[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Rules and Regulations]
[Pages 35029-35032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16681]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-6369-6]
RIN 2060-AD06
Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct Final rule.
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SUMMARY: On December 27, 1996, the Agency published a rule in the
Federal Register implementing certain provisions in section 112(g) of
the Clean Air Act (Act). After the effective date of that rule, all
owners or operators of major sources of hazardous air pollutants (HAP)
that are constructed or reconstructed are required to install maximum
achievable control technology (MACT) (unless specifically exempted),
provided they are located in a State with an approved title V permit
program. When no applicable Federal emission limitation has been
promulgated under section 112(d) of the Act, the Act requires the
permitting authority (generally a State or local agency responsible for
the program) to determine a MACT emission limitation on a case-by-case
basis. If the permitting authority has not yet established procedures
for requiring MACT on constructed or reconstructed major sources by the
required date, the rule provides that the EPA Regional Administrator
will determine MACT emission limitations on a case-by-case basis for a
period of up to one year. This action amends the rule governing
constructed or reconstructed major sources--by providing a longer time
period (up to 30 months) during which the EPA Regional Administrator
may determine MACT emission limitations on a case-by-case basis--if the
permitting authority has not yet established procedures for requiring
MACT on constructed or reconstructed major sources. This action is
needed in order to ensure that major sources can obtain MACT
determinations required for construction or reconstruction in those
jurisdictions where permitting authorities require extra time to
establish procedures to implement the section 112(g) rule.
EFFECTIVE DATE: This final rule amendment will be effective on July 30,
1999 without further notice, unless EPA receives adverse comments on
this rulemaking by July 12, 1999 or a request for a hearing concerning
the accompanying proposed rule is received by EPA by July 7, 1999. If
EPA receives timely adverse comment or a timely hearing request, EPA
will publish a withdrawal in the Federal Register informing the public
that this direct final rule will not take effect and will proceed to
promulgate a final rule based on the proposed rule.
ADDRESSES: Comments. Interested parties may submit comments on this
rulemaking in writing (original and two copies, if possible) to Docket
No. A-91-64 to the following address: Air and Radiation Docket and
Information Center (6102), US Environmental Protection Agency, 401 M
Street, S.W., Room 1500, Washington, D.C. 20460. The EPA requests that
a separate copy of each public comment be sent to the contact person
listed below (see FOR FURTHER INFORMATION CONTACT). Comments may also
be submitted electronically by following the instructions provided in
SUPPLEMENTARY INFORMATION. Public comments on this rulemaking will be
accepted until July 12, 1999.
Docket. All information used in the development of this final
action is contained in the preamble below. However, Docket No. A-91-64,
containing the supporting information for the original Regulations
Governing Constructed or Reconstructed Major Sources 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.
These documents can also be accessed through the EPA web site at:
http://www.epa.gov/ttn/oarpg. For further information and general
questions regarding the Technology Transfer Network (TTNWEB), call Mr.
Hersch Rorex (919) 541-5637 or Mr. Phil Dickerson (919) 541-4814.
FOR FURTHER INFORMATION CONTACT: Ms. Kathy Kaufman, Information
Transfer and Program Integration Division (MD-12), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone (919)541-0102.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule amendment
without prior proposal because we consider this to be a
noncontroversial amendment; and we do not expect to receive any adverse
comment. However, in the ``Proposed Rules'' section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal for this amendment, in the event we receive
adverse comment or a hearing request and this direct final rule is
subsequently withdrawn. This final rule amendment will be effective on
July 30, 1999 without further notice, unless we receive adverse comment
on this rulemaking by July 12, 1999 or a request for a hearing
concerning the accompanying proposed rule is received by EPA by July 7,
1999. If EPA receives timely adverse comment or a timely hearing
request, we will publish a withdrawal in the Federal Register
[[Page 35030]]
informing the public that this direct final rule will not take effect.
In that event, we will address all public comments in a subsequent
final rule, based on the proposed rule amendment published in the
``Proposed Rules'' section of this Federal Register document. The EPA
will not provide further opportunity for public comment on this action.
Any parties interested in commenting on this amendment must do so at
this time. Electronic comments and data may be submitted by sending
electronic mail (e-mail) to: a-and-r-docket@epamail.epa.gov. Submit
comments as an ASCII file, avoiding the use of special characters and
any form of encryption. Comments and data will also be accepted on
diskette in Word Perfect 5.1 or 6.1 or ACSII file format. Identify all
comments and data in electronic form by the docket numbers A-91-64. No
Confidential Business Information (CBI) should be submitted through
electronic mail. Electronic comments may be filed online at many
Federal Depository Libraries.
Outline. The information presented in this preamble is organized as
follows:
I. What are the relative responsibilities of permitting authorities
and EPA Regional Offices under the current Section 112(g) rule?
II. Why does EPA want to amend these relative responsibilities in
some cases?
III. What are the requirements to review this action in Court?
IV. Administrative Requirements
A. Docket
B. Paper Reduction Act
C. E.O. 12866: The Unfunded Mandates Reform Act of 1995, the
Regulatory Flexibility Act, and the Small Business Regulatory
Enforcement Fairness Act of 1996
D. National Technology Transfer and Advancement Act
E. E.O. 13045: Protection of Children from Environmental Health
and Safety Risks
F. E.O. 13084: Consultation and Coordination with Indian Tribal
Governments
G. E.O. 12875: Enhancing the Intergovernmental Partnership
H. Submission to Congress and the Comptroller General
I. What are the Relative Responsibilities of Permitting Authorities
and EPA Regional Offices Under the Current Section 112(g) Rule?
Section 112(g) is effective in a State or local jurisdiction on the
date specified by the permitting authority, at the time it adopts a
program to implement section 112(g), or June 29, 1998, whichever is
earlier. Thus, permitting authorities had until June 29, 1998 to
initiate implementing programs. To place its implementing program into
effect, the chief executive officer of the State or local jurisdiction
must have certified to the EPA that its program meets all the
requirements set forth in this rule, and published a notice stating
that the program has been adopted and specifying its effective date.
The program need not have been officially reviewed or approved by the
EPA.
After June 29, 1998, if a State or local permitting authority had
not yet initiated a program to implement the section 112(g) rule, there
have been two options for obtaining a MACT approval: either (1) the
permitting authority would make section 112(g) determinations according
to procedures specified in Sec. 63.43 of this rule, and issue a Notice
of MACT Approval that would become final and legally enforceable after
the EPA had concurred in writing with the permitting authority's
determination; or (2) the EPA Regional Administrator would issue
section 112(g) determinations for up to 1 year--i.e. until June 29,
1999.
II. Why Does EPA Want to Amend These Relative Responsibilities in
Some Cases?
If the permitting authority had not yet initiated an implementing
program by June 29, 1999, the section 112(g) rule did not provide an
explicit mechanism by which construction permits could be issued. It
was assumed that all permitting authorities would have established
section 112(g) programs by that time. However, it has now become clear
that a few permitting authorities will not have initiated an
implementing program by June 29, 1999. In addition, some of these
jurisdictions believe that they may not yet have the authority even to
issue a Notice of MACT Approval for EPA concurrence. Therefore, in some
jurisdictions, after June 29, 1999, it is possible that there could be
no mechanism by which a major source could receive the MACT
determination required by the Act in order to construct.
This action therefore provides a longer time period (up to 30
months) during which the EPA Regional Administrator may determine MACT
emission limitations on a case-by-case basis, if the permitting
authority has not yet established procedures for requiring MACT on
constructed or reconstructed major sources. This action is needed in
order to ensure that major sources can obtain MACT determinations
required for construction or reconstruction in those jurisdictions
where permitting authorities require extra time to establish procedures
to implement the section 112(g) rule. We believe that this action
provides enough extra time for permitting authorities to establish
procedures for requiring MACT on constructed or reconstructed major
sources, as required by section 112(g) of the Act.
III. What are the Requirements to Review This Action in Court?
Under Section 307(b)(1) of the Act, judicial review of this final
rule is available only by the filing of a petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit by August
30, 1999. Any such judicial review is limited to only those objections
which are raised with reasonable specificity in timely comments. 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.
IV. Administrative Requirements
A. Docket
The docket for this regulatory action is A-91-64, 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 principle 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 (except for interagency review materials) (Section 307(d)(7)(A)
of the Act). The docket is available for public inspection at the EPA's
Air and Radiation Docket and Information Center, the location of which
is given in the ADDRESSES section of this document.
B. Paper Reduction Act
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 (ICR No. 1658.01) 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 does not
affect the information collection burden estimates made previously.
Therefore, the ICR has not been revised.
[[Page 35031]]
C. Analysis Under E.O. 12866, the Unfunded Mandates Reform Act of 1995,
the Regulatory Flexibility Act, and the Small Business Regulatory
Enforcement Fairness Act of 1996
Because the regulatory revisions that are the subject of today's
notice would delay an existing requirement, this action is not a
``significant'' regulatory action within the meaning of Executive Order
12866, and does not impose any Federal mandate on State, local and
tribal governments or the private sector within the meaning of the
Unfunded Mandates Reform Act of 1995. Further, the EPA has determined
that it is not necessary to prepare a regulatory flexibility analysis
in connection with this action under the Regulatory Flexibility Act and
the Small Business Regulatory Enforcement Fairness Act of 1996. The
regulatory change proposed here is not expected to affect the
regulatory burdens on small businesses, and will not have a significant
impact on a substantial number of small entities.
D. National Technology Transfer and Advancement Act
Under Section 12 of the National Technology Transfer and
Advancement Act of 1995, the EPA must consider the use of ``voluntary
consensus standards,'' if available and applicable, when implementing
policies and programs, unless it would be ``inconsistent with
applicable law or otherwise impractical.'' The intent of the National
Technology Transfer and Advancement Act is to reduce the costs to the
private and public sectors by requiring federal agencies to draw upon
any existing, suitable technical standards used in commerce or
industry.
A ``voluntary consensus standard'' is a technical standard
developed or adopted by a legitimate standards-developing organization.
The Act defines ``technical standards'' as ``performance-based or
design-specific technical specifications and related management systems
practices.'' A legitimate standards-developing organization must
produce standards by consensus and observe principles of due process,
openness, and balance of interests. Examples of organizations that are
regarded as legitimate standards-developing organizations include the
American Society for Testing and Materials (ASTM), International
Organization for Standardization (ISO), International Electrotechnical
Commission (IEC), American Petroleum Institute (API), National Fire
Protection Association (NFPA) and Society of Automotive Engineers
(SAE).
Since today's action does not involve the establishment or
modification of technical standards, the requirements of the National
Technology Transfer and Advancement Act do not apply.
E. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that (1) OMB determines is ``economically
significant'' as defined under Executive Order 12866, and (2) EPA
determines the environmental health or safety risk addressed by the
rule has a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety aspects 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.
These regulatory revisions are not subject to the Executive Order
because it is not economically significant as defined in E.O. 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.
F. Executive Order 13084--Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, 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, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, 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, Executive Order 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. These rule revisions impose
no enforceable duties on these entities. Accordingly, the requirements
of Section 3(b) of Executive Order 13084 do not apply to this rule.
G. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, 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, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget 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, Executive Order 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 changes do not create a mandate on State, local or
tribal governments. The rule changes do not impose any additional
enforceable duties on these entities. Accordingly, the requirements of
Section 1(a) of Executive Order 12875 do not apply to this rule.
H. 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 action is not
[[Page 35032]]
a ``major rule'' as defined by 5 U.S.C. 804(2).
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: June 24, 1999.
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. Section 63.42(b) is revised to read as follows:
Sec. 63.42 Program requirements governing construction or
reconstruction of major sources.
* * * * *
(b) Failure to adopt program. In the event that the permitting
authority fails to adopt a program to implement section 112(g) with
respect to construction or reconstruction of major sources of HAP with
an effective date on or before June 29, 1998, and the permitting
authority concludes that it is able to make case-by-case MACT
determinations which conform to the provisions of Sec. 63.43 in the
absence of such a program, the permitting authority may elect to make
such determinations. However, in those instances where the permitting
authority elects to make case-by-case MACT determinations in the
absence of a program to implement section 112(g) with respect to
construction or reconstruction of major sources of HAP, no such case-
by-case MACT determination shall take effect until after it has been
submitted by the permitting authority in writing to the appropriate EPA
Regional Adminstrator and the EPA Regional Administrator has concurred
in writing that the case-by-case MACT determination by the permitting
authority is in conformity with all requirements established by
Secs. 63.40 through 63.44. In the event that the permitting authority
fails to adopt a program to implement section 112(g) with respect to
construction or reconstruction of major sources of HAP with an
effective date on or before June 29, 1998, and the permitting authority
concludes that it is unable to make case-by-case MACT determinations in
the absence of such a program, the permitting authority may request
that the EPA Regional Administrator implement a transitional program to
implement section 112(g) with respect to construction or reconstruction
of major sources of HAP in the affected State of local jurisdiction
while the permitting authority completes development and adoption of a
section 112(g) program. Any such transitional section 112(g) program
implemented by the EPA Regional Administrator shall conform to all
requirements established by Secs. 63.40 through 63.44, and shall remain
in effect for no more than 30 months. Continued failure by the
permitting authority to adopt a program to implement section 112(g)
with respect to construction or reconstruction of major sources of HAP
shall be construed as a failure by the permitting authority to
adequately administer and enforce its title V permitting program and
shall constitute cause by EPA to apply the sanctions and remedies set
forth in the Clean Air Act section 502(I).
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[FR Doc. 99-16681 Filed 6-29-99; 8:45 am]
BILLING CODE 6560-50-P
