Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories; State of Nevada; Nevada Division of Environmental Protection; Washoe County District Health Department

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6014-5]

Delegation of National Emission Standards for Hazardous Air

Pollutants for Source Categories; State of Nevada; Nevada Division of

Environmental Protection; Washoe County District Health Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to delegate the authority to

implement and enforce specific national emission standards for

hazardous air pollutants (NESHAPs) to the Nevada Division of

Environmental Protection (NDEP) and the Washoe County District Health

Department (WCDHD) in Nevada. EPA is also approving WCDHD's program for

receiving delegation of unchanged NESHAPs applicable to sources not

subject to Title V of the 1990 Clean Air Act Amendments. The preamble

outlines the process that NDEP and WCDHD will

[[Page 28907]]

use to receive delegation of any future NESHAP, and identifies the

NESHAP categories to be delegated by today's action. EPA has reviewed

each agency's request for delegation and has found that these requests

satisfy all of the requirements necessary to qualify for approval.

Thus, EPA is hereby granting NDEP and WCDHD the authority to implement

and enforce the unchanged NESHAP categories listed in this rule.

DATES: This rule is effective on July 27, 1998 unless EPA receives

relevant adverse comments by June 26, 1998. If EPA receives such

comment, then it will publish a timely withdrawal in the Federal

Register informing the public that this rule will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region

IX office listed below. Copies of the requests for delegation and other

supporting documentation are available for public inspection (docket

number A-96-25) at the following location: U.S. Environmental

Protection Agency, Region IX, Rulemaking Office (AIR-4), Air Division,

75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4),

Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1200.

SUPPLEMENTARY INFORMATION:

I. Background

Section 112(l) of the Clean Air Act, as amended in 1990 (CAA),

authorizes EPA to delegate to state or local air pollution control

agencies the authority to implement and enforce the standards set out

in 40 CFR part 63, National Emission Standards for Hazardous Air

Pollutants for Source Categories. On November 26, 1993, EPA promulgated

regulations, codified at 40 CFR part 63, subpart E (hereinafter

referred to as ``subpart E''), establishing procedures for EPA's

approval of state rules or programs under section 112(l) (see 58 FR

62262).

Any request for approval under CAA section 112(l) must meet the

approval criteria in 112(l)(5) and 40 CFR part 63, subpart E. To

streamline the approval process for future applications, a state or

local agency may submit a one-time demonstration that it has adequate

authorities and resources to implement and enforce any CAA section 112

standards. If such demonstration is approved, then the state or local

agency would no longer need to resubmit a demonstration of these same

authorities and resources for every subsequent request for delegation

of CAA section 112 standards. However, EPA maintains the authority to

withdraw its approval if the State does not adequately implement or

enforce an approved rule or program.

On December 12, 1995, EPA approved the Nevada Division of

Environmental Protection's (NDEP's) program for accepting delegation of

section 112 standards that are unchanged from Federal standards as

promulgated (see 60 FR 63631). The approved program reflects an

adequate demonstration by NDEP of general resources and authorities to

implement and enforce section 112 standards. However, formal delegation

for an individual standard does not occur until NDEP obtains the

necessary regulatory authority to implement and enforce that particular

standard, and EPA approves NDEP's formal delegation request for that

standard.

On January 5, 1995, EPA approved the Washoe County District Health

Department's (WCDHD's) program for accepting delegation of section 112

standards (see 60 FR 1741). This approval extended only to sources that

are subject to the CAA Title V operating permit program. WCDHD

subsequently requested approval for its program to receive delegation

of unchanged section 112 standards applicable to non-Title V sources

(see letter from Brian L. Jennison, Director, Air Quality Management

Division, WCDHD to Felicia Marcus, Regional Administrator, U.S. EPA

Region IX, dated December 12, 1997). Therefore, today's action includes

approval under section 112(l) of WCDHD's program for accepting

delegation of section 112 standards applicable to non-Title V sources.

The approved programs reflect an adequate demonstration by WCDHD of

general resources and authorities to implement and enforce section 112

standards. However, formal delegation for an individual standard does

not occur until WCDHD obtains the necessary regulatory authority to

implement and enforce that particular standard, and EPA approves

WCHDH's formal delegation request for that standard.

Both NDEP and WCDHD informed EPA that they intend to obtain the

regulatory authority necessary to accept delegation of section 112

standards by incorporating section 112 standards into their respective

state and local codes of regulation by reference to the Federal

regulations; NDEP will be incorporating the section 112 standards into

the Nevada Administrative Code, and WCDHD will be incorporating the

standards into the WCDHD District Board of Health Regulations Governing

Air Quality Management. The details of these delegation mechanisms are

set forth in Memorandums of Agreement (MOAs) between each agency and

EPA, and are available for public inspection at the U.S. EPA Region IX

office (docket No. A-96-25).

On January 30, 1998, NDEP requested delegation for several

individual section 112 standards that have been incoporated by

reference into the Nevada Administrative Code. On December 3, 1997,

WCDHD requested delegation for section 112 standards that have been

incorporated by reference into the WCDHD District Board of Health

Regulations. The standards that are being delegated by today's action

are listed in a table at the end of this rule.

II. EPA Action

A. Delegation for Specific Standards

After reviewing NDEP's and WCDHD's requests for delegation of

various national emissions standards for hazardous air pollutants

(NESHAPs), EPA has determined that these requests meet all the

requirements necessary to qualify for approval under CAA section 112(l)

and 40 CFR 63.91. Accordingly, NDEP and WCDHD are granted the authority

to implement and enforce the requested NESHAPs. These delegations will

be effective on July 27, 1998. A table of the NESHAP categories that

will be delegated to each agency is shown at the end of this rule.

Although NDEP and WCDHD will have primary implementation and

enforcement responsibility, EPA retains the right, pursuant to CAA

section 112(l)(7), to enforce any applicable emission standard or

requirement under CAA section 112. In addition, EPA does not delegate

any authorities that require implementation through rulemaking in the

Federal Register, or where Federal overview is the only way to ensure

national consistency in the application of the standards or

requirements of CAA section 112.

After a state or local agency has been delegated the authority to

implement and enforce a NESHAP, the delegated agency becomes the

primary point of contact with respect to that NESHAP. Pursuant to 40

CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA Region IX waives the

requirement that notifications and reports for delegated standards be

submitted to EPA as well as to NDEP or WCDHD.

In its December 3, 1997 request, WCDHD included a request for

delegation of the regulations implementing CAA sections 112(g) and

112(j), codified at 40 CFR part 63, subpart B. These requirements apply

to major sources only, and need not be

[[Page 28908]]

delegated under the section 112(l) approval process. When promulgating

the regulations implementing section 112(g), EPA stated its view that

``the Act directly confers on the permitting authority the obligation

to implement section 112(g) and to adopt a program which conforms to

the requirements of this rule. Therefore, the permitting authority need

not apply for approval under section 112(l) in order to use its own

program to implement section 112(g)'' (see 61 FR 68397). Similarly,

when promulgating the regulations implementing section 112(j), EPA

stated its belief that ``section 112(l) approvals do not have a great

deal of overlap with the section 112(j) provision, because section

112(j) is designed to use the title V permit process as the primary

vehicle for establishing requirements'' (see 59 FR 26447). Therefore,

state or local agencies implementing the requirements under sections

112(g) and 112(j) do not need approval under section 112(l). As a

result, EPA is not taking action to delegate 40 CFR part 63, subpart B

to WCDHD.

B. Delegation Mechanism for Future Standards

Today's document takes action to approve WCDHD's program for

receiving delegation of unchanged section 112 standards applicable to

non-Title V sources, and serves to notify the public of the details of

NDEP's and WCDHD's procedure for receiving delegation of future NESHAP.

As set forth in the MOAs, NDEP and WCDHD intend to incorporate by

reference, into their respective state and local codes of regulation,

each newly promulgated NESHAP for which they intend to seek delegation.

The agencies will then submit a letter to EPA Region IX, along with

proof of regulatory authority, requesting delegation for each

individual NESHAP. Region IX will respond in writing that delegation is

either granted or denied. If a request is approved, the delegation of

authorities will be considered effective upon the date of the response

letter from Region IX. Periodically, EPA will publish in the Federal

Register a listing of the standards that have been delegated. Although

EPA reserves its right, pursuant to 40 CFR 63.96, to review the

appropriateness of any future delegation request, EPA will not

institute any additional comment periods on these future delegation

actions. Any parties interested in commenting on this procedure for

delegating future unchanged NESHAPs should do so at this time.

C. Opportunity for Public Comment

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial action and anticipates no

adverse comments. However, in the Proposed Rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal for this action should relevant adverse

comments be filed. This action will be effective July 27, 1998 without

further notice unless the Agency receives relevant adverse comments by

June 26, 1998.

If EPA receives such comments, then EPA will publish a document

withdrawing this final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. EPA will not

institute a second comment period on the proposed rule. Any parties

interested in commenting on the proposed rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on July 27, 1998 and no further action will be

taken on the proposed rule.

IV. Administrative Requirements

A. 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.

Delegations of authority to implement and enforce unchanged Federal

standards under section 112(l) of the Clean Air Act do not create any

new requirements but simply transfer primary implementation authorities

to the State. Therefore, because this action does not impose any new

requirements, I certify that it does not have a significant impact on

any small entities affected.

B. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, 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

private sector, of $100 million or more. Under section 205, 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 EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the delegation action promulgated 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.

C. Submission to Congress and the General Accounting Office

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 rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

D. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by July 27, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements (see section 307(b)(2)).

E. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action

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from review under Executive Order 12866.

F. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to

any rule that is (1) likely to be ``economically significant'' as

defined under Executive Order 12866, and (2) the Agency has reason to

believe that the environmental health or safety risk addressed by the

rule may have a disproportionate effect on children. If a regulatory

action meets both criteria, the Agency must evaluate the environmental

health or safety effects 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.

This rule is not subject to E.O. 13045, ``Protection of Children

from Environmental Health Risks and Safety Risks'' because this is not

an ``economically significant'' regulatory action as defined by E.O.

12866, and because it does not involve decisions on environmental

health or safety risks that may disproportionately affect children.

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.

Authority: This action is issued under the authority of section

112 of the Clean Air Act, as amended, 42 U.S.C. 7412.

Dated: May 4, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

Title 40, chapter I, part 63 of the Code of Federal Regulations 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.

Subpart E--Approval of State Programs and Delegation of Federal

Authorities

2. Section 63.99 is amended by adding and reserving paragraphs

(a)(6) through (a)(27), and adding paragraph (a)(28) to read as

follows:

Sec. 63.99 Delegated Federal authorities.

(a) * * *

(6)-(27) (Reserved)

(28) Nevada.

(i) The following table lists the specific part 63 standards that

have been delegated unchanged to the air pollution control agencies in

the State of Nevada. The (X) symbol is used to indicate each category

that has been delegated.

Delegation Status for Part 63 Standards--Nevada

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Subpart Description NDEP \1\ WCDHD \2\ CCHD \3\

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A.............. General Provisions.... X X

M.............. Perchloroethylene Dry X X

Cleaning.

N.............. Hard and Decorative X X

Chromium

Electroplating and

Chromium Anodizing

Tanks.

O.............. Ethylene Oxide ......... X

Sterilization

Facilities.

Q.............. Industrial Process X

Cooling Towers.

R.............. Gasoline Distribution ......... X

Facilities.

T.............. Halogenated Solvent X X

Cleaning.

JJ............. Wood Furniture X

Manufacturing

Operations.

KK............. Printing and X X

Publishing Industry.

OO............. Tanks--Level 1........ X

PP............. Containers............ X

QQ............. Surface Impoundments.. X

RR............. Individual Drain X

Systems.

VV............. Oil-Water Separators X

and Organic-Water

Separators.

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\1\ Nevada Department of Environmental Protection.

\2\ Washoe County District Health Department.

\3\ Clark County Health Department.

(ii) [Reserved]

[FR Doc. 98-13986 Filed 5-26-98; 8:45 am]

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