[Federal Register Volume 66, Number 133 (Wednesday, July 11, 2001)]
[Rules and Regulations]
[Pages 36173-36175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17072]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7009-6]
Approval of Section 112(l) Program of Delegation; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving,
through a ``direct final'' procedure, a request for delegation of the
Federal air toxics program. The State's mechanism of delegation
involves the straight delegation of all existing and future section 112
standards unchanged from the Federal standards. The actual delegation
of authority of individual standards, except standards addressed
specifically in this action, will occur through a mechanism set forth
in a memorandum of agreement (MOA) between the Ohio Environmental
Protection Agency (OEPA) and EPA. This request for approval of a
mechanism of delegation encompasses all part 70 and non-part 70 sources
subject to a section 112 standard with the exception of the Coke Oven
standard.
DATES: The ``direct final'' is effective on September 10, 2001, unless
EPA receives adverse or critical written comments by August 10, 2001.
If adverse comment is received, EPA will publish a timely withdrawal of
the rule in the Federal Register informing the public that the rule
will not take effect.
ADDRESSES: Written comments should be sent to: Pamela Blakely, Chief,
Permits and Grants Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the State's submittal and other supporting information
used in developing the approval are available for inspection during
normal business hours at the following location: EPA Region 5, 77 West
Jackson Boulevard, AR-18J, Chicago, Illinois, 60604. Please contact
Genevieve Damico at (312) 353-4761 to arrange a time if inspection of
the submittal is desired.
FOR FURTHER INFORMATION CONTACT: Genevieve Damico, AR-18J, 77 West
Jackson Boulevard, Chicago, Illinois, 60604, (312) 353-4761,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Why Are We Delegating This Program to OEPA?
Section 112(l) of the Act enables the EPA to delegate Federal air
toxics programs or rules to be implemented by States in State air
toxics programs. The Federal air toxics program implements the
requirements found in section 112 of the Act pertaining to the
regulation of hazardous air pollutants. Approval of an air toxics
program is granted by the EPA if the Agency finds that the State
program: (1) Is no less stringent than the corresponding Federal
program or rule, (2) the State has adequate authority and resources to
implement the program for all sources, (3) the schedule for
implementation and compliance is sufficiently expeditious, and (4) the
program is otherwise in compliance with Federal guidance. Once approval
is granted, the air toxics program can be implemented and enforced by
State or local agencies, as well as EPA. Implementation by local
agencies is dependent upon appropriate subdelegation.
II. What Is the History of This Request for Delegation?
On March 31, 1995, Ohio submitted to EPA a request for delegation
of authority to implement and enforce the air toxics program under
section 112 of the Act. Additional letters supplementing this request
were sent on June 27, 1995, August 23, 1996, June 1, 1999, and July 8,
1999. On July 22, 1999, EPA found the State's submittal complete. OEPA
notified us through a letter dated December 13, 2000, that it is not
requesting delegation of the Coke Oven standard (40 CFR part 63,
subpart L). In this document EPA is taking final action to approve the
program of delegation for Ohio for part 70 and non-part 70 sources with
the exception of sources subject to the Coke Oven standard (40 CFR part
63, subpart L).
III. How Will OEPA Implement This Delegation?
Requirements for approval, specified in section 112(l)(5), require
that a State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule. These
requirements are also requirements for an adequate operating permits
program under part 70 (40 CFR 70.4). In an August 15, 1995 rulemaking,
EPA promulgated a final full approval under part 70 of the State of
Ohio's Operating Permit Program. The document did not include the
approval of a 112(l) mechanism for delegation of all section 112
standards for sources subject to the part 70 program. Sources subject
to the part 70 program are those sources that are operating pursuant to
a part 70 permit issued by the State, local agency or EPA. Sources not
subject to the part 70 program are those sources that are not required
to obtain a part 70 permit from either the State, local agency or EPA
(see 40 CFR 70.3).
This Ohio program of delegation will not include delegation of
section 112(r) authority. (The 112(r) program has been delegated to
OEPA under a separate document.) The program will, however, include the
delegation of the 40 CFR part 63 general provisions to the extent that
they are not reserved to the EPA and are delegable to the State, as set
forth at 65 FR 55810 (September 14, 2000).
As stated above, this document constitutes EPA's approval of Ohio's
program of straight delegation of all existing and future air toxics
standards, except for section 112(r) standards and the Coke Oven
standard. Straight delegation means that the State will not promulgate
individual State rules for each section 112 standard promulgated by
EPA, but will implement and enforce without change the section 112
standards promulgated by EPA. The Ohio program of straight delegation
is as follows: Upon promulgation of a section 112 standard, OEPA will
issue or reopen the appropriate permit to include the section 112
standard for sources which are subject according to the permit issuance
schedule in the MOA. OEPA will be able to implement and enforce the
terms of the permit containing the section 112 standard requirement.
OEPA must notify EPA within 45 days of the final promulgation of the
standard if OEPA does not intend to take delegation of the standard.
OEPA will incorporate section 112 standards into the Title V permits,
new source review
[[Page 36174]]
permits and federally enforceable state operating permits according to
the schedule of implementation in the MOA for each source in Ohio
subject to the section 112 standard. The delegation will be implemented
on a source by source basis upon the issuance of the applicable permit
to that source. Ohio will assume responsibility for the timely
implementation and enforcement required by each standard, as well as
any further activities agreed to by OEPA and EPA. Some activities
necessary for effective implementation of a standard include receipt of
initial notifications, recordkeeping, reporting and generally assuring
that sources subject to a standard are aware of its existence. When
deemed appropriate, OEPA will utilize the resources of its Small
Business Assistance Program to assist in general program
implementation. The details of this delegation mechanism will be set
forth in a memorandum of agreement between EPA and OEPA, copies of
which will be placed in the docket associated with this rulemaking.
IV. What Requirements Did OEPA Meet To Receive Today's Approval?
On November 26, 1993, EPA promulgated regulations to provide
guidance relating to the approval of State programs under section
112(l) of the Act. 40 FR 62262. These rules were revised on September
14, 2000. 40 FR 55809. That rulemaking outlined the requirements of
approval with respect to various delegation options. The requirements
for approval pursuant to section 112(l)(5) of the Act, for a program to
implement and enforce Federal section 112 rules as promulgated without
changes, are found at 40 CFR 63.91. Any request for approval must meet
all section 112(l) approval criteria, as well as all approval criteria
of Sec. 63.91. A more detailed analysis of the State's submittal
pursuant to Sec. 63.91 is contained in the Technical Support Document
included in the official file for this rulemaking.
Under section 112(l) of the Act, approval of a State program is
granted by the EPA if the Agency finds that: (1) It is ``no less
stringent'' than the corresponding Federal program, (2) the State has
adequate authority and resources to implement the program for all
sources, (3) the schedule for implementation and compliance is
sufficiently expeditious, and (4) the program is otherwise in
compliance with Federal guidance.
V. How Did OEPA Meet the Approval Criteria?
EPA is approving Ohio's mechanism of delegation because the State's
submittal meets all requirements necessary for approval under section
112(l). The first requirement is that the program be no less stringent
than the Federal program. The Ohio program is no less stringent than
the corresponding Federal program or rule because the State has
requested straight delegation of all standards unchanged from the
Federal standards. Second, the State has shown that it has adequate
authority and resources to implement the program. The Ohio Statutes
authorize OEPA to require and issue Title V permits to part 70 sources
and new source review permits and federally enforceable state operating
permits to non-part 70 sources of regulated pollutants to assure
compliance with all applicable requirements of the Act. The authority
to issue permits includes the authority to incorporate permit
conditions that implement Federal section 112 standards. Furthermore,
Ohio has the authority to implement each section 112 regulation,
emission standard or requirement, perform inspections, request
compliance information, incorporate requirements into permits, and
bring civil and criminal enforcement actions to recover penalties and
fines. OEPA will enforce section 112 standards applicable to part 70
sources by including such section 112 standards in Title V operating
permits according to the schedule in the MOA. For section 112 standards
applicable to non-part 70 sources by including such section 112
standards in new source review and federally enforceable state
operating permits according to the schedule in the MOA. Regardless of
type of permit holding the requirements of the standard, the permit
must be effective prior to the first substantial compliance date for
all future standards. Adequate resources will be obtained through State
matching funds, and through any monies from the State's Title V program
that can be used to fund acceptable Title V activities.
Third, upon promulgation of a standard, Ohio will immediately begin
activities necessary for timely implementation of the standard. These
activities will involve identifying sources subject to the applicable
requirements and notifying these sources of the applicable
requirements. Such schedule is sufficiently expeditious for approval.
Fourth, nothing in the Ohio program for straight delegation is
contrary to Federal guidance.
VI. How Are Sources Subject to the Coke Oven Standard (40 CFR Part
63, Subpart L) Going To Be Handled Since OEPA Did Not Accept
Delegation of This Standard?
OEPA notified us through a letter dated December 13, 2000, that it
is not requesting delegation of the Coke Oven standard (40 CFR part 63,
subpart L). Since OEPA is not accepting delegation of the Coke Oven
standard, EPA will be the primary enforcement authority. The Coke Oven
standard remains an applicable requirement for the sources subject to
this standard. Therefore, OEPA must include the standard as an
applicable requirement in Title V permits for subject sources and
sources subject to this standard must continue to comply with its
requirements.
VII. How Will Applicability Determinations Under Section 112 Be
Made?
In approving this delegation, the State will obtain concurrence
from EPA on any matter involving the interpretation of section 112 of
the Clean Air Act or 40 CFR part 63 to the extent that implementation,
administration, or enforcement of these sections have not been covered
by EPA determinations or guidance.
VIII. What Is Today's Final Action?
The EPA is promulgating final approval of the June 1, 1999, request
by the State of Ohio of a mechanism for straight delegation of section
112 standards unchanged from Federal standards because the request
meets all requirements of 40 CFR 63.91 and section 112(l) of the Act as
it applies to part 70 and non-part 70 sources. After the effective date
of this document, upon signing of the MOA and the issuance of the
appropriate permit, the implementation and enforcement of all existing
section 112 standards applicable to the part 70 or non-part 70 sources,
excluding the Coke Oven standard (40 CFR part 63, subpart L) and
section 112(r), which have been incorporated into the appropriate
permits (Title V, New Source Review, or federally enforceable state
operating permit), are delegated to the State of Ohio. As for the
section 112 standards which have not yet been incorporated into
permits, the implementation authority for these standards is delegated
to the State of Ohio after the effective date of this action, upon
signing of the MOA, and the issuance of the appropriate permit
containing that standard. The enforcement authority and the future
delegation of the section 112 standards to the State will occur
[[Page 36175]]
according to the procedures outlined in the MOA.
Effective immediately, all notifications, reports and other
correspondence required under section 112 standards should be sent to
the State of Ohio after the permit is issued. Affected sources should
send this information to: Robert F. Hodanbosi, Division of Air
Pollution Control, OEPA, 122 South Front Street, P.O. Box 1049,
Columbus, Ohio 43266-7049
EPA is publishing this action without prior proposal because EPA
views this action as a noncontroversial revision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the State Plan should
adverse or critical written comments be filed. This action will be
effective without further notice unless EPA receives relevant adverse
written comment by August 10, 2001. Should EPA receive such comments,
it will publish a final rule informing the public that this action will
not take effect. Any parties interested in commenting on this action
should do so at this time. If no such comments are received, the public
is advised that this action will be effective on September 10, 2001.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
State plan. Each request for revision to a State Plan shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IX. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. This action
merely approves state law as meeting federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective September 10, 2001 unless EPA
receives adverse written comments by August 10, 2001.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 10, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air Pollution control, Hazardous substances, Intergovernmental
relations.
(Authority: 42 U.S.C. 7401, et seq.)
Dated: June 19, 2001.
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 01-17072 Filed 7-10-01; 8:45 am]
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