Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories; State of Arizona; Pima County Department of Environmental Quality

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6366-8]

Delegation of National Emission Standards for Hazardous Air

Pollutants for Source Categories; State of Arizona; Pima County

Department of Environmental Quality

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 Pima County Department of

Environmental Quality (PDEQ) in Arizona. The preamble outlines the

process that PDEQ will use to receive delegation of any future NESHAP,

and identifies the

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

PDEQ's request for delegation and has found that this request satisfies

all of the requirements necessary to qualify for approval. Thus, EPA is

hereby granting PDEQ the authority to implement and enforce the

unchanged NESHAP categories listed in this rule.

DATES: This rule is effective on August 27, 1999 without further

notice, unless EPA receives adverse comments by July 28, 1999. If EPA

receives such comment, it will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the

Region IX office listed below. Copies of the request 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 October 30, 1996, EPA approved the Pima County Department of

Environmental Quality (PDEQ's) program for accepting delegation of

section 112 standards that are unchanged from Federal standards as

promulgated (see 61 FR 55910). Additional revisions to that program

were approved on September 23, 1998 (see 63 FR 50769). The approved

program reflects an adequate demonstration by PDEQ of general resources

and authorities to implement and enforce section 112 standards.

However, formal delegation for an individual standard does not occur

until PDEQ obtains the necessary regulatory authority to implement and

enforce that particular standard, and EPA approves PDEQ's formal

delegation request for that standard.

PDEQ informed EPA that it intends to obtain the regulatory

authority necessary to accept delegation of section 112 standards by

incorporating section 112 standards into the Pima County Code. The

details of this delegation mechanism are set forth in a Memorandum of

Agreement (MOA) between PDEQ and EPA, and are available for public

inspection at the U.S. EPA Region IX office (docket No. A-96-25).

On May 12, 1999, PDEQ requested delegation for several individual

section 112 standards that have been incorporated by reference into the

Pima County Code. 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 PDEQ's request for delegation of various national

emissions standards for hazardous air pollutants (NESHAPs), EPA has

determined that this request meets all the requirements necessary to

qualify for approval under CAA section 112(l) and 40 CFR 63.91.

Accordingly, PDEQ is granted the authority to implement and enforce the

requested NESHAPs. These delegations will be effective on August 27,

1999. A table of the NESHAP categories that will be delegated to PDEQ

is shown at the end of this rule. Although PDEQ 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 PDEQ.

In its May 12, 1999 request, PDEQ included a request for delegation

of the regulations implementing CAA section 112(i)(5), codified at 40

CFR part 63, subpart D. These requirements apply to state or local

agencies that have a permit program approved under title V of the Act

(see 40 CFR 63.70). PDEQ received final interim approval of its title V

operating permits program on October 30, 1996 (see 61 FR 55910). State

or local agencies implementing the requirements under subpart D do not

need approval under section 112(l). Therefore, EPA is not taking action

to delegate 40 CFR part 63, subpart D to PDEQ.

PDEQ also 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 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 PDEQ.

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B. Delegation Mechanism for Future Standards

Today's document serves to notify the public of the details of

PDEQ's procedure for receiving delegation of future NESHAPs. As set

forth in the MOA, PDEQ intends to incorporate by reference, into the

Pima County Code, each newly promulgated NESHAP for which it intends to

seek delegation. PDEQ 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 adverse comments

be filed. This rule will be effective August 27, 1999 without further

notice unless the Agency receives adverse comments by July 28, 1999.

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

withdrawal in the Federal Register 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 this rule. Any parties

interested in commenting on this rule should do so at this time. If no

such comments are received, the public is advised that this rule will

be effective on August 27, 1999 and no further action will be taken on

the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, ``Enhancing the Intergovernmental Partnership,''

EPA may not issue a regulation that is not required by statute and that

creates a mandate upon a state, local or tribal government, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by those governments, or EPA consults with

those governments. If EPA complies by consulting, E.O. 12875 requires

EPA to provide to OMB a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. Accordingly,

the requirements of section 1(a) of E.O. 12875 do not apply to this

rule.

C. Executive Order 13045

``Protection of Children from Environmental Health Risks and Safety

Risks'' (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the 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 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under E.O. 13084, ``Consultation and Coordination with Indian

Tribal Governments,'' EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to OMB, in a separately identified section of the preamble to

the rule, a description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to

conduct a regulatory flexibility analysis of any rule subject to notice

and comment rulemaking requirements unless the agency certifies that

the rule will not have a significant economic impact on a substantial

number of small entities. Small entities include small businesses,

small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because 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 or local agency.

Therefore, because this action does not impose any new requirements, I

certify that this action will not have a significant impact on a

substantial number of small entities.

F. Unfunded Mandates

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

annual costs to state, local, or tribal governments in the aggregate,

or to private sector, of $100

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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 annual 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.

G. Submission to Congress and the Comptroller General

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).

H. 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 August 27, 1999. 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)).

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: June 10, 1999.

David P. Howekamp,

Director, Air Division, 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 revising paragraph (a)(3) to read as

follows:

Sec. 63.99 Delegated Federal Authorities

(a) * * *

(3) Arizona. The following table lists the specific part 63

standards that have been delegated unchanged to the air pollution

control agencies in the State of Arizona. The (X) symbol is used to

indicate each category that has been delegated.

Delegation Status for Part 63 Standards--Arizona

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Subpart Description ADEQ \1\ MCESD \2\ PDEQ \3\ PCAQCD \4\

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

F......................... Synthetic Organic Chemical X ............ X X

Manufacturing Industry.

G......................... Synthetic Organic Chemical X ............ X X

Manufacturing Industry:

Process Vents, Storage

Vessels, Transfer

Operations, and Wastewater.

H......................... Organic Hazardous Air X ............ X X

Pollutants: Equipment Leaks.

I......................... Organic Hazardous Air X ............ X X

Pollutants: Certain

Processes Subject to the

Negotiated Regulation for

Equipment.

L......................... Coke Oven Batteries......... X ............ X X

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

Cleaning.

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

Electroplating and Chromium

Anodizing Tanks.

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

Facilities.

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

Towers.

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

Facilities.

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

U......................... Group I Polymers and Resins. X ............ X X

W......................... Epoxy Resins Production and X ............ X X

Non-Nylon Polyamides

Production.

X......................... Secondary Lead Smelting..... X ............ X X

CC........................ Petroleum Refineries........ X ............ X X

DD........................ Off-Site Waste and Recovery X ............ X X

Operations.

EE........................ Magnetic Tape Manufacturing X ............ X X

Operations.

GG........................ Aerospace Manufacturing and X ............ X X

Rework Facilities.

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

Operations.

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

Industry.

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

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

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

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

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

Organic-Water Separators.

JJJ....................... Group IV Polymers and Resins X ............ ............ X

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\1\ Arizona Department of Environmental Quality.

\2\ Maricopa County Environmental Services Department.

\3\ Pima County Department of Environmental Quality.

\4\ Pinal County Air Quality Control District.

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[FR Doc. 99-16231 Filed 6-25-99; 8:45 am]

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