[Federal Register Volume 64, Number 123 (Monday, June 28, 1999)]
[Unknown Section]
[Pages 34560-34564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16231]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-6366-8]
Delegation of National Emission Standards for Hazardous Air
Pollutants for Source Categories; State of Arizona; Pima County
Department of Environmental Quality
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 Pima County Department of
Environmental Quality (PDEQ) in Arizona. The preamble outlines the
process that PDEQ will use to receive delegation of any future NESHAP,
and identifies the
[[Page 34561]]
NESHAP categories to be delegated by today's action. EPA has reviewed
PDEQ's request for delegation and has found that this request satisfies
all of the requirements necessary to qualify for approval. Thus, EPA is
hereby granting PDEQ the authority to implement and enforce the
unchanged NESHAP categories listed in this rule.
DATES: This rule is effective on August 27, 1999 without further
notice, unless EPA receives adverse comments by July 28, 1999. If EPA
receives such comment, it will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Written comments must be submitted to Andrew Steckel at the
Region IX office listed below. Copies of the request 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 October 30, 1996, EPA approved the Pima County Department of
Environmental Quality (PDEQ's) program for accepting delegation of
section 112 standards that are unchanged from Federal standards as
promulgated (see 61 FR 55910). Additional revisions to that program
were approved on September 23, 1998 (see 63 FR 50769). The approved
program reflects an adequate demonstration by PDEQ of general resources
and authorities to implement and enforce section 112 standards.
However, formal delegation for an individual standard does not occur
until PDEQ obtains the necessary regulatory authority to implement and
enforce that particular standard, and EPA approves PDEQ's formal
delegation request for that standard.
PDEQ informed EPA that it intends to obtain the regulatory
authority necessary to accept delegation of section 112 standards by
incorporating section 112 standards into the Pima County Code. The
details of this delegation mechanism are set forth in a Memorandum of
Agreement (MOA) between PDEQ and EPA, and are available for public
inspection at the U.S. EPA Region IX office (docket No. A-96-25).
On May 12, 1999, PDEQ requested delegation for several individual
section 112 standards that have been incorporated by reference into the
Pima County Code. 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 PDEQ's request for delegation of various national
emissions standards for hazardous air pollutants (NESHAPs), EPA has
determined that this request meets all the requirements necessary to
qualify for approval under CAA section 112(l) and 40 CFR 63.91.
Accordingly, PDEQ is granted the authority to implement and enforce the
requested NESHAPs. These delegations will be effective on August 27,
1999. A table of the NESHAP categories that will be delegated to PDEQ
is shown at the end of this rule. Although PDEQ 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 PDEQ.
In its May 12, 1999 request, PDEQ included a request for delegation
of the regulations implementing CAA section 112(i)(5), codified at 40
CFR part 63, subpart D. These requirements apply to state or local
agencies that have a permit program approved under title V of the Act
(see 40 CFR 63.70). PDEQ received final interim approval of its title V
operating permits program on October 30, 1996 (see 61 FR 55910). State
or local agencies implementing the requirements under subpart D do not
need approval under section 112(l). Therefore, EPA is not taking action
to delegate 40 CFR part 63, subpart D to PDEQ.
PDEQ also 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 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 PDEQ.
[[Page 34562]]
B. Delegation Mechanism for Future Standards
Today's document serves to notify the public of the details of
PDEQ's procedure for receiving delegation of future NESHAPs. As set
forth in the MOA, PDEQ intends to incorporate by reference, into the
Pima County Code, each newly promulgated NESHAP for which it intends to
seek delegation. PDEQ 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 adverse comments
be filed. This rule will be effective August 27, 1999 without further
notice unless the Agency receives adverse comments by July 28, 1999.
If EPA receives such comments, then EPA will publish a timely
withdrawal in the Federal Register 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 this rule. Any parties
interested in commenting on this rule should do so at this time. If no
such comments are received, the public is advised that this rule will
be effective on August 27, 1999 and no further action will be taken on
the proposed rule.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, ``Enhancing the Intergovernmental Partnership,''
EPA may not issue a regulation that is not required by statute and that
creates a mandate upon a state, local or tribal government, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by those governments, or EPA consults with
those governments. If EPA complies by consulting, E.O. 12875 requires
EPA to provide to OMB a description of the extent of EPA's prior
consultation with representatives of affected state, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. Accordingly,
the requirements of section 1(a) of E.O. 12875 do not apply to this
rule.
C. Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the 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 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under E.O. 13084, ``Consultation and Coordination with Indian
Tribal Governments,'' EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to OMB, in a separately identified section of the preamble to
the rule, a description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because 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 or local agency.
Therefore, because this action does not impose any new requirements, I
certify that this action will not have a significant impact on a
substantial number of small entities.
F. Unfunded Mandates
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
annual costs to state, local, or tribal governments in the aggregate,
or to private sector, of $100
[[Page 34563]]
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 annual 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.
G. Submission to Congress and the Comptroller General
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).
H. 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 August 27, 1999. 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)).
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: June 10, 1999.
David P. Howekamp,
Director, Air Division, 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 revising paragraph (a)(3) to read as
follows:
Sec. 63.99 Delegated Federal Authorities
(a) * * *
(3) Arizona. The following table lists the specific part 63
standards that have been delegated unchanged to the air pollution
control agencies in the State of Arizona. The (X) symbol is used to
indicate each category that has been delegated.
Delegation Status for Part 63 Standards--Arizona
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Subpart Description ADEQ \1\ MCESD \2\ PDEQ \3\ PCAQCD \4\
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A......................... General Provisions.......... X ............ X X
F......................... Synthetic Organic Chemical X ............ X X
Manufacturing Industry.
G......................... Synthetic Organic Chemical X ............ X X
Manufacturing Industry:
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
H......................... Organic Hazardous Air X ............ X X
Pollutants: Equipment Leaks.
I......................... Organic Hazardous Air X ............ X X
Pollutants: Certain
Processes Subject to the
Negotiated Regulation for
Equipment.
L......................... Coke Oven Batteries......... X ............ X X
M......................... Perchloroethylene Dry X ............ X X
Cleaning.
N......................... Hard and Decorative Chromium X ............ X X
Electroplating and Chromium
Anodizing Tanks.
O......................... Ethylene Oxide Sterilization X ............ X X
Facilities.
Q......................... Industrial Process Cooling X ............ X X
Towers.
R......................... Gasoline Distribution X ............ X X
Facilities.
T......................... Halogenated Solvent Cleaning X ............ X X
U......................... Group I Polymers and Resins. X ............ X X
W......................... Epoxy Resins Production and X ............ X X
Non-Nylon Polyamides
Production.
X......................... Secondary Lead Smelting..... X ............ X X
CC........................ Petroleum Refineries........ X ............ X X
DD........................ Off-Site Waste and Recovery X ............ X X
Operations.
EE........................ Magnetic Tape Manufacturing X ............ X X
Operations.
GG........................ Aerospace Manufacturing and X ............ X X
Rework Facilities.
JJ........................ Wood Furniture Manufacturing X ............ X X
Operations.
KK........................ Printing and Publishing X ............ X X
Industry.
OO........................ Tanks--Level 1.............. X ............ ............ X
PP........................ Containers.................. X ............ ............ X
QQ........................ Surface Impoundments........ X ............ ............ X
RR........................ Individual Drain Systems.... X ............ ............ X
VV........................ Oil-Water Separators and X ............ ............ X
Organic-Water Separators.
JJJ....................... Group IV Polymers and Resins X ............ ............ X
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\1\ Arizona Department of Environmental Quality.
\2\ Maricopa County Environmental Services Department.
\3\ Pima County Department of Environmental Quality.
\4\ Pinal County Air Quality Control District.
[[Page 34564]]
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[FR Doc. 99-16231 Filed 6-25-99; 8:45 am]
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