[Federal Register Volume 61, Number 133 (Wednesday, July 10, 1996)]
[Rules and Regulations]
[Pages 36295-36298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17323]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63

[AD-FRL-5531-3]


Approval of State Programs and Delegation of Federal Authorities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action revises the ``Approval of State Programs and 
Delegation of Federal Authorities'' (subpart E). The amendments are 
being made to clarify regulatory text, reduce administrative burden and 
provide more flexibility to States using this rulemaking. Additionally, 
today's action does not have any environmental impact. As a result, the 
Agency does not anticipate receiving adverse comments. Consequently, 
the amendments are being issued as a direct final rule.

DATES: The direct final rule will be effective August 19, 1996 unless 
significant, adverse comments are received by August 9, 1996. If 
significant, timely adverse comments are received on the direct final 
rule, the direct final rule will be withdrawn.

ADDRESSES: Comments. Comments should be submitted (in duplicate, if 
possible) to: Air and Radiation Docket and Information Center (6102), 
Attention Docket Number A-96-09, Room M-1500, U.S. EPA, 401 M Street, 
SW., Washington, DC 20460. The EPA requests that a separate copy also 
be sent to the contact person listed below.

FOR FURTHER INFORMATION CONTACT: Mr. Gilbert Wood at (919) 541-5272 or 
Ms. Sheila Q. Milliken at (919) 541-2625, Integrated Implementation 
Group, Information Transfer and Program Integration Division (MD-12), 
U.S. Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially affected by this action are State, local, or 
tribal governments that voluntarily implement Clean Air Act (Act) 
section 112 rules, emission standards, or requirements. This action 
does not regulate emission sources directly. Regulated categories and 
entities include:

------------------------------------------------------------------------
              Category                  Examples of regulated entities  
------------------------------------------------------------------------
State, local, tribal governments....  State, local, or tribal           
                                       governments that voluntarily     
                                       request approval of rules or     
                                       programs to be implemented in    
                                       place of Act section 112 rules,  
                                       emission standards or            
                                       requirements or voluntarily      
                                       request delegation of unchanged  
                                       section 112 rules.               
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. The existing procedures 
and criteria for requesting and receiving approval of these State, 
local, or tribal government rules or programs or voluntarily requesting 
delegation of unchanged section 112 rules are in sections 63.90 through 
63.95 of this subpart.
    On November 26, 1993 (58 FR 62262), the EPA promulgated in the 
Federal Register guidance relating to the approval of State programs 
and delegation of Federal authorities under the authority of section 
112(l) of the Act. Section 112(l)(2) of the Act requires the EPA to 
publish guidance useful to States in developing programs for 
implementing and enforcing emission standards and other requirements 
for hazardous air pollutants (HAP). The use of delegation under section 
112(l) is voluntary on the part of the States. The regulations were 
promulgated as subpart E in 40 CFR part 63.
    Today's action modifies the subpart E final regulation to improve 
clarity of administrative procedures and eliminate unnecessary and, in 
some cases, impractical requirements imposed on the States. Today's 
changes do not significantly modify the requirements of the regulation. 
The revisions are discussed in the order in which they appear in the 
subpart E regulation. If timely significant adverse comments are 
received on any amendment of this direct final rule, that amendment of 
the direct final rule will be withdrawn and all such comments will be 
addressed in a subsequent final rule based on the proposed rule 
contained in the proposed rules section of this Federal Register that 
addresses issues in this direct final rule. If no timely significant 
adverse comments are received on this direct final rule, then the 
direct final rule will become effective August 19, 1996 and no further 
action is contemplated on the parallel proposal published today.

Preamble Outline

    The following outline is provided to aid in locating information in 
this preamble.

I. Description of Changes
    A. Approval of State Mechanism to Receive Delegation of Existing 
and Future Unchanged Federal Section 112 Standards and Requirements
    B. Deletion of 6-month Reporting Requirement
    C. Additional Language Regarding Implementation of Chemical 
Safety Hazard Investigation Board Requirement
    D. Approval of State Rules and Programs Designed to Limit 
Potential to Emit (PTE)
II. Unfunded Mandates Reform Act
III. Administrative
    A. Paperwork Reduction Act
    B. Executive Order 12866 Review
    C. Regulatory Flexibility Act
    D. Submission to Congress and the General Accounting Office

[[Page 36296]]

I. Description of Changes

A. Approval of State Mechanism to Receive Delegation of Existing and 
Future Unchanged Federal Section 112 Standards and Requirements

    Section 63.91 of the subpart E rule establishes a process for 
straight delegation of individual maximum achievable control technology 
(MACT) standards after they are promulgated, but it does not include a 
process for approving a program for delegation of all future MACT 
standards through a single, advance program approval. State and local 
agencies have asked for a more streamlined method for taking delegation 
of future and existing unchanged Federal section 112 standards and 
requirements.
    The EPA agrees with the merit of a program that will allow State 
and local agencies to receive upfront approval of the mechanism with 
which they would take delegation of existing and future unchanged 
Federal section 112 standards. Such a program would eliminate the need 
for State and local agencies to submit individual requests for 
delegation of unchanged Federal section 112 standards on a rule-by-rule 
basis. Regional Offices would benefit by receiving early identification 
of States' intentions for receiving delegation. State and local 
agencies would have minimal administrative burden in submitting their 
requests for approval.
    The EPA established policy for such a process for sources subject 
to part 70 permitting through a memorandum entitled, ``Straight 
Delegations Issues Concerning Sections 111 and 112 Requirements and 
Title V,'' dated December 10, 1993, from John Seitz, Director, Office 
of Air Quality Planning and Standards, U.S. EPA. A similar program for 
sources not subject to part 70 is detailed in the revised enabling 
guidance for subpart E (``Interim Enabling Guidance for the 
Implementation of 40 CFR part 63, subpart E,'' dated November 1993, 
EPA-453/R-93-040). The EPA intends to codify the policy described in 
the memorandum and guidance in this direct final rulemaking. Therefore, 
EPA is making the necessary revisions to the subpart E rule to include 
a process of approving State mechanisms for receiving delegation of 
existing and future unchanged Federal section 112 standards and 
requirements consistent with its current policy. Submittals previously 
approved before today's action will not be affected. Revisions are 
being made to sections 63.90 and 63.91 which specifically indicate that 
States can request upfront EPA approval of the State's mechanism for 
taking delegation of future unchanged Federal section 112 standards and 
requirements.

B. Deletion of 6-Month Reporting Requirement

    The subpart E rule currently contains a provision which requires 6-
month reporting by sources of all required monitoring or testing for 
the State rule which replaces a Federal rule (Sec. 63.93(b)(4)(iv)). 
This requirement was originally placed in the subpart E rule to be 
consistent with requirements in the part 70 operating permit rule at 40 
CFR part 70, Sec. 70.6(a)(3)(iii)(A).
    State and local agencies believe that the 6-month reporting 
requirement for regulated sources is duplicative of reporting 
requirements already included in individual MACT standards and the 
title V permit program regulations. They feel that this requirement is 
unnecessary and creates paperwork with little or no benefit.
    An example of where this requirement could adversely affect a 
source is in the case where the MACT rule only requires yearly 
reporting. If a State wanted to substitute their rule for the Federal 
MACT rule, the source would be required to report every 6 months due to 
the existing subpart E requirement. Area sources do not trigger the 6-
month reporting requirement of title V, and thus, should only be 
required to report yearly. Nonetheless, subpart E currently mandates 6-
month reporting. Consequently, it imposes, an unnecessary additional 
burden on sources in States with delegated air toxics programs.
    In this scenario, the EPA feels that there would be no value added 
in increasing the reporting requirement to a mandatory minimum of 6-
months because EPA has already determined the frequency of reporting 
necessary to assure compliance in each MACT standard or in the General 
Provisions. In addition, since section 112(l) is voluntary, the 6-month 
reporting provision imposes an increased burden on sources whose States 
submit equivalent State rules or programs for EPA approval, and 
discourages States from accepting delegation of the Federal rule.
    The EPA agrees that this requirement is not necessary as a general 
requirement and is revising section 63.93 by deleting 
Sec. 63.93(b)(4)(iv).

C. Additional Language Regarding Implementation of Chemical Safety and 
Hazard Investigation Board Requirement

    Section 112(r)(7)(B)(iii) requires coordination with the Chemical 
Safety and Hazard Investigation Board (CSHIB) on accident 
investigations. For consistency, the subpart E rule (section 63.95 
(b)(4)(i)) reiterates this requirement. State and local agencies 
believe this language should be deleted because the CSHIB has not yet 
been established. Continued inclusion of this provision imposes a 
meaningless requirement. It should be noted, however, that the CSHIB 
may be convened at some later date. The EPA agrees that it is 
appropriate that the requirement not take effect until the CSHIB is 
convened. Consequently, section 63.95(b)(4)(i) is being revised to add 
the sentence, ``This requirement will not take effect until the 
Chemical Safety and Hazard Investigation Board is convened.''

D. Approval of State Rules and Programs Designed to Limit Potential to 
Emit (PTE)

    Currently, a number of States are submitting, for EPA approval into 
the State Implementation Plan, rules and programs such as prohibitory 
rules and federally enforceable State operating permit programs 
(FESOP). There are a few hazardous air pollutants (for example 
methylene chloride) which are not regulated by the criteria pollutant 
program. Accordingly, when a State seeks Federal approval of these 
rules and programs, as they relate to such pollutants, the EPA approval 
will be given pursuant to section 112(l) of the Act.
    The current subpart E rule does not expressly provide for approval 
of programs designed to limit sources' potential to emit hazardous air 
pollutants. As explained in various recent notices approving PTE 
programs for section 112 purposes, EPA believes the authority exists 
under section 112(l) of the statute to approve PTE programs. 
Promulgation of a rule expressly providing for such approvals is 
consistent with this statutory authority. Thus, the EPA is today 
revising subpart E to clarify that it may be used to approve State PTE 
programs for section 112 purposes, in order to ensure that an 
unintended ``gap'' does not exist for pollutants such as methylene 
chloride.
    The EPA notes that it is currently reexamining its policy on PTE 
for the section 112, title V, and new source review programs. One 
possible outcome of this reexamination is that PTE limits will no 
longer have to be federally enforceable. However, EPA believes that 
today's revision to subpart E is neutral with respect to this issue. 
The revision to subpart E merely clarifies that the rule may be used as 
a pathway for approval of State PTE programs. It does not in and of 
itself establish a

[[Page 36297]]

requirement that limits on PTE must be issued pursuant to a program 
approved by EPA. In other words, today's revision clarifies that 
subpart E may be used to approve a PTE program that a State chooses to 
submit, without addressing whether or why a State would make this 
choice.

II. 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, 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.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of title II of the UMRA) for State, local, or tribal 
governments or the private sector. The UMRA generally excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from participation in a voluntary Federal program. The EPA has also 
determined that this rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any 1 
year. Thus, today's rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

III. Administrative

A. Paperwork Reduction Act

    The information collection requirements of the previously 
promulgated subpart E rulemaking were submitted to and approved by the 
Office of Management and Budget (OMB). A copy of this Information 
Collection Request (ICR) document (with an OMB approval control number 
2060-0264) may be obtained from the Regulatory Information Division 
(2136), U.S. Environmental Protection Agency, 401 M Street, SW, 
Washington, D.C. 20460, or by calling (202) 260-2740.
    Today's changes to the rulemaking may slightly reduce the 
information collection burden estimates made previously. Since the 
expected reduction will not be significant, the ICR has not been 
revised.

B. Executive Order 12866 Review

    The subpart E rulemaking, promulgated on November 26, 1993 was 
considered a ``significant regulatory action'' under Executive Order 
12866 (58 FR 5173, dated October 4, 1993) and submitted to OMB for 
review. According to the Executive Order, a ``significant regulatory 
action is 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, of 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.
    Today's action is not considered a ``significant regulatory 
action'' within the meaning of this Executive Order. The amendments 
issued today clarify the rule and change certain administrative 
requirements to increase the flexibility to States in terms of gaining 
approval of their respective State programs. Therefore, the EPA 
concludes these amendments do not need to undergo OMB review.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. This rule will 
not increase, and is likely to reduce, regulatory burdens on small 
businesses. EPA has determined that this rule will have no adverse 
effect on small businesses.

D. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted 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 General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

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: June 26, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

    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 63.90 is amended by adding a sentence after the third 
sentence and a sentence at the end of the introductory text to read as 
follows:


Sec. 63.90  Program overview.

    * * * In this process, States may seek approval of a State 
mechanism for receiving delegation of existing and future unchanged 
Federal section 112 standards. * * * This subpart also establishes 
procedures for the approval of State rules or programs to establish 
limitations on the potential to emit pollutants listed in or pursuant 
to section 112(b) of the Act.
* * * * *
    2. Section 63.91 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec. 63.91  Criteria common to all approval options.

    (a) Approval process. To obtain approval under this subpart of a 
rule or program that is different from the Federal rule, the criteria 
of this section and the criteria of either Sec. 63.92, Sec. 63.93 or 
Sec. 63.94 must be met. For approval of State programs to implement and 
enforce Federal section 112 rules as promulgated without changes 
(except for accidental release programs), only the criteria of this 
section must be met. This includes State requests for upfront approval 
of their mechanism for taking delegation of future unchanged Federal 
section 112 standards and requirements as well as approval to implement 
and enforce unchanged Federal section 112 standards and requirements on 
a rule-by rule basis. For approval of State rules or programs to 
implement and enforce the Federal accidental release prevention program 
as promulgated without

[[Page 36298]]

changes, the requirements of this section and section Sec. 63.95 must 
be met. In the case of accidental release prevention programs which 
differ from the Federal accidental release prevention program, the 
requirements of this section, Sec. 63.95, and either Sec. 63.92 or 
Sec. 63.93 must be met. The Administrator may, under the authority of 
Section 112(l) and this subpart, also approve a State program designed 
to establish limits on the potential to emit of pollutants listed 
pursuant to Section 112(b) of the Clean Air Act. For a State's initial 
request for approval of any rule or program under this subpart, and 
except as otherwise specified under Sec. 63.92, Sec. 63.93, or 
Sec. 63.94 for a State's subsequent requests for approval, the approval 
process will be the following:
* * * * *


Sec. 63.93  [Amended]

    3. Section 63.93 is amended by removing paragraph (b)(4)(iv).
    4. Section 63.95 is amended by revising paragraph (b)(4)(i) to read 
as follows:


Sec. 63.95  Additional approval criteria for accidental release 
prevention programs.

* * * * *
    (b) * * *
    (4) * * *
    (i) The Chemical Safety and Hazard Investigation Board, 
particularly during accident investigation. This requirement will not 
take effect until the Chemical Safety and Hazard Investigation Board is 
convened; and
* * * * *
[FR Doc. 96-17323 Filed 7-9-96; 8:45 am]
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