[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Rules and Regulations]
[Pages 66054-66062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31240]
[[Page 66054]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[FRL-6187-8]
Approval of the Clean Air Act, Section 112(l), Delegation of
Authority to Three Local Air Agencies in Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule and delegation of authority.
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SUMMARY: EPA is promulgating direct final approval of the state of
Washington Department of Ecology (Ecology) request for program approval
and delegation of authority for three local agencies in Washington to
implement and enforce locally-adopted hazardous air pollutant (HAP)
regulations which adopt by reference the federal National Emission
Standards for Hazardous Air Pollutants (NESHAP) contained within 40 CFR
Parts 61 and 63, as these regulations apply to all sources (i.e., both
Part 70 and non-Part 70 sources). In this action EPA is delegating
these programs to Ecology for the purpose of redelegating them to three
local agencies in Washington, consistent with Ecology's statute, the
Revised Code of Washington (RCW) 70.94.860. EPA is also promulgating
approval of a mechanism by which these three agencies will receive
delegation of future NESHAPs; and is waiving its notification
requirements such that sources will only need to send notifications and
reports to the delegated local agencies. Additionally, EPA is
promulgating direct final approval of certain local air agency
potential-to-emit limiting regulations which will now be recognized as
federally enforceable.
The adopted regulations approved as part of this action will be
implemented and enforced by the following local air authorities within
the state of Washington: the Northwest Air Pollution Authority (NWAPA);
the Puget Sound Air Pollution Control Agency (PSAPCA); and the
Southwest Air Pollution Control Authority (SWAPCA) collectively
referred to as ``NWAPA, PSAPCA, and SWAPCA.'' (For purposes of this
action and consistent with RCW 70.94.860, ``delegation to NWAPA,
PSAPCA, and SWAPCA'' means ``delegation to Ecology for the purpose of
redelegation to NWAPA, PSAPCA, and SWAPCA''). Delegation to Ecology to
directly implement 40 CFR Parts 61 and 63 and to redelegate the same
authority to the remaining four Washington local agencies (the Benton
Clean Air Authority, the Olympic Air Pollution Control Authority, the
Spokane County Air Pollution Control Authority, and the Yakima Regional
Clean Air Authority) is anticipated in the near future and will be the
subject of a separate rulemaking.
DATES: This action will be effective on February 1, 1999 without
further notice, unless EPA receives relevant adverse comments by
December 31, 1998. If EPA receives such comments, then it will publish
a timely withdrawal in the Federal Register informing the public that
this direct final rule will not take effect.
ADDRESSES: Comments must be submitted to Doug Hardesty at the Region X
office listed below. Copies of the requests for delegation and other
supporting documentation are available for public inspection at the
following location: U.S. Environmental Protection Agency, Region X,
Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, WA, 98101.
FOR FURTHER INFORMATION CONTACT: Andrea Wullenweber, US EPA, Region X
(OAQ-107), 1200 Sixth Avenue, Seattle, WA, 98101, (206) 553-8760.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the federal Clean Air Act (CAA) enables the EPA
to approve State and local air toxics programs or rules to operate in
place of the federal air toxics program or rules. The federal air
toxics program implements the requirements found in section 112 of the
CAA pertaining to the regulation of hazardous air pollutants. Approval
of an air toxics program is granted by EPA if the Agency finds that:
(1) the State (or local) program is ``no less stringent'' than the
corresponding federal program or rule, (2) the State (or local) has
adequate authority and resources to implement the program, (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.
On February 16, 1996 (see 61 FR 6184), EPA proposed to approve the
request of Ecology and the Washington local agencies, including NWAPA,
PSAPCA, and SWAPCA, for delegation of authority to implement and
enforce certain 40 CFR Parts 61 and 63 NESHAP rules, as they apply to
Part 70 sources. On August 26, 1996 (see 61 FR 43675), under the
authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA promulgated
final interim approval of this request. EPA also promulgated interim
approval of NWAPA, PSAPCA, and SWAPCA's mechanism for receiving future
delegation of CAA section 112 standards that are adopted unchanged from
federal standards as promulgated. Additionally, EPA promulgated interim
approval of PSAPCA and SWAPCA's potential-to-emit limiting regulations
to be recognized as federally enforceable.
In the August 26, 1996, rulemaking, EPA granted only interim
approval of the request for delegation because EPA determined that the
criminal authorities under Ecology's statute, RCW 70.94.430, did not
meet the stringency requirements of 40 CFR 70.11. In this respect, EPA
retained implementation and enforcement authority for these rules as
they applied to non-Part 70 sources during the interim period or until
such time as Ecology and the local agencies could demonstrate that
their criminal authorities met EPA stringency requirements. Full
approval has been contingent upon a demonstration that Ecology and the
local agencies' criminal enforcement authorities are consistent with
the requirements of 40 CFR 70.11(a), and therefore 40 CFR 63.91(b)(1)
and (b)(6). Specifically, in the proposed interim approval notice (see
61 FR 6184), EPA requested the following of Ecology and the local
agencies:
(1) Revise RCW 70.94.430 to provide for maximum criminal penalties
of not less than $10,000 per day per violation, as required by 40 CFR
70.11(a)(3)(ii),
(2) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly makes any false material
statement, representation or certification in any form, in any notice
or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii).
This provision must include maximum penalties of not less than $10,000
per day per violation, and
(3) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly renders inaccurate any
required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of not
less than $10,000 per day per violation, or
(4) Demonstrate to the satisfaction of EPA that these authorities
are consistent with 40 CFR 70.11, and therefore 40 CFR 61.91.
In response to EPA's request, Ecology submitted a letter dated
October 7, 1996, that addressed these issues. This documentation
included a legal memorandum from the Washington State Attorney
General's Office dated May 23, 1996, explaining how the
[[Page 66055]]
statutory authority in RCW 70.94.430(1) may be interpreted to provide
the required authority, which satisfied condition 1. In addition,
Ecology amended the state regulation at Washington Administrative Code
(WAC) 173-400-105(7) and (8) to include prohibitions against knowingly
making false statements and knowingly rendering inaccurate any
monitoring device, thus satisfying requirements 2 and 3. Furthermore,
in a letter dated February 28, 1997, Ecology provided supporting
documentation from NWAPA, PSAPCA, and SWAPCA describing how they each
have addressed these issues. NWAPA and PSAPCA committed to enforcing
WAC 173-400-105(7) and (8) until such time as they might adopt their
own equivalent regulations on this subject. SWAPCA is requesting
delegation based on its local regulation, SWAPCA 400-105(7) and (8),
which contains the same language as the state rule. Based on
information provided by Ecology, NWAPA, PSAPCA, and SWAPCA, EPA has
determined that these actions adequately address the issue of adequate
criminal authorities needed to meet the requirements of 40 CFR 70.11
and 61.91, and to obtain final delegation for all sources within NWAPA,
PSAPCA, and SWAPCA's jurisdiction.
After resolving the above issues related to criminal authorities,
this delegation was again delayed due to certain state regulations
which EPA believed conflicted with the enforcement authorities required
for delegation of federal programs. The regulation in question was the
State of Washington's Regulatory Reform Act of 1995 (``Act''), codified
at Chapter 43.05 RCW. The Act precludes ``regulatory agencies'', as
defined in RCW 43.05.010, from assessing civil penalties except for a
violation of a specific permit term or condition; a repeat violation; a
violation that is not corrected within a reasonable period of time; or
a violation that has a probability of placing a person in danger of
death or bodily harm, a probability of causing more than minor
environmental harm, or of causing physical damage to the property of
another in excess of one thousand dollars. Counsel for PSAPCA has
provided EPA with a legal opinion stating that the Act does not apply
to local air pollution control authorities in Washington because local
air pollution control authorities are not ``regulatory agencies''
within the meaning of the Act. EPA has reviewed the statutory and
regulatory language relied on by PSAPCA's counsel in reaching this
conclusion and agrees that the Act does not constrain the enforcement
authority of local air pollution control authorities and therefore does
not pose a bar to delegation of CAA programs to local air pollution
control agencies in Washington.1
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\1\ As for the Act's applicability to Ecology's enforcement
authorities, in letters dated June 10, 1997, and November 20, 1997,
EPA advised Ecology that the Act conflicted with the necessary
enforcement authority required for authorization or approval of
federal environmental programs to Ecology. Subsequently, on December
10, 1997, in accordance with RCW 43.05.902, Ecology formally
notified the Governor of Washington that a conflict existed between
the Act and the requirements for State authorization or approval of
certain federal environmental programs. As a result of the
determination of an existing conflict, RCW 43.05.040, .050, .060(3),
and .070, which prohibit the State from issuing civil penalties
except under certain circumstances, were deemed to be inoperative to
several State environmental programs administered by the Department
of Ecology, including the CAA program. In reliance on this
determination, EPA believes that the conflict between the Act and
the requirements for EPA approval of Ecology's CAA programs has been
addressed by rendering inoperative those portions of the Act that
conflicted with Ecology's required enforcement authorities.
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In the August 26, 1996, rulemaking, EPA granted interim approval
for delegation of the regulations implementing CAA sections 112(g) and
112(j), codified at 40 CFR Part 63, Subpart B. After further review,
EPA recognizes that Subpart B need not be delegated under the section
112(l) approval process. When promulgating the regulations implementing
CAA section 112(g), EPA stated its view that ``the Act directly confers
on the permitting authority the obligation to implement section 112(g)
and to adopt a program which conforms to the requirements of this rule.
Therefore, the permitting authority need not apply for approval under
section 112(l) in order to use its own program to implement section
112(g)'' (see 61 FR 68397). Similarly, when promulgating the
regulations implementing section 112(j), EPA stated its belief that
``section 112(l) approvals do not have a great deal of overlap with the
section 112(j) provision, because section 112(j) is designed to use the
title V permit process as the primary vehicle for establishing
requirements'' (see 59 FR 26447). Therefore, state or local agencies
implementing the requirements under sections 112(g) and 112(j) do not
need approval under section 112(l). As a result, EPA is not taking
action to grant direct final delegation of 40 CFR Part 63, Subpart B,
to NWAPA, PSAPCA, and SWAPCA.
Since the August 26, 1996, rulemaking, Ecology has submitted
updated delegation requests on behalf of NWAPA, PSAPCA, and SWAPCA.
Ecology submitted requests on behalf of NWAPA on March 21, 1997, May 5,
1997, and August 28, 1998, to update NWAPA's delegation request such
that its current request includes certain subparts in 40 CFR Parts 61
and 63 in effect on May 14, 1998, as adopted into NWAPA Regulation
Section 104.2 (effective May 14, 1998). On November 18, 1996 and
October 27, 1997, Ecology submitted requests on behalf of PSAPCA to
update its delegation request such that its current request includes
certain subparts in 40 CFR Parts 61 and 63 in effect on July 1, 1997,
as adopted into PSAPCA Regulation III, Section 2.02 (effective November
1, 1997). On February 28, 1997, and May 14, 1998, Ecology submitted
requests on behalf of SWAPCA to update its delegation request such that
its current request includes certain subparts in 40 CFR Parts 61 and 63
in effect on August 1, 1996, as adopted into SWAPCA Regulation 400
Section 075 (effective November 21, 1996), and to add SWAPCA Regulation
400 Section 111 to its delegation request for potential-to-emit
regulations.
Additionally, Ecology submitted a request on behalf of PSAPCA for
approval of rule adjustments for 40 CFR Part 63, Subparts M and N
(Drycleaning and Chromium Electroplating, respectively). The original
request for the 40 CFR Part 63, Subpart M rule adjustment was dated
January 16, 1997, with a correction letter dated September 4, 1997. The
request for the 40 CFR Part 63, Subpart N rule adjustment was dated
June 26, 1997. Because EPA approval of the requested rule adjustments
will require a more detailed review under 40 CFR 63.92, EPA will
address PSAPCA's request for rule adjustments in a separate notice to
avoid further delay of this delegation.
NWAPA, PSAPCA, and SWAPCA have also requested that EPA waive the
Part 63 General Provisions notification requirements, in accordance
with 40 CFR 63.9 and 63.10, such that sources would not need to send
notifications and reports to EPA, Region X. Ecology submitted this
request for PSAPCA in a letter dated January 10, 1997, for NWAPA in a
letter dated May 5, 1997, and for SWAPCA in a letter dated May 14,
1998. These three local agencies prefer to be the sole recipient of
notifications and reports to reduce the burden on sources and EPA.
Ecology submitted a letter dated July 31, 1998, describing the
Washington state process for delegating the federal hazardous air
pollutants program to local agencies in Washington. Pursuant to RCW
70.94.860, Ecology must first accept delegation of this program on
behalf of the local agency and then redelegate the program to that
agency. In
[[Page 66056]]
its July 31, 1998, letter, Ecology included the delegation orders to be
signed by the local agencies and Ecology. These orders outline this
redelegation process. Ecology signed the orders for each agency on
August 4, 1998, and NWAPA, PSAPCA, and SWAPCA signed these orders on
August 11, 1998, August 14, 1998, and August 12, 1998, respectively. As
described in these orders, the effective date of the orders is the same
as the effective date of this rule. Therefore, the delegation to these
agencies via Ecology will cause no delay in this delegation to NWAPA,
PSAPCA, and SWAPCA.
II. EPA Action
A. Delegation of specific standards
In this action, under the authority of CAA section 112(l)(5) and 40
CFR 63.91, EPA is promulgating direct final approval of Ecology's
request, on behalf of NWAPA, PSAPCA, and SWAPCA, for program approval
and delegation of authority to implement and enforce specific 40 CFR
Parts 61 and 63 subparts, as listed in the tables at the end of this
rule. Consistent with RCW 70.94.860, EPA is delegating this authority
to Ecology for the purpose of redelegating to NWAPA, PSAPCA, and
SWAPCA.
With this delegation (and redelegation from Ecology) NWAPA, PSAPCA,
and SWAPCA will have primary implementation and enforcement
responsibility, but EPA retains the right, pursuant to CAA section
112(l)(7), to enforce any applicable emission standard or requirement
under CAA section 112. In addition, EPA does not delegate any
authorities that require implementation through rulemaking in the
Federal Register, or where Federal overview is the only way to ensure
national consistency in the application of the standards or
requirements of CAA section 112. Specifically, the EPA Administrator
has the authority to approve certain changes to, or make decisions
under, certain requirements in the General Provisions. This authority
is in 40 CFR Part 63, Subpart A. EPA is granting NWAPA, PSAPCA, and
SWAPCA some of these authorities, and is retaining other authorities,
as explained below.
In a memorandum from John Seitz, Office of Air Quality Planning and
Standards, dated July, 10, 1998, entitled, ``Delegation of 40 CFR Part
63 General Provisions Authorities to State and Local Air Pollution
Control Agencies,'' EPA clarified which of the authorities in the
General Provisions may and may not be delegated to state and local
agencies under 40 CFR Part 63, Subpart E. Such delegations, as
authorized, would enable the state or local agency to carry out the
Administrator's responsibilities in Subpart A. In delegating these
authorities, EPA is granting NWAPA, PSAPCA, and SWAPCA the authority to
make decisions which are not likely to be nationally significant or to
alter the stringency of the underlying standard. The intent is that
these agencies will make decisions on a source-by-source basis, not on
a source category-wide basis.
EPA, Region X, has determined that NWAPA, PSAPCA, and SWAPCA have
sufficient resources and expertise to implement certain sections of the
General Provisions, and EPA is promulgating direct final authority for
these sections. Listed below are the Part 63, Subpart A, sections that
EPA is delegating to NWAPA, PSAPCA, and SWAPCA. Also, listed in the
footnotes of the Parts 61 and 63 delegation tables at the end of this
rule are the authorities which cannot be delegated to any state or
local agency; which EPA therefore retains.\2\
Part 63, Subpart A, General Provisions Authorities Which EPA Is
Delegating to NWAPA, PSAPCA, and SWAPCA
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Section Authorities
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63.1.............................. Applicability Determinations.
63.6(e)........................... Operation and Maintenance
Requirements--Responsibility for
Determining Compliance.
63.6(f)........................... Compliance with Non-Opacity
Standards--Responsibility for
Determining Compliance.
63.6(h) [except 63.6(h)(9)]....... Compliance with Opacity and Visible
Emissions Standards--Responsibility
for Determining Compliance.
63.7(c)(2)(i) and (d)............. Approval of Site-Specific Test
Plans.
63.7(e)(2)(i)..................... Approval of Minor Alternatives to
Test Methods.
63.7(e)(2)(ii) and (f)............ Approval of Intermediate
Alternatives to Test Methods.
63.7(e)(2)(iii)................... Approval of Shorter Sampling Times
and Volumes When Necessitated by
Process Variables or Other Factors.
63.7(e)(2)(iv) and (h) (2), (3)... Waiver of Performance Testing.
63.8(c)(1) and (e)(1)............. Approval of Site-Specific
Performance Evaluation (monitoring)
Test Plans.
63.8(f)........................... Approval of Minor Alternatives to
Monitoring.
63.8(f)........................... Approval of Intermediate
Alternatives to Monitoring.
63.9 and 63.10 [except 63.10(f)].. Approval of Adjustments to Time
Periods for Submitting Reports.
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In delegating 40 CFR 63.9 and 63.10, ``Approval of Adjustments to
Time Periods for Submitting Reports,'' these three agencies have the
authority to approve adjustments to the timing that reports are due,
but do not have the authority to alter the contents of the reports. For
Title V sources, semiannual and annual reports are required by Part 70
and nothing herein changes that requirement.
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\2\ For authorities which are not addressed in this rulemaking
and not identified in any Part 61 or 63 Subparts as authorities that
cannot be delegated, the agencies may assume that the authorities in
question are delegated.
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Certain General Provisions authorities are automatically granted to
NWAPA, PSAPCA, and SWAPCA as part of their Part 70 operating permits
program approval (regardless of whether the operating permits program
approval is interim or final). These are 40 CFR 63.6(I)(1), ``Extension
of Compliance with Emission Standards,'' and 63.5(e) and (f),
``Approval and Disapproval of Construction and Reconstruction.''
3 Additionally, for 40 CFR 63.6(I)(1), NWAPA, PSAPCA, and
SWAPCA do not need to have been delegated a particular standard or have
issued a Part 70 operating permit for a particular source to grant that
source a compliance extension.
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\3\ Sections 112(I) (1) and (3) state that ``Extension of
Compliance with Emission Standards'' and ``Approval and Disapproval
of Construction and Reconstruction'' can be implemented by the
``Administrator (or a State with a permit program approved under
Title V).'' EPA interprets that this authority does not require
delegation through subpart E and, instead, is automatically granted
to States as part of their Part 70 operating permits program
approval.
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EPA is also promulgating direct final approval of PSAPCA Regulation
I, Article 6, and Regulation III, Appendix A; and, SWAPCA Regulation
400-091, -110, -111, -112, -113, and -114 under the authority of
section 112(l) of the Act
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in order to recognize these regulations as federally enforceable for
purposes of establishing potential-to-emit limitations.
After a state or local agency has been delegated the authority to
implement and enforce a NESHAP, the delegated agency (in this case,
NWAPA, PSAPCA, and SWAPCA) becomes the primary point of contact with
respect to that NESHAP. Pursuant to 40 CFR 63.9(a)(4)(ii) and
63.10(a)(4)(ii), EPA Region X waives the requirement that notifications
and reports for delegated standards be submitted to EPA in addition to
NWAPA, PSAPCA, and SWAPCA. Therefore, notifications and reports
required by the NESHAPs must be submitted to NWAPA, PSAPCA, and SWAPCA,
and sources within those jurisdictions will not need to send a copy to
EPA.
In delegating the authority to implement and enforce these rules
and in granting a waiver of EPA notification requirements, EPA requires
that these delegated agencies input all source information into the
Aerometric Information Retrieval System (AIRS) for both point and area
sources. This information must be entered into the AIRS system by
September 30, 1999, and must be updated by September 30 every year
thereafter. Additionally, these delegated agencies must also report to
EPA, Region X, all MACTRAX information upon request, which is typically
semiannually. (MACTRAX provides summary data for each implemented
NESHAP that EPA uses to evaluate the Air Toxics Program.) EPA also
expects NWAPA, PSAPCA, and SWAPCA to provide any additional compliance
related information to EPA, Region X, as agreed upon in the Compliance
Assurance Agreement.
Finally, in receiving delegation for specific General Provisions
authorities, NWAPA, PSAPCA, and SWAPCA must submit to EPA, Region X,
copies of determinations issued pursuant to these authorities. Such
determinations include: applicability determinations (63.1); approval/
disapprovals of construction and reconstruction [63.5 (e) and (f)];
approval/disapprovals of compliance extensions [63.6(I)(1)]; approval
of shorter sampling times and volumes [63.7(e)(2)(iii)]; waiver of
performance testing [63.7(e)(2)(iv) and (h)(2), (3)]; approval of
adjustments to time periods for submitting reports (63.9 and 63.10);
approvals/disapprovals of minor [63.7(e)(2)(I)] or intermediate
[63.7(e)(2)(ii) and (f)] alternative test methods; and approvals/
disapprovals of minor or intermediate alternative monitoring methods
[63.8(f)]. NWAPA, PSAPCA, and SWAPCA must also forward to EPA, Region
X, copies of any notifications received pursuant to 63.6(h)(7)(ii)
pertaining to the use of a continuous opacity monitoring system.
Additionally, EPA's Emission Measurement Center of the Emissions
Monitoring and Analysis Division must receive copies of any approved
intermediate changes to test methods or monitoring. (For definitions of
major, intermediate and minor alternative test methods or monitoring
methods, see the July 10, 1998, memorandum from John Seitz, referenced
above.) NWAPA, PSAPCA, and SWAPCA should forward these intermediate
test methods or monitoring changes via mail or facsimile to: Chief,
Source Categorization Group A, U.S. EPA (MD-19), Research Triangle
Park, NC 27711, Facsimile telephone number: (919) 541-1039.
B. Delegation Mechanism for Future Standards
Under the authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA
is promulgating direct final approval of NWAPA, PSAPCA, and SWAPCA's
mechanism for streamlining future delegation of those federal NESHAP
regulations that are adopted unchanged into local law. In this respect,
NWAPA, PSAPCA, and SWAPCA will only need to send a letter of request to
Ecology, and Ecology will forward that request to EPA for those future
NESHAP regulations which the local agencies have adopted by reference.
EPA will respond to this request by sending a letter back to Ecology
(and sending a copy to the local air agency) delegating the NESHAP
standards requested. Consistent with RCW 70.94.860, Ecology will
forward the letter to the local agency, thus redelegating the future
NESHAPs to that agency. No further formal response from Ecology or the
local agency will be necessary, and if no negative response is received
from Ecology or the local agency within 10 days, the delegation becomes
final. A notice of the delegation will be published in the Federal
Register to inform the public that the delegation has taken place and
to indicate where source notifications and reports should be sent.
Furthermore, NWAPA, PSAPCA, and SWAPCA shall update their
incorporations by reference of 40 CFR Parts 61 and 63 standards and
request updated delegation annually, as current standards are revised
and new standards are promulgated.
C. Opportunity for Public Comment
The public was provided the opportunity to comment on the proposed
interim approval of the request for delegation of certain 40 CFR Parts
61 and 63 standards, as apply to Part 70 sources, on February 16, 1996
(see 61 FR 6184). EPA received public comments on that proposal and
responded to them in the August 26, 1996, Federal Register (see 61 FR
43675). The public has not been given an opportunity to comment on
requests submitted since the February 16, 1996, Federal Register and on
delegation of these standards as they apply to non-Part 70 sources.
However, the Agency views the approval of these requests as a
noncontroversial action and anticipates no adverse comments. Therefore,
EPA is publishing this direct final rule without prior proposal.
However, in the Proposed Rules section of this Federal Register
publication, EPA is publishing a separate document that will serve as
the proposal for this action should relevant adverse comments be filed.
This action will be effective February 1, 1999 without further notice
unless the Agency receives relevant adverse comments by December 31,
1998.
If EPA receives such comments, then it will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. All public comments received
will then be addressed in a subsequent final rule based on the proposed
rule. EPA will not institute a second comment period on this rule. Any
parties interested in commenting on this rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on February 1, 1999 and no further action will
be taken on the proposed rule.
III. Summary of Action
Pursuant to the authority of CAA section 112(l) of the Act and 40
CFR Part 63 subpart E, EPA is promulgating direct final approval of
Ecology's request, on behalf of NWAPA, PSAPCA, and SWAPCA, for program
approval and delegation of authority to implement and enforce specific
40 CFR Parts 61 and 63 federal NESHAP regulations (as apply to both
Part 70 and non-Part 70 sources) which have been adopted into local
law. EPA is delegating this authority to Ecology for the purpose of
redelegating it to NWAPA, PSAPCA, and SWAPCA. Additionally, EPA is
promulgating direct final approval of the mechanism by which NWAPA,
PSAPCA, and SWAPCA will receive delegation of future NESHAP regulations
that are adopted unchanged into local law; and is waiving the
requirement for sources to send copies of notifications and
[[Page 66058]]
reports to EPA. Finally, EPA is promulgating direct final approval of
PSAPCA and SWAPCA's potential-to-emit regulations as federally
enforceable.
IV. Administrative Requirements
A. Executive Orders 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order (E.O.) 12866,
entitled ``Regulatory Planning and Review.''
This rule is not subject to E.O. 13045, entitled, ``Protection of
Children from Environmental Health Risks and Safety Risks,'' because it
is not an ``economically significant'' action under E.O. 12866.
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
This rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13084
Under E.O. 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. If the mandate is unfunded,
EPA must 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 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.''
This rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA
may certify that the rule will not have a significant economic impact
on a substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small government
entities with jurisdiction over populations of less than 50,000.
Delegation of authority to implement and enforce unchanged federal
standards under section 112(l) of the CAA does not create any new
requirements but simply transfers primary implementation authorities to
the State (or local) agency. Therefore, because this action does not
impose any new requirements, I certify that it does not have a
significant impact on any small entities affected.
E. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate,
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the delegation action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
F. 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).
G. 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 February 1, 1999. 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
40 CFR Part 61
Environmental protection, Air pollution control, Arsenic, Asbestos,
Benzene, Beryllium, Hazardous substances, Mercury, Reporting and
recordkeeping requirements, Vinyl Chloride.
[[Page 66059]]
40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: October 29, 1998.
Chuck Clarke,
Regional Administrator, Region X.
Title 40, chapter I, parts 61 and 63 of the Code of Federal
Regulations is amended as follows:
PART 61--[AMENDED]
1. The authority citation for Part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, 7412, 7413, 7414, 7416, 7601 and
7602.
Subpart A--General Provisions
2. Section 61.04 is amended in paragraph (a) by revising the
``Region X'' address; by revising paragraph (b)(WW) (ii), (iii), and
(vii), by removing paragraph (b)(WW)(viii); and by designating the
existing paragraph (c) and table as (c)(8), adding a new (c)
introductory text, adding and reserving paragraphs (c) (1) through (7)
and (9), and by adding paragraph (c)(10) to read as follows:
Sec. 61.04 Address.
(a) * * *
Region X (Alaska, Idaho, Oregon, Washington), Director, Office of
Air Quality, U.S. Environmental Protection Agency, 1200 Sixth Avenue
(OAQ-107), Seattle, WA 98101.
(b) * * *
(WW)(i) * * *
(ii) Northwest Air Pollution Authority (NWAPA), 1600 South Second
Street, Mount Vernon, WA 98273-5202.
Note: For a table listing NWAPA's delegation status, see
paragraph (c)(10) of this section.
(iii) Puget Sound Air Pollution Control Agency (PSAPCA), 110 Union
Street, Suite 500, Seattle, WA 98101-2038.
Note: For a table listing PSAPCA's delegation status, see
paragraph (c)(10) of this section.
* * * * *
(vii) Southwest Air Pollution Control Authority (SWAPCA), 1308 NE
134th Street, Vancouver, WA 98685-2747.
Note: For a table listing SWAPCA's delegation status, see
paragraph (c)(10) of this section.
* * * * *
(c) The following tables list, by Region, the specific Part 61,
National Emission Standards for Hazardous Air Pollutants that have been
delegated to state and local agencies.
(1)a-(7) [Reserved].
(8) * * *
(9) (Reserved)
(10) The following table lists the specific Part 61 standards that
have been delegated unchanged to state and local air pollution control
agencies in Region X. The (X) symbol is used to indicate each subpart
that has been delegated.
[[Page 66060]]
Delegation Status for Part 61 standards--Region X
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
SWAPC A
Subpart ADEC \1\ IDEQ \2\ ODEQ \3\ LRAPA \4\ Ecology BCAA \6\ NWAPA \7\ OAPCA \8\ PSAPCA SCAPCA \11\ YRCAA
------------------------------------------------------------------------------------------------------------\5\-----------------------------------------\9\--------\10\-------------------\12\--
A\13\ General Provisions.................................. ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
B Radon from Underground Uranium Mines.................... ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
C Beryllium............................................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
D Beryllium Rocket Motor Firing........................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
E Mercury................................................. ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
F Vinyl Chloride.......................................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
H Emissions of Radionuclides other than Radon from Dept of
Energy facilities........................................ ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
I Radionuclides from Federal Facilities other than Nuclear
Regulatory Commission Licensees and not covered by
Subpart H................................................ ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
J Equipment Leaks of Benzene.............................. ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
K Radionuclides from Elemental Phosphorus Plants.......... ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
L Benzene from Coke Recovery.............................. ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
M Asbestos................................................ ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
N Arsenic from Glass Plants............................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
O Arsenic from Primary Copper Smelters.................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
P Arsenic from Arsenic Production Facilities.............. ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
Q Radon from Dept of Energy facilities.................... ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
R Radon from Phosphogypsum Stacks......................... ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
T Radon from Disposal of Uranium Mill Tailings............ ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
V Equipment Leaks......................................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
W Radon from Operating Mill Tailings...................... ......... ......... ......... ......... .......... ......... ......... ......... ......... .......... ......... .........
Y Benzene from Benzene Storage Vessels.................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
BB Benzene from Benzene Transfer Operations............... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
FF Benzene Waste Operations............................... ......... ......... ......... ......... .......... ......... X ......... X .......... X .........
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Alaska Department of Environmental Conservation
\2\ Idaho Division of Environmental Quality
\3\ Oregon Department of Environmental Quality
\4\ Lane Regional Air Pollution Authority
\5\ Washington Department of Ecology
\6\ Benton Clean Air Authority
\7\ Northwest Air Pollution Authority (5/14/98)
\8\ Olympic Air Pollution Control Authority
\9\ Puget Sound Air Pollution Control Agency (7/1/97)
\10\ Spokane County Air Pollution Control Authority
\11\ Southwest Air Pollution Control Authority (8/1/96)
\12\ Yakima Regional Clean Air Authority
\13\ Authorities which may not be delegated include: 40 CFR 61.04(b); 61.12(d)(1); 61.13(h)(1)(ii) for approval of major alternatives to test methods; 61.14(g)(1)(ii) for approval of major
alternatives to monitoring; 61.16; 61.53(c)(4); any sections in the subparts pertaining to approval of alternative standards (i.e., alternative means of emission limitations), or approval of
major alternatives to test methods or monitoring; and all authorities identified in the subparts (i.e., under ``Delegation of Authority'') that cannot be delegated.
[[Page 66061]]
Note to paragraph (c)(10): Dates in parenthesis indicate the
effective date of the federal rules that have been adopted by and
delegated to the state or local air pollution control agency.
Therefore, any amendments made to these delegated rules after this
effective date are not delegated to the agency.
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 63.13 is amended in paragraph (a) by revising the
``Region X'' address to read as follows:
Sec. 63.13 Addresses of State air pollution control agencies and EPA
Regional Offices.
(a) * * *
EPA Region X (Alaska, Idaho, Oregon, Washington), Director, Office
of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, WA 98101.
* * * * *
3. Section 63.99 is amended by adding and reserving paragraphs
(a)(29) through (a)(46), and adding (a) (47) to read as follows:
Sec. 63.99 Delegated Federal Authorities.
(a) * * *
(29)-(46) [Reserved]
(47) Washington.
(i) The following table lists the specific Part 63 standards that
have been delegated unchanged to state and local air pollution control
agencies in Washington. The (X) symbol is used to indicate each subpart
that has been delegated.
Delegation Status for Part 63 standards--Washington
--------------------------------------------------------------------------------------------------------------------------------------------------------
E c o l o B C A A N W A P A O A P C A P S A P C S C A P C S W A P C Y R C A A
Subpart g y \1\ \2\ \3\ \4\ A \5\ A \6\ A \7\ \8\
--------------------------------------------------------------------------------------------------------------------------------------------------------
A............................. General Provisions \9\.......... ......... ......... X ......... X ......... X .........
D............................. Early Reductions................ ......... ......... X ......... X ......... X .........
F............................. HON-SOCMI....................... ......... ......... X ......... X ......... X .........
G............................. HON-Process Vents............... ......... ......... X ......... X ......... X .........
H............................. HON-Equipment Leaks............. ......... ......... X ......... X ......... X .........
I............................. HON-Negotiated Leaks............ ......... ......... X ......... X ......... X .........
L............................. Coke Oven Batteries............. ......... ......... X ......... X ......... X .........
M............................. Perc Dry Cleaning............... ......... ......... X ......... X ......... X .........
N............................. Chromium Electroplating......... ......... ......... X ......... X ......... X .........
O............................. Ethylene Oxide Sterilizers...... ......... ......... X ......... X ......... X .........
Q............................. Industrial Process Cooling ......... ......... X ......... X ......... X .........
Towers.
R............................. Gasoline Distribution........... ......... ......... X ......... X ......... X .........
T............................. Halogenated Solvent Cleaning.... ......... ......... X ......... X ......... X .........
U............................. Polymers and Resins I........... ......... ......... X ......... X ......... ......... .........
W............................. Polymers and Resins II-Epoxy.... ......... ......... X ......... X ......... X .........
X............................. Secondary Lead Smelting......... ......... ......... X ......... X ......... X .........
Y............................. Marine Tank Vessel Loading...... ......... ......... X ......... X ......... X .........
CC............................ Petroleum Refineries............ ......... ......... X ......... X ......... X .........
DD............................ Off-Site Waste and Recovery..... ......... ......... X ......... X ......... X .........
EE............................ Magnetic Tape Manufacturing..... ......... ......... X ......... X ......... X .........
GG............................ Aerospace Manufacturing & Rework ......... ......... X ......... X ......... X .........
II............................ Shipbuilding and Ship Repair.... ......... ......... X ......... X ......... X .........
JJ............................ Wood Furniture Manufacturing ......... ......... X ......... X ......... X .........
Operations.
KK............................ Printing and Publishing Industry ......... ......... X ......... X ......... X .........
OO............................ Tanks--Level 1.................. ......... ......... X ......... X ......... ......... .........
PP............................ Containers...................... ......... ......... X ......... X ......... ......... .........
QQ............................ Surface Impoundments............ ......... ......... X ......... X ......... ......... .........
RR............................ Individual Drain Systems........ ......... ......... X ......... X ......... ......... .........
VV............................ Oil-Water Separators and Organic- ......... ......... X ......... X ......... ......... .........
Water Separators.
JJJ........................... Polymers and Resins IV.......... ......... ......... X ......... X ......... X .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Washington Department of Ecology
\2\ Benton Clean Air Authority
\3\ Northwest Air Pollution Authority (5/14/98)
\4\ Olympic Air Pollution Control Authority
\5\ Puget Sound Air Pollution Control Agency (7/1/97)
\6\ Spokane County Air Pollution Control Authority
\7\ Southwest Air Pollution Control Authority (8/1/96)
\8\ Yakima Regional Clean Air Authority
\9\ Authorities which may not be delegated include: 40 CFR 63.6(g); 63.6(h)(9); 63.7(e)(2)(ii) and (f) for approval of major alternatives to test
methods; 63.8(f) for approval of major alternatives to monitoring; 63.10(f); and all authorities identified in the subparts (i.e., under ``Delegation
of Authority'') that cannot be delegated. For definitions of minor, intermediate, and major alternatives to test methods and monitoring, see
memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July, 10, 1998, entitled, ``Delegation of 40 CFR Part 63 General
Provisions Authorities to State and Local Air Pollution Control Agencies.''
[[Page 66062]]
Note to paragraph (a)(47): Dates in parenthesis indicate the
effective date of the federal rules that have been adopted by and
delegated to the state or local air pollution control agency.
Therefore, any amendments made to these delegated rules after this
effective date are not delegated to the agency.
[FR Doc. 98-31240 Filed 11-30-98; 8:45 am]
BILLING CODE 6560-50-P
