[Federal Register Volume 64, Number 93 (Friday, May 14, 1999)]
[Rules and Regulations]
[Pages 26311-26314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12243]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-6343-2]
RIN 2060-A128


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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[[Page 26312]]

SUMMARY: This final rule adopts an amendment to the Regulations 
Governing Equivalent Emission Limitation by Permit proposed in the 
Federal Register on April 16, 1999 (64 FR 18862). This action amends 
the rule implementing Clean Air Act section 112(j) to extend the 
section 112(j) permit application deadline for sources in 7-year source 
categories until December 15, 1999.

EFFECTIVE DATE: May 14, 1999.

ADDRESSES: Docket. The administrative record for this rulemaking may be 
found in Docket No. A-93-32. The docket is available for public 
inspection and copying between 8:00 a.m. and 5:30 p.m., Monday through 
Friday, at the EPA's Air and Radiation Docket and Information Center 
(6102), 401 M Street, SW, Washington, DC 20460, or by calling (202) 
260-7548. A reasonable fee may be charged for copying. An electronic 
version of this rule is available for download 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: For information concerning this rule, 
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), e-mail [email protected] 
and [email protected].

SUPPLEMENTARY INFORMATION: Entities potentially affected by this action 
are owners or operators of major sources that fall into one of the 
following source categories:

------------------------------------------------------------------------
         Category                    Affected source categories
------------------------------------------------------------------------
Industry.................  hydrogen fluoride production; primary lead
                            smelting; ferroalloys production;
                            steelpickling--HCl processes; oil and
                            natural gas production; butadiene-furfural
                            cotrimer (R-11) production; 4-chloro-2-
                            methyl phenoxyacetic acid production; 22, 4-
                            D salts and esters production; 4, 6-dinitro-
                            o-cresol production; captafol production;
                            captan production; chloroneb production;
                            chlorothalonil production; dacthal (tm)
                            production; sodium pentachlorophenate
                            production; tordon (tm) acid production;
                            acrylic fibers/modacrylic fibers production;
                            acetal resins production; mineral wool
                            production; portland cement manufacturing;
                            wool fiberglass manufacturing;
                            polycarbonates production; polyether polyols
                            production; phosphate fertilizer production;
                            phosphoric acid manufacturing; publicly
                            owned treatment works; amino resins
                            production; phenolic resins production;
                            secondary aluminum production; and pulp and
                            paper (combustion).
------------------------------------------------------------------------

    The information presented in this preamble is organized as follows:

I. Background
II. Public Comment on the April 16, 1998 Proposal
III. Judicial Review
IV. Administrative Requirements
    A. Docket
    B. Paperwork Reduction Act
    C. Executive Order 12866
    D. Executive Order 12875
    E. Executive Order 13045
    F. Executive Order 13084
    G. Submission to Congress and the General Accounting Office
    H. National Technology Transfer and Advancement Act

I. Background

    On May 20, 1994, the Agency promulgated a rule (59 FR 26429) 
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.
    On April 16, 1999, the Agency issued a direct final rule (64 FR 
18824) and a parallel proposed rule (64 FR 18862) to amend the original 
Regulations Governing Equivalent Emission Limitations by Permit rule. 
This amendment would extend until December 15, 1999 the permit 
application deadline for major sources subject to 7-year maximum 
achievable control technology (MACT) standards which were not 
promulgated in a timely manner.
    Due to receipt of an adverse comment, the EPA has withdrawn the 
direct final rule and is instead issuing this final rule extending the 
deadline pursuant to the proposal. This action is needed to alleviate 
unnecessary paperwork for both major source owners or operators and 
permitting agencies.

II. Public Comment on the April 16, 1999 Proposal

    One timely adverse comment was submitted in response to the April 
16, 1999 proposed rule. The commenter opposed the delay in the permit 
application deadline from May 15, 1999 to December 15, 1999, stating 
that EPA erroneously concluded that no environmental benefit would be 
lost by delaying the permit application deadline until December 15, 
1999.
    In his first argument, the commenter stated that the existence of a 
consent decree requiring promulgation of 25 source categories by May 
15, 1999 is irrelevant. The commenter further stated that it is 
unreasonable to assume, based on EPA's current rate of promulgating the 
7-year standards, that EPA will be able to promulgate the remaining 7-
year standards in accordance with the consent decree, which requires 25 
source categories by May 15, 1999.
    The EPA does not agree that the deadlines established by the 
consent decree are ``irrelevant.'' Before agreeing to the schedule 
embodied in the proposed consent decree, The EPA assessed the current 
status of each 7-year source category standard in order to select 
realistic promulgation dates for each standard included in the consent 
decree. The EPA fully intends to meet the time frames established in 
the consent decree for promulgation of the standards.
    Moreover, EPA believes that the commenter's stated concerns about 
the potential inability of EPA to meet every promulgation deadline in 
the consent decree actually are consistent with the Agency's stated 
rationale for extending the section 112(j) permit application deadline. 
One of the principal objectives of the extension is to minimize the 
necessity for preparation of precautionary applications by sources that 
cannot be completely certain whether EPA will promulgate a MACT 
standard by the dates specified in the consent decree. EPA believes 
that preparation of such contingent applications would be totally 
futile and represent an unnecessary waste of resources.
    In his second argument, the commenter stated that even if EPA 
promulgates the standards for the 25 source categories by May 15, 1999, 
in accordance with the consent decree, that there is no assurance the 
standards

[[Page 26313]]

will be enforceable. The commenter also states that Federally 
Enforceable Equivalent Emissions by Permit will, in the absence of an 
enforceable MACT standard, provide environmental benefits in excess of 
the de minimis levels upon which the proposal was based.
    The EPA does not agree that the commenter's second argument is 
relevant to the proposed action. The obligation to submit a section 
112(j) permit application is based on the failure by EPA to promulgate 
a MACT standard governing the category or subcategory in question in a 
timely manner. Any alleged limitations on the enforceability of the 
promulgated standard are not germane. Moreover, EPA does not agree with 
the commenter's apparent premise that MACT emission limitations adopted 
on a case-by-case basis are more enforceable than a generally 
applicable MACT standard.
    Nothing in the adverse comments which were submitted change in any 
way the prior determination by EPA that extension of the section 112(j) 
permit application deadline is warranted. Therefore, EPA affirms the 
rationale for extension of the deadline set forth in the April 16, 1999 
Federal Register notices and is today promulgating the proposed 
extension in the form which was proposed on that date. In light of the 
notice of this change which EPA has provided previously, the final 
amendment will be effective immediately.

III. Judicial Review

    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 July 13 
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.

IV. Administrative Requirements

A. Docket

    The record supporting this final rule is included in Docket No. A-
93-32, the same docket as the original final rule. This 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 notice.

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 
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., SW; Washington, DC 20460, by e-mail 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 Act as 
amended in 1990 requires a source to submit a permit application if EPA 
fails to promulgate a MACT standard for a category or subcategory of 
major sources on schedule. The permit application is used by the 
permitting agency to issue permits containing MACT emission limitations 
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 Act 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. Analysis 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 
notice 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 (NTTAA) 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 NTTAA 
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

[[Page 26314]]

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 NTTAA do 
not apply.

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 OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires 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 OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.
    Today's rule revisions do not create a mandate on State, local or 
tribal governments. The rule revisions do not impose any enforceable 
duties on these entities. Rather, the rule revisions 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. The EPA previously submitted a report containing the 
withdrawn direct final rule, and will also 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 for 40 CFR Part 63

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

    Dated: May 10, 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. 99-12243 Filed 5-13-99; 8:45 am]
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