Full Delegation of Authority to Commonwealth of Virginia for the Prevention of Significant Deterioration Site-Specific Rulemaking for Merck & Co., Inc. Stonewall Plant

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5927-3]

Full Delegation of Authority to Commonwealth of Virginia for the

Prevention of Significant Deterioration Site-Specific Rulemaking for

Merck & Co., Inc. Stonewall Plant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Information notice.

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

SUMMARY: The EPA is delegating to the Commonwealth of Virginia the

authority to implement and enforce the site-specific rule for the

Prevention of Significant Deterioration of Air Quality (PSD) for the

Merck & Co., Inc. Stonewall Plant in Elkton, Virginia. The Commonwealth

of Virginia has requested that EPA delegate to the Commonwealth the

authority to implement and enforce this site-specific PSD rule. The

Regional Administrator has determined that such a delegation is

appropriate, with the conditions described in this notice.

DATES: This delegation is effective on November 24, 1997.

ADDRESSES: Docket. Copies of the delegation of authority request and

accompanying support documents are available for public inspection

during normal business hours at the following offices: U.S. EPA, Region

III, 841 Chestnut Street, Philadelphia, PA, 19107-4431, (215) 566-2064.

Virginia Department of Environmental Quality, Valley Regional Office,

4411 Early Road, P.O. Box 1129, Harrisonburg, Virginia 22801-1129,

(540) 574-7800.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Moran, U.S. Environmental

Protection Agency, Region III, Air, Radiation & Toxics Division, 841

Chestnut Street (3AT23), Philadelphia, PA 19107-4431, (215) 566-2064.

SUPPLEMENTARY INFORMATION: In a final rule published on October 8,

1997, EPA promulgated a site-specific PSD rule which applies only to

the Merck & Co., Inc. (Merck) Stonewall Plant in Elkton, Virginia, in

order to implement a project under the Project XL program. See 62 FR

52622 (October 8, 1997) and 40 CFR 52.2454. This site-specific PSD rule

authorizes the Administrator to delegate the responsibility to

implement and enforce this rule. The Commonwealth of Virginia currently

implements the federal PSD program regulations codified at 40 CFR 52.21

under a delegation of authority from EPA effective on June 3, 1981. See

40 CFR 52.2451 and 46 FR 29753 (June 3, 1981). On October 27, 1997, the

Director of the Virginia Department of Environmental Quality (VADEQ)

sent to EPA Region III a letter which requested full delegation of

authority for the implementation and enforcement of the site-specific

PSD rule for the Merck Stonewall Plant.

In the preamble to the proposed site-specific rulemaking for the

Merck XL project, and in the Merck's Project XL proposed Final Project

Agreement, EPA had stated its intention to delegate the final site-

specific PSD rule to the Commonwealth of Virginia. See 62 FR 15310

(March 31, 1997). EPA received no adverse comments on this approach

during the public comment period for the proposed site-specific

rulemaking. In the notice of final rulemaking for the Merck XL project,

EPA also explained its intent to delegate to VADEQ the authority to

implement and enforce the PSD site-specific rule. See 62 FR 52623

(October 8, 1997).

Section 301 of the Clean Air Act, in conjunction with sections 101

and 110, authorizes the Administrator to delegate her authority to

implement and enforce the PSD regulations to any state which has

submitted adequate implementation and enforcement procedures. Further,

40 CFR 52.2454(o) authorizes the Administrator to delegate the site-

specific PSD rule for the Merck Stonewall Plant. The Regional

Administrator has determined that the Commonwealth's request for

delegation of the site-specific PSD rule for the Merck Stonewall Plant

is appropriate, subject to the conditions set forth below. EPA has

reviewed the pertinent laws of the Commonwealth of Virginia and the

rules and regulations thereof, and has determined that they provide an

adequate and effective procedure for the implementation of Merck's

site-specific PSD regulation. On September 11, 1997, the State Air

Pollution Control Board of the Commonwealth of Virginia (Board)

approved an order granting a variance (9 VAC 5 Chapter 190) to the

Merck Stonewall Plant for purposes of implementing the XL project. The

variance contains site-specific PSD provisions consistent with those of

EPA's final rulemaking. On October 1, 1997, the Board approved a

regulation (9 VAC 5-190-110) which incorporated by reference the

provisions of EPA's final site-specific PSD rule (as signed by the EPA

Administrator on September 30, 1997). EPA has determined that the order

and the variance regulation provide the Commonwealth with the authority

to implement and enforce the site-specific PSD rule. Therefore,

pursuant to 40 CFR 52.2454(o), EPA hereby delegates authority to

implement and enforce the site-specific PSD rule for the Merck

Stonewall Plant, 40 CFR 52.2454, to the Commonwealth of Virginia as

follows:

1. Authority is delegated for 40 CFR 52.2454 only for the Merck

Stonewall Plant in Elkton, Virginia, since that is the only source

subject to this regulation.

2. If at any time there is a conflict between a Commonwealth

regulation and a Federal regulation (40 CFR 52.2454), the Federal

regulation must be applied if it is more stringent than that of the

Commonwealth. If the Commonwealth does not have the authority to

implement a Federal regulation that is more stringent than the

applicable Commonwealth regulation, the pertinent portion of the

authority may be revoked.

3. If the Regional Administrator determines that the Commonwealth's

procedures for implementing all portions of the site-specific PSD

regulation are inadequate, or that the site-specific PSD regulation is

not being effectively carried out, this authority may be revoked in

whole or in part. Any such revocation shall be effective as of the date

specified in a Notice of Revocation to the VADEQ.

4. Enforcement of the Merck site-specific PSD rule in the

Commonwealth of Virginia will be the primary responsibility of the

VADEQ. If the Commonwealth determines that such enforcement is not

feasible and so notifies EPA, or where the Commonwealth acts in a

manner inconsistent with the terms of this granted authority, EPA will

exercise its concurrent enforcement authority pursuant to Sections 113

and 167 of the Clean Air Act. In accordance with Sections 113 and 167

of the Clean Air Act, EPA reserves the right to commence an enforcement

action against Merck in violation of the site-specific PSD requirements

should the Commonwealth of Virginia fail to take such an enforcement

action or, in the opinion of EPA, fail to pursue a timely or

appropriate enforcement action.

5. Acceptance of this delegation of the presently promulgated site-

specific PSD regulation does not commit the Commonwealth of Virginia to

request or implement enforcement authority for future standards and

requirements.

6. The Commonwealth and EPA will develop a system of communication

sufficient to guarantee a program that includes, at a minimum, the

items described below:

a. Each agency is informed of the current compliance status of the

Merck Stonewall Plant;

b. The VADEQ shall send a copy of the preliminary determination and

public comment notices required under

[[Page 62595]]

paragraph (m) of 40 CFR 52.2454 to EPA Region III at the same time the

notice is being forwarded for publication in the newspaper.

c. The VADEQ will forward to EPA Region III copies of the final PSD

permit and any future permit modifications at the time of issuance.

7. The VADEQ will obtain prior EPA concurrence on any matter

involving the interpretation of sections 160-169 of the Clean Air Act

or 40 CFR 52.2454 to the extent that implementation, review,

administration or enforcement of these sections have not been covered

by determinations or guidance sent by EPA to the VADEQ.

8. This delegation of authority should not be construed as a

transfer of PSD responsibility under section 110(a)(2)(J) of the Clean

Air Act, since such a transfer would involve different procedures and

considerations.

Delegation: Pursuant to the authority delegated to him by the

Administrator, the Regional Administrator is formally notifying the

Director of the VADEQ that the Commonwealth is hereby delegated the

authority to implement and enforce the site-specific PSD rule for the

Merck Stonewall Plant, 40 CFR 52.2454, as of the publication date of

this notice.

ADDITIONAL INFORMATION:

A. Effective Date

Pursuant to 5 U.S.C. 553(d)(3) and 42 U.S.C. 6930(b)(3), the

Regional Administrator finds good cause for making this delegation of

authority effective immediately because it is an administrative change

and not one of substantive content. Further, the Merck & Co., Inc.

Stonewall Plant is the only regulated entity affected by this

delegation. Merck has full notice of this delegation and is prepared to

comply immediately with the permit to be issued expeditiously under the

rule that is being delegated to the Commonwealth of Virginia.

B. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 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. 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. This delegation would not have a significant impact on a

substantial number of small entities because it only affects one

source, the Merck Stonewall Plant, which is not a small entity.

Therefore, EPA certifies that this action will not have a significant

economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

This action applies only to one company, and therefore requires no

information collection activities subject to the Paperwork Reduction

Act, and therefore no information collection request (ICR) will be

submitted to the Office of Management and Budget (OMB) for review in

compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.

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

one year. Before EPA establishes any regulatory requirements that may

significantly or uniquely affect small governments, including tribal

governments, it must have developed under section 203 of the UMRA a

small government agency plan.

As noted above, this delegation is limited to Merck's facility in

Elkton, Virginia. EPA has determined that this delegation contains no

regulatory requirements that might significantly or uniquely affect

small governments. EPA has also determined that this delegation 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 one year. Thus, today's

delegation is not subject to the requirements of sections 202 and 205

of the UMRA.

Dated: November 17, 1997.

W. Michael McCabe,

Regional Administrator.

[FR Doc. 97-30811 Filed 11-21-97; 8:45 am]

BILLING CODE 6560-50-P