Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-6369-6]

RIN 2060-AD06

Hazardous Air Pollutants: Regulations Governing Constructed or

Reconstructed Major Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final rule.

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

SUMMARY: On December 27, 1996, the Agency published a rule in the

Federal Register implementing certain provisions in section 112(g) of

the Clean Air Act (Act). After the effective date of that rule, all

owners or operators of major sources of hazardous air pollutants (HAP)

that are constructed or reconstructed are required to install maximum

achievable control technology (MACT) (unless specifically exempted),

provided they are located in a State with an approved title V permit

program. When no applicable Federal emission limitation has been

promulgated under section 112(d) of the Act, the Act requires the

permitting authority (generally a State or local agency responsible for

the program) to determine a MACT emission limitation on a case-by-case

basis. If the permitting authority has not yet established procedures

for requiring MACT on constructed or reconstructed major sources by the

required date, the rule provides that the EPA Regional Administrator

will determine MACT emission limitations on a case-by-case basis for a

period of up to one year. This action amends the rule governing

constructed or reconstructed major sources--by providing a longer time

period (up to 30 months) during which the EPA Regional Administrator

may determine MACT emission limitations on a case-by-case basis--if the

permitting authority has not yet established procedures for requiring

MACT on constructed or reconstructed major sources. This action is

needed in order to ensure that major sources can obtain MACT

determinations required for construction or reconstruction in those

jurisdictions where permitting authorities require extra time to

establish procedures to implement the section 112(g) rule.

EFFECTIVE DATE: This final rule amendment will be effective on July 30,

1999 without further notice, unless EPA receives adverse comments on

this rulemaking by July 12, 1999 or a request for a hearing concerning

the accompanying proposed rule is received by EPA by July 7, 1999. If

EPA receives timely adverse comment or a timely hearing request, EPA

will publish a withdrawal in the Federal Register informing the public

that this direct final rule will not take effect and will proceed to

promulgate a final rule based on the proposed rule.

ADDRESSES: Comments. Interested parties may submit comments on this

rulemaking in writing (original and two copies, if possible) to Docket

No. A-91-64 to the following address: Air and Radiation Docket and

Information Center (6102), US Environmental Protection Agency, 401 M

Street, S.W., Room 1500, Washington, D.C. 20460. The EPA requests that

a separate copy of each public comment be sent to the contact person

listed below (see FOR FURTHER INFORMATION CONTACT). Comments may also

be submitted electronically by following the instructions provided in

SUPPLEMENTARY INFORMATION. Public comments on this rulemaking will be

accepted until July 12, 1999.

Docket. All information used in the development of this final

action is contained in the preamble below. However, Docket No. A-91-64,

containing the supporting information for the original Regulations

Governing Constructed or Reconstructed Major Sources 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.

These documents can also be accessed through the EPA web site at:

http://www.epa.gov/ttn/oarpg. For further information and general

questions regarding the Technology Transfer Network (TTNWEB), call Mr.

Hersch Rorex (919) 541-5637 or Mr. Phil Dickerson (919) 541-4814.

FOR FURTHER INFORMATION CONTACT: Ms. Kathy Kaufman, Information

Transfer and Program Integration Division (MD-12), U.S. Environmental

Protection Agency, Research Triangle Park, North Carolina 27711,

telephone (919)541-0102.

SUPPLEMENTARY INFORMATION: EPA is publishing this rule amendment

without prior proposal because we consider this to be a

noncontroversial amendment; and we do not expect to receive any adverse

comment. However, in the ``Proposed Rules'' section of this Federal

Register publication, we are publishing a separate document that will

serve as the proposal for this amendment, in the event we receive

adverse comment or a hearing request and this direct final rule is

subsequently withdrawn. This final rule amendment will be effective on

July 30, 1999 without further notice, unless we receive adverse comment

on this rulemaking by July 12, 1999 or a request for a hearing

concerning the accompanying proposed rule is received by EPA by July 7,

1999. If EPA receives timely adverse comment or a timely hearing

request, we will publish a withdrawal in the Federal Register

[[Page 35030]]

informing the public that this direct final rule will not take effect.

In that event, we will address all public comments in a subsequent

final rule, based on the proposed rule amendment published in the

``Proposed Rules'' section of this Federal Register document. The EPA

will not provide further opportunity for public comment on this action.

Any parties interested in commenting on this amendment must do so at

this time. Electronic comments and data may be submitted by sending

electronic mail (e-mail) to: [email protected]. Submit

comments as an ASCII file, avoiding the use of special characters and

any form of encryption. Comments and data will also be accepted on

diskette in Word Perfect 5.1 or 6.1 or ACSII file format. Identify all

comments and data in electronic form by the docket numbers A-91-64. No

Confidential Business Information (CBI) should be submitted through

electronic mail. Electronic comments may be filed online at many

Federal Depository Libraries.

Outline. The information presented in this preamble is organized as

follows:

I. What are the relative responsibilities of permitting authorities

and EPA Regional Offices under the current Section 112(g) rule?

II. Why does EPA want to amend these relative responsibilities in

some cases?

III. What are the requirements to review this action in Court?

IV. Administrative Requirements

A. Docket

B. Paper Reduction Act

C. E.O. 12866: The Unfunded Mandates Reform Act of 1995, the

Regulatory Flexibility Act, and the Small Business Regulatory

Enforcement Fairness Act of 1996

D. National Technology Transfer and Advancement Act

E. E.O. 13045: Protection of Children from Environmental Health

and Safety Risks

F. E.O. 13084: Consultation and Coordination with Indian Tribal

Governments

G. E.O. 12875: Enhancing the Intergovernmental Partnership

H. Submission to Congress and the Comptroller General

I. What are the Relative Responsibilities of Permitting Authorities

and EPA Regional Offices Under the Current Section 112(g) Rule?

Section 112(g) is effective in a State or local jurisdiction on the

date specified by the permitting authority, at the time it adopts a

program to implement section 112(g), or June 29, 1998, whichever is

earlier. Thus, permitting authorities had until June 29, 1998 to

initiate implementing programs. To place its implementing program into

effect, the chief executive officer of the State or local jurisdiction

must have certified to the EPA that its program meets all the

requirements set forth in this rule, and published a notice stating

that the program has been adopted and specifying its effective date.

The program need not have been officially reviewed or approved by the

EPA.

After June 29, 1998, if a State or local permitting authority had

not yet initiated a program to implement the section 112(g) rule, there

have been two options for obtaining a MACT approval: either (1) the

permitting authority would make section 112(g) determinations according

to procedures specified in Sec. 63.43 of this rule, and issue a Notice

of MACT Approval that would become final and legally enforceable after

the EPA had concurred in writing with the permitting authority's

determination; or (2) the EPA Regional Administrator would issue

section 112(g) determinations for up to 1 year--i.e. until June 29,

1999.

II. Why Does EPA Want to Amend These Relative Responsibilities in

Some Cases?

If the permitting authority had not yet initiated an implementing

program by June 29, 1999, the section 112(g) rule did not provide an

explicit mechanism by which construction permits could be issued. It

was assumed that all permitting authorities would have established

section 112(g) programs by that time. However, it has now become clear

that a few permitting authorities will not have initiated an

implementing program by June 29, 1999. In addition, some of these

jurisdictions believe that they may not yet have the authority even to

issue a Notice of MACT Approval for EPA concurrence. Therefore, in some

jurisdictions, after June 29, 1999, it is possible that there could be

no mechanism by which a major source could receive the MACT

determination required by the Act in order to construct.

This action therefore provides a longer time period (up to 30

months) during which the EPA Regional Administrator may determine MACT

emission limitations on a case-by-case basis, if the permitting

authority has not yet established procedures for requiring MACT on

constructed or reconstructed major sources. This action is needed in

order to ensure that major sources can obtain MACT determinations

required for construction or reconstruction in those jurisdictions

where permitting authorities require extra time to establish procedures

to implement the section 112(g) rule. We believe that this action

provides enough extra time for permitting authorities to establish

procedures for requiring MACT on constructed or reconstructed major

sources, as required by section 112(g) of the Act.

III. What are the Requirements to Review This Action in Court?

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

rule is available only by the filing of a petition for review in the

U.S. Court of Appeals for the District of Columbia Circuit by August

30, 1999. Any such judicial review is limited to only those objections

which are raised with reasonable specificity in timely comments. 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.

IV. Administrative Requirements

A. Docket

The docket for this regulatory action is A-91-64, 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 principle 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 (except for interagency review materials) (Section 307(d)(7)(A)

of the Act). The docket is available for public inspection at the EPA's

Air and Radiation Docket and Information Center, the location of which

is given in the ADDRESSES section of this document.

B. Paper Reduction Act

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 (ICR No. 1658.01) 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 does not

affect the information collection burden estimates made previously.

Therefore, the ICR has not been revised.

[[Page 35031]]

C. Analysis Under E.O. 12866, the Unfunded Mandates Reform Act of 1995,

the Regulatory Flexibility Act, and the Small Business Regulatory

Enforcement Fairness Act of 1996

Because the regulatory revisions that are the subject of today's

notice would delay an existing requirement, this action is not a

``significant'' regulatory action within the meaning of Executive Order

12866, and does not impose any Federal mandate on State, local and

tribal governments or the private sector within the meaning of the

Unfunded Mandates Reform Act of 1995. Further, the EPA has determined

that it is not necessary to prepare a regulatory flexibility analysis

in connection with this action under the Regulatory Flexibility Act and

the Small Business Regulatory Enforcement Fairness Act of 1996. The

regulatory change proposed here is not expected to affect the

regulatory burdens on small businesses, and will not have a significant

impact on a substantial number of small entities.

D. National Technology Transfer and Advancement Act

Under Section 12 of the National Technology Transfer and

Advancement Act of 1995, the EPA must consider the use of ``voluntary

consensus standards,'' if available and applicable, when implementing

policies and programs, unless it would be ``inconsistent with

applicable law or otherwise impractical.'' The intent of the National

Technology Transfer and Advancement Act is to reduce the costs to the

private and public sectors by requiring federal agencies to draw upon

any existing, suitable technical standards used in commerce or

industry.

A ``voluntary consensus standard'' is a technical standard

developed or adopted by a legitimate standards-developing organization.

The Act defines ``technical standards'' as ``performance-based or

design-specific technical specifications and related management systems

practices.'' A legitimate standards-developing organization must

produce standards by consensus and observe principles of due process,

openness, and balance of interests. Examples of organizations that are

regarded as legitimate standards-developing organizations include the

American Society for Testing and Materials (ASTM), International

Organization for Standardization (ISO), International Electrotechnical

Commission (IEC), American Petroleum Institute (API), National Fire

Protection Association (NFPA) and Society of Automotive Engineers

(SAE).

Since today's action does not involve the establishment or

modification of technical standards, the requirements of the National

Technology Transfer and Advancement Act do not apply.

E. Executive Order 13045--Protection of Children From Environmental

Health Risks and Safety Risks

Executive Order 13045, entitled Protection of Children from

Environmental Health Risks and Safety Risks (62 FR 19885, April 23,

1997), applies to any rule that (1) OMB determines is ``economically

significant'' as defined under Executive Order 12866, and (2) EPA

determines the environmental health or safety risk addressed by the

rule has a disproportionate effect on children. If the regulatory

action meets both criteria, the Agency must evaluate the environmental

health or safety aspects 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.

These regulatory revisions are not subject to the Executive Order

because it is not economically significant as defined in E.O. 12866,

and because the Agency does not have reason to believe the

environmental health or safety risks addressed by this action present a

disproportionate risk to children.

F. Executive Order 13084--Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, 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, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, 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, Executive Order 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. These rule revisions impose

no enforceable duties on these entities. Accordingly, the requirements

of Section 3(b) of Executive Order 13084 do not apply to this rule.

G. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, 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, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget 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, Executive Order 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 changes do not create a mandate on State, local or

tribal governments. The rule changes do not impose any additional

enforceable duties on these entities. Accordingly, the requirements of

Section 1(a) of Executive Order 12875 do not apply to this rule.

H. 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 action is not

[[Page 35032]]

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

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: June 24, 1999.

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. Section 63.42(b) is revised to read as follows:

Sec. 63.42 Program requirements governing construction or

reconstruction of major sources.

* * * * *

(b) Failure to adopt program. In the event that the permitting

authority fails to adopt a program to implement section 112(g) with

respect to construction or reconstruction of major sources of HAP with

an effective date on or before June 29, 1998, and the permitting

authority concludes that it is able to make case-by-case MACT

determinations which conform to the provisions of Sec. 63.43 in the

absence of such a program, the permitting authority may elect to make

such determinations. However, in those instances where the permitting

authority elects to make case-by-case MACT determinations in the

absence of a program to implement section 112(g) with respect to

construction or reconstruction of major sources of HAP, no such case-

by-case MACT determination shall take effect until after it has been

submitted by the permitting authority in writing to the appropriate EPA

Regional Adminstrator and the EPA Regional Administrator has concurred

in writing that the case-by-case MACT determination by the permitting

authority is in conformity with all requirements established by

Secs. 63.40 through 63.44. In the event that the permitting authority

fails to adopt a program to implement section 112(g) with respect to

construction or reconstruction of major sources of HAP with an

effective date on or before June 29, 1998, and the permitting authority

concludes that it is unable to make case-by-case MACT determinations in

the absence of such a program, the permitting authority may request

that the EPA Regional Administrator implement a transitional program to

implement section 112(g) with respect to construction or reconstruction

of major sources of HAP in the affected State of local jurisdiction

while the permitting authority completes development and adoption of a

section 112(g) program. Any such transitional section 112(g) program

implemented by the EPA Regional Administrator shall conform to all

requirements established by Secs. 63.40 through 63.44, and shall remain

in effect for no more than 30 months. Continued failure by the

permitting authority to adopt a program to implement section 112(g)

with respect to construction or reconstruction of major sources of HAP

shall be construed as a failure by the permitting authority to

adequately administer and enforce its title V permitting program and

shall constitute cause by EPA to apply the sanctions and remedies set

forth in the Clean Air Act section 502(I).

* * * * *

[FR Doc. 99-16681 Filed 6-29-99; 8:45 am]

BILLING CODE 6560-50-P