[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Proposed Rules]
[Pages 68066-68071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31542]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[SIPTRAX No. PA138; FRL-6500-8]
Approval and Promulgation of Air Quality Implementation Plans;
Allegheny County Portion of the Commonwealth of Pennsylvania's
Operating Permits Program, and Federally Enforceable State Operating
Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes three actions. First, EPA proposes approval of a
partial Operating Permit Program under the Clean Air Act (the Act), for
the purpose of allowing the Allegheny County (Pennsylvania) Health
Department (ACHD) to issue operating permits to all major stationary
sources in its jurisdiction. Second, EPA proposes approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania for ACHD. This revision establishes a Federally
Enforceable State Operating Permit (FESOP) Program and gives ACHD the
authority to create federally enforceable installation and operating
permit conditions for regulated pollutants and limits on potential to
emit (PTE) for hazardous air pollutants (HAPs) for the purpose of
allowing sources to avoid major source applicable requirements. Third,
EPA proposes approval of the mechanism for ACHD to receive delegation
of Maximum Achievable Control Technology (MACT) Standards for major
sources subject to operating permit program requirements.
DATES: Written comments must be received on or before January 5, 2000.
ADDRESSES: Written comments may be mailed to Kathleen Henry, Chief,
Permitting and Technical Assessment Branch, Mailcode 3AP11, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. 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 Allegheny County Health Department Bureau of Environmental Quality,
Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania
15201.
FOR FURTHER INFORMATION CONTACT: MaryBeth Bray, (215) 814-2632.
SUPPLEMENTARY INFORMATION: On November 5, 1998 the Commonwealth of
Pennsylvania submitted a revision to its SIP on behalf of the ACHD to
establish two permitting programs; the FESOP program pursuant to part
52 of Title 40 of the Code of Federal Regulations (CFR), and the Title
V Operating Permit Program pursuant to 40 CFR part 70. The submittal
also included a request for delegation of MACT standards for HAPs from
section 112 of the Act. EPA is proposing approval of Pennsylvania's
request for two permitting programs for the ACHD as well as the
mechanism for the ACHD to receive delegation of section 112 standards.
Submittal Description
The ACHD November 5, 1999 submittal contained numerous revisions to
the SIP, including a recodification of the regulations in general,
revision to major and minor New Source Review and Prevention of
Significant Deterioration programs, as well as requests for approval or
delegation of programs under 40 CFR parts 52, 63, and 70. Today's
rulemaking action only involves approval of the FESOP and part 70
permitting programs, and approval of the mechanism for delegation of
programs under section 112 of the Act.
EPA is proposing several significant changes and additions to the
ACHD's existing SIP-approved installation (preconstruction) and
operating permit programs. One purpose of these proposed SIP revisions
is to make all of the ACHD's SIP-approved permit programs consistent
with one another and with the Clean Air Act. Another important purpose
of the proposed SIP revision is to allow the ACHD, upon approval, to
limit sources' PTE for the purpose of exempting certain sources from
Title V and other major source requirements of the Act.
ACHD submitted the permitting programs through the Commonwealth of
Pennsylvania, requesting the authority to issue operating permits
(Title V and FESOP) to sources of air pollutants within its
jurisdiction. The ACHD adopted the necessary regulations on October 5,
1995 and submitted a program approval request to the Commonwealth of
Pennsylvania. On November 5, 1998, the Commonwealth of Pennsylvania
submitted the program on behalf of ACHD to EPA for review. In addition,
a three-way implementation agreement (IA) between the ACHD,
Pennsylvania Department of Environmental Protection (PADEP), and the
EPA was submitted on August 9, 1999 to clarify certain procedural
issues
[[Page 68067]]
not included in the November 5, 1998 submittal. EPA found the submittal
to be administratively complete pursuant to 40 CFR 70.4(e)(1) on
February 2, 1999. EPA has concluded that the part 70 program and the
FESOP program meet all the necessary requirements of part 70 and part
52, respectively, and is proposing to grant full approval to both of
these programs. EPA has also concluded that the ACHD's program is
adequate for approving the mechanism needed to delegate section 112
programs. For more detailed information on the analysis of the ACHD's
submission, please refer to the technical support document included in
the docket at the address noted above.
Part 70 Background
Major sources of air pollutants are required under Title V of the
1990 Clean Air Act Amendments (sections 501-507 of the Act) to obtain
operating permits. EPA has promulgated rules which define the minimum
elements of an approvable state or local operating permits program and
the corresponding standards and procedures by which the EPA will
approve, oversee, and withdraw approval of operating permits programs.
See 57 FR 32250 (July 21, 1992). These rules are codified at 40 CFR
part 70. Title V requires state or local agencies to develop, and
submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources. The EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval.
EPA approved the Commonwealth of Pennsylvania's program, which
applied statewide, on August 29, 1996. As of that date, all major
stationary sources in Pennsylvania subject to Title V permitting
requirements were required to meet a one-year schedule for submitting a
Title V permit application. Today's proposed rulemaking action
addresses a request by Pennsylvania on behalf of the ACHD for approval
of a partial program under 40 CFR 70.4. This proposed rulemaking action
would allow the ACHD to carry out a Title V permitting program within
its jurisdiction. Approval of this request will not change the
obligation for sources located anywhere in Pennsylvania to meet the
initial Title V application deadlines.
Discussion of Part 70 Submittal
The ACHD's Title V permitting regulations include Article XXI
Chapters 2102, 2103, 2104, and 2109 as well as definitions in section
2101.20. EPA has determined that these regulations fully meet the
requirements of 40 CFR 70.2 and 70.3 with respect to applicability;
Secs. 70.4, 70.5, and 70.6 with respect to permit content; Sec. 70.5
with respect to complete application forms and criteria which define
insignificant activities; Sec. 70.7 with respect to public
participation and minor permit modifications; and Sec. 70.11 with
respect to requirements for enforcement authority. The technical
support document contains a detailed analysis of the ACHD's program and
describes the manner in which it meets all the operating permit program
requirements of 40 CFR part 70. However, several issues were identified
by EPA during its review of the ACHD's Title V operating permit program
which warrant a more detailed discussion and analysis. These issues are
outlined below. A discussion on fee adequacy is also included in this
section.
1. Legal Opinion
The legal opinion did not address the time frame required for
petitions for judicial review and the judicial review requirements for
failure to issue minor permits. The discussion below shows how the
ACHD's program meets these requirements.
a. Time frame for judicial review: Although the Title V regulations
do not specify the time frame for filing a petition for judicial
review, the ACHD is generally subject to ACHD Article XI, Hearings and
Appeals. In order to obtain judicial review, section 1104(a) requires
that an Appellant must first file a notice of Appeal to the Director of
the ACHD and go through an administrative hearing process. The Notice
of Appeal must be filed no later then 10 days after written notice or
issuance of the action by which the Appellant is aggrieved. This meets
the 90 day (or shorter time period) requirement for initiating judicial
review.
b. Judicial review for failure to act on minor permits: The ACHD's
program does not address judicial review for failure to issue a minor
permit modification as a separate appealable action. Section
2103.14(c)(8) clearly requires final action within 60 days for any
proposed minor permit modification. Section 2103.11(f) states that the
Department's failure to take final action (on any permit application
including modifications) is appealable and the Court of Common Pleas
may require action on the application without further delay. Therefore,
the authority exists to compel action on minor permit modifications.
2. Transition Plan
The transition plan included in section 2103.01 of the ACHD's
regulations specified deadlines for permit application submittal and
permit issuance. These dates have passed. Nonetheless, EPA previously
approved Pennsylvania's Title V program on August 29, 1996 (see 61 FR
39598) which established deadlines for permit applications that applied
state-wide. The ACHD's request to have a partial program approval does
not affect, or change in any way, the dates established in the
Commonwealth's approved program.
3. Insignificant Emission Units (IEUs)
Under Part 70, EPA may approve as part of a state program a list of
insignificant activities and emission levels which need not be included
in permit applications. The ACHD has not requested EPA approval of such
a list of insignificant activities or emission levels. However, the
ACHD's program provides for certain exemptions from the requirement to
obtain a permit that should not be confused with IEUs. These exemptions
include activities that have been historically exempt from any
permitting requirements. For any activity that the ACHD treats as an
IEU, a case-by-case determination must be made. Section 2103.10(b)(12)
incorporates by reference (IBRs) 25 PA Code section 127.14(a)(8) and
(9), and (d) as well as any future changes to these sections.
Paragraphs 127.14(a)(8) and (9) allow PADEP to determine if an emission
unit is of minor significance on a case-by-case basis. Paragraph
127.14(d) states that, in the future, PADEP may establish a list of
sources and physical changes that are of minor significance. Further,
the paragraph explains that public notice and a 30-day comment period
would be provided prior to adoption of the list. If EPA approves the
list as a revision to PADEP's part 70 program, then these units would
be considered insignificant emission units in the Commonwealth and the
County.
4. EPA 45-Day Review Period
EPA is afforded a 45-day period to review proposed permits and
permit modifications for conformity with the Act and part 70
requirements. Section 2103.21(c)(3) does not ensure that EPA will have
the opportunity for a 45 day period of pre-issuance review of permits
that are revised as a result of the public and affected state's
comments. Pursuant to sections 2103.21(c) and (e), the comment periods
for EPA and the public and affected state review
[[Page 68068]]
comment periods begin simultaneously. Because the public and affected
state comment period is only 30 days, it is theoretically possible for
the ACHD to modify and issue the proposed permit or permit modification
on the basis of comments received. Thus EPA would not have an
opportunity to review the permit (which was revised on the basis of
comments received) for 45 days prior to its issuance.
Section 2103.21(e) provides that permits will be resubmitted to EPA
if any material substantive changes have been made as a result of
comments received by the ACHD, but does not guarantee EPA a 45-day
review. Provisions defining material substantive changes are included
in the Implementation Agreement (IA) to clarify the criteria used to
determine which final permits must be provided to EPA for post-issuance
review. Further, the IA provides that EPA shall have 45-days from the
receipt of the notice of material substantive changes to object to the
permit. If a permit has been issued prior to the receipt of an EPA
objection, the IA states that the ACHD will revoke the permit within 20
days.
5. Off Permit Changes
The ACHD's use of the term ``Off Permit Change'' differs from EPA's
intended use. The ACHD's program limits these changes to de minimis
levels in section 2103.14. De minimis changes are covered under
operational flexibility changes and are not considered off-permit
changes. As written, the ACHD's program does not allow for off permit
changes. Furthermore, incorporation of provisions to make off permit
changes is optional. (40 CFR 70.4(b)(14))
6. Absence of Part 70 Emergency Defense Provisions
The ACHD has incorporated most of the record keeping and reporting
requirements required under part 70 for an emergency to be considered
an affirmative defense. However consistent with Pennsylvania's program,
the ACHD program does not allow for an emergency to be considered an
affirmative defense. EPA clarified, in its August 31, 1995,
supplemental part 70 document, that ``the part 70 rule does not require
the States to adopt the emergency defense. A State may include such a
defense in its part 70 program to the extent it finds appropriate,
although it may not adopt an emergency defense less stringent than that
set forth at 40 CFR 70.6(g).'' (60 FR 45530--45559). Thus, since the
ACHD's adoption of emergency defense provisions under part 70 is
discretionary, it is not inconsistent with Sec. 70.6(g).
7. Definition of Affected Unit
The definition of affected unit may seem less inclusive than the
definition in 40 CFR 72.2 because ACHD's definition is limited to
fossil fuel-fired sources. At this time, only sources which run on
fossil fuels are included under the Title IV acid rain requirements.
Therefore, the definition is essentially equivalent.
8. Title V Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its Title V operating
permits program. Each Title V program submittal must contain either a
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from Title V sources meet or exceed $25 per
ton of emission per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton amount is presumed, for program approval,
to be sufficient to cover all reasonable program costs and is thus
referred to as the ``presumptive minimum'' (Sec. 70.9(b)(2)(i)).
PADEP's approved fee schedule, under section 127.705 of the their
regulations, requires all Title V facilities in the Commonwealth to pay
an annual Title V emission fee of $37 per ton for each ton of a
regulated pollutant actually emitted from the facility. This amount
exceeds the $25 per ton presumptive minimum. Section 127.705 also
includes a provision that ties the amount of the fee to the CPI as
required by 40 CFR 70.9(b)(2)(iv). The $37 per ton amount was derived
by dividing the total annual estimated Title V operating permit program
cost by the total annual number of billable tons of emissions. PADEP
used actual operating hours and production rates, and considered in-
place control equipment and the types of materials processed, stored,
or combusted in calculating the total actual billable tons figure. EPA
determined, in its approval of PADEP's Title V program, that these fees
will result in collection and retention of revenues sufficient to cover
the Title V operating permit program costs statewide. ACHD's fee
requirements as outlined in section 2103.41 are consistent with PADEP's
regulations and are therefore consistent with EPA's prior approval of
the statewide fee demonstration. Furthermore, 25 PA Code 127.706 states
that PADEP may provide financial assistance to the ACHD on an annual
basis as necessary to assist implementation of the Title V program.
FESOP Program Background
Major stationary sources in Allegheny County wishing to avoid the
requirement to apply for and receive a Title V permit must obtain a
FESOP. Major sources are those sources whose emissions of air
pollutants exceed threshold emissions levels specified in various
portions of the Act. Thus, a source that has maintained actual
emissions at levels below the major source threshold could still be
subject to major source requirements if it has the potential to emit
major amounts of air pollutants. In situations where unrestricted
operation of a source would result in a PTE above major source levels,
a source may legally avoid program requirements by accepting federally
enforceable permit conditions which limit emissions to levels below the
applicable major source thresholds. As a result, the source becomes
what is commonly referred to as a ``synthetic minor'' source. Federally
enforceable permit conditions, if violated, are subject to enforcement
by EPA and by citizens in addition to the state or local agency.
On June 28, 1989, EPA published guidance on the basic requirements
for EPA approval of (non-Title V) FESOP programs. See 54 FR 27274.
Permits issued pursuant to such programs may be used to establish
federally enforceable limits on a source's potential emissions to
create ``synthetic minor'' sources. In short, the criteria require
state programs to:
(a) be approved into the SIP,
(b) impose legal obligations to conform to the permit limitations,
(c) provide for limits that are enforceable as a practical matter,
(d) issue permits through a process that provides for review and an
opportunity for comment by the public and by EPA, and
(e) ensure that there will be no relaxation of otherwise applicable
federal requirements.
The Federal Court of Appeals for the District of Columbia Circuit
vacated the definition of PTE as it pertains to both the new source
review rules and the federal operating permit rules, 40 CFR parts 51,
52, and 70. See, Chemical Manufacturers Association v. EPA, No. 89-1514
(Sept. 15, 1995) and Clean Air Implementation Project, et al v.
Browner, Civ. No. 92-1303 (June 28, 1996). Therefore, EPA also
recognizes PTE limits established by state and local permitting
authorities as being enforceable if the above criteria (b) through (e)
are met. However, future
[[Page 68069]]
rulemaking action may require that PTE limits be federally enforceable.
As part of this action, EPA is also proposing to approve the ACHD's
FESOP program pursuant to section 112(l) of the Act for the purpose of
allowing the ACHD to issue operating permits which limit source's PTE
hazardous air pollutants (HAPs). Section 112(l) of the Act provides the
underlying authority for controlling emissions of HAPs. Therefore, in
order to extend federal enforceability of the ACHD's FESOP to include
HAPs, EPA today proposes to approve the ACHD's permit program pursuant
to section 112(l) of the Act.
Discussion of FESOP Program Submittal
Subparts B and C--1 (sections 2102 and 2103.1x) of the submittal
include the requirements for the FESOP program. These subparts also
contain the ACHD's installation (or preconstruction) and operating
permit program. The proposed revision generally strengthens the SIP by
establishing a comprehensive installation and operating permit program
and by making this program consistent with the Title V operating permit
regulations codified in subpart C--2 (section 2103.2x).
On June 28, 1989, EPA amended the definition of ``federally
enforceable'' to clarify that terms and conditions contained in state-
issued operating permits are federally enforceable for purposes of
limiting a source's PTE, provided that the state's operating permits
program is approved into the SIP under section 110 of the Act as
meeting certain conditions, and provided that the permit conforms to
the requirements of the approved program. The conditions for EPA
approval discussed in the June 28, 1989 notice establish five criteria
for approving a state operating permit program. See 54 FR 27274-27286.
The following section describes each of the criteria for approval of a
state's program for the issuance of federally enforceable operating
permits for purposes of limiting a source's PTE and how the ACHD's SIP
submittal satisfies those criteria.
1. The State's Operating Permit Program (i.e., the Regulations or Other
Administrative Framework Describing how Such Permits are Issued) Must
be Submitted to and Approved by EPA as a SIP Revision.
The Commonwealth of Pennsylvania submitted the ACHD's revisions of
Article XXI to EPA for approval as a revision of its SIP on November 5,
1998. EPA is proposing to approve the ACHD's regulation (subparts B and
C.1 of Article XXI) as a program that meets the criteria for
establishing PTE limits. Thus, EPA will recognize a source's limits on
PTE for avoiding major source applicability, so long as the individual
installation or operating permit issued under the approved program
meets those same requirements.
2. The SIP Revision Must Impose a Legal Obligation That Operating
Permit Holders Adhere to the Terms and Limitations of Such Permits (or
Subsequent Revisions of the Permit Made in Accordance With the Approved
Operating Permit Program) and Provide That Permits Which do not Conform
to the Operating Permit Program Requirements and the Requirements of
EPA's Underlying Regulations may be Deemed not ``Federally
Enforceable'' by EPA.
Article XXI, section 2103.12.f.1 requires that all permits issued
(major and minor) shall include provisions that the permittee must
comply with at all times. Any permit noncompliance constitutes a
violation of Article XXI, the Pennsylvania Air Pollution Control Act,
and the Act, and is grounds for any and all enforcement actions.
Additionally, section 2103.10.c.3 makes it a violation for any person
to fail to comply with any term or condition of any permit.
3. The State Operating Permit Program Must Require That all Emission
Limitations, Controls, and Other Requirements Imposed by Such Permits
Will be at Least as Stringent as any Applicable Limitations and
Requirements Contained in the SIP, or Enforceable Under the SIP, and
that the Program may not Issue Permits that Waive, or Make less
Stringent, any Limitations or Requirements Contained in or Issued
Pursuant to the SIP, or that are Otherwise ``Federally Enforceable''
(e.g. Standards Established Under Sections 111 and 112 of the Clean Air
Act).
Article XXI, section 2103.12.a.C states that the conditions of the
permit must provide for and require compliance with all applicable
requirements. Section 2103.12.g states that all permits shall include
standard emission limit requirements, and specify the origin and
authority for each limitation. Additionally, if an alternative emission
limit is provided, section 2103.12.g(2) requires that it must be
demonstrated to be equivalent to or more stringent than the applicable
limit, and it must be quantifiable, enforceable, and based on
replicable procedures.
4. The Limitations, Controls, and Requirements of the State's Operating
Permits Must be Permanent, Quantifiable, and Otherwise Enforceable as a
Practical Matter.
Article XXI, section 2103.12.g states that along with required
emission limits and standards, the permit must include those
operational requirements and limitations that assure compliance with
all applicable requirements at the time of permit issuance. For each
emission rate and standard in a permit, associated conditions will be
included which establish a method to determine compliance, including
appropriate testing, monitoring, recordkeeping, and reporting. Section
2103.12.h.1 establishes broad authority to require the appropriate
testing, monitoring, recordkeeping, and reporting. EPA understands that
ACHD drafts all permits to be consistent with underlying local, state,
and federal rules and incorporates monthly or more frequent short term
emission limits.
5. The Permits are Issued Subject to Public Participation. This Means
that the state Agrees, as Part of its Program, to Provide EPA and the
Public with Timely Notice of the Proposal and Issuance of Such Permits,
and to Provide EPA, on a Timely Basis, With a Copy of Each Proposed (or
Draft) and Final Permit Intended to be Federally Enforceable. This
Process must also Provide for an Opportunity for Public Comment on the
Permit Applications Prior to the Issuance of the Final Permit.
Article XXI, sections 2102.05.c and 2103.11.e provide for public
notice and participation in the issuance, modifications, and renewals
of permits. Section 2102.04.h specifically lists the public notice and
participation procedures for synthetic minor permits. Section 2103.11.h
incorporates by reference the public notice requirements from 25 PA
Code 127.424, 424 and 43. Article XXI, subchapters B and C provide
thorough procedures for public participation which meet the public
participation requirements.
Definitions: EPA is also, in this rulemaking action, incorporating
by reference definitions that may be relied upon in issuing
installation and operating permits. Certain definitions such as
``actual emissions'' and ``maximum achievable control technology
(MACT)'' are not consistent with and are less stringent then 40 CFR
51.165. In such cases where the definition is not essential to this
rulemaking or this FESOP SIP revision, it will be addressed in a future
rulemaking action.
[[Page 68070]]
The following definitions are consistent with the requirements for
a FESOP program and part 70 program approval. These definitions are
proposed to be incorporated into the SIP for purposes of the FESOP
program approval and included in the part 70 program: emissions
allowable under the permit, major modification, major source, maximum
achievable control technology, and PTE. Please refer to the technical
support document for a more detailed analysis.
Limiting HAP Emissions Through FESOP: As part of this action EPA
proposes to approve, pursuant to section 112(l) of the Clean Air Act,
the ACHD's request for authority to regulate HAPs through the issuance
of a FESOP. This would grant the ACHD authority to issue permits which
limit PTE of HAPs. EPA has determined that the five approval criteria
for approving FESOP programs into the SIP, as specified in the June 28,
1989 Federal Register notice referenced above, are also appropriate for
evaluating and approving the programs under section 112(l). The June
28, 1989 document does not address HAPs because it was written prior to
the 1990 amendments to section 112 of the Act.
In addition to meeting the criteria discussed above, the ACHD's
permit program for limiting PTE of HAPs must meet the statutory
criteria for approval under section 112(l)(5) of the Act. This section
allows EPA to approve a program only if it:
(a) contains adequate authority to assure compliance with any
section 112 standard or requirement;
(b) provides for adequate resources;
(c) provides for an expeditious schedule for assuring compliance
with section 112 requirements; and
(d) is otherwise likely to satisfy the objectives of the Act.
The EPA plans to codify the approval criteria for programs limiting
the PTE of HAPs through amendments to subpart E of 40 CFR part 63, the
regulations promulgated to implement section 112(l) of the Act. See 58
FR 62262 (November 26, 1993). Given the severe timing problems posed by
impending deadlines set forth in MACT emission standards under section
112 and for issuing Title V permits, the EPA believes it is reasonable
to read section 112(l) to allow for approval of programs to limit PTE
prior to promulgation of a rule specifically addressing this issue.
EPA's conclusions are discussed in the technical support document and
will not be repeated here. EPA is proposing approval of the ACHD's
FESOP now so that they may begin to issue federally enforceable
installation and operating permits limiting PTE as soon as possible.
Provisions Implementing Other Titles of the Act for Part 70 Sources
1. Section 112: The guidance memorandum entitled ``Title V Program
Approval Criteria for section 112 Activities,'' signed by John Seitz,
Director of the Office of Air Quality Planning and Standards of April
13, 1993 discusses the legal authority needed to implement and enforce
section 112 requirements through the Title V permit as well as resource
adequacy. The ACHD's program contains this legal authority in its
enabling legislation (the Pennsylvania Air Pollution Control Act, Local
Health Administration Law, Second Class County Code, The County Local
Agency Law, and Article XI, Rules and Regulations of the ACHD) and in
regulatory provisions defining applicable requirements. The ACHD's
submittal also contained the Allegheny County Solicitor's Opinion
stating the ACHD has the legal authority to incorporate all applicable
requirements into its operating permits. The submittal also contained a
demonstration of adequate resources. Therefore the ACHD has sufficient
legal authority and resources to issue permits that assure compliance
with all section 112 requirements and to carry out all section 112
activities, including those required under section 112(g).
2. Program for Straight Delegation of Section 112 Standards: The
requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of the provisions of 40 CFR part 63 standards promulgated by EPA as
they apply to part 70 sources. Section 112(l)(5) requires that the
permitting authority's program contain adequate authorities, adequate
resources for implementation, and an expeditious compliance schedule,
which are also requirements under part 70. Therefore, EPA is also
proposing to grant approval, under section 112(l)(5) and 40 CFR 63.91,
of the state's program for receiving delegation of section 112
standards that are unchanged from the federal standards as promulgated.
3. Program for Implementing Title IV of the Act: The ACHD's program
IBRs 40 CFR parts 72 through 78, which contain the Federal acid rain
requirements. The program contains adequate authority to issue permits
which reflect the requirements of Title IV of the Act.
Proposed Action
EPA is proposing full approval of a Title V Operating Permits
Program for Allegheny County, as submitted by Pennsylvania on November
5, 1998. The ACHD has demonstrated that the program will be adequate to
meet the minimum elements of a partial operating permits program as
specified in 40 CFR part 70. The scope of the ACHD's program that EPA
proposes to approve in this notice would apply to all Title V
facilities (as defined in the approved program) within the County. EPA
is also proposing approval of the ACHD's FESOP program submitted on
November 5, 1998 as a SIP revisions under section 110 of the Act. EPA
has determined that the program fully meets the requirements of EPA's
June 28, 1989 criteria for FESOP programs. This approval recognizes
ACHD's FESOP program as capable of establishing federally enforceable
limitations on criteria pollutants and hazardous air pollutants.
Further, such actions will confer federal enforceability status to
permits issued pursuant to ACHD's part C Operating Permit Program prior
to EPA's final action so long as the requirements for federal
enforceability have been met. Finally, EPA is also proposing to grant
approval under section 112(l)(5) and 40 CFR 63.91 of the ACHD's
mechanism for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated. EPA also proposes
to approve, pursuant to section 112(l) of the Clean Air Act, the ACHD's
request for authority to regulate HAPs through the issuance of
federally enforceable state installation and operating permits.
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the Addresses section of
this document.
Administrative Requirements
A. Executive Orders 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental
[[Page 68071]]
Partnership). Executive Order 13132 requires EPA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act.'' Thus, the requirements of section 6 of the Executive Order
do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that the EPA determines (1) is
``economically significant,'' as defined under Executive Order 12866,
and (2) the environmental health or safety risk addressed by the rule
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it does not
involve decisions intended to mitigate environmental health and safety
risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects 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.'' Today's 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.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of a flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
F. 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 proposed approval action for the ACHD's
two permitting programs 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 requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 29, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 99-31542 Filed 12-3-99; 8:45 am]
BILLING CODE 6560-50-P
