Title V Operating Permit Deferrals for Area Sources: National Emission Standards for Hazardous Air Pollutants (NESHAP) for Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; Ethylene Oxide Commercial Sterilization and Fumigation Operations; Perchloroethylene Dry Cleaning Facilities; Halogenated Solvent Cleaning Machines; and Secondary Lead Smelting

Federal RegisterAug 18, 1999

Ask Donna

What actually matters in this document.

Text

SUMMARY: This action proposes to continue to allow permitting

authorities the discretion to defer title V operating permitting

requirements until December 9, 2004 for area sources of air pollution

that are subject to five NESHAP for source categories. These amendments

would continue to relieve industrial sources, State and local agencies,

and the EPA Regional Offices of an undue regulatory burden during a

time when available resources are needed to implement the title V

permit program for major sources. Under the proposed amendments,

sources must continue to meet all applicable requirements, including

all applicable emission control, monitoring, recordkeeping, and

reporting requirements established by the respective NESHAP.

DATES: Comments: We must receive comments on or before September 17,

1999, unless anyone requests a public hearing by September 8, 1999. If

anyone requests a hearing, we must receive written comments by October

18, 1999.

Public Hearing: We will hold a public hearing, if requested, to

provide anyone an opportunity to present data, views, or arguments

concerning the proposed amendments. If anyone contacts us requesting to

speak at a public hearing by September 8, 1999, we will hold a public

hearing on September 17, 1999, beginning at 9:30 a.m. If we hold a

hearing, we will keep the dockets open for 30 days after the hearing

for anyone to submit rebuttal or supplementary information as provided

by section 307(d)(5) of the Clean Air Act (Act).

Request To Speak at a Hearing: Anyone requesting to speak at a

public hearing must contact EPA by September 8, 1999.

ADDRESSES: Comments: Send comments (in duplicate, if possible) to: Air

and Radiation Docket and Information Center (MC-6102), Attention Docket

No. A-88-11 (subpart M), or Attention Docket No. A-88-02 (subpart N),

or Attention Docket No. A-88-03 (subpart O), or Attention Docket No. A-

92-39 (subpart T), or Attention Docket No. A-92-43 (subpart X), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460. Please send a separate copy to the contact person listed below

in the FOR FURTHER INFORMATION CONTACT section. For information on

submitting comments eletronically see the SUPPLEMENTARY INFORMATION

section.

Docket: The following dockets, containing supporting information

for the original rulemakings, are available for public inspection

between 8:00 a.m. and 5:30 p.m., Monday through Friday except for

Federal holidays: Docket No. A-88-11, subpart M NESHAP; Docket No. A-

88-02, subpart N NESHAP; Docket No. A-88-03, subpart O NESHAP; Docket

No. A-92-39, subpart T NESHAP; Docket No. A-92-43, subpart X NESHAP.

These dockets are available for public inspection at the U.S.

Environmental Protection Agency, Air and Radiation Docket and

Information Center (MC-6102), 401 M Street SW, Washington, DC 20460,

telephone (202) 260-7548, Room M-1500, Waterside Mall (ground floor).

We may charge a reasonable fee for copying.

Public Hearing: Anyone interested in attending the hearing should

contact Dorothy Apple, (919) 541-4487, to verify that a hearing will

occur.

Request To Speak at a Hearing: Anyone requesting to speak at a

public hearing must contact Dorothy Apple, Emission Standards Division

(MD-13), U.S. Environmental Protection Agency, Research Triangle Park,

NC 27711, telephone number (919) 541-4487.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Emission Standards

Division (MD-13), U.S. Environmental Protection Agency, Research

Triangle Park, NC, 27711, telephone number (919) 541-5262, fax number

(919) 541-0942, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Submitting Electronic Comments

You may also comment on the proposal by electronic mail (e-mail)

to: [email protected]. Send electronic comments as an

ASCII file to avoid using special characters and any form of

encryption. We will also accept comments and data disks in WordPerfect

5.1 or 6.1 file format. Identify all comments and data in electronic

form by the docket number. Don't send confidential business information

(CBI) through electronic mail. You may file electronic comments on

these proposed amendments online at many Federal Depository Libraries.

Technology Transfer Network

The Technology Transfer Network (TTN) is a network of our

electronic bulletin boards. The TTN provides information and technology

exchange in various areas of air pollution control. You can access the

TTN through the Internet at ``http://www.epa.gov/ttn/.'' If you need

more information on the TTN, call the HELP line at (919) 541-5384.

The preamble outline follows.

I. What types of facilities are potentially affected by these

amendments?

II. What is the purpose of these amendments?

III. Why are we proposing to extend the deferral from permitting for

area sources?

IV. What are the administrative requirements for these proposed

amendments?

A. Docket

B. Executive Order 12866

C. Executive Order 12875

D. Executive Order 13084

E. Unfunded Mandates Reform Act

F. Regulatory Flexibility Act

G. Paperwork Reduction Act

H. Executive Order 13045

I. National Technology Transfer and Advancement Act

I. What Types of Facilities Are Potentially Affected by These

Amendments?

The regulated categories and entities potentially affected by this

action include:

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North American Industry

Category Classification System Codes Examples of potentially regulated entities

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

Industry........................ 331492...................... Secondary lead smelters.

332, 333, 334, 335, 336, 447 Halogenated solvent cleaning machines at

fabricated metal product manufacturing

facilities, machinery manufacturing facilities,

computer and electronic product manufacturing

facilities, electrical equipment, appliance,

and component manufacturing facilities,

transportation equipment manufacturing

facilities, and gasoline stations.

[[Page 45117]]

332, 333, 334, 335, 336..... Chromium electroplating machines at fabricated

metal product manufacturing facilities,

machinery manufacturing facilities, computer

and electronic product manufacturing

facilities, electrical equipment, appliance,

and component manufacturing facilities, and

transportation equipment manufacturing

facilities.

8123........................ Dry cleaning and laundry facilities.

3391........................ Ethylene oxide sterilizers at medical equipment

and supplies manufacturing facilities.

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

This table is not intended to be exhaustive, but rather provides a

guide for readers of the entities likely to be regulated by this

action. This table lists the types of entities that we are now aware

could be regulated by this action. Other types of entities not listed

in this table could also be affected. To determine whether your

facility, company, business organization, etc., is regulated by this

action, you should carefully examine the applicability criteria in the

following sections of title 40 of the Code of Federal Regulations:

Sec. 63.320, perchloroethylene dry cleaning.

Sec. 63.340, chromium electroplating.

Sec. 63.360, ethylene oxide sterilizers.

Sec. 63.460, halogenated solvent cleaners.

Sec. 63.541, secondary lead smelters.

If you have questions regarding the applicability of this action to a

particular entity, consult the person listed in the ``For Further

Information'' section.

II. What Is the Purpose of These Amendments?

The purpose of these amendments is to extend the deadline for

certain area sources to submit applications for title V operating

permits. The Act requires sources subject to standards or regulations

under section 112 to obtain title V operating permits, but allows us to

exempt nonmajor sources from the requirement to obtain operating

permits if we determine through rulemaking that compliance with such

requirements is impracticable, infeasible, or unnecessarily burdensome

on such categories. See section 502(a) of the Act. Under section 112 of

the Act, such nonmajor sources are termed ``area sources.'' See CAA

section 112(a)(2).1

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\1\ Generally, an area source under section 112 is a source

whose potential to emit air pollutants is below the levels that

define a major source. A ``major source'' under section 112 is any

source that emits or has the potential to emit at least 10 tons per

year of an individual hazardous air pollutant (HAP) or at least 25

tons per year of a combination of HAP (or such lesser quantity, or

different criteria in the case of radionuclides, as established by

the Administrator). You should consult section 112(a)(1) and (2) of

the Act, and 40 CFR 63.2 to determine if you have a area source.

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When we issue standards or other requirements under section 112 of

the Act, we determine whether to exempt any or all area sources from

the requirement to obtain a title V permit at the time that the new

standard is promulgated for a particular source category. See 40 CFR

70.3(b)(2), 40 CFR 71.3(b)(2), and 63.1(c)(2). Our general provisions

implementing section 112 provide that unless we explicitly exempt or

defer area sources subject to a MACT standard from the permitting

requirement, they must obtain operating permits. See 40 CFR

63.1(c)(2)(iii).

Since the Act allows an exemption from the permitting requirements,

we interpret it to allow a temporary exemption (i.e., a deferral) of

those requirements. We previously allowed permitting authorities to

defer permitting for area sources subject to five NESHAP (59 FR 61801,

December 2, 1994; 60 FR 29484, June 5, 1995; 61 FR 27785, June 3, 1996,

and 64 FR 4570, January 29, 1999).2 Those provisions will

expire December 9, 1999. The source categories for which we deferred

title V operating permit requirements for area sources were: hard and

decorative chromium electroplating and chromium anodizing tanks,

ethylene oxide commercial sterilization and fumigation operations,

perchloroethylene dry cleaning facilities, secondary lead smelting

facilities, and halogenated solvent cleaning machines. As we approach

this December 9, 1999 expiration date, the conditions prompting the

allowance for previous deferrals have not changed. We are, therefore,

proposing to extend the deferral provisions for the NESHAP for an

additional 5 years.

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\2\ In this rulemaking, we continue to rely upon the rationale

provided in the prior rulemakings, in addition to the rationale

discussed in today's action, and in the action extending the

deferral for halogenated solvent cleaning machines to part 71 (64 FR

37683; July 13, 1999).

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The proposed amendments have been written in ``plain language,'' as

directed in President Clinton's June 1, 1998, Executive Memorandum on

Plain Language in Government Writing. While we believe the proposed

language improves the understandability of the current language, the

intent and meaning of the text is unchanged.

III. Why Are We Proposing To Extend the Deferral From Permitting

for Area Sources?

On December 13, 1995 (60 FR 64002), we proposed to allow title V

permitting authorities to defer the requirement for obtaining title V

operating permits for area sources in several source categories for

which standards were promulgated under 40 CFR part 63. We finalized

that proposal on June 3, 1996 (61 FR 27785). A deferral from the

requirement to obtain a part 70 operating permit for halogenated

solvent cleaners at area sources was promulgated on December 2, 1994

(59 FR 61805), and amended June 5, 1995 (60 FR 29484).

At the time we established the June 3, 1996, deferral option, we

stated we would decide whether to adopt permanent exemptions by the

time the allowed deferrals expired. We also stated that during the

deferral period we would continue to evaluate the permitting

authorities' implementation and enforcement of the standards for area

sources not covered by title V permits, the likely benefit of

permitting such sources, and the costs and other burdens on such

sources associated with obtaining a title V permit. However, we do not

yet have sufficient information to determine whether permit exemptions

are warranted for most area sources and are continuing to evaluate the

above-noted considerations. Thus, we are not yet prepared to make

decisions that either permanently relieve these area sources from title

V, or that allow them to become immediately subject to the permitting

requirement. In light of this, we believe the most reasonable approach

is to extend the status quo (i.e., defer the title V permitting

requirements), rather than to ``decide'' by default through letting the

current deferral expire this December.

Many permitting authorities are having difficulty issuing permits

even to major sources, and some agencies have initially underestimated

the resources

[[Page 45118]]

necessary to prepare large and complex permits for many major sources.

If we discontinue the title V permit deferral for the tens of thousands

of area sources subject to the five NESHAP that are the subject of

these proposed amendments, owners and operators of such area sources

would require assistance from the permitting staff at permitting

agencies due to their relative lack of technical and legal expertise,

resources, and experience in dealing with environmental regulation.

Since many of these owners or operators have little or no permitting

expertise, a substantial amount of permitting authority staff time

would be needed to provide the administrative and technical support to

owners and operators of area sources to prepare and submit permit

applications. As noted above, this staff time would scarcely be

available, which in turn would cause many area sources to be unable to

obtain technical and procedural assistance to help them file timely and

complete applications, unless they have paid consultants to prepare

applications for them. This scenario would constitute an impracticable,

infeasible and unnecessary burden on these area sources, most of which

are small businesses, especially considering that by definition they

emit less than majors. This would also compound the difficulties

permitting authorities are currently having in processing and timely

issuing initial title V permits to major sources under their developing

title V programs. Similarly, EPA regions are just beginning to permit

major sources in Indian country and would find it administratively very

difficult to focus on area sources at the same time. The net result is

a basic impracticability for these area sources and permitting

authorities to develop and process title V operating permits in the

near future.

We believe that it is reasonable and fair to allow permitting

authorities to defer title V permitting for area sources for an

additional five years, since this would allow deferral for one more

cycle of permitting. Title V permits have not been issued for many

major sources, and permitting resources are currently directed to

completing those. We anticipate another 5-year term of permit issuance

should fully complete the outstanding initial permitting of major

sources and other subject sources such as solid waste incineration

units. By that time, we anticipate that permitting authorities'

resources may be more available to aid area sources in developing

permit applications. But in order to allow permitting authorities to

continue to be able to focus on the critical and immediate task of

issuing permits to major sources, the most feasible remedy is to allow

permitting authorities to defer permitting of these area sources for an

additional five-year permit cycle.

In sum, and as described in prior rulemakings granting the deferral

option, requiring area sources subject to the NESHAP that are the

subject of this rulemaking to obtain title V permits at this time would

constitute an impracticable, infeasible and unnecessary burden on these

area sources and would be an additional burden on the permitting

agencies.

We note that this deferral is an option at the permitting

authority's discretion under part 70 permit programs and not an

automatic deferral that the source can invoke. Some permitting

authorities may decide that area sources in one or more of the above-

mentioned source categories warrant permitting, or they have in place a

streamlined permitting mechanism for area sources that minimizes the

burden both on the authority and the source, e.g., a general permit

(see Secs. 70.6(d) and 71.6(d)). In areas where no part 70 program has

been approved, and part 71 permitting is administered by EPA, we

propose deferral for these area sources until December 9, 2004.

IV. What Are the Administrative Requirements for These Proposed

Amendments?

A. Docket

The docket is an organized and complete file of all the information

considered by the EPA in the development of these proposed amendments.

The docket is a dynamic file, because material is added throughout the

rulemaking development. The docketing system is intended to allow

members of the public and industries involved to readily identify and

locate documents so that they can effectively participate in the

rulemaking process. Along with the proposed and promulgated standards

and their preambles, the contents of the docket will serve as the

record in the case of judicial review. (See section 307(d)(7)(A) of the

Act.)

B. Executive Order 12866

Under Executive Order 12866 (58 FR 51735; October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to Office of Management (OMB) review and the

requirements of the Executive Order. The Executive Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or Tribal governments or

communities;

(2) create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligations of

recipients thereof; or

(4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that these proposed amendments do not

qualify as a ``significant regulatory action'' under the terms of

Executive Order 12866 and, therefore, are not subject to review by OMB.

C. Executive Order 12875

Under Executive Order 12875, the 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 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, 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 proposed amendments do not create a mandate on State,

local, or tribal governments. These proposed amendments do not impose

any enforceable duties on these entities. Accordingly, the requirements

of section 1(a) of Executive Order 12875 do not apply to these proposed

amendments.

D. Executive Order 13084

Under Executive Order 13084, the EPA may not issue a regulation

that is

[[Page 45119]]

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 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, Executive Order 13084

requires the 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.''

These proposed amendments do not alter the control standards

imposed by part 63, subparts M, N, O, T, and X, for any source,

including any that may affect communities of the Indian tribal

governments. Under the proposed amendments, sources must continue to

meet all applicable requirements, including all applicable emission

control, monitoring, recordkeeping, and reporting requirements

established by the respective NESHAP. Hence, today's proposed

amendments do not significantly or uniquely affect the communities of

Indian tribal governments. Accordingly, the requirements of section

3(b) of Executive Order 13084 do not apply to these proposed

amendments.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 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, the

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 1 year. Before promulgating an EPA rule for

which a written statement is needed, section 205 of the UMRA generally

requires the EPA to identify and consider a reasonable number of

regulatory alternatives and adopt the least costly, most cost-effective

or least burdensome alternative that achieves the objectives of the

rule. The provisions of section 205 do not apply when they are

inconsistent with applicable law. Moreover, section 205 allows the EPA

to adopt an alternative other than the least costly, most cost-

effective, or least burdensome alternative if the Administrator

publishes with the final rule an explanation why that alternative was

not adopted. Before the 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. The plan must provide for

notifying potentially affected small governments, enabling officials of

affected small governments to have meaningful and timely input in the

development of EPA regulatory proposals with significant Federal

intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

The EPA has determined that these proposed amendments do not

contain a Federal mandate that may result in expenditures of $100

million or more for State, local, and tribal governments, in aggregate,

or the private sector in any 1 year, nor do they significantly or

uniquely impact small governments, because they contain no requirements

that apply to such governments or impose obligations upon them. Thus,

today's proposed amendments are not subject to the requirements of

section 202 and 205 of the UMRA.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 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

business, small not-for-profit enterprises, and small governmental

jurisdictions. These proposed amendments would not have a significant

impact on a substantial number of small entities, because they impose

no additional regulatory requirements on owners or operators of

affected sources and would relieve owners or operators of such sources

of regulatory requirements that may otherwise apply if this action is

not taken. Therefore, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

G. Paperwork Reduction Act

These proposed amendments do not require the collection of any

information. Therefore, the requirements of the Paperwork Reduction Act

do not apply.

H. Executive Order 13045

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 Executive Order 12866, and (2) concerns an

environmental health or safety risk that the 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.

The EPA interprets Executive Order 13045 as applying only to those

regulatory actions that are based on health or safety risks, such that

the analysis required under section 5-501 of the Executive Order has

the potential to influence the regulation. These proposed amendments

are not subject to Executive Order 13045 because they do not establish

an environmental standard intended to mitigate health or safety risks.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA) directs all Federal agencies to use voluntary

consensus standards instead of government-unique standards in their

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., material specifications, test methods,

sampling and analytical procedures, business practices, etc.) that are

developed or adopted by one or more voluntary consensus standards

bodies. Examples of organizations generally regarded as voluntary

consensus standards bodies include the American Society for Testing and

Materials (ASTM), the National Fire Protection Association (NFPA), and

the Society of Automotive Engineers (SAE). The NTTAA requires Federal

agencies like EPA to provide Congress, through OMB, with explanations

when an agency

[[Page 45120]]

decides not to use available and applicable voluntary consensus

standards.

These proposed amendments do not involve technical standards.

Therefore, EPA is not considering the use of any voluntary consensus

standards.

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.

Dated: August 6, 1999.

Carol M. Browner,

Administrator.

For the reasons cited in the preamble, the Environmental Protection

Agency proposes to amend 40 CFR part 63 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 M--[Amended]

2. Section 63.320 is amended by revising paragraph (k) to read as

follows:

Sec. 63.320 Applicability.

* * * * *

(k) If you are the owner or operator of a source subject to the

provisions of this subpart, you are also subject to title V permitting

requirements under 40 CFR part 70 or part 71, as applicable. Your title

V permitting authority may defer your source from these permitting

requirements until December 9, 2004, if your source is not a major

source and is not located at a major source as defined under 40 CFR

63.2, 70.2, or 71.2, and is not otherwise required to obtain a title V

permit. If you receive a deferral under this section, you must submit a

title V permit application by December 9, 2005. You must continue to

comply with the provisions of this subpart applicable to area sources,

even if you receive a deferral from title V permitting requirements.

Subpart N--[Amended]

3. Section 63.340 is amended by revising paragraph (e)(2) to read

as follows:

Sec. 63.340 Applicability and designation of sources.

* * * * *

(e) * * *

(2) If you are the owner or operator of a source subject to the