[Federal Register Volume 61, Number 166 (Monday, August 26, 1996)]
[Rules and Regulations]
[Pages 43675-43677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21579]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5551-9]
Interim Approval of Section 112(l) Delegated Authority;
Washington
AGENCY: Environmental Protection Agency (EPA)
ACTION: Final Interim Approval and Delegation.
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SUMMARY: EPA is promulgating final interim approval of the state of
Washington Department of Ecology (Ecology) request for delegation of
authority to implement and enforce state-adopted hazardous air
pollutant regulations which adopt by reference the federal National
Emission Standards for Hazardous Air Pollutants (NESHAP) contained
within 40 CFR Parts 61 and 63, as these regulations apply to sources
that are required to obtain a federal operating permit under 40 CFR
Part 70 (i.e., Part 70 sources). EPA is also promulgating interim
approval of certain local air agency potential-to-emit limiting
regulations which will now be recognized as federally enforceable. At
Ecology's request, EPA is delaying approval of certain other state and
local potential-to-emit limiting regulations.
These adopted regulations approved as part of this action will be
implemented and enforced by both Ecology and/or the following local air
authorities within the state of Washington: The Benton County Clean Air
Authority (BCCAA); the Northwest Air Pollution Authority (NWAPA); the
Olympic Air Pollution Control Authority (OAPCA); the Puget Sound Air
Pollution Control Agency (PSAPCA); the Southwest Air Pollution Control
Authority (SWAPCA); the Spokane County Air Pollution Control Authority
(SCAPCA); and the Yakima County Clean Air Authority (YCCAA);
collectively referred to as ``the Washington permitting authorities.''
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: Chris Hall, US EPA, OAQ-107, 1200
Sixth Avenue, Seattle, WA, 98101, (206) 553-1949.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Section 112(l) of the federal Clean Air Act (CAA) enables the EPA
to approve state air toxic programs or rules to operate in place of the
Federal air toxic program or rules. The Federal air toxic program
implements the requirements found in section 112 of the CAA pertaining
to the regulation of hazardous air pollutants. Approval of an air toxic
program is granted by the EPA if the Agency finds that: (1) the State
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program is ``no less stringent'' than the corresponding federal program
or rule, (2) the State has adequate authority and resources to
implement the program, (3) the schedule for implementation and
compliance is sufficiently expeditious, and (4) the program is
otherwise in compliance with federal guidance. Once approval is
granted, the air toxic program can be implemented and enforced by State
or local agencies, as well as EPA.
Implementation by local agencies is dependent upon appropriate
subdelegation.
On January 5, 1995 (as supplemented on May 8, 1995, October 18,
1995, and January 9, 1996), the Washington permitting authorities
submitted to EPA an application requesting delegation of authority to
implement and enforce specific 40 CFR Part 61 and Part 63 NESHAP
regulations adopted into Washington state and local law. On February
16, 1996, EPA proposed interim approval of this request for delegation
and requested public comment on this action. See 61 FR 6184. As of the
close of the 30 day public comment period (March 17, 1996), EPA had
received comments from two parties, both of which were supportive of
the proposed delegation. On June 13, 1996, Ecology requested that EPA
withhold action on its request for approval of: WAC 173-400-110, -112,
-113, and -114; NWAPA Regulation sections 300 through 303; OAPCA
Regulation 1, Article 7; SCAPCA Regulation I, Article II and V; and,
YCCAA Restated Regulation I, Sections 4.02 and 12.01, until further
notice.
II. Response to Comments
Comments were received from both the Washington state Department of
Ecology (C1) and the Southwest Air Pollution Control Authority (C2).
EPA's responds to the substantive comments contained in C1 and C2
as follows:
1. In C1 and C2, Ecology and SWAPCA clarified that the
Washington permitting authorities were not only requesting
delegation for existing NESHAP regulations which have already been
adopted into state and local law, but were also requesting approval
of their mechanism for receiving delegation of future NESHAP
regulations which the state and locals adopt into state and local
law unchanged.
2. In C1 and C2, Ecology and SWAPCA clarified that sources in
Washington state are either subject to an operating permit fee or a
source registration fee, but not both. EPA acknowledges this
correction and no further response is necessary.
3. In C2, SWAPCA gave notice that it had changed its regulatory
numbering of one specific local regulation to coincide with the
numbering in the state regulation. SWAPCA 400-090 ``Voluntary Limits
on Emissions'' has been changed to SWAPCA 400-091 as of September
21, 1995.
4. In C1, Ecology expressed the concern that in the proposed
rulemaking EPA raised invalid concerns regarding the adequacy of the
Washington permitting authorities' resources for implementing and
enforcing the delegated NESHAP regulations.
In response to comment No. 1, EPA agrees that approval of the
mechanism for future delegations proposed by the Washington permitting
authorities will greatly streamline future delegation of those federal
NESHAP regulations that are adopted into state and local law unchanged.
Therefore, EPA grants interim approval of this adoption-by-reference
mechanism for the Washington permitting authorities. In this respect,
the Washington permitting authorities will only need to send a letter
of request to EPA for those future NESHAP regulations which the state
or local agencies have adopted by reference. EPA will respond to this
request by sending a letter back to the state or local air agency
delegating the NESHAP standards requested. No further formal response
from the state or local agency will be necessary, and if no negative
response is received within 10 days, the delegation becomes final. A
notice of the delegation will be published in the Federal Register to
inform the public that the delegation has taken place and to indicate
where a source notification and other reports should be sent.
In response to comment No. 3, EPA agrees to grant interim approval
of SWAPCA Regulation 400-091, as it was in effect September 21, 1995,
in place of SWAPCA Regulation 400-090.
Finally, in response to comment No. 4, it was not EPA's intention
to raise any doubts regarding the Washington permitting authorities'
ability to provide for adequate resources for implementing, assuring
compliance, and enforcing the adopted NESHAP regulations within the
state of Washington. EPA believes that the Washington permitting
authorities have adequately documented that they will be able to
provide resources which are adequate to run their respective air toxics
programs.
III. Programs for Interim Approval
In this action, under the authority of section 112(l)(5) and 40 CFR
63.91, EPA is promulgating interim approval of the Washington
permitting authorities' request for delegated authority to implement
and enforce 40 CFR Part 61, subparts A, C through F, J, L through P, V,
Y, BB, and FF, as adopted into WAC 173-400 (as in effect February 16,
1993), NWAPA Section 104.2 (as in effect December 8, 1993), PSAPCA
Regulation III Section 2.02 (as in effect October 19, 1995), SWAPCA
Regulation 400 Section 075 (as in effect February 1, 1995), and YCCAA
Regulation I Section 12.02 (as in effect September 14, 1994), as these
rules apply to Part 70 sources. EPA is also promulgating interim
approval of the NWAPA, PSAPCA, and SWAPCA request for delegated
authority to implement and enforce the following locally-adopted 40 CFR
Part 63 NESHAP regulations as they apply to Part 70 sources: NWAPA
regulation 104.2 which adopts by reference 40 CFR Part 63 subparts A
through D, F through I, L, M, and Q, as amended on October 19, 1994;
PSAPCA Regulation III, Section 2.02 as in effect on October 19, 1995,
which adopts by reference 40 CFR Part 63 subparts A, B, D, F through I,
L through O, Q, R, T, W, X, and EE, as in effect as of July 1, 1995;
and, SWAPCA Regulation 400-075 as in effect on February 1, 1995, which
adopts by reference 40 CFR Part 63 subparts A, B, D, F-I, L-O, R, Q, T,
and EE.
Additionally, EPA is promulgating interim approval under the
authority of section 112(l)(5) and 40 CFR 63.91 of Washington's
mechanism for receiving delegation of section 112 standards that are
unchanged from federal standards as promulgated.
EPA is also promulgating interim approval of PSAPCA Regulation I,
Article 6, and Regulation III, Appendix A; and, SWAPCA Regulation 400-
091, -110, -112, -113, and -114 under the authority of Sec. 112(l) of
the Act in order to recognize these regulations as federally
enforceable for purposes of establishing potential-to-emit limitations.
Upon Ecology's request, EPA is withholding action on WAC 173-400-110, -
112, -113, and -114; NWAPA Regulation, Sections 300 through 303; OAPCA
Regulation 1, Article 7; SCAPCA Regulation I, Article II and V; and,
YCCAA Restated Regulation I, Sections 4.02 and 12.01, until further
notice.
Since EPA has determined that Washington's criminal authorities
under RCW 70.94.430 do not meet the stringency requirement of 40 CFR
70.11, EPA is only promulgating interim approval of the Washington
permitting authorities request for delegation. In this respect, EPA
will retain implementation and enforcement authority for these rules as
they apply to non-Part 70 sources during the interim period or until
such time as the Washington permitting authorities demonstrate that
their criminal authorities meet EPA
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stringency requirements. As outlined in the proposed rulemaking to this
final action (61 FR 6184), the Washington permitting authorities were
requested to demonstrate to EPA that Washington's criminal enforcement
authorities are consistent with the requirements of 40 CFR 70.11(a),
and therefore 40 CFR 63.91(b)(1) and (b)(6), if they wish to receive
``full'' approval. Specifically, the Washington permitting authorities
were requested to:
(1) Revise RCW 70.94.430 to provide for maximum criminal
penalties of not less than $10,000 per day per violation, as
required by 40 CFR 70.11(a)(3)(ii),
(2) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly makes any false material
statement, representation or certification in any form, in any
notice or report required by a permit, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of
not less than $10,000 per day per violation, and
(3) Revise RCW 70.94.430 to allow the imposition of criminal
penalties against any person who knowingly renders inaccurate any
required monitoring device or method, as required by 40 CFR
70.11(a)(3)(iii). This provision must include maximum penalties of
not less than $10,000 per day per violation, or
(4) Demonstrate to the satisfaction of EPA that these
authorities are consistent with 40 CFR 70.11, and therefore 40 CFR
61.91.
To date, Ecology has only submitted supporting documentation to
demonstrate that existing state laws are adequate to meet the
requirements of (1) above. It is EPA's understanding that final action
at the state level resolving issues (2) and (3) above will be completed
by August 15, and will become effective on September 15. Since EPA has
not had the opportunity to fully review the supporting documentation
received to date in regard to (1) above, a final determination as to
whether the requirements of 40 CFR 70.11 and 61.91 have been met will
not be made at this time. EPA anticipates being able to take final
action on these interim delegation issues in the near future, but not
before Ecology's proposed regulatory changes in regard to (2) and (3)
above become effective on September 15. Unless EPA takes prior action,
this delegation of authority to implement and enforce the federal
NESHAP regulations will extend only until December 9, 1996, the day on
which interim authority for Washington's Title V federal operating
permit program expires. EPA will not extend this interim delegation
past December 9, 1996, unless deemed appropriate under Part 70
rulemaking.
IV. Summary of Action
Pursuant to the authority of Sec. 112(l) of the Act and 40 CFR Part
63 subpart E, EPA is promulgating interim approval of the Washington
permitting authorities' request for delegation of authority to
implement and enforce specific 40 CFR Part 61 and Part 63 federal
NESHAP regulations which have been adopted into Washington state and
local law for part 70 sources. Additionally, EPA is promulgating
interim approval of the mechanism by which the Washington permitting
authorities will receive delegation of future NESHAP regulations.
Finally, EPA is promulgating interim approval of specific SWAPCA and
PSAPCA air regulations for the purpose of conferring federal
enforceability to synthetic minor permits or orders issued pursuant to
these regulations.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 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.
NESHAP rule or program delegations approved under the authority of
section 112(l) of the Act do not create any new requirements, but
simply confer federal authority for those requirements that the state
of Washington is already imposing. Therefore, because section 112
delegation approvals do not impose any new requirements, the Agency has
determined that it would not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Act, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning State programs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates Reform Act
EPA has determined that the proposed approval action promulgated
today 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.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added 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 this rule in the
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 24, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-21579 Filed 8-23-96; 8:45 am]
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