Environmental Protection Agency (EPA).
Final rule; amendment.
The EPA received adverse comment on the direct final action published on December 17, 2001 (66 FR 65072) to amend the national emission standards for hazardous air pollutants from phosphoric acid manufacturing plants and phosphate fertilizers production plants. We stated in that direct final action that, if we received adverse comment by January 16, 2002, we would publish a timely withdrawal in the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without notice and comment procedures because under the terms of the December 17, 2001 direct final action, this amendment to the national emission standards for phosphoric acid manufacturing plants should not have occurred. Thus, notice and comment are contrary to the public interest and unnecessary. We find that the circumstances described constitute good cause under 5 U.S.C. 553(b)(3)(B) and 553(d)(3) which authorizes an agency to make a rule immediately effective where it finds that there is good cause for doing so.
June 12, 2002.
Docket No. A–94–02, containing information relevant to the direct final action being withdrawn, is available for public inspection between 8:00 a.m. and 5:30 p.m., Monday through Friday (except for legal holidays) at the following address: Air and Radiation Docket and Information Center (6102), U.S. EPA, 401 M Street, SW., Room M–1500, Waterside Mall (ground floor), Washington, DC 20460 or by phoning the Air Docket Office at (202) 260–7548. Refer to Docket No. A–94–02. The Docket Office may charge a reasonable fee for copying docket materials.
Tanya Medley, Environmental Protection Agency, Office of Air Quality Planning and Standards, at (919) 541–5422, e-mail: medley.tanya@epa.gov, facsimile (919) 541–5600.
On June 10, 1999 (64 FR 31358), we published the final national emission standards for hazardous air pollutants (NESHAP) for phosphoric acid manufacturing plants (40 CFR 63, subpart AA) and the NESHAP for phosphate fertilizers production plants (40 CFR 63, subpart BB). Subsequent to that publication, The Fertilizer Institute (TFI) filed a petition with the United States Court of Appeals for the District of Columbia Circuit challenging several aspects of the NESHAP for phosphoric acid manufacturing plants and phosphate fertilizers production plants.
The EPA entered into discussions with TFI on their issues and reached a Settlement Agreement on June 26, 2001. The NESHAP for phosphoric acid manufacturing plants and phosphate fertilizers production plants were subsequently amended to clarify our intent regarding the daily averaging of monitored operating parameters of air pollution control devices and the establishment of baseline average values for the monitored parameters; and to revise the particulate matter emission limit for phosphate rock calciners subject to the NESHAP for phosphoric acid manufacturing plants.
These amendments were accomplished through a direct final action (66 FR 65072) and a parallel proposal (66 FR 65079) published in the
We stated in the direct final action that if we received adverse comment by January 16, 2002, we would publish a withdrawal in the
Because we received an adverse comment on one of the amendments to the NESHAP for phosphoric acid manufacturing plants, the direct final rule effecting that amendment, by its terms, should not have become effective. We, therefore, are hereby removing that amendment in today's action, and reinstating the corresponding provision previously in existence.
This removal action is simply a ministerial correction of one provision (i.e. the revised emission limit for particulate emissions from phosphate rock calciners) in the prior direct final rulemaking, which by its terms should not have become effective because a party commented adversely on this amendment to the NESHAP for phosphoric acid manufacturing plants. Therefore, we are invoking the good cause exception under the APA, 5 U.S.C. 553(b)(3)(B) because we believe that notice-and-comment rulemaking of this removal action is contrary to the public interest and unnecessary. This removal action merely restores the regulatory text for the cited provision that existed prior to the direct final rule. We stated in the December 17, 2001
Additionally, further notice-and-comment on this action is unnecessary because we are merely restoring the regulatory text of the provision as it existed prior to the amendment. We, therefore, find that there is good cause for making this action final without opportunity for notice and comment.
For the reasons described in the preceding paragraph, we find there is good cause, in accordance with the APA, 5 U.S.C. 553(d)(3), for the removal of the amended emission limit and reinstatement of the preexisting emission limit to become effective upon publication.
We will address the single public comment in a subsequent final action on the parallel proposed rule amendment.
Under Executive Order 12866, Regulatory Planning and Review, (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, does not apply to this action. Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(d)