00-4653. Approval of the Clean Air Act, Section 112(l), Delegation of Authority to Three Local Air Agencies in Washington; Amendment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; amendment.

SUMMARY:

This action provides an amendment to Federal Register actions published on December 1, 1998, and April 22, 1999, that granted Clean Air Act, Section 112(l), delegation of authority for three local air agencies in Washington to implement and enforce specific federal National Emission Standards for the Hazardous Air Pollutants (NESHAP) regulations which have been adopted into local law. The three local air agencies are: the Northwest Air Pollution Authority, the Puget Sound Clean Air Agency, and the Southwest Air Pollution Control Agency. This action amends the tables outlining these three local agencies' current delegation status.

DATES:

This amendment is effective on February 28, 2000.

ADDRESSES:

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:

Catherine Woo, US EPA, Region X (OAQ-107), 1200 Sixth Avenue, Seattle, WA, 98101, [phone].

SUPPLEMENTARY INFORMATION:

I Administrative Requirements

Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore, not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not require prior consultation with state, local, and tribal government officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), entitled “Protection of Children from Environmental Health Risks and Safety Risks,” because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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).

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 April 28, 2000. 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)).

II Clarification

What Action Is EPA Taking Today?

EPA is publishing this notice to inform the public that EPA has approved the Washington Department of Ecology's (Ecology) updated delegation requests on behalf of the Northwest Air Pollution Authority (NWAPA), the Puget Sound Clean Air Agency (Puget Sound Clean Air),^[1] and the Southwest Air Pollution Control Agency (SWAPCA), to implement certain 40 CFR parts 61 and 63 National Emission Standards for Hazardous Air Pollutants (NESHAP). This action also provides an amendment to Federal Register actions published on December 1, 1998 (see 63 FR 66054) and April 22, 1999 (see 64 FR 19719), that granted Clean Air Act, Section 112(l), delegation of authority for these three local air agencies in Washington to implement and enforce specific 40 CFR parts 61 and 63 federal NESHAP regulations which have been adopted into local law. Specifically, this action amends 40 CFR 61.04 and 63.99 by revising the tables outlining these three local agencies' current delegation status.

Which 40 CFR Parts 61 and 63 Subparts Are Now Delegated?

With this updated delegation, NWAPA, Puget Sound Clean Air, and SWAPCA now have the authority to implement and enforce 40 CFR parts 61 and 63 NESHAPs in effect as of July 1, 1999 (NWAPA and Puget Sound Clean Air), or August 1, 1998 (SWAPCA). This update includes any revisions to previously delegated 40 CFR parts 61 and 63 standards, and any new NESHAPs. At the end of this rule is an updated delegation table reflecting this approval and identifying the delegated standards. Please note that EPA has withheld delegation of several subparts as explained below.

Which Requested Subparts Did EPA Not Delegate to These Three Agencies?

EPA decided not to delegate to these three agencies any 40 CFR part 61 subparts pertaining to radon or radionuclides. Typically, EPA delegates all standards adopted (and requested) by an air agency and in effect as of a certain date, regardless of whether or not there are any applicable sources within that agency's jurisdiction. As an exception, EPA decided not to delegate any 40 CFR part 61 NESHAPs pertaining to radon or radionuclides (subparts B, H, I, K, Q, R, T, and W). EPA determined that it is not necessary to delegate these standards to NWAPA, Puget Sound Clean Air, and SWAPCA for the following reasons: (1) There are no radon sources in any of these three locals' jurisdictions and only one radionuclide source, as explained below; (2) It is highly unlikely that any new radon or radionuclide sources will emerge; and (3) The Washington Department of Health has the expertise and authority to implement radionuclide standards (subparts H and I) for the State of Washington. For the one radionuclide source within Puget Sound Clean Air's jurisdiction, the agency currently has a Memorandum of Understanding for the Washington Department of Health to regulate that facility.

EPA also did not delegate 40 CFR part 63, subpart LL (Primary Aluminum) and subpart S (Pulp & Paper), as it pertains to kraft and sulfite pulping mills. EPA cannot delegate all or part of these subparts, respectively, to these three locals because Ecology retains the sole authority for regulating these particular industries in the State of Washington. The Revised Code of Washington (RCW) 70.94.395 gives Ecology the authority to regulate a particular class of air contaminant sources on a state-wide basis. Ecology has enacted that authority in the Washington Administrative Code Chapters 173-405-012, 173-410-012, and 173-415-012 to regulate Kraft Pulping Mills, Sulfite Pulping Mills and Primary Aluminum Plants, respectively, on a state-wide basis. Because of these regulations, NWAPA, Puget Sound Clean Air, and SWAPCA cannot regulate primary aluminum facilities and kraft and sulfite pulping mills. Therefore, EPA is unable to delegate 40 CFR part 63, subpart LL (Primary Aluminum), and part of subpart S (Pulp & Paper). Since 40 CFR part 63, subpart S is applicable to more facilities and processes than kraft and sulfite pulping mills, EPA did delegate subpart S as it applies to all applicable facilities, as defined in 40 CFR 63.440, except kraft and sulfite pulping mills. Please note that EPA had originally delegated both subpart S and LL to Puget Sound Clean Air in a letter dated March 19, 1999, granting updated delegation (see 64 FR 19719, April 22, 1999), but this current updated delegation now supercedes the March 19, 1999, delegation.

What Is the Delegation Process to Local Agencies in Washington?

Local agencies in Washington submit delegation requests to Ecology and ask that Ecology forward those requests to EPA. Consistent with Ecology's interpretation of RCW 70.94.860, Ecology must first accept delegation of a program on behalf of the local agency and then redelegate the program to that agency. Ecology's Delegation Orders outline this redelegation process for each delegation, and are signed by both Ecology and the local agency. As described in the orders, the effective date of the orders is the same as the effective date of EPA's delegation action. Therefore, the delegation to local agencies via Ecology causes no delay.

When Did These Agencies Previously Receive Delegation?

On December 1, 1998, EPA promulgated direct final approval of Ecology's request, on behalf of NWAPA, Puget Sound Clean Air, and SWAPCA for program approval and delegation of authority to implement and enforce specific 40 CFR parts 61 and 63 federal NESHAP regulations which have been adopted into local law (as they apply to both part 70 and non-part 70 sources). That delegation was effective on February 1, 1999. Additionally, on April 22, 1999, EPA published an amendment to the December 1, 1998, direct final rule. This amendment revised Puget Sound Clean Air's current delegation status based on a delegation update that was effective on March 29, 1999. Since the February 1, 1999, effective date of the program approval and delegation for NWAPA and SWAPCA and since the March 29, 1999, effective date for the updated delegation for Puget Sound Clean Air, Ecology has submitted updated delegation requests on behalf of each of these three agencies.

When Did Ecology Submit the Updated Delegation Requests on Behalf of NWAPA, Puget Sound Clean Air and SWAPCA?

On November 24, 1999, Ecology submitted a request on behalf of NWAPA for updated delegation of those NESHAPs in 40 CFR Parts 61 and 63 in effect on July 1, 1999. These new and revised standards have been adopted unchanged into NWAPA Regulation Section 104.2 (as amended on November 12, 1999). In a letter dated November 8, 1999, Ecology submitted a request on behalf of Puget Sound Clean Air for updated delegation of those NESHAPs in 40 CFR parts 61 and 63 in effect on July 1, 1999. These new and revised standards have been adopted unchanged into PSCAA Regulation III, Section 2.02 (as amended on September 9, 1999). Ecology also submitted a request dated November 4, 1999, on behalf of SWAPCA for updated delegation of those NESHAPs in 40 CFR parts 61 and 63 in effect on August 1, 1998. These new and revised standards have been adopted unchanged into SWAPCA 400-075 (as amended on April 11, 1999).

Ecology also submitted copies of its Delegation Orders for each local agency for this updated delegation. Ecology signed the orders for Puget Sound Clean Air and SWAPCA on November 18, 1999. Puget Sound Clean Air signed the orders on October 27, 1999, while SWAPCA signed them on October 20, 1999. Ecology signed the orders for NWAPA on November 23, 1999, and NWAPA signed them on November 19, 1999.

When Did EPA Approve the Updated Delegation Request?

Consistent with the approved mechanism for streamlined delegation (see page 66057, 63 FR 66054, December 1, 1998) and with Ecology's interpretation of RCW 70.94.860, EPA granted these updated delegation requests to Ecology for purposes of redelegating to NWAPA, Puget Sound Clean Air, and SWAPCA, in a letter to Ecology dated January 25, 2000. The effective date of that letter and the updated delegation was February 4, 2000. As described in Ecology's delegation orders, the effective date of the redelegation to the three locals is the same as the effective date of the updated delegation. Therefore, the delegation to these agencies via Ecology caused no delay in this delegation to NWAPA, Puget Sound Clean Air, and SWAPCA.

Where Should Sources Send Notifications and Reports?

NWAPA, Puget Sound Clean Air, and SWAPCA are now the primary point of contact with respect to these delegated NESHAPs. Pursuant to 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA waived the requirement that notifications and reports for delegated standards be submitted to EPA in addition to these agencies. Therefore, sources within NWAPA, Puget Sound Clean Air, or SWAPCA's jurisdiction should send notifications and reports for delegated NESHAPs directly to NWAPA, Puget Sound Clean Air, or SWAPCA, and do not need to send a copy to EPA.

How Does This Delegation Affect Facilities in Indian Country?

This updated delegation for NWAPA, Puget Sound Clean Air, and SWAPCA to implement and enforce NESHAPs does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151, except for those non-trust lands within the boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies, such as Puget Sound Clean Air, authority over activities on non-trust lands within the 1873 Survey Area. Therefore, Puget Sound Clean Air will implement and enforce the NESHAPs on these non-trust lands within the 1873 Survey Area. EPA will continue to implement the NESHAPs in all other Indian country, consistent with previous federal program approvals or delegations, because NWAPA, Puget Sound Clean Air, and SWAPCA do not have authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

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

40 CFR Part 63

• Environmental protection
• Air pollution control
• Hazardous substances
• Reporting and recordkeeping requirements

Dated: February 8, 2000.

Chuck Findley,

Acting 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 by revising paragraph (b)(WW)(iii); and by revising the table in paragraph (c)(10) to read as follows:

§ 61.04

Address.

* * * * *

(b) * * *

(WW) * * *

(iii) Puget Sound Clean Air Agency (Puget Sound Clean Air). 110 Union Street, Suite 500, Seattle, WA 98101-2038.

Note:

For a table listing Puget Sound Clean Air's delegation status, see paragraph (c)(10) of this section.

* * * * *

(c) * * *

(10) * * *

Delegation Status for Part 61 Standards—Region X

Subpart	A D E C 1	I D E Q 2	O D E Q 3	L R A P A 4	E c o l o g y 5	B C A A 6	N W A P A 7	O A P C A 8	P S C A A 9	S C A P C A 10	S W A P C A 11	Y R C A A 12
A. General Provisions 13	X						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		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		X
K. Radionuclides from Elemental Phosphorus Plants
L. Benzene from Coke Recovery							X		X		X
M. Asbestos	X 1						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		X
W. Radon from Operating Mill Tailings
Y. Benzene from Benzene Storage Vessels	X						X		X		X
BB. Benzene from Benzene Transfer Operations							X		X		X
FF. Benzene Waste Operations	X						X		X		X
1 Alaska Department of Environmental Conservation (1/18/97).
Note: Alaska received delegation for sections 61.145 and 61.154 of Subpart M (Asbestos), along with other sections and appendices which are referenced in 61.145, as 61.145 applies to sources required to obtain an operating permit under Alaska's regulations. EPA retains the authority to implement and enforce Subpart M for area source asbestos demolition and renovation activities.
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 (7/1/99)
8 Olympic Air Pollution Control Authority
9 Puget Sound Clean Air Agency (7/1/99)
10 Spokane County Air Pollution Control Authority
11 Southwest Air Pollution Control Authority (8/1/98)
12 Yakima Regional Clean Air Authority
13 Authorities which are not 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.

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 63.99 is amended by revising the table in paragraph (a) (47)(i) to read as follows:

§ 63.99

Delegated Federal authorities.

(a) * * *

(47) * * *

(i) * * *

Delegation Status for Part 63 Standards—Washington

Subpart	Description	E c o l o g y1	B C A A2	N W A P A3	O A P C A4	P S C A A5	S C A P C A6	S W A P C A7	Y R C A A8
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 Towers			X		X		X
R	Gasoline Distribution			X		X		X
S	Pulp and Paper 10			X		X		X
T	Halogenated Solvent Cleaning			X		X		X
U	Polymers and Resins I			X		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
AA	Phosphoric Acid Manufacturing Plants			X		X
BB	Phosphate Fertilizers Production Plants			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
HH	Oil and Natural Gas Production Facilities			X		X
II	Shipbuilding and Ship Repair			X		X		X
JJ	Wood Furniture Manufacturing Operations			X		X		X
KK	Printing and Publishing Industry			X		X		X
LL	Primary Aluminum 11			X		X
OO	Tanks—Level 1			X		X
PP	Containers			X		X
QQ	Surface Impoundments			X		X
RR	Individual Drain Systems			X		X
SS	Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or Process			X		X
TT	Equipment Leaks—Control Level 1			X		X
UU	Equipment Leaks—Control Level 2			X		X
VV	Oil—Water Separators and Organic-Water Separators			X		X
WW	Storage Vessels (Tanks)—Control Level 2			X		X
YY	Source Categories: Generic MACT			X		X
CCC	Steel Pickling—HCI Process Facilities and Hydrochloric Acid Regeneration Plants			X		X
DDD	Mineral Wood Production			X		X
EEE	Hazardous Waste Cumbustors			X		X
GGG	Pharmaceuticals Production			X		X
HHH	Natural Gas Transmission and Storage Facilities			X		X
III	Flexible Polyurethane Foam Production			X		X
JJJ	Polymers and Resins IV			X		X		X
LLL	Portland Cement Manufacturing			X		X
MMM	Pesticide Active Ingredient Production			X		X
NNN	Wood Fiberglass Manufacturing			X		X
PPP	Polyether Polyols Production			X		X
TTT	Primaryl Lead Smelting			X		X
XXX	Ferroalloys Production: Ferromanganese & Silicomanganese			X		X
1 Washington Department of Ecology
2 Benton Clean Air Authority
3 Northwest Air Pollution Authority (7/1/99)
4 Olympic Air Pollution Control Authority
5 Puget Sound Clean Air Agency (7/1/99)
6 Spokane County Air Pollution Control Authority
7 Southwest Air Pollution Control Authority (8/1/98)
8 Yakima Regional Clean Air Authority
9 Authorities which may not be delegated include: 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.”
10 Subpart S is delegated to these agencies as applies to all applicable facilities and processes as defined in 40 CFR 63.440, except kraft and sulfite pulping mills. The Washington Department of Ecology (Ecology) retains the authority to regulate kraft and sulfite pulping mills in the State of Washington, pursuant to Washington Administrative Code (WAC) 173-405-012 and 173-410-012.
11 Subpart LL cannot be delegated to any local agencies in Washington because Ecology retains the authority to regulate primary aluminum plants, pursuant to WAC 173-415-012.

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.

Footnotes

1.  PSCAA was formerly known as the Puget Sound Air Pollution Control Agency (PSAPCA). All previous Federal Register rules regarding this agency have used the PSAPCA name.