2011-11787. Delegation of Authority to the Commonwealth of Pennsylvania To Implement and Enforce Additional National Emission Standards for Hazardous Air Pollutants

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of delegation of authority.

SUMMARY:

Pennsylvania has requested that EPA delegate to Pennsylvania the authority to implement and enforce twelve additional National Emission Standards for Hazardous Air Pollutants (NESHAP) for area sources, and EPA has responded by sending Pennsylvania a letter approving this delegation, pursuant to previously approved delegation mechanisms. To inform regulated facilities and the public of EPA's delegation to Pennsylvania of the authority to implement and enforce these twelve additional NESHAP for area sources, EPA is making available a copy of EPA's letter to Pennsylvania through this notice.

DATES:

On January 5, 2011, EPA sent Pennsylvania a letter acknowledging the delegation to Pennsylvania of the authority to implement and enforce twelve additional NESHAP for area sources.

ADDRESSES:

Copies of documents pertaining 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 19103-2029. Copies of Pennsylvania's submittal are also available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. Copies of Pennsylvania's request for the delegation of authority to implement additional NESHAP (except for the appendices to that request) and of EPA's response, may also be found posted on EPA Region III's Web site at: http://www.epa.gov/​reg3artd/​airregulations/​delegate/​padelegation.htm.

FOR FURTHER INFORMATION CONTACT:

Ray Chalmers, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Pennsylvania requested that EPA delegate to Pennsylvania the authority to implement and enforce twelve additional NESHAP for area sources. On January 5, 2011, EPA sent Pennsylvania a letter informing Pennsylvania that EPA had delegated to the Commonwealth the authority to implement and enforce these twelve additional NESHAP for area sources, pursuant to previously approved delegation mechanisms. All notifications, applications, reports and other correspondence required pursuant to the newly delegated standards must be submitted to both the US EPA Region III and to the Pennsylvania Department of Environmental Protection. A copy of EPA's letter to Pennsylvania follows:

“Ms. Joyce E. Epps, Esquire

Director of Air Quality

Pennsylvania Department of Environmental Protection

Rachel Carson State Office Building

P.O. Box 8468

Harrisburg, PA 17105-8468

Dear Ms. Epps:

The Environmental Protection Agency (EPA) has previously delegated to the Commonwealth of Pennsylvania (Pennsylvania) the authority to implement and enforce numerous specified Federal National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS), which are found at 40 CFR Parts 60, 61 and 63.^[1] In those actions EPA also automatically delegated to Pennsylvania the authority to implement and enforce future NESHAP applicable to major sources, future changes to any of the specific NESHAP applicable to area sources that Pennsylvania had been delegated the authority to implement and enforce, and any future NSPS requirements.

EPA also previously approved processes by which Pennsylvania may easily request and quickly receive delegation of authority to implement and enforce additional NESHAP applicable to area sources. As part of Pennsylvania's Title V Operating Permits Program approval,^[2] EPA promulgated full approval under CAA section 112(l)(5) and 40 CFR 63.91 of the State's program for receiving delegation of the CAA section 112 standards that are unchanged from Federal standards as promulgated in 40 CFR part 63. That approval allows Pennsylvania to request and receive delegation of NESHAP for sources covered by the 40 CFR part 70 program, including area sources which are subject to NESHAP which require area sources to obtain part 70 program permits. In addition, EPA has separately approved a mechanism by which Pennsylvania may request and receive delegation of any additional NESHAP applicable to area sources which are not covered by the 40 CFR part 70 operating permits program.^[3] That mechanism is for Pennsylvania to adopt the additional NESHAP applicable to area sources without changes and to send EPA a letter requesting delegation of those additional NESHAP.

In a letter dated December 10, 2009, Pennsylvania requested delegation of authority, by reference, to implement and enforce NESHAP as codified in 40 CFR Part 63 for the following source categories: (1) Subpart AAAA (relating to municipal solid waste landfills); (2) Subpart BBBBBB (relating to gasoline bulk terminals, bulk plants and pipeline facilities); (3) Subpart EEE (relating hazardous waste combustion; (4) Subpart LLL (relating to Portland cement manufacturing industry; (5) Subpart NNNNNN (relating to chromium compounds), (6) Subpart OOOOOO (relating to flexible polyurethane foam fabrication and production area sources; (7) Subpart PPPPPP (relating to lead acid battery manufacturing area sources; (8) Subpart SSSSSS (relating to glass manufacturing area sources); (10) Subpart TTTTTT (relating to secondary nonferrous metals processing area sources; (11) Subpart YYYYY (relating to electric arc furnace steelmaking facilities, and (12) Subpart ZZZZZ (relating to iron and steel foundries area sources). Pennsylvania also requested “automatic delegation” of future amendments to these NESHAP.

In its delegation request letter Pennsylvania confirmed that the EPA rules in 40 CFR Part 63 “are applicable, without revisions, to affected sources in Pennsylvania on the effective dates published in the Federal Register.” Pennsylvania also confirmed that it continues to have adequate legal authority to implement and enforce such Federal rules.

Pennsylvania's December 10, 2009 request for delegation of authority to implement and enforce additional Federal NESHAP is approvable under the previously approved delegation processes discussed above. Accordingly, EPA hereby delegates to Pennsylvania the authority to implement and enforce the additional NESHAP for which Pennsylvania requested delegation in its December 10, 2009 submittal.

Please note that on December 19, 2008, in Sierra Club v. EPA,^[4] the United States Court of Appeals for the District of Columbia Circuit vacated certain provisions of the General Provisions of 40 CFR Part 63 relating to exemptions for startup, shutdown, and malfunction (SSM). On October 16, 2009, the Court issued a mandate vacating these SSM exemption provisions, which are found at 40 CFR § 63.6(f)(1) and (h)(1).

Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 CFR § 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed these SSM exemption provisions from the General Provisions of 40 CFR Part 63. Because Pennsylvania incorporates 40 CFR Part 63 by reference, Pennsylvania should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 CFR Part 63 due to the Court's ruling in Sierra Club vs. EPA.

EPA appreciates Pennsylvania's continuing NESHAP and NSPS enforcement efforts, and also Pennsylvania's decision to request delegation of additional NESHAP.

Sincerely,

Diana Esher, Director

Air Protection Division”

In the above letter EPA approved Pennsylvania's December 10, 2009 request for delegation of additional NESHAP for area sources in its entirety. EPA erred in that letter in not listing one of the additional NESHAP for which Pennsylvania had requested delegation, NESHAP Subpart RRRRRR for Clay Ceramics Manufacturing Area Sources. To address this oversight, EPA sent Pennsylvania a subsequent letter on April 4, 2011 confirming that EPA's approval of Pennsylvania's December 10, 2009 request for delegation had included approval of the delegation of NESHAP Subpart RRRRRR and of any future amendments to Subpart RRRRRR. A copy of that letter is provided as follows:

“Ms. Joyce E. Epps, Director

Bureau of Air Quality

Pennsylvania Department of Environmental Protection

Rachel Carson State Office Building

P.O. Box 8468

Harrisburg, PA 17105-8468

Dear Ms. Epps:

On January 5, 2011, the U.S. Environmental Protection Agency (EPA) delegated to Pennsylvania the authority to implement and enforce all of the additional National Emissions Standards for Hazardous Air Pollutants (NESHAP) for which Pennsylvania had requested delegation in a December 10, 2009 submittal. EPA granted this delegation pursuant to previously approved delegation mechanisms.

In EPA's January 5, 2011 approval EPA listed for reference the additional NESHAP for which Pennsylvania had requested delegation in its December 10, 2009 submittal. EPA has since noted that its listing was incomplete in that it did not include one of the NESHAP for which Pennsylvania had requested delegation, NESHAP Subpart RRRRRR for Clay Ceramics Manufacturing Area Sources.

This is to confirm that EPA's January 5, 2011 approval of Pennsylvania's December 10, 2009 request for delegation of authority to implement and enforce additional NESHAP also delegated to Pennsylvania the authority to implement and enforce NESHAP Subpart RRRRRR for Clay Ceramics Manufacturing Area Sources.

EPA appreciates Pennsylvania's continuing efforts to implement and enforce all delegated NESHAP. If you have any questions, please contact me at 814-2706 or Ray Chalmers of my staff at 215-814-2061.

Sincerely,

Diana Esher, Director

Air Protection Division”

This notice confirms EPA's delegation to Pennsylvania of the authority to implement and enforce additional NESHAP.

Dated: April 26, 2011.

Diana Esher,

Director, Air Protection Division, Region III.

Footnotes

1.  EPA has posted copies of these actions at: http://www.epa.gov/​reg3artd/​airregulations/​delegate/​padelegation.htm

2.  61 FR 39597 (July 30, 1996)

3.  66 FR 47579 (September 13, 2001)

4.  Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008)