[Federal Register Volume 64, Number 73 (Friday, April 16, 1999)]
[Rules and Regulations]
[Pages 18824-18827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9571]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-6326-4]
RIN 2060-A128


Hazardous Air Pollutants: Amendment to Regulations Governing 
Equivalent Emission Limitations by Permit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On May 20, 1994, the Agency promulgated a rule in the Federal 
Register governing the establishment of equivalent emission limitations 
by permit, pursuant to section 112(j) of the Clean Air Act (Act). After 
the effective date of a Title V permit program in a State, each owner 
or operator of a major source in a source category for which the EPA 
was scheduled, but failed, to promulgate a section 112(d) emission 
standard will be required to obtain an equivalent emission limitation 
by permit. The permit application must be submitted to the Title V 
permitting authority 18 months after the EPA's missed promulgation 
date. This action amends the Regulations Governing Equivalent Emission 
Limitations by Permit rule. This amendment delays the section 112(j) 
permit application deadline for 7-year source categories listed in the 
regulatory schedule until December 15, 1999. This action is needed to 
alleviate unnecessary paperwork for both major source owners or 
operators and permitting agencies.

DATES: This final rule amendment will be effective on May 17, 1999 
without further notice, unless EPA receives adverse comments on this 
rulemaking by April 26, 1999 or a request for a hearing concerning the 
accompanying proposed rule is received by EPA by April 23, 1999. If EPA 
receives timely adverse comment or a timely hearing request, EPA will 
publish a withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect and will proceed to 
promulgate a final rule based on the proposed rule.

ADDRESSES: Comments. Interested parties may submit comments on this 
rulemaking in writing (original and two copies, if possible) to Docket 
No. A-93-32 to the following address: Air and Radiation Docket and 
Information Center (6102), US Environmental Protection Agency, 401 M 
Street, S.W., Room 1500, Washington, D.C. 20460. The EPA requests that 
a separate copy of each public comment be sent to the contact person 
listed below (see FOR FURTHER INFORMATION CONTACT). Comments may also 
be submitted electronically by following the instructions provided in

SUPPLEMENTARY INFORMATION. Public comments on this rulemaking will be 
accepted until April 26, 1999.
    Docket. All information used in the development of this final 
action is contained in the preamble below. However, Docket No. A-93-32, 
containing the supporting information for the original Regulations 
Governing Equivalent Emission Limitations by Permit rule is available 
for public inspection and copying between 8:00 a.m. and 5:30 p.m., 
Monday through Friday at the Air and Radiation Docket and Information 
Center (6102), Room M-1500, U.S. Environmental Protection Agency, 401 M 
Street, S.W., Washington, D.C. 20460; telephone (202) 260-7548, fax 
(202) 260-4000. A reasonable fee may be charged for copying.
    Radiation Docket and Information Center (see ADDRESSES).
    These documents can also be accessed through the EPA web site at: 
http://www.epa.gov/ttn/oarpg. For further information and general 
questions regarding the Technology Transfer Network (TTNWEB), call Mr. 
Hersch Rorex (919) 541-5637 or Mr. Phil Dickerson (919) 541-4814.

FOR FURTHER INFORMATION CONTACT: Mr. James Szykman or Mr. David 
Markwordt, Emission Standards Division (MD-13), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone (919) 541-2452 (Szykman) or (919) 541-0837 (Markwordt).

SUPPLEMENTARY INFORMATION: EPA is publishing this rule amendment 
without prior proposal because we consider this to be a 
noncontroversial amendment; and we do not expect to receive any adverse 
comment. However, in the ``Proposed Rules'' section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal for this amendment, in the event we receive 
adverse comment or a hearing request and this direct final rule is 
subsequently withdrawn. This final rule amendment will be effective on 
May 17, 1999 without further notice, unless we receive adverse comment 
on this rulemaking by April 26, 1999 or a request for a hearing 
concerning the accompanying proposed rule is received by EPA by April 
23, 1999. If EPA receives timely adverse comment or a timely hearing 
request, we will publish a withdrawal in the Federal Register informing 
the public that this direct final rule will not take effect. In that 
event, we will address all public comments in a subsequent final rule, 
based on the proposed rule amendment published in the ``Proposed 
Rules'' section of this Federal Register document. The EPA will not 
provide further opportunity for public comment on this action. Any 
parties interested in commenting on this amendment must do so at this 
time.
    Electronic comments and data may be submitted by sending electronic 
mail (e-mail) to: [email protected]. Submit comments as an 
ASCII file, avoiding the use of special characters and any form of 
encryption. Comments and data will also be accepted on diskette in Word 
Perfect 5.1 or 6.1 or ACSII file format. Identify all comments and data 
in electronic form by the docket numbers A-93-22. No Confidential 
Business Information (CBI) should be submitted through electronic mail. 
Electronic comments may be filed online at many Federal Depository 
Libraries.
    Outline. The information presented in this preamble is organized as 
follows:

I. What are section 112(j) permit application deadlines?
II. Why does EPA want to delay the section 112(j) permit application 
deadline?
III. Under what legal authority can EPA delay the existing deadline 
dates?
IV. What are the requirements to review this action in Court?
V. Administrative Requirements
    A. Docket
    B. Paperwork Reduction Act
    C. E.O. 12866: The Unfunded Mandates Reform Act of 1995, the 
Regulatory Flexibility Act, and the Small Business Regulatory 
Enforcement Fairness Act of 1996
    D. National Technology Transfer and Advancement Act
    E. E.O. 13045: Protection of Children from Environmental Health 
and Safety Risks
    F. E.O. 13084: Consultation and Coordination with Indian Tribal 
Governments
    G. E.O. 12875: Enhancing the Intergovernmental Partnership
    H. Submission to Congress and the Comptroller General

[[Page 18825]]

I. What Are Section 112(j) Permit Application Deadlines?

    Section 112(e) of the Clean Air Act (the Act) requires the Agency 
to publish a schedule for promulgating regulations establishing 
hazardous air pollutants (HAP) emission standards for all source 
categories listed pursuant to section 112 of the Act. The Act further 
directs that this regulatory schedule require the promulgation of 
emission standards for at least 40 source categories by 1992, for at 
least 25 percent of the listed categories by 1994, for at least 50 
percent of the listed categories by 1997, and all remaining categories 
by the year 2000. These are commonly referred to as the 2-year, 4-year, 
7-year, and the 10-year maximum achievable control technology (MACT) 
standards, respectively. This regulatory schedule was published by EPA 
on December 3, 1993 (58 FR 64931).
    If EPA should fail to promulgate a MACT standard for a listed 
source category by the statutory deadline established pursuant to 
section 112(e)of the Act, section 112(j) of the Act requires owners or 
operators of major sources within that source category to apply for a 
case-by-case emission standard via a Title V permit. This permit will 
require compliance with an emission limitation equivalent to that which 
the major source would have been subject to had EPA promulgated a 
timely MACT standard for that source category.
    On May 20, 1994, EPA issued a final rule for implementing section 
112(j) (59 FR 26429). This rule requires major source owners or 
operators to submit a permit application by the date 18 months after a 
missed date on the regulatory schedule. In accordance with this 
regulation, the deadline for submittal of permit applications for 7-
year rules not promulgated in accordance with the source category 
schedule is currently May 15, 1999.

II. Why Does EPA Want To Delay the Section 112(j) Permit 
Application Deadline?

    To date, EPA has promulgated several 7-year MACT standards and 
intends to promulgate MACT standards for all of the remaining 7-year 
source categories according to the following schedule, which has been 
incorporated in a proposed consent decree filed with the U.S. District 
Court for the District of Columbia:
    Promulgation required by May 15, 1999:

1. Hydrogen fluoride production;
2. Primary lead smelting;
3. Ferroalloys production;
4. Steel pickling--HCl process;
5. Oil and natural gas production;
6. Butadiene-furfural cotrimer (R-11) production;
7. 4-chloro-2-methyl phenoxyacetic acid production;
8. 2,4-D salts and esters production;
9. 4,6-dinitro-o-cresol production;
10. Captafol production;
11. Captan production;
12. Chloroneb production;
13. Chlorothalonil production;
14. Dacthal (tm) production;
15. Sodium pentachlorophenate production;
16. Tordon (tm) acid production;
17. Acrylic fibers/modacrylic fibers production;
18. Acetal resins production;
19. Mineral wool production;
20. Portland cement manufacturing;
21. Wool fiberglass manufacturing;
22. Polycarbonates production;
23. Polyether polyols production;
24. Phosphate fertilizer production; and
25. Phosphoric acid manufacturing.

    Promulgation required by October 15, 1999: publicly owned treatment 
works
    Promulgation required by December 15, 1999:

1. amino resins production;
2. phenolic resins production; and
3. secondary aluminum production.

    Promulgation required by December 15, 2000: pulp and paper 
(combustion)
    In the case of those 7-year emission standards where promulgation 
will be required by May 15, 1999, owners or operators of major sources 
subject to these standards would currently be compelled to submit a 
permit application on the same date, even though such an application 
could serve no purpose whatsoever in the event that EPA promulgates the 
standard according to the court-ordered schedule. Since potential 
applicants cannot know for certain that EPA will adhere to this 
schedule, they would have to run the risk of potential non-compliance 
or begin preparation of these applications immediately. This situation 
will clearly result in an unnecessary burden for both the owners or 
operators and the Title V permitting agencies.
    There are a small number of 7-year emission standards where the 
proposed consent decree does not require promulgation of the standard 
until a date which is after May 15, 1999. Since the standards in 
question are not expected to be promulgated by the current application 
deadline of May 15, 1999, it could be argued that potential applicants 
are already on notice that a section 112(j) permit application will be 
required. However, EPA believes it is inappropriate to extend the 
application deadline for some potential applicants and not for others. 
Moreover, since every 7-year emission standard except for one is 
expected to be promulgated by December 15, 1999, it is doubtful whether 
any permit application for a major source subject to these standards 
submitted on May 15, 1999 would or could be acted upon by the 
permitting authority prior to the promulgation of the standard in 
question.
    For all of the above reasons, EPA has concluded that it is both 
necessary and appropriate to extend the section 112(j) permit 
application deadline for major sources subject to 7-year emission 
standards until December 15, 1999.

III. Under What Legal Authority Can EPA Delay The Existing Deadline 
Dates?

    The EPA believes that ample authority for this rule revision exists 
under the de minimis doctrine. That doctrine allows EPA to promulgate a 
rule that avoids a statutory requirement if (1) following that 
requirement would yield an environmental benefit of trivial or no 
value, and (2) the statutory scheme is not so rigid as to preclude this 
result. Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir 
1979). The EPA believes both tests are met here.
    Regarding the first point, it should be intuitively apparent that 
requiring sources to complete applications for a case-by-case 
determination is pointless when it is very likely that EPA will 
promulgate the MACT standard within a timeframe that renders the entire 
case-by-case exercise moot. This is precisely the case with regard to 
almost all of the pending 7-year MACT standards, which will be subject 
to court-ordered deadlines requiring issuance on or shortly after the 
date applications are currently due. Regarding the second test, the 
language of section 112(j)(2), requiring that applications be submitted 
on a date ``beginning'' 18 months after a deadline has been missed, and 
the clear intent of the statute that case-by-case determinations should 
be made where they will serve as a substitute for the pending MACT 
standard, together suggest a level of flexibility in the statutory 
scheme sufficient to allow resort to the de minimis rationale.
    The EPA is amending the definition of ``section 112(j) deadline'' 
in Sec. 63.51 of the final rule to delay the section 112(j) permit 
application deadline for all 7-year source categories until December 
15, 1999. The EPA believes that this new application deadline will 
allow sufficient time to promulgate all but one of the remaining 7-year 
emission standards before applications are due

[[Page 18826]]

and is consistent with the intent of section 112(j).

IV. What Are The Requirements To Review This Action In Court?

    Under section 307(b)(1) of the Act, judicial review of this final 
rule is available only by the filing of a petition for review in the 
U.S. Court of Appeals for the District of Columbia Circuit by June 15, 
1999. Any such judicial review is limited to only those objections 
which are raised with reasonable specificity in timely comments. Under 
section 307(b)(2) of the Act, the requirements that are the subject of 
this final rule may not be challenged later in civil or criminal 
proceedings brought by EPA to enforce these requirements.

V. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-32, the same docket 
as the original final rule, and a copy of today's amendment to the 
final rule will be included in the docket. The principle purposes of 
the docket are: (1) to allow interested parties a means to identify and 
locate documents so that they can effectively participate in the 
rulemaking process; and (2) to serve as the record in case of judicial 
review (except for interagency review materials) (section 307(d)(7)(A) 
of the Act). The docket is available for public inspection at the EPA's 
Air and Radiation Docket and Information Center, the location of which 
is given in the ADDRESSES section of this document.

B. Paperwork Reduction Act

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document will be prepared by EPA 
(ICR No. 1648.02 ) and a copy will be available from Sandy Farmer by 
mail at OP Regulatory Information Division; U.S. Environmental 
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460, by 
email at [email protected], or by calling (202) 260-2740. A 
copy may also be downloaded off the internet at http://www.epa.gov/icr. 
The information requirements are not effective until OMB approves them.
    Section 112(j) of the Clean Air Act as amended in 1990 (CAAA) 
requires a source to submit a permit application if EPA fails to 
promulgate a MACT standard for a category of subcategory of major 
sources on schedule. The permit application is used by the permitting 
to issue permits containing maximum achievable control technology 
(MACT) emission limitation on a case-by-case (source-by-source) basis, 
equivalent to what would have been promulgated by EPA. The requirement 
to submit the permit application is not voluntary. Section 112(j) of 
the CAAA contains the need and authority for this information 
collection. [42 U.S.C. 7401 (et. seq.) as amended by Pub. L. 101-549]. 
Any information submitted to a permitting authority with a claim of 
confidentiality is to be safeguarded according to policies in 40 CFR 
Chapter 1, Part 2, Subpart B--Confidentiality of Business Information.
    The total estimated burden, which includes all activities 
associated with the respondents or government agencies, is $1,323,000 
and 46,339 hours. This collection of information has an estimated 
reporting burden of 171 hours per respondent and 140 hours per 
permitting agency. The permit application is a one time occurrence 
along with the issuance of the permit by the permitting agency. This 
estimated cost per respondent is $4,600 and $4,300 per permitting 
agency.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Under E.O. 12866: The Unfunded Mandates Reform Act of 1995, the 
Regulatory Flexibility Act, and the Small Business Regulatory 
Enforcement Fairness Act of 1996

    Because the regulatory revisions that are the subject of today's 
document would delay an existing requirement, this action is not a 
``significant'' regulatory action within the meaning of Executive Order 
12866, and does not impose any Federal mandate on State, local and 
tribal governments or the private sector within the meaning of the 
Unfunded Mandates Reform Act of 1995. Further, the EPA has determined 
that it is not necessary to prepare a regulatory flexibility analysis 
in connection with this action under the Regulatory Flexibility Act and 
the Small Business Regulatory Enforcement Fairness Act of 1996. The 
regulatory change proposed here is expected to reduce regulatory 
burdens on small businesses, and will not have a significant impact on 
a substantial number of small entities.

D. National Technology Transfer and Advancement Act

    Under section 12 of the National Technology Transfer and 
Advancement Act of 1995, the EPA must consider the use of ``voluntary 
consensus standards,'' if available and applicable, when implementing 
policies and programs, unless it would be ``inconsistent with 
applicable law or otherwise impractical.'' The intent of the National 
Technology Transfer and Advancement Act is to reduce the costs to the 
private and public sectors by requiring federal agencies to draw upon 
any existing, suitable technical standards used in commerce or 
industry.
    A ``voluntary consensus standard'' is a technical standard 
developed or adopted by a legitimate standards-developing organization. 
The Act defines ``technical standards'' as ``performance-based or 
design-specific technical specifications and related management systems 
practices.'' A legitimate standards-developing organization must 
produce standards by consensus and observe principles of due process, 
openness, and balance of interests. Examples of organizations that are 
regarded as legitimate standards-developing organizations include the 
American Society for Testing and Materials (ASTM), International 
Organization for Standardization (ISO), International Electrotechnical 
Commission (IEC), American Petroleum Institute (API), National Fire 
Protection Association (NFPA) and Society of Automotive Engineers 
(SAE).
    Since today's action does not involve the establishment or 
modification of technical standards, the requirements of the National 
Technology Transfer and Advancement Act do not apply.

[[Page 18827]]

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that (1) OMB determines is ``economically 
significant'' as defined under Executive Order 12866, and (2) EPA 
determines the environmental health or safety risk addressed by the 
rule has a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety aspects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    These regulatory revisions are not subject to the Executive Order 
because it is not economically significant as defined in E.O. 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children.

F. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. These rule revisions impose 
no enforceable duties on these entities. Rather, these rule revisions 
reduce burdens associated with certain regulatory requirements. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

G. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule changes do not create a mandate on State, local or 
tribal governments. The rule changes do not impose any enforceable 
duties on these entities. Rather, the rule changes reduce burden for 
certain regulatory requirements. Accordingly, the requirements of 
section 1(a) of Executive Order 12875 do not apply to this rule.

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practices and procedures, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: April 12, 1999.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, 40 CFR Part 63 is amended 
as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

    2. In Sec. 63.51, the definition of ``Section 112(j) deadline'' is 
revised to read as follows:


Sec. 63.51  Definitions.

* * * * *
    Section 112(j) deadline means the date 18 months after the date by 
which a relevant standard is scheduled to be promulgated under this 
part, except that for all major sources listed in the source category 
schedule for which a relevant standard is scheduled to be promulgated 
by November 15, 1994, the Section 112(j) deadline is November 15, 1996, 
and for all major sources listed in the source category schedule for 
which a relevant standard is scheduled to be promulgated by November 
15, 1997, the Section 112(j) deadline is December 15, 1999.
* * * * *
[FR Doc. 99-9571 Filed 4-15-99; 8:45 am]
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