[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Proposed Rules]
[Pages 6184-6189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3584]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[FRL-5423-8]
Request for Approval of Section 112(l) Delegated Authority;
Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval and delegation.
-----------------------------------------------------------------------
SUMMARY: EPA invites public comment on today's proposal to approve the
state of Washington Department of Ecology (Ecology) request for
delegation of authority to implement and enforce state-adopted
hazardous air pollutant regulations which adopt by reference the
federal National Emission Standards for Hazardous Air Pollutants
(NESHAP) contained within 40 CFR Parts 61 and 63. EPA as well invites
public comment on its proposal to approve specific rules submitted to
EPA by Ecology in order to recognize conditions and limitations
established pursuant to these rules as federally enforceable. These
adopted regulations would be implemented and enforced by both Ecology
and the seven local air authorities (The Benton County Clean Air
Authority (BCCAA), the Northwest Air Pollution Authority (NWAPA), the
Olympic Air Pollution Control Authority (OAPCA), the Puget Sound Air
Pollution Control Agency (PSAPCA), the Southwest Air Pollution Control
Authority (SWAPCA), the Spokane County Air Pollution Control Authority
(SCAPCA), and the Yakima County Clean Air Authority (YCCAA);
collectively referred to as ``the Washington permitting authorities'')
within the state of Washington.
DATES: All comments on this submittal must be received by the close of
business on March 18, 1996.
ADDRESSES: Copies of this submittal are available for inspection and
copying during normal business hours at the following addresses: U.S.
EPA Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101, and the
State of Washington Department of Ecology, 300 Desmond Drive, Lacey,
Washington, 98504. Written comments should be addressed to: Chris Hall,
U.S. EPA Region 10, 1200 Sixth Avenue (AT-082), Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Chris Hall at 206-553-1949.
[[Page 6185]]
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the amended Clean Air Act of 1990 (``the Act'')
established new, more stringent requirements upon a state or local
agency who wish to implement and enforce an air toxics program pursuant
to section 112 of the Act. Prior to November 15, 1990, delegation of
the federal NESHAP regulations to the State and Local agencies occurred
without formal rulemaking by EPA. The new section 112(l) of the Act
requires EPA to approve state and local toxics rules and programs under
this authority, through formal notice and comment rulemaking. Now,
State and Local air agencies who wish to implement and enforce a
federally-approved air toxic program must make a showing to EPA that
they have adequate legal authorities and adequate resources to
implement and enforce the delegated NESHAP regulations. Approval is
granted by the EPA through the authority contained in section 112(l),
and implemented through the federal rule found at 40 CFR Part 63,
subpart E, if the Agency finds that: (1) The State program or rule is
``no less stringent'' than the corresponding federal rule or program,
(2) adequate authority and resources exist to implement the State or
Local program, (3) the schedule for implementation and compliance is
sufficiently expeditious, and (4) the State or Local program is
otherwise in compliance with federal guidance.
II. Discussion of the Washington 112(l) Submittal
On January 5, 1995 (as supplemented on May 8, 1995, October 18,
1995, and January 9, 1996), the Washington permitting authorities
submitted to EPA an application requesting delegation of authority to
implement and enforce specific 40 CFR Part 61 and Part 63 NESHAP
regulations adopted into Washington state and local law [Washington
Administrative Codes (WAC) Chapter 173, Division 400, Section 075, as
in effect on February 16, 1993; NWAPA Regulation 104.2 as in effect
December 8, 1993; PSAPCA Regulation III, Section 2.02 as in effect on
October 19, 1995; SWAPCA Regulation 400-075 as in effect on February 1,
1995; and YCCAA Section 12.02 of the Restated Regulation I, as in
effect on September 14, 1994].
Contained within the Washington permitting authorities' section
112(l) application are the following documents: a written finding by
the State Attorney General and the independent legal counsel for the
seven local air authorities stating that the Washington permitting
authorities have the legal authority to implement and enforce their
state and locally-adopted regulations as well as assure compliance by
all sources within their respective jurisdiction; a copy of the
relevant state and local regulations, which contain the fully-adopted
NESHAP regulations which are to be substituted for the federal NESHAP
regulations upon approval, and which contain the permitting
requirements for each source subject to them, including the State
regulatory order regulations and the State new source review
regulations; and complete program descriptions for both Ecology and the
seven local air authorities. The full program submittal is available
for review for more detailed information.
A. Emission Standards for Hazardous Air Pollutants
Pursuant to 40 CFR 63.91, the Washington permitting authorities are
seeking delegated federal authority to implement and enforce 40 CFR
Part 61; subparts A, C through F, J, L through P, V, Y, BB, and FF, as
adopted into state and local law. EPA has previously delegated
authority for 40 CFR Part 61 subparts H and I to the state of
Washington Department of Health (see 60 FR 39263, August 2, 1995,
``Interim approval of Delegation Authority; National Emission Standards
for Hazardous Air Pollutants; Radionuclides; Washington'').
Three local air agencies, NWAPA, PSAPCA, and SWAPCA are also
requesting delegated authority to implement and enforce specific 40 CFR
Part 63 NESHAP regulations adopted into local law (see section IV.A
which lists the specific 40 CFR Part 63 regulations adopted by these
agencies).
B. Voluntary Limits on Emissions
The Washington permitting authorities are also requesting federal
approval of specific regulations adopted into state and local law (WAC
173-400-091, 110, 112, 113, and 114, WAC 173-460; NWAPA sections 300
through 303; OAPCA Regulation 1, Article 7; PSAPCA Regulation I,
Article 6, and Regulation III, Appendix A; SCAPCA Regulation I, Article
II and V; SWAPCA 400-090, -110, -112, -113, and -114; and, YCCAA
Restated Regulation I, Sections 4.02 and 12.01) which would allow the
Washington permitting authorities to establish federally-enforceable
emission limitations by permit for the purpose of limiting a source's
potential to emit hazardous air pollutants (HAP) below major source
thresholds. On May 8, 1995, the Washington permitting authorities
withdrew their request for EPA approval of WAC 173-460 as a federally-
enforceable regulation for limiting a source's potential to emit HAP,
therefore EPA will not be proposing to take any action in regard to
this rule. Additionally, since EPA has previously approved the
provisions of WAC 173-400-091 as a mechanism for limiting a sources
potential to emit HAP under the authority of section 112(l), it is not
necessary to take any further action in regard to this rule (see 60 FR
28726, June 2, 1995, ``Approval and Promulgation of State
Implementation Plans: Washington Approval of Section 112(l) Authority;
Operating Permits; Washington'').
If approved, these state and local potential-to-emit (PTE)
regulations (including WAC 173-400-091 which has already been approved
under section 112(l)) would provide the mechanism for the owner or
operator of a source to apply for and obtain federally-enforceable
conditions that would limit their potential to emit HAP. Such
limitations would be contained in a permit issued by Ecology or one of
the seven local air authorities, after public notice and an opportunity
for comment, and would include monitoring, recordkeeping and reporting
requirements sufficient to ensure that the source complies with these
limitations. As mentioned previously, if approved, limits established
pursuant to these regulations would be considered federally-
enforceable, providing the Washington permitting authorities with the
ability to set limits which would be sufficient to exempt a source from
the requirement to obtain a WAC 173-401 issued operating permit and/or
comply with federal, state or local hazardous air pollutant
regulations. Approval under section 112(l) is necessary because the
Washington SIP-approved rules extends solely to the control of criteria
pollutants. Federally-enforceable limits on criteria pollutants (i.e.,
volatile organic compounds or particulate matter) may have the
incidental effect of limiting emissions for the majority of the HAPs
listed pursuant to section 112(b), however, section 112 of the Act
provides the underlying authority for establishing federally-
enforceable limits for all HAP emissions.
C. Section 112(g)
As part of their original delegation request the Washington
permitting authorities requested approval for specific state and
locally-adopted regulations for the purpose of implementing section
112(g) of the Act (WAC 173-400-110, -112, -113, and
[[Page 6186]]
-114, and WAC 173-460; NWAPA Regulations sections 300 through 303;
OAPCA Regulation 1, Article 7; and PSAPCA Regulation I, Article 6, and
Regulation III, Appendix A). On May 8, 1995, the Washington permitting
authorities officially withdrew their request for approval of these
rules for the purposes of implementing section 112(g); therefore EPA
will not be taking any action in regard to section 112(g).
III. Authority and Commitments for Section 112 Implementation
Under 40 CFR 63.91 the minimum documentation needed to be provided
to EPA for a straight delegation request are: (1) A written finding by
the State attorney general (and the independent legal counsel for the
Local air authorities) confirming that the State (Local) has adequate
legal authorities to implement and enforce the State (Local) rule(s) or
program(s); (2) copies of the State and/or Local statutes, regulations
and other documents which contain the appropriate provisions for which
the State and/or Local are requesting delegation; (3) a demonstration
of adequate resources to implement and enforce all aspects of the
delegated rules or program; (4) a schedule demonstrating expeditious
implementation of the delegated rules or program; (5) a plan that
assures expeditious compliance by all sources; and, (6) a demonstration
of adequate legal authority to implement and enforce all delegated
rules or program and to assure compliance by all sources upon approval.
A. Written Findings by Legal Counsel
40 CFR 63.91 (b)(1) and (b)(6) requires that at a minimum a state
and/or local agency requesting section 112(l) delegation have the
following authorities: (1) Enforcement authorities that meet the
requirements of 40 CFR 70.11 of this chapter; (2) authority to request
information from regulated sources regarding their compliance status;
(3) authority to inspect sources and any records required to determine
a source's compliance status; and (4) if the State delegates
authorities to a Local agency, the state must retain enforcement
authority unless the Local agency's authorities meet the requirements
of 40 CFR 70.11 of this chapter.
The Washington permitting authorities have provided to EPA legal
opinions from both the Washington state Attorney General's office and
the independent legal counsel for the seven local air authorities which
clearly outline their enforcement authorities as they pertain to the
requirements of 40 CFR 63.91(b)(1) and (b)(6). EPA has previously
reviewed Washington's civil and criminal enforcement authorities
contained in the Revised Code of Washington (RCW) where EPA determined
that the authorities in RCW 70.94.430 do not fully meet the
requirements of 40 CFR 70.11 and therefore 40 CFR 63.91 (see 59 FR
42552, August 18, 1994, for a detailed explanation of this issue).
However, although EPA believes that Washington's criminal authorities
do not fully meet 40 CFR 70.11 requirements, EPA has granted a two-year
interim approval of the Washington permitting authorities 40 CFR Part
70 operating permit programs, effective December 9, 1994, thereby
allowing the state of Washington until December 9, 1996, to correct
their statutory deficiencies.
The Washington permitting authorities would implement and enforce
the delegated federal regulations throughout the State of Washington
under the authority of RCW 70.94. RCW 70.94.331(3) gives the seven
local air authorities authority to implement and enforce WAC 173-400
and -401, or adopt their own more stringent rules.
B. Copies of State Statutes and Regulations
Complete copies of WAC 173-400, WAC 173-401, and RCW 70.94; BCCAA
regulation 1, NWAPA sections 104, 200, 300-303, 320-324, and 326; OAPCA
regulation 1, article 7; PSAPCA regulation I-III; SCAPCA regulation I,
article II and V; SWAPCA 400 and 401; and YCCAA regulation I sections
4.02, 12.01 and 12.02; have been provided to EPA as required by 40 CFR
63.91(b)(2). In addition, OAPCA Regulation I, Article 5 was provided to
EPA with the Washington permitting authorities Title V application
submittal.
C. Demonstration of Adequate Resources
40 CFR 63.91(b)(3) requires the State and Local to provide for
adequate resources to implement and enforce all aspects of the
delegated program or rule. Specifically, 40 CFR 63.91(b)(3) requires a
State to provide: (1) A description in narrative form of the scope,
structure, coverage, and processes of the State program; (2) a
description of the organization and structure of the agency or agencies
that will have responsibility for administering the program; and (3) a
description of the agency staff who will carry out the State program,
including the number, occupation, and general duties of the employees.
EPA believes the Washington permitting authorities have taken the
necessary steps to provide for adequate resources to support
implementation and enforcement of the respective HAP programs which are
at least as stringent as the 40 CFR 63.91(b)(3) requirements. The
recently adopted regulations cited in section III.B. provide the
regulatory framework for administering the respective HAP programs. The
stringency requirement of 40 CFR 63.91(b)(1) is met because the
relevant Washington state and local regulations adopt by reference all
the 40 CFR Part 61 and Part 63 NESHAP regulations being requested for
delegation. Therefore, if approved, the Washington permitting
authorities' air toxics programs would cover the same sources and the
same pollutants which are presently being covered under the federal
Part 61 NESHAP regulations.
Further, on November 9, 1994, EPA granted interim approval to the
Washington permitting authorities operating permit programs, where EPA
found that Washington substantially possesses adequate resources to
implement and enforce their statewide operating permit program (see 59
FR 42552, August 18, 1994, and 59 FR 55813, November 9, 1994, for
further discussion regarding the interim approval of state of
Washington Part 70 operating permit programs, which includes discussion
of adequate resources).
Program costs for major sources subject to the state-adopted NESHAP
regulation would be funded through four separate fee programs: annual
operating permit fees; new source review fees; source registration
fees; and RACT determination fees. EPA believes that these four program
fee collection mechanisms will be adequate to cover the costs of
implementing and enforcing the federal NESHAP regulations proposed for
delegation. The EPA plans to continually monitor the implementation of
the respective HAP programs for each of the Washington permitting
authorities to ensure that adequate resources are in fact available.
D. Demonstration of Expeditious Implementation of 40 CFR Part 61
Requirements
40 CFR 63.91(b)(4) requires the state or local authority to
demonstrate that they can expeditiously implement each delegated NESHAP
regulation or program upon approval. EPA believes that the Washington
permitting authorities' statutory and regulatory authorities are more
than adequate to expeditiously implement these 40 CFR Parts 61 and 63
regulations which they have adopted into state and local law to date.
RCW 70.94 provides the
[[Page 6187]]
Washington permitting authorities with the broad legal authority to
implement and enforce all federal NESHAP regulations adopted into state
or local law or included in a state or locally-issued operating permit
issued pursuant to WAC 173-401. The Washington permitting authorities
would adopt, implement and enforce all new and amended NESHAP
regulations through their respective HAP programs. Operating permits
will be issued to all major NESHAP sources, where each permit will
contain all federal, state, and local air pollution control
requirements applicable to that source, including all NESHAP
requirements. By law, the Washington permitting authorities are to have
issued operating permits to all existing major sources by December 9,
1997, three years from the date of EPA approval of the WAC 173-401
operating permit program. New major sources will be issued an operating
permit at startup.
E. Demonstration of Expeditious Compliance by Sources Subject to 40 CFR
Part 61 Requirements
The EPA believes that the HAP program regulations for each of the
Washington permitting authorities provide for an expeditious schedule
for assuring that sources are in compliance with the NESHAP regulations
as required by 40 CFR 63.91(b)(5). The Washington permitting
authorities have demonstrated to EPA that they indeed have the
resources and authority to assure compliance for all major sources
covered under WAC 173-400 and WAC 173-401 (or equivalent local
regulation), which includes those sources that are subject to the
federal NESHAP regulations. Nothing in Washington state or local
regulations would allow a source to avoid or delay compliance with any
CAA requirement beyond the date required by the federal NESHAP
regulations.
The framework for the Washington permitting authorities compliance
and enforcement programs are outlined in the State/EPA ``Compliance
Assurance Agreement'' (included in Washington's Title V program
submittal). The Washington permitting authorities' compliance programs
will be run through the WAC 173-401 operating permit program (or
equivalent local program), in which sources are required by federal,
state, and local law to comply with all conditions and requirements of
the operating permit upon issuance.
IV. Programs for Proposed Approval and Disapproval
A. 40 CFR Part 61 and Part 63 NESHAP Regulations
With this notice EPA proposes to grant interim approval to the
state of Washington Department of Ecology's January 5, 1995, request
for delegated authority to implement and enforce 40 CFR Part 61,
subparts A, C through F, J, L through P, V, Y, BB, and FF, as adopted
into WAC 173-400, NWAPA Section 104.2, PSAPCA Regulation III Section
2.02, SWAPCA 400 Section 075, and YCCAA Regulation I Section 12.02, as
these rules apply to Part 70 sources (i.e., those major sources which
will be issued a Title V operating permit). EPA is also proposing to
grant interim approval to the NWAPA, PSAPCA, and SWAPCA request for
delegated authority to implement and enforce the locally-adopted 40 CFR
Part 63 NESHAP regulation as these rules apply to Part 70 sources only
(NWAPA regulation 104.2 which adopts by reference 40 CFR Part 63
subparts A through D, F through I, L, M, and Q, as amended on October
19, 1994; PSAPCA Regulation III, Section 2.02 as in effect on October
19, 1995, which adopts by reference all 40 CFR Part 63 NESHAP
regulations in effect as of July 1, 1995; and, SWAPCA regulation 400-
075 as in effect on February 1, 1995, which adopts by reference 40 CFR
Part 63 subparts A, B, D, F-I, L-O, R, Q, T, and EE).
It is EPA's belief that the Washington permitting authorities'
request for delegation substantially meets the requirements of 40 CFR
63.91. However, since EPA has determined that Washington's criminal
authorities under RCW 70.94.430 do not meet the stringency requirement
of 40 CFR 70.11, EPA is therefore only proposing to grant interim
approval to the Washington permitting authorities' request for
delegated authority. This interim delegation of authority would apply
to all of the state-adopted NESHAP regulations being requested for
delegation by the Washington permitting authorities, but only as these
regulations apply to Part 70 sources. EPA will retain implementation
and enforcement authority for these rules as they apply to non-Part 70
sources during the interim period until such time as the Washington
permitting authorities demonstrate that their criminal authorities meet
EPA requirements.
Interim delegation has been deemed by EPA to be an acceptable
delegation option for states who substantially, but do not fully meet
the stringency requirements of 40 CFR 63.91 (see December 10, 1993,
John Seitz memo ``Straight Delegation Issues Concerning Sections 111
and 112 Requirements and Title V''). In this respect EPA is allowing
the Washington permitting authorities the opportunity to amend their
state regulations within a specified timeframe while at the same time
delegating federal authority to allow them to implement and enforce the
federal NESHAP regulations as adopted into state law.
Finally, this delegation of authority to implement and enforce the
federal NESHAP regulations would only extend until December 9, 1996,
which coincides with the end of the interim delegation period for the
Washington permitting authorities Part 70 operating permit program. EPA
will not extend this interim delegation past December 9, 1996.
B. Voluntary Limits on HAP Emissions
EPA is also proposing to approve WAC 173-400-091, 110, 112, 113,
and 114; NWAPA sections 300 through 303; OAPCA Regulation 1, Article 7;
PSAPCA Regulation I, Article 6, and Regulation III, Appendix A; SCAPCA
Regulation I, Article II and V; SWAPCA 400-090, -110, -112, -113, and -
114; and, YCCAA Restated Regulation I, Sections 4.02 and 12.01, under
the authority of section 112(l) of the Act in order to recognize these
regulations as federally-enforceable for purposes of establishing PTE
limitations. Approval of these regulations would provide the Washington
permitting authorities the ability to create federally-enforceable
emission limits by order for those sources which have the potential to
emit HAPs above major threshold levels but have actual HAP emissions
which are below major source levels (thereby becoming a ``synthetic
area source'').
The EPA plans to codify the approval criteria for synthetic area
source programs through amendments to subpart E of 40 CFR Part 63, the
regulations promulgated to implement section 112(l) of the Act. The EPA
believes it has authority under section 112(l) to approve programs
which limit potential to emit HAP prior to this revision to subpart E.
The EPA is proposing approval of the Washington permitting authorities'
synthetic area source program regulations now so that they may begin to
issue federally-enforceable permits as soon as possible. EPA believes
it is consistent with the intent of section 112 and the Act for states
to provide a mechanism through which sources may avoid classification
as a major source by obtaining a
[[Page 6188]]
federally-enforceable limit on their potential to emit HAP.
EPA, as well, believes that the five approval criteria for
approving state operating permit programs into the SIP, as specified in
the June 28, 1989 Federal Register notice, are also appropriate for
evaluating and approving state synthetic area source programs under
section 112(l) of the Act. The June 28, 1989 notice does not address
HAP because it was written prior to the 1990 amendments to section 112,
not because it establishes requirements unique to criteria pollutants.
The EPA currently anticipates that the regulatory criteria to be set
forth in the revisions to 40 CFR part 63, subpart E rule, as they apply
to state synthetic area source permit programs, will mirror those set
forth in the June 28, 1989 Federal Register notice.
Therefore, EPA proposes to approve the Washington permitting
authorities' state and locally-adopted PTE regulations under the
authority of section 112(l) of the Act. Furthermore, EPA proposes that
after final approval of this section, synthetic area source permits
issued pursuant to these regulations (including terms and conditions
for HAPs contained therein) would be enforceable by EPA and by citizens
under section 304 of the Act regardless of whether such permits were
issued prior to EPA approval of these regulations. However, such
permits would have to have been issued after the effective date of the
applicable state or local regulation and in accordance with the
provisions set forth within such regulation. Additionally, the EPA
believes that since state new source review permit programs approved
pursuant to section 112(l) prior to the planned subpart E revisions
will have been approved as meeting these criteria, further approval
actions for those programs will also not be necessary.
C. Requirements for ``Full'' Approval
It is EPA's position that the state of Washington criminal
enforcement authorities do not meet the requirements of 40 CFR
63.91(b)(1) and (b)(6). In order for the Washington permitting
authorities to receive full delegation of authority for the NESHAP
regulations requested they need to demonstrate to EPA that their
criminal enforcement authorities are consistent with the enforcement
requirements of 40 CFR 70.11(a), and therefore 40 CFR 63.91(b)(1) and
(b)(6). Specifically the state of Washington will need to:
(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.
Though EPA is proposing interim delegation of authority to enforce
the NESHAP regulations to the Washington permitting authorities, it is
important to note that EPA retains oversight authority for sources
subject to these federal CAA requirements. EPA has the authority and
responsibility to enforce the federal regulations in those situations
where the State or Local does not have sufficient authority to file
criminal charges against a facility. Therefore, even though EPA
believes that the Washington permitting authorities' criminal
authorities are not fully adequate, EPA believes that Ecology and the
seven local air authorities, in conjunction with EPA, can provide for
adequate enforcement of the federal NESHAP regulations.
D. Typographical Error
EPA has noted an error in a cross-reference to a regulation in
support of the Washington permitting authorities' request for approval
of their PTE regulations. EPA is assuming that the reference in WAC
173-400-171(i) to WAC 173-400-090 meant to reference WAC 173-400-091.
V. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of today's proposed
interim approval. Copies of the state of Washington submittal and other
information relied upon for this action are contained in a docket
maintained at the EPA Regional Office. The docket is a file of
information submitted to, or otherwise considered by, EPA in the
development of this proposed rulemaking. The principal purposes of the
docket are: (1) To allow interested parties a means to identify and
locate documents so that they can effectively participate in the
rulemaking process, and (2) to serve as the record in case of judicial
review. The EPA will consider any comments received by March 18, 1996.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
NESHAP rule or program delegations approved under the authority of
section 112(l) of the Act do not create any new requirements, but
simply confer federal authority for those requirements that the state
of Washington is already imposing. Therefore, because section 112
delegation approvals do not impose any new requirements, I certify that
it would not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of the State action.
The Act forbids EPA to base its actions concerning State programs on
such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(S. Ct 1976); 42 U.S.C. 7410(a)(2).
If EPA's final action is a disapproval, it will not affect any
existing State requirements applicable to small entities. Federal
disapproval of the state of Washington submittal does not affect its
State-enforceability. Moreover, EPA's disapproval of the submittal does
not impose a new federal requirement. Therefore, EPA certifies that any
final disapproval action would not have a significant impact on a
substantial number of small entities because it does not remove
existing State requirements nor does it substitute a new federal
requirement.
D. Unfunded Mandates Reform Act
EPA has determined that the proposed approval action promulgated
today does not include a federal mandate that may result in estimated
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,
[[Page 6189]]
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.
VI. Summary of Action
Pursuant to the authority of section 112(l) of the Act EPA is
soliciting public comment on today's proposal to delegate in the
interim the authority to implement and enforce specific federal NESHAP
regulations which have been adopted into Washington state law.
Additionally, EPA is proposing to approve specific state and local air
regulations for the purpose of conferring federal enforceability to PTE
permits or orders issued pursuant to these regulations.
Interested parties are invited to comment on all aspects of this
proposed rule. Comments should be submitted in triplicate, to the
address listed in the front of this Notice. Public comments postmarked
by March 18, 1996, will be considered in the final rulemaking action
taken by EPA. Issues raised by those comments will be carefully
reviewed and considered in the decision to approve or disapprove the
submittal. The EPA expects to make a final decision on whether or not
to approve the Washington submittal within 30 days after the close of
the public comment period. EPA will give notice of this decision in a
final Federal Register rulemaking. The notice will include a summary of
the reasons for the final determination and a response to all major
comments.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 6, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-3584 Filed 2-15-96; 8:45 am]
BILLING CODE 6560-50-P
