[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Rules and Regulations]
[Pages 35029-35032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16681]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-6369-6]
RIN 2060-AD06


Hazardous Air Pollutants: Regulations Governing Constructed or 
Reconstructed Major Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final rule.

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SUMMARY: On December 27, 1996, the Agency published a rule in the 
Federal Register implementing certain provisions in section 112(g) of 
the Clean Air Act (Act). After the effective date of that rule, all 
owners or operators of major sources of hazardous air pollutants (HAP) 
that are constructed or reconstructed are required to install maximum 
achievable control technology (MACT) (unless specifically exempted), 
provided they are located in a State with an approved title V permit 
program. When no applicable Federal emission limitation has been 
promulgated under section 112(d) of the Act, the Act requires the 
permitting authority (generally a State or local agency responsible for 
the program) to determine a MACT emission limitation on a case-by-case 
basis. If the permitting authority has not yet established procedures 
for requiring MACT on constructed or reconstructed major sources by the 
required date, the rule provides that the EPA Regional Administrator 
will determine MACT emission limitations on a case-by-case basis for a 
period of up to one year. This action amends the rule governing 
constructed or reconstructed major sources--by providing a longer time 
period (up to 30 months) during which the EPA Regional Administrator 
may determine MACT emission limitations on a case-by-case basis--if the 
permitting authority has not yet established procedures for requiring 
MACT on constructed or reconstructed major sources. This action is 
needed in order to ensure that major sources can obtain MACT 
determinations required for construction or reconstruction in those 
jurisdictions where permitting authorities require extra time to 
establish procedures to implement the section 112(g) rule.

EFFECTIVE DATE: This final rule amendment will be effective on July 30, 
1999 without further notice, unless EPA receives adverse comments on 
this rulemaking by July 12, 1999 or a request for a hearing concerning 
the accompanying proposed rule is received by EPA by July 7, 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-91-64 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 July 12, 1999.
    Docket. All information used in the development of this final 
action is contained in the preamble below. However, Docket No. A-91-64, 
containing the supporting information for the original Regulations 
Governing Constructed or Reconstructed Major Sources 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.
    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: Ms. Kathy Kaufman, Information 
Transfer and Program Integration Division (MD-12), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone (919)541-0102.

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 
July 30, 1999 without further notice, unless we receive adverse comment 
on this rulemaking by July 12, 1999 or a request for a hearing 
concerning the accompanying proposed rule is received by EPA by July 7, 
1999. If EPA receives timely adverse comment or a timely hearing 
request, we will publish a withdrawal in the Federal Register

[[Page 35030]]

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-91-64. 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 the relative responsibilities of permitting authorities 
and EPA Regional Offices under the current Section 112(g) rule?
II. Why does EPA want to amend these relative responsibilities in 
some cases?
III. What are the requirements to review this action in Court?
IV. Administrative Requirements
    A. Docket
    B. Paper 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

I. What are the Relative Responsibilities of Permitting Authorities 
and EPA Regional Offices Under the Current Section 112(g) Rule?

    Section 112(g) is effective in a State or local jurisdiction on the 
date specified by the permitting authority, at the time it adopts a 
program to implement section 112(g), or June 29, 1998, whichever is 
earlier. Thus, permitting authorities had until June 29, 1998 to 
initiate implementing programs. To place its implementing program into 
effect, the chief executive officer of the State or local jurisdiction 
must have certified to the EPA that its program meets all the 
requirements set forth in this rule, and published a notice stating 
that the program has been adopted and specifying its effective date. 
The program need not have been officially reviewed or approved by the 
EPA.
    After June 29, 1998, if a State or local permitting authority had 
not yet initiated a program to implement the section 112(g) rule, there 
have been two options for obtaining a MACT approval: either (1) the 
permitting authority would make section 112(g) determinations according 
to procedures specified in Sec. 63.43 of this rule, and issue a Notice 
of MACT Approval that would become final and legally enforceable after 
the EPA had concurred in writing with the permitting authority's 
determination; or (2) the EPA Regional Administrator would issue 
section 112(g) determinations for up to 1 year--i.e. until June 29, 
1999.

II. Why Does EPA Want to Amend These Relative Responsibilities in 
Some Cases?

    If the permitting authority had not yet initiated an implementing 
program by June 29, 1999, the section 112(g) rule did not provide an 
explicit mechanism by which construction permits could be issued. It 
was assumed that all permitting authorities would have established 
section 112(g) programs by that time. However, it has now become clear 
that a few permitting authorities will not have initiated an 
implementing program by June 29, 1999. In addition, some of these 
jurisdictions believe that they may not yet have the authority even to 
issue a Notice of MACT Approval for EPA concurrence. Therefore, in some 
jurisdictions, after June 29, 1999, it is possible that there could be 
no mechanism by which a major source could receive the MACT 
determination required by the Act in order to construct.
    This action therefore provides a longer time period (up to 30 
months) during which the EPA Regional Administrator may determine MACT 
emission limitations on a case-by-case basis, if the permitting 
authority has not yet established procedures for requiring MACT on 
constructed or reconstructed major sources. This action is needed in 
order to ensure that major sources can obtain MACT determinations 
required for construction or reconstruction in those jurisdictions 
where permitting authorities require extra time to establish procedures 
to implement the section 112(g) rule. We believe that this action 
provides enough extra time for permitting authorities to establish 
procedures for requiring MACT on constructed or reconstructed major 
sources, as required by section 112(g) of the Act.

III. 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 August 
30, 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 docket for this regulatory action is A-91-64, 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. Paper Reduction Act

    The information collection requirements of the previously 
promulgated rule for Regulations Governing Equivalent Emission 
Limitations by Permit were submitted to and approved by the Office of 
Management and Budget. A copy of this Information Collection Request 
(ICR) document (ICR No. 1658.01) may be obtained from Sandy Farmer, 
OPPE Regulatory Information Division (2136), U.S. Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460, or by 
calling (202) 260-2740. Today's change to the final rule does not 
affect the information collection burden estimates made previously. 
Therefore, the ICR has not been revised.

[[Page 35031]]

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 not expected to affect the 
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.

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. 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 additional 
enforceable duties on these entities. 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

[[Page 35032]]

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: June 24, 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. Section 63.42(b) is revised to read as follows:


Sec. 63.42  Program requirements governing construction or 
reconstruction of major sources.

* * * * *
    (b) Failure to adopt program. In the event that the permitting 
authority fails to adopt a program to implement section 112(g) with 
respect to construction or reconstruction of major sources of HAP with 
an effective date on or before June 29, 1998, and the permitting 
authority concludes that it is able to make case-by-case MACT 
determinations which conform to the provisions of Sec. 63.43 in the 
absence of such a program, the permitting authority may elect to make 
such determinations. However, in those instances where the permitting 
authority elects to make case-by-case MACT determinations in the 
absence of a program to implement section 112(g) with respect to 
construction or reconstruction of major sources of HAP, no such case-
by-case MACT determination shall take effect until after it has been 
submitted by the permitting authority in writing to the appropriate EPA 
Regional Adminstrator and the EPA Regional Administrator has concurred 
in writing that the case-by-case MACT determination by the permitting 
authority is in conformity with all requirements established by 
Secs. 63.40 through 63.44. In the event that the permitting authority 
fails to adopt a program to implement section 112(g) with respect to 
construction or reconstruction of major sources of HAP with an 
effective date on or before June 29, 1998, and the permitting authority 
concludes that it is unable to make case-by-case MACT determinations in 
the absence of such a program, the permitting authority may request 
that the EPA Regional Administrator implement a transitional program to 
implement section 112(g) with respect to construction or reconstruction 
of major sources of HAP in the affected State of local jurisdiction 
while the permitting authority completes development and adoption of a 
section 112(g) program. Any such transitional section 112(g) program 
implemented by the EPA Regional Administrator shall conform to all 
requirements established by Secs. 63.40 through 63.44, and shall remain 
in effect for no more than 30 months. Continued failure by the 
permitting authority to adopt a program to implement section 112(g) 
with respect to construction or reconstruction of major sources of HAP 
shall be construed as a failure by the permitting authority to 
adequately administer and enforce its title V permitting program and 
shall constitute cause by EPA to apply the sanctions and remedies set 
forth in the Clean Air Act section 502(I).
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[FR Doc. 99-16681 Filed 6-29-99; 8:45 am]
BILLING CODE 6560-50-P