![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Approval of the Clean Air Act (CAA), Section 112(l) Program and Delegation of Authority to the State of Oklahoma
Related Material
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 9, 2001 (Volume 66, Number 6)]
[Rules and Regulations]
[Page 1584-1592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja01-13]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-6928-4]
Approval of the Clean Air Act (CAA), Section 112(l) Program and
Delegation of Authority to the State of Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule and delegation.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving by direct final rulemaking the Oklahoma
Department of Environmental Quality's (ODEQ) request for program
approval of adequate authorities and resources to implement and enforce
Federal National Emission Standards for Hazardous Air Pollutants
(NESHAP) in 40 CFR parts 61 and 63, as these regulations apply to non-
part 70 sources.
The EPA is approving ODEQ's mechanism for receiving delegation of
unchanged NESHAPs as they apply to non-part 70 sources.
Also, EPA is delegating authority to ODEQ to implement and enforce
certain Federal NESHAPs hazardous air pollutant regulations which ODEQ
has adopted by reference into their State rules as they apply to all
sources (i.e., both part 70 and non-part 70 sources). These are NESHAPs
found in 40 CFR parts 61 and 63. The EPA is also delegating specified
General Provisions to parts 61 and 63 as these regulations apply to all
sources.
The EPA is waiving its notification requirements so sources will
only need to send notifications and reports to ODEQ.
This action is taken under the authority of CAA section 112(l) and
40 CFR part 63, subpart E.
This action does not apply to areas in Indian Country over which
the State of Oklahoma has not demonstrated authority.
DATES: This rule is effective on March 12, 2001 without further notice,
unless EPA receives adverse comment by February 8, 2001. If EPA
receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Written comments on this action should be addressed to Mr.
Robert M. Todd at the Region 6 office listed below. Copies of the
requests for delegation and other supporting documentation are
available for public inspection at the following location: U.S.
Environmental Protection Agency, Region 6, Multimedia Planning and
Permitting Division (6PD), 1445 Ross Avenue, Dallas, TX 75202-2733.
Anyone wanting to examine these documents should make an appointment at
least two working days in advance.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Todd, U.S. EPA, Region
6, Multimedia Planning and Permitting Division (6PD), 1445 Ross Avenue,
Dallas, TX 75202-2733, (214) 665-2156.
SUPPLEMENTARY INFORMATION:
I. Overview
Table of Contents
1. What is EPA approving? Why?
2. What authority is EPA delegating to ODEQ?
Standards
General Provisions
3. What will happen to ODEQ's prior delegation of Part 61 standards?
4. What is the legal authority for EPA's action?
5. What responsibility does this give ODEQ?
6. What responsibility does EPA have?
[[Page 1585]]
7. What is EPA's oversight of this delegation to ODEQ?
8. What is the history of ODEQ's delegation requests?
9. What other authorities does ODEQ have?
10. Should sources submit notices to EPA or ODEQ?
11. What information must ODEQ provide to EPA?
12. How will unchanged authorities be delegated to ODEQ in the
future?
13. What is the relationship between the Resource Conservation and
Recovery Act (RCRA) and the Hazardous Waste Combustor (HWC) MACT?
How does this affect delegation of this standard to ODEQ?
II. Final Action
III. Administrative Requirements
1. What Is EPA Approving? Why?
We, the EPA, are approving ODEQ's air toxics program for non-part
70 sources and their mechanism for receiving future delegation of
unchanged Federal NESHAP regulations for non-part 70 sources. The State
submittal meets all section 112(l) requirements because:
The State program is no less stringent than the Federal
program. The ODEQ's rules at Oklahoma Administrative Code, subchapter
41, Control of Emissions of Hazardous and Toxic Air Contaminants, part
3, Hazardous Air Contaminants, section 252:100-41-15, adopt certain
Federal NESHAP regulations by reference, as more fully discussed in
this action.
The ODEQ has demonstrated adequate authority and resources
to implement and enforce the standards.
The schedule for implementation and compliance is
sufficiently expeditious.
The program otherwise complies with Federal guidance.
A more detailed analysis of the State's submittal pursuant to
Sec. 63.91 is in the Technical Support Document included in the docket
of this rulemaking. The mechanism for future delegation of unchanged
standards is described in question twelve below.
2. What Is EPA Delegating to ODEQ?
We are delegating:
Specific Standards
We are approving ODEQ's request for delegation of authority to
implement and enforce specific 40 CFR parts 61 and 63, subparts for all
sources, as they exist July 1, 1999. A notable exception is that we are
not delegating those standards under part 61 dealing with
radionuclides.
(Two tables outlining the standards requested by ODEQ and delegated by
this action are found under the response to question eight, below.)
General Provisions
We are approving in part ODEQ's request for delegation of authority
to implement and 40 CFR part 61, subpart A and part 63, subpart A,
General Provisions (for all sources). The ODEQ's rules are unchanged
from the Federal provisions.
We have determined that ODEQ has sufficient resources and expertise
to implement certain sections of the General Provisions. A July 10,
1998, memorandum from John Seitz \1\ clarified which of the part 63
General Provisions authorities may be delegated to State agencies. On
September 14, 2000 our rules were revised to outline the delegable
authorities at 40 CFR 63.91(g). A guidance document\2\ from EPA's
Office of Enforcement and Compliance clarified the part 61
discretionary authorities which were appropriate to delegate to State
agencies. Granting ODEQ authority to make decisions that are not likely
to be nationally significant or which do not alter the stringency of
the underlying standard is in keeping with these authorities. The ODEQ
should make decisions on a source-by-source basis, not on a source
category basis.
---------------------------------------------------------------------------
\1\ Memorandum from John Seitz, Office of Air Quality Planning
and Standards, dated July 10, 1998, entitled, ``Delegation of 40 CFR
Part 63 General Provisions Authorities to State and Local Air
Pollution Control Agencies.''
\2\ ``How to Review and Issue Clean Air Act Applicability
Determinations and Alternative Monitoring.'' EPA 305-B-99-004,
February 1999.
---------------------------------------------------------------------------
Listed below are the part 61, subpart A, sections that we cannot
delegate to ODEQ. We are delegating all other part 61, General
Provision authorities to ODEQ.
40 CFR Part 61, Subpart A, General Provisions, Authorities Which May Not
Be Delegated
------------------------------------------------------------------------
Section Authorities
------------------------------------------------------------------------
61.04(b).......................... Addresses of State and Local
Implementing Agencies.
61.12(d)(1)....................... Compliance with Standards and
Maintenance Requirements, Alternate
Means of Emission Limitation.
61.13(h).......................... Major Change to an Emissions Test.
61.14(g).......................... Major modifications to Monitoring
Requirements.
61.16............................. Availability of Information
Procedures.
------------------------------------------------------------------------
Listed below are the part 63, subpart A, sections that we are
delegating to ODEQ. Also, listed in the footnotes of the part 63
delegation table at the end of this rule are the authorities that
cannot be delegated to any State or local agency which we therefore
retain.
Part 63, Subpart A, General Provisions Authorities Delegated to ODEQ
------------------------------------------------------------------------
Section Authorities
------------------------------------------------------------------------
63.1.............................. Applicability Determinations.
63.6(e)........................... Operation and Maintenance
Requirements--Responsibility for
Determining Compliance.
63.6(f)........................... Compliance with Non-Opacity
Standards--Responsibility for
Determining Compliance.
63.6(h) [except 63.6(h)(9)]....... Compliance with Opacity and Visible
Emissions Standards--Responsibility
for Determining Compliance
63.7(c)(2)(i) and (d)............. Approval of Site-Specific Test
Plans.
63.7(e)(2)(i)..................... Approval of Minor Alternatives to
Test Methods.
63.7(e)(2)(ii) and (f)............ Approval of Intermediate
Alternatives to Test Methods.
63.7(e)(2)(iii)................... Approval of Shorter Sampling Times
and Volumes When Necessitated by
Process Variables or Other Factors.
63.7(e)(2)(iv) and (h)(2), (h)(3). Waiver of Performance Testing.
[[Page 1586]]
63.8(c)(1) and (e)(1)............. Approval of Site-Specific
Performance Evaluation (monitoring)
Test Plans.
63.8(f)........................... Approval of Minor Alternatives to
Monitoring.
63.8(f)........................... Approval of Intermediate
Alternatives to Monitoring.
63.9 and 63.10.................... Approval of Adjustments to Time
Periods for Submitting Reports.
63.10(f).......................... Approval of Minor Alternatives to
Recordkeeping and Reporting.
------------------------------------------------------------------------
For part 70 sources, semiannual and annual reports are required and
this does not change that requirement. Decisions ODEQ makes, such as
State applicability determinations, approval of alternatives to test
methods, approval of alternatives to monitoring and approval of
alternatives to recordkeeping requirements are not binding on EPA.
3. What Will Happen to ODEQ's Prior Delegation of Part 61
Standards?
In 1982, the Administrator of EPA's Dallas Regional Office
delegated some authority to implement and enforce New Source
Performance Standards (NSPS) and NESHAPs to ODEQ. (47 FR 17285, April
22, 1982) These standards and authorities are found in 40 CFR parts 60
and 61, respectively. Today's action will rescind and replace the
NESHAP portion of that agreement only. The NSPS portion of the 1982
delegation agreement as supplemented on October 8, 1999 is not affected
by this rulemaking. This delegation will cover more part 61 standards,
more sources, and grant more discretionary authority to ODEQ, as
discussed in the General Provision section of this document.
4. What Is the Legal Authority for EPA's Action?
Section 112(l) of the CAA enables EPA to approve State air toxics
programs or rules to operate in place of the Federal air toxics program
or rules. 40 CFR part 63, subpart E (65 FR 55810 September 14, 2000)
governs EPA's approval of State rules or programs under section 112(l).
Approval of an air toxics program is granted by EPA if we find
that:
(1) The State program is ``no less stringent'' than the
corresponding Federal program or rule,
(2) The State has adequate authority and resources to implement the
program,
(3) The schedule for implementation and compliance is sufficiently
expeditious, and
(4) The program otherwise complies with Federal guidance. Any
request for subpart E approval that does not change the Federal section
112 rules must meet the criteria in 40 CFR 63.91.
The request may specify the mechanism that the State will use in
the future to receive delegation of unchanged Federal section 112
standards without additional Federal rulemaking.
The procedure and criteria for requesting and receiving approval of
programs or requesting delegation under section 112(l) of the CAA was
initially published on November 26, 1993 in 58 FR 62262. The
regulations were codified at 40 CFR part 63, subpart E. The EPA's
procedures for delegating NESHAPS were modified on September 14, 2000
in 65 FR 55810. The revisions were to provide more options and expedite
the approval process. These revisions did not affect the criteria and
procedures for program approval and straight delegation to Oklahoma,
and the State's request and our review is consistent with the
regulations as revised.
5. What Responsibility Does This Give ODEQ?
With this delegation, ODEQ has the primary responsibility to
implement and enforce the delegated standards.
This action does not apply to areas of Indian Country over which
the State of Oklahoma has not demonstrated authority. States do not
have jurisdiction over Indian Country (as defined in 18 U.S.C. 1151,
and referenced in 40 CFR 51.1(i)) unless specifically granted by
Congress. Since the State of Oklahoma has not submitted a demonstration
of authority over the Indian Country, we are limiting our approval to
those areas that do not constitute Indian Country. For a more detailed
discussion of Tribal authority under the Act, see 59 FR 43956, August
25, 1994 and 63 FR 7254, February 12, 1998.
6. What Authority Does EPA Have?
We retain the right, as allowed by CAA section 112(l)(7), to
enforce any applicable emission standard or requirement under section
112.
The EPA Administrator has the authority to approve certain changes
to, or make decisions under the General Provisions to parts 61 and 63.
This authority is in 40 CFR part 61, subpart A and 40 CFR part 63,
subpart A. We are granting ODEQ some of these authorities, and
retaining others, as explained with the General Provisions description.
And as stated earlier, EPA is not bound by State determinations.
In addition, no authorities are delegated that require rulemaking
in the Federal Register to implement, or where Federal overview is the
only way to ensure national consistency in the application of the
standards or requirements of CAA section 112.
Also, we retain any authority in an individual emission standard
that may not be delegated according to provisions of the standard.
7. What Is EPA's Oversight of This Delegation to ODEQ?
The EPA must oversee ODEQ's decisions to ensure the delegated
authorities are being adequately implemented and enforced. We will
integrate oversight of the delegated authorities into the existing
mechanisms and resources for oversight currently in place.
If, during oversight, we determine that ODEQ made decisions that
decreased the stringency of the delegated standards, then ODEQ should
take corrective actions and the source(s) affected by the decisions
would be notified. We will initiate withdrawal of the program if the
corrective actions taken are insufficient.
8. What Is the History of ODEQ's Delegation Request?
On March 10, 1995, we proposed to approve the State's program and
mechanism for gaining delegation of unchanged section 112 standards for
part 70 sources (60 FR 13092). This was included in our proposal to
approve ODEQ's request for interim approval of the part 70 Operating
Permit Program. On February 5, 1996, we issued final approval of the
State's air toxics program and delegation mechanism for all section 112
standards under the authority of CAA section 112(1)(5) and 40 CFR 63.91
(61 FR 4224). This applies only to sources covered by the part 70
program.
[[Page 1587]]
We received delegation requests from ODEQ dated June 26, 1998, and
May 5, 2000. These requests are for delegation of the 40 CFR parts 61
and 63 NESHAP standards adopted unchanged into Oklahoma Administrative
Code Title 252 Chapter 100 Air Pollution Control Subchapter 41 Control
of Emission of Hazardous and Toxic Air Contaminants. The ODEQ requested
delegation of the general provisions and emission standards listed in
the tables below. These requests were made according to the
requirements of 40 CFR part 63, subpart E. 58 FR 62262, November 26,
1993. This regulation, which governs EPA's approval of State rules or
programs was recently revised to better serve the needs of State and
Local agencies that want to implement NESHAPs in their areas. 65 FR
55810, September 14, 2000. These revisions did not affect the criteria
and procedures for program approval and straight delegation to
Oklahoma, and the State's request and our review is consistent with the
regulations as revised.
Table 1.--NESHAP--40 CFR Part 61
------------------------------------------------------------------------
Subpart NESHAP
------------------------------------------------------------------------
A.................................... General Provisions.
C.................................... Beryllium.
D.................................... Beryllium Rocket Motor Firing.
E.................................... Mercury.
F.................................... Vinyl Chloride.
J.................................... Equipment Leaks of Benzene.
L.................................... Benzene Emissions from Coke By-
Product Recovery Plants.
M.................................... Asbestos.
N.................................... Inorganic Arsenic Emissions from
Glass Manufacturing Plants.
O.................................... Inorganic Arsenic Emissions from
Primary Copper Smelters.
P.................................... Inorganic Arsenic Emissions from
Arsenic Trioxide and Metallic
Arsenic Production Facilities.
V.................................... Equipment Leaks.
Y.................................... Benzene Emissions from Benzene
Storage Vessels.
BB................................... Benzene Emissions from Benzene
Transfer Operations.
FF................................... Benzene Emissions from Benzene
Waste Operations.
------------------------------------------------------------------------
Table 2.--NESHAPs for Source Categories--40 CFR Part 63
------------------------------------------------------------------------
Subpart Emission standard
------------------------------------------------------------------------
A.................................... General Provisions.
F.................................... Hazardous Organic NESHAP (HON)--
Synthetic Organic Chemical
Manufacturing Industry (SOCMI).
G.................................... HON--SOCMI Process Vents, Storage
Vessels, Transfer Operations and
Wastewater.
H.................................... HON--Equipment Leaks.
I.................................... HON--Certain Processes Negotiated
Equipment Leak Regulation.
L.................................... Coke Oven Batteries.
M.................................... Perchloroethylene Dry Cleaning.
N.................................... Chromium Electroplating.
O.................................... Ethylene Oxide Sterilizers.
Q.................................... Industrial Process Cooling
Towers.
R.................................... Gasoline Distribution.
S.................................... Pulp and Paper Industry.
T.................................... Halogenated Solvent Cleaning.
U.................................... Polymers and Resins I.
W.................................... Polymers and Resins II--Epoxy
Resins and Non-Nylon Polyamides.
X.................................... Secondary Lead Smelting.
Y.................................... Marine Tank Vessel Loading.
CC................................... Petroleum Refineries.
DD................................... Off-Site Waste and Recovery.
EE................................... Magnetic Tape Manufacturing.
GG................................... Aerospace Manufacturing and
Rework.
HH................................... Oil and Natural Gas Production.
II................................... Shipbuilding and Ship Repair.
JJ................................... Wood Furniture Manufacturing.
KK................................... Printing and Publishing Industry.
LL................................... Primary Aluminum Reduction
Plants.
OO................................... Tanks--Level 1.
PP................................... Containers.
QQ................................... Surface Impoundments.
RR................................... Individual Drain Systems.
SS................................... Closed Vent Systems, Control
Devices, Recovery Devices and
Routing to a Fuel Gas System or
a Process.
TT................................... Equipment Leaks--Control Level 1.
UU................................... Equipment Leaks--Control Level 2
Standards.
VV................................... Oil-Water Separators and Organic-
Water Separators.
WW................................... Storage Vessels (Tanks)--Control
Level 2.
YY................................... Generic Maximum Achievable
Control Technology Standards.
CCC.................................. Steel Pickling--HCl Process
Facilities and Hydrochloric Acid
Regeneration.
[[Page 1588]]
DDD.................................. Mineral Wool Production.
EEE.................................. Hazardous Waste Combustors.
GGG.................................. Pharmaceuticals Production.
HHH.................................. Natural Gas Transmission and
Storage.
III.................................. Flexible Polyurethane Foam
Production.
JJJ.................................. Polymers and Resins, Group IV.
LLL.................................. Portland Cement Manufacturing.
MMM.................................. Pesticide Active Ingredient
Production.
NNN.................................. Wool Fiberglass Manufacturing.
PPP.................................. Polyether Polyols Production.
TTT.................................. Primary Lead Smelting.
XXX.................................. Ferroalloys Production.
------------------------------------------------------------------------
The State has asked for delegation of these standards, and we are
delegating them to ODEQ, as they existed on July 1, 1999. Please see
question twelve below for a discussion of how we will delegate future
standards and revisions to the State.
9. What Other Authorities Does ODEQ Have?
Certain General Provisions authorities are automatically granted to
ODEQ as part of their part 70 Operating Permits Program approval
(regardless of whether the Operating Permits Program approval is
interim or final). These are 40 CFR 63.6(i)(1), ``Extension of
Compliance with Emission Standards,'' and 63.5(e) and (f), ``Approval
and Disapproval of Construction and Reconstruction.''\3\
---------------------------------------------------------------------------
\3\ Sections 112(i) (1) and (3) state that ``Extension of
Compliance with Emission Standards'' and ``Approval and Disapproval
of Construction and Reconstruction'' can be implemented by the
``Administrator (or a State with a permit program approved under
Title V).''
---------------------------------------------------------------------------
Additionally, ODEQ's authority to grant a source a compliance
extension under 40 CFR 63.6(i)(1) is not limited to delegated standards
or part 70 permitted sources.
10. Should Sources Submit Notices to EPA or ODEQ?
Sources within ODEQ's jurisdiction must submit notifications and
reports required by the delegated NESHAPs to ODEQ, and sources do not
need to send a copy to EPA. The ODEQ is the primary point of contact
with respect to delegated NESHAPs. EPA Region 6 waives the requirement
that notifications and reports for delegated standards be submitted to
EPA in addition to ODEQ per 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).
11. What Information Must ODEQ Provide to EPA?
In delegating the authority to implement and enforce these rules
and in granting a waiver of EPA notification requirements, we require
ODEQ to input all source information into the Aerometric Information
Retrieval System (AIRS) for both point and area sources. The ODEQ must
enter this information into the AIRS system and update the information
by September 30 of every year. Additionally, ODEQ must also report to
EPA, Region 6, all MACTRAX information on our request, which is
typically semiannually. (MACTRAX provides summary data for each
implemented NESHAP that EPA uses to evaluate the Air Toxics Program.)
The ODEQ must provide any additional compliance related information to
EPA, Region 6, Office of Compliance Assurance as necessary.
In receiving delegation for specific General Provisions
authorities, ODEQ must submit to EPA, Region 6, copies of
determinations issued under these authorities. For part 61, these
determinations include: applicability determinations (section 61.01);
determinations of construction or modification (section 61.06);
approvals of construction or modification (section 61.08); Waiver of
Compliance (section 61.11); Operation and Maintenance Requirements
(section 61.12(c)); Waiver of Emission Test (section 61.13(h)(1)(iii)
and (i)(1), (2)); Approval of Minor Alternatives to Monitoring (section
61.14(g) except section 61.14(g)(1)(ii)). For part 63, these
determinations include: applicability determinations (Sec. 63.1);
approval/disapprovals of construction and reconstruction (Sec. 63.5(e)
and (f)); approval/disapprovals of compliance extensions
(Sec. 63.6(i)(1)); approval of shorter sampling times and volumes
(Sec. 63.7(e)(2)(iii)); waiver of performance testing
(Sec. 63.7(e)(2)(iv) and (h)(2), (3)); approval of adjustments to time
periods for submitting reports (Secs. 63.9 and 63.10); approvals/
disapprovals of minor (Sec. 63.7(e)(2)(i)) or intermediate
(Sec. 63.7(e)(2)(ii) and (f)) alternative test methods; approvals/
disapprovals of minor or intermediate alternative monitoring methods
(Sec. 63.8(f)); and approvals/disapprovals of minor alternatives to
recordkeeping and reporting (Sec. 63.10(f)). The ODEQ must also forward
to EPA, Region 6, copies of any notifications received under
Sec. 63.6(h)(7)(ii) regarding the use of a continuous opacity
monitoring system.
Additionally, EPA's Emission Measurement Center of the Emissions
Monitoring and Analysis Division must receive copies of any approved
intermediate changes to test methods or monitoring. (Please note that
intermediate changes to test methods must be demonstrated as equivalent
through the procedures set out in EPA method 301.) This information on
approved intermediate changes to test methods and monitoring will be
used to compile a database of decisions that will be accessible to
State and local agencies and EPA Regions for reference in making future
decisions. (For definitions of major, intermediate and minor
alternative test methods or monitoring methods, see 40 CFR 63.90). The
ODEQ should forward these intermediate test methods or monitoring
changes via mail or facsimile to: Chief, Source Categorization Group A,
U.S. EPA (MD-19), Research Triangle Park, NC 27711, Facsimile telephone
number: (919) 541-1039.
12. How Will Unchanged Authorities Be Delegated to ODEQ in the
Future?
In the future, for all sources, ODEQ will only need to send a
letter of request to EPA, Region 6, for those NESHAP regulations that
the State has adopted by reference with proof of its regulatory
authority. We will respond in writing to the request stating that the
request for delegation is either granted or denied. If a request is
approved, the effective date of the delegation will be the date of our
response letter. A document of the delegation will be published in the
Federal Register to inform the public and affected sources of the
delegation
[[Page 1589]]
and to indicate where source notifications and reports should be sent.
Furthermore, ODEQ intends to update their adoptions by reference of
40 CFR parts 61 and 63 standards and request updated delegation
annually, as current standards are revised and new standards are
promulgated.
13. What Is the Relationship Between the Resource Conservation and
Recovery Act (RCRA) and the Hazardous Waste Combustor (HWC) MACT?
How Does This Affect Delegation of This Standard to ODEQ?
As part of today's rule, we are delegating, under the CAA,
implementation and enforcement authority for the Hazardous Waste
Combustor MACT to ODEQ. Many of the sources subject to the HWC MACT are
also subject to the RCRA permitting requirements. We expect air
emissions and related operating requirements found in the HWC MACT will
be included in part 70 permits issued by ODEQ. However, RCRA permits
will still be required for all other aspects of the combustion unit and
the facility that are governed by RCRA (e.g., corrective action,
general facility standards, other combustor-specific concerns such as
materials handling, risk-based emissions limits and operating
requirements, as appropriate and other hazardous waste management
units).\4\ See the HWC MACT rule preamble discussion on the
interrelationship of the MACT rule with the RCRA Omnibus provision and
site specific risk assessments at 64 FR 52828, pages 52839-52843,
September 30, 1999, and the RCRA Site-Specific Risk Assessment Policy
for Hazardous Waste Combustion Facilities dated June, 2000 for more
information.
---------------------------------------------------------------------------
\4\ EPA promulgated the HWC MACT (40 CFR part 63, subpart EEE)
under the joint authority of the (CAA) and (RCRA). Before this rule
went in to effect, the air emissions from these sources were
primarily regulated under the authority of RCRA. See 40 CFR parts
264, 265, 266, and 270. With the release of HWC MACT, the air
emissions are now regulated under both CAA and RCRA. Even though
both statutes give EPA the authority, we determined that having the
emissions standards and permitting requirements in both sets of
implementing regulations would be duplicative. For this reason,
using the authority provided by section 1006(b) of RCRA, EPA
deferred the RCRA requirements for the HWC emission controls to the
CAA requirements of 40 CFR part 63, subpart EEE. After a facility
has demonstrated compliance with the HWC MACT, the RCRA waste
management standards for air emissions from these units will no
longer apply, with the exception of 3005(c)(3) of RCRA, which
requires that each RCRA permit contain the terms and conditions
necessary to protect human health and the environment. Under this
provision of RCRA, if a regulatory authority determines that more
stringent conditions that the HWC MACT are necessary to protect
human health and the environment for a particular facility, then
that regulatory authority may impose those conditions in the
facility's RCRA permit.
---------------------------------------------------------------------------
II. Final Action
The public was provided the opportunity to comment on the proposed
approval of the program and mechanism for delegation of section 112
standards, as apply to part 70 sources, on March 10, 1995. 60 FR 13088.
The EPA received public comments on that proposal and responded to them
in the February 5, 1996, Federal Register. 61 FR 4220. In this action,
the public is given an opportunity to comment on the program and
mechanism for the State to gain delegation of these standards as they
apply to non-part 70 sources. However, the Agency views the approval of
these requests as a noncontroversial action and anticipates no adverse
comments. Therefore, EPA is publishing this rule without prior
proposal. However, in the Proposed Rules section of today's Federal
Register publication, EPA is publishing a separate document that will
serve as the proposal to approve the program and delegation of
authority described in this action if adverse comments are received.
This action will be effective March 9, 2001 without further notice
unless the Agency receives relevant adverse comments by February 7,
2001.
If EPA receives adverse comments, we will publish a timely
withdrawal in the Federal Register informing the public the rule will
not take effect. We will address all public comments in a subsequent
final rule based on the proposed rule. The EPA will not institute a
second comment period on this action. Any parties interested in
commenting must do so at this time.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 Federal Register 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 EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
economically significant and does not involve decisions intended to
mitigate environmental health or safety risks.
C. Executive Order 13084
Under Executive Order 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, 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. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
D. Executive Order 13132
Federalism (64 Federal Register 43255, August 10, 1999) revokes and
replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental 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
[[Page 1590]]
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. The 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 rule does not have federalism implications. It 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, because it merely approves a State
program and rules implementing a Federal standard, and does not alter
the relationship or the distribution of power and responsibilities
established in the CAA. Thus, Executive Order 13132 does not apply to
this rule. Although section 6 of the Executive Order does not apply to
this rule, EPA did consult with State officials in developing this
rule, and this rule is in response to the State's delegation request.
E. Regulatory Flexibility
The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because delegation of authority to implement
and enforce unchanged Federal standards under section 112(l) of the CAA
does not create any new requirements, but simply transfers primary
implementation authorities to the State. Therefore, because this action
does not impose any new requirements, the Administrator certifies that
this action will not have a significant economic impact on a
substantial number of small entities.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the 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.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
H. Executive Order 12898
This rule does not involve special consideration of Environmental
Justice related issues as required by Executive Order 12898 (59 FR
7629, February 16,1994).
I. Executive Order 12988
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct.
J. Executive Order 12630
The EPA has complied with Executive Order 12630 (53 FR 8859, March
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney Generals Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive Order.
K. Paperwork Reduction
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
L. 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. The 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 12, 2001 unless EPA receives
adverse written comments by February 8, 2001.
M. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 12, 2001. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Intergovernmental relations,
[[Page 1591]]
Reporting and recordkeeping requirements.
Dated: December 21, 2000.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.
Title 40, chapter I, part 63 of the CFR is amended as follows:
Part 63--[Amended]
1. The authority citation for Part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
2. Section 63.99 is amended by adding paragraph (a)(36) to read as
follows:
Sec. 63.99 Delegated Federal Authorities
(a) * * *
(36) Oklahoma.
(i) The following table lists the specific part 63 standards that
have been delegated unchanged to the State of Oklahoma for all sources.
The (X) symbol is used to indicate each subpart that has been
delegated.
Delegation Status for Part 63 Standards--Oklahoma
------------------------------------------------------------------------
Subpart ODEQ \1\
------------------------------------------------------------------------
A............................... General Provisions \2\.. X
D............................... Early Reductions........
F............................... HON--SOCMI.............. X
G............................... HON--SOCMI Process X
Vents, Storage Vessels,
Transfer Operations and
Wastewater.
H............................... HON--Equipment Leaks.... X
I............................... HON--Certain Processes X
Negotiated Equipment
Leak Regulation.
L............................... Coke Oven Batteries..... X
M............................... Perchloroethylene Dry X
Cleaning.
N............................... Chromium Electroplating. X
O............................... Ethylene Oxide X
Sterilizers.
Q............................... Industrial Process X
Cooling Towers.
R............................... Gasoline Distribution... X
S............................... Pulp and Paper Industry. X
T............................... Halogenated Solvent X
Cleaning.
U............................... Polymers and Resins I... X
W............................... Polymers and Resins II- X
Epoxy.
X............................... Secondary Lead Smelting. X
Y............................... Marine Tank Vessel X
Loading.
CC.............................. Petroleum Refineries.... X
DD.............................. Off-Site Waste and X
Recovery.
EE.............................. Magnetic Tape X
Manufacturing.
GG.............................. Aerospace Manufacturing X
and Rework.
HH.............................. Oil and Natural Gas X
Production.
II.............................. Shipbuilding and Ship X
Repair.
JJ.............................. Wood Furniture X
Manufacturing
Operations.
KK.............................. Printing and Publishing X
Industry.
LL.............................. Primary Aluminum X
Reduction Plants.
OO.............................. Tanks--Level 1.......... X
PP.............................. Containers.............. X
QQ.............................. Surface Impoundments.... X
RR.............................. Individual Drain Systems X
SS.............................. Closed Vent Systems, X
Control Devices,
Recovery Devices and
Routing to a Fuel Gas
System or a Process.
TT.............................. Equipment Leaks--Level 1 X
UU.............................. Equipment Leaks--Level 2 X
Standards.
VV.............................. Oil-Water Separators and X
Organic-Water
Separators.
WW.............................. Storage Vessels (Tanks)-- X
Control Level 2.
YY.............................. Generic Maximum X
Achievable Control
Technology Standards.
CCC............................. Steel Pickling--HCl X
Process Facilities and
Hydrochloric Acid
Regeneration.
DDD............................. Mineral Wool Production. X
EEE............................. Hazardous Waste X
Combustors.
GGG............................. Pharmaceuticals X
Production.
HHH............................. Natural Gas Transmission X
and Storage.
III............................. Flexible Polyurethane X
Foam Production.
JJJ............................. Polymers and Resins, X
Group IV.
LLL............................. Portland Cement X
Manufacturing.
MMM............................. Pesticide Active X
Ingredient Production.
NNN............................. Wool Fiberglass X
Manufacturing.
PPP............................. Polyether Polyols X
Production.
TTT............................. Primary Lead Smelting... X
XXX............................. Ferroalloys Production.. X
------------------------------------------------------------------------
\1\ Oklahoma Department of Environmental Quality.
\2\ Authorities which may not be delegated include: 63.6(g); 63.6(h)(9);
63.7(e)(2)(ii) and (f) for approval of major alternatives to test
methods; 63.8(f) for approval of major alternatives to monitoring; and
all authorities identified in the subparts (i.e., under ``Delegation
of Authority'') that cannot be delegated.
[[Page 1592]]
[FR Doc. 01-110 Filed 1-8-01; 8:45 am]
BILLING CODE 6560-50-P