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Federal Register / Vol. 86, No. 46 / Thursday, March 11, 2021 / Rules and Regulations
December 19, 2008, by the United States Court of Appeals for the District of Columbia Circuit the court. The court vacated two provisions in the General Provisions that exempted sources from hazardous air pollutant HAP nonopacity and opacity emission standards during periods of startup, shutdown, and malfunction SSM. The court held that under the Clean Air Act CAA, emissions standards or limitations must be continuous in nature and that the SSM exemptions in these two provisions violate this requirement.
This ministerial action revises these two NESHAP General Provisions in the CFR
to conform to the courts order.
DATES: This final rule is effective on March 11, 2021.
ADDRESSES: The EPA has established a docket for this action under Docket ID
No. EPAHQOAR20040094. All documents in the docket are listed in https www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute.
Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. With the exception of such material, publicly available docket materials are available electronically in https
www.regulations.gov/. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID
19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform.
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention, local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID19.
For further information and updates on EPA Docket Center services, please visit us online at https www.epa.gov/
dockets or call the Public Reading Room at 202 5661744 or the EPA Docket Center at 202 5661742.
FOR FURTHER INFORMATION CONTACT: Lisa Conner, Sector Policies and Programs Division D20502, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: 919 541
5060; fax number: 919 5414991;
email address: conner.lisa@epa.gov. You may also consult your state or local permitting representative or the
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appropriate EPA Regional office representative.
SUPPLEMENTARY INFORMATION:

Organization of this document. The information in this preamble is organized as follows:
I. Why is the EPA issuing this final rule?
II. Background III. Which provisions are being amended?
IV. Statutory and Executive Order Reviews I. Why is the EPA issuing this final rule?
This action is amending the CFR to reflect the 2008 court decision in Sierra Club v. EPA vacating 40 CFR 63.6f1
and h1. Section 553 of the Administrative Procedure Act, 5 U.S.C.
553b3B provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.
The EPA has determined that there is good cause for amending these provisions without prior proposal and opportunity for public procedures because the correction of the CFR is a ministerial act to effectuate the court order and public notice and comment is unnecessary and would serve no useful purpose. Removal of the two SSM
exemptions in the General Provisions of the NESHAP at 40 CFR 63.6f1 and h1 has no legal effect beyond fulfilling the courts vacatur in Sierra Club v. EPA, 551 F. 3d 1019 D.C. Cir.
2008 and is ministerial in nature. The court issued the mandate for its decision on October 16, 2009, at which point the vacatur became effective.
II. Background The NESHAP program implementing requirements in section 112 of the CAA
regulates over 100 industrial source categories that emit HAP. The NESHAP
regulations applicable to specific source categories are organized by subparts within part 63 of 40 CFR.1 As a component of 40 CFR part 63, the EPA
established subpart A which contains the General Provisions and, when incorporated by reference within a specific source category NESHAP, eliminates unnecessary repetition of general information and requirements that often apply e.g., emission testing, monitoring, recordkeeping, and 1 A list of the source categories regulated in the NESHAP program can be found at: https
www.epa.gov/stationary-sources-air-pollution/
national-emission-standards-hazardous-airpollutants-neshap-9.

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reporting provisions. As a result, the General Provisions contain requirements that are general in nature and apply only if the source categoryspecific NESHAP subpart states that some or all of the subpart A
requirements apply. See 59 FR 12408, 12408/3 March 16, 1994 1994
Rule. The General Provisions have the legal force and effect of emission standards when incorporated by reference into a NESHAP. 40 CFR
63.1a4.
Beginning in 2002, the Sierra Club and various other environmental groups filed petitions seeking judicial review of the SSM exemptions in the NESHAP
General Provisions in 40 CFR part 63, subpart A. In response to these petitions, the court vacated portions of two provisions governing the emissions of HAP during periods of SSM. Sierra Club v. EPA, 551 F. 3d 1019 D.C. Cir.
2008. Specifically, the court vacated the SSM exemptions contained in 40
CFR 63.6f1 and h1 of the General Provisions. When incorporated by reference into the NESHAP regulations for specific source categories, these two provisions exempted sources from the requirement to comply with the otherwise applicable emission standards during periods of SSM. The court held that under CAA section 302k, emissions standards or limitations issued pursuant to section 112 of the CAA must be continuous in nature and that the SSM exemptions in 40 CFR
63.6f1 and h1 violate this CAA
requirement.
As noted above, the court mandated its decision on October 16, 2009, making it immediately effective.
However, 40 CFR part 63, subpart A, has not yet been amended in the record.
Since then, the EPA has been codifying the court decision by modifying SSM
exemptions in individual NESHAP as they are opened for review and modification.
III. Which provisions are being amended?
This final rule amends the NESHAP
General Provisions at 40 CFR part 63, subpart A, to remove universally the SSM exemptions contained in 40 CFR
63.6f1 and h1 from non-opacity and opacity emission standards, respectively, by deleting the phrase except during periods of startup, shutdown, and malfunction. As explained above, removal of the exemptions corrects the CFR to conform to the courts order in Sierra Club v.
EPA and so is ministerial in nature and has no legal effect. The legal effect of the vacatur occurred upon the courts
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