[Federal Register Volume 67, Number 63 (Tuesday, April 2, 2002)]
[Rules and Regulations]
[Pages 15486-15489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7939]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[WV001-1000a; FRL-7166-6]
Approval of Section 112(l) Authority for Hazardous Air
Pollutants; State of West Virginia; 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 West Virginia
Department of Environmental Protection's (WVDEP'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 once WVDEP incorporates these
amendments into its regulations. In addition, EPA is taking direct
final action to approve of WVDEP's mechanism for receiving delegation
of future hazardous air pollutant regulations. This mechanism entails
WVDEP's incorporation by reference of the unchanged Federal standard
into its hazardous air pollutant regulation and WVDEP's notification to
EPA of such incorporation. EPA is not waiving its notification and
reporting requirements under this approval; therefore, sources will
need to send notifications and reports to both WVDEP and EPA. This
action pertains only to affected sources, as defined by the Clean Air
Act's (CAA's or the Act's) hazardous air pollutant program, which are
not located at major sources, as defined by the Act's operating permit
program. The WVDEP's request for delegation of authority to implement
and enforce its hazardous air pollutant regulations at affected sources
which are located at major sources, as defined by the Act's operating
permit program, was initially approved on March 19, 2001. EPA is taking
this action in accordance with the CAA.
DATES: This direct final rule will be effective June 3, 2002, unless
EPA receives adverse or critical comments by May 2, 2002. 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
John A. Benedict, West Virginia Department of Environmental Protection,
Division of Air Quality, 7012 MacCorkle Avenue, SE, Charleston, WV
25304-2943. 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 West
Virginia Department of Environmental Protection, Division of Air
Quality, 7012 MacCorkle Avenue, SE, Charleston, WV 25304-2943.
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). Please
note that any formal comments must be submitted, in writing, as
provided in the ADDRESSES section of this document.
SUPPLEMENTARY INFORMATION:
I. Background
Section 112(l) of the Act 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 18, 1999, WVDEP submitted to EPA a request to receive
delegation of authority to implement and enforce the hazardous air
pollutant regulations for the affected sources defined in 40 CFR part
63. On March 19, 2001, WVDEP 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. On June 15, 2001,
WVDEP supplemented their November 18, 1999 request with information
necessary to address delegation of the hazardous air pollutant
regulations for affected sources which are not located at major
sources, as defined by 40 CFR part 70. At the present time, the
delegation request pertaining to affected sources which are not located
at major sources, as defined by 40 CFR part 70, includes the
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 40 CFR part 63, subparts M, N, O,
T, and X, respectively. The WVDEP also requested that EPA automatically
delegate future amendments to these regulations and approve WVDEP's
mechanism for receiving delegation of future hazardous air pollutant
regulations which it adopts unchanged from the Federal requirements.
This mechanism entails WVDEP's incorporation by reference of the
unchanged Federal standard into its regulation for hazardous air
pollutant sources at 45CSR34 and WVDEP's notification to EPA of such
incorporation.
II. EPA's Analysis of WVDEP's Submittal
Based on WVDEP's program approval request and its pertinent laws
and regulations, EPA has determined that
[[Page 15487]]
such an approval is appropriate in that WVDEP has satisfied the
criteria of 40 CFR 63.91. In accordance with 40 CFR 63.91(d)(3)(i),
WVDEP 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), West Virginia submitted copies of its statutes,
regulations and requirements that grant authority to WVDEP to implement
and enforce the regulations. In accordance with 40 CFR
63.91(d)(3)(iii)-(v), WVDEP submitted documentation of adequate
resources and a schedule and plan to assure expeditious State
implementation and compliance by all sources. Therefore, the WVDEP
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 WVDEP seek
delegation for these standards. The WVDEP adopts the emission standards
promulgated in 40 CFR part 63 into the State regulation for hazardous
air pollutant sources found at 45CSR34. The WVDEP has the primary
authority and responsibility to carry out all elements of these
programs for all sources covered in West Virginia, including on-site
inspections, record keeping reviews, and enforcement.
III. Terms of Program Approval and Delegation of Authority
In order for WVDEP 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 regulations, as they apply to facilities
that are not located at major sources, as defined by 40 CFR part 70,
each amendment must be legally adopted by the State of West Virginia.
As stated earlier, these amendments are adopted into West Virginia's
regulation for hazardous air pollutant sources at 45CSR34. The
delegation of amendments to these rules will be finalized on the
effective date of the legal adoption. The WVDEP will notify EPA of its
adoption of the Federal regulation amendments.
EPA has also determined that WVDEP's mechanism for receiving
delegation of future hazardous air pollutant regulations which it
adopts unchanged from the Federal requirements, as they apply to
facilities that are not located at major sources, as defined by 40 CFR
part 70, is approvable. This mechanism requires WVDEP to adopt the
Federal regulation into its regulation for hazardous air pollutant
sources at 45CSR34. The delegation will be finalized on the effective
date of the legal adoption. The WVDEP is also required to notify EPA of
its adoption of the Federal regulation. The official notice of
delegation of additional emission standards will be published in the
Federal Register. As noted earlier, WVDEP's program to implement and
enforce all emission standards promulgated under 40 CFR part 63, as
they apply to major sources, as defined by 40 CFR part 70, was
previously approved on March 19, 2001.
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 WVDEP and EPA Region III.
If at any time there is a conflict between a WVDEP regulation and a
Federal regulation, the Federal regulation must be applied if it is
more stringent than that of WVDEP. EPA is responsible for determining
stringency between conflicting regulations. If WVDEP 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 WVDEP'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 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, WVDEP
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
WVDEP 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)
[[Page 15488]]
and applicable sections of relevant standards;
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\2\ The WVDEP 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 WVDEP 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, WVDEP 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 WVDEP 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 WVDEP. 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
West Virginia. The WVDEP will comply with all of the requirements of 40
CFR 63.91(g)(1)(ii). Quarterly reports will be submitted to EPA by
WVDEP to identify sources determined to be applicable during that
quarter.
Although WVDEP 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 WVDEP'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 WVDEP's mechanism for receiving
delegation of future hazardous air pollutant regulations which it
adopts unchanged from the Federal requirements. This mechanism entails
legal adoption by the State of West Virginia of the amendments or rules
into WVDEP's regulation for hazardous air pollutant sources at 45CSR34
and notification to EPA of such adoption. This action pertains only to
affected sources, as defined by 40 CFR part 63, which are not located
at major sources, as defined by 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, WVDEP's delegation of authority to implement
and enforce 40 CFR part 63 emission standards at major sources, as
defined by 40 CFR part 70, approved by EPA Region III on March 19,
2001, 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 WVDEP's request for delegation of the hazardous air
pollutant regulations pertaining to perchloroethylene drycleaning
facilities, hard and decorative chromium electroplating and chromium
anodizing tanks, ethylene oxide sterilization facilities, halogenated
solvent cleaning, and secondary lead smelting and its 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 WVDEP's request for delegation if adverse
comments are filed. This rule will be effective on June 3, 2002,
without further notice unless EPA receives adverse comment by May 2,
2002. 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
[[Page 15489]]
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also
does not have tribal implications because it will 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). This action also does not have Federalism
implications because it does not 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). This action 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 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (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. 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 June 3, 2002. 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 WVDEP'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 smelting
(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 protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.
Dated: March 21, 2002.
Judith M. Katz,
Director, Air Protection Division, Region III.
40 CFR part 63 is amended as follows:
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)(48) to read as
follows:
Sec. 63.99 Delegated Federal authorities
(a) * * *
(48) West Virginia. (i) West Virginia 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 West
Virginia Department of Environmental Protection, dated March 19, 2001,
and any mutually acceptable amendments to that agreement.
(ii) West Virginia 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 sought by the West Virginia
Department of Environmental Protection and approved by EPA Region III,
at affected sources which are not located at major sources, as defined
in 40 CFR part 70, in accordance with the final rule, dated April 2,
2002, effective June 3, 2002, and any mutually acceptable amendments to
the terms described in the direct final rule.
[FR Doc. 02-7939 Filed 4-1-02; 8:45 am]
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