Hazardous Air Pollutants: Amendment to Regulations Governing Equivalent Emission Limitations by Permit

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-5503-3]

Hazardous Air Pollutants: Amendment to Regulations Governing

Equivalent Emission Limitations by Permit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On May 20, 1994, the Agency promulgated a rule in the Federal

Register governing the establishment of equivalent emission limitations

by permit, pursuant to section 112(j) of the Clean Air Act (Act). After

the effective date of a Title V permit program in a State, each owner

or operator of a major source in a source category for which the EPA

was scheduled to, but failed to promulgate a section 112(d) emission

standard will be required to obtain an equivalent emission limitation

by permit. The permit application must be submitted to the Title V

permitting authority 18 months after the EPA's missed promulgation

date. This action amends the original Regulations Governing Equivalent

Emission Limitations by Permit rule. This amendment delays the section

112(j) permit application deadline for all 4-year source categories

listed in the regulatory schedule by 180 days until November 15, 1996.

This action is needed to alleviate unnecessary paperwork for both major

source owners or operators and permitting agencies.

EFFECTIVE DATE: May 10, 1996.

ADDRESSES: Docket. All information used in the development of this

final action is contained in the preamble below. However, Docket No. A-

93-32, containing the supporting information for the original

Regulations Governing Equivalent Emission Limitations by Permit 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.

FOR FURTHER INFORMATION CONTACT: Mr. James Szykman or Mr. Anthony

Wayne, Emission Standards Division (MD-13), U.S. Environmental

Protection Agency, Research Triangle Park, North Carolina 27711,

telephone (919) 541-2452 (Szykman) or (919) 541-5439 (Wayne).

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SUPPLEMENTARY INFORMATION: In the Proposed Rules Section of this

Federal Register, EPA is proposing a rule that is identical to this

direct final rule. If significant, adverse comments are timely received

on the proposed rule, the direct final rule will be withdrawn, and all

such comments will be addressed in a subsequent final rule based on the

proposed rule. If no significant, adverse comments are timely received

on the proposed final rule, then the direct final rule remains

effective upon publication, and no further action is contemplated on

the parallel proposal published today.

The information presented in this preamble is organized as follows:

I. Background

II. Summary of Rule Change and Rationale

A. Permit Application Deadline

B. Effective Date

C. Judicial Review

III. Administrative Requirements

A. Docket

B. Regulatory Impact Analysis

C. Impact on Reporting Requirements

D. Impact on Small Entities

E. Reduction of Governmental Burden

F. Environmental Justice

G. Unfunded Mandates

I. Background

Section 112(e) of the Clean Air Act (the Act) requires the Agency

to publish a schedule for promulgating regulations establishing

hazardous air pollutants (HAP) emission standards for all source

categories listed pursuant to Section 112 of the Act. The Act further

directs that this regulatory schedule require the promulgation of

emission standards for at least 40 source categories by 1992, for at

least 25 percent of the listed categories by 1994, for at least 50

percent of the listed categories by 1997, and all remaining categories

by the year 2000. These are commonly referred to as the 2-year, 4-year,

7-year, and the 10-year maximum achievable control technology (MACT)

standards, respectively. This regulatory schedule was published by EPA

on December 3, 1993 (58 FR 64931).

If EPA should fail to promulgate a MACT standard for a listed

source category by 18 months after the date in the regulatory schedule,

section 112(j) of the Act requires owners or operators of major sources

within that source category to obtain a Title V permit, if the major

source is located in a State with an approved Title V permit program.

This permit will require compliance with an emission limitation

equivalent to that which the major source would have been subject to

had EPA promulgated a timely MACT standard for that source category.

On May 20, 1994, EPA issued a final rule for implementing section

112(j) (59 FR 26429). This rule requires major source owners or

operators to submit a permit application by the date 18 months after a

missed date on the regulatory schedule. In accordance with this

regulation, the deadlines for submittal of permit applications are as

follows:

------------------------------------------------------------------------

112(j) permit

Emission standard Regulatory schedule application

deadline

------------------------------------------------------------------------

4-year......................... 11/15/94........... 5/15/96

7-year......................... 11/15/97........... 5/15/99

10-year........................ 11/15/00........... 5/15/02

------------------------------------------------------------------------

II. Summary of Rule Change and Rationale

A. Permit Application Deadline

To date, EPA has promulgated several 4-year MACT standards and

intends to promulgate MACT standards for all of the remaining 4-year

source categories within the 18-month period following the date in the

regulatory schedule. All of the remaining 4-year source categories for

which MACT standards must be promulgated have court-ordered deadlines

with the latest deadline coinciding with the section 112(j) permit

application deadline of May 15, 1996.

In order for owners or operators of major sources to submit a

timely permit application in the event that EPA would fail to

promulgate a 4-year emission standard, applicants would have to begin

preparation of these applications immediately. If EPA promulgates

standards in accordance with the court-ordered schedule, this would

result in an unnecessary burden for both the owners or operators and

the Title V permitting agencies.

The EPA believes that ample authority for this rule revision exists

under the de minimis doctrine. That doctrine allows EPA to promulgate a

rule that avoids a statutory requirement if (1) following that

requirement would yield an environmental benefit of trivial or no

value, and (2) the statutory scheme is not so rigid as to preclude this

result. Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir

1979). The EPA believes both tests are met here. Regarding the first

point, it should be intuitively apparent that requiring sources to

complete applications for a case-by-case determination is pointless

when it is very likely that EPA will promulgate the MACT standard

within a timeframe that renders the entire case-by-case exercise moot.

This is precisely the case with regard to the pending 4-year MACT

standards, all of which are under a court-ordered deadline for issuance

close to the date applications are due. Regarding the second test, the

language of section 112(j)(2), requiring that applications be submitted

on a date ``beginning'' 18 months after a deadline has been missed, and

the clear intent of the statute that case-by-case determinations should

be made where they will serve as a substitute for the pending MACT

standard, together suggest a level of flexibility in the statutory

scheme sufficient to allow resort to the de minimis rationale.

The EPA is amending the definition of ``Section 112(j) deadline''

in Sec. 63.51 of the final rule to delay the section 112(j) permit

application deadline for all 4-year source categories by 180 days until

November 15, 1996. The EPA believes that this new application deadline

will allow sufficient time to promulgate the remaining 4-year emission

standards and is consistent with the intent of section 112(j). If EPA

does promulgate the emission standards before this time, permit

applications or reopenings will be governed by Title V requirements.

B. Effective Date

The EPA is publishing this rule as a final rule, and it is

effective immediately upon publication. The Agency believes that this

action is supported by the ``good cause'' exception in the

Administrative Procedures Act, which permits an agency for ``good

cause'' to proceed directly to a final rule where issuing a proposed

rule would be ``impracticable, unnecessary, or contrary to the public

interest'' [5 U.S.C. 553(b)(B)] and for ``good cause found'' [5 U.S.C.

553(d)] to dispense with the general requirement that a rule be

published 30 days before its effective date. The EPA believes that good

cause exists here to issue a final, immediately effective rule because

of the nearness of the May 15, 1996, permit application deadline (for

major sources in the 4-year source category) specified in the May 20,

1994 (59 FR 26429) final rule. If the changes in this rulemaking were

only being proposed, then the May 15, 1996, deadline would still be in

effect and this would negate the intent of this change to the rule to

delay the permit application deadline until November 15, 1996, for

sources in the 4-year source category. Furthermore, EPA views this

action to delay the permit application deadline as noncontroversial.

C. Judicial Review

Under Section 307(b)(1) of the Act, judicial review of the actions

taken by this final rule is available only by the filing of a petition

for review in the U.S.

[[Page 21372]]

Court of Appeals for the District of Columbia Circuit within 60 days of

publication of this action. 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.

III. Administrative Requirements

A. Docket

The docket for this regulatory action is A-93-32, 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 docket is an organized

and complete file of all the information submitted to, or otherwise

considered by, EPA in the development of the original rulemaking. The

principal 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. The docket

is available for public inspection at EPA's Air and Radiation Docket

and Information Center, which is listed under the ADDRESSES section of

this document.

B. Regulatory Impact Analysis

This rule was classified ``non-significant'' under Executive Order

12866 and therefore was not reviewed by the Office of Management and

Budget.

C. Impact on Reporting Requirements

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 (OMB control number 2060-0266) 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

to delay the deadline for submittal of section 112(j) permit

applications does not affect the information collection burden

estimates made previously. Therefore, the ICR has not been revised.

D. Impact on Small Entities

The Regulatory Flexibility Act of 1980 requires the identification

of potentially adverse impacts of Federal regulations upon small

business entities. The Act specifically requires the completion of a

Regulatory Flexibility Analysis in those instances where small business

impacts are possible. Because this rulemaking imposes no economic

impacts, adverse or otherwise, a Regulatory Flexibility Analysis has

not been prepared.

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify

that this rule will not have a significant economic impact on a

substantial number of small business entities.

E. Reduction of Governmental Burden

Executive Order 12875 (``Enhancing the Intergovernmental

Partnership'') is designed to reduce the burden to State, local, and

Tribal governments of the cumulative effect of unfunded Federal

mandates. The Order recognizes the need for these entities to be free

from unnecessary Federal regulation to enhance their ability to address

problems they face and provides for Federal agencies to grant waivers

to these entities from discretionary Federal requirements. The Order

applies to any regulation that is not required by statute and that

creates a mandate upon a State, local, or Tribal government. The EPA

anticipates that there will be no additional cost burden imposed on

State, local, and Tribal governments as a result of today's action.

Indeed, the purpose of the action is to reduce unnecessary burden on

permitting agencies.

F. Environmental Justice

Executive Order 12898 requires that each Federal agency shall make

achieving environmental justice part of its mission by identifying and

addressing, as appropriate, disproportionately high and adverse human

health or environmental effects of its programs, policies, and

activities on minority and low-income populations. Today's action will

help ensure timely compliance and the application of consistent

regulatory requirements by allowing the section 112(d) MACT standards

to become effective without triggering an unnecessary section 112(j)

process. Therefore, no adverse human health or environmental effects

are anticipated as a result of today's action.

G. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), the 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 the private sector, of $100

million or more. Under Section 205, the 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 the EPA to establish a plan for informing and advising any

small governments that may be significantly or uniquely impacted by the

rule.

The EPA has determined that the 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. Therefore, the requirements of the

Unfunded Mandates Act do not apply to this action.

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: May 3, 1996.

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. In Sec. 63.51, the definition of ``Section 112(j) deadline'' is

revised to read as follows:

Sec. 63.51 Definitions.

* * * * *

Section 112(j) deadline means the date 18 months, after the date by

which a relevant standard is scheduled to be promulgated under this

part, except for all major sources listed in the source category

schedule for which a relevant standard is scheduled to be promulgated

by November 15, 1994, the section 112(j) deadline is November 15, 1996.

* * * * *

[FR Doc. 96-11737 Filed 5-9-96; 8:45 am]

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