[Federal Register Volume 63, Number 101 (Wednesday, May 27, 1998)]
[Rules and Regulations]
[Pages 28906-28909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13986]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-6014-5]
Delegation of National Emission Standards for Hazardous Air
Pollutants for Source Categories; State of Nevada; Nevada Division of
Environmental Protection; Washoe County District Health Department
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to delegate the authority to
implement and enforce specific national emission standards for
hazardous air pollutants (NESHAPs) to the Nevada Division of
Environmental Protection (NDEP) and the Washoe County District Health
Department (WCDHD) in Nevada. EPA is also approving WCDHD's program for
receiving delegation of unchanged NESHAPs applicable to sources not
subject to Title V of the 1990 Clean Air Act Amendments. The preamble
outlines the process that NDEP and WCDHD will
[[Page 28907]]
use to receive delegation of any future NESHAP, and identifies the
NESHAP categories to be delegated by today's action. EPA has reviewed
each agency's request for delegation and has found that these requests
satisfy all of the requirements necessary to qualify for approval.
Thus, EPA is hereby granting NDEP and WCDHD the authority to implement
and enforce the unchanged NESHAP categories listed in this rule.
DATES: This rule is effective on July 27, 1998 unless EPA receives
relevant adverse comments by June 26, 1998. If EPA receives such
comment, then it will publish a timely withdrawal in the Federal
Register informing the public that this rule will not take effect.
ADDRESSES: Comments must be submitted to Andrew Steckel at the Region
IX office listed below. Copies of the requests for delegation and other
supporting documentation are available for public inspection (docket
number A-96-25) at the following location: U.S. Environmental
Protection Agency, Region IX, Rulemaking Office (AIR-4), Air Division,
75 Hawthorne Street, San Francisco, California 94105-3901.
FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4),
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1200.
SUPPLEMENTARY INFORMATION:
I. Background
Section 112(l) of the Clean Air Act, as amended in 1990 (CAA),
authorizes EPA to delegate to state or local air pollution control
agencies the authority to implement and enforce the standards set out
in 40 CFR part 63, National Emission Standards for Hazardous Air
Pollutants for Source Categories. On November 26, 1993, EPA promulgated
regulations, codified at 40 CFR part 63, subpart E (hereinafter
referred to as ``subpart E''), establishing procedures for EPA's
approval of state rules or programs under section 112(l) (see 58 FR
62262).
Any request for approval under CAA section 112(l) must meet the
approval criteria in 112(l)(5) and 40 CFR part 63, subpart E. To
streamline the approval process for future applications, a state or
local agency may submit a one-time demonstration that it has adequate
authorities and resources to implement and enforce any CAA section 112
standards. If such demonstration is approved, then the state or local
agency would no longer need to resubmit a demonstration of these same
authorities and resources for every subsequent request for delegation
of CAA section 112 standards. However, EPA maintains the authority to
withdraw its approval if the State does not adequately implement or
enforce an approved rule or program.
On December 12, 1995, EPA approved the Nevada Division of
Environmental Protection's (NDEP's) program for accepting delegation of
section 112 standards that are unchanged from Federal standards as
promulgated (see 60 FR 63631). The approved program reflects an
adequate demonstration by NDEP of general resources and authorities to
implement and enforce section 112 standards. However, formal delegation
for an individual standard does not occur until NDEP obtains the
necessary regulatory authority to implement and enforce that particular
standard, and EPA approves NDEP's formal delegation request for that
standard.
On January 5, 1995, EPA approved the Washoe County District Health
Department's (WCDHD's) program for accepting delegation of section 112
standards (see 60 FR 1741). This approval extended only to sources that
are subject to the CAA Title V operating permit program. WCDHD
subsequently requested approval for its program to receive delegation
of unchanged section 112 standards applicable to non-Title V sources
(see letter from Brian L. Jennison, Director, Air Quality Management
Division, WCDHD to Felicia Marcus, Regional Administrator, U.S. EPA
Region IX, dated December 12, 1997). Therefore, today's action includes
approval under section 112(l) of WCDHD's program for accepting
delegation of section 112 standards applicable to non-Title V sources.
The approved programs reflect an adequate demonstration by WCDHD of
general resources and authorities to implement and enforce section 112
standards. However, formal delegation for an individual standard does
not occur until WCDHD obtains the necessary regulatory authority to
implement and enforce that particular standard, and EPA approves
WCHDH's formal delegation request for that standard.
Both NDEP and WCDHD informed EPA that they intend to obtain the
regulatory authority necessary to accept delegation of section 112
standards by incorporating section 112 standards into their respective
state and local codes of regulation by reference to the Federal
regulations; NDEP will be incorporating the section 112 standards into
the Nevada Administrative Code, and WCDHD will be incorporating the
standards into the WCDHD District Board of Health Regulations Governing
Air Quality Management. The details of these delegation mechanisms are
set forth in Memorandums of Agreement (MOAs) between each agency and
EPA, and are available for public inspection at the U.S. EPA Region IX
office (docket No. A-96-25).
On January 30, 1998, NDEP requested delegation for several
individual section 112 standards that have been incoporated by
reference into the Nevada Administrative Code. On December 3, 1997,
WCDHD requested delegation for section 112 standards that have been
incorporated by reference into the WCDHD District Board of Health
Regulations. The standards that are being delegated by today's action
are listed in a table at the end of this rule.
II. EPA Action
A. Delegation for Specific Standards
After reviewing NDEP's and WCDHD's requests for delegation of
various national emissions standards for hazardous air pollutants
(NESHAPs), EPA has determined that these requests meet all the
requirements necessary to qualify for approval under CAA section 112(l)
and 40 CFR 63.91. Accordingly, NDEP and WCDHD are granted the authority
to implement and enforce the requested NESHAPs. These delegations will
be effective on July 27, 1998. A table of the NESHAP categories that
will be delegated to each agency is shown at the end of this rule.
Although NDEP and WCDHD will have primary implementation and
enforcement responsibility, EPA retains the right, pursuant to CAA
section 112(l)(7), to enforce any applicable emission standard or
requirement under CAA section 112. In addition, EPA does not delegate
any authorities that require implementation through rulemaking in the
Federal Register, or where Federal overview is the only way to ensure
national consistency in the application of the standards or
requirements of CAA section 112.
After a state or local agency has been delegated the authority to
implement and enforce a NESHAP, the delegated agency becomes the
primary point of contact with respect to that NESHAP. Pursuant to 40
CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA Region IX waives the
requirement that notifications and reports for delegated standards be
submitted to EPA as well as to NDEP or WCDHD.
In its December 3, 1997 request, WCDHD included a request for
delegation of the regulations implementing CAA sections 112(g) and
112(j), codified at 40 CFR part 63, subpart B. These requirements apply
to major sources only, and need not be
[[Page 28908]]
delegated under the section 112(l) approval process. When promulgating
the regulations implementing section 112(g), EPA stated its view that
``the Act directly confers on the permitting authority the obligation
to implement section 112(g) and to adopt a program which conforms to
the requirements of this rule. Therefore, the permitting authority need
not apply for approval under section 112(l) in order to use its own
program to implement section 112(g)'' (see 61 FR 68397). Similarly,
when promulgating the regulations implementing section 112(j), EPA
stated its belief that ``section 112(l) approvals do not have a great
deal of overlap with the section 112(j) provision, because section
112(j) is designed to use the title V permit process as the primary
vehicle for establishing requirements'' (see 59 FR 26447). Therefore,
state or local agencies implementing the requirements under sections
112(g) and 112(j) do not need approval under section 112(l). As a
result, EPA is not taking action to delegate 40 CFR part 63, subpart B
to WCDHD.
B. Delegation Mechanism for Future Standards
Today's document takes action to approve WCDHD's program for
receiving delegation of unchanged section 112 standards applicable to
non-Title V sources, and serves to notify the public of the details of
NDEP's and WCDHD's procedure for receiving delegation of future NESHAP.
As set forth in the MOAs, NDEP and WCDHD intend to incorporate by
reference, into their respective state and local codes of regulation,
each newly promulgated NESHAP for which they intend to seek delegation.
The agencies will then submit a letter to EPA Region IX, along with
proof of regulatory authority, requesting delegation for each
individual NESHAP. Region IX will respond in writing that delegation is
either granted or denied. If a request is approved, the delegation of
authorities will be considered effective upon the date of the response
letter from Region IX. Periodically, EPA will publish in the Federal
Register a listing of the standards that have been delegated. Although
EPA reserves its right, pursuant to 40 CFR 63.96, to review the
appropriateness of any future delegation request, EPA will not
institute any additional comment periods on these future delegation
actions. Any parties interested in commenting on this procedure for
delegating future unchanged NESHAPs should do so at this time.
C. Opportunity for Public Comment
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in the Proposed Rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal for this action should relevant adverse
comments be filed. This action will be effective July 27, 1998 without
further notice unless the Agency receives relevant adverse comments by
June 26, 1998.
If EPA receives such comments, then EPA will publish a document
withdrawing this final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on the proposed rule. Any parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on July 27, 1998 and no further action will be
taken on the proposed rule.
IV. Administrative Requirements
A. 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.
Delegations of authority to implement and enforce unchanged Federal
standards under section 112(l) of the Clean Air Act do not create any
new requirements but simply transfer primary implementation authorities
to the State. Therefore, because this action does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected.
B. Unfunded Mandates Reform Act
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
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 delegation action promulgated 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, 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.
C. Submission to Congress and the General Accounting Office
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).
D. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 27, 1998. 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)).
E. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action
[[Page 28909]]
from review under Executive Order 12866.
F. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to
any rule that is (1) likely to be ``economically significant'' as
defined under Executive Order 12866, and (2) the Agency has reason to
believe that the environmental health or safety risk addressed by the
rule may have a disproportionate effect on children. If a 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 rule is not subject to E.O. 13045, ``Protection of Children
from Environmental Health Risks and Safety Risks'' because this is not
an ``economically significant'' regulatory action as defined by E.O.
12866, and because it does not involve decisions on environmental
health or safety risks that may disproportionately affect children.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of section
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.
Dated: May 4, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
Title 40, chapter I, part 63 of the Code of Federal Regulations 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.
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
2. Section 63.99 is amended by adding and reserving paragraphs
(a)(6) through (a)(27), and adding paragraph (a)(28) to read as
follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(6)-(27) (Reserved)
(28) Nevada.
(i) The following table lists the specific part 63 standards that
have been delegated unchanged to the air pollution control agencies in
the State of Nevada. The (X) symbol is used to indicate each category
that has been delegated.
Delegation Status for Part 63 Standards--Nevada
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Subpart Description NDEP \1\ WCDHD \2\ CCHD \3\
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A.............. General Provisions.... X X
M.............. Perchloroethylene Dry X X
Cleaning.
N.............. Hard and Decorative X X
Chromium
Electroplating and
Chromium Anodizing
Tanks.
O.............. Ethylene Oxide ......... X
Sterilization
Facilities.
Q.............. Industrial Process X
Cooling Towers.
R.............. Gasoline Distribution ......... X
Facilities.
T.............. Halogenated Solvent X X
Cleaning.
JJ............. Wood Furniture X
Manufacturing
Operations.
KK............. Printing and X X
Publishing Industry.
OO............. Tanks--Level 1........ X
PP............. Containers............ X
QQ............. Surface Impoundments.. X
RR............. Individual Drain X
Systems.
VV............. Oil-Water Separators X
and Organic-Water
Separators.
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\1\ Nevada Department of Environmental Protection.
\2\ Washoe County District Health Department.
\3\ Clark County Health Department.
(ii) [Reserved]
[FR Doc. 98-13986 Filed 5-26-98; 8:45 am]
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