[Federal Register Volume 61, Number 133 (Wednesday, July 10, 1996)]
[Rules and Regulations]
[Pages 36295-36298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17323]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5531-3]
Approval of State Programs and Delegation of Federal Authorities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action revises the ``Approval of State Programs and
Delegation of Federal Authorities'' (subpart E). The amendments are
being made to clarify regulatory text, reduce administrative burden and
provide more flexibility to States using this rulemaking. Additionally,
today's action does not have any environmental impact. As a result, the
Agency does not anticipate receiving adverse comments. Consequently,
the amendments are being issued as a direct final rule.
DATES: The direct final rule will be effective August 19, 1996 unless
significant, adverse comments are received by August 9, 1996. If
significant, timely adverse comments are received on the direct final
rule, the direct final rule will be withdrawn.
ADDRESSES: Comments. Comments should be submitted (in duplicate, if
possible) to: Air and Radiation Docket and Information Center (6102),
Attention Docket Number A-96-09, Room M-1500, U.S. EPA, 401 M Street,
SW., Washington, DC 20460. The EPA requests that a separate copy also
be sent to the contact person listed below.
FOR FURTHER INFORMATION CONTACT: Mr. Gilbert Wood at (919) 541-5272 or
Ms. Sheila Q. Milliken at (919) 541-2625, Integrated Implementation
Group, Information Transfer and Program Integration Division (MD-12),
U.S. Environmental Protection Agency, Research Triangle Park, North
Carolina 27711.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this action are State, local, or
tribal governments that voluntarily implement Clean Air Act (Act)
section 112 rules, emission standards, or requirements. This action
does not regulate emission sources directly. Regulated categories and
entities include:
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Category Examples of regulated entities
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State, local, tribal governments.... State, local, or tribal
governments that voluntarily
request approval of rules or
programs to be implemented in
place of Act section 112 rules,
emission standards or
requirements or voluntarily
request delegation of unchanged
section 112 rules.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. The existing procedures
and criteria for requesting and receiving approval of these State,
local, or tribal government rules or programs or voluntarily requesting
delegation of unchanged section 112 rules are in sections 63.90 through
63.95 of this subpart.
On November 26, 1993 (58 FR 62262), the EPA promulgated in the
Federal Register guidance relating to the approval of State programs
and delegation of Federal authorities under the authority of section
112(l) of the Act. Section 112(l)(2) of the Act requires the EPA to
publish guidance useful to States in developing programs for
implementing and enforcing emission standards and other requirements
for hazardous air pollutants (HAP). The use of delegation under section
112(l) is voluntary on the part of the States. The regulations were
promulgated as subpart E in 40 CFR part 63.
Today's action modifies the subpart E final regulation to improve
clarity of administrative procedures and eliminate unnecessary and, in
some cases, impractical requirements imposed on the States. Today's
changes do not significantly modify the requirements of the regulation.
The revisions are discussed in the order in which they appear in the
subpart E regulation. If timely significant adverse comments are
received on any amendment of this direct final rule, that amendment of
the direct final rule will be withdrawn and all such comments will be
addressed in a subsequent final rule based on the proposed rule
contained in the proposed rules section of this Federal Register that
addresses issues in this direct final rule. If no timely significant
adverse comments are received on this direct final rule, then the
direct final rule will become effective August 19, 1996 and no further
action is contemplated on the parallel proposal published today.
Preamble Outline
The following outline is provided to aid in locating information in
this preamble.
I. Description of Changes
A. Approval of State Mechanism to Receive Delegation of Existing
and Future Unchanged Federal Section 112 Standards and Requirements
B. Deletion of 6-month Reporting Requirement
C. Additional Language Regarding Implementation of Chemical
Safety Hazard Investigation Board Requirement
D. Approval of State Rules and Programs Designed to Limit
Potential to Emit (PTE)
II. Unfunded Mandates Reform Act
III. Administrative
A. Paperwork Reduction Act
B. Executive Order 12866 Review
C. Regulatory Flexibility Act
D. Submission to Congress and the General Accounting Office
[[Page 36296]]
I. Description of Changes
A. Approval of State Mechanism to Receive Delegation of Existing and
Future Unchanged Federal Section 112 Standards and Requirements
Section 63.91 of the subpart E rule establishes a process for
straight delegation of individual maximum achievable control technology
(MACT) standards after they are promulgated, but it does not include a
process for approving a program for delegation of all future MACT
standards through a single, advance program approval. State and local
agencies have asked for a more streamlined method for taking delegation
of future and existing unchanged Federal section 112 standards and
requirements.
The EPA agrees with the merit of a program that will allow State
and local agencies to receive upfront approval of the mechanism with
which they would take delegation of existing and future unchanged
Federal section 112 standards. Such a program would eliminate the need
for State and local agencies to submit individual requests for
delegation of unchanged Federal section 112 standards on a rule-by-rule
basis. Regional Offices would benefit by receiving early identification
of States' intentions for receiving delegation. State and local
agencies would have minimal administrative burden in submitting their
requests for approval.
The EPA established policy for such a process for sources subject
to part 70 permitting through a memorandum entitled, ``Straight
Delegations Issues Concerning Sections 111 and 112 Requirements and
Title V,'' dated December 10, 1993, from John Seitz, Director, Office
of Air Quality Planning and Standards, U.S. EPA. A similar program for
sources not subject to part 70 is detailed in the revised enabling
guidance for subpart E (``Interim Enabling Guidance for the
Implementation of 40 CFR part 63, subpart E,'' dated November 1993,
EPA-453/R-93-040). The EPA intends to codify the policy described in
the memorandum and guidance in this direct final rulemaking. Therefore,
EPA is making the necessary revisions to the subpart E rule to include
a process of approving State mechanisms for receiving delegation of
existing and future unchanged Federal section 112 standards and
requirements consistent with its current policy. Submittals previously
approved before today's action will not be affected. Revisions are
being made to sections 63.90 and 63.91 which specifically indicate that
States can request upfront EPA approval of the State's mechanism for
taking delegation of future unchanged Federal section 112 standards and
requirements.
B. Deletion of 6-Month Reporting Requirement
The subpart E rule currently contains a provision which requires 6-
month reporting by sources of all required monitoring or testing for
the State rule which replaces a Federal rule (Sec. 63.93(b)(4)(iv)).
This requirement was originally placed in the subpart E rule to be
consistent with requirements in the part 70 operating permit rule at 40
CFR part 70, Sec. 70.6(a)(3)(iii)(A).
State and local agencies believe that the 6-month reporting
requirement for regulated sources is duplicative of reporting
requirements already included in individual MACT standards and the
title V permit program regulations. They feel that this requirement is
unnecessary and creates paperwork with little or no benefit.
An example of where this requirement could adversely affect a
source is in the case where the MACT rule only requires yearly
reporting. If a State wanted to substitute their rule for the Federal
MACT rule, the source would be required to report every 6 months due to
the existing subpart E requirement. Area sources do not trigger the 6-
month reporting requirement of title V, and thus, should only be
required to report yearly. Nonetheless, subpart E currently mandates 6-
month reporting. Consequently, it imposes, an unnecessary additional
burden on sources in States with delegated air toxics programs.
In this scenario, the EPA feels that there would be no value added
in increasing the reporting requirement to a mandatory minimum of 6-
months because EPA has already determined the frequency of reporting
necessary to assure compliance in each MACT standard or in the General
Provisions. In addition, since section 112(l) is voluntary, the 6-month
reporting provision imposes an increased burden on sources whose States
submit equivalent State rules or programs for EPA approval, and
discourages States from accepting delegation of the Federal rule.
The EPA agrees that this requirement is not necessary as a general
requirement and is revising section 63.93 by deleting
Sec. 63.93(b)(4)(iv).
C. Additional Language Regarding Implementation of Chemical Safety and
Hazard Investigation Board Requirement
Section 112(r)(7)(B)(iii) requires coordination with the Chemical
Safety and Hazard Investigation Board (CSHIB) on accident
investigations. For consistency, the subpart E rule (section 63.95
(b)(4)(i)) reiterates this requirement. State and local agencies
believe this language should be deleted because the CSHIB has not yet
been established. Continued inclusion of this provision imposes a
meaningless requirement. It should be noted, however, that the CSHIB
may be convened at some later date. The EPA agrees that it is
appropriate that the requirement not take effect until the CSHIB is
convened. Consequently, section 63.95(b)(4)(i) is being revised to add
the sentence, ``This requirement will not take effect until the
Chemical Safety and Hazard Investigation Board is convened.''
D. Approval of State Rules and Programs Designed to Limit Potential to
Emit (PTE)
Currently, a number of States are submitting, for EPA approval into
the State Implementation Plan, rules and programs such as prohibitory
rules and federally enforceable State operating permit programs
(FESOP). There are a few hazardous air pollutants (for example
methylene chloride) which are not regulated by the criteria pollutant
program. Accordingly, when a State seeks Federal approval of these
rules and programs, as they relate to such pollutants, the EPA approval
will be given pursuant to section 112(l) of the Act.
The current subpart E rule does not expressly provide for approval
of programs designed to limit sources' potential to emit hazardous air
pollutants. As explained in various recent notices approving PTE
programs for section 112 purposes, EPA believes the authority exists
under section 112(l) of the statute to approve PTE programs.
Promulgation of a rule expressly providing for such approvals is
consistent with this statutory authority. Thus, the EPA is today
revising subpart E to clarify that it may be used to approve State PTE
programs for section 112 purposes, in order to ensure that an
unintended ``gap'' does not exist for pollutants such as methylene
chloride.
The EPA notes that it is currently reexamining its policy on PTE
for the section 112, title V, and new source review programs. One
possible outcome of this reexamination is that PTE limits will no
longer have to be federally enforceable. However, EPA believes that
today's revision to subpart E is neutral with respect to this issue.
The revision to subpart E merely clarifies that the rule may be used as
a pathway for approval of State PTE programs. It does not in and of
itself establish a
[[Page 36297]]
requirement that limits on PTE must be issued pursuant to a program
approved by EPA. In other words, today's revision clarifies that
subpart E may be used to approve a PTE program that a State chooses to
submit, without addressing whether or why a State would make this
choice.
II. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year.
Today's rule contains no Federal mandates (under the regulatory
provisions of title II of the UMRA) for State, local, or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary Federal program. The EPA has also
determined that this rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any 1
year. Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
III. Administrative
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated subpart E rulemaking were submitted to and approved by the
Office of Management and Budget (OMB). A copy of this Information
Collection Request (ICR) document (with an OMB approval control number
2060-0264) may be obtained from the Regulatory Information Division
(2136), U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, D.C. 20460, or by calling (202) 260-2740.
Today's changes to the rulemaking may slightly reduce the
information collection burden estimates made previously. Since the
expected reduction will not be significant, the ICR has not been
revised.
B. Executive Order 12866 Review
The subpart E rulemaking, promulgated on November 26, 1993 was
considered a ``significant regulatory action'' under Executive Order
12866 (58 FR 5173, dated October 4, 1993) and submitted to OMB for
review. According to the Executive Order, a ``significant regulatory
action is one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, of State, local or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Today's action is not considered a ``significant regulatory
action'' within the meaning of this Executive Order. The amendments
issued today clarify the rule and change certain administrative
requirements to increase the flexibility to States in terms of gaining
approval of their respective State programs. Therefore, the EPA
concludes these amendments do not need to undergo OMB review.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. This rule will
not increase, and is likely to reduce, regulatory burdens on small
businesses. EPA has determined that this rule will have no adverse
effect on small businesses.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted 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 General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
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.
Dated: June 26, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
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 63.90 is amended by adding a sentence after the third
sentence and a sentence at the end of the introductory text to read as
follows:
Sec. 63.90 Program overview.
* * * In this process, States may seek approval of a State
mechanism for receiving delegation of existing and future unchanged
Federal section 112 standards. * * * This subpart also establishes
procedures for the approval of State rules or programs to establish
limitations on the potential to emit pollutants listed in or pursuant
to section 112(b) of the Act.
* * * * *
2. Section 63.91 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 63.91 Criteria common to all approval options.
(a) Approval process. To obtain approval under this subpart of a
rule or program that is different from the Federal rule, the criteria
of this section and the criteria of either Sec. 63.92, Sec. 63.93 or
Sec. 63.94 must be met. For approval of State programs to implement and
enforce Federal section 112 rules as promulgated without changes
(except for accidental release programs), only the criteria of this
section must be met. This includes State requests for upfront approval
of their mechanism for taking delegation of future unchanged Federal
section 112 standards and requirements as well as approval to implement
and enforce unchanged Federal section 112 standards and requirements on
a rule-by rule basis. For approval of State rules or programs to
implement and enforce the Federal accidental release prevention program
as promulgated without
[[Page 36298]]
changes, the requirements of this section and section Sec. 63.95 must
be met. In the case of accidental release prevention programs which
differ from the Federal accidental release prevention program, the
requirements of this section, Sec. 63.95, and either Sec. 63.92 or
Sec. 63.93 must be met. The Administrator may, under the authority of
Section 112(l) and this subpart, also approve a State program designed
to establish limits on the potential to emit of pollutants listed
pursuant to Section 112(b) of the Clean Air Act. For a State's initial
request for approval of any rule or program under this subpart, and
except as otherwise specified under Sec. 63.92, Sec. 63.93, or
Sec. 63.94 for a State's subsequent requests for approval, the approval
process will be the following:
* * * * *
Sec. 63.93 [Amended]
3. Section 63.93 is amended by removing paragraph (b)(4)(iv).
4. Section 63.95 is amended by revising paragraph (b)(4)(i) to read
as follows:
Sec. 63.95 Additional approval criteria for accidental release
prevention programs.
* * * * *
(b) * * *
(4) * * *
(i) The Chemical Safety and Hazard Investigation Board,
particularly during accident investigation. This requirement will not
take effect until the Chemical Safety and Hazard Investigation Board is
convened; and
* * * * *
[FR Doc. 96-17323 Filed 7-9-96; 8:45 am]
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