[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Rules and Regulations]
[Pages 21370-21372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11737]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5503-3]
Hazardous Air Pollutants: Amendment to Regulations Governing
Equivalent Emission Limitations by Permit
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On May 20, 1994, the Agency promulgated a rule in the Federal
Register governing the establishment of equivalent emission limitations
by permit, pursuant to section 112(j) of the Clean Air Act (Act). After
the effective date of a Title V permit program in a State, each owner
or operator of a major source in a source category for which the EPA
was scheduled to, but failed to promulgate a section 112(d) emission
standard will be required to obtain an equivalent emission limitation
by permit. The permit application must be submitted to the Title V
permitting authority 18 months after the EPA's missed promulgation
date. This action amends the original Regulations Governing Equivalent
Emission Limitations by Permit rule. This amendment delays the section
112(j) permit application deadline for all 4-year source categories
listed in the regulatory schedule by 180 days until November 15, 1996.
This action is needed to alleviate unnecessary paperwork for both major
source owners or operators and permitting agencies.
EFFECTIVE DATE: May 10, 1996.
ADDRESSES: Docket. All information used in the development of this
final action is contained in the preamble below. However, Docket No. A-
93-32, containing the supporting information for the original
Regulations Governing Equivalent Emission Limitations by Permit rule is
available for public inspection and copying between 8:00 a.m. and 5:30
p.m., Monday through Friday at the Air and Radiation Docket and
Information Center (6102), Room M-1500, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460; telephone (202)
260-7548, fax (202) 260-4000. A reasonable fee may be charged for
copying.
FOR FURTHER INFORMATION CONTACT: Mr. James Szykman or Mr. Anthony
Wayne, Emission Standards Division (MD-13), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone (919) 541-2452 (Szykman) or (919) 541-5439 (Wayne).
[[Page 21371]]
SUPPLEMENTARY INFORMATION: In the Proposed Rules Section of this
Federal Register, EPA is proposing a rule that is identical to this
direct final rule. If significant, adverse comments are timely received
on the proposed rule, the direct final rule will be withdrawn, and all
such comments will be addressed in a subsequent final rule based on the
proposed rule. If no significant, adverse comments are timely received
on the proposed final rule, then the direct final rule remains
effective upon publication, and no further action is contemplated on
the parallel proposal published today.
The information presented in this preamble is organized as follows:
I. Background
II. Summary of Rule Change and Rationale
A. Permit Application Deadline
B. Effective Date
C. Judicial Review
III. Administrative Requirements
A. Docket
B. Regulatory Impact Analysis
C. Impact on Reporting Requirements
D. Impact on Small Entities
E. Reduction of Governmental Burden
F. Environmental Justice
G. Unfunded Mandates
I. Background
Section 112(e) of the Clean Air Act (the Act) requires the Agency
to publish a schedule for promulgating regulations establishing
hazardous air pollutants (HAP) emission standards for all source
categories listed pursuant to Section 112 of the Act. The Act further
directs that this regulatory schedule require the promulgation of
emission standards for at least 40 source categories by 1992, for at
least 25 percent of the listed categories by 1994, for at least 50
percent of the listed categories by 1997, and all remaining categories
by the year 2000. These are commonly referred to as the 2-year, 4-year,
7-year, and the 10-year maximum achievable control technology (MACT)
standards, respectively. This regulatory schedule was published by EPA
on December 3, 1993 (58 FR 64931).
If EPA should fail to promulgate a MACT standard for a listed
source category by 18 months after the date in the regulatory schedule,
section 112(j) of the Act requires owners or operators of major sources
within that source category to obtain a Title V permit, if the major
source is located in a State with an approved Title V permit program.
This permit will require compliance with an emission limitation
equivalent to that which the major source would have been subject to
had EPA promulgated a timely MACT standard for that source category.
On May 20, 1994, EPA issued a final rule for implementing section
112(j) (59 FR 26429). This rule requires major source owners or
operators to submit a permit application by the date 18 months after a
missed date on the regulatory schedule. In accordance with this
regulation, the deadlines for submittal of permit applications are as
follows:
------------------------------------------------------------------------
112(j) permit
Emission standard Regulatory schedule application
deadline
------------------------------------------------------------------------
4-year......................... 11/15/94........... 5/15/96
7-year......................... 11/15/97........... 5/15/99
10-year........................ 11/15/00........... 5/15/02
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II. Summary of Rule Change and Rationale
A. Permit Application Deadline
To date, EPA has promulgated several 4-year MACT standards and
intends to promulgate MACT standards for all of the remaining 4-year
source categories within the 18-month period following the date in the
regulatory schedule. All of the remaining 4-year source categories for
which MACT standards must be promulgated have court-ordered deadlines
with the latest deadline coinciding with the section 112(j) permit
application deadline of May 15, 1996.
In order for owners or operators of major sources to submit a
timely permit application in the event that EPA would fail to
promulgate a 4-year emission standard, applicants would have to begin
preparation of these applications immediately. If EPA promulgates
standards in accordance with the court-ordered schedule, this would
result in an unnecessary burden for both the owners or operators and
the Title V permitting agencies.
The EPA believes that ample authority for this rule revision exists
under the de minimis doctrine. That doctrine allows EPA to promulgate a
rule that avoids a statutory requirement if (1) following that
requirement would yield an environmental benefit of trivial or no
value, and (2) the statutory scheme is not so rigid as to preclude this
result. Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir
1979). The EPA believes both tests are met here. Regarding the first
point, it should be intuitively apparent that requiring sources to
complete applications for a case-by-case determination is pointless
when it is very likely that EPA will promulgate the MACT standard
within a timeframe that renders the entire case-by-case exercise moot.
This is precisely the case with regard to the pending 4-year MACT
standards, all of which are under a court-ordered deadline for issuance
close to the date applications are due. Regarding the second test, the
language of section 112(j)(2), requiring that applications be submitted
on a date ``beginning'' 18 months after a deadline has been missed, and
the clear intent of the statute that case-by-case determinations should
be made where they will serve as a substitute for the pending MACT
standard, together suggest a level of flexibility in the statutory
scheme sufficient to allow resort to the de minimis rationale.
The EPA is amending the definition of ``Section 112(j) deadline''
in Sec. 63.51 of the final rule to delay the section 112(j) permit
application deadline for all 4-year source categories by 180 days until
November 15, 1996. The EPA believes that this new application deadline
will allow sufficient time to promulgate the remaining 4-year emission
standards and is consistent with the intent of section 112(j). If EPA
does promulgate the emission standards before this time, permit
applications or reopenings will be governed by Title V requirements.
B. Effective Date
The EPA is publishing this rule as a final rule, and it is
effective immediately upon publication. The Agency believes that this
action is supported by the ``good cause'' exception in the
Administrative Procedures Act, which permits an agency for ``good
cause'' to proceed directly to a final rule where issuing a proposed
rule would be ``impracticable, unnecessary, or contrary to the public
interest'' [5 U.S.C. 553(b)(B)] and for ``good cause found'' [5 U.S.C.
553(d)] to dispense with the general requirement that a rule be
published 30 days before its effective date. The EPA believes that good
cause exists here to issue a final, immediately effective rule because
of the nearness of the May 15, 1996, permit application deadline (for
major sources in the 4-year source category) specified in the May 20,
1994 (59 FR 26429) final rule. If the changes in this rulemaking were
only being proposed, then the May 15, 1996, deadline would still be in
effect and this would negate the intent of this change to the rule to
delay the permit application deadline until November 15, 1996, for
sources in the 4-year source category. Furthermore, EPA views this
action to delay the permit application deadline as noncontroversial.
C. Judicial Review
Under Section 307(b)(1) of the Act, judicial review of the actions
taken by this final rule is available only by the filing of a petition
for review in the U.S.
[[Page 21372]]
Court of Appeals for the District of Columbia Circuit within 60 days of
publication of this action. Under Section 307(b)(2) of the Act, the
requirements that are the subject of this final rule may not be
challenged later in civil or criminal proceedings brought by EPA to
enforce these requirements.
III. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-32, the same docket
as the original final rule, and a copy of today's amendment to the
final rule will be included in the docket. The docket is an organized
and complete file of all the information submitted to, or otherwise
considered by, EPA in the development of the original 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 docket
is available for public inspection at EPA's Air and Radiation Docket
and Information Center, which is listed under the ADDRESSES section of
this document.
B. Regulatory Impact Analysis
This rule was classified ``non-significant'' under Executive Order
12866 and therefore was not reviewed by the Office of Management and
Budget.
C. Impact on Reporting Requirements
The information collection requirements of the previously
promulgated rule for Regulations Governing Equivalent Emission
Limitations by Permit were submitted to and approved by the Office of
Management and Budget. A copy of this Information Collection Request
(ICR) document (OMB control number 2060-0266) may be obtained from
Sandy Farmer, OPPE Regulatory Information Division (2136), U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C.
20460, or by calling (202) 260-2740. Today's change to the final rule
to delay the deadline for submittal of section 112(j) permit
applications does not affect the information collection burden
estimates made previously. Therefore, the ICR has not been revised.
D. Impact on Small Entities
The Regulatory Flexibility Act of 1980 requires the identification
of potentially adverse impacts of Federal regulations upon small
business entities. The Act specifically requires the completion of a
Regulatory Flexibility Analysis in those instances where small business
impacts are possible. Because this rulemaking imposes no economic
impacts, adverse or otherwise, a Regulatory Flexibility Analysis has
not been prepared.
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this rule will not have a significant economic impact on a
substantial number of small business entities.
E. Reduction of Governmental Burden
Executive Order 12875 (``Enhancing the Intergovernmental
Partnership'') is designed to reduce the burden to State, local, and
Tribal governments of the cumulative effect of unfunded Federal
mandates. The Order recognizes the need for these entities to be free
from unnecessary Federal regulation to enhance their ability to address
problems they face and provides for Federal agencies to grant waivers
to these entities from discretionary Federal requirements. The Order
applies to any regulation that is not required by statute and that
creates a mandate upon a State, local, or Tribal government. The EPA
anticipates that there will be no additional cost burden imposed on
State, local, and Tribal governments as a result of today's action.
Indeed, the purpose of the action is to reduce unnecessary burden on
permitting agencies.
F. Environmental Justice
Executive Order 12898 requires that each Federal agency shall make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minority and low-income populations. Today's action will
help ensure timely compliance and the application of consistent
regulatory requirements by allowing the section 112(d) MACT standards
to become effective without triggering an unnecessary section 112(j)
process. Therefore, no adverse human health or environmental effects
are anticipated as a result of today's action.
G. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), the EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate; or to the private sector, of $100
million or more. Under Section 205, the 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 the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that the 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. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practices and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: May 3, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Part 63 is amended
as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 63.51, the definition of ``Section 112(j) deadline'' is
revised to read as follows:
Sec. 63.51 Definitions.
* * * * *
Section 112(j) deadline means the date 18 months, after the date by
which a relevant standard is scheduled to be promulgated under this
part, except for all major sources listed in the source category
schedule for which a relevant standard is scheduled to be promulgated
by November 15, 1994, the section 112(j) deadline is November 15, 1996.
* * * * *
[FR Doc. 96-11737 Filed 5-9-96; 8:45 am]
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