Federal Register / Vol. 69, No. 190 / Friday, October 1, 2004 / Rules and Regulations 58837

§ 165.T01–117 Security Zone; Queen Mary 

II Visit, Portland, Maine, Captain of the Port 

Zone. 

(a) Location. The following area is a 

security zone: 

All navigable waters within the 

Portland, Maine, Captain of the Port 

Zone, extending from the surface to the 

sea floor, within a 300-yard radius of the 

Queen Mary II while it is underway, 

anchored, moored, or in the process of 

mooring. 

(b) Effective period. This section is 

effective from 12:01 a.m. EDT on 

September 27, 2004, through 12:01 a.m. 

EDT on October 10, 2004. 

(c) Regulations. (1) In accordance with 

the general regulations contained in 

§ 165.33 of this part, entry into or 

movement within these zones is 

prohibited unless previously authorized 

by the Coast Guard Captain of the Port 

(COTP), Portland, Maine or his 

designated representative. 

(2) All persons and vessels must 

comply with the instructions of the 

COTP, or the designated on-scene Coast 

Guard patrol personnel. On-scene Coast 

Guard patrol personnel include 

commissioned, warrant and petty 

officers of the Coast Guard on board 

Coast Guard, Coast Guard Auxiliary, 

and local, state and federal law 

enforcement vessels. 

(3) The Captain of the Port, Portland 

Maine or his designated representative 

will notify the maritime community of 

periods during which these zones will 

be enforced. Emergency response 

vessels are authorized to move within 

the zone, but must abide by restrictions 

imposed by the COTP or his designated 

representative. 

(d) Enforcement. The COTP will 

enforce this zone and may enlist the aid 

and cooperation of any Federal, state, 

county, municipal, or private agency to 

assist in the enforcement of the 

regulation.

Dated: September 23, 2004. 

Stephen P. Garrity, 

Captain, U. S. Coast Guard, Captain of the 

Port, Portland, Maine.

[FR Doc. 04–22138 Filed 9–30–04; 8:45 am] 

BILLING CODE 4910–15–U

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[FRL–7812–8] 

National Emission Standards for 

Hazardous Air Pollutants for 

Secondary Aluminum Production

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Interpretative rule.

SUMMARY: This interpretative rule 

concerns the applicability of the 

NESHAP for secondary aluminum 

producers, 40 CFR part 63, subpart RRR, 

to a specific type of facility which 

thermally delaminates aluminum foil 

from paper and plastic and then 

mechanically granulates the recovered 

metal. We decided to reconsider this 

matter after reviewing two applicability 

determinations which were issued by 

EPA regional offices for facilities of this 

type operated by the U.S. Granules 

Corporation in Plymouth, IN, and 

Henrietta, MO. We concluded that these 

applicability determinations reflected 

conflicting constructions of subpart 

RRR, and that the determinations 

should be vacated while we undertook 

a review to develop a uniform national 

construction of the rule. 

In today’s interpretative rule, we 

conclude that a delamination chamber 

of the type operated by the U.S. 

Granules facilities is a ‘‘scrap dryer/

delacquering kiln/decoating kiln’’ as 

that term is defined in 40 CFR 63.1503. 

Accordingly, we believe that the 

facilities operated by U.S. Granules in 

Plymouth and Henrietta, and any other 

facilities which may engage in similar 

operations, are subject to the emission 

control requirements of subpart RRR.

EFFECTIVE DATE: This interpretative rule 

will take effect on November 1, 2004. 

After that date, this interpretative rule 

will govern all decisions concerning the 

applicability of 40 CFR part 63, subpart 

RRR, to affected facilities by EPA and by 

State and local permitting authorities.

FOR FURTHER INFORMATION CONTACT: For 

specific questions concerning the 

interpretation of 40 CFR part 63, subpart 

RRR, adopted in this notice, contact 

Scott Throwe at EPA by telephone at: 

(202) 564–7013, or by e-mail at: 

throwe.scott@epa.gov.

SUPPLEMENTARY INFORMATION: Regulated 

Entities. This interpretative rule 

concerns applicability of 40 CFR part 

63, subpart RRR, to specific facilities 

that thermally delaminate aluminum 

foil from paper and plastic and then 

mechanically granulate the recovered 

metal. This interpretative rule 

determines that these facilities are 

secondary aluminum production 

facilities as defined by subpart RRR, and 

that such facilities are therefore subject 

to regulation under that subpart. This 

interpretative rule does not govern 

determinations regarding the 

applicability of subpart RRR to other 

types of activities or operations, 

although the rationale for the 

conclusions in this interpretative rule 

may be relevant in other contexts. 

Judicial Review. This interpretative 

rule is based on a determination of 

nationwide scope and effect. Under 

section 307(b)(1) of the CAA, judicial 

review of this interpretative rule is 

available only by filing a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

November 30, 2004. Moreover, under 

section 307(b)(2) of the CAA, any 

judicial review of this interpretative rule 

must be obtained pursuant to section 

307(b)(1) and this interpretation may 

not be subjected to separate judicial 

review in any civil or criminal 

proceedings for enforcement. 

I. Background for This Interpretative 

Rule 

This interpretative rule is the outcome 

of a review by EPA of the applicability 

of the NESHAP for secondary aluminum 

producers, 40 CFR part 63, subpart RRR, 

to a specific type of facility which 

thermally delaminates aluminum foil 

from paper and plastic and then 

mechanically granulates the recovered 

metal. This review was undertaken 

following the decision of EPA to vacate 

two applicability determinations which 

were previously made by the EPA 

regional offices concerning facilities of 

this type owned and operated by the 

U.S. Granules Corporation.

One of these applicability 

determinations concerned the U.S. 

Granules facility in Plymouth, Indiana 

and was made by the EPA Region 5 Air 

Enforcement and Compliance Assurance 

Branch on August 21, 2002, in response 

to a request for such a determination by 

U.S. Granules dated August 14, 2002. 

Notice of this applicability 

determination (Control No. M020112) 

was published in the Federal Register

on February 13, 2003. 68 FR 7373. EPA 

Region 5 based its conclusions in this 

determination on a phrase in the 

definition in subpart RRR of a ‘‘scrap 

dryer/delaquering kiln/decoating kiln’’

which states that such units are used to 

remove contaminants from aluminum 

scrap ‘‘prior to melting.’’ EPA Region 5 

concluded that the delamination 

chamber at the Plymouth facility does 

not fit within this definition because all 

processing of the recovered aluminum 

at the Plymouth facility is entirely 

mechanical and the recovered 

aluminum is never melted. 

The other applicability determination 

concerned the U.S. Granules facility in 

Henrietta, Missouri, and was made by 

the EPA Region 7 Air Permitting and 

Compliance Branch on October 22, 

2002, in response to a request for such 

a determination by U.S. Granules dated 

58838 Federal Register / Vol. 69, No. 190 / Friday, October 1, 2004 / Rules and Regulations 

October 11, 2002. Notice of this 

applicability determination (Control No. 

M020117) was also published in the 

Federal Register on February 13, 2003. 

68 FR 7373. In the determination 

concerning the Henrietta facility, Region 

7 concluded that the delamination 

chamber at the Henrietta facility is 

within the definition of a ‘‘scrap dryer/

delacquering kiln/decoating kiln’’ even 

though the recovered aluminum is not 

melted at the Henrietta facility. Region 

7 reasoned that the phrase ‘‘prior to 

melting’’ in the definition is merely 

intended to indicate that the recovery 

process is normally performed before 

the recovered aluminum is placed in a 

furnace to be melted. Region 7 noted 

that it is the use of heat to remove 

contaminants from scrap aluminum that 

generates the emissions of dioxins and 

furans that subpart RRR is intended to 

control. Region 7 also found that a unit 

at the Henrietta facility that dries 

alumninum chips was a ‘‘thermal chip 

dryer’’ subject to subpart RRR. 

After issuance of these two 

applicability determinations, EPA 

determined that these determinations 

reflected conflicting constructions 

concerning the applicability of subpart 

RRR to aluminum delamination 

operations like those conducted at the 

U.S. Granules facilities. EPA also 

determined that the retention of such 

conflicting constructions would be 

inappropriate as a matter of law and 

policy. Accordingly, EPA decided to 

vacate both of these applicability 

determinations and to commence a 

process to adopt a single uniform 

construction of subpart RRR which 

would apply to all operations like those 

conducted at the U.S. Granules 

facilities. 

The decision to vacate the 

determination concerning the Plymouth 

facility was announced in a letter to 

U.S. Granules dated June 19, 2003. The 

decision to vacate the Henrietta 

determination was announced in a letter 

to U.S. Granules dated June 23, 2003. 

Although the vacature of each of these 

applicability determinations was final 

and effective on the date that each letter 

announcing that vacature was signed, 

EPA also published a notice announcing 

vacature of these two applicability 

determinations. 68 FR 42397, September 

3, 2003. 

Following issuance of the affirmative 

determination concerning the 

applicability of subpart RRR to the 

Henrietta facility, U.S. Granules 

Corporation brought an action seeking 

judicial review of that determination. 

U.S. Granules Corp. v. Whitman, No. 

03–1946 (8th Circuit). After EPA 

vacated the Henrietta determination and 

published the notice of vacature, U.S. 

Granules moved to dismiss its petition 

for review. That case was dismissed on 

September 4, 2003. 

II. Interpretation Adopted by This Rule

After EPA decided to adopt a single 

uniform construction of subpart RRR 

which would apply to all operations 

like those conducted at the U.S. 

Granules facilities, EPA concluded that 

the appropriate vehicle to announce 

such a uniform construction is an 

interpretative rule. The interpretation 

adopted in an interpretative rule is 

binding on all EPA offices and 

permitting authorities, thereby assuring 

a uniform and predictable outcome. 

However, the reasonableness of the 

construction of subpart RRR adopted in 

this interpretative rule is still subject to 

appropriate judicial review. 

This interpretative rule is limited 

solely to the question of whether a 

delamination chamber of the type 

operated at the Plymouth and Henrietta 

U.S. Granules facilities is a ‘‘scrap 

dryer/delacquering kiln/decoating kiln’’

as that term is defined in 40 CFR 

63.1503. Although we believe that the 

affirmative applicability determination 

concerning the unit that dries aluminum 

chips at the Henrietta facility was 

correct, we do not believe it is necessary 

to revisit that determination because 

counsel for U.S. Granules advised EPA 

in a letter dated December 23, 2002, that 

U.S. Granules did not contest the 

determination concerning the chip dryer 

and that U.S. Granules intended to 

decomission and remove the chip dryer 

from that facility before the effective 

date of subpart RRR. 

This interpretative rule is intended to 

be nationwide in scope and effect. It 

applies to any and all facilities that 

operate delamination units similar to 

those operated at the U.S. Granules 

Plymouth and Henrietta facilities, 

although we note that U.S. Granules 

believes that there are no other sources 

in North America that thermally 

delaminate aluminum scrap and then 

mechanically granulate the recovered 

metal. 

We note at the outset that subpart 

RRR applies to ‘‘each new and existing 

scrap dryer/delacquering kiln/decoating 

kiln’’ at a facility that is a major source 

or area source of hazardous air 

pollutants. 40 CFR 63.1500(b)(3) and 

63.1500(c)(2). 40 CFR 63.1503 defines a 

‘‘scrap dryer/delacquering kiln/

decoating kiln’’ as ‘‘a unit used 

primarily to remove various organic 

contaminants such as oil, paint, lacquer, 

ink, plastic, and/or rubber from 

aluminum scrap (including used 

beverage containers) prior to melting.’’

The delamination chambers at the 

U.S. Granules Plymouth and Henrietta 

facilities use heat to separate aluminum 

foil from paper and plastic in scrap, but 

the chambers operate at a maximum 

temperature of 900 degrees Fahrenheit 

and no melting of the recovered 

aluminum occurs in the chamber. If an 

identical delamination unit were 

located at a facility that itself melts the 

recovered aluminum, there would be no 

question that it would fit within this 

definition, and we do not understand 

U.S. Granules to dispute that 

conclusion. It is also clear that the 

delamination units used by U.S. 

Granules perform the same general type 

of operations for recovery of aluminum 

from scrap that EPA intended to 

regulate in subpart RRR. However, we 

acknowledge that the use of the phrase 

‘‘prior to melting’’ in the definition of a 

scrap dryer/delacquering kiln/decoating 

kiln cannot simply be disregarded. In its 

affirmative applicability determination, 

Region 7 argues that the phrase ‘‘prior 

to melting’’ indicates that the recovery 

of aluminum from scrap would 

normally occur prior to melting. 

However, we think this argument is not 

persuasive unless the phrase in question 

was intended to be solely illustrative, 

and that is not clear on the face of the 

definition. If our conclusion turned 

solely on this factor, we would be more 

inclined to amend the rule in a manner 

which resolved the ambiguity than to 

try and construe the existing definition.

Fortunately, we need not resolve this 

issue to conclude that the delamination 

chambers at the U.S. Granules facilities 

are within the definition. The negative 

applicability determination by Region 5 

appears to be based on the argument by 

U.S. Granules that the recovered 

aluminum must be melted at the same 

facility in order for the definition to 

apply. However, nothing in the 

definition indicates that the subsequent 

melting of recovered aluminum must 

occur at the same facility that conducts 

the recovery operation. Our discussions 

with U.S. Granules personnel and our 

review of the company’s Web site 

indicate that some of the customers who 

buy the recovered aluminum granules 

from U.S. Granules subsequently melt 

the purchased material to produce new 

aluminum products. While some 

customers may use the aluminum 

granules without melting them, those 

granules which are subsequently melted 

are produced by an identical recovery 

process. This is sufficient to confirm 

that the operations to recover aluminum 

from scrap at the U.S. Granules facilities 

should not be treated differently from 

otherwise similar operations at sources 

Federal Register / Vol. 69, No. 190 / Friday, October 1, 2004 / Rules and Regulations 58839

who themselves melt the recovered 

aluminum. 

If we were to construe the definition 

in any other way, this would permit 

other sources to evade the applicability 

of emission controls required by the rule 

by merely moving those operations 

which melt the recovered secondary 

aluminum to another site. This result 

would violate our established 

requirement that sources may not 

fragment an operation in order to avoid 

regulation under an applicable standard. 

See 40 CFR 63.4(b)(3). We decline to 

construe the definitions in subpart RRR 

in a manner which would allow 

secondary aluminum production 

facilities to fragment their operations to 

evade emission control requirements. 

Based on this analysis, we conclude 

that the delamination chambers 

operated by the U.S. Granules Plymouth 

and Henrietta facilities, and any similar 

secondary aluminum operations which 

may be conducted now or in the future 

at other sources, are governed by 

subpart RRR. Although this 

interpretative rule will take effect on 

November 1, 2004, we note that subpart 

RRR itself is already in effect. That is 

why the letters that we sent to U.S. 

Granules vacating the two previous 

conflicting applicability determinations 

stated that, if we were to adopt a 

construction of subpart RRR resulting in 

a new positive applicability 

determination for the affected facilities, 

we would afford U.S. Granules a 

reasonable period to undertake any 

activities required to come into 

compliance or to establish continued 

compliance with subpart RRR. 

Consequently, U.S. Granules will be 

required to comply with subpart RRR 

within 240 days of the effective date of 

this Interpretative Rule. 

III. Other Review Requirements 

Under Executive Order 12866, (58 FR 

51736, October 4, 1993), this 

interpretative rule is not a ‘‘significant 

regulatory action’’ and is therefore not 

subject to review by the Office of 

Management and Budget. 

Section 553(b)(3)(A) of the 

Administrative Procedure Act provides 

that interpretative rules are not subject 

to notice-and-comment requirements 

under the Administrative Procedure 

Act. Interpretative rules which do not 

involve the internal revenue laws of the 

United States are not subject to the 

regulatory flexibility provisions of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). Because notice-and-comment 

requirements do not apply to this 

interpretative rule, this rule is also not 

subject to sections 202 and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (2 U.S.C. 1532 and 1535). 

In addition, this action does not 

significantly or uniquely affect small 

governments or impose a significant 

intergovernmental mandate, as 

described in sections 203 and 204 of 

UMRA. This interpretative rule also 

does not significantly or uniquely affect 

the communities of tribal governments, 

as specified by Executive Order 13084 

(63 FR 27655, May 10, 1998). This 

interpretative rule will not have 

significant direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). 

This interpretative rule is also not 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997) because it is not 

economically significant. This action 

does not involve technical standards; 

thus, the requirements of section 12(d) 

of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This 

interpretative rule also does not involve 

special consideration of environmental 

justice related issues as required by 

Executive Order 12898 (59 FR 7629, 

February 16, 1994). 

In issuing this interpretative rule, EPA 

has taken the necessary steps to 

eliminate drafting errors and ambiguity, 

minimize potential litigation, and 

provide a clear legal standard for 

affected conduct, as required by section 

3 of Executive Order 12988 (61 FR 4729, 

February 7, 1996). The EPA has 

complied with Executive Order 12630 

(53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the interpretative rule in accordance 

with the ‘‘Attorney General’s 

Supplemental Guidelines for the 

Evaluation of Risk and Avoidance of 

Unanticipated Takings’’ issued under 

the Executive Order. This interpretative 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). Our compliance 

with statutes and Executive Orders in 

promulgating the rule which is 

interpreted herein (40 CFR part 63, 

subpart RRR) is discussed in the Federal 

Register notice concerning the original 

promulgated rule (63 FR 15690, March 

23, 2000), and in the Federal Register

notice concerning subsequent 

amendments to that rule (67 FR 79808, 

December 30, 2002). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We have 

established an effective date of 

November 1, 2004. The EPA will submit 

a report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2).

Dated: August 18, 2004. 

Thomas V. Skinner, 

Acting Assistant Administrator, Office of 

Enforcement and Compliance Assurance.

[FR Doc. 04–22084 Filed 9–30–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[FRL–7822–7] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; National Priorities List

AGENCY: Environmental Protection 

Agency.

ACTION: Notice of deletion for the 

Dubose Oil Products Superfund Site 

from the National Priorities List. 

SUMMARY: The Environmental Protection 

Agency (EPA) announces the deletion of 

the Dubose Oil Products Site in 

Cantonment, Florida, from the National 

Priorities List (NPL), which is Appendix 

B of the National Oil and Hazardous 

Substances Pollution Contingency Plan 

(NCP). The EPA requests comments on 

this deletion. The EPA and the State 

have determined that all appropriate 

Fund-financed responses under the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act (CERCLA), as amended, have been 

implemented and that no further 

cleanup by responsible parties is 

appropriate. Moreover, the EPA and the 

State have determined that remedial 

actions conducted at the site to date 

have been protective of public health, 

welfare, and the environment. However, 

this deletion does not preclude future 

actions under Superfund.

DATES: Effective October 1, 2004.

FOR FURTHER INFORMATION CONTACT:

Caroline Robinson, Remedial Project 

Manager, U.S. Environmental Protection