources. We will respond to the
remaining comments when we take final action on other aspects of the
September 2023 proposal.
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\14\ We have included a list of comments that are within scope
for the final rule in the docket for this action, Docket ID No.:
EPA-HQ-OAR-2023-0330.
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3. What comments did we receive on the interaction of CAA section
112(c)(6) and limits for sources choosing to reclassify, and what are
our responses?
Comment: Several commenters agreed with the EPA that the
reclassification of sources that agree to keep their aggregate
emissions of hazardous air pollutants below the major source threshold
should not result in those sources avoiding compliance with the MACT
standards for the seven persistent and bioaccumulative air toxics
listed in CAA section 112(c)(6). The commenters suggested that allowing
sources that reclassify to avoid the CAA section 112(c)(6) MACT
requirements would defeat one of the primary purposes of the Act's air
toxics provisions, which is to ensure sources that emit these specific
pollutants are subject to the most protective standards possible.
Several commenters argued that maintaining the requirements placed on
these sources through the NESHAP program will ensure that the EPA meets
Congress' directive and ensures continued protection of public health.
One commenter argued that the EPA is legally required to include a
restriction to expressly prevent reclassification by sources subject to
a major source NESHAP used to reach the 90 percent threshold for the
specific pollutants listed in CAA section 112(c)(6), because that
threshold reflects Congressional expectations on the scope of program
coverage for specified pollutants, and the EPA cannot now ignore CAA
section 112(c)(6). The commenter asserted that the EPA has authority to
impose restrictions to protect overall NESHAP program integrity,
Specifically, the commenter asserted the EPA should account for the
fact that NESHAP standards, including those developed for CAA section
112(c)(6), were developed and implemented for decades without any
considered design of allowing major sources to drop from major source
NESHAP regulation. The commenter also asserted that the EPA has full
authority to disallow reclassification by sources that were relevant to
satisfaction of CAA section 112(c)(6) requirements, and the EPA may
choose to disallow this on a temporary basis at least until a future
program review is completed on the impacts of the MM2A final rule,
which could be combined with future rulemakings to ensure that area
source standards are developed or strengthened to align with their
major source NESHAP categories.
Response: As discussed further in section IV.A.4. of this preamble,
the EPA agrees with commenters that CAA section 112(c)(6) obligates the
EPA to assure sources accounting for 90 percent of emissions of seven
specific HAP remain subject to standards under sections 112(d)(2) or
(d)(4) of the CAA. Allowing the sources subject to the NESHAP used to
reach the 90 percent thresholds for these pollutants to reclassify and
thereby avoid complying with those NESHAP would undermine the statutory
requirement to ``assur[e]'' that the sources regulated under CAA
section 112(c)(6) remain subject to standards under CAA section
112(d)(2) or 112(d)(4). In this final rule, the EPA is adding a
restriction to the General Provisions of 40 CFR part 63 that will
require sources that are subject to the NESHAP used to reach the CAA's
90 percent requirements for CAA section 112(c)(6) as of September 10,
2024 to remain subject to those specific major source NESHAP subparts
regardless of whether they reclassify to area source status after
September 10, 2024.
Comment: One commenter argued that the 2020 MM2A rule eliminated
the EPA's ability to ensure sources subject to previously promulgated
standards continue to comply with MACT standards. Therefore, the
commenter claimed that CAA section 112(c)(6) requires that the Agency
prevent any sources within the categories the EPA has used to reach the
statutory 90-percent threshold for any of the CAA section 112(c)(6) HAP
from reclassifying from major source status to area source status,
because in the commenter's view, reclassification would allow the
sources to increase their emissions above the levels allowed in the
applicable NESHAP.
Two commenters argued that the language of CAA section 112(c)(6)
requires the EPA to assure that a minimum of 90 percent of emissions of
each pollutant are subject to MACT standards, and that the standards
must be MACT limits promulgated under CAA section 112(d)(2) and not
substitute restrictions adopted under other authorities. One commenter
noted, for example, there are no health thresholds enabling the use of
standards under CAA section 112(d)(4) for the pollutants listed in CAA
section 112(c)(6).
Two commenters noted that CAA section 112(c)(6) creates an
independent mandate that comprises both listing sources and
promulgating standards (Sierra Club v. EPA, 699 F.3d 530, 531 (D.C.
Cir. 2012)) and thereby imposes a substantive duty to issue CAA section
112(c)(6) standards, and to undertake any additional source-listing or
standard setting required to reach the 90 percent threshold. Id. at
535. The commenters also noted that the CAA eliminates any prerequisite
that the EPA make ``a finding of health or environmental threat from
area sources to determine if such sources need to be included to meet
the 90 percent requirement'' (63 FR 17,838, 17,842 (April 10, 1998))
and also requires the EPA ``to establish and subject these listed
sources to MACT standards, . . . even if it would have otherwise had
the discretion to apply a less-stringent standard to any area sources
on the list.'' (Sierra Club v. EPA, 863 F.3d 834, 835 (D.C. Cir. 2017)
(Sierra Club II).)
One commenter noted that the EPA has purported to satisfy those
duties by listing and promulgating standards for a series of source
categories that contain the sources accounting for 90 percent of the
aggregate emissions of each of the seven pollutants listed in CAA
section 112(c)(6). The commenter also noted, however, that these source
categories also include hundreds of sources that the EPA predicts could
be eligible for reclassification based on the EPA's analysis of the
categories and sources that the EPA believes likely to achieve cost
savings by escaping MACT. (EPA-HQ-OAR-2023-0330-0020). The commenter
concluded that the EPA lacks the statutory authority to exempt sources
from MACT standards within the categories it has identified as
necessary to satisfy CAA section 112(c)(6)'s mandate.
Two commenters stated that the EPA should confirm that because
sources in the categories on its CAA section 112(c)(6) list are
minimally necessary to satisfy CAA section 112(c)(6)'s independent
requirements, the Agency cannot allow those sources to escape MACT
standards, and the EPA should finalize a rule requiring sources in
those categories to continue to comply with MACT standards regardless
of whether their post-compliance emissions exceed the major-source
threshold. The commenters stated that otherwise the 2020 MM2A rule,
even with the additional safeguards contained in the 2023 MM2A
proposal, would be flatly inconsistent with CAA section 112(c)(6).
Response: The EPA agrees that CAA section 112(c)(6) requires the
EPA to assure that sources accounting for 90 percent of the aggregate
emissions of the HAP listed in CAA section 112(c)(6) are subject to
standards under CAA sections 112(d)(2) or 112(d)(4). The EPA is
promulgating a requirement that assures
[[Page 73300]]
that outcome for sources subject to the NESHAP used reach the 90
percent thresholds required by CAA section 112(c)(6). See section
IV.A.4 for discussion of the EPA's rationale for the promulgated
requirement. Such sources may still reclassify from major to area
source status, but they must remain subject to the NESHAP used to
assure that 90 percent of the emissions of the section 112(c)(6)-listed
HAP are subject to standards under CAA section 112(d)(2) or 112(d)(4).
Comment: One commenter argued that the EPA also has authority, and
an obligation, to adopt the proposed restriction to prevent CAA section
112(c)(6) sources from reclassifying as a necessary revision under CAA
section 112(d)(6) under the decision in Louisiana Environmental Action
Network v. EPA, 955 F.3d 1088, 1099 (D.C. Cir. 2020), which found that
CAA section 112(d)(6) obligates the EPA to revise standards to correct
``unlawfully omitted'' controls. The commenter also asserted that the
statutory authority for restricting reclassification for CAA section
112(c)(6) sources is independent and severable of those supporting the
EPA's other proposed safeguards.
Response: The EPA agrees that the statutory authority under CAA
section 112(c)(6) is distinct from the EPA's authority for proposed
safeguards. However, the EPA does not agree that CAA section 112(d)(6)
requires the amendments included in this final rule. Louisiana
Environmental Action Network v. EPA, 955 F.3d 1088 (D.C. Cir. 2020)
requires the EPA to address regulatory gaps when the EPA undertakes a
CAA section 112(d)(6) technology review, such as establishing missing
MACT standards for listed air toxins known to be emitted from a
particular source category. In this rule, the EPA has determined that
CAA section 112(c)(6) obligates the EPA to assure that sources subject
to the NESHAP used to establish 90 percent thresholds under that
provision remain subject to those NESHAP, such that the sources in that
source category remain in the pool of sources evaluated pursuant to the
reviews conducted under CAA sections 112(f) and 112(d)(6). However,
this authority under CAA section 112(c)(6) is distinct from the EPA's
gap-filling obligation in promulgating technology reviews under CAA
section 112(d)(6) pursuant to Louisiana Environmental Action Network v.
EPA, 955 F.3d 1088 (D.C. Cir. 2020). See section IV.A.4. of this
preamble for discussion of our rationale and statutory authority.
Comment: One commenter urged the EPA to require reclassified
sources to continue to comply with HAP-specific MACT standards and
asserted that those sources should not be allowed to characterize as
``controls'' measures that would produce an increase in any HAP. The
commenter noted that many of the regulated HAP are harmful in
extraordinarily small quantities and are specifically listed in CAA
section 112(c)(6), whereas other HAP are not. The commenter predicted
that aggregate limits, even for sources outside the scope of CAA
section 112(c)(6), would allow for dangerous increases in toxics that
are only ever emitted in very small quantities, and of which affected
communities would have no knowledge.
Response: As discussed further in section IV.A.4. of this preamble,
the EPA has determined that given the special attention paid by
Congress to the specific HAP included in CAA section 112(c)(6), the
agency must disallow sources subject to NESHAP used to meet the 90
percent requirement of CAA section 112(c)(6) from avoiding compliance
with those NESHAP through reclassification. Therefore, such sources
must remain subject to those NESHAP, regardless of whether they
reclassify to area source status.
However, the EPA is not at this time finalizing the proposed
safeguards. During the public comment period, the EPA received
substantial comments regarding the proposed safeguard requirements, and
the EPA is still evaluating those comments. Because the issue requires
more study, the EPA is leaving the proposal open as the EPA assesses
finalizing a rule based on that aspect of the 2023 proposal. The EPA
continues to be concerned about the possibility of sources increasing
emissions as a result of reclassification and continues to consider
comments on the 2023 proposal. In the interim, to address this concern
in part, the EPA finds there is sufficient clarity regarding a subset
of MACT-subject sources--those in categories relied on to satisfy CAA
section 112(c)(6)--to justify acting now by finalizing a requirement
for CAA section 112(c)(6)-affected sources to remain subject to the
specific NESHAP that are used to meet the 90 percent thresholds under
CAA section 112(c)(6) regardless of whether the sources reclassify.
Comment: Two commenters stated that allowing facilities to
reclassify does not jeopardize the EPA's original goal of regulating 90
percent of the emissions of CAA section 112(c)(6) HAP because only 200
facilities have reclassified since the EPA changed its policy towards
reclassification (see 88 FR 66349). One commenter added that those
reclassifications do not automatically result in an increase in HAP
emissions to just under the major source thresholds from detuning of
controls.
Response: As discussed in section IV.A.4. of this preamble, the EPA
has determined that allowing sources that reclassify to avoid the
NESHAP used to meet the statutory requirement of CAA section 112(c)(6)
is inconsistent with the Congressional mandate that the EPA
``assur[e]'' sources accounting for 90 percent of the emissions of the
seven specific HAP listed in CAA section 112(c)(6) are subject to
standards under CAA sections 112(d)(2) or 112(d)(4). Therefore, the EPA
is finalizing a requirement that sources subject to these NESHAP must
continue to comply even if the sources reclassify to area source
status. The EPA disagrees with the commenter that such a restriction
would only be justified if there were past evidence of sources' taking
advantage of reclassification to increase their emissions to just below
the major source thresholds. Congress clearly intended sources in the
section 112(c)(6) source categories to continue to be subject to CAA
section 112(d)(2) or (d)(4) standards, rather than GACT standards or
whatever other standards (if any) apply to area sources in the source
category. The EPA disagrees with the comment that we can assume that
source categories required to reach the 90 percent threshold in CAA
section 112(c)(6) will continue to be subject to standards under CAA
sections 112(d)(2) or (d)(4) merely because there have not been a large
number of reclassifications to date. The number of reclassifications to
date is not relevant to ensuring that the EPA meets the statutory
requirement in CAA section 112(c)(6). This action seeks to assure that
sources subject to the NESHAP used to meet the statutory 90 percent
requirement remain subject to standards under CAA sections 112(d)(2) or
112(d)(4), as section 112(c)(6) requires. As discussed further in
section IV.A.4. of this preamble, the EPA finds this action is needed
to meet the Agency's statutory obligation to ``assure'' that sources
that account for 90 percent of the emissions of the seven HAP listed in
CAA section 112(c)(6) remain subject to standards under CAA section
112(d)(2) or 112(d)(4), given that the 2020 MM2A rule would otherwise
permit such sources to reclassify to area source status and no longer
be subject to major source NESHAP requirements.
Comment: One commenter argued that the EPA should not adopt
additional restrictions on MM2A for sources of persistent and
bioaccumulative HAP under CAA section 112(c)(6) because the proposed
[[Page 73301]]
``safeguards'' in the 2023 proposal are sufficient without further
restrictions. The commenter asserted that if the 2020 MM2A rule
operates properly, it should incentivize major sources to become area
sources, through the adoption of innovative pollution control
strategies--whether those are based on elements of existing major
source NESHAP or are based on technological or material breakthroughs.
Response: The EPA has determined that the final amendments are
required by CAA section 112(c)(6). The EPA is not at this time
finalizing the proposed safeguards. During the public comment period,
the EPA received substantial comments regarding the proposed safeguard
requirements, and the EPA is still evaluating those comments. Because
the issue requires more study, the EPA is leaving the proposal open as
the EPA assesses finalizing a rule based on that aspect of the 2023
proposal. The EPA continues to be concerned about the possibility of
sources increasing emissions as a result of reclassification and
continues to consider comments on the 2023 proposal. In the interim, to
address this concern in part, the EPA finds there is sufficient clarity
regarding a subset of MACT-subject sources--those in categories relied
on to satisfy CAA section 112(c)(6)--to justify acting now by
finalizing a requirement for CAA section 112(c)(6)-affected sources to
remain subject to the specific NESHAP that are used to meet the 90
percent thresholds under CAA section 112(c)(6) regardless of whether
the sources reclassify.
Comment: One commenter argued that the EPA has no authority to
impose constraints on reclassification under CAA section 112(c)(6). The
commenter asserted that the CAA section 112(c)(6) requirement for the
EPA to list and regulate a sufficient number of source categories to
``assur[e] that sources accounting for not less than 90 per centum of
the aggregate emissions of each pollutant [listed under CAA section
112(c)(6)] are subject to standards under subsection (d)(2) or (d)(4)''
is unambiguously a one-time requirement. The commenter argued that it
does not impose any obligation on the EPA to monitor the regulated
source categories and make adjustments over time to maintain the 90
percent requirement. Similarly, the commenter asserted this provision
imposes no obligation on affected sources to continue to comply with a
NESHAP that the EPA relied upon in making the 90 percent determination.
The commenter added it would be unreasonable in any event to construe
the statute as imposing such obligations because the EPA would forever
have to track the number of affected sources, the emissions of such
affected sources, and changes to those sources that might affect the
EPA's prior 90 percent determination, and the EPA would be required to
adjust existing emissions standards or impose new emissions standards
to maintain 90 percent coverage.
Response: This rule does not revisit the 2015 determination that
sufficient source categories have been subjected to standards under CAA
sections 112(d)(2) or (d)(4) to satisfy the section 112(c)(6) 90
percent requirement. However, as discussed further in section IV.A.4.,
the EPA has determined that the CAA requires that the EPA set standards
sufficient to ``assure'' that sources in the categories and
subcategories used to reach the 90 percent threshold are subject to
section 112(d)(2) or (d)(4) standards. The EPA's determination of which
NESHAP are necessary to achieve the 90 percent thresholds was made
prior to the MM2A rulemaking, at a time when major sources, under the
OIAI policy, were required to continue to comply with previously
applicable major source NESHAP, even if the sources reduced emissions
below major source thresholds. Allowing for sources subject to the
NESHAP required to meet the 90 percent threshold to no longer be
subject to these standards is contrary to the Agency's obligation to
``assur[e]'' those sources remain subject to standards under CAA
sections 112(d)(2) or (4). The limitation promulgated today implements
the statutory requirement under CAA section 112(c)(6) to assure source
categories accounting for 90 percent of the aggregate emissions of the
specific listed HAP are subject to CAA section 112(d)(2) or (d)(4)
standards. Congress could not have envisioned requiring the EPA to list
and regulate categories and subcategories of sources, and to assure
those categories and subcategories of sources are subject to standards
under CAA section 112(d)(2) and 112(d)(4), only to have those sources
reclassify and avoid the standards that Congress explicitly required
the EPA to establish for these source categories. Therefore, we have
determined that even if a facility reclassifies, the sources at the
facility that are subject to these NESHAP must remain subject, to
assure they are subject to standards under CAA sections 112(d)(2) or
112(d)(4), as required by CAA section 112(c)(6).
Comment: A commenter opposed the option the EPA requested public
comment on that would require sources to comply with the applicable
major source standards for the seven HAP listed in CAA section
112(c)(6) while allowing sources to reclassify for other HAP. The
commenter acknowledged that the EPA has the authority to apply GACT
instead of MACT standards for area source emissions of pollutants other
than the seven HAP listed in CAA section 112(c)(6). However, the
commenter asserted that the EPA did not adequately justify why GACT
standards would be more appropriate than MACT for all source categories
rather than the rule-specific decisions the EPA has made in the past
when developing MACT standards for area source standards promulgated
under CAA section 112(c)(6) and GACT standards for other HAP from those
area source categories. In addition, the commenter explained that this
option would be impractical because the EPA relies on surrogates for
the seven HAP listed in CAA section 112(c)(6), and there is no rule-
specific analysis that could be used to support a pollutant-by-
pollutant reconciliation of the 2020 MM2A Rule with the CAA section
112(c)(6) requirements for each pollutant. The commenter argued that
the EPA did not explain how this proposed option would support
Congress' goals of reducing HAP emissions and associated public health
risks from these pollutants. Therefore, the commenter recommended that
the EPA prevent CAA section 112(c)(6) listed sources from reclassifying
as area sources for all HAP.
Similarly, another commenter emphasized that if the EPA does not
completely repeal the 2020 MM2A rule, the EPA should not allow sources
of the seven HAP listed in CAA section 112(c)(6) to reclassify as area
sources and avoid the required emission reductions because the CAA
specifically requires the EPA to ensure that 90 percent of the
aggregate emissions for each pollutant are reduced to the maximum
degree achievable.
Response: The EPA agrees with the commenter that it would not be
appropriate to require sources of the seven HAP listed in CAA section
112(c)(6) to continue to comply only with standards addressing those
CAA section 112(c)(6) HAP while no longer complying with other parts of
the same NESHAP that do not directly address the 112(c)(6) HAP. As the
commenter states, many of these NESHAP regulate the CAA section
112(c)(6) HAP through surrogates and it would be impractical to attempt
to bifurcate compliance with a NESHAP. There is often a large degree of
overlap in the controls, monitoring, recordkeeping, and reporting
requirements that deal with CAA section 112(c)(6) HAP and other HAP. It
[[Page 73302]]
would create unnecessary burden and confusion to require sources to
separate emissions of CAA section 112(c)(6) HAP from other pollutants.
As explained further in section IV.A.4. below, the EPA finds that CAA
section 112(c)(6) requires that while sources subject to NESHAP used
for 112(c)(6) can still reclassify under the 2020 MM2A rule for
purposes of other NESHAP not used to meet the CAA section 112(c)(6)
requirements, those sources must continue to comply with all aspects of
the CAA section 112(c)(6)-listed NESHAP regardless of whether they
reclassify to area source status.
Comment: Several commenters asked the EPA to not allow major source
emitters of mercury, dioxins, and PCBs and the other persistent and
bioaccumulative pollutants listed in CAA section 112(c)(6) to
reclassify as area sources, increase HAP emissions, and avoid
monitoring and reporting requirements. Another commenter recommended
that the EPA require all sources that emit persistent, bioaccumulative,
or highly toxic HAP to follow the applicable NESHAP's emission control
methods and monitoring, recordkeeping, and reporting requirements. One
commenter emphasized that sources must comply with standards under CAA
section 112(d)(2), and the EPA must not allow substitute standards,
which could result in higher HAP emissions.
Response: The EPA agrees with commenters that sources used to meet
the CAA's requirement to subject sources of 90 percent of the aggregate
emissions of the HAP listed in 112(c)(6) should remain subject to those
NESHAP, regardless of whether they reclassify to area source status.
See section IV.A.4. for further discussion of our rationale.
4. What is the rationale for our final approach for CAA 112(c)(6)
sources?
In this action, the EPA is finalizing requirements specific to CAA
section 112(c)(6)-affected source categories. Specifically, to fulfill
the EPA's statutory obligation to assure that sources accounting for 90
percent of the emissions of the seven HAP listed in section 112(c)(6)
are subject to standards under CAA section 112(d)(2) or 112(d)(4), the
EPA is requiring that such sources remain subject to the relevant
NESHAP for their source category regardless of whether the sources
reclassify to area-source status. The EPA finds that the 2020 MM2A
rulemaking interfered with our obligations under CAA section 112(c)(6),
because that rulemaking allowed major sources to reclassify to area
source status but did not address the section 112(c)(6) requirement
that such sources remain subject to standards issued under section
112(d)(2) or (d)(4). The Agency is therefore taking this action to
assure that even if CAA section 112(c)(6)-affected sources reclassify,
they remain subject to standards under CAA section 112(d)(2) or
112(d)(4). The EPA finds that this interpretation of CAA section
112(c)(6) comports with the text and purpose of the statute, relevant
case law, and the context of CAA section 112(c)(6) within CAA section
112. The EPA is not revisiting our determination that we do not have an
ongoing obligation to update the list of source categories used to
reach the CAA section 112(c)(6) 90 percent requirements.
In this action the EPA is fulfilling our obligations under CAA
section 112(c)(6), which provides that with respect to seven persistent
and bioaccumulative HAP, the EPA shall ``list categories and
subcategories of sources assuring that sources accounting for not less
than 90 per centum of the aggregate emissions of each such pollutant
are subject to standards under subsection (d)(2) or (d)(4).'' The EPA
finds the best interpretation of CAA section 112(c)(6) is that the
provision required the EPA to ``list'' source categories and ``assure''
that sources within those categories are and remain ``subject to
standards under subsection (d)(2) or (d)(4).'' That is, we find that
CAA section 112(c)(6) established two obligations for EPA: (1) to list
categories and subcategories of sources to reach the 90 percent
threshold; and (2) to assure such sources are subject to CAA section
112(d)(2) or 112(d)(4) requirements. The EPA satisfied the first
obligation by listing and identifying categories and subcategories of
sources to account for 90 percent of the aggregate emissions of each of
the seven HAP listed in CAA section 112(c)(6) in prior actions, which
are discussed in section II.B. of this preamble. When we issued our
listing determinations, the OIAI policy in effect at that time ensured
the second obligation--to assure that affected sources are subject to
standards under CAA section 112(d)(2) or 112(d)(4)--would be satisfied
in perpetuity, because listed sources could not avoid CAA section
112(d)(2) or (d)(4) controls by reclassifying. However, since the EPA
withdrew the OIAI policy and allowed major sources to reclassify to
area source status, and no longer be subject to major source NESHAP
requirements and as a result possibly relaxing their emissions
controls, the EPA finds that we are now obligated to promulgate this
rulemaking to assure that sources in the listed categories nonetheless
remain subject to standards under CAA section 112(d)(2) or 112(d)(4).
For these reasons, the EPA finds it is necessary to require that
any source subject to major source NESHAP used to reach the CAA section
112(c)(6) 90 percent thresholds on September 10, 2024 remains subject
to the same NESHAP regardless of whether the source reclassifies. In
other words, a facility cannot avoid these CAA section 112(c)(6)-
specific NESHAP by otherwise reclassifying from major to area source
status after the effective date of this final rule. This final rule
does not prevent reclassification for such sources. If a source is
subject to multiple NESHAP, including some that are used to reach the
CAA section 112(c)(6) 90 percent thresholds and others that are not,
the source must remain subject to the CAA section 112(c)(6) NESHAP but
is not required to remain subject to other major source NESHAP after
reclassification.
The EPA finds support for this action in the special attention
Congress paid to the seven HAP in CAA section 112(c)(6), by introducing
additional requirements for these specific pollutants. The EPA finds
that by allowing sources emitting these seven HAP to reclassify to area
source status without maintaining CAA section 112(d)(2) or (d)(4)
requirements for the NESHAP used to meet the 90 percent thresholds
under CAA section 112(c)(6), the 2020 MM2A rule violated Congress'
mandate that the EPA ``assure'' these sources are subject to CAA
section 112(d)(2) or 112(d)(4) requirements. This mandate reflects
Congress' clear intent that the EPA not only list source categories
sufficient to cover 90 percent of the seven HAP identified in section
112(c)(6), but also ensure that these source categories remain subject
to standards under CAA section 112(d)(2) or 112(d)(4), as opposed to
the lesser GACT-level standards that frequently apply to area sources.
In light of the ability of a major source to reclassify to an area
source at any time as a result of the 2020 MM2A final rule, the EPA
finds that the best way to achieve Congress' direction to, ``assur[e]
that sources accounting for not less than 90 per centum of the
aggregate emissions of each such pollutant are subject to standards
under subsection (d)(2) or (d)(4),'' is for CAA section 112(c)(6)
listed source categories to maintain CAA section 112(d)(2) or (d)(4)
controls and other requirements in the NESHAP. This will also ensure
that any future revisions to these NESHAP (e.g., promulgated under CAA
sections 112(f) or 112(d)(6) to amend the applicable
[[Page 73303]]
NESHAP) will apply to these sources. Sources covered by CAA section
112(c)(6)-listed NESHAP that are subject to title V permitting
requirements remain subject to those requirements if they reclassify to
area source status. In general, area sources subject to a NESHAP are
required to have a title V permit unless the EPA has exempted the
source category from title V permit. See, e.g., 40 70.3(b)(2). In
addition, because certain NESHAP require sources to comply with title V
permitting requirements, sources that remain subject to such NESHAP
through this rulemaking must therefore also continue to comply with
title V permitting requirements.
The EPA finds that its interpretation of CAA section 112(c)(6) also
comports with the D.C. Circuit's description of the EPA's CAA section
112(c)(6) obligations in Sierra Club v. EPA, 863 F.3d 834 (D.C. Cir.
2017), and is supported by commenters to the 2023 MM2A proposal. In
Sierra Club v. EPA, the court read CAA section 112(c)(6) to create two
requirements for the EPA: (1) to list categories and subcategories of
sources of the seven specific HAP that account for 90 percent of the
aggregate emissions of each; and (2) to establish and subject the
listed sources to MACT standards. 863 F.3d 834, 835 (D.C. Cir. 2017).
In that case, the court explained that CAA section 112(c)(6) requires
the EPA, ``to establish and subject these listed sources to MACT
standards, . . . even if [the EPA] would have otherwise had the
discretion to apply a less-stringent standard to any area sources on
the list.'' Id. Two commenters to the 2023 MM2A proposed rule agreed
with this interpretation, stating that CAA section 112(c)(6) creates an
independent mandate that comprises both listing sources and
promulgating standards. Further, these commenters noted that allowing
CAA section 112(c)(6) sources to reclassify to avoid meeting MACT
standards would defeat the primary purpose of the provision, which is
to ensure that both major and area sources of these specific HAP are
subject to the most protective standards possible. We note that a
number of area source categories have been subjected to MACT standards
under CAA section 112(c)(6), including gold mines, electric arc furnace
steelmaking, and area source coal fired boilers because these sources
emit the specific HAP listed in CAA section 112(c)(6).
The EPA has previously established the list of source categories
comprising the 90 percent thresholds in prior rulemakings and is not
re-opening that determination. In this regard, the EPA is not
revisiting the finding in the 2020 MM2A rulemaking (84 FR 36311) that
it would not be reasonable to read CAA section 112(c)(6) to require an
unattainable goal of continuing to meet the 90 percent threshold
requirement even as overall emissions decline due to compliance with
MACT standards. In that rulemaking, however, the EPA did not
sufficiently consider the import of allowing 112(c)(6)-affected sources
to reclassify--namely that in some cases, such sources could escape
MACT standards and thereby undermine the protections that Congress laid
out in CAA section 112(c)(6).
Prior to the 2018 MM2A memo and 2020 MM2A rulemaking, the EPA had
previously satisfied our obligation under CAA section 112(c)(6) to
``assure'' sources in listed source categories remain subject to CAA
section 112(d)(2) or (d)(4) standards, because no major NESHAP sources
were able to reclassify as area sources after the first substantive
compliance date of the applicable NESHAP. However, now that major
sources are able to reclassify at any time as a result of the 2020 MM2A
final rule, the EPA finds this action is necessary to ensure that both
obligations reflected in CAA section 112(c)(6) are met. Because of the
2020 MM2A rulemaking, CAA section 112(c)(6)-listed major sources may
currently reclassify to area source status without any requirement that
they remain subject to CAA section 112(d)(2) or (d)(4) standards--
thereby thwarting the second mandate of CAA section 112(c)(6). This
rule addresses that problem.
The EPA's prior actions and statements regarding CAA section
112(c)(6) are not at odds with this action. The EPA's prior CAA section
112(c)(6) actions focused on listing source categories to satisfy the
90 percent threshold requirement. However, because the OIAI policy was
in place at the time of those actions, the EPA did not consider that
sources subject to the listed NESHAPs could subsequently reclassify,
and that the EPA's obligation to assure that those listed source
categories are subject to CAA sections 112(d)(2) and (d)(4) standards
could be abrogated. In the 2015 listing rulemaking, the EPA explained,
``CAA section 112(c)(6) requires the EPA to ensure that source
categories responsible for at least 90 percent of the aggregate
emissions of each of the 7 specified pollutants are subject to
standards under CAA sections 112(d)(2) or 112(d)(4)'' (80 FR 31470,
31471, June 3, 2015). Because the OIAI policy was in place at the time
of that rulemaking, the EPA had no occasion to consider that a facility
included in the listed source categories identified in that rulemaking
would be able to reclassify after the first substantive compliance date
and subsequently evade CAA section 112(d)(2) or (d)(4) standards. The
EPA noted at the time of the 2015 rulemaking that the ``CAA section
112(c)(6) determination is a simple, discretionary accounting of the
EPA's previous regulatory efforts.'' The EPA continues to agree with
that conclusion in that the first aspect of the EPA's CAA section
112(c)(6) authority, and what was addressed in that rulemaking, was a
listing exercise. This action is meant to maintain the status quo by
ensuring that sources in those previously listed source categories that
account for 90 percent of the enumerated HAP in CAA section 112(c)(6)
remain subject to the standards called for in the statute.
In the 2020 MM2A rulemaking the EPA disagreed with commenters who
claimed that CAA section 112(c)(6) created a continuous obligation such
that affected sources could not reclassify. The EPA does not revisit
that determination here, but in any event the Agency's reason for
disagreement with such comments is distinct from the Agency's rationale
here. This rulemaking does not upset the previously established 90
percent thresholds, nor create a ``never-ending cycle of listing and
regulation in order to achieve an unattainable goal of ensuring that 90
percent of emissions are regulated,'' which the EPA expressed concerns
about in the 2020 MM2A rule (85 FR 73861) and does not reconsider here.
Rather this rulemaking closes a regulatory gap to address the EPA's
obligation under CAA section 112(c)(6) that was opened with the 2018
MM2A memorandum and 2020 rulemaking. Further, this rulemaking does not
prevent any source from reclassifying, rather we are adding
requirements to ensure that reclassification for certain sources does
not undermine Congress's intent that these sources are subject to
standards under CAA section 112(d)(2) or 112(d)(4).
The EPA's authority for this action is distinct from the EPA's
authority to either allow or prevent sources subject to a NESHAP
applicable only to major sources from reclassifying (i.e., the MM2A and
OIAI policies). As the EPA explained in the 2020 MM2A final rule, those
policies centered on the ``major source'' and ``area source''
definitions under CAA sections 112(a)(1) and (2). By contrast, in this
rulemaking, the EPA is acting to fulfill an obligation under CAA
section 112(c)(6) that applies regardless of how the Agency addresses
[[Page 73304]]
the broader question of whether major CAA section 112 sources may
reclassify.
Though not implicated in this action, we believe the broader
questions regarding reclassification deserve further consideration. The
EPA will consider revisiting these questions in a future action. Legal
and policy questions surrounding the 2020 MM2A rule remain unsettled.
The EPA finds there is general support in the text, purpose, and
legislative history of CAA section 112 for the idea that certain
sources should maintain MACT standards even if they reclassify. The EPA
believes that allowing sources to increase their emissions after
reclassification beyond the level allowed under the relevant NESHAP
does not comport with the broader structure of CAA section 112. If such
emissions increases were contemplated by the statute, Congress would
set MACT standards at either (1) the maximum degree of emissions
reduction, or (2) reductions sufficient to bring emissions below the
major source threshold, whichever is less stringent. Clearly, Congress
did not do so. In fact, Congress acknowledged the possibility of
requiring elimination of HAP emissions through MACT standards (CAA
section 112(d)(2)(A)). At present, however, the EPA is not addressing
this discrepancy. Rather, we are addressing only CAA section 112(c)(6)-
affected sources, while we continue to evaluate ways to address the
tension between MM2A and the requirements of the rest of CAA section
112.
In the interest of timely addressing what the EPA finds is a
particular concern due to the need to fulfill CAA section 112(c)(6),
the EPA is finalizing this action to apply only prospectively, i.e.,
just with respect to sources that have not yet reclassified. The EPA is
not at this time requiring sources that have already reclassified to
come back into compliance with the relevant NESHAP, as this would
involve complicated questions about appropriate compliance schedules
among other issues. However, the EPA continues to consider whether
additional actions are needed for sources that have already
reclassified.
B. Other Aspects of the September 2023 Proposal
1. What did we propose related to reclassification effective date,
notifications, and CBI reporting?
In the September 2023 proposal, the EPA proposed that
reclassifications that occur after the effective date of this action
will be effective upon the date of electronic submittal of the
notification to the EPA. Additionally, the EPA proposed to clarify the
original intent of the language in 40 CFR 63.9(j) to more clearly
indicate that applications for reclassification must be submitted to
the Compliance and Emissions Data Reporting Interface (CEDRI) and
contain the information required in 40 CFR 63.9(j)(1) through (4). We
also proposed to update the procedures for submittal of confidential
business information to include electronic submittal procedures.
2. How have these aspects of the proposed rule changed since proposal?
We received significant public comments on the proposed
clarifications related to reclassification effective date and
submission of the required notification of reclassification on the
interaction between the proposal and state permitting programs. We have
determined that these comments warrant further evaluation and are not
finalizing these aspects of the proposal in this action. We also
received public comments on the clarifications to the notification
already required under 40 CFR 63.9(j). These comments and our responses
are in section IV.B.3. below. We did not receive public comments on the
proposed changes to the CBI submittal procedures.
3. What comments did we receive on the proposed clarifications to
notification requirements and procedural issues related to proposed
amendatory text?
Comment: One commenter stated that the proposed requirement that
reclassifications will only become effective once a permit containing
the proposed enforceable requirements is issued and electronic
notification is submitted to the EPA through CEDRI, per 40 CFR 63.9(j),
is inconsistent with how permits and legal enforceability have
historically been understood under the CAA. The commenter recommended
that the EPA should not require electronic notification to be an
element of determining reclassification. The commenter explained that
if applicable major source NESHAP continue to apply until electronic
notification is submitted, permits issued to reclassifying sources
would need to include a compliance schedule for both the applicable
major source NESHAP requirements and the safeguards because both would
be applicable until electronic certification could be submitted.
One commenter agreed that sources should notify the Agency of
reclassification and such notification is for everyone's benefit as it
makes clear which regulatory standards apply to sources upon
reclassification.
One commenter agreed that emission and PTE change notifications
should be submitted through CEDRI to increase public access to this
information. Another commenter requested additional clarification
regarding the content and format of the information that would be
required to be submitted through CEDRI, and 2 commenters generally
supported the proposed notification requirement if it would not be too
burdensome. A commenter supported the requirement that the
reclassification effective date must match the electronic notification
submittal date to the EPA. Otherwise, the commenter expressed concerns
that sources would not provide adequate notice before reclassifying,
which would be ``neither administrable nor logically tenable'' and
could make monitoring efforts more difficult.
Two commenters maintained that the proposed notification
requirement would be burdensome and unnecessary and pointed out that
the EPA does not currently require this type of reporting for
Prevention of Significant Deterioration, Nonattainment New Source
Review, or title V opt-outs. In addition, several commenters remarked
that reclassified sources are already required to submit notifications
of any permit modifications under the title V program, subject to
related permitting authority requirements and make reclassification
information available to the public through the state permitting
process. One commenter warned that the proposed requirement could
supersede enforceable permit conditions and result in potential
compliance concerns for sources and permitting agencies.
Several commenters disagreed with the proposed requirement that
future reclassifications would not be effective until the source
electronically submits the notification to the EPA. One commenter
contended that the EPA does not have the authority under CAA section
112 and that the EPA did not identify the CAA provision for this
proposed requirement. The commenter emphasized that according to the
definitions of ``major source'' and ``area source'' in CAA sections
112(a)(1) and (2), a source's HAP PTE is the primary factor for
identifying major versus area sources, and 2 commenters indicated that
a source's reclassification effective date should coincide with the
effective date of the change in PTE. Furthermore, one commenter
asserted that since the EPA did not explain the legal basis for the
proposed requirement to link reclassification effectiveness to the
electronic notification submittal, the
[[Page 73305]]
proposed requirement would violate CAA section 307(d)(3).
A commenter objected to the proposed approach that additional
requirements would apply to prior reclassifications. The commenter
explained that major source status and associated obligations cease
after reclassifying to area source status, so the EPA would not have
the statutory authority to impose new, additional requirements for
sources that already reclassified.
Response: In this final action, the EPA is codifying the clarifying
language regarding the information that is already required in the
notification that must be submitted pursuant to section 40 CFR 63.9(j)
by sources that reclassify. This clarifying language does not
substantively change what is already required to be submitted by
sources that reclassify from major to area source status. Because this
is a clarification of existing requirements there is no added burden
related to the clarifications to reporting language made in this final
action. Regarding the comments associated to reclassification effective
date and submission of the required notification of reclassification
and the interaction between the proposal and state permitting programs,
we have determined that these comments warrant further evaluation and
we are not responding to these comments nor finalizing these aspects of
the proposal in this action.
Comment: One commenter states that the EPA did not publish the
proposed regulatory language in the Federal Register. Instead, the
commenter notes that the EPA placed the regulatory language in a
separate document in the docket. The commenter asserts that the EPA
runs the risk of creating discrepancies between the description of the
proposed text in the Federal Register and the proposed regulatory text
available in the docket. Such discrepancies prevent source owners/
operators and other stakeholders, including members of the general
public who may not have sufficient familiarity with online dockets,
from receiving adequate notice of the EPA's proposed action, thus
impairing their ability to provide informed comments. According to the
commenter, the EPA also runs the risk of running afoul of its statutory
duty under the Administrative Procedure Act to provide the public with
adequate notice.
Response: The proposal met all APA and CAA notice-and-comment
requirements. Nothing in the APA or the CAA requires the EPA to publish
proposed rule text in the Federal Register. The APA does not require
publication of proposed rule text in the Federal Register. Section
553(b)(3) of the APA provides that a notice of proposed rulemaking
shall include ``either the terms or substance of the proposed rule or a
description of the subjects and issues involved.'' Thus, the APA
clearly provides flexibility to describe the ``subjects and issues
involved'' as an alternative to inclusion of the ``terms or substance''
of the proposed rule. See also Rybachek v. U.S. EPA, 904 F.2d 1276,
1287 (9th Cir. 1990) (EPA's failure to propose in advance the actual
wording of a regulation does not make the regulation invalid where
EPA's discussion of the regulatory provisions ``clearly describe[s]
`the subjects and issues involved.' '').
Although in the past the EPA has at times published proposed
amendatory regulatory text, the EPA's practice has varied. See, e.g.,
Hazardous Air Pollutants: Proposed Regulations Governing Constructed,
Reconstructed or Modified Major Sources, 59 FR 15504 (April 1, 1994)
(``The proposed regulatory text is not included in the Federal Register
notice, but is available in Docket No. A-91-64 or by request from the
EPA contact persons designated earlier in this note. The proposed
regulatory language is also available on the Technology Transfer
Network (TTN), of EPA's electronic bulletin boards.''); Federal
Standards for Marine Tank Vessel Loading and Unloading Operations and
National Emission Standards for Hazardous Air Pollutants for Marine
Tank Vessel Loading and Unloading Operations, 59 FR 25004 (May 13,
1994) (``The proposed regulatory text and other materials related to
this rulemaking are available for review in the docket.''). Even when
we do include the proposed text in the Federal Register, we often
include a redline version of proposed regulations in the docket for
rulemakings to assist the public in understanding the proposed
regulatory changes. In our experience, stakeholders find the redline
version far more useful than the proposed amendatory language in the
format required by the Office of the Federal Register. Although
appropriate for the task of revising the CFR, this language can be
difficult to assess without the accompanying full regulatory text.
Given this and given that we rarely receive comments on the proposed
amendatory language or on proposed regulatory language at all, we
determined that for rulemakings such as this, it would be more
efficient to take the approach here of making both easily accessible
but not including the proposed amendatory text in the document.
4. What is the rationale for our final approach for the other aspects
of the September 2023 proposal?
In light of the comments received on the proposed clarifications
regarding reclassification effective date, we are not finalizing any
regulatory changes related to this provision. However, we note that the
notification of change in information already required under 40 CFR
63.9(j) for sources that reclassify is not an optional notification and
must be submitted within 15 days after reclassification. We are
finalizing the clarifications to the required components of a
notification of reclassification as proposed. The regulatory language
related to this issue does not add any new requirements, rather, the
EPA is clarifying what these reports must already contain. We are also
finalizing the regulatory language related to submission of CBI as
proposed. The EPA did not receive public comments on these proposed
changes and the final regulatory language which allows for and provides
the procedures for submitting CBI electronically.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to the Executive Order 12866 review is
available in the docket.
The EPA has not prepared a quantitative analysis of the potential
costs and benefits associated with this action because it is highly
uncertain which facilities may reclassify in the future and as result
of the final rule continue to be subject to CAA 112(c)(6) NESHAP
requirements, and no emissions changes are projected to result from the
CAA section 112(c)(6) requirements.\15\ Instead, these
[[Page 73306]]
requirements maintain the status quo for sources subject to the NESHAP
used to meet the EPA's obligations under CAA section 112(c)(6), even if
those sources reclassify. The costs incurred for a given facility due
to compliance with any individual NESHAP are better attributed to those
individual NESHAP rules--rather than the General Provisions of 40 CFR
part 63. Any future potential costs for facilities that may choose to
voluntarily reclassify will experience cost savings that will outweigh
any additional cost of achieving area source status. This final rule
does not require any action by facilities that reclassified prior to
the effective date of this final rule. Whether any cost or cost savings
is incurred by any source choosing to reclassify is highly case
specific and we are not providing quantitative estimates of costs in
this final rule, however, we have included technical memoranda (e.g.,
MM2A Cost Memorandum) for the 2020 final MM2A rule and the regulatory
impact analysis (RIA) from that rulemaking in the docket for this
action to provide illustrative examples of the types of costs and costs
savings that may occur due to reclassifications. While the EPA does not
expect this action to directly impact the level of control of any
particular NESHAP standards, this final rule will ensure that HAP
emissions reductions of the specific pollutants addressed in CAA
section 112(c)(6) are achieved, and the corresponding public health and
environmental benefits from decreased HAP emissions, are maintained at
sources that reclassify from major sources of HAP to area sources of
HAP.
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\15\ In the Regulatory Impact Analysis for the 2020 MM2A Final
Rule, the EPA assumed in the primary scenario that all facilities
under 75% of the major source HAP emissions threshold that could
potentially reclassify would do so over a 5-year time period from
promulgation (2,700 facilities). While we are still within that time
frame, the EPA has not seen nearly that many reclassifications
occuring since the rule was promulgated. At the time of this final
rule, around 200 facilities have reclassified. This represents over
90% fewer reclassifications than our illustrative analysis included
in the 2020 final rule. A list of facilities that have reclassified
from major source to area source status at the time of proposal is
available in the docket for this action.
---------------------------------------------------------------------------
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. The final amendments to the General Provisions relate to
voluntary actions taken by a source after consideration of the net
impacts of this action. Therefore, this action would not impose any new
information collection burden. The General Provisions do not themselves
require any reporting and recordkeeping activities, and no information
collection request (ICR) was submitted in connection with their
original promulgation or their subsequent amendment. Any recordkeeping
and reporting requirements are imposed only through the incorporation
of specific elements of the General Provisions in the individual
NESHAP, which are promulgated for particular source categories that
have their own ICRs. The PRA costs for sources that reclassify will be
properly accounted for in the ICRs for the NESHAP they were subject to.
The PRA costs for sources who must remain subject to a particular
NESHAP or NESHAP are properly accounted for in the ICRs for the NESHAP
they remain subject to.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the EPA concludes that the impact of concern
for this rule is any significant adverse economic impact on small
entities and that the Agency is certifying that this rule will not have
a significant economic impact on a substantial number \16\ of small
entities because the rule has no net burden on the small entities
subject to the rule. Small entities that are subject to major source
NESHAP requirements would not be required to take any action under this
final rule; any action a source takes to reclassify as an area source
for those permitted to do so would be voluntary. We expect that sources
that reclassify will do so in order to experience expected cost savings
that will outweigh any additional expected cost of achieving area
source status. This final rule only affects potential voluntary future
decisions on the part of sources. We cannot project how many sources
will reclassify in the future, or whether those facilities will be
owned by small entities. This final rule will not prevent any sources
from reclassifying who would otherwise be eligible to do so. This
action solely requires that sources subject to certain NESHAP must
remain subject to those NESHAP, even if they reclassify. This final
rule imposes no additional costs or requirements for sources that have
already reclassified. The final MM2A rule already required electronic
notification to the EPA and we are not requiring those sources who have
already submitted notifications to resubmit their notifications.
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\16\ We note that during development of the 2020 final rule, an
analysis of 69 facilities that had reclassified found that 28 of
those facilities were owned by 28 small entities based on the Small
Business Administration (SBA) small business size standards at the
time. This analysis is included in the public docket for the 2020
final rule (Docket ID No.: EPA-HQ-OAR-2019-0282-0650).
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D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This final rule does not require any action on
the part of any sources or by tribal governments. This action solely
requires that sources subject to certain NESHAP must remain subject to
those NESHAP, even if they reclassify. Thus, Executive Order 13175 does
not apply to this action. Consistent with the EPA Policy on
Consultation and Coordination with Indian Tribes, the EPA consulted
with tribal officials during the development of this action. A summary
of that consultation is provided in the docket for this rule (Docket ID
No.: EPA-HQ-OAR-2023-0330).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to
regulatory actions considered significant under section 3(f)(1) of
Executive Order 12866 and that concern environmental health or safety
risks that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of Executive Order 13045. This action is not subject to
Executive Order 13045 because it does not directly regulate any
emission source and will not have any direct impact on children's
health. The emissions reductions achieved by individual NESHAP are
properly accounted for in those individual NESHAP rather than the
General Provisions. This action will not change the level of emissions
reductions achieved by those NESHAP. While we
[[Page 73307]]
do not expect this action to have any direct impact on children's
health, continued compliance with NESHAP used for CAA section 112(c)(6)
by a source that reclassifies will provide continued protection
achieved by those NESHAP(s) that the source remains subject to.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The final amendments to the General
Provisions in this action are procedural changes and do not impact the
technology performance nor level of control of the NESHAP governed by
the General Provisions.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns. We are unable to
quantitatively estimate the potential environmental justice (EJ) impact
of this rule because the final amendments to the General Provisions are
procedural changes and do not impact the technology performance nor
level of control of the NESHAP governed by the General Provisions.
While the EPA does not expect this action to directly impact the
level of control of any particular NESHAP standards, this final rule
will assure that emissions reductions of persistent, bioaccumulative
HAP, and the corresponding public health and environmental benefits
from decreased HAP emissions are maintained for all populations,
including communities with EJ concerns.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency amends part 63 of title 40, chapter I, of the Code of
Federal Regulations as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
2. Amend Sec. 63.1 by adding paragraph (c)(6)(iii).
Sec. 63.1 Applicability.
* * * * *
(c) * * *
(6) * * *
(iii) After September 10, 2024, affected sources subject to the
following 40 CFR part 63 subparts on September 10, 2024, must remain
subject to those subparts, and any modifications thereafter, even if
the source becomes an area source by reducing both its actual emissions
and potential to emit hazardous air pollutants to below major source
thresholds: F, G, H, I, L, R, X, CC, GG, II, JJ, KK, LL, MM, EEE, HHH,
JJJ, LLL, RRR, UUU, FFFF, JJJJ, MMMM, PPPP, ZZZZ, CCCCC, DDDDD, FFFFF,
IIIII, LLLLL, YYYYY, JJJJJJ, EEEEEEE.
* * * * *
0
3. Amend Sec. 63.9 by:
0
a. Revising paragraph (j) and paragraph (k) introductory text; and
0
b. Adding paragraph (k)(3).
The revisions and addition read as follows:
Sec. 63.9 Notification requirements.
* * * * *
(j) Change in information already provided. Any change in the
information already provided under this section shall be provided to
the Administrator within 15 calendar days after the change. The owner
or operator of a major source that reclassifies to area source status
is also subject to the notification requirements of this paragraph. The
owner or operator may submit the application for reclassification with
the regulatory authority (e.g., permit application) according to
paragraph (k) of this section to fulfill the requirements of this
paragraph, but the information required in paragraphs (j)(1) through
(4) of this section must be included. A source which reclassified after
January 25, 2018, and before January 19, 2021, and has not yet provided
the notification of a change in information is required to provide such
notification no later than February 2, 2021, according to the
requirements of paragraph (k) of this section. Beginning January 19,
2021, the owner or operator of a major source that reclassifies to area
source status must submit the notification according to the
requirements of paragraph (k) of this section. A notification of
reclassification must contain the following information:
(1) The name and address of the owner or operator;
(2) The address (i.e., physical location) of the affected source;
(3) An identification of the standard being reclassified from and
to (if applicable); and
(4) Date of effectiveness of the reclassification.
(k) Electronic submission of notifications or reports. If you are
required to submit notifications or reports following the procedure
specified in this paragraph (k), you must submit notifications or
reports to the EPA via the EPA's Compliance and Emissions Data
Reporting Interface (CEDRI), which can be accessed through the EPA's
Central Data Exchange (CDX) (<a href="https://cdx.epa.gov/">https://cdx.epa.gov/</a>). The notification or
report must be submitted by the deadline specified. The EPA will make
all the information submitted through CEDRI available to the public
without further notice to you. Do not use CEDRI to submit information
you claim as confidential business information (CBI). Although we do
not expect persons to assert a claim of CBI, if you wish to assert a
CBI claim for some of the information in the report or notification,
you must submit the information claimed to be CBI according to the
procedures in paragraph (k)(3) of this section.
* * * * *
(3) If you wish to assert a CBI claim for some of the information
submitted under paragraph (k) of this section, you must submit a
complete file, including information claimed to be CBI, to the EPA
following the procedures in paragraphs (k)(3)(i) through (iv) of this
section. Where a subpart specifies a
[[Page 73308]]
specific file format for the report or notification for which you are
asserting a claim of CBI, the complete file that you submit under this
paragraph (k)(3) must be in the same file format specified in the
subpart.
(i) Clearly mark the part or all of the information that you claim
to be CBI. Information not marked as CBI may be authorized for public
release without prior notice. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2. All CBI claims must be asserted at the time of submission. Anything
submitted using CEDRI cannot later be claimed CBI. Furthermore, under
CAA section 114(c), emissions data are not entitled to confidential
treatment, and the EPA is required to make emissions data available to
the public. Thus, emissions data will not be protected as CBI and will
be made publicly available.
(ii) You must submit the same file submitted to the CBI office with
the CBI omitted to the EPA via the EPA's CDX as described in paragraph
(k) of this section.
(iii) The preferred method to receive CBI is for it to be
transmitted electronically using email attachments, File Transfer
Protocol, or other online file sharing services. Electronic submissions
must be transmitted directly to the OAQPS CBI Office at the email
address <a href="/cdn-cgi/l/email-protection#37585646474454555e7752475619505841"><span class="__cf_email__" data-cfemail="6b040a1a1b180809022b0e1b0a450c041d">[email protected]</span></a>, and as described above, should include clear
CBI markings. Electronic Reporting Tool (ERT) files should be flagged
to the attention of the Group Leader, Measurement Policy Group; all
other files should be flagged to the attention of the Sector Lead for
the subpart for which you are submitting your notification or report.
If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email <a href="/cdn-cgi/l/email-protection#6c030d1d1c1f0f0e052c091c0d420b031a"><span class="__cf_email__" data-cfemail="4d222c3c3d3e2e2f240d283d2c632a223b">[email protected]</span></a> to
request a file transfer link.
(iv) If you cannot transmit the file electronically, you may send
CBI information through the postal service to the following address:
U.S. EPA, Attn: OAQPS Document Control Officer, Mail Drop: C404-02, 109
T.W. Alexander Drive, P.O. Box 12055, RTP, NC 27711. ERT files should
also be flagged to the attention of the Group Leader, Measurement
Policy Group; all other files should also be flagged to the attention
of the Sector Lead for the subpart for which you are submitting your
notification or report. The mailed CBI material should be double
wrapped and clearly marked. Any CBI markings should not show through
the outer envelope.
[FR Doc. 2024-20074 Filed 9-9-24; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.