[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Rules and Regulations]
[Pages 55810-55846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22968]
[[Page 55809]]
-----------------------------------------------------------------------
Part IV
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 9 and 63
Hazardous Air Pollutants: Amendments to the Approval of State Programs
and Delegation of Federal Authorities; Final Rule
Federal Register / Vol. 65, No. 179 / Thursday, September 14, 2000 /
Rules and Regulations
[[Page 55810]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 63
[FRL-6864-6]
RIN 2060-AG60
Hazardous Air Pollutants: Amendments to the Approval of State
Programs and Delegation of Federal Authorities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule modifies the Agency's procedures for delegating
hazardous air pollutant (HAP) standards and other requirements to
State, local, and territorial agencies, and Indian tribes (S/L/T).
Under section 112(l) of the Clean Air Act (Act), EPA is authorized to
approve alternative S/L/T HAP standards or programs when such
requirements are demonstrated to be no less stringent than EPA's rules.
Today's changes to section 112(l) revise our procedures and criteria
for approving alternative S/L/T measures.
Today's action amends our existing regulations that implement
section 112(l) of the Act. The changes will help S/L/T's by offering a
range of options for demonstrating equivalence with the Federal
requirements and expediting the approval process.
These changes are in response to requests we received from State
and local air pollution control agencies to reconsider our existing
regulations in light of implementation difficulties that they
anticipate or have experienced. We believe this effort is consistent
with the President's regulatory ``reinvention'' initiative. It will
result in less burden to S/L/Ts, regulated industries (by avoiding
duplicative requirements), and the Federal Government, without
sacrificing the emissions reduction and clean air enforcement goals.
This rulemaking also addresses requirements that apply to S/L/Ts,
should they choose to obtain delegation or program approval under
section 112(l). (Note that obtaining delegation under section 112(l) is
voluntary). This rulemaking does not include any requirements that
apply directly to stationary sources of HAP or small businesses that
emit HAP.
EFFECTIVE DATE: This final rule will be effective on October 16, 2000.
ADDRESSES: All information used in the development of the proposed and
final rules is contained in Docket No. A-97-29. The docket is available
for public inspection and copying between 8:00 a.m. and 5:30 p.m.,
Monday through Friday at the Air and Radiation Docket and Information
Center, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460; telephone (202) 260-7548, fax (202) 260-4400. A
reasonable fee may be charged for copying.
These documents can also be accessed through the EPA web site at:
http://www.epa.gov/ttn/oarpg. For further information and general
questions regarding the Technology Transfer Network (TTNWEB), contact
Mr. Hersch Rorex at (919) 541-5637 or [email protected], or Mr. Phil
Dickerson at (919) 541-4814 or [email protected].
FOR FURTHER INFORMATION CONTACT: Mr. Thomas A. Driscoll, Information
Transfer and Program Integration Division (MD-12), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone (919) 541-5135, or electronic mail at [email protected] or
Ms. Kathy Kaufman, Information Transfer and Program Integration
Division (MD-12), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711, telephone (919) 541-0102, or
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this rule are S/L/Ts that request
approval of rules or programs to be implemented in place of Act section
112 rules, emissions standards, or requirements, or voluntarily request
delegation of unchanged section 112 rules. These are the types of
entities that EPA is now aware could potentially be regulated by this
rule. Other types of entities not included in the list could also be
regulated. The procedures and criteria for requesting and receiving
approval of these S/L/T rules or programs or voluntarily requesting
delegation of section 112 rules are in Sec. 63.90 through Sec. 63.97,
excluding Sec. 63.96, of this subpart.
Outline
The information presented in this preamble is organized as follows:
I. Purpose and Background
II. Summary of Major Issues
A. Enforceable Mechanisms
B. S/L/T Risk-based Programs
C. Other Section 112 Programs
D. Work Practices
E. Delegation of Authorities
III. How do the Revised Delegation Options Work?
A. Section 63.91--Criteria for Straight Delegation and Criteria
Common to all Approval Options
B. Section 63.92--Approval of S/L/T Requirements That Adjust a
Section 112 Rule
C. Section 63.93--Approval of S/L/T Requirements That Substitute
for a Section 112 Rule
D. Section 63.94--Equivalency by Permit (EBP)
E. Section 63.95--Additional Approval Criteria for Accidental
Release Prevention Programs
F. Section 63.96--Review and Withdrawal of Approval
G. Section 63.97--Approval of a S/L/T Program That Substitutes
for Section 112 Requirements
IV. How Will EPA Determine Equivalency for S/L/T Alternative NESHAP
Requirements?
A. Work Practice Standards and Requirements
B. Changes to Monitoring Frequency and Recordkeeping and
Reporting
C. Equivalency for S/L/T Requirement Established Under New
Source Review/Prevention of Significant Deterioration (NSR/PSD)
D. Title V Permit Renewal Issues
V. What are the Requirements to Review This Action in Court?
VI. Administrative Requirements for This Rulemaking
A. Docket
B. Executive Order 12866
C. Executive Order 13132
D. Consultation and Coordination With Indian Tribal Governments
Under Executive Order 13084
E. Paperwork Reduction Act
F. Regulatory Flexibility Act (RFA)
G. Unfunded Mandates Reform Act
H. Protection of Children from Environmental Health Risks and
Safety Risks Under Executive Order 13045
I. National Technology Transfer and Advancement Act
J. Submission to Congress and the Comptroller General
VII. Statutory authority
I. Purpose and Background
Section 112(l) was added to the 1990 amendments of the Act in
recognition of the efforts by many S/L/T, during the 1980's, to develop
their own programs to address HAPs. These programs may have
requirements that apply to the same sources covered by Federal rules
that have been subsequently developed under section 112. S/L/T
requirements may differ from the corresponding Federal emission
standards but may achieve equivalent or better environmental results.
One major purpose of section 112(l) is to provide a mechanism for the
approval of S/L/T requirements and programs in lieu of the Federal
standards, where such a demonstration can be made. A second goal of the
program is to facilitate the delegation of section 112 standards to S/
L/T programs who intend to implement
[[Page 55811]]
and enforce the Federal requirements as written.
At present, the section 112 rules of major concern are the maximum
achievable control technology (MACT) standards developed under sections
112(d) or 112(h) of the Act. However, as the Federal air toxics program
matures, we anticipate that other section 112 rules or requirements may
also be delegated. For example, area source requirements developed
under section 112(k) authority and residual risk standards developed
under section 112(f) authority will be issued in the next several
years.
In November, 1993, EPA first published rules (58 FR 62262, November
26, 1993) to implement section 112(l). The regulations were codified at
40 CFR Part 63, subpart E. Following promulgation, several S/L/Ts
expressed concern that the regulations would be difficult to implement
and, in some circumstances, unworkable. Over the past several years we
have been working with S/L/T representatives and other external parties
to rethink how subpart E might be better structured to accomplish the
goals of the Act. We have conducted stakeholder meetings to assess the
concerns not only of S/L/Ts, but also of industries affected by the
subpart E regulations and environmental/public interest groups. We also
considered input from work groups, comprised of representatives from S/
L/Ts and EPA, who addressed specific issues. Based on this input, in
September, 1997, we placed on the Internet for comment a draft preamble
and rule amendments. We then revised the draft and published proposed
amendments to subpart E (64 FR 1880, January 12, 1999). We received ten
detailed sets of public comments on the proposal. The issues raised by
commenters, and our responses, are discussed in sections II, III and IV
below.
In a related effort, we have worked closely with the California Air
Resources Board (CARB) and the California Air Pollution Control
Officers Association (CAPCOA), as well as California industry and
environmental groups, to integrate the existing California air toxics
programs with the Federal program. The goal of the ``California
Initiative'' has been to establish a framework for evaluating
alternative requirements, making timely equivalency determinations, and
using resources efficiently. The framework will also aid in identifying
and correcting circumstances where sources have to comply with
duplicative requirements on the same emission points. The framework and
guidance is intended to complement and facilitate compliance with
subpart E requirements.
The current revisions to subpart E have benefitted greatly from
this initiative. We have improved our understanding of the kinds of
provisions that can be deemed equivalent to the MACT standards.
II. Summary of Major Issues
Although the January 1999 proposal to amend subpart E identified
options for obtaining delegation and making equivalency determinations,
nine of the ten comments received from S/L/Ts argued for even more
flexibility in this process. In general, commenters believed that the
delegation process was still too burdensome to be useful. They also
believed that it did not go far enough toward accommodating existing S/
L/T rules and requirements that differ structurally from Federal
standards. (An example of the latter would be ``risk-based programs'',
which establish emission limitations on specific facilities based on
the health risks posed.) S/L/T requested simpler and shorter review
processes for each delegation option, and a broader list of regulatory
authorities that would be available under each option.
We have streamlined the equivalency review processes to make it
easier for
S/L/Ts to use these delegation options. In particular, we have
eliminated specific steps in the review processes for the Equivalency
by Permit (EBP) and State Program Approval (SPA) options, discussed in
more detail in section III.
A. Enforceable Mechanisms
The greatest difference between the proposed rule and today's final
rule is the variety of enforceable mechanisms that are now available
under each equivalency option. Mechanisms such as S/L/T rules, S/L/T
permits, or Title V permits can be used in a variety of delegation
options so long as (1) they include, in sufficient detail, the terms
and conditions necessary to establish equivalency, and (2) those terms
and conditions can be made federally enforceable through public review
and EPA review and approval. Table 1. summarizes the mechanisms we now
allow under each option (these are discussed in more detail in section
III).
Table 1.--Enforceable Mechanisms Available Under Subpart E Equivalency
Options
------------------------------------------------------------------------
Option and authorities allowed Mechanism
------------------------------------------------------------------------
63.92--Rule Adjustment................. Title V permits.
Title V general
permits.
Federal New Source
Review (NSR) permits.
S/L/T rules.
63.93--Rule Substitution............... Title V permits.
Title V general
permits.
Federal NSR permits.
Board and
administrative orders.
Permits issued
pursuant to permit templates.
S/L/T permits.
S/L/T rules.
63.94--Equivalency by Permit (EBP) Title V permits.
Process.
Title V general
permits.
63.97--State Program Approval (SPA) Title V permits.
Process.
Title V general
permits.
Federal NSR permits.
Board and
administrative orders.
Permit issued pursuant
to permit templates.
S/L/T permits.
S/L/T rules.
------------------------------------------------------------------------
[[Page 55812]]
B. S/L/T Risk-Based Programs
The S/L (S/L is used to represent State and Local Programs in this
section instead of S/L/T because comments were submitted by State and
Local Programs only) had two major categories of comments regarding
substituting their risk-based air toxics requirements for Federal
section 112 requirements: One, substituting S/L risk-based programs for
Federal requirements was too difficult using the SPA option and, two,
S/Ls are concerned that they would not be able to use the subpart E
substitution options to demonstrate that their risk-based programs are
equivalent to EPA's future risk-based programs such as requirements
which would be issued under the residual risk provisions (section
112(f)) and the risk related aspects of the urban air toxics program
provisions (section 112(k)) of the Act. We recognize that S/Ls have, in
some cases, established risk-based air toxics programs and would like
to continue to implement and enforce these programs in lieu of Federal
section 112 requirements. We believe we have addressed the major S/L
comments and concerns in two rule modifications.
Some S/L contended that the section 112(l) provisions promulgated
as 40 CFR Part 63, subpart E in November 1993 did not allow them to
retain their existing risk-based programs. Subpart E required that the
S/Ls who used the SPA option (Sec. 63.94) would need to write their
risk-based, air toxics' permit terms and conditions in the form of the
Federal standards which are technology-based, and therefore difficult
for S/Ls to fit risk-based requirements into. S/L argued that this was
of little benefit to them because of the work it would take to make the
conversions to the form of the Federal standard. We agreed with their
concern and have amended the SPA option so as not to require their
permit terms and conditions to be in the form of the Federal standard.
The concern of the S/L pertaining to risk-based programs was that
we are now developing policies, guidance, and regulations that would be
based in part on health and/or risk evaluations (residual risk
requirements of section 112(f) and urban air toxics program
requirements of section 112(k)), to supplement our MACT program. More
specifically, they are worried that subpart E would not allow them to
substitute their existing risk-based requirements for our future
requirements that are likely to also be based at least in part on risk.
The EPA agrees that section 112 authorizes the Administrator to
promulgate requirements other than technology-based MACT standards, and
that subpart E should permit substitutions of S/L/T risk-based
requirements for Federal risk-based requirements. Please note that EPA
is currently in the process of developing policies, guidance, and
regulations to implement the residual risk and urban air toxic
requirements of the Act and we do not at this time know with any
specificity what those requirements will be in the coming years. As a
result, we may need to further revise subpart E in the future to aid
the S/L/Ts in easily substituting their programs for our Federal risk-
based program once those programs have been developed.
C. Other Section 112 Programs
The Act provides a two-step process for addressing control of HAPs.
Over the last 10 years, we have focused on developing Federal control
technology-based standards to achieve broad reductions in HAP
emissions. We are now moving to the second step of evaluating residual
risk to determine whether additional standards are needed to protect
public health with an ample margin of safety. Although the process and
methodology for these evaluations is still under development, we
believe that it is appropriate to provide, through this rule, a
mechanism by which S/L/Ts can accept delegation of, and/or substitute
their programs for our risk-based program. We believe that we have
written these options broadly enough that they will allow substitution
of many S/L/T requirements for the Federal standards developed under
the residual risk and urban air toxics programs.
D. Work Practices
One overarching issue that arose during the California Initiative
project is the delegation of authority to approve site-specific changes
to work practice authorities. Many MACT standards contain work practice
measures such as requirements to keep solvent-soaked cleaning rags in
closed containers at aerospace facilities, or to provide operator
training for persons spraying varnish on wood products at wood
furniture manufacturing facilities. The question is whether the
authority to make site-specific decisions about work practices can be
delegated to S/L/Ts. Some of the MACT standards do not explicitly say
whether S/L/T can make site-specific decisions regarding changes to
these work practices. Further, some of these work practices were
developed in lieu of emission standards under section 112(h) of the
Act, which requires us to retain the authority to approve alternatives.
We have addressed this issue by splitting the work practices into (1)
those for which we would retain the authority to approve alternatives
(which would require us to conduct rulemaking with a public comment
period), and (2) those for which we would delegate the authority to
approve alternatives (which would not require an EPA rulemaking). For a
more-detailed discussion of this subject, see section IV below.
E. Delegation of Authorities
Another issue addressed in comments on the proposed rule concerns
delegation of the Administrator's authority to approve an individual
source's use of alternatives to certain types of requirements in MACT
standards, as set forth in 40 CFR Part 63, subpart A (the General
Provisions). The proposed rule addressed which source-specific
discretionary authorities we may and may not delegate to S/L/Ts through
``straight'' delegation of the General Provisions. In the final rule,
we are making a change to the lists of ``delegable'' and ``non-
delegable'' authorities. Specifically, we now allow delegation, to S/L/
Ts, of the Administrator's authority under Sec. 63.10(f) to make minor
changes to reporting and recordkeeping requirements.
We have also clarified that approval of changes to monitoring
frequency must be addressed under Sec. 63.8(f), changes to monitoring,
not under Sec. 63.10(f). This issue is discussed in detail in section
IV.B below.
III. How Do the Revised Delegation Options Work?
A. Section 63.91--Criteria for Straight Delegation and Criteria Common
to all Approval Options
The purpose of Sec. 63.91 is twofold: To explain the process for
straight delegation, and to describe the common up-front approval
criteria that apply to all of the approval options. Straight delegation
means the S/L/T will implement and enforce the Federal MACT standards
as we have written them, without any changes. The approval process
under Sec. 63.91 consists of notice and comment rulemaking in the
Federal Register, and is described in greater detail in separate
guidance. We have made several changes to Sec. 63.91 to clarify our
intent and provide additional flexibility. With this preamble we have
also provided additional guidance on how these requirements will work.
See Appendix 1 to the preamble for a flow chart describing the
Sec. 63.91 delegation process.
[[Page 55813]]
1. Format Changes To Clarify Intent
We received comments asking us to separate straight delegation
requirements from the requirements regarding alternative S/L/T rules or
programs. While we did not separate these requirements into other
sections of the rule, we have revised the format of Sec. 63.91 to make
it easier for readers to find and interpret the requirements they need.
Specifically, we have identified which requirements are related to the
straight delegation process alone and which requirements are common to
all of the approval options. We have reorganized the section, added
more descriptive section titles, and made broader use of tables to
improve the clarity of the requirements.
2. Approval Criteria for Straight Delegation/Up-front Approval for
Alternatives
a. Straight delegation. We have clarified our intent that approval
of your Title V program should satisfy the Sec. 63.91 approval
criteria. In many cases you received your up-front approval under
subpart E at the same time you received your Title V program approval.
If this is not the case, you should be able to request subpart E
delegation with a letter to your EPA Regional office requesting the
delegation and referencing your previous Title V showing. The Region
would then issue a Federal Register notice approving the subpart E
delegation.
b. Alternatives. Some commenters were concerned that the general
approval criteria for the various equivalency demonstration options
(e.g., Secs. 63.94 or 63.97) may include redundant demonstrations of
the Sec. 63.91 general approval criteria. This is not our intent. We
have changed the final language in Sec. 63.91(a) to clarify that only
one showing of the Sec. 63.91 criteria is needed.
3. Who Accepts Final Delegation
Commenters pointed out that there can be a difference between the
agency that submits a request for an equivalency demonstration and the
agency that actually accepts delegation of the approved alternative
rule. (This may only be a problem in one State.) We believe that the
intent of section 112(l) is to approve alternatives as part of a
delegation. However, we encourage agencies in this position to work
together to avoid duplicative effort. We encourage districts to bundle
submittals together before sending them to EPA; we could then issue
Federal Register notices that combine approvals for multiple entities.
4. Accepting Straight Delegation Via Title V
Commenters asked us to clarify that the straight delegation option
should include delegation via a S/L/T Title V operating permit program,
and we agreed. In other words, we may delegate to you the authority to
implement MACT standards directly through issuance of Title V permits
to sources, without the need for you to adopt State rules requiring
MACT. Because of the nature of the operating permit program, however,
there are several issues related to the use of this mechanism that must
be separately addressed and resolved.
The first issue is whether your statutes, regulations, and other
requirements contain the appropriate provisions granting authority to
implement and enforce the State rule or program upon approval. We have
added clarifying rule language in Sec. 63.91. At a minimum, if you
request delegation using your permit program, you should submit a
letter (1) indicating which statutory, regulatory, or other provisions
satisfy Sec. 63.91, and (2) requesting the delegation.
Second, implementing and enforcing MACT standards through the part
70 operating permit program raises timing issues; in particular, the
timing of the delegation of a particular MACT standard to you. In order
to assure that affected sources are in compliance by the MACT
standard's compliance date, their operating permits must be issued and/
or modified to reflect the necessary permit terms and conditions for
the MACT standards before that date. Both initial notifications and
applicability determinations need to be made prior to the compliance
date. You must assure us that you will implement and enforce the MACT
standards prior to the compliance date.
If you use permits as a mechanism for any of the approval options
provided in this rule, you should recognize that implementing MACT
standards through Title V permits will require you to thoroughly review
permits to ensure that their terms and conditions adequately reflect
MACT requirements. The origin of each permit term or condition must be
clear. Therefore you must reference the Federal Register notice in
which we have approved the alternative.
You must also ensure that when permits are renewed or revised, the
terms and conditions that implement the MACT standard(s) are carried
forward. Later, if for any reason the permit is not renewed, the source
must still comply with the Federal MACT standard. If any permits that
have already been issued do not adequately reflect MACT requirements,
then they must be revised prior to delegation. Also, if Title V permits
are used as the approvable mechanism, then the source must always have
a Title V permit, even if it later becomes a minor source of HAP
emissions.
There may also be cases where the sources covered by a MACT
standard are not covered by the Title V program (e.g., area sources
that are exempt from the requirement to obtain a Title V permit). You
must assure us that you can implement and enforce the MACT standards
for those sources who do not have a Title V operating permit.
Another issue you must address before taking straight delegation
via Title V permits involves new sources. For example, it could take up
to a year for a new source to receive its operating permit, and such a
gap in compliance would make your delegation request unapprovable. You
need to assure us that new sources will be issued permits as soon as
possible, and that you will implement and enforce the MACT standard
requirements before issuance of the operating permit.
You can also accept straight delegation of the MACT standards
through federally enforceable State operating permits (FESOPs) or
through Federal NSR permits, as long as you meet the same conditions
discussed above for Title V operating permits. At a minimum, these
permits must be federally enforceable.
5. Approval Time Frame for Straight Delegation
Commenters on this option requested that we shorten the time frame
for approving straight delegations. We agree that in many cases, the
full 180 days would not be needed for the review and approval of the
delegation, and publication of the Federal Register notice. Our aim is
to confer approval as soon as possible. Most EPA Regional offices have
established straight delegation procedures, and work closely with S/L/
Ts to approve delegation mechanisms in advance. In these cases,
straight delegation could be conferred by letter. However, where
rulemaking is required, we may need the full 180 days.
In addition, the EPA Regional office has authority to decide when
officially to delegate each MACT standard to you. We may delegate a
MACT standard to you either (1) for all sources in a source category at
once, after all sources in the source category have received permits;
or (2) source by source as permits are issued.
[[Page 55814]]
6. Subsequent MACT Standard Revisions
Commenters asked for a simple way to implement amendments to MACT
standards in cases where we have already delegated alternative MACT
requirements to you. We have revised the final regulation to limit the
effect, on already-delegated MACT standards, of amendments that
decrease the stringency of the MACT standard. When the change is
limited to administrative or procedural changes or is clearly less
stringent, no changes are required at the S/L/T level unless those
agencies or their affected sources request a change.
We have amended the rule (Sec. 63.91(e)(3)) to require that we
notify you of MACT standard amendments that are more stringent and that
would affect your delegation. (Note that we are not referring here to
residual risk standards issued under section 112(f); only to amendments
specific to MACT standards issued under 112(d) or 112(h)). In the
absence of such a notification, no action on your part is required. If
action is required, we will work with you on a case-by-case basis to
determine a time frame to make the changes to your requirements. We
believe this flexibility is needed because we cannot forecast the
complexity of possible future changes to MACT standards.
Based on our current experience, most amendments to MACT standards
are limited and do not result in an increase in stringency. For
example, we may amend a MACT standard to allow for the use of an
alternative monitoring procedure, which does not increase the
stringency of the remaining requirements. In cases where the stringency
increases through the addition of emission sources to be controlled or
tightening of the standard or monitoring, recordkeeping and reporting
requirements (MRR), we often provide a time frame for sources to follow
in complying with the new requirements. We expect that this time frame
will allow sufficient time to also amend any necessary delegations or
equivalency demonstrations.
7. Delegable Authorities
In the proposed rule, we included a list of the subpart A General
Provisions authorities that we would agree to delegate to you. We also
provided a list of those authorities to be retained by us. We received
comments that we should not codify these delegations in the subpart E
rule. Commenters argued that delegation issues should be handled
through policy guidance rather than through rulemaking, so that any
future changes to the policy could be made more easily. However, we
believe that it is important to continue listing these authorities in
subpart E to clarify what is delegable in a common forum that is
readily accessible. These authorities are found in Sec. 63.91(g) of the
final rule.
Commenters also suggested that we delegate authority for day-to-day
management of many decisions to you, so that we can focus on issues
with greater emission reduction impacts. They also asked us to expand
the list of authorities that would be delegable, in order to ensure
there is a simple and expeditious process for you to approve
alternative compliance and enforcement measures. In response to these
concerns, the final rule now allows the authority to approve minor
reporting and recordkeeping requirements to be delegated, and we have
clarified how changes to monitoring frequency should be handled. We
have also codified new definitions for major, intermediate, and minor
changes to monitoring, as well as major, intermediate, and minor
changes to test methods. These issues are discussed in detail in
section IV.B below.
8. Enforcement
Throughout this preamble, we state that S/L/T rules or programs may
be implemented and enforced in place of, or in lieu of, certain
otherwise applicable section 112 Federal rules. This means that your
rules and programs can completely, or partially, replace our section
112 Federal rules. Nothing in this language is intended to suggest that
your S/L/T enforcement agencies have replaced our Federal authority to
enforce modified or substituted rules or programs approved under this
section or any other section. On the contrary, we want to be very clear
that although we are allowing your rules and programs to replace our
Federal rules, we always retain the right to enforce and implement
these rules. Even if we delegate the enforcement of unchanged Federal
112 standards to you, we will remain partners with you in that
enforcement.
We are aware that a recent Resource Conservation and Recovery Act
(RCRA) court decision determined that EPA gave up our authority to
enforce when we approved a S/L/T enforcement program ``in lieu of'' the
Federal program. However, this decision does not apply to the Act.
Although the RCRA decision is being appealed, we believe that even if
it is upheld, Section 112(l)(7) of the Act allows us to always enforce
our Federal rules, including the S/L/T rules or programs that are
substituted for our Federal rules and become the Federal rules.
Even if you take an enforcement action against a particular source
for violations of section 112 rules, we may also take an enforcement
action, where we deem that appropriate. In most instances, we will be
working together as partners, coordinating our efforts so that this
``overfiling'' situation will not arise. However, in cases where the
penalties you have obtained do not satisfy our understanding of what is
an appropriate penalty, we may seek additional penalties and other
relief.
9. More Than One Equivalency Option
There has been some confusion over whether a S/L/T could use more
than one equivalency option to take delegation of the sources in a
given source category covered by a section 112 rule or requirement. In
general, if a S/L/T submits alternative requirements for a subset of
the source category under one option, such as rule substitution, it
cannot request delegation for the remainder of sources under another
option, such as straight delegation. This does not mean that the S/L/T
request for equivalency cannot contain a mixture of allowable
enforceable mechanisms, however. For example, the equivalency request
could be based on a State rule for the majority of requirements and
permit or other requirements for the remainder. Once the equivalency
request is approved, all sources must comply with the approved
requirements.
The exception to the limit on the number of delegation options is
if the S/L/T used the EBP option to obtain approval of alternative
requirements for a subset of sources in a source category. In this
case, the S/L/T must request delegation of all of the remaining sources
using just one other approval option, such as straight delegation. See
section III.D for more discussion of this issue.
B. Section 63.92--Approval of S/L/T Requirements That Adjust a Section
112 Rule
Under the Rule Adjustment option in Sec. 63.92, we can approve your
requirements that are structurally very similar to, and clearly at
least as stringent as, the Federal rule(s) for which you want to
substitute those requirements. Under this option, you may only make an
adjustment to a Federal rule that results in emissions limits and other
requirements that are clearly no less stringent, for each source, than
the Federal rule. There can be no ambiguity regarding the stringency of
any of the proposed adjustments.
[[Page 55815]]
Section 63.92 includes a list of rule adjustments that may be approved
under this option--for example, changing a required emission rate on a
required control technology from 95-percent control to 98-percent
control, or increasing the monitoring requirements. We consider all of
these adjustments to result in requirements that are more stringent
than the corresponding Federal requirements. (Note, however, that if
the MACT requirement is simply a performance standard (e.g. 95-percent
control out of the stack) as opposed to a specific required control
technology, and your corresponding requirement is a more stringent
performance standard (such as 98-percent control), you do not need to
submit your alternative under section 112(l). You are already complying
with the MACT standard.)
Under the rule adjustment option you would need to demonstrate that
your requirements had undergone public notice and provided an
opportunity for public comment in your jurisdiction before you submit
it to us. Upon approval, your alternative requirements would be
published in the Federal Register and incorporated directly or by
reference into part 63, without additional notice and opportunity for
comment.
As discussed in section II, we have expanded the list of approvable
mechanisms under Sec. 63.92 to include Title V permits, Title V general
permits, and Federal NSR permits, in addition to rules. We make clear
in the rule that permits submitted under Sec. 63.92 must be final
permits, not draft permits. Only permits that have already been issued
can be used to demonstrate equivalency. Also, once we approve an
alternative requirement in a permit or permits, the facility cannot
change or withdraw its permit without affecting its equivalency status.
We believe these mechanisms all provide adequate notice and comment
opportunities to the public in order to qualify for the relatively
streamlined rule adjustment process. We note, however, that just
because a mechanism is included under rule adjustment, it is not
automatic assurance that you will always be granted equivalency. For
example, not every lowest achievable emission rate (LAER) or NSR
determination could be classified as an adjustment, unless the control
technologies and associated compliance measures were clearly no less
stringent than the MACT. When a different control technology also
results in different MRR, it may not be obvious that the NSR compliance
and enforcement measures are clearly no less stringent. In this case,
rule substitution or SPA may be the more appropriate option for your
submittal.
As described in the following sections, we have added to the list
of allowable ``adjustments'' and shortened the review time frame. See
Appendix 1 to the preamble for a flow chart describing the Sec. 63.92
delegation process.
1. Additional Rule Adjustments Allowed
Commenters pointed out that subpart E apparently lacks a mechanism
to accommodate minor, nonsubstantive differences (editorial,
formatting, clarifications) from the MACT standard. In considering this
issue, we determined that the rule adjustment option should logically
include such changes as allowable adjustments. An example of a minor,
nonsubstantive adjustment may be a change in the name of an
administrator under an alternative or a change in the numbering/
labeling scheme of the rule. We would expect to process these changes
quickly.
We have also added a provision that allows you to submit
requirements identical to the provisions approved elsewhere in the same
State, which we have previously determined to be equivalent under
subpart E. We made this change to accommodate cases where one local
agency might receive approval of an alternative based on a permit
template under rule substitution, for example, and another local agency
wants to adopt the same requirements in its jurisdiction.
2. Approval Time Frame
Commenters asked that we reduce the 90-day approval time frame. In
general, we will make every effort to process alternatives as quickly
as possible. If the alternative requirement is ``unequivocally no less
stringent,'' then we believe a 60-day approval period would be
appropriate and we have changed the final rule to reflect the shorter
time frame. We have also agreed that the approval can be deemed
effective upon signature, rather than waiting for publication in the
Federal Register. We will provide more information on how this could
work in forthcoming guidance.
However, you should recognize that there may be situations where we
can not consider your alternative under the rule adjustment option and
would have to consider it under the rule substitution option. This
could occur in the following situations:
The information you provide us is not sufficient to
determine whether the alternative requirement is ``unequivocally no
less stringent,'' or
The submittal is too complex for us to evaluate within the
60-day time frame of the rule adjustment option.
If we must consider your submittal under the rule substitution option
instead of the rule adjustment option, we will inform you of this
change and you would not have to resubmit your request (although you
may need to submit additional supporting information).
C. Section 63.93--Approval of S/L/T Requirements That Substitute for a
Section 112 Rule
Under Sec. 63.93, substitution of requirements (which is commonly
referred to as the Rule Substitution option), we can approve
substitution of one (or more) of your rules or requirements for a
Federal rule, where your rule is structurally different from the
corresponding Federal rule. Under this section, we also may approve a
rule that is different from the Federal rule in ways that do not
qualify for approval under Sec. 63.92--that is, in ways that are not
``unambiguously no less stringent.'' This situation might arise when
you submit a rule that was written independently of the Federal rule or
when, for example, your rule achieves equivalent emissions reductions,
but with a combination of levels of control and compliance and
enforcement measures not addressed by the Federal rule. Upon receipt of
a complete request for approval of a substituted requirement, we would
conduct a rulemaking to request public comments. If we approved your
requirement we would then publish it in the Federal Register, and
incorporate it directly or by reference into part 63 as federally
enforceable. Any rules or other requirements that you submit under this
section must be enforceable under your State law.
You may submit alternatives for an equivalency determination
developed from any or a combination of the following mechanisms:
Title V permits,
Title V general permits,
Federal NSR permits,
Board and administrative orders,
Permits issued pursuant to templates,
S/L/T permits, or
S/L/T rules.
Note that the mechanisms listed above submitted under Sec. 63.93 must
be final, not draft. Only permits, permit templates, or board and
administrative orders or rules that have already been issued can be
used to demonstrate equivalency. Also, once we approve an alternative
requirement in a permit or
[[Page 55816]]
permits, you cannot modify that requirement.
If new sources apply for permits after equivalency has been
approved, you must review those submittals to ensure equivalency with
the MACT standard. Also, if a source wishes later to change approved
permit terms and conditions at the time of permit renewal, or when
making changes at the source, we must, of course, also review those new
terms and conditions to ensure equivalency with the MACT standard.
As discussed in section II, we have expanded and clarified the list
of approvable mechanisms to provide additional flexibility to you in
preparing your equivalency demonstrations. Because there is relatively
more oversight in the review and approval process for rule
substitution, we believe the complete menu of approvable mechanisms
should be allowed under this option.
Commenters raised several issues with respect to the Sec. 63.93
process. The major issues are discussed below, and the remaining issues
are addressed in the Technical Document for Promulgation of Standards,
found in the project docket. See Appendix 1 to the preamble for a flow
chart describing the Sec. 63.93 delegation process.
1. Review Period
Commenters suggested reducing the length of our review period from
180 to 90 days. They argued that EPA's substantive review of submittals
should occur before formal submittal, in order to understand and
resolve major issues. In this case, the official review should not
require extensive amounts of time.
We have not changed the review period in the final rule because we
expect to receive submittals under this option that range significantly
in their complexity. For less complex equivalency submittals, we would
intend to complete our review as quickly as possible to reduce the
chance of dual regulation. However, we must reserve the ability to
fully review more complex submittals, which could take up to 180 days.
Therefore, we believe that the appropriate time frame for review should
be determined by the relevant EPA Regional office, considering the
complexity of the submittal, the Regional office's experience with
similar submittals, and the Regional office's resource load. We expect
that EPA Regional offices will want to work with you early in the
process, and to process the equivalency determinations as quickly as
possible. We encourage both you and the Regional offices to develop a
submittal tracking system to ensure that equivalency requests are
handled as expeditiously as possible. We also plan to provide
additional implementation guidance to facilitate preparation of easily
reviewed submittals and EPA review of those packages.
2. Approval Criteria
Commenters suggested that we establish a two-tier system for
reviewing equivalency submittals under Sec. 63.93. Specifically, they
said we should distinguish between level of control requirements and
compliance and enforcement measures. They argued that compliance and
enforcement measures are less critical, but require disproportionately
greater review resources. While we agree that it can be more difficult
to determine the equivalency of compliance and enforcement measures, we
do not believe this justifies a lower threshold for the determination.
Section 110 of the Act requires that we ensure our rules are adequately
implemented and enforced; therefore, it would be difficult to support
this distinction. For more detail on how we intend to handle compliance
and enforcement measures, please see the preamble to the proposed rule.
64 FR 1880, 1901-1903 (January 12, 1999).
3. Compliance Schedules
Section 63.93(b)(3) specifies that an equivalent alternative must
ensure that each affected source is in compliance no later than would
be required by the otherwise applicable Federal rule. Commenters
suggested that we revise this requirement to instead ensure that the
compliance schedule is ``sufficiently expeditious.'' We cannot agree
with this suggestion because the compliance date is a ``bright line''
criterion in the equivalency demonstration. We cannot think of a way to
define ``sufficiently expeditious'' that would not appear arbitrary and
yet would still prevent potential abuses of changes in the deadline.
However, we realize that there may be some cases where a S/L/T rule
may contain a compliance date that is only slightly beyond the deadline
in the applicable MACT standard. We want to allow flexibility to
approve these cases, taking into consideration the length of the time
difference between two deadlines, the stringency of the rule, the
expected emissions impact, etc. Therefore, we are revising this
language to require S/L/T rules to assure compliance by affected
sources ``within a time frame that is consistent with the deadlines
established in the otherwise applicable Federal rule.'' We expect that
this language will provide flexibility in limited situations without
allowing large discrepancies in compliance deadlines between S/L/T
rules and Federal rules.
D. Section 63.94--Equivalency by Permit (EBP)
The EBP option was added to subpart E in the proposed amendments.
As proposed, this option would allow you to substitute alternative
requirements and authorities that take the form of permit terms and
conditions instead of source category regulations. This process
provides a means of obtaining delegation without having to go through
rulemaking at the S/L/T level to establish source category-specific
regulations. See Appendix 1 to the preamble for a flow chart describing
the Sec. 63.94 delegation process.
1. Overview of the Equivalency by Permit Process
The EBP process comprises three steps. The first step (see 40 CFR
63.94(a) and (b)) is the ``up-front approval'' of your EBP program. The
second step (see 40 CFR 63.94(c) and (d)) is our review and approval of
your alternative section 112 requirements in the form of pre-draft
Title V permit terms and conditions. The third step (see 40 CFR
63.94(e)) is incorporation of the approved pre-draft terms and
conditions into specific Title V permits and the Title V permit
issuance process itself. The final approval of the S/L/T alternative
requirements that substitute for the Federal standard does not occur
for purposes of the Act, Sec. 112(l)(5), until the completion of step
three. For a more detailed description of each of these steps, refer to
the discussion at section VII.C.2 of the preamble to the proposed rule.
See 64 FR 1880, 1901-1903 (January 12, 1999).
As we discussed in the proposal, the purpose of step one is three
fold: (1) It ensures that you meet the Sec. 63.91(b) criteria for up-
front approval common to all approval options; (2) it provides a legal
foundation for you to replace the otherwise applicable Federal section
112 requirements with alternative, federally enforceable requirements
that will be reflected in final Title V permit terms and conditions;
and (3) it delineates the specific sources and Federal emission
standards for which you will be accepting delegation under the EBP
option.\1\
---------------------------------------------------------------------------
\1\ Note that S/L/Ts may not implement the EBP option for
individual sources or source categories that are not identified in
step one. S/L/Ts would have to repeat the up-front approval process
to add those sources to the EBP program.
---------------------------------------------------------------------------
At step one, we will go through notice and comment rulemaking to
approve your EBP program allowing you to write
[[Page 55817]]
source specific title V permit terms and conditions equivalent to
Federal section 112 standards. We will amend 40 CFR part 63 to
incorporate that approval. Once step one is completed, we have approved
your program contingent upon your including, in Title V permits, terms
and conditions that are no less stringent than the Federal standard.
However, the requirement applicable to the source--and the ``applicable
requirement'' for Title V purposes--remains the Federal section 112
requirement until the final Title V permit is issued. This is because
we will not be able to confirm that your Title V permit terms and
conditions will be no less stringent than the Federal standard until we
see them written into the specific Title V permits. Moreover, before
final delegation can occur, there must be an enforceable mechanism (in
this case the Title V permit) containing the alternative requirements.
The actual determination that the alternative S/L/T requirements
are equivalent to (or no less stringent than) the Federal section 112
standard is made during steps two and three, with final delegation of
the Federal requirements occurring at the completion of step three. At
step two, you submit pre-draft Title V permit terms and conditions to
us for approval. At this step, you ask us to evaluate the terms and
conditions that will be applicable to the sources identified in step
one and to make a judgment as to whether those terms and conditions are
as stringent as the Federal standard. We introduce the term ``pre-
draft'' to mean a version of the part 70 operating permit prior to the
``draft'' (as defined in 40 CFR part 70) version. By reviewing an early
or pre-draft version of the operating permit, we will be able to
identify potential issues with the equivalency demonstration and
address these issues prior to the normal operating permit review
process. By configuring the EBP option this way, we believe we will be
able to provide timely review and input to permitting agencies and,
therefore, not slow the operating permit issuance process. The
submittal must include a complete set of pre-draft permit terms and
conditions, an identification of which terms contain alternative
requirements and the supporting documentation for the equivalency
demonstration. These documents all become part of the administrative
record for our approval of the alternative S/L/T requirements under
section 112(l)(5).
At step two, we make our equivalency determination, conditional
upon our ability to review specific proposed Title V permits at step
three to ensure that they incorporate the approved terms and conditions
exactly as approved in step two. Steps two and three together satisfy
the section 112(l) requirement that we review and affirmatively approve
alternative requirements.
At step three, the pre-draft permit terms and conditions approved
at step two are written into specific proposed and draft Title V
permits, which then go through the regular Title V permit issuance
process. Thus, there is an opportunity for EPA and public review of the
alternative requirements at step three. All information provided to us
during step two as part of your equivalency demonstration must also be
made available to the public during the Title V public review period.
How the permit terms and conditions are written at step three is
integral to our final determination that your requirements are
equivalent to the Federal standard and that the permit assures
compliance with all applicable requirements.
If the requirements we approve at step two are changed when written
into the final Title V permit at step three, the delegation cannot
occur and the Federal standard continues to apply. Thus, EPA approval
at step two in no way prevents later EPA action to ensure that permit
terms and conditions are no less stringent than Federal standards. Such
action could include EPA disapproval of specific Title V permits, the
granting of a citizen petition requesting EPA to object to a specific
Title V permit, permit reopenings after permit issuance, or corrective
action at the time of permit renewal.
In summary, your EBP program is approved at step one; the Title V
permit terms and conditions that will replace the Federal standard are
approved at step two (contingent upon them being written into Title V
permits in step three exactly as they were approved at step two); and
the actual delegation to you to implement alternative requirements
contained in a Title V permit occurs when the enforceable mechanism,
the Title V permit, is issued after the EPA and public comment periods.
2. Challenges to an EBP Delegation
As discussed above, under the EBP approach, the actual delegation
occurs at step three with the issuance of the Title V permit. Thus,
each Title V permit represents an opportunity for the public to
challenge the alternative S/L/T requirements for not being as stringent
as the Federal standard. This is why all supporting documentation that
you submit at step two in support of the equivalency demonstration must
also be available to the public during step three, as part of the
record for the permit proceedings. In addition to each permit
representing an opportunity to challenge EPA's delegation of authority
to you to implement a particular section 112 standard through
alternative Title V permit terms and conditions, the public may also
petition the Administrator to object to each Title V permit on the
grounds that it does not assure compliance with the applicable
requirements of the Act, in this case the relevant Federal section 112
standard.
Moreover, if the terms and conditions change between the draft and
final permit stages, the public and EPA can challenge the permit after
permit issuance. The EPA could reopen the permit for failure to assure
compliance with all applicable requirements (i.e., the relevant section
112 standard). The public could challenge the permit on the same basis;
the public would have the right to do so even if the issue was not
raised during the comment period because the grounds for the objection
would have arisen after the public comment period. See Act section
505(b)(2); 40 CFR 70.4(b)(3)(xii).
Due to the permit-by-permit nature of delegations under the EBP
option and the corresponding opportunity for challenge to the
alternative S/L/T requirements with each permit, permitting authorities
should weigh carefully the advantages and disadvantages of the EBP
approach for particular source categories. The EBP approach may not
provide the same certainty about the programmatic sufficiency of
alternative S/L/T requirements as compared to approving delegations
based on S/L/T rules. Delegations based on S/L/T rules achieve
delegation for all sources within a source category in a single action;
thus, there is a single opportunity for challenge and judicial review
of the rules in State court, and of EPA's delegation action in Federal
court.
Finally, the iterative nature of the approach may place greater
resource demands on permitting authorities. For these reasons,
permitting authorities might consider it more manageable to restrict
the EBP approach to source categories with fewer sources, or to issue
all Title V permits to sources within the same source category at the
same time.
3. Revisions to Alternative S/L/T Requirements in Title V Permits
Under the EBP approach, the delegation to you of the authority to
implement Title V terms and conditions in place of the Federal standard
occurs during a process in which there is an opportunity for full
public review and challenge, and an opportunity for EPA review and
objection. The EPA and
[[Page 55818]]
public review process is essential because the EBP essentially allows a
case-by-case determination of requirements that will substitute for the
Federal section 112 standard. Both EPA and public review opportunities
must also be available before any change to the Title V permit terms
and conditions that are substituting for the Federal standard, since
such changes would operate as a substitute for the Federal standard for
a particular source. Thus, any revision to the Title V permit terms and
conditions that substitute for the Federal standard must be processed
as a significant modification under Title V. This is consistent with
the current regulations governing revisions to Title V permits, which
require that any change to a case-by-case determination of a standard
be processed as a major modification with full EPA and public review.
See 40 CFR 70.7(e)(2)(i)(A)(3).
4. Permit Streamlining
The proposal compared the EBP process to Title V permit
streamlining under EPA's White Paper 2. (For guidance on permit
streamlining, see our March 5, 1996 policy guidance document entitled
``White Paper Number 2 for Improved Implementation of The Part 70
Operating Permits Program,'' commonly called White Paper 2, which can
be found on our website at http://www.epa.gov/ttn/oarpg/t5wp.html.)
Through Title V permit streamlining, a source may choose to consolidate
multiple applicable requirements into a single set of applicable
requirements that assure compliance with each of the ``subsumed''
requirements to the same extent as would be achieved by having the
source comply with each requirement independently. See 64 FR 1880,
1904-1905 (January 12, 1999). However, requirements that are subsumed
under the streamlined requirements contained in the permit remain
applicable. Thus, a source subject to enforcement action for violation
of a streamlined applicable requirement could potentially also be
subject to enforcement action for violation of one or more subsumed
applicable requirements.
Streamlining is different from the EBP process for replacing the
Federal section 112 standard with Title V permit terms and conditions
pursuant to a section 112(l) delegation. Under the EBP approach, once
the final Title V permit is issued and you receive delegation to
implement those permit terms and conditions in place of the Federal
standard, the Federal standard no longer applies.
The proposal noted that nothing prevents the approved alternative
Title V permit terms and conditions from then being streamlined with
other applicable requirements under the process and criteria provided
in White Paper 2. However, because, under the EBP approach, the only
location of the approved S/L/T alternative requirements is the Title V
permit, the terms and conditions implementing those requirements must
remain tangibly written into the permit.
5. Public Comments on EBP
Issues raised by commenters include expanding the list of
approvable mechanisms, removing the limit on the number of permits that
can be submitted under this option, accepting delegation for all
sources in a source category, and identifying source categories as part
of the Sec. 63.91 approval process. These issues are discussed in more
detail below.
a. List of approvable mechanisms. Commenters raised the issue of
allowing the use of S/L/T permits and Title V general permits as part
of the EBP option. We agree that Title V general permits should be
allowed, as they carry with them the actual terms and conditions that
would be imposed on sources through Title V implementation. However, we
cannot allow the use of S/L/T permits under this option because we
lack the clear understanding we have under Title V of how the S/L/T
program will be implemented, and this understanding is a crucial
element of the expedited review process under EBP. Therefore, we have
limited the use of S/L/T permits to cases where they are based on: (1)
An up-front program approval under the SPA option, or (2) under the
rule substitution option, where there is an opportunity for you to make
a more detailed showing and for EPA and the public to adequately
review. The EBP option is limited to the use of Title V permits and
Title V general permits.
Commenters also asked if we could expand the list of approvable
mechanisms to include permit templates. Their reason for this request
is that in some States, the State agency might submit a permit template
for an equivalency demonstration, but a local agency would actually be
the one to implement the template. They proposed a two-track process
for addressing alternative requirements: permit templates (outside the
part 70 process), and part 70 permits (Title V permits or Title V
general permits).
We cannot approve the use of permit templates under the EBP option
because permit templates often do not contain specific requirements
needed to determine equivalency and because permit templates are not
enforceable until written into actual permits. In addition, the limited
time for review under EBP would not be adequate for this more complex
situation.
b. Up-front approval requirements. Some commenters suggested
removing the up-front approval requirements in Sec. 63.94 on the
grounds that these requirements are unnecessary and impractical. (These
requirements include identification of specific sources, as well as the
list of current and future Federal standards, for which you are
requesting approval of alternatives under EBP.) The commenters reasoned
that you are often unable to forecast future standards and possible
specific sources for which you would seek delegation of your standards
through the EBP option. They also worried that we were asking for a
duplicate demonstration to the Title V demonstrations you have already
made.
To clarify, if you have an approved part 70 program, then your
submittal need provide only a listing of the sources and source
categories that you are covering and your commitment to accept section
112(l) delegation. If source categories are added at a later time, then
the submittal can be updated with a repeat of step one. The public must
have the opportunity to comment on all source categories that you would
propose to handle through an alternative process.
c. Five-source limit. Commenters objected to the proposed limit on
the number of sources per source category for which you could request
alternative requirements through the EBP option. They said the five-
source limit was arbitrary, inappropriate, and severely limited the
usefulness of the option.
We proposed the limit because we were concerned about the potential
burden on the EPA Regional offices asked to review multiple permits
under EBP. The EBP process was designed to streamline the review and
approval process, and it could be overwhelmed by too many submittals or
by submittals on complex MACT standards. Although we believe it is
important to limit both the number of sources and the complexity of
MACT standards allowed under this option to avoid overburdening the
Regional offices, we appreciate the concern that limiting the number of
sources may, somewhat arbitrarily, constrain the reasonable use of this
option. Upon reflection, we believe the number of sources could be
determined through agreement between you and your Regional office, such
as through a Memorandum of Agreement
[[Page 55819]]
(MOA). We have changed the rule language to provide this flexibility.
d. Accepting delegation of all sources in the source category.
Commenters said we should remove the requirement that you take
delegation for all sources in a source category (including area
sources, for example) when you implement EBP alternative requirements
through the part 70 permitting process, because it could conflict with
partial delegation under Sec. 63.91. They argued that
Sec. 63.94(b)(1)(ii) would prevent those permitting authorities with
limited resources from using the EBP option.
Commenters also argued that requiring you to take delegation for
all sources in a source category could lead to unequal treatment among
sources in larger source categories managed through other options. In
addition, it would constitute a disincentive to use this option for
non-Title V sources, since the more burdensome alternative delegation
approaches must be followed. Commenters argued that this would delay
the ability to resolve at least some issues through Title V, and could
create unequal requirements between equivalent sources depending on
whether the source is found at a facility that does or does not yet
have a Title V permit.
The focus of delegation under section 112(l) has always been source
category-wide rather than source-specific. Therefore, we will continue
to require that even though you might use EBP for just a subset of
sources in a source category, you must take delegation for all sources
under that source category. The EBP option was not intended for larger
source categories such as dry cleaners and chrome plating where there
is a greater potential for inequity. Our decision to allow flexibility
in setting a limit on the number of sources covered under this option,
and to provide that the limit be set case-by-case through S/L/T and EPA
Regional Office negotiation, will also help to resolve the question of
inequity.
We agree that requiring you to accept delegation for all sources in
a source category (including non-Title V sources) represents a
disincentive for using the EBP approach for complex source categories
and source categories with many sources. However, implementing
requirements for non-Title V sources would be more appropriately
addressed under the SPA option discussed in section G.
E. Section 63.95. Additional Approval Criteria for Accidental Release
Prevention Programs
We received no comments during the public comment period on the
section 112(r), Part 68 provisions contained in Secs. 63.90 and 63.95
of the proposed rule. However, further experience with the risk
management program and S/L/T's efforts to adopt an approvable program
have led us to refine some of the Sec. 63.90 and Sec. 63.95 provisions
to ensure a workable S/L/T-Federal partnership in delegating and
implementing section 112(r) provisions.
Specifically, in Sec. 63.90(d)(1)(iii) of the proposed subpart E
rule, we proposed to retain the authority to add or delete requirements
from Part 68, subpart G. Our thinking was that S/L/Ts should not have
the authority to require additional and/or different reporting elements
including chemicals, data, sources, etc. than what we are requiring in
Part 68, subpart G.
In addition, the proposed language in Sec. 63.95(b)(1) did not
require S/L/Ts to include in their programs that covered facilities
prepare and submit a Risk Management Plan (RMP). In fact, we indicated
in the preamble to the proposed rule that EPA would not approve
alternative S/L/T RMP requirements. We intended the Federal RMP
requirement in Part 68, subpart G to remain in effect even in S/L/Ts
with approved programs, so that there would be national consistency in
RMP reporting. As explained in the preamble to the proposed rule, we
have developed an electronic system for submitting and disseminating
RMPs that will reduce paperwork burdens for facilities subject to Part
68 provisions as well as for the S/L/Ts and Federal agencies involved
in the RMP program. However, for such an electronic system to work,
RMPs must be submitted in a uniform format.
We now realize there are two logistical problems with the
proposal's approach to the RMP requirements in Part 68, subpart G.
First, many of the Federal RMP provisions in subpart G reference other
Part 68 requirements to define what must be reported in an RMP. Except
where a S/L/T adopts a risk management program by incorporating all of
Part 68 by reference, retaining the Federal RMP requirement in a S/L/T
with an approved program could create a discrepancy between the S/L/T's
regulations and the Federal Part 68 reporting requirements. From a
regulated facility's standpoint, it would be asked to prepare an RMP by
reference to regulations that, in an approved
S/L/T, no longer apply to it. Second, lack of a S/L/T RMP requirement
could create enforcement problems. For example, S/L/T agencies would
not have an RMP submission requirement to enforce, leaving enforcement
of that requirement to us.
To address these problems, we believe that S/L/Ts must include an
RMP requirement in the programs submitted for our approval. Further,
for each of the section 112(r)-listed chemicals that an S/L/T is
regulating, the S/L/T must require reporting of at least the same
information in the same format as required under Part 68, subpart G.
National consistency in RMP reporting of section 112(r)-listed
chemicals is needed to preserve the viability and utility of EPA's
electronic system for submitting and managing RMPs. In addition, the
stringency of the Federal risk management program is, at least in part,
a function of what must be reported in RMPs. For S/L/Ts to show that
their programs are at least as stringent as the Federal program with
respect to the section 112(r) chemicals they are regulating, their RMP
requirement must collect at least the same information the Federal
program collects. To avoid any potential discrepancies, the S/L/T would
write its RMP provision to correspond with its own associated
regulations.
We also recognize that S/L/Ts may want to establish more extensive
RMP reporting requirements than the Federal program's. The S/L/Ts will
decide if they want to include this additional information in their
delegation package to EPA. Any additional information approved as part
of the delegation package will be Federally enforceable. The S/L/Ts may
seek additional information in RMPs without threatening the integrity
of our electronic reporting system. We may or may not be able to
include additional data elements in our reporting system; if we are not
able to do so, the S/L/T can provide for separate reporting of the
relevant information. Those S/L/Ts interested in having their
additional reporting requirements included in the system should contact
Karen Schneider of EPA's Chemical Emergency Preparedness and Prevention
Office at (202) 260-2711. In any event, additional reporting
requirements may be submitted to us and made Federally enforceable as
part of an approved
S/L/T program.
Moreover, we recognize that S/L/Ts may want to regulate more or
fewer chemicals than the Federal program regulates. In some cases, S/L/
Ts have sought or will seek approval through the section 112(l) process
of a full or partial program covering more or fewer chemicals,
respectively. We want to encourage S/L/Ts to seek delegation of the
Part 68 RMP. As we proposed, we will approve S/L/T programs that cover
fewer chemicals than the Federal program covers, so long as the S/L/T
[[Page 55820]]
accepts delegation of the entire section 112(r) program for that
defined universe. The revised subpart E regulations issued today
require that
S/L/T programs include provisions corresponding to subparts A through G
and Sec. 68.200 of Part 68 for the federally-listed chemicals it
regulates. With respect to RMPs, S/L/T programs must require, for
Federally-listed chemicals, reporting of at least the same information
in the same format as required under subpart G. Those S/L/Ts opting to
cover additional chemicals or sources or to require additional
reporting may submit such programs to us for approval. Our approval of
a
S/L/T program with such additional requirements will make those
requirements Federally enforceable.
F. Section 63.96--Review and Withdrawal of Approval
The review and withdrawal-of-approval process in Sec. 63.96 is
intended to be used when we determine that you (the S/L/T) are not
adhering to the conditions under which your rule(s), program, or
requirements were approved. Although we are not changing the withdrawal
process in today's rulemaking, we continue to believe that withdrawal
of rule(s), program, or requirements may be considered in cases where
S/L/T are not adequately implementing or enforcing their alternative
rule(s), program, and/or requirements.
G. Section 63.97--Approval of a S/L/T Program That Substitutes for
Section 112 Requirements
The SPA option is intended for
S/L/Ts with mature air toxics programs with many regulations affecting
source categories regulated by Federal section 112 standards. Under the
SPA process you can seek approval for your program to be implemented
and enforced in lieu of specified existing or future section 112 rules
or requirements.
This option can eliminate the redundant review of generic
requirements that apply to multiple source categories each time we
review your alternative requirements for a new source category. It
allows you to bundle regulations or requirements and submit them as a
group for more efficient processing, or submit requirements arising
from multiple S/L/T rules to substitute for requirements in a single
Federal section 112 regulation. This option also covers section 112
requirements that we may develop in the future under other sections
besides sections 112(d), 112(f), and 112(h), and it allows you to
develop protocols to establish alternative compliance and enforcement
strategies.
The SPA process consists of two steps. In the first step, you
submit to us, and we then approve, your up-front program. Up-front
approval involves assuring that you have adequate authorities and
resources to implement and enforce your proposed alternative
provisions, as well as informing us which source categories your
program covers. The up-front approval takes place via notice and
comment rulemaking in the Federal Register and may take a maximum of 90
or 180 days to complete, depending on the complexity of your submittal.
In the second step, you submit to us, and we approve, your specific
alternative requirements. These alternative requirements may be
submitted in the form of rules, permits, or requirements in other
enforceable mechanisms for major and/or area sources but, as in
Sec. 63.93, they must be enforceable as a matter of S/L/T law before
you can submit them for approval. Also, as in Sec. 63.93, in step two
of the SPA process, we approve your alternative requirements through
notice and comment rulemaking in the Federal Register. This process, as
proposed, will be completed within 180 days. See Appendix 1 for a flow
chart describing the Sec. 63.97 (SPA) delegation process.
In the January, 1999 proposed rule we further described the timing
of the internal steps within the 90-day to 180-day maximum time allowed
for each approval step. In the final rule, we have deleted those
intervals (except for the minimum length of the public comment periods)
in order to provide you with greater discretion in the process. (We
have made similar changes in Secs. 63.91, 63.93, and 63.94.)
Issues raised by commenters included the overall administrative
burden of the SPA process, expansion of the list of approval
mechanisms, the focus on source categories, the scope of section 112
rules that could be included, and the requirement to identify source
categories in advance. These issues are discussed in more detail below.
1. Overall Burden
Commenters believed that the SPA process, as proposed, with two
separate steps of EPA (and public) review and approval, contained too
much administrative process and review time. They also suggested that
even though we had eliminated the need for equivalency with the form of
the standard, a source-category by source-category equivalency process
is still too cumbersome and complex, and does not really provide a way
for demonstrating that risk-based State programs, for example, are
equivalent.
Because of these comments, we are considering making some broad
changes to the SPA process. There are significant technical, legal, and
policy issues which would need to be addressed in order to accommodate
providing this additional flexibility. For example, in making technical
assessments of whether a S/L risk-based program could or should
substitute for the Federal requirements, significant issues in
determining equivalency are anticipated. When EPA completes its review
of these issues, should the review establish that the additional
flexibility can be granted, then an additional notice and comment
rulemaking would be needed because such changes to the current subpart
E rule would not be a logical outgrowth of what we proposed to date.
Therefore, we must propose any such changes separately. We do not want
to delay the flexibility that we can now grant in the subpart E rule in
order to address these issues. Therefore, in today's final rule, we are
promulgating a SPA process similar to the process in the January 12,
1999 proposed rule, but with some additional flexibility and shortened
review time.
In addition, we envision addressing the S/L request for additional
flexibility in addressing HAP risks and for the ability to continue to
implement their existing air toxics programs in other section 112, non-
MACT programs. For example, the ``National Air Toxics Program: The
Integrated Urban Strategy; Notice'' (Federal Register, July 19, 1999,
pages 38727-38729) discusses the need for a S/L/T partnership in
addressing the risk from air toxics in urban areas. That notice
specifically discussed the extent of their existing programs and how
the ``mature'' programs may be given the authority to address the
section 112(k) (Urban Air Toxics Strategy) requirements. ``Those
wanting flexibility note that risk reductions tailored to the local
situation can be more effective than national solutions * * *'' We are
now working with a stakeholder group to further discuss concerns with
flexibility in our granting authority to S/L/T to address HAP risks in
``The Integrated Urban Strategy.'' In developing a final SPA process
under section 112(l)(and in developing other associated section 112
programs), we will evaluate existing S/L/T programs' HAP risk
reductions relative to HAP risk reductions for Federal section 112
programs.
2. Approval Mechanisms
The final rule contains an expanded list of S/L/T level regulatory
[[Page 55821]]
mechanisms that we consider to be approvable under the SPA option. For
example, you may submit a mix of requirements in the form of S/L/T
rules, S/L/T permits, permits issued pursuant to permit templates,
board and administrative orders, Federal NSR permits, Title V general
permits, or Title V permits. We feel comfortable allowing a broad list
of mechanisms under SPA because the second step of the SPA process
provides opportunity for EPA review of specific requirements such as
permit terms and conditions. This change reflects comments that State
agencies typically use a mixture of requirements in actual practice.
3. Source Category Focus
One commenter said that the SPA option should reflect a source-by-
source basis rather than a source category-wide focus, because this
would be more consistent with actual regulatory practices. However, we
believe that if source-by-source changes are truly desired, then these
requests should be made through EBP or through the part 63 General
Provisions. The intent of subpart E is to delegate source category-wide
rules, with appropriate exceptions (e.g., partial approval). Even in
the case of EBP, you must take delegation for the remaining sources in
the source category using one of the other delegation options in
subpart E. We need to make this exception because the EBP option is
designed for a limited number of sources, and there may be other
sources in the source category that are not covered by EBP.
4. Scope of Program Coverage
One commenter wanted us to allow the SPA option to be used for all
HAP standards. Currently, the SPA option limits the equivalency process
to (1) section 112(d), the MACT standards, (2) section 112(f), the
residual risk standards, and (3) section 112(h), which are work
practice standards. The commenter argued that expanding the SPA option
to include any Federal standards controlling HAP emissions, such as
section 112(k) (urban program), combination section 111 (new source
performance standards or NSPS), section 112 standards, section 129
(solid waste combustion standards), and section 183 (Federal volatile
organic compounds control measures), will meet the statutory
requirements set forth by section 112(l). We have revised the
applicable sections of subpart E to clarify that the delegation options
are available for all section 112 authorities, which is consistent with
section 112(l). At present, we have only issued standards under section
112(d) and 112(h) authorities, but as the section 112(k) and section
112(f) programs are developed, subpart E will be available for you to
request equivalency of alternative rules. Section 112(l) does not
provide the authority to address the other programs suggested by the
commenter. In any case, sections 129 and 111 already have their own,
separate delegation processes.
5. Identifying Source Categories in Advance
One commenter said we should not require S/L/T agencies to identify
in advance the source categories and/or section 112 requirements for
which they intend to substitute alternative requirements unless they
can do so on a general basis. They feel that requiring specific
identification of source categories is unnecessary so long as the
public has a chance to comment on the specific alternatives developed
under the approved program. We believe identification of source
categories, to the extent possible, is important information. We do not
require that the agency know the identity of all possible future source
categories. The S/L/T agency can add source categories at a later time
as the need arises, or alternatively, simply list up-front all source
categories that might be included. Our key concern is that the public
receive adequate notice of the addition of source categories to be
considered under this option. We believe that the second Federal
Register notice on the alternative requirements could also amend the
up-front approval. Within this notice, the Region would inform the
public that the S/L/T agency is adding one or more source categories.
IV. How Will EPA Determine Equivalency for S/L/T Alternative NESHAP
Requirements?
A. Work Practice Standards and Requirements
One issue that arose during the California Air Toxics Program
Integration Initiative is the delegation of authority to approve site-
specific alternatives to the MACT-specific work practice requirements.
In this discussion, we use the term ``work practices'' to refer to
requirements in MACT standards that are developed in lieu of, or to
augment, emission standards. A subset of work practices known as ``work
practice standards'' are those work practices developed under section
112(h) of the Act. Section 112(h) requires us to develop design,
equipment, work practice, or operational standards if it is not
feasible to prescribe a HAP emission standard. This section also says
that ``if after notice and opportunity for comment, the owner or
operator of any source establishes to the satisfaction of the
Administrator that an alternative means of emission limitation at least
equivalent'' to the section 112(h) standard, then the Administrator can
approve the alternative for use by the source. Based on this authority,
we cannot delegate the authority to change actual standards developed
under section 112(h). However, as a general principle, we believe we
can delegate the authority to change some of the associated compliance
and enforcement measures (e.g., inspections, monitoring, reporting, and
recordkeeping) associated with these standards.
In the California Air Toxics Program Integration Initiative we also
determined that some work practices can be both (1) delegated to the S/
L/Ts to make decisions on a site-specific basis, and (2) identified as
needing less scrutiny during the equivalency demonstration development
and review. Our goal was to define work practices in a way that was
consistent for both purposes. We view these work practice authorities
as somewhat similar to the 40 CFR Subpart A General Provisions'
authorities, such as startup, shutdown, and malfunction plans. (Section
63.91(g) of this rule sets out which General Provisions authorities can
be delegated to the S/L/Ts, and which we retain). We have tried to
incorporate these ideas into the section 112(l) rulemaking as well.
When, in the absence of delegation, a source requests approval of
an alternative to MACT requirements that are labeled as work practice
standards under section 112(h), we must propose for public comment, and
then promulgate, an approval or disapproval of that alternative on a
source-specific basis. This can be a time-consuming process and we do
not believe it is justified unless the scope of the change affects the
section 112(h) standard or is otherwise nationally significant.
Instead, we believe there are work practice compliance measures,
such as operator training plans, for which it is more reasonable for
the S/L/T to evaluate potential alternative requirements. For example,
some MACT standards require sources to develop operator training plans
with specific elements to the plan. If a source wanted to use a
different approach to operator training, such as a video course, we
believe the S/L/T should be able to judge the adequacy of the
alternative to achieve the underlying standard, which is to train
operators to work in such a way as to minimize emissions.
[[Page 55822]]
Under the California Initiative, we have decided to divide work
practices into those for which the authority to approve alternatives is
delegable (because they are not actually 112(h) emission related
standards), and those for which the authority to approve alternatives
is not delegable. We cannot delegate standards developed under section
112(h), but we can delegate the authority to approve alternatives to
their associated compliance and enforcement requirements. Upon review
of existing section 112(d) rules, we found that some requirements have
been identified as work practices, or mentioned as being developed
under section 112(h), when they are really monitoring requirements or
other compliance and enforcement requirements. We intend to clarify
that these monitoring requirements are delegable under certain
conditions as mentioned in Section II.
We have decided to provide guidance to explain these distinctions
between the standards and their compliance and enforcement measures
because many of the existing MACT standards were written using
different formats and organization structures. This can make it
difficult for the uninitiated to determine under which classification
individual requirements fall. Currently, we can advise you that plans
and training generally are delegable, but other practices that have a
more direct impact on emissions are not delegable. We plan to correct
those rule structure problems in future rulemaking. For the existing
rules, we will focus on providing many examples of work practices for
which the authority to approve alternatives is either delegable and
non-delegable. Then, if any questions arise regarding work practices,
we will work directly with permitting authorities to determine in which
category the work practice in question falls. We will provide these
examples and a more detailed explanation in forthcoming guidance on
work practices. This guidance will also be useful to the Regional
Offices in evaluating section 112(l) equivalency submittals that
involve work practices.
B. Changes To Monitoring Frequency and Recordkeeping and Reporting
Through discussions with stakeholders, we have recognized that the
proposed rule was not clear enough regarding the status of delegation
of the Administrator's authority to approve changes in monitoring
frequency. In particular, there has been confusion regarding whether
changes to monitoring frequency are associated with the 40 CFR Part 63
General Provisions authority either: (1) To approve changes that the
Administrator may make to monitoring under Sec. 63.8(f) or (2) to waive
or make changes that the Administrator may make to recordkeeping and
reporting under Sec. 63.10(f).
Section 63.10(b) states that recordkeeping involves maintaining
``files of all information required * * * recorded in a form suitable
and readily available for expeditious inspection and review,'' (which
is not the kind of requirement that we expect should be modified by us
or you), but does not discuss the frequency of recording monitoring
measurements. Because the concepts of recordkeeping and reporting are
separate from the concept of monitoring frequency, it is appropriate to
allow delegation of authority to approve certain changes to
recordkeeping and reporting under Sec. 63.10(f). (However, we note that
recordkeeping and reporting requirements under Title V of the Act must
still apply to all major sources--i.e., that the records must be kept
for 5 years and reports must be submitted at least twice per year.) If
a MACT standard requires more frequent reporting than twice per year
for major sources, this may be modified to no less than twice per year,
on a site-specific basis, when justified, as discussed below.
The issue of monitoring frequency is appropriately addressed under
Sec. 63.8(f). In other stationary source rules and guidance (including
those for 40 CFR Part 64, the Compliance Assurance Monitoring Rule), we
clearly state that we consider monitoring frequency one of the four
critical elements of monitoring. (These elements are indicator(s) of
performance, measurement technique, monitoring frequency, and averaging
time.) Because of the potential ambiguity of this issue in our
proposal, we are making revisions to the final rule to clarify this.
Also, we will be proposing to add a definition of monitoring to 40 CFR
63.2 (the 40 CFR Part 63 General Provisions) to include the four
critical elements of monitoring. Our other revisions are discussed
below.
The stakeholder discussions have also revealed the need for us to
provide additional specificity on the types of changes to monitoring
frequency that would be considered major, intermediate, and minor for
the purposes of delegation of approval/disapproval authority to S/L/Ts
(see Sec. 63.91). We are providing this specificity by revising the
definitions for major, intermediate, and minor changes to monitoring in
Sec. 63.90(a) to include specific examples of monitoring frequency
changes. Major changes involving a continuous emission monitoring
system (CEMS), continuous opacity monitoring system (COMS), predictive
emission monitoring system (PEMS), or continuous parameter monitoring
system (CPMS) as well as monitoring frequency changes involving leak
detection and repair protocols (LDAR) will not be delegated to S/L/Ts.
The categorization as major changes for changes in monitoring frequency
for these monitoring approaches does not distinguish between those with
an enforceable emission or operating limit and those with only a
corrective action and reporting obligation.
The S/L/Ts at the discretion of the EPA Regional Office, may be
delegated the authority to approve minor and/or intermediate changes to
monitoring. Changes to monitoring frequency that fall into the category
of intermediate changes to monitoring are those that are associated
with non-continuous monitoring such as periodic parameter recordings,
visual inspections of design features or work practices, and periodic
portable analyzer emission checks. An increase in frequency for any
type of data collection will be considered a minor change to
monitoring. Indeed, you need not have received delegation of this
authority to require an increase in frequency of monitoring,
recordkeeping, or reporting, since that increase in requirements
continues to satisfy the frequency required by the MACT standard. Such
a more frequent requirement does not become Federally enforceable,
without delegation, unless it is incorporated into a Federally
enforceable instrument like a Title V permit or Federally enforceable
state operating permit.
Consistent with all alternative test method and monitoring decision
making, approvals of changes to monitoring frequency must meet the
criteria in our existing guidance, the February 26, 1993, memorandum
from Gilbert H. Wood to the EPA's Emission Measurement Branch entitled
``Handling Requests for Minor/Major Modifications/Alternative Testing
and Monitoring Methods or Procedures Approvals and Disapprovals.''
Specifically, the delegated authority or EPA must make a determination
that ``the change in the testing or monitoring method or procedure will
provide a determination of compliance status at the same or higher
stringency as the method or procedure specified in the applicable
regulation.''
Regarding changes in monitoring frequency, we believe a special
case that merits discussion here is the request for a decrease in
monitoring frequency
[[Page 55823]]
supported with a significant amount of data demonstrating ongoing
compliance with the applicable requirement. This type of data support
along with the consideration of other factors may be adequate to
justify the decrease in frequency. The amount of data we would consider
adequate for this type of justification is 2 to 3 years worth with few
or no exceedances of any associated applicable requirement or
associated performance indicator, as well as steady-state operations.
Other factors to be considered are (1) the compliance margin at which
the source is operating and (2) the likelihood of continued steady-
state operation of the control or process being monitored. A reasonable
margin of compliance would be monitored results considerably below the
applicable requirement or some such similar record relative to another
type of performance indicator. The likelihood and degree of control
failure versus the time period over which failure may occur should also
be considered in relation to the monitoring frequency.
Once the delegated authority has determined that a decrease in
frequency is reasonable, then the delegated authority must decide the
magnitude of the decrease. Examples of acceptable step decreases might
be from once per hour to once per shift, from once per shift to daily,
from daily to weekly, or from weekly to monthly.
We believe that sources with significant data demonstrating
operation well within the monitoring limit may merit a decrease in
monitoring frequency; conversely, we believe that sources with
significant or repeated operation exceeding the monitoring limit should
be required to monitor more frequently. We expect S/L/Ts that have been
delegated the authority to approve minor and intermediate changes to
monitoring to require more frequent monitoring under these
circumstances. Accordingly, the Regions will establish a requirement in
their memoranda of agreement that delegated S/L/Ts periodically submit
documentation of the cases where they have required more frequent
monitoring.
As noted previously, commenters had requested that we consider
delegating S/L/Ts the authority to approve certain changes to
recordkeeping and reporting. We have determined that this is
appropriate and have added definitions of major and minor changes to
Sec. 63.90(a). Recordkeeping and reporting changes are delegable so
long as they are minor, as defined. We do not intend to delegate that
all recordkeeping or reporting be waived, except in the circumstance
where a compliance extension for the installation of controls has been
granted. We do not allow alternative recordkeeping or reporting to
essentially waive these requirements by so severely altering the
contents of reports or records that their usefulness has been
compromised.
We are willing to delegate the authority to approve small changes
to recordkeeping and reporting where good cause if shown. By ``good
cause'' we mean instances such as a facility shutdown, when there are
no emissions, so it would make no sense to maintain the records of
monitoring data, when all values would be zero, or some other
meaningless value. We do not expect many changes to recordkeeping or
reporting as we do not foresee many instances in which changes to the
frequency of monitoring would necessitate a change to recordkeeping or
reporting. Merely because a less frequent monitoring schedule has been
approved, as cited in the example above, will not always, or even
frequently, necessitate a change in recordkeeping or reporting. We
consider any change to the record retention period, or the duty to
maintain records on site and readily available, a major change which is
not delegable.
Consistent with our previous guidance in the July 10, 1998, memo
from John S. Seitz on ``Delegation of 40 CFR Part 63 General Provisions
Authorities to State and Local Air Pollution Control Agencies,''
delegated authorities must forward copies of any approved intermediate
changes to both monitoring and test methods to the Emission Measurement
Center of the Emissions Monitoring and Analysis Division via mail or
facsimile at the address below:
Chief, Source Measurement and Technology Group, U.S. EPA (MD-19),
Research Triangle Park, NC 27711, Facsimile Telephone Number: (919)
541-1039
Similarly, you must maintain a record of any alternatives to
recordkeeping and reporting that you have approved and must report
semi-annually, or more frequently, as may be agreed upon by the Region
and you, to your Regional office providing a copy of this record or
other similar summary. A copy must also be forwarded to:
Chief, Stationary Source Enforcement Branch, U.S. EPA (Mail Code
2242A), Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington,
DC 20460, Facsimile Number: (202)564-0068
We reserve the right to review or disapprove the MRR alternatives
you submit. If the Region disapproves your approved alternative, it is
not retroactive for enforcement. That is, the source is not in jeopardy
or in violation for the period of time that they acted in accordance
with what you approved. Rather the source must, after notice of EPA's
disapproval, revert to whatever MRR requirement they had before you
approved the alternative. (That could be the original MACT requirement,
your Subpart E alternative rule or permit or other mechanism, or, if
there was one, a non-disapproved alternative that you approved
previously.)
As an example of the last suggestion, if you had previously
approved a less frequent monitoring requirement, such that the source
must monitor every two hours instead of every one hour, and EPA had
approved or had not disapproved of that alternative, then the source
could legally monitor every two hours. If you subsequently approved
less frequent monitoring to every eight hours, but EPA disapproved that
alternative, the source must, after it receives notice of EPA's
disapproval, revert to monitoring no less frequently than every 2
hours. Your sources should not feel that they risk enforcement
penalties unless EPA approves the alternative. Rather they should act
in keeping with your approved alternative safe in the knowledge that
until such time as the alternative MRR is disapproved, it is completely
legal to follow your approved alternative.
We wish to retain this flexible mechanism for disapproving
potential S/L/T MRR alternatives. This will ensure adequate compliance
measures without the need to withdraw your entire program on the basis
of one minor MRR disagreement. This is in keeping with the flexible
withdrawal options discussed in section III.F.
We will use this information on approved changes to monitoring,
test methods, and recordkeeping and reporting to compile databases of
decisions that will be accessible for reference in making future
decisions. The EPA Regional offices will ensure that: (1) Initial
approvals made by an S/L/T of intermediate changes to monitoring,
testing, recordkeeping, and reporting are evaluated, and (2) S/L/T-
issued intermediate changes to test methods and monitoring, all EPA
Regional office-issued intermediate changes to test methods, and all
alternatives to recordkeeping and reporting are forwarded to the
addresses above. We will continue to post EPA Regional office approvals
of changes in monitoring, recordkeeping, and reporting on the
Applicability Determination Index (ADI), which can
[[Page 55824]]
be found at http://es.epa.gov/oeca/eptdd/adi.html. For electronic file
transfer procedures for ADI updates, please contact Belinda Breidenbach
in the Office of Compliance at 202-564-7022.
The EPA Regional Offices will provide firm guidelines for decision
making in the process of delegating Part 63 General Provisions
authorities to the S/L/T. More specifically, delegation documents can
draw on the language of this preamble; the July 10, 1998, memo from
John S. Seitz, the February 26, 1993, memorandum from Gilbert H. Wood,
and other guidance materials to provide S/L/T with guidance to ensure
consistency in approvals.
C. Equivalency for S/L/T Requirements Established Under New Source
Review/Prevention of Significant Deterioration (NSR/PSD)
Several commenters pointed out that we should be able to accept
SIP-approved rules and associated compliance and enforcement measures
without the need for demonstrating equivalency with the compliance and
enforcement measures in the MACT standard. We cannot legally allow a
blanket acceptance of SIP-approved rules and/or other S/L/T rules
without adequate process under subpart E to ensure equivalence with the
MACT standard. Furthermore, it is our experience that SIP-approved
rules are not always equivalent to MACT standards. In some cases, SIP-
approved rules exempt some compounds, such as methylene chloride, that
are regulated by MACT standards. Nevertheless, we are committed to
making every effort to expedite the review process when standards set
under NSR are submitted. For example, we have shortened review time
frames, expanded the list of approvable mechanisms, and provided
additional flexibility in the subpart E equivalency process. We have
also expanded the list of approvable mechanisms under the Sec. 63.92
rule adjustment process to include Federal NSR permits, because we
agree with the commenters that they can be clearly more stringent than
MACT. In these cases, rule adjustment offers the most appropriate and
timely option. In some cases, however, the NSR finding may not clearly
be more stringent. For example, if the NSR finding adopts some novel
technology with significantly different MRR needed to ensure
compliance, the rule adjustment mechanism may be insufficient to ensure
the needed equivalency. In this case, the S/L/T should consider either
rule substitution or permit streamlining. Again, we will commit to
making every effort to expedite the review process.
D. Title V Permit Renewal Issues
Commenters suggested specific changes to part 70 to ensure the
expeditious implementation of alternative requirements under subpart E
or subpart A (General Provisions). These suggested changes include:
For sources with an approved part 70 permit addressing the
Federal standard, alternative requirements approved using the permit or
permit template mechanism should be incorporated into the part 70
permit as an administrative amendment, and alternative requirements
approved using the rule equivalency mechanism should be incorporated
into the part 70 permit as a minor amendment.
For sources without an approved part 70 permit, approved
alternative requirements should be incorporated into the permit in the
same way as any other Federal NESHAP requirement; however, we should
ensure that the review and approval of the alternative requirement is
limited to whether the permit condition accurately reflects the
alternative requirement approved under subpart E.
We interpret the comments to recommend certain changes to include
in the part 70 revisions that we are developing, rather than how we
should interpret the current part 70 rule. Generally, we expect to take
the approach in the part 70 revisions that the part 70 permit process
need not require our review and public review if a prior process has
already provided it. Accordingly, if alternative part 63 requirements
have been reviewed and approved by us by the start of the permit
revision process, then the part 70 revisions would likely incorporate
the alternative requirements into the permit through one of the permit
revision processes without our review and public review, i.e., the
administrative, notice-only, or de minimis revision tracks. Conversely,
if the alternative part 63 requirements have not been reviewed and
approved prior to the permit process, and significant judgment would be
involved in determining if the alternative requirements are consistent
with promulgated part 63 requirements, then the part 70 revisions may
require one of the permit revision tracks that have EPA and public
review, that is, either the significant or minor revision tracks. In
developing the final part 70 revisions, we plan to address the
incorporation of alternative part 63 requirements into the permit,
consistent with the approach described above.
V. What Are the Requirements To Review this Action in Court?
Under Section 307(b)(1) of the Act, judicial review of this final
rule is available only by the filing of a petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit by November
13, 2000. Any such judicial review is limited to only those objections
which are raised with reasonable specificity in timely comments. Under
Section 307(b)(2) of the Act, the requirements that are the subject of
this final rule may not be challenged later in civil or criminal
proceedings brought by EPA to enforce these requirements.
VI. Administrative Requirements
A. Docket
The docket for this regulatory action is A-97-29, the same docket
as the proposed rule, and a copy of today's final rule will be included
in the docket. The principal purposes of the docket are: (1) To allow
interested parties a means to identify and locate documents so that
they can effectively participate in the rulemaking process; and (2) to
serve as the record in case of judicial review (except for interagency
review materials) (Section 307(d)(7)(A) of the Act). The docket is
available for public inspection at the EPA's Air and Radiation Docket
and Information Center, the location of which is given in the ADDRESSES
section of this rule.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB), and the requirements of the Executive Order. The Executive Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
[[Page 55825]]
Although this final rule will not have an annual effect on the
economy of $100 million or more, and therefore is not considered
economically significant, we have determined that this rule is a
``significant regulatory action'' because it contains novel policy
issues. This action was submitted to OMB for review as required by
Executive Order 12866. All written comments from OMB to the EPA and any
written EPA response to any of those comments are included in the
docket listed at the beginning of this notice under ADDRESSES. In
addition, consistent with Executive Order 12866, the EPA consulted
extensively with S/L/Ts, the parties that will be most directly
affected by this rule. Moreover, the Agency has also sought involvement
from industry and public interest groups as described herein.
C. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local officials early in
the process of developing the proposed regulation.
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, because it amends a voluntary
program. Thus, the requirements of section 6 of the Executive Order do
not apply to this rule. Nevertheless, in developing this rule, EPA
consulted with States to enable them to provide meaningful and timely
input in the development of this rule. Discussion of the concerns
raised by States and EPA's responses to those concerns is provided
throughout this preamble.
D. Consultation and Coordination With Indian Tribal Governments Under
Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Because this rule implements
a voluntary program, it imposes no direct compliance costs on these
communities. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
E. Paperwork Reduction Act
The OMB has approved the information collection requirements
contained in this rule under the provisions of the Paperwork Reduction
Act of 1980, 44 U.S.C. 3501 et seq., and has assigned OMB control
number 2060-0264. We have subsequently prepared a request (ICR 1643.04,
which contains the basis for the burden estimates below) to extend the
collection for an additional 3 years. You may get a copy of the
Information Collection Request (ICR) from Sandy Farmer by mail at OPPE
Regulatory Information Division, U.S. Environmental Protection Agency
(2822A), Ariel Rios Building, 1200 Pennsylvania Avenue, Northwest,
Washington, DC 20460, by email at [email protected], or by calling
(202)260-2740.
This information is needed and used by us to determine if the S/L/T
government submitting an application has met the criteria established
in the 40 CFR Part 63, subpart E amended rule. This information is
necessary for the Administrator to determine the acceptability of
approving the affected entity's rules or programs in lieu of the
Federal rules or programs. The collection of information is authorized
under 42 U.S.C. 7401-7671q.
The total 3-year burden of the collection is estimated at 390,600
hours. The estimated average annual burden is 130,200 hours, 1,025
hours per respondent, and 29 hours per response. We have estimated that
127 State/local agencies will request delegation of 35 MACT standards
each using the various delegation options. In addition, the 127
agencies will use the accidental release prevention program on a one-
time only basis during the first two years of the collection. The cost
burden of this response is limited to the labor costs of agency
personnel to comply with the notification, reporting, and record
keeping elements of this rule. These costs are estimated at $16.0
million for the 3-year collection period and $5.3 million on average
for each year of the collection period. There are no capital, startup,
or operation costs associated with this rule.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. This includes the time needed
to review instructions, process and maintain information, and disclose
and provide information; to adjust the existing ways to comply with any
previously applicable instructions and requirements; to train personnel
to respond to a collection of information; to search existing data
sources; to complete and review the collection of information; and to
transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a current
OMB control number. The OMB control numbers for EPA's regulations are
listed in 40 CFR part 9 and 48 CFR chapter 15.
We are amending the table in 40 CFR part 9 of currently approved
ICR control numbers issued by OMB for various regulations to revise the
list of information requirements contained in
[[Page 55826]]
this final rule. This amendment updates the table to list the
information requirements being promulgated today.
We will continue to present OMB control numbers in a consolidated
table format to be codified in 40 CFR part 9 of the Agency's
regulations, and in each CFR volume containing EPA regulations. The
table lists the section numbers with reporting and recordkeeping
requirements, and the current OMB control numbers. This listing of the
OMB control numbers and their subsequent codification in the CFR
satisfy the requirements of the Paperwork Reduction Act (44 U.S.C.
3501, et seq.) and OMB's implementing regulations at 5 CFR part 1320.
F. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
The EPA believes that there will be little or no impact on small
entities as a result of the promulgation of these rule revisions. State
and local governments are the only entities affected by this action and
EPA expects that most or all of the governments which would have the
authority to accept delegation under section 112(l) of the Act are
those whose populations exceed 50,000 persons and are thus, not
considered ``small.'' Furthermore, this final rule revision adds
additional flexibility to the existing rule for State and local
governments and therefore does not impose new burdens. Accordingly,
because few or none of the affected entities are expected to be small
entities and because the regulatory impacts will be insignificant, I
hereby certify that this rule will not have a significant economic
impact on a substantial number of small entities.
G. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on S/L/T governments and the
private sector. Under section 202 of the UMRA, we generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``Federal mandates'' that may result in
expenditures to S/L/T governments, in the aggregate, or to the private
sector of $100 million or more in any 1 year. Before promulgating an
EPA rule for which a written statement is needed, section 205 of the
UMRA generally requires us to identify and consider a reasonable number
of regulatory alternatives and adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives
of the rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows us to
adopt an alternative other than the least costly, most cost-effective,
or least burdensome alternative if the Administrator publishes with the
final rule an explanation why that alternative was not adopted. Before
we establish any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, we
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for S/L/T governments or the
private sector. Because the rule is estimated to result in the
expenditure by S/L/T governments of significantly less than $100
million in any 1 year, we have not prepared a budgetary impact
statement or specifically addressed the selection of the least costly,
most effective, or least burdensome alternative. Because small
governments will not be significantly or uniquely affected by this
rule, we are not required to develop a plan with regard to small
governments. Moreover, this action amends a rule that is voluntary for
S/L/T governments, so it does not impose any mandates on those
entities. Therefore, the requirements of the Unfunded Mandates Reform
Act do not apply to this section. Nonetheless, the EPA has encouraged
significant involvement by State and local governments as detailed
throughout this preamble.
H. Protection of Children From Environmental Health Risks and Safety
Risks Under Executive Order 13045
Executive Order 13045 applies to any rule that EPA determines (1)
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonable alternatives considered by the Agency.
This rule is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997), because it is not an economically
significant regulatory action as defined by Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs the Agency to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards
(VCS).
This rule does not involve technical standards. Therefore, we are
not considering the use of any VCS.
The section 112(l) rule is merely a procedural screen through which
substantive air toxics standards are delegated and is not susceptible
to the use of VCS. If any of the Federal air toxics standards delegated
through section 112(l) have VCS, then the section 112(l) rule will
assure that the comparable S/L/T standard has equivalent requirements.
The section 112(l) rule itself, however, is not a vehicle for the
application of VCS.
J. Submission to Congress and the Comptroller General
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
[[Page 55827]]
copy of the rule, to each House of the Congress and to the Comptroller
General of the United States. 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
action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
VII. Statutory Authority.
The statutory authority for this action is provided by sections
101, 112, 114, 116, and 301 of the Act as amended (42 U.S.C. 7401,
7412, 7414, 7416, and 7601). This rulemaking is also subject to section
307(d) of the Act (42 U.S.C. 7407(d)).
List of Subjects
40 CFR Part 9
Environmental protection, reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practices and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: August 30, 2000.
Carol M. Browner,
Administrator.
Appendix 1 to Preamble
BILLING CODE 6560-50-U
[[Page 55828]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.000
[[Page 55829]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.001
[[Page 55830]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.002
[[Page 55831]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.003
[[Page 55832]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.004
[[Page 55833]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.005
[[Page 55834]]
[GRAPHIC] [TIFF OMITTED] TR14SE00.006
BILLING CODE 6560-50-C
[[Page 55835]]
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 9--[AMENDED]
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. Section 9.1 is amended by removing entry ``63.91-63.96'' and
adding ``63.91-63.97'' under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
40 CFR citation OMB Control No.
National Emission Standards for Hazardous Air Pollutants for Source
Categories
* * * * *
63.91-63.97 2060-0264
* * * * *
PART 63--[AMENDED]
1. The \3\ authority citation for part 63 continues to read as
follows:
---------------------------------------------------------------------------
\3\ The ICRs referenced in this section of the table encompass
the applicable general provisions contained in 40 CFR part 63,
subpart A, which are not independent information collection
requirements.
Authority: 42 U.S.C. 7401, et seq.
Subpart E--[Amended]
2. Part 63 is amended by revising Secs. 63.90-63.97 of subpart E to
read as follows:
Sec. 63.90 Program overview.
The regulations in this subpart establish procedures consistent
with section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401-7671q).
This subpart establishes procedures for the approval of State rules,
programs, or other requirements such as permit terms and conditions to
be implemented and enforced in place of certain otherwise applicable
section 112 Federal rules, emission standards, or requirements
(including section 112 rules promulgated under the authority of the Act
prior to the 1990 Amendments to the Act). The authority to implement
and enforce section 112 Federal rules as promulgated without changes
may be delegated under procedures established in this subpart. In this
process, States may seek approval of a State mechanism for receiving
delegation of existing and future unchanged Federal section 112
standards. This subpart clarifies which part 63, subpart A General
Provisions authorities can be delegated to States. This subpart also
establishes procedures for the review and withdrawal of section 112
implementation and enforcement authorities delegated through this
subpart. This subpart also establishes procedures for the approval of
State rules or programs to establish limitations on the potential to
emit pollutants listed in or pursuant to section 112(b) of the Act.
(a) Definitions. The following definitions apply to this subpart.
Alternative requirements means the requirements, rules, permits,
provisions, methods, or other enforceable mechanisms that a State
submits for approval under this subpart or subpart A and, after
approval, replaces the otherwise applicable Federal section 112
requirements, provisions, or methods.
Applicability criteria means the regulatory criteria used to define
all affected sources subject to a specific section 112 rule.
Approval means a determination by the Administrator that a State
rule, program, or requirement meets the criteria of Sec. 63.91 and the
additional criteria of either Sec. 63.92, Sec. 63.93, Sec. 63.94, or
Sec. 63.97 as appropriate. For accidental release prevention programs,
the criteria of Sec. 63.95 must be met in addition to the criteria of
Sec. 63.91. This is considered a ``full approval'' for the purposes of
this subpart. Partial approvals may also be granted as described in
this subpart. Any approved requirements become applicable requirements
under Sec. 70.2 of this chapter.
Compliance and enforcement measures means requirements relating to
compliance and enforcement, including but not necessarily limited to
monitoring methods and procedures, recordkeeping, reporting, plans,
inspection, maintenance, and operation requirements, pollution
prevention requirements, noticing, field inspections, entry, sampling,
or accidental release prevention oversight.
Intermediate change to monitoring means a modification to federally
required monitoring involving ``proven technology'' (generally accepted
by the scientific community as equivalent or better) that is applied on
a site-specific basis and that may have the potential to decrease the
stringency of the associated emission limitation or standard. Though
site-specific, an intermediate change may set a national precedent for
a source category and may ultimately result in a revision to the
federally required monitoring. Examples of intermediate changes to
monitoring include, but are not limited to:
(1) Use of a continuous emission monitoring system (CEMS) in lieu
of a parameter monitoring approach;
(2) Decreased frequency for non-continuous parameter monitoring or
physical inspections;
(3) Changes to quality control requirements for parameter
monitoring; and
(4) Use of an electronic data reduction system in lieu of manual
data reduction.
Intermediate change to test method means a within-method
modification to a federally enforceable test method involving ``proven
technology'' (generally accepted by the scientific community as
equivalent or better) that is applied on a site-specific basis and that
may have the potential to decrease the stringency of the associated
emission limitation or standard. Though site-specific, an intermediate
change may set a national precedent for a source category and may
ultimately result in a revision to the federally enforceable test
method. In order to be approved, an intermediate change must be
validated according to EPA Method 301 (Part 63, Appendix A) to
demonstrate that it provides equal or improved accuracy and precision.
Examples of intermediate changes to a test method include, but are not
limited to:
(1) Modifications to a test method's sampling procedure including
substitution of sampling equipment that has been demonstrated for a
particular sample matrix, and use of a different impinger absorbing
solution;
(2) Changes in sample recovery procedures and analytical
techniques, such as changes to sample holding times and use of a
different analytical finish with proven capability for the analyte of
interest; and
(3) ``Combining'' a federally required method with another proven
method for application to processes emitting multiple pollutants.
Level of control means the degree to which a rule, program, or
requirement limits emissions or employs design, equipment, work
practice, or operational standards, accident prevention, or other
requirements or techniques (including a prohibition of emissions) for:
[[Page 55836]]
(1)(i) Each hazardous air pollutant, if individual pollutants are
subject to emission limitations, and
(ii) The aggregate total of hazardous air pollutants, if the
aggregate grouping is subject to emission limitations, provided that
the rule, program, or requirement would not lead to an increase in risk
to human health or the environment; and
(2) Each substance regulated under part 68 of this chapter.
(3) Test methods and associated procedures and averaging times are
integral to the level of control.
Local agency means a local air pollution control agency or, for the
purposes of Sec. 63.95, any local agency or entity having
responsibility for preventing accidental releases which may occur at a
source regulated under part 68 of this chapter.
Major change to monitoring means a modification to federally
required monitoring that uses ``unproven technology or procedures''
(not generally accepted by the scientific community) or is an entirely
new method (sometimes necessary when the required monitoring is
unsuitable). A major change to monitoring may be site-specific or may
apply to one or more source categories and will almost always set a
national precedent. Examples of major changes to monitoring include,
but are not limited to:
(1) Use of a new monitoring approach developed to apply to a
control technology not contemplated in the applicable regulation;
(2) Use of a predictive emission monitoring system (PEMS) in place
of a required continuous emission monitoring system (CEMS);
(3) Use of alternative calibration procedures that do not involve
calibration gases or test cells;
(4) Use of an analytical technology that differs from that
specified by a performance specification;
(5) Decreased monitoring frequency for a continuous emission
monitoring system, continuous opacity monitoring system, predictive
emission monitoring system, or continuous parameter monitoring system;
(6) Decreased monitoring frequency for a leak detection and repair
program; and
(7) Use of alternative averaging times for reporting purposes.
Major change to recordkeeping/reporting means:
(1) A modification to federally required recordkeeping or reporting
that:
(i) May decrease the stringency of the required compliance and
enforcement measures for the relevant standards;
(ii) May have national significance (e.g., might affect
implementation of the applicable regulation for other affected sources,
might set a national precedent); or
(iii) Is not site-specific.
(2) Examples of major changes to recordkeeping and reporting
include, but are not limited to:
(i) Decreases in the record retention for all records;
(ii) Waiver of all or most recordkeeping or reporting requirements;
(iii) Major changes to the contents of reports; or
(iv) Decreases in the reliability of recordkeeping or reporting
(e.g., manual recording of monitoring data instead of required
automated or electronic recording, or paper reports where electronic
reporting may have been required).
Major change to test method means a modification to a federally
enforceable test method that uses ``unproven technology or procedures''
(not generally accepted by the scientific community) or is an entirely
new method (sometimes necessary when the required test method is
unsuitable). A major change to a test method may be site-specific, or
may apply to one or more sources or source categories, and will almost
always set a national precedent. In order to be approved, a major
change must be validated according to EPA Method 301 (Part 63, Appendix
A). Examples of major changes to a test method include, but are not
limited to:
(1) Use of an unproven analytical finish;
(2) Use of a method developed to fill a test method gap;
(3) Use of a new test method developed to apply to a control
technology not contemplated in the applicable regulation; and
(4) Combining two or more sampling/analytical methods (at least one
unproven) into one for application to processes emitting multiple
pollutants.
Minor change to monitoring means:
(1) A modification to federally required monitoring that:
(i) Does not decrease the stringency of the compliance and
enforcement measures for the relevant standard;
(ii) Has no national significance (e.g., does not affect
implementation of the applicable regulation for other affected sources,
does not set a national precedent, and individually does not result in
a revision to the monitoring requirements); and
(iii) Is site-specific, made to reflect or accommodate the
operational characteristics, physical constraints, or safety concerns
of an affected source.
(2) Examples of minor changes to monitoring include, but are not
limited to:
(i) Modifications to a sampling procedure, such as use of an
improved sample conditioning system to reduce maintenance requirements;
(ii) Increased monitoring frequency; and
(iii) Modification of the environmental shelter to moderate
temperature fluctuation and thus protect the analytical
instrumentation.
Minor change to recordkeeping/reporting means:
(1) A modification to federally required recordkeeping or reporting
that:
(i) Does not decrease the stringency of the compliance and
enforcement measures for the relevant standards;
(ii) Has no national significance (e.g., does not affect
implementation of the applicable regulation for other affected sources,
does not set a national precedent, and individually does not result in
a revision to the recordkeeping or reporting requirement); and
(iii) Is site-specific.
(2) Examples of minor changes to recordkeeping or reporting
include, but are not limited to:
(i) Changes to recordkeeping necessitated by alternatives to
monitoring;
(ii) Increased frequency of recordkeeping or reporting, or
increased record retention periods;
(iii) Increased reliability in the form of recording monitoring
data, e.g., electronic or automatic recording as opposed to manual
recording of monitoring data;
(iv) Changes related to compliance extensions granted pursuant to
Sec. 63.6(i);
(v) Changes to recordkeeping for good cause shown for a fixed short
duration, e.g., facility shutdown;
(vi) Changes to recordkeeping or reporting that is clearly
redundant with equivalent recordkeeping/reporting requirements; and
(vii) Decreases in the frequency of reporting for area sources to
no less than once a year for good cause shown, or for major sources to
no less than twice a year as required by title V, for good cause shown.
Minor change to test method means:
(1) A modification to a federally enforceable test method that:
(i) Does not decrease the stringency of the emission limitation or
standard;
(ii) Has no national significance (e.g., does not affect
implementation of the
[[Page 55837]]
applicable regulation for other affected sources, does not set a
national precedent, and individually does not result in a revision to
the test method); and
(iii) Is site-specific, made to reflect or accommodate the
operational characteristics, physical constraints, or safety concerns
of an affected source.
(2) Examples of minor changes to a test method include, but are not
limited to:
(i) Field adjustments in a test method's sampling procedure, such
as a modified sampling traverse or location to avoid interference from
an obstruction in the stack, increasing the sampling time or volume,
use of additional impingers for a high moisture situation, accepting
particulate emission results for a test run that was conducted with a
lower than specified temperature, substitution of a material in the
sampling train that has been demonstrated to be more inert for the
sample matrix; and
(ii) Changes in recovery and analytical techniques such as a change
in quality control/quality assurance requirements needed to adjust for
analysis of a certain sample matrix.
Partial approval means that the Administrator approves under this
subpart:
(1) A State's legal authorities that fully meet the criteria of
Sec. 63.91(d)(3)(ii)-(v), and substantially meet the criteria of
Sec. 63.91(d)(3)(i) as appropriate; or
(2) A State rule or program that meets the criteria of Secs. 63.92,
63.93, 63.94, 63.95, or 63.97 with the exception of a separable portion
of that State rule or program which fails to meet those criteria. A
separable portion of a State rule or program is defined as a section(s)
of a rule or a portion(s) of a program which can be acted upon
independently without affecting the overall integrity of the rule or
program as a whole.
Program means, for the purposes of an approval under this subpart,
a collection of State authorities, resources, and other requirements
that satisfy the criteria of this subpart and subpart A.
State agency, for the purposes of this subpart, includes State and
local air pollution agencies, Indian tribes as defined in Sec. 71.2 of
this chapter, and territories of the United States to the extent they
are or will be delegated Federal section 112 rules, emission standards,
or requirements.
Stringent or stringency means the degree of rigor, strictness or
severity a statute, rule, emission standard, or requirement imposes on
an affected source as measured by the quantity of emissions, or as
measured by parameters relating to rule applicability and level of
control, or as otherwise determined by the Administrator.
Title V operating permit programs means the part 70 permitting
program and the delegated Indian tribal programs under part 70 of this
chapter.
(b) Local agency coordination with State and territorial agencies.
Local agencies submitting a rule or program for approval under this
subpart shall consult with the relevant State or Territorial agency
prior to making a request for approval to the Administrator. A State or
Territorial agency may submit requests for approval on behalf of a
local agency after consulting with that local agency.
(c) Tribal authority.
A tribal authority may submit a rule or program under this subpart,
provided that the tribal authority has received approval, under the
provisions of part 49 of this chapter, for administering Federal rules
under section 112 of the Act.
(d) Authorities retained by the Administrator.
(1) The following authorities will be retained by the Administrator
and will not be delegated:
(i) The authority to add or delete pollutants from the list of
hazardous air pollutants established under section 112(b);
(ii) [Reserved]
(iii) [Reserved]
(iv) The authority to add source categories to or delete source
categories from the Federal source category list established under
section 112(c)(1) or to subcategorize categories on the Federal source
category list after proposal of a relevant emission standard;
(v) The authority to revise the source category schedule
established under section 112(e) by moving a source category to a later
date for promulgation; and
(vi) Any other authorities determined to be nondelegable by the
Administrator.
(2) Nothing in this subpart shall prohibit the Administrator from
enforcing any applicable rule, emission standard or requirement
established under section 112.
(3) Nothing in this subpart shall affect the authorities and
obligations of the Administrator or the State under title V of the Act
or under regulations promulgated pursuant to that title.
(e) Federally-enforceable requirements. All rules, programs, State
or local permits, or other requirements approved under this subpart and
all resulting part 70 operating permit conditions are enforceable by
the Administrator and by citizens under the Act.
(f) Standards not subject to modification or substitution. With
respect to radionuclide emissions from licensees of the Nuclear
Regulatory Commission or licensees of Nuclear Regulatory Commission
Agreement States which are subject to part 61, subparts I, T, or W of
this chapter, a State may request that the EPA approve delegation of
implementation and enforcement of the Federal standard pursuant to
Sec. 63.91, but no changes or modifications in the form or content of
the standard will be approved pursuant to Sec. 63.92, Sec. 63.93,
Sec. 63.94, or Sec. 63.97.
(g) Selection of delegation options.
(1) With the exception of paragraphs (g)(2) and (g)(3) of this
section, States may only submit requests for approval of alternative
requirements for a section 112 Federal rule, emission standard, or
other requirement under a single delegation option under this subpart.
(2) In the case of Sec. 63.94 submittals, if the identified sources
in any source category comprise a subset of the sources in that
category, the State must accept delegation under one other section of
this subpart for the remainder of the sources in that category that are
required to be permitted by the State under part 70 of this chapter.
(3) If the Administrator partially approves the State request per
Sec. 63.91(f), the State may submit a request for the remaining section
112 rules, emission standards, or requirements in that category under
another section of this subpart.
Sec. 63.91 Criteria for straight delegation and criteria common to all
approval options.
(a) Applicable approval criteria. A State must satisfy the criteria
in paragraph (d) of this section for up-front approval to obtain
delegation of the Federal section 112 rules, emission standards, or
requirements. Once a State has demonstrated it meets the criteria in
paragraph (d) of this section, it only needs to reference that
demonstration and reaffirm that it still meets the criteria in future
submittals. In addition, a State must satisfy the applicable approval
criteria in Secs. 63.92, 63.93, 63.94, 63.95, or 63.97, as specified in
the following paragraphs.
(1) Unchanged Federal section 112 rules (``straight delegation'').
To obtain approval of State programs to implement and enforce Federal
section 112 rules as promulgated without changes (except for accidental
release programs, described in paragraph (a)(4) of this section), only
the criteria of paragraph (d) of this section must be met. This
includes State requests for
[[Page 55838]]
one-time approval of their mechanism for taking delegation of future
unchanged Federal section 112 rules, emission standards, and
requirements as well as approval to implement and enforce unchanged
Federal section 112 rules, emission standards, and requirements on a
rule-by-rule basis.
(2) State rules, programs, or requirements that are different from
the Federal rule. To obtain approval under this subpart of a rule,
program, or requirement that is different from the Federal section 112
rule, emission standard, or requirement, the criteria of paragraph (d)
of this section and the criteria of either Sec. 63.92, Sec. 63.93,
Sec. 63.94, or Sec. 63.97 must be met.
(3) Separable portions of State rules, programs, or requirements
(``partial approval''). To obtain partial approval under this subpart,
a State request must meet the criteria in paragraphs (d) and (f) of
this section.
(4) Programs under part 68 of this chapter, prevention of
accidental releases. For approval of State rules or programs to
implement and enforce the Federal accidental release prevention program
in part 68 of this chapter, as promulgated without changes, the
provisions of paragraph (d) of this section, and Sec. 63.95 must be
met. For approval of alternative requirements, the provisions of either
Sec. 63.92 or Sec. 63.93 must also be met.
(5) Limits on the potential to emit section 112 pollutants. The
Administrator may, under the authority of section 112(l) and this
subpart, also approve a State program designed to establish limits on
the potential to emit hazardous air pollutants listed pursuant to
section 112 of the Act.
(b) Approval process. When a State submits an initial request for
approval, and except as otherwise specified under Sec. 63.92,
Sec. 63.93, Sec. 63.94, Sec. 63.95, or Sec. 63.97, for a State's
subsequent requests for approval, the approval process will be as shown
in the following table:
------------------------------------------------------------------------
If . . . Then . . . And then . . .
------------------------------------------------------------------------
(1) A request for approval the Administrator if a request is
is received. will review the incomplete, the
request for Administrator will
approval and notify the State of
determine whether the specific
the request is deficient elements
complete according of the request.
to the criteria in
this subpart.
(2) A complete request for the Administrator the Administrator
approval is received. will seek public will require that
comment for a comments be
minimum of 30 days submitted
through a Federal concurrently to the
Register notice on State.
the State's request
for approval.
(3) A complete request for the Administrator
approval is received and will either
there has been a period of approve, partially
public comment. approve, or
disapprove the
State rule,
program, or
requirement within
180 days of receipt
of a complete
request.
(4) The Administrator finds the Administrator the Administrator
that all of the criteria of will approve or will publish it in
this section are met and partially approve the Federal
all of the criteria of Sec. the State rule, Register, and
63.92, Sec. 63.93, Sec. program, or incorporate it
63.94, Sec. 63.95, or Sec. requirement. directly or by
63.97 are met. reference, in the
appropriate subpart
of part 63.
Requirements
approved under Sec.
63.95 will be
incorporated
pursuant to
requirements under
part 68 of this
chapter.
(5) The Administrator finds the Administrator any resubmittal by a
that any of the criteria of will notify the State of a request
this section are not met, State of any for approval will
or any of the criteria of revisions or be considered a new
Sec. 63.92, Sec. 63.93, additions necessary request under this
Sec. 63.94, Sec. 63.95, to obtain approval. subpart.
or Sec. 63.97 under which
the request for approval
was made are not met.
(6) A State rule, program, unless the State can the Administrator
or requirement is revise the will publish the
disapproved. submittal to meet disapproval in the
the criteria, the Federal Register.
Administrator will
disapprove the
State rule,
program, or
requirement.
------------------------------------------------------------------------
(c) Enforcement.
(1) Approval of the alternative rule, program, or requirement
delegates to the State the authority to implement and enforce the
approved rule, program, or requirement in lieu of the otherwise
applicable Federal section 112 rule, emission standard, or requirement.
(i) The approved State rule, program, or requirement shall be
federally enforceable from the date the Administrator signs the
approval, with two exceptions. For States that implement unchanged
Federal requirements (Sec. 63.91, straight delegation) via their title
V permit program, and for States using the equivalency by permit option
(63.94), the approved requirements shall be federally enforceable on
the date of issuance or revision of the title V permit.
(ii) In the case of a partial approval under paragraph (f)(1) of
this section, only those authorities of the State request found to meet
the requirements of this section will be approved; the remaining
Federal authorities will be implemented and enforced by EPA.
(iii) For partial approvals under paragraph (f)(3) of this section,
only the portion of the State rule that is approved will be federally
enforceable; the remainder continues to be State enforceable only.
(2) When a State rule, program, or requirement is approved by the
Administrator under this subpart, applicable title V permits shall be
revised according to the provisions of Sec. 70.7(f) of this chapter.
(i) Each permit shall specify the origin of the alternative
conditions per Sec. 70.6 (a)(i) of this chapter and specifically
reference the Federal Register notice or other EPA approval mechanism
in the permit.
(ii) When approved alternative requirements are incorporated in a
permit, those requirements must be clearly identified and carried
forward in any subsequent permit revisions or renewals. If the permit
is not renewed, or if a revision or renewal does not carry the
alternate requirements forward, then the Federal section 112
requirements become the applicable requirements.
(3) If approval is withdrawn under Sec. 63.96, all otherwise
applicable Federal rules and requirements shall be enforceable in
accordance with the compliance schedule established in the
[[Page 55839]]
withdrawal notice and relevant title V permits shall be revised
according to the provisions of Sec. 70.7(f) of this chapter.
(d) Criteria for approval.
(1) Any request for approval under this subpart shall meet all
section 112(l) approval criteria specified by the otherwise applicable
Federal section 112 rule, emission standard, or requirement, all of the
approval criteria of this section, and any additional approval criteria
in Secs. 63.92, 63.93, 63.94, 63.95, or 63.97.
(2) Once a State has satisfied the Sec. 63.91(d) up-front approval
requirements, it only needs to reference the previous demonstration and
reaffirm that is still meets the criteria for any subsequent
equivalency submittals.
(3) Interim or final title V program approval will satisfy the
criteria set forth in Sec. 63.91(d), up-front approval criteria.
Alternatively, the State must provide the following items in paragraphs
(d)(3)(i) through (v) of this section to the Administrator:
(i) A written finding by the State Attorney General (or for a local
agency or tribal authority, the General Counsel with full authority to
represent the local agency or tribal authority) that the State has the
necessary legal authority to implement and to enforce the State rule,
program, or requirement upon approval and to assure compliance by all
sources within the State with each applicable section 112 rule,
emission standard, or requirement. For full approval, the State must
have the following legal authorities concerning enforcement and
compliance assurance:
(A) The State shall have enforcement authorities that meet the
requirements of Sec. 70.11 of this chapter, except that tribal
authorities shall have enforcement authorities that meet the
requirements of part 49 of this chapter, the Tribal Air Rule.
(B) The State shall have authority to request information from
regulated sources regarding their compliance status.
(C) The State shall have authority to inspect sources and any
records required to determine a source's compliance status.
(D) If a State delegates authorities to a local agency, the State
must retain enforcement authority unless the local agency has
authorities that meet the requirements of Sec. 70.11 of this chapter.
(ii) A copy of State statutes, regulations, and requirements that
contain the appropriate provisions granting authority to implement and
enforce the State rule, program, or requirement upon approval.
(iii) A demonstration that the State has adequate resources to
implement and enforce all aspects of the rule, program, or requirement
upon approval (except for authorities explicitly retained by the
Administrator, such as those pursuant to paragraph (f) of this section
or pursuant to part 49 of this chapter), which includes:
(A) A description in narrative form of the scope, structure,
coverage, and processes of the State program.
(B) A description of the organization and structure of the agency
or agencies that will have responsibility for administering the
program.
(C) A description of the agency's capacity to carry out the State
program, including the number, occupation, and general duties of the
employees.
(iv) A schedule demonstrating expeditious State implementation of
the rule, program, or requirement upon approval.
(v) A plan that assures expeditious compliance by all sources
subject to the State rule, program, or requirement upon approval. The
plan should include, at a minimum, a complete description of the
State's compliance tracking and enforcement program, including but not
limited to inspection strategies.
(4) If any of the State documents that are required to support an
approval under this subpart are readily available to the EPA and to the
public, the State may cite the relevant portions of the documents or
indicate where they are available (e.g., by providing an Internet
address) rather than provide copies.
(e) Revisions. Within 90 days of any State amendment, repeal, or
revision of any State rule, program, permit, or other requirement
approved as an alternative to a Federal requirement or part of the
authority necessary for the up-front approval, the State must provide
the Administrator with a copy of the revised authorities and meet the
requirements of either paragraph (e)(1) or (e)(2) of this section.
(1)(i) The State shall provide the Administrator with a written
finding by the State Attorney General (or for a local agency or tribal
authority, the General Counsel with full authority to represent the
local agency or tribal authority) that the State's revised legal
authorities are adequate to continue to implement and to enforce all
previously approved State rules and the approved State program (as
applicable) and adequate to continue to assure compliance by all
sources within the State with approved rules, the approved program, the
approved permit, or other requirements (as applicable) and each
applicable section 112 rule, emission standard, or requirement.
(ii) If the Administrator determines that the written finding is
not adequate, the State shall request approval of the revised rule,
program, permit, or other requirement according to the provisions of
paragraph (e)(2) of this section.
(2) The State shall request approval under this subpart for any
revised rule, program, permit, or other requirement.
(i) If the Administrator approves the revised rule, program,
permit, or other requirement, the revision will replace the previously
approved rule, program, permit, or other requirement.
(ii) If the Administrator disapproves the revised rule, program,
permit, or other requirement, the Administrator will initiate
procedures under Sec. 63.96 to withdraw approval of any previously
approved rule, program, permit, or other requirement that may be
affected by the revised authorities.
(iii) Until such time as the Administrator approves or withdraws
approval of a revised rule, program, permit, or other requirement, the
previously approved rule, program, permit, or requirement remains
federally enforceable and the revision is not federally enforceable.
(3) If the EPA amends, or otherwise revises a promulgated section
112 rule or requirement in a way that increases its stringency, the EPA
will notify any State which has received delegation under this subpart
of the need to revise their equivalency demonstration.
(i) The EPA Regional Office will consult with the affected State(s)
to set a time frame for the State(s) to submit a revised equivalency
demonstration.
(ii) The revised equivalency demonstration will be reviewed and
approved or disapproved according to the procedures set forth in this
section and Sec. 63.91, Sec. 63.92, Sec. 63.93, Sec. 63.94, Sec. 63.95,
or Sec. 63.97, whichever are applicable.
(f) Partial approval. The partial approval process under this
subpart is described in the following table:
[[Page 55840]]
------------------------------------------------------------------------
If . . . Then . . . And . . .
------------------------------------------------------------------------
(1) A State's legal the Administrator The EPA will
authorities submitted under may grant a partial continue to
this subpart substantially approval with the implement and
meet the requirements of State's consent. enforce those
paragraph (d)(3)(i) of this authorities under
section, but are not fully paragraph (d)(3)(i)
approvable. of this section
that are not
approved.
(2) Any of the other the Administrator
requirements in paragraphs will disapprove the
(d)(3)(ii)-(v) of this submittal.
section are not approvable.
(3) A rule, requirement, or the Administrator the Administrator
program submitted under may remove that may then grant a
this subpart meets the separable portion partial approval of
requirements of Sec. with the State's the portion of the
63.92, Sec. 63.93, Sec. consent. rule, requirement,
63.94, Sec. 63.95, or Sec. or program that
63.97 as appropriate, with meets the
the exception of a requirements of
separable portion of that this subpart.
rule, requirement, or
program.
(4) the Administrator the Administrator
determines that there are may disapprove the
too many areas of submittal in its
deficiency or that entirety.
separating the
responsibilities between
Federal and State
government would be too
cumbersome and complex.
------------------------------------------------------------------------
(g) Subpart A, Delegable authorities. A State may exercise certain
authorities granted to the Administrator under subpart A, but may not
exercise others, according to the following criteria:
(1) A State may ask the appropriate EPA Regional Office to delegate
any of the authorities listed as ``Category I'', in paragraph (g)(1)(i)
of this section. The EPA Regional Office will delegate any such
authorities at their discretion.
(i) ``Category I'' shall consist of the following authorities:
Category I Authorities
(A) Section 63.1, Applicability Determinations
(B) Section 63.6(e), Operation and Maintenance Requirements--
Responsibility for Determining Compliance
(C) Section 63.6(f), Compliance with Non-Opacity Standards--
Responsibility for Determining Compliance
(D) Section 63.6(h), Compliance with Opacity and Visible Emissions
Standards--Responsibility for Determining Compliance
(E) Sections 63.7(c)(2)(i) and (d), Approval of Site-Specific Test
Plans
(F) Section 63.7(e)(2)(i), Approval of Minor Alternatives to Test
Methods
(G) Section 63.7(e)(2)(ii) and (f), Approval of Intermediate
Alternatives to Test Methods
(H) Section 63.7(e)(iii), Approval of Shorter Sampling Times and
Volumes When Necessitated by Process Variables or Other Factors
(I) Sections 63.7(e)(2)(iv), (h)(2), and (h)(3), Waiver of Performance
Testing
(J) Sections 63.8(c)(1) and (e)(1), Approval of Site-Specific
Performance Evaluation (Monitoring) Test Plans
(K) Section 63.8(f), Approval of Minor Alternatives to Monitoring
(L) Section 63.8(f), Approval of Intermediate Alternatives to
Monitoring
(M) Section 63.9 and 63.10, Approval of Adjustments to Time Periods for
Submitting Reports
(N) Section 63.10(f), Approval of Minor Alternatives to Recordkeeping
and Reporting
(ii) The State must maintain a record of all approved alternatives
to all monitoring, testing, recordkeeping, and reporting requirements
and provide this list of alternatives to its EPA Regional Office at
least semi-annually, or on a more frequent basis if requested by the
Regional Office. The Regional Office may audit the State-approved
alternatives and disapprove any that it determines are inappropriate,
after discussion with the State. If changes are disapproved, the State
must notify the source that it must revert to the original applicable
monitoring, testing, recordkeeping, and/or reporting requirements
(either those requirements of the original section 112 requirement, the
alternative requirements approved under this subpart, or the previously
approved site-specific alternative requirements). Also, in cases where
the source does not maintain the conditions which prompted the approval
of the alternatives to the monitoring, testing, recordkeeping, and/or
reporting requirements, the State (or EPA Regional Office) must require
the source to revert to the original monitoring, testing,
recordkeeping, and reporting requirements, or more stringent
requirements, if justified.
(2)(i) A State may not ask the appropriate EPA Regional Office to
delegate any of the authorities listed as ``Category II'' in paragraph
(g)(2)(ii) of this section.
(ii) ``Category II'' shall consist of the following authorities:
Category II Authorities
(A) Section 63.6(g), Approval of Alternative Non-Opacity Emission
Standards
(B) Section 63.6(h)(9), Approval of Alternative Opacity Standards
(C) Sections 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to
Test Methods
(D) Section 63.8(f), Approval of Major Alternatives to Monitoring
(E) Section 63.10(f), Approval of Major Alternatives to Recordkeeping
and Reporting
Sec. 63.92 Approval of State requirements that adjust a section 112
rule.
Under this section a State may seek approval of State requirements
that make pre-approved adjustments to a Federal section 112 rule,
emission standard, or requirement that are unambiguously no less
stringent than the Federal rule, emission standard, or requirement.
(a) Approval process.
(1) If the Administrator finds that the criteria of this section
and the criteria of Sec. 63.91 are met, the Administrator will approve
the State requirements, publish them in the Federal Register, and
incorporate them, directly or by reference, in the appropriate subpart
of part 63, without additional notice and opportunity for comment.
Requirements approved under Sec. 63.95 will be incorporated pursuant to
requirements under part 68 of this chapter.
(2) If the Administrator finds that any one of the State
adjustments to the Federal rule is in any way ambiguous with respect to
the stringency of applicability, level of control, compliance and
enforcement measures, or the compliance date for any affected source or
emission point, the Administrator will either disapprove the
[[Page 55841]]
State request or consider the request under Sec. 63.93.
(3) Within 60 days of receiving a complete request for approval
under this section, the Administrator will either approve or disapprove
the State request. If approved, the change will be effective upon
signature of the Federal Register notice.
(4) Requirements submitted for approval under this section shall
include either title V permits, title V general permits, Federal new
source review permits, or State rules. Permits must already be issued
to be used under this section.
(5) If the State uses a permit as the basis of alternative
requirements under this section, the relevant permit terms and
conditions must remain applicable to the source, even if the source
takes steps that would otherwise release it from an obligation to have
a permit.
(b) Criteria for approval. Any request for approval under this
section shall meet all of the criteria of this section and Sec. 63.91
before approval. The State shall provide the Administrator with:
(1) A demonstration that the public within the State has had
adequate notice and opportunity to submit written comment on the State
requirements, and
(2) A demonstration that each State adjustment to the Federal rule
individually results in requirements that:
(i) Are unequivocally no less stringent than the otherwise
applicable Federal rule with respect to applicability;
(ii) Are unequivocally no less stringent than the otherwise
applicable Federal rule with respect to level of control for each
affected source and emission point;
(iii) Are unequivocally no less stringent than the otherwise
applicable Federal rule with respect to compliance and enforcement
measures for each affected source and emission point; and
(iv) Assure compliance by every affected source no later than would
be required by the otherwise applicable Federal rule.
(3) State adjustments to Federal section 112 rules which may be
part of an approved rule under this section are:
(i) Lowering a required emission rate or de minimis level;
(ii) Adding a design, work practice, operational standard, emission
rate or other such requirement;
(iii) Increasing a required control efficiency;
(iv) Increasing the frequency of required reporting, testing,
sampling or monitoring;
(v) Adding to the amount of information required for records or
reports;
(vi) Decreasing the amount of time to come into compliance;
(vii) Subjecting additional emission points or sources within a
source category to control requirements;
(viii) Any adjustments allowed in a specific section 112 rule;
(ix) Minor editorial, formatting, and other nonsubstantive changes;
or
(x) Identical alternative requirements previously approved by the
Administrator in another local agency within the same State, if
previously noticed that the alternative requirements would be
applicable in the jurisdiction seeking approval under this section.
Sec. 63.93 Approval of State requirements that substitute for a
section 112 rule.
Under this section a State may seek approval of State requirements
which differ from a Federal section 112 rule for which they would
substitute, such that the State requirements do not qualify for
approval under Sec. 63.92.
(a) Approval process.
(1) After receiving a complete request for approval under this
section and making a preliminary determination on its equivalence, the
Administrator will seek public comment on the State's request for a
minimum of 30 days through a Federal Register notice. The Administrator
will require that comments be submitted concurrently to the State.
(2) If, after review of public comments and any State responses to
comments submitted to the Administrator, the Administrator finds that
the criteria of this section and the criteria of Sec. 63.91 are met,
the Administrator will approve the State requirements under this
section, publish the approved requirements in the Federal Register, and
incorporate them directly or by reference, in the appropriate subpart
of part 63. Requirements approved under Sec. 63.95 will be incorporated
pursuant to requirements under part 68 of this chapter.
(3) If the Administrator finds that any of the requirements of this
section or Sec. 63.91 have not been met, the Administrator may
partially approve or disapprove the State requirements. For any partial
approvals or disapprovals, the Administrator will provide the State
with the basis for the partial approval or disapproval and what actions
that State can take to make the requirements approvable.
(4) Requirements submitted for approval under this section shall
include either: State rules, title V permits, title V general permits,
Federal new source review permits, board and administrative orders,
permits issued pursuant to permit templates, or State operating
permits. Permits must already be issued to be used under this section.
(5) If the State uses a permit as the basis of alternative
requirements under this section, the relevant permit terms and
conditions must remain applicable to the source even if it takes steps
that would otherwise release it from an obligation to have a permit.
(6) Within 180 days of receiving a complete request for approval
under this section, the Administrator will either approve, partially
approve, or disapprove the State request.
(b) Criteria for approval. Any request for approval under this
section shall meet all of the criteria of this section and Sec. 63.91
before approval. The State shall provide the Administrator with
detailed documentation that the State requirements contain or
demonstrate:
(1) Applicability criteria that are no less stringent than those in
the respective Federal rule;
(2) Levels of control (including associated performance test
methods) and compliance and enforcement measures that result in
emission reductions from each affected source or accidental release
prevention program requirements for each affected source that are no
less stringent than would result from the otherwise applicable Federal
rule;
(3) A compliance schedule that requires each affected source to be
in compliance within a time frame consistent with the deadlines
established in the otherwise applicable Federal rule; and
(4) At a minimum, the approved State requirements must include the
following compliance and enforcement measures. (For requirements
addressing the accidental release prevention program, minimum
compliance and enforcement provisions are described in Sec. 63.95.)
(i) The approved requirements must include monitoring or another
method for determining compliance.
(ii) If a standard in the approved rule is not instantaneous, a
maximum averaging time must be established.
(iii) The requirements must establish an obligation to periodically
monitor for compliance using the monitoring or another method
established in paragraph (b)(4)(i) of this section sufficient to yield
reliable data that are representative of the source's compliance
status.
Sec. 63.94 Approval of State permit terms and conditions that
substitute for a section 112 rule.
Under this section a State may seek approval of State permit terms
and
[[Page 55842]]
conditions to be implemented and enforced in lieu of specified existing
and future Federal section 112 rules, emission standards, or
requirements promulgated under section 112, for those affected sources
permitted by the State under part 70 of this chapter. The State may not
seek approval under this section for permit terms and conditions that
implement and enforce part 68 requirements.
(a) Up-front approval process.
(1) A State must submit a request that meets the requirements of
paragraph (b) of this section. After receiving a complete request for
approval of a State program under this section and making a preliminary
determination of equivalence, the Administrator will seek public
comment for 21 days through a Federal Register notice. The
Administrator will require that comments be submitted concurrently to
the State.
(2) If, after review of all public comments, and State responses to
comments submitted to the Administrator, the Administrator finds that
the criteria of paragraph (b) of this section and the criteria of
Sec. 63.91 are met, the Administrator will approve the State program.
The approved program will be published in the Federal Register and
incorporated directly or by reference in the appropriate subpart of
part 63.
(3) If the Administrator finds that any of the criteria of
paragraph (b) of this section or Sec. 63.91 have not been met, the
Administrator will partially approve or disapprove the State program.
For any partial approvals or disapprovals, the Administrator will
provide the State with the basis for the partial approval or
disapproval and what action the State can take to make the programs
approvable.
(4) Within 90 days of receiving a complete request for approval
under this section, the Administrator will either approve, partially
approve, or disapprove the State request.
(b) Criteria for up-front approval. Any request for program
approval under this section shall meet all of the criteria of this
paragraph and Sec. 63.91 before approval. The State shall provide the
Administrator with:
(1)(i) To the extent possible, an identification of all specific
sources in source categories listed pursuant to subsection 112(c) for
which the State is seeking authority to implement and enforce
alternative requirements under this section;
(ii) If the identified sources in any source category comprise a
subset of the sources in that category within the State's jurisdiction,
the State shall request delegation for the remainder of the sources in
that category that are required to be permitted by the State under part
70 of this chapter. The State shall request delegation for the
remainder of the sources in that category under another section of this
subpart.
(iii) Prior to submitting a request for one or more sources within
a source category, the State shall consult with their EPA Regional
Office regarding the number of sources in a category eligible for
submittal under this option. Based on the Regional Office's decision,
the State shall limit the number of sources for which it submits permit
requirements.
(2) To the extent possible, an identification of all existing and
future section 112 emission standards for which the State is seeking
authority under this section to implement and enforce alternative
requirements.
(3) If, after approval of the initial list of source categories
identified in paragraph (b)(2) of this section, the State adds source
categories for approval under this option, the State shall submit an
addendum to the up-front approval submission, and identify the addition
to the lists. The Administrator will follow the process outlined in
paragraph (a) of this section for up-front approval.
(4) A one-time demonstration that the State has an approved title V
operating permit program and that the program permits the affected
sources.
(c) Approval process for alternative requirements.
(1) After promulgation of a Federal section 112 rule, emission
standard, or requirement for which the State has up-front approval to
implement and enforce alternative requirements in the form of title V
permit terms and conditions, the State shall provide the Administrator
with pre-draft title V permit terms and conditions that are sufficient,
in the Administrator's judgement, to allow the Administrator to
determine equivalency. The permit terms and conditions shall reflect
all of the requirements of the otherwise applicable Federal section 112
rule, emission standard, or requirement.
(2) [Reserved]
(3) If, the Administrator receives a complete request and finds the
pre-draft title V permit terms and conditions submitted by the State
meet the criteria of paragraph (d), the Administrator will approve the
State's alternative requirements (by approving the pre-draft permit
terms and conditions) and notify the State in writing of the approval.
(4) The Administrator may approve the State's alternative
requirements on the condition that the State makes certain changes to
the pre-draft title V permit terms and conditions and includes the
changes in the complete pre-draft, proposed, and final title V permits
for the affected sources. If the Administrator approves the alternative
requirements on the condition that the State makes certain changes to
them, the State shall make those changes or the alternative
requirements will not be federally enforceable when they are included
in the final permit, even if the Administrator does not object to the
proposed permit. Until the Administrator affirmatively approves the
State's alternative requirements (by approving the pre-draft permit
terms and conditions) under this paragraph, and those requirements
(permit terms) are incorporated into the final title V permit for any
affected source, the otherwise applicable Federal emission standard(s)
remain the federally enforceable and applicable requirements for that
source.
(5) If, after evaluating the pre-draft title V permit terms and
conditions that were submitted by the State, the Administrator finds
that the criteria of paragraph (d) of this section have not been met,
the Administrator will disapprove the State's alternative requirements
and notify the State in writing of the disapproval. In the notice of
disapproval, the Administrator will specify the deficient or
nonapprovable elements of the State's alternative requirements.
(6) Within 90 days of receiving a complete request for approval
under this paragraph, the Administrator will either approve, partially
approve, or disapprove the State's alternative requirements.
(7) Nothing in this section precludes the State from submitting
alternative requirements in the form of title V permit terms and
conditions or title V general permit terms and conditions for approval
under this paragraph at the same time the State submits its program to
the Administrator for up-front approval under paragraph (a) of this
section, provided that the Federal emission standards for which the
State submits alternative requirements are promulgated at the time of
the State's submittal. If the Administrator finds that the criteria of
Sec. 63.91 and the criteria of paragraphs (b) and (d) of this section
are met, the Administrator will approve both the State program and the
permit terms and conditions within 90 days of receiving a complete
request for approval.
(d) Approval criteria for alternative requirements.
[[Page 55843]]
Any request for approval under this paragraph shall meet the
following criteria. Taken together, the criteria in this paragraph
describe the minimum contents of a State's equivalency demonstration
for a promulgated Federal section 112 rule, emission standard, or
requirement. To be approvable, the State submittal must contain
sufficient detail to allow the Administrator to make a determination of
equivalency between the State's alternative requirements and the
Federal requirements. Each submittal of alternative requirements in the
form of pre-draft permit terms and conditions for an affected source
shall:
(1) Identify the specific, practicably enforceable terms and
conditions with which the source would be required to comply upon
issuance, renewal, or revision of the title V permit. The State shall
submit permit terms and conditions that reflect all of the requirements
of the otherwise applicable Federal section 112 rule, emission
standard, or requirement. The State shall identify for the
Administrator the specific permit terms and conditions that contain
alternative requirements.
(2) Identify specifically how the alternative requirements in the
form of permit terms and conditions are the same as or differ from the
requirements in the otherwise applicable Federal section 112 rule,
emission standard, or requirement (including any applicable
requirements in subpart A or other subparts or appendices). The State
shall provide this identification in a side-by-side comparison of the
State's requirements in the form of permit terms and conditions and the
requirements of the Federal section 112 rule, emission standard, or
requirement.
(3) The State shall provide the Administrator with detailed
documentation that demonstrates that the alternative requirements meet
the criteria specified in Sec. 63.93(b), i.e., that the alternative
requirements are at least as stringent as the otherwise applicable
Federal requirements.
(e) Incorporation of permit terms and conditions into title V
permits.
(1) After approval of the State's alternative requirements under
this section, the State shall incorporate the approved permit terms and
conditions into title V permits for the affected sources. The State
shall issue or revise the title V permits according to the provisions
contained in Sec. 70.7 of this chapter. The alternative permit terms
and conditions may substitute for the Federal requirements once they
are contained in a valid title V permit. If the State does not write
the alternative conditions, exactly as approved, into the permit, EPA
may reopen the permit for cause per Sec. 70.7(g) of this chapter, and
the delegation may not occur.
(2) In the notice of pre-draft permit availability, and in each
pre-draft, proposed, and final permit, the State shall indicate
prominently that the permit contains alternative section 112
requirements. In the notice of pre-draft permit availability, the State
shall specifically solicit public comment on the alternative
requirements. In addition, the State shall attach all documents
supporting the approved equivalency determination for those alternative
requirements to each pre-draft, proposed, and final permit.
Sec. 63.95 Additional approval criteria for accidental release
prevention programs.
(a) A State submission for approval of a part 68 program must meet
the criteria and be in accordance with the procedures of this section,
Sec. 63.91, and, where appropriate, either Sec. 63.92 or Sec. 63.93.
(b) The State part 68 program application shall contain the
following elements consistent with the procedures in Sec. 63.91 and,
where appropriate, either Sec. 63.92 or Sec. 63.93 of this subpart, for
at least the chemicals listed in part 68 subpart F (``federally-listed
chemicals'') that an approvable State Accidental Release Prevention
program is regulating:
(1)(i) A demonstration of the State's authority and resources to
implement and enforce regulations that are no less stringent than the
regulations of part 68, subparts A through G and Sec. 68.200 of this
chapter; and
(ii) A requirement that any source subject to the State's part 68
program submit a Risk Management Plan (RMP) that reports at least the
same information in the same format as required under part 68, subpart
G of this chapter.
(2) A State's RMP program may require reporting of information not
required by the Federal program, and these requirements (like any other
additional State requirements) will become federally enforceable upon
approval. The extent to which EPA will be able to help a State collect
and report additional information through EPA's electronic RMP
submission system will be determined on a case-by-case basis.
(3) Procedures for reviewing risk management plans and providing
technical assistance to stationary sources, including small businesses.
(4) A demonstration of the State's authority to enforce all part 68
requirements must be made, including an auditing strategy that complies
with Sec. 68.220 of this chapter.
(c) A State may request approval for a program that covers all of
the federally-listed chemicals (a ``complete program'') or a program
covering less than all of the federally-listed chemicals (a ``partial
program'') as long as the State takes delegation of the full part 68
program for the federally-listed chemicals it regulates.
Sec. 63.96 Review and withdrawal of approval.
(a) Submission of information for review of approval. (1) The
Administrator may at any time request any of the following information
to review the adequacy of implementation and enforcement of an approved
rule or program and the State shall provide that information within 45
days of the Administrator's request:
(i) Copies of any State statutes, rules, regulations or other
requirements that have amended, repealed or revised the approved State
rule or program since approval or since the immediately previous EPA
review;
(ii) Information to demonstrate adequate State enforcement and
compliance monitoring activities with respect to all approved State
rules and with all section 112 rules, emission standards or
requirements;
(iii) Information to demonstrate adequate funding, staff, and other
resources to implement and enforce the State's approved rule or
program;
(iv) A schedule for implementing the State's approved rule or
program that assures compliance with all section 112 rules and
requirements that the EPA has promulgated since approval or since the
immediately previous EPA review,
(v) A list of part 70 or other permits issued, amended, revised, or
revoked since approval or since immediately previous EPA review, for
sources subject to a State rule or program approved under this subpart.
(vi) A summary of enforcement actions by the State regarding
violations of section 112 requirements, including but not limited to
administrative orders and judicial and administrative complaints and
settlements.
(2) Upon request by the Administrator, the State shall demonstrate
that each State rule, emission standard or requirement applied to an
individual source is no less stringent as applied than the otherwise
applicable Federal rule, emission standard or requirement.
(b) Withdrawal of approval of a state rule or program.
(1) If the Administrator has reason to believe that a State is not
adequately
[[Page 55844]]
implementing or enforcing an approved rule or program according to the
criteria of this section or that an approved rule or program is not as
stringent as the otherwise applicable Federal rule, emission standard
or requirements, the Administrator will so inform the State in writing
and will identify the reasons why the Administrator believes that the
State's rule or program is not adequate. The State shall then initiate
action to correct the deficiencies identified by the Administrator and
shall inform the Administrator of the actions it has initiated and
completed. If the Administrator determines that the State's actions are
not adequate to correct the deficiencies, the Administrator will notify
the State that the Administrator intends to withdraw approval and will
hold a public hearing and seek public comment on the proposed
withdrawal of approval. The Administrator will require that comments be
submitted concurrently to the State. Upon notification of the intent to
withdraw, the State will notify all sources subject to the relevant
approved rule or program that withdrawal proceedings have been
initiated.
(2) Based on any public comment received and any response to that
comment by the State, the Administrator will notify the State of any
changes in identified deficiencies or actions needed to correct
identified deficiencies. If the State does not correct the identified
deficiencies within 90 days after receiving revised notice of
deficiencies, the Administrator shall withdraw approval of the State's
rule or program upon a determination that:
(i) The State no longer has adequate authorities to assure
compliance or re-sources to implement and enforce the approved rule or
program, or
(ii) The State is not adequately implementing or enforcing the
approved rule or program, or
(iii) An approved rule or program is not as stringent as the
otherwise applicable Federal rule, emission standard or requirement.
(3) The Administrator may withdraw approval for part of a rule, for
a rule, for part of a program, or for an entire program.
(4) Any State rule, program or portion of a State rule or program
for which approval is withdrawn is no longer Federally enforceable. The
Federal rule, emission standard or requirement that would have been
applicable in the absence of approval under this will be the federally
enforceable rule, emission standard or requirement.
(i) Upon withdrawal of approval, the Administrator will publish an
expeditious schedule for sources subject to the previously approved
State rule or program to come into compliance with applicable Federal
requirements. Such schedule shall include interim emission limits where
appropriate. During this transition, sources must be operated in a
manner consistent with good air pollution control practices for
minimizing emissions.
(ii) Upon withdrawal, the State shall reopen, under the provisions
of Sec. 70.7(f) of this chapter, the part 70 permit of each source
subject to the previously approved rules or programs in order to assure
compliance through the permit with the applicable requirements for each
source.
(iii) If the Administrator withdraws approval of State rules
applicable to sources that are not subject to part 70 permits, the
applicable State rules are no longer Federally enforceable.
(iv) If the Administrator withdraws approval of a portion of a
State rule or program, other approved portions of the State rule or
program that are not withdrawn shall remain in effect.
(v) Any applicable Federal emission standard or requirement shall
remain enforceable by the EPA as specified in section 112(l)(7) of the
Act.
(5) If a rule approved under Sec. 63.93 is withdrawn under the
provisions of Sec. 63.96(b)(2) (i) or (ii), and, at the time of
withdrawal, the Administrator finds the rule to be no less stringent
than the otherwise applicable Federal requirement, the Administrator
will grant equivalency to the previously approved State rule under the
appropriate provisions of this part.
(6) A State may submit a new rule, program or portion of a rule or
program for approval after the Administrator has withdrawn approval of
the State's rule, program or portion of a rule or program. The
Administrator will determine whether the new rule or program or portion
of a rule or program is approvable according to the criteria and
procedures of Sec. 63.91 and either of Sec. Sec. 63.92, 63.93 or 63.94.
(7) A State may voluntarily withdraw from an approved State rule,
program or portion of a rule or program by notifying the EPA and all
affected sources subject to the rule or program and providing notice
and opportunity for comment to the public within the State.
(i) Upon voluntary withdrawal by a State, the Administrator will
publish a timetable for sources subject to the previously approved
State rule or program to come into compliance with applicable Federal
requirements.
(ii) Upon voluntary withdrawal, the State must reopen and revise
the part 70 permits of all sources affected by the withdrawal as
provided for in this section and Sec. 70.7(f), and the Federal rule,
emission standard, or requirement that would have been applicable in
the absence of approval under this subpart will become the applicable
requirement for the source.
(iii) Any applicable Federal section 112 rule, emission standard or
requirement shall remain enforceable by the EPA as specified in section
112(l)(7) of the Act.
(iv) Voluntary withdrawal shall not be effective sooner than 180
days after the State notifies the EPA of its intent to voluntarily
withdraw.
Sec. 63.97 Approval of a State program that substitutes for section
112 requirements.
Under this section, a State may seek approval of a State program to
be implemented and enforced in lieu of specified existing or future
Federal emission standards or requirements promulgated under section
112. A State may not seek approval under this section for a program
that implements and enforces part 68 requirements.
(a) Up-front approval process.
(1) After receiving a complete request for approval of a State
program submitted under paragraph (b)(1) or (b)(2) of this section and
making a preliminary determination on whether to approve it, the
Administrator will seek public comment for 21 days through a Federal
Register notice. At its discretion, the State may include in this
submittal a request for approval of specific alternative requirements
under paragraph (b)(3) of this section.
(2) [Reserved]
(3) The Administrator will require that comments be submitted
concurrently to the State.
(4) If, after review of all public comments and State responses to
comments submitted to the Administrator, the Administrator finds that
the criteria of paragraph (b) of this section and the criteria of
Sec. 63.91 are met, the Administrator will approve or partially approve
the State program. The approved State program will be published in the
Federal Register and incorporated, directly or by reference, in the
appropriate subpart of part 63.
(5) If the Administrator finds that any of the criteria of
paragraph (b) of this section or Sec. 63.91 have not been met, the
Administrator will partially approve or disapprove the State program.
(6) The Administrator will either approve, partially approve, or
disapprove the State request:
(i) Within 90 days after receipt of a complete request for approval
of a State program submitted under paragraph (b)(1) or (b)(2) of this
section; or
(ii) Within 180 days after receipt of a complete request for
approval of a State
[[Page 55845]]
program submitted under paragraphs (b)(1) or (b)(2) and paragraph
(b)(3) of this section.
(b) Criteria for up-front approval. Any request for program
approval under this section shall meet all of the criteria of this
paragraph and Sec. 63.91 before approval.
(1) For every request for program approval under this section, the
State shall provide the Administrator, to the extent possible, with an
identification of the initial specific source categories listed
pursuant to section 112(c) and an identification of all existing and
future section 112 emission standards or other requirements for which
the State is seeking authority to implement and enforce alternative
requirements under this section.
(2) If, after approval of the initial list of specific source
categories identified in paragraph (b)(1) of this section, the State
adds source categories for approval under this option, the State shall
submit an addendum to the approval submission, and identify the
addition to the list.
(3) In addition, the State may provide the Administrator with one
or more of the following program elements for approval under this
paragraph:
(i) Alternative requirements in State rules, regulations, or
general permits (or other enforceable mechanisms) that apply
generically to one or more categories of sources and for which the
State seeks approval to implement and enforce in lieu of specific
existing Federal section 112 emission standards or requirements. The
Administrator may approve or disapprove the alternative requirements in
these rules, regulations, or permits when approving or disapproving the
State's up-front submittal under this paragraph. After approval of the
alternative generic rules, regulations or general permits, and after
new Federal emission standards or requirements are promulgated, the
State may extend the applicability of approved generic alternative
requirements to additional source categories by repeating the approval
process specified in paragraph (a) of this section. To be approvable,
any request for approval of generic alternative requirements during the
up-front approval process shall meet the criteria in paragraph (d) of
this section.
(ii) A description of the mechanisms that are enforceable as a
matter of State law that the State will use to implement and enforce
alternative requirements for area sources. The mechanisms that may be
approved under this paragraph include title V permits, title V general
permits, Federal new source review permits, board and administrative
orders, permits issued pursuant to permit templates, state permits, and
State rules that apply to categories of sources. The State shall
demonstrate to the Administrator that the State has adequate resources
and authorities to implement and enforce alternative section 112
requirements using the State mechanisms.
(c) Approval process for alternative requirements.
(1) After promulgation of a Federal emission standard or
requirement for which the State has program approval under this section
to implement and enforce alternative requirements, the State shall
provide the Administrator with alternative requirements that are
sufficient, in the Administrator's judgement, to allow the
Administrator to determine equivalency under paragraph (d) of this
section. The alternative requirements shall reflect all of the
requirements of the otherwise applicable Federal section 112 rule,
emission standard, or requirement, including any alternative
requirements that the State is seeking to implement and enforce.
Alternative requirements submitted for approval under this paragraph
shall be contained in rules, regulations, general permits, or other
mechanisms that apply to and are enforceable under State law for
categories of sources. State policies are not approvable under this
section unless they are incorporated into specific, enforceable,
alternative requirements in rules, permits, or other mechanisms that
apply to categories of sources.
(2) [Reserved]
(3) After receiving a complete request for approval under this
section and making a preliminary determination on its equivalence, the
Administrator will seek public comment for a minimum of 21 days through
a Federal Register notice. The Administrator will require that comments
be submitted concurrently to the State.
(4) If, after review of public comments and any State responses to
comments submitted to the Administrator, the Administrator finds that
the criteria of paragraph (d) of this section and the criteria of
Sec. 63.91 are met, the Administrator will approve the State's
alternative requirements. The approved alternative requirements will be
published in the Federal Register and incorporated, directly or by
reference, in the appropriate subpart of part 63.
(5) If the Administrator finds that any of the requirements of
paragraph (d) of this section or Sec. 63.91 have not been met, the
Administrator will partially approve or disapprove the State's
alternative requirements. For any partial approvals or disapprovals,
the Administrator will provide the State with the basis for the partial
approval or disapproval and what action the State can take to make the
alternative requirements approvable.
(6) Within 180 days of receiving a complete request for approval
under this paragraph, the Administrator will either approve, partially
approve, or disapprove the State request.
(7) Nothing in this section precludes the State from submitting
alternative requirements for approval under this paragraph at the same
time the State submits its program to the Administrator for up-front
approval under paragraph (a) of this section, provided that the Federal
rules, emission standards, or requirements for which the State submits
alternative requirements are promulgated at the time of the State's
submittal. If the Administrator finds that the criteria of Sec. 63.91
and the criteria of paragraphs (b) and (d) of this section are met, the
Administrator will approve both the State program and the alternative
requirements within 180 days of receiving a complete request for
approval. Alternatively, following up-front approval, the State may
submit alternative requirements for approval under this paragraph at
any time after promulgation of the Federal emission standards or
requirements.
(d) Approval criteria for alternative requirements. Any request for
approval under this paragraph shall meet the following criteria. Taken
together, the criteria in this paragraph describe the minimum contents
of a State's equivalency demonstration for a promulgated Federal
section 112 rule, emission standard, or requirement. To be approvable,
the State submittal must contain sufficient detail to allow the
Administrator to make a determination of equivalency between the
State's alternative requirements and the Federal requirements. Each
submittal of alternative requirements for a category of sources shall:
(1) Include copies of all State rules, regulations, permits, or
other enforceable mechanisms that contain the alternative requirements
for which the State is seeking approval. These documents shall also
contain requirements that reflect all of the requirements of the
otherwise applicable Federal section 112 rules, emission standards or
requirements for which the State is not submitting alternatives. The
State shall identify for the Administrator the specific requirements
with which sources in a source category are required to comply,
including the specific alternative requirements.
[[Page 55846]]
(2) Identify specifically how the alternative requirements are the
same as or differ from the requirements in the otherwise applicable
Federal rule, emission standards, or requirements (including any
applicable requirements in subpart A or other subparts or appendices).
The State shall provide this identification in a side-by-side
comparison of the State's requirements and the requirements of the
Federal rule, emission standards, or requirements.
(3) The State shall provide the Administrator with detailed
documentation that demonstrates the State's belief that the alternative
requirements meet the criteria specified in Sec. 63.93(b) of this
subpart, i.e., that the alternative requirements are at least as
stringent as the otherwise applicable Federal requirements.
[FR Doc. 00-22968 Filed 9-13-00; 8:45 am]
BILLING CODE 6560-50-U