[Federal Register Volume 66, Number 178 (Thursday, September 13, 2001)]
[Rules and Regulations]
[Pages 47579-47583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22990]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[PA001-1000; FRL-7055-9]
Approval of Section 112(l) Authority for Hazardous Air
Pollutants; State of Pennsylvania; Department of Environmental
Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule and delegation.
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SUMMARY: EPA is taking direct final action to approve Pennsylvania
Department of Environmental Protection's (PADEP's) request for
delegation of authority to implement and enforce its hazardous air
pollutant regulations for perchloroethylene drycleaning facilities,
hard and decorative chromium electroplating and chromium anodizing
tanks, ethylene oxide sterilization facilities, halogenated solvent
cleaning and secondary lead smelting which have been adopted by
reference from the Federal requirements set forth in the Code of
Federal Regulations. This approval will automatically delegate future
amendments to these regulations. In addition, EPA is taking direct
final action to approve of PADEP's mechanism for receiving delegation
of future hazardous air pollutant regulations which it adopts unchanged
from the Federal requirements. This mechanism entails submission of a
delegation request letter to EPA following EPA notification of a new
Federal requirement. EPA is not waiving its notification and reporting
requirements under this approval; therefore, sources will need to send
notifications and reports to both PADEP and EPA. This action pertains
only to sources which are not required to obtain a Clean Air Act
operating permit. The PADEP's request for delegation of authority to
implement and enforce its hazardous air pollutant regulations at
sources which are required to obtain a Clean Air Act operating permit
was approved on January 5, 1998. EPA is taking this action in
accordance with the Clean Air Act (CAA).
DATES: This direct final rule will be effective November 13, 2001
unless EPA receives adverse or critical comments by October 15, 2001.
If adverse comment is received, EPA will publish a timely withdrawal of
the rule in the Federal Register and inform the public that the rule
will not take effect.
ADDRESSES: Written comments on this action should be sent concurrently
to: Makeba A. Morris, Chief, Permits and Technical Assessment Branch,
Mail Code 3AP11, Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, and
James M. Salvaggio, Director, Pennsylvania Department of Environmental
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street,
Harrisburg, Pennsylvania 17105. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103
and the Pennsylvania Department of
[[Page 47580]]
Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400
Market Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Dianne J. McNally, U.S. Environmental
Protection Agency, Region 3, 1650 Arch Street (3AP11), Philadelphia, PA
19103-2029, [email protected] (telephone 215-814-3297).
SUPPLEMENTARY INFORMATION:
I. Background
Section 112(l) of the CAA and 40 Code of Federal Regulations (CFR)
part 63, subpart E authorize EPA to approve of State rules and programs
to be implemented and enforced in place of certain CAA requirements,
including the National Emission Standards for Hazardous Air Pollutants
set forth at 40 CFR part 63. EPA promulgated the program approval
regulations on November 26, 1993 (58 FR 62262) and subsequently amended
these regulations on September 14, 2000 (65 FR 55810). An approvable
State program must contain, among other criteria, the following
elements:
(a) A demonstration of the state's authority and resources to
implement and enforce regulations that are at least as stringent as the
NESHAP requirements;
(b) A schedule demonstrating expeditious implementation of the
regulation; and
(c) A plan that assures expeditious compliance by all sources
subject to the regulation.
On November 28, 2000, PADEP submitted to EPA a request to receive
delegation of authority to implement and enforce the hazardous air
pollutant regulations for perchloroethylene drycleaning facilities,
hard and decorative chromium electroplating and chromium anodizing
tanks, ethylene oxide sterilization facilities, halogenated solvent
cleaning and secondary lead smelting which have been adopted by
reference from 40 CFR part 63, subparts M, N, O, T and X, respectively.
The PADEP also requested that EPA automatically delegate future
amendments to these regulations and approve PADEP's mechanism for
receiving delegation of future hazardous air pollutant regulations
which it adopts unchanged from the Federal requirements. This mechanism
entails submission of a delegation request letter to EPA following EPA
notification of a new Federal requirement. The PADEP requested these
approvals for sources not subject to the permitting requirements of 40
CFR part 70. On January 5, 1998, PADEP received delegation of authority
to implement all emission standards promulgated in 40 CFR part 63, as
they apply to major sources, as defined by 40 CFR part 70.
II. EPA's Analysis of PADEP's Submittal
Based on PADEP's program approval request and its pertinent laws
and regulations, EPA has determined that such an approval is
appropriate in that PADEP has satisfied the criteria of 40 CFR 63.91.
In accordance with 40 CFR 63.91(d)(3)(i), PADEP submitted a written
finding by the State Attorney General which demonstrates that the State
has the necessary legal authority to implement and enforce its
regulations, including the enforcement authorities which meet 40 CFR
70.11, the authority to request information from regulated sources and
the authority to inspect sources and records to determine compliance
status. In accordance with 40 CFR 63.91(d)(3)(ii), PADEP submitted
copies of its statutes, regulations and requirements that grant
authority to PADEP to implement and enforce the regulations. In
accordance with 40 CFR 63.91(d)(3)(iii)-(v), PADEP submitted
documentation of adequate resources and a schedule and plan to assure
expeditious State implementation and compliance by all sources.
Therefore, the PADEP program has adequate and effective authorities,
resources, and procedures in place for implementation and enforcement
of sources subject to the requirements of 40 CFR part 63, subparts M,
N, O, T and X, as well as any future emission standards, should PADEP
seek delegation for these standards. The PADEP automatically adopts the
emission standards promulgated in 40 CFR part 63 into its permitting
program under section 6.6(a) of the Pennsylvania Air Pollution Control
Act, 35 P.S. section 4006.6(a). The PADEP has the primary authority and
responsibility to carry out all elements of these programs for all
sources covered in Pennsylvania, including on-site inspections, record
keeping reviews, and enforcement.
III. Terms of Program Approval and Delegation of Authority
In order for PADEP to receive automatic delegation of future
amendments to the perchloroethylene drycleaning facilities, hard and
decorative chromium electroplating and chromium anodizing tanks,
ethylene oxide sterilization facilities, halogenated solvent cleaning
and secondary lead smelting emission standards, as they apply to
facilities not required to obtain a permit under 40 CFR part 70, each
amendment must be legally adopted by the State of Pennsylvania. As
stated earlier, these amendments are automatically adopted into PADEP's
permitting program under section 6.6(a) of the Pennsylvania Air
Pollution Control Act, 35 P.S. section 4006.6(a).
EPA has also determined that PADEP's mechanism for receiving
delegation of future hazardous air pollutant regulations which it
adopts unchanged from the Federal requirements, as they apply to
facilities not required to obtain a permit under 40 CFR part 70, can be
approved. This mechanism will require PADEP to submit a delegation
request letter to EPA following EPA notification of a new Federal
requirement. EPA will grant the delegation request, if appropriate, by
sending a letter to PADEP outlining the authority to implement and
enforce the standard. The delegation will be finalized within 10 days
of receipt of the delegation letter unless PADEP files a negative
response. The official notice of delegation of additional emission
standards will be published in the Federal Register. As noted earlier,
PADEP's program to implement and enforce all emission standards
promulgated under 40 CFR part 63, as they apply to sources subject to
the permitting requirements of 40 CFR part 70, was previously approved
on January 5, 1998.
The notification and reporting provisions in 40 CFR part 63
requiring the owners or operators of affected sources to make
submissions to the Administrator shall be met by sending such
submissions to PADEP and EPA Region III.
If at any time there is a conflict between a PADEP regulation and a
Federal regulation, the Federal regulation must be applied if it is
more stringent than that of PADEP. EPA is responsible for determining
stringency between conflicting regulations. If PADEP does not have the
authority to enforce the more stringent Federal regulation, it shall
notify EPA Region III in writing as soon as possible, so that this
portion of the delegation may be revoked.
If EPA determines that PADEP's procedure for enforcing or
implementing the 40 CFR part 63 requirements is inadequate, or is not
being effectively carried out, this delegation may be revoked in whole
or in part in accordance with the procedures set out in 40 CFR
63.96(b).
Certain provisions of 40 CFR part 63 allow only the Administrator
of EPA to take further standard setting actions. In addition to the
specific authorities retained by the Administrator in 40 CFR 63.90(d)
and the ``Delegation of
[[Page 47581]]
Authorities'' section for specific standards, EPA Region III is
retaining the following authorities, in accordance with 40 CFR
63.91(g)(2)(ii):
(1) Approval of alternative non-opacity emission standards, e.g.,
40 CFR 63.6(g) and applicable sections of relevant standards;
(2) Approval of alternative opacity standards, e.g., 40 CFR
63.9(h)(9) and applicable sections of relevant standards;
(3) Approval of major alternatives to test methods, as defined in
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and applicable
sections of relevant standards;
(4) Approval of major alternatives to monitoring, as defined in 40
CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable sections of relevant
standards; and
(5) Approval of major alternatives to recordkeeping and reporting,
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable
sections of relevant standards.
The following provisions are included in this delegation, in
accordance with 40 CFR 63.91(g)(1)(i), and can only be exercised on a
case-by-case basis. When any of these authorities are exercised, PADEP
must notify EPA Region III in writing:
(1) Applicability determinations for sources during the title V
permitting process and as sought by an owner/operator of an affected
source through a formal, written request, e.g., 40 CFR 63.1 and
applicable sections of relevant standards \1\;
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\1\ Applicability determinations are considered to be nationally
significant when they:
(i) Are unusually complex or controversial;
(ii) Have bearing on more than one state or are multi-Regional;
(iii) Appear to create a conflict with previous policy or
determinations;
(iv) Are a legal issue which has not been previously considered;
or
(v) Raise new policy questions and shall be forwarded to EPA
Region III prior to finalization.
Detailed information on the applicability determination process
may be found in EPA document 305-B-99-004 How to Review and Issue
Clean Air Act Applicability Determinations and Alternative
Monitoring, dated February 1999. The PADEP may also refer to the
Compendium of Applicability Determinations issued by the EPA and may
contact EPA Region III for guidance.
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(2) Responsibility for determining compliance with operation and
maintenance requirements, e.g., 40 CFR 63.6(e) and applicable sections
of relevant standards;
(3) Responsibility for determining compliance with non-opacity
standards, e.g., 40 CFR 63.6(f) and applicable sections of relevant
standards;
(4) Responsibility for determining compliance with opacity and
visible emission standards, e.g., 40 CFR 63.6(h) and applicable
sections of relevant standards;
(5) Approval of site-specific test plans \2\, e.g., 40 CFR
63.7(c)(2)(i) and (d) and applicable sections of relevant standards;
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\2\ The PADEP will notify EPA of these approvals on a quarterly
basis by submitting a copy of the test plan approval letter. Any
plans which propose major alternative test methods or major
alternative monitoring methods shall be referred to EPA for
approval.
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(6) Approval of minor alternatives to test methods, as defined in
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(i) and applicable sections of
relevant standards;
(7) Approval of intermediate alternatives to test methods, as
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and
applicable sections of relevant standards;
(8) Approval of shorter sampling times/volumes when necessitated by
process variables and other factors, e.g., 40 CFR 63.7(e)(2)(iii) and
applicable sections of relevant standards;
(9) Waiver of performance testing, e.g., 40 CFR 63.7 (e)(2)(iv),
(h)(2), and (h)(3) and applicable sections of relevant standards;
(10) Approval of site-specific performance evaluation (monitoring)
plans \3\, e.g., 40 CFR 63.8(c)(1) and (e)(1) and applicable sections
of relevant standards;
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\3\ The PADEP will notify EPA of these approvals on a quarterly
basis by submitting a copy of the performance evaluation plan
approval letter. Any plans which propose major alternative test
methods or major alternative monitoring methods shall be referred to
EPA for approval.
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(11) Approval of minor alternatives to monitoring methods, as
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable
sections of relevant standards;
(12) Approval of intermediate alternatives to monitoring methods,
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable
sections of relevant standards;
(13) Approval of adjustments to time periods for submitting
reports, e.g., 40 CFR 63.9 and 63.10 and applicable sections of
relevant standards; and
(14) Approval of minor alternatives to recordkeeping and reporting,
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable
sections of relevant standards.
As required, PADEP and EPA Region III will provide the necessary
written, verbal and/or electronic notification to ensure that each
agency is fully informed regarding the interpretation of applicable
regulations in 40 CFR part 63. In instances where there is a conflict
between a PADEP interpretation and a Federal interpretation of
applicable regulations in 40 CFR part 63, the Federal interpretation
must be applied if it is more stringent than that of PADEP. Written,
verbal and/or electronic notification will also be used to ensure that
each agency is informed of the compliance status of affected sources in
Pennsylvania. The PADEP will comply with all of the requirements of 40
CFR 63.91(g)(1)(ii).
Quarterly reports will be submitted to EPA by PADEP to identify
sources determined to be applicable during that quarter.
Although PADEP has primary authority and responsibility to
implement and enforce the hazardous air pollutant general provisions
and hazardous air pollutant emission standards for perchloroethylene
drycleaning facilities, hard and decorative chromium electroplating and
chromium anodizing tanks, ethylene oxide sterilization facilities,
halogenated solvent cleaning and secondary lead smelting, nothing shall
preclude, limit, or interfere with the authority of EPA to exercise its
enforcement, investigatory, and information gathering authorities
concerning this part of the Act.
IV. Final Action
EPA is approving PADEP's request for delegation of authority to
implement and enforce its hazardous air pollutant regulations for
perchloroethylene drycleaning facilities, hard and decorative chromium
electroplating and chromium anodizing tanks, ethylene oxide
sterilization facilities, halogenated solvent cleaning and secondary
lead smelting which have been adopted by reference from 40 CFR part 63,
subparts M, N, O, T and X, respectively. This approval will
automatically delegate future amendments to these regulations. In
addition, EPA is approving of PADEP's mechanism for receiving
delegation of future hazardous air pollutant regulations which it
adopts unchanged from the Federal requirements. This mechanism entails
submission of a delegation request letter to EPA following EPA
notification of a new Federal requirement. This action pertains only to
sources which are not required to obtain an operating permit, in
accordance with 40 CFR part 70. The delegation of authority shall be
administered in accordance with the terms outlined in section IV.,
above. This delegation of authority is codified in 40 CFR 63.99. In
addition, PADEP's delegation of authority to implement and enforce 40
CFR part 63 emission standards at sources required to obtain an
operating permit in accordance with 40 CFR part 70, approved by EPA
[[Page 47582]]
Region III on January 5, 1998 is codified in 40 CFR 63.99.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial rule and anticipates no adverse
comment because PADEP's request for delegation of the perchloroethylene
drycleaning facilities, hard and decorative chromium electroplating and
chromium anodizing tanks, ethylene oxide sterilization facilities,
halogenated solvent cleaning and secondary lead smelting and it's
request for automatic delegation of future amendments to these rules
and future standards, when specifically identified, does not alter the
stringency of these regulations and is in accordance with all program
approval regulations. However, in the ``Proposed Rules'' section of
today's Federal Register, EPA is publishing a separate document that
will serve as the proposal to approve of PADEP's request for delegation
if adverse comments are filed. This rule will be effective on November
13, 2001 without further notice unless EPA receives adverse comment by
October 15, 2001. If EPA receives adverse comment, EPA will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, EPA may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
V. Administrative Requirements
A. General 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. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 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 (Public Law 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 CAA. This rule also is not subject
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is
not economically significant.
In reviewing requests for rule approval under CAA section 112,
EPA's role is to approve state choices, provided that they meet the
criteria of the CAA. 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 requests for rule approval
under CAA section 112 for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a request for
rule approval under CAA section 112, to use VCS in place of a request
for rule approval under CAA section 112 that otherwise satisfies the
provisions of the CAA. 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.).
B. 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 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 13, 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, pertaining to the approval of PADEP's delegation of
authority for the hazardous air pollutant emission standards for
perchloroethylene dry cleaning facilities, hard and decorative chromium
electroplating and chromium anodizing tanks, ethylene oxide
sterilizers, halogenated solvent cleaning and secondary lead smelters
(CAA section 112), may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects 40 CFR Part 63
Environmental proteciton, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.
Dated: September 5, 2001.
Judith M. Katz,
Director, Air Protection Division, Region III.
40 CFR part 63 is amended as follows:
[[Page 47583]]
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
2. Section 63.99 is amended by adding paragraph (a)(38) to read as
follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(38) Pennsylvania.
(i) Pennsylvania is delegated the authority to implement and
enforce all existing and future unchanged 40 CFR part 63 standards at
major sources, as defined in 40 CFR part 70, in accordance with the
delegation agreement between EPA Region III and the Pennsylvania
Department of Environmental Protection, dated January 5, 1998, and any
mutually acceptable amendments to that agreement.
(ii) Pennsylvania is delegated the authority to implement and
enforce all existing 40 CFR part 63 standards and all future unchanged
40 CFR part 63 standards, if delegation is requested by the
Pennsylvania Department of Environmental Protection and approved by EPA
Region III, at sources not subject to the permitting requirements of 40
CFR part 70, in accordance with the final rule, dated September 13,
2001, effective November 13, 2001, and any mutually acceptable
amendments to the terms described in the direct final rule.
* * * * *
[FR Doc. 01-22990 Filed 9-12-01; 8:45 am]
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