Approval and Promulgation of Air Quality Implementation Plans; Allegheny County Portion of the Commonwealth of Pennsylvania's Operating Permits Program, and Federally Enforceable State Operating Permit Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[SIPTRAX No. PA138; FRL-6500-8]

Approval and Promulgation of Air Quality Implementation Plans;

Allegheny County Portion of the Commonwealth of Pennsylvania's

Operating Permits Program, and Federally Enforceable State Operating

Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA proposes three actions. First, EPA proposes approval of a

partial Operating Permit Program under the Clean Air Act (the Act), for

the purpose of allowing the Allegheny County (Pennsylvania) Health

Department (ACHD) to issue operating permits to all major stationary

sources in its jurisdiction. Second, EPA proposes approval of a State

Implementation Plan (SIP) revision submitted by the Commonwealth of

Pennsylvania for ACHD. This revision establishes a Federally

Enforceable State Operating Permit (FESOP) Program and gives ACHD the

authority to create federally enforceable installation and operating

permit conditions for regulated pollutants and limits on potential to

emit (PTE) for hazardous air pollutants (HAPs) for the purpose of

allowing sources to avoid major source applicable requirements. Third,

EPA proposes approval of the mechanism for ACHD to receive delegation

of Maximum Achievable Control Technology (MACT) Standards for major

sources subject to operating permit program requirements.

DATES: Written comments must be received on or before January 5, 2000.

ADDRESSES: Written comments may be mailed to Kathleen Henry, Chief,

Permitting and Technical Assessment Branch, Mailcode 3AP11, U.S.

Environmental Protection Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103. Copies of the documents relevant to

this action are available for public inspection during normal business

hours at the Air Protection Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103

and Allegheny County Health Department Bureau of Environmental Quality,

Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania

15201.

FOR FURTHER INFORMATION CONTACT: MaryBeth Bray, (215) 814-2632.

SUPPLEMENTARY INFORMATION: On November 5, 1998 the Commonwealth of

Pennsylvania submitted a revision to its SIP on behalf of the ACHD to

establish two permitting programs; the FESOP program pursuant to part

52 of Title 40 of the Code of Federal Regulations (CFR), and the Title

V Operating Permit Program pursuant to 40 CFR part 70. The submittal

also included a request for delegation of MACT standards for HAPs from

section 112 of the Act. EPA is proposing approval of Pennsylvania's

request for two permitting programs for the ACHD as well as the

mechanism for the ACHD to receive delegation of section 112 standards.

Submittal Description

The ACHD November 5, 1999 submittal contained numerous revisions to

the SIP, including a recodification of the regulations in general,

revision to major and minor New Source Review and Prevention of

Significant Deterioration programs, as well as requests for approval or

delegation of programs under 40 CFR parts 52, 63, and 70. Today's

rulemaking action only involves approval of the FESOP and part 70

permitting programs, and approval of the mechanism for delegation of

programs under section 112 of the Act.

EPA is proposing several significant changes and additions to the

ACHD's existing SIP-approved installation (preconstruction) and

operating permit programs. One purpose of these proposed SIP revisions

is to make all of the ACHD's SIP-approved permit programs consistent

with one another and with the Clean Air Act. Another important purpose

of the proposed SIP revision is to allow the ACHD, upon approval, to

limit sources' PTE for the purpose of exempting certain sources from

Title V and other major source requirements of the Act.

ACHD submitted the permitting programs through the Commonwealth of

Pennsylvania, requesting the authority to issue operating permits

(Title V and FESOP) to sources of air pollutants within its

jurisdiction. The ACHD adopted the necessary regulations on October 5,

1995 and submitted a program approval request to the Commonwealth of

Pennsylvania. On November 5, 1998, the Commonwealth of Pennsylvania

submitted the program on behalf of ACHD to EPA for review. In addition,

a three-way implementation agreement (IA) between the ACHD,

Pennsylvania Department of Environmental Protection (PADEP), and the

EPA was submitted on August 9, 1999 to clarify certain procedural

issues

[[Page 68067]]

not included in the November 5, 1998 submittal. EPA found the submittal

to be administratively complete pursuant to 40 CFR 70.4(e)(1) on

February 2, 1999. EPA has concluded that the part 70 program and the

FESOP program meet all the necessary requirements of part 70 and part

52, respectively, and is proposing to grant full approval to both of

these programs. EPA has also concluded that the ACHD's program is

adequate for approving the mechanism needed to delegate section 112

programs. For more detailed information on the analysis of the ACHD's

submission, please refer to the technical support document included in

the docket at the address noted above.

Part 70 Background

Major sources of air pollutants are required under Title V of the

1990 Clean Air Act Amendments (sections 501-507 of the Act) to obtain

operating permits. EPA has promulgated rules which define the minimum

elements of an approvable state or local operating permits program and

the corresponding standards and procedures by which the EPA will

approve, oversee, and withdraw approval of operating permits programs.

See 57 FR 32250 (July 21, 1992). These rules are codified at 40 CFR

part 70. Title V requires state or local agencies to develop, and

submit to EPA, programs for issuing these operating permits to all

major stationary sources and to certain other sources. The EPA's

program review occurs pursuant to section 502 of the Act and the part

70 regulations, which together outline criteria for approval or

disapproval.

EPA approved the Commonwealth of Pennsylvania's program, which

applied statewide, on August 29, 1996. As of that date, all major

stationary sources in Pennsylvania subject to Title V permitting

requirements were required to meet a one-year schedule for submitting a

Title V permit application. Today's proposed rulemaking action

addresses a request by Pennsylvania on behalf of the ACHD for approval

of a partial program under 40 CFR 70.4. This proposed rulemaking action

would allow the ACHD to carry out a Title V permitting program within

its jurisdiction. Approval of this request will not change the

obligation for sources located anywhere in Pennsylvania to meet the

initial Title V application deadlines.

Discussion of Part 70 Submittal

The ACHD's Title V permitting regulations include Article XXI

Chapters 2102, 2103, 2104, and 2109 as well as definitions in section

2101.20. EPA has determined that these regulations fully meet the

requirements of 40 CFR 70.2 and 70.3 with respect to applicability;

Secs. 70.4, 70.5, and 70.6 with respect to permit content; Sec. 70.5

with respect to complete application forms and criteria which define

insignificant activities; Sec. 70.7 with respect to public

participation and minor permit modifications; and Sec. 70.11 with

respect to requirements for enforcement authority. The technical

support document contains a detailed analysis of the ACHD's program and

describes the manner in which it meets all the operating permit program

requirements of 40 CFR part 70. However, several issues were identified

by EPA during its review of the ACHD's Title V operating permit program

which warrant a more detailed discussion and analysis. These issues are

outlined below. A discussion on fee adequacy is also included in this

section.

1. Legal Opinion

The legal opinion did not address the time frame required for

petitions for judicial review and the judicial review requirements for

failure to issue minor permits. The discussion below shows how the

ACHD's program meets these requirements.

a. Time frame for judicial review: Although the Title V regulations

do not specify the time frame for filing a petition for judicial

review, the ACHD is generally subject to ACHD Article XI, Hearings and

Appeals. In order to obtain judicial review, section 1104(a) requires

that an Appellant must first file a notice of Appeal to the Director of

the ACHD and go through an administrative hearing process. The Notice

of Appeal must be filed no later then 10 days after written notice or

issuance of the action by which the Appellant is aggrieved. This meets

the 90 day (or shorter time period) requirement for initiating judicial

review.

b. Judicial review for failure to act on minor permits: The ACHD's

program does not address judicial review for failure to issue a minor

permit modification as a separate appealable action. Section

2103.14(c)(8) clearly requires final action within 60 days for any

proposed minor permit modification. Section 2103.11(f) states that the

Department's failure to take final action (on any permit application

including modifications) is appealable and the Court of Common Pleas

may require action on the application without further delay. Therefore,

the authority exists to compel action on minor permit modifications.

2. Transition Plan

The transition plan included in section 2103.01 of the ACHD's

regulations specified deadlines for permit application submittal and

permit issuance. These dates have passed. Nonetheless, EPA previously

approved Pennsylvania's Title V program on August 29, 1996 (see 61 FR

39598) which established deadlines for permit applications that applied

state-wide. The ACHD's request to have a partial program approval does

not affect, or change in any way, the dates established in the

Commonwealth's approved program.

3. Insignificant Emission Units (IEUs)

Under Part 70, EPA may approve as part of a state program a list of

insignificant activities and emission levels which need not be included

in permit applications. The ACHD has not requested EPA approval of such

a list of insignificant activities or emission levels. However, the

ACHD's program provides for certain exemptions from the requirement to

obtain a permit that should not be confused with IEUs. These exemptions

include activities that have been historically exempt from any

permitting requirements. For any activity that the ACHD treats as an

IEU, a case-by-case determination must be made. Section 2103.10(b)(12)

incorporates by reference (IBRs) 25 PA Code section 127.14(a)(8) and

(9), and (d) as well as any future changes to these sections.

Paragraphs 127.14(a)(8) and (9) allow PADEP to determine if an emission

unit is of minor significance on a case-by-case basis. Paragraph

127.14(d) states that, in the future, PADEP may establish a list of

sources and physical changes that are of minor significance. Further,

the paragraph explains that public notice and a 30-day comment period

would be provided prior to adoption of the list. If EPA approves the

list as a revision to PADEP's part 70 program, then these units would

be considered insignificant emission units in the Commonwealth and the

County.

4. EPA 45-Day Review Period

EPA is afforded a 45-day period to review proposed permits and

permit modifications for conformity with the Act and part 70

requirements. Section 2103.21(c)(3) does not ensure that EPA will have

the opportunity for a 45 day period of pre-issuance review of permits

that are revised as a result of the public and affected state's

comments. Pursuant to sections 2103.21(c) and (e), the comment periods

for EPA and the public and affected state review

[[Page 68068]]

comment periods begin simultaneously. Because the public and affected

state comment period is only 30 days, it is theoretically possible for

the ACHD to modify and issue the proposed permit or permit modification

on the basis of comments received. Thus EPA would not have an

opportunity to review the permit (which was revised on the basis of

comments received) for 45 days prior to its issuance.

Section 2103.21(e) provides that permits will be resubmitted to EPA

if any material substantive changes have been made as a result of

comments received by the ACHD, but does not guarantee EPA a 45-day

review. Provisions defining material substantive changes are included

in the Implementation Agreement (IA) to clarify the criteria used to

determine which final permits must be provided to EPA for post-issuance

review. Further, the IA provides that EPA shall have 45-days from the

receipt of the notice of material substantive changes to object to the

permit. If a permit has been issued prior to the receipt of an EPA

objection, the IA states that the ACHD will revoke the permit within 20

days.

5. Off Permit Changes

The ACHD's use of the term ``Off Permit Change'' differs from EPA's

intended use. The ACHD's program limits these changes to de minimis

levels in section 2103.14. De minimis changes are covered under

operational flexibility changes and are not considered off-permit

changes. As written, the ACHD's program does not allow for off permit

changes. Furthermore, incorporation of provisions to make off permit

changes is optional. (40 CFR 70.4(b)(14))

6. Absence of Part 70 Emergency Defense Provisions

The ACHD has incorporated most of the record keeping and reporting

requirements required under part 70 for an emergency to be considered

an affirmative defense. However consistent with Pennsylvania's program,

the ACHD program does not allow for an emergency to be considered an

affirmative defense. EPA clarified, in its August 31, 1995,

supplemental part 70 document, that ``the part 70 rule does not require

the States to adopt the emergency defense. A State may include such a

defense in its part 70 program to the extent it finds appropriate,

although it may not adopt an emergency defense less stringent than that

set forth at 40 CFR 70.6(g).'' (60 FR 45530--45559). Thus, since the

ACHD's adoption of emergency defense provisions under part 70 is

discretionary, it is not inconsistent with Sec. 70.6(g).

7. Definition of Affected Unit

The definition of affected unit may seem less inclusive than the

definition in 40 CFR 72.2 because ACHD's definition is limited to

fossil fuel-fired sources. At this time, only sources which run on

fossil fuels are included under the Title IV acid rain requirements.

Therefore, the definition is essentially equivalent.

8. Title V Permit Fee Demonstration

Section 502(b)(3) of the Act requires that each permitting

authority collect fees sufficient to cover all reasonable direct and

indirect costs required to develop and administer its Title V operating

permits program. Each Title V program submittal must contain either a

detailed demonstration of fee adequacy or a demonstration that

aggregate fees collected from Title V sources meet or exceed $25 per

ton of emission per year (adjusted from 1989 by the Consumer Price

Index (CPI)). The $25 per ton amount is presumed, for program approval,

to be sufficient to cover all reasonable program costs and is thus

referred to as the ``presumptive minimum'' (Sec. 70.9(b)(2)(i)).

PADEP's approved fee schedule, under section 127.705 of the their

regulations, requires all Title V facilities in the Commonwealth to pay

an annual Title V emission fee of $37 per ton for each ton of a

regulated pollutant actually emitted from the facility. This amount

exceeds the $25 per ton presumptive minimum. Section 127.705 also

includes a provision that ties the amount of the fee to the CPI as

required by 40 CFR 70.9(b)(2)(iv). The $37 per ton amount was derived

by dividing the total annual estimated Title V operating permit program

cost by the total annual number of billable tons of emissions. PADEP

used actual operating hours and production rates, and considered in-

place control equipment and the types of materials processed, stored,

or combusted in calculating the total actual billable tons figure. EPA

determined, in its approval of PADEP's Title V program, that these fees

will result in collection and retention of revenues sufficient to cover

the Title V operating permit program costs statewide. ACHD's fee

requirements as outlined in section 2103.41 are consistent with PADEP's

regulations and are therefore consistent with EPA's prior approval of

the statewide fee demonstration. Furthermore, 25 PA Code 127.706 states

that PADEP may provide financial assistance to the ACHD on an annual

basis as necessary to assist implementation of the Title V program.

FESOP Program Background

Major stationary sources in Allegheny County wishing to avoid the

requirement to apply for and receive a Title V permit must obtain a

FESOP. Major sources are those sources whose emissions of air

pollutants exceed threshold emissions levels specified in various

portions of the Act. Thus, a source that has maintained actual

emissions at levels below the major source threshold could still be

subject to major source requirements if it has the potential to emit

major amounts of air pollutants. In situations where unrestricted

operation of a source would result in a PTE above major source levels,

a source may legally avoid program requirements by accepting federally

enforceable permit conditions which limit emissions to levels below the

applicable major source thresholds. As a result, the source becomes

what is commonly referred to as a ``synthetic minor'' source. Federally

enforceable permit conditions, if violated, are subject to enforcement

by EPA and by citizens in addition to the state or local agency.

On June 28, 1989, EPA published guidance on the basic requirements

for EPA approval of (non-Title V) FESOP programs. See 54 FR 27274.

Permits issued pursuant to such programs may be used to establish

federally enforceable limits on a source's potential emissions to

create ``synthetic minor'' sources. In short, the criteria require

state programs to:

(a) be approved into the SIP,

(b) impose legal obligations to conform to the permit limitations,

(c) provide for limits that are enforceable as a practical matter,

(d) issue permits through a process that provides for review and an

opportunity for comment by the public and by EPA, and

(e) ensure that there will be no relaxation of otherwise applicable

federal requirements.

The Federal Court of Appeals for the District of Columbia Circuit

vacated the definition of PTE as it pertains to both the new source

review rules and the federal operating permit rules, 40 CFR parts 51,

52, and 70. See, Chemical Manufacturers Association v. EPA, No. 89-1514

(Sept. 15, 1995) and Clean Air Implementation Project, et al v.

Browner, Civ. No. 92-1303 (June 28, 1996). Therefore, EPA also

recognizes PTE limits established by state and local permitting

authorities as being enforceable if the above criteria (b) through (e)

are met. However, future

[[Page 68069]]

rulemaking action may require that PTE limits be federally enforceable.

As part of this action, EPA is also proposing to approve the ACHD's

FESOP program pursuant to section 112(l) of the Act for the purpose of

allowing the ACHD to issue operating permits which limit source's PTE

hazardous air pollutants (HAPs). Section 112(l) of the Act provides the

underlying authority for controlling emissions of HAPs. Therefore, in

order to extend federal enforceability of the ACHD's FESOP to include

HAPs, EPA today proposes to approve the ACHD's permit program pursuant

to section 112(l) of the Act.

Discussion of FESOP Program Submittal

Subparts B and C--1 (sections 2102 and 2103.1x) of the submittal

include the requirements for the FESOP program. These subparts also

contain the ACHD's installation (or preconstruction) and operating

permit program. The proposed revision generally strengthens the SIP by

establishing a comprehensive installation and operating permit program

and by making this program consistent with the Title V operating permit

regulations codified in subpart C--2 (section 2103.2x).

On June 28, 1989, EPA amended the definition of ``federally

enforceable'' to clarify that terms and conditions contained in state-

issued operating permits are federally enforceable for purposes of

limiting a source's PTE, provided that the state's operating permits

program is approved into the SIP under section 110 of the Act as

meeting certain conditions, and provided that the permit conforms to

the requirements of the approved program. The conditions for EPA

approval discussed in the June 28, 1989 notice establish five criteria

for approving a state operating permit program. See 54 FR 27274-27286.

The following section describes each of the criteria for approval of a

state's program for the issuance of federally enforceable operating

permits for purposes of limiting a source's PTE and how the ACHD's SIP

submittal satisfies those criteria.

1. The State's Operating Permit Program (i.e., the Regulations or Other

Administrative Framework Describing how Such Permits are Issued) Must

be Submitted to and Approved by EPA as a SIP Revision.

The Commonwealth of Pennsylvania submitted the ACHD's revisions of

Article XXI to EPA for approval as a revision of its SIP on November 5,

1998. EPA is proposing to approve the ACHD's regulation (subparts B and

C.1 of Article XXI) as a program that meets the criteria for

establishing PTE limits. Thus, EPA will recognize a source's limits on

PTE for avoiding major source applicability, so long as the individual

installation or operating permit issued under the approved program

meets those same requirements.

2. The SIP Revision Must Impose a Legal Obligation That Operating

Permit Holders Adhere to the Terms and Limitations of Such Permits (or

Subsequent Revisions of the Permit Made in Accordance With the Approved

Operating Permit Program) and Provide That Permits Which do not Conform

to the Operating Permit Program Requirements and the Requirements of

EPA's Underlying Regulations may be Deemed not ``Federally

Enforceable'' by EPA.

Article XXI, section 2103.12.f.1 requires that all permits issued

(major and minor) shall include provisions that the permittee must

comply with at all times. Any permit noncompliance constitutes a

violation of Article XXI, the Pennsylvania Air Pollution Control Act,

and the Act, and is grounds for any and all enforcement actions.

Additionally, section 2103.10.c.3 makes it a violation for any person

to fail to comply with any term or condition of any permit.

3. The State Operating Permit Program Must Require That all Emission

Limitations, Controls, and Other Requirements Imposed by Such Permits

Will be at Least as Stringent as any Applicable Limitations and

Requirements Contained in the SIP, or Enforceable Under the SIP, and

that the Program may not Issue Permits that Waive, or Make less

Stringent, any Limitations or Requirements Contained in or Issued

Pursuant to the SIP, or that are Otherwise ``Federally Enforceable''

(e.g. Standards Established Under Sections 111 and 112 of the Clean Air

Act).

Article XXI, section 2103.12.a.C states that the conditions of the

permit must provide for and require compliance with all applicable

requirements. Section 2103.12.g states that all permits shall include

standard emission limit requirements, and specify the origin and

authority for each limitation. Additionally, if an alternative emission

limit is provided, section 2103.12.g(2) requires that it must be

demonstrated to be equivalent to or more stringent than the applicable

limit, and it must be quantifiable, enforceable, and based on

replicable procedures.

4. The Limitations, Controls, and Requirements of the State's Operating

Permits Must be Permanent, Quantifiable, and Otherwise Enforceable as a

Practical Matter.

Article XXI, section 2103.12.g states that along with required

emission limits and standards, the permit must include those

operational requirements and limitations that assure compliance with

all applicable requirements at the time of permit issuance. For each

emission rate and standard in a permit, associated conditions will be

included which establish a method to determine compliance, including

appropriate testing, monitoring, recordkeeping, and reporting. Section

2103.12.h.1 establishes broad authority to require the appropriate

testing, monitoring, recordkeeping, and reporting. EPA understands that

ACHD drafts all permits to be consistent with underlying local, state,

and federal rules and incorporates monthly or more frequent short term

emission limits.

5. The Permits are Issued Subject to Public Participation. This Means

that the state Agrees, as Part of its Program, to Provide EPA and the

Public with Timely Notice of the Proposal and Issuance of Such Permits,

and to Provide EPA, on a Timely Basis, With a Copy of Each Proposed (or

Draft) and Final Permit Intended to be Federally Enforceable. This

Process must also Provide for an Opportunity for Public Comment on the

Permit Applications Prior to the Issuance of the Final Permit.

Article XXI, sections 2102.05.c and 2103.11.e provide for public

notice and participation in the issuance, modifications, and renewals

of permits. Section 2102.04.h specifically lists the public notice and

participation procedures for synthetic minor permits. Section 2103.11.h

incorporates by reference the public notice requirements from 25 PA

Code 127.424, 424 and 43. Article XXI, subchapters B and C provide

thorough procedures for public participation which meet the public

participation requirements.

Definitions: EPA is also, in this rulemaking action, incorporating

by reference definitions that may be relied upon in issuing

installation and operating permits. Certain definitions such as

``actual emissions'' and ``maximum achievable control technology

(MACT)'' are not consistent with and are less stringent then 40 CFR

51.165. In such cases where the definition is not essential to this

rulemaking or this FESOP SIP revision, it will be addressed in a future

rulemaking action.

[[Page 68070]]

The following definitions are consistent with the requirements for

a FESOP program and part 70 program approval. These definitions are

proposed to be incorporated into the SIP for purposes of the FESOP

program approval and included in the part 70 program: emissions

allowable under the permit, major modification, major source, maximum

achievable control technology, and PTE. Please refer to the technical

support document for a more detailed analysis.

Limiting HAP Emissions Through FESOP: As part of this action EPA

proposes to approve, pursuant to section 112(l) of the Clean Air Act,

the ACHD's request for authority to regulate HAPs through the issuance

of a FESOP. This would grant the ACHD authority to issue permits which

limit PTE of HAPs. EPA has determined that the five approval criteria

for approving FESOP programs into the SIP, as specified in the June 28,

1989 Federal Register notice referenced above, are also appropriate for

evaluating and approving the programs under section 112(l). The June

28, 1989 document does not address HAPs because it was written prior to

the 1990 amendments to section 112 of the Act.

In addition to meeting the criteria discussed above, the ACHD's

permit program for limiting PTE of HAPs must meet the statutory

criteria for approval under section 112(l)(5) of the Act. This section

allows EPA to approve a program only if it:

(a) contains adequate authority to assure compliance with any

section 112 standard or requirement;

(b) provides for adequate resources;

(c) provides for an expeditious schedule for assuring compliance

with section 112 requirements; and

(d) is otherwise likely to satisfy the objectives of the Act.

The EPA plans to codify the approval criteria for programs limiting

the PTE of HAPs through amendments to subpart E of 40 CFR part 63, the

regulations promulgated to implement section 112(l) of the Act. See 58

FR 62262 (November 26, 1993). Given the severe timing problems posed by

impending deadlines set forth in MACT emission standards under section

112 and for issuing Title V permits, the EPA believes it is reasonable

to read section 112(l) to allow for approval of programs to limit PTE

prior to promulgation of a rule specifically addressing this issue.

EPA's conclusions are discussed in the technical support document and

will not be repeated here. EPA is proposing approval of the ACHD's

FESOP now so that they may begin to issue federally enforceable

installation and operating permits limiting PTE as soon as possible.

Provisions Implementing Other Titles of the Act for Part 70 Sources

1. Section 112: The guidance memorandum entitled ``Title V Program

Approval Criteria for section 112 Activities,'' signed by John Seitz,

Director of the Office of Air Quality Planning and Standards of April

13, 1993 discusses the legal authority needed to implement and enforce

section 112 requirements through the Title V permit as well as resource

adequacy. The ACHD's program contains this legal authority in its

enabling legislation (the Pennsylvania Air Pollution Control Act, Local

Health Administration Law, Second Class County Code, The County Local

Agency Law, and Article XI, Rules and Regulations of the ACHD) and in

regulatory provisions defining applicable requirements. The ACHD's

submittal also contained the Allegheny County Solicitor's Opinion

stating the ACHD has the legal authority to incorporate all applicable

requirements into its operating permits. The submittal also contained a

demonstration of adequate resources. Therefore the ACHD has sufficient

legal authority and resources to issue permits that assure compliance

with all section 112 requirements and to carry out all section 112

activities, including those required under section 112(g).

2. Program for Straight Delegation of Section 112 Standards: The

requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of the provisions of 40 CFR part 63 standards promulgated by EPA as

they apply to part 70 sources. Section 112(l)(5) requires that the

permitting authority's program contain adequate authorities, adequate

resources for implementation, and an expeditious compliance schedule,

which are also requirements under part 70. Therefore, EPA is also

proposing to grant approval, under section 112(l)(5) and 40 CFR 63.91,

of the state's program for receiving delegation of section 112

standards that are unchanged from the federal standards as promulgated.

3. Program for Implementing Title IV of the Act: The ACHD's program

IBRs 40 CFR parts 72 through 78, which contain the Federal acid rain

requirements. The program contains adequate authority to issue permits

which reflect the requirements of Title IV of the Act.

Proposed Action

EPA is proposing full approval of a Title V Operating Permits

Program for Allegheny County, as submitted by Pennsylvania on November

5, 1998. The ACHD has demonstrated that the program will be adequate to

meet the minimum elements of a partial operating permits program as

specified in 40 CFR part 70. The scope of the ACHD's program that EPA

proposes to approve in this notice would apply to all Title V

facilities (as defined in the approved program) within the County. EPA

is also proposing approval of the ACHD's FESOP program submitted on

November 5, 1998 as a SIP revisions under section 110 of the Act. EPA

has determined that the program fully meets the requirements of EPA's

June 28, 1989 criteria for FESOP programs. This approval recognizes

ACHD's FESOP program as capable of establishing federally enforceable

limitations on criteria pollutants and hazardous air pollutants.

Further, such actions will confer federal enforceability status to

permits issued pursuant to ACHD's part C Operating Permit Program prior

to EPA's final action so long as the requirements for federal

enforceability have been met. Finally, EPA is also proposing to grant

approval under section 112(l)(5) and 40 CFR 63.91 of the ACHD's

mechanism for receiving delegation of section 112 standards that are

unchanged from the Federal standards as promulgated. EPA also proposes

to approve, pursuant to section 112(l) of the Clean Air Act, the ACHD's

request for authority to regulate HAPs through the issuance of

federally enforceable state installation and operating permits.

EPA is soliciting public comments on the issues discussed in this

document or on other relevant matters. These comments will be

considered before taking final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the Addresses section of

this document.

Administrative Requirements

A. Executive Orders 12866

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

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental

[[Page 68071]]

Partnership). Executive Order 13132 requires EPA to develop an

accountable process to ensure ``meaningful and timely input by State

and local officials in the development of regulatory policies that have

federalism implications.'' ``Policies that have federalism

implications'' is defined in the Executive Order to include regulations

that have ``substantial direct effects on the States, on the

relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of

government.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation.

This proposed rule will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 13132 (64

FR 43255, August 10, 1999), because it merely approves a state rule

implementing a federal standard, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.'' Thus, the requirements of section 6 of the Executive Order

do not apply to this rule.

C. Executive Order 13045

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 the EPA determines (1) is

``economically significant,'' as defined under Executive Order 12866,

and (2) 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 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 final rule is not subject to E.O. 13045 because it does not

involve decisions intended to mitigate environmental health and safety

risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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 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. This action does not involve or impose any requirements

that affect Indian Tribes. 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 (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

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

jurisdictions. This proposed rule will not have a significant impact on

a substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

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 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 proposed approval action for the ACHD's

two permitting programs 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 requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Sulfur

oxides.

Authority: 42 U.S.C. 7401 et seq.

Dated: November 29, 1999.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

[FR Doc. 99-31542 Filed 12-3-99; 8:45 am]

BILLING CODE 6560-50-P