[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Proposed Rules]
[Pages 68066-68071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31542]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[SIPTRAX No. PA138; FRL-6500-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Allegheny County Portion of the Commonwealth of Pennsylvania's 
Operating Permits Program, and Federally Enforceable State Operating 
Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes three actions. First, EPA proposes approval of a 
partial Operating Permit Program under the Clean Air Act (the Act), for 
the purpose of allowing the Allegheny County (Pennsylvania) Health 
Department (ACHD) to issue operating permits to all major stationary 
sources in its jurisdiction. Second, EPA proposes approval of a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania for ACHD. This revision establishes a Federally 
Enforceable State Operating Permit (FESOP) Program and gives ACHD the 
authority to create federally enforceable installation and operating 
permit conditions for regulated pollutants and limits on potential to 
emit (PTE) for hazardous air pollutants (HAPs) for the purpose of 
allowing sources to avoid major source applicable requirements. Third, 
EPA proposes approval of the mechanism for ACHD to receive delegation 
of Maximum Achievable Control Technology (MACT) Standards for major 
sources subject to operating permit program requirements.

DATES: Written comments must be received on or before January 5, 2000.

ADDRESSES: Written comments may be mailed to Kathleen Henry, Chief, 
Permitting and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available for public inspection during normal business 
hours at the Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103 
and Allegheny County Health Department Bureau of Environmental Quality, 
Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 
15201.

FOR FURTHER INFORMATION CONTACT: MaryBeth Bray, (215) 814-2632.

SUPPLEMENTARY INFORMATION: On November 5, 1998 the Commonwealth of 
Pennsylvania submitted a revision to its SIP on behalf of the ACHD to 
establish two permitting programs; the FESOP program pursuant to part 
52 of Title 40 of the Code of Federal Regulations (CFR), and the Title 
V Operating Permit Program pursuant to 40 CFR part 70. The submittal 
also included a request for delegation of MACT standards for HAPs from 
section 112 of the Act. EPA is proposing approval of Pennsylvania's 
request for two permitting programs for the ACHD as well as the 
mechanism for the ACHD to receive delegation of section 112 standards.

Submittal Description

    The ACHD November 5, 1999 submittal contained numerous revisions to 
the SIP, including a recodification of the regulations in general, 
revision to major and minor New Source Review and Prevention of 
Significant Deterioration programs, as well as requests for approval or 
delegation of programs under 40 CFR parts 52, 63, and 70. Today's 
rulemaking action only involves approval of the FESOP and part 70 
permitting programs, and approval of the mechanism for delegation of 
programs under section 112 of the Act.
    EPA is proposing several significant changes and additions to the 
ACHD's existing SIP-approved installation (preconstruction) and 
operating permit programs. One purpose of these proposed SIP revisions 
is to make all of the ACHD's SIP-approved permit programs consistent 
with one another and with the Clean Air Act. Another important purpose 
of the proposed SIP revision is to allow the ACHD, upon approval, to 
limit sources' PTE for the purpose of exempting certain sources from 
Title V and other major source requirements of the Act.
    ACHD submitted the permitting programs through the Commonwealth of 
Pennsylvania, requesting the authority to issue operating permits 
(Title V and FESOP) to sources of air pollutants within its 
jurisdiction. The ACHD adopted the necessary regulations on October 5, 
1995 and submitted a program approval request to the Commonwealth of 
Pennsylvania. On November 5, 1998, the Commonwealth of Pennsylvania 
submitted the program on behalf of ACHD to EPA for review. In addition, 
a three-way implementation agreement (IA) between the ACHD, 
Pennsylvania Department of Environmental Protection (PADEP), and the 
EPA was submitted on August 9, 1999 to clarify certain procedural 
issues

[[Page 68067]]

not included in the November 5, 1998 submittal. EPA found the submittal 
to be administratively complete pursuant to 40 CFR 70.4(e)(1) on 
February 2, 1999. EPA has concluded that the part 70 program and the 
FESOP program meet all the necessary requirements of part 70 and part 
52, respectively, and is proposing to grant full approval to both of 
these programs. EPA has also concluded that the ACHD's program is 
adequate for approving the mechanism needed to delegate section 112 
programs. For more detailed information on the analysis of the ACHD's 
submission, please refer to the technical support document included in 
the docket at the address noted above.

Part 70 Background

    Major sources of air pollutants are required under Title V of the 
1990 Clean Air Act Amendments (sections 501-507 of the Act) to obtain 
operating permits. EPA has promulgated rules which define the minimum 
elements of an approvable state or local operating permits program and 
the corresponding standards and procedures by which the EPA will 
approve, oversee, and withdraw approval of operating permits programs. 
See 57 FR 32250 (July 21, 1992). These rules are codified at 40 CFR 
part 70. Title V requires state or local agencies to develop, and 
submit to EPA, programs for issuing these operating permits to all 
major stationary sources and to certain other sources. The EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval.
    EPA approved the Commonwealth of Pennsylvania's program, which 
applied statewide, on August 29, 1996. As of that date, all major 
stationary sources in Pennsylvania subject to Title V permitting 
requirements were required to meet a one-year schedule for submitting a 
Title V permit application. Today's proposed rulemaking action 
addresses a request by Pennsylvania on behalf of the ACHD for approval 
of a partial program under 40 CFR 70.4. This proposed rulemaking action 
would allow the ACHD to carry out a Title V permitting program within 
its jurisdiction. Approval of this request will not change the 
obligation for sources located anywhere in Pennsylvania to meet the 
initial Title V application deadlines.

Discussion of Part 70 Submittal

    The ACHD's Title V permitting regulations include Article XXI 
Chapters 2102, 2103, 2104, and 2109 as well as definitions in section 
2101.20. EPA has determined that these regulations fully meet the 
requirements of 40 CFR 70.2 and 70.3 with respect to applicability; 
Secs. 70.4, 70.5, and 70.6 with respect to permit content; Sec. 70.5 
with respect to complete application forms and criteria which define 
insignificant activities; Sec. 70.7 with respect to public 
participation and minor permit modifications; and Sec. 70.11 with 
respect to requirements for enforcement authority. The technical 
support document contains a detailed analysis of the ACHD's program and 
describes the manner in which it meets all the operating permit program 
requirements of 40 CFR part 70. However, several issues were identified 
by EPA during its review of the ACHD's Title V operating permit program 
which warrant a more detailed discussion and analysis. These issues are 
outlined below. A discussion on fee adequacy is also included in this 
section.

1. Legal Opinion

    The legal opinion did not address the time frame required for 
petitions for judicial review and the judicial review requirements for 
failure to issue minor permits. The discussion below shows how the 
ACHD's program meets these requirements.
    a. Time frame for judicial review: Although the Title V regulations 
do not specify the time frame for filing a petition for judicial 
review, the ACHD is generally subject to ACHD Article XI, Hearings and 
Appeals. In order to obtain judicial review, section 1104(a) requires 
that an Appellant must first file a notice of Appeal to the Director of 
the ACHD and go through an administrative hearing process. The Notice 
of Appeal must be filed no later then 10 days after written notice or 
issuance of the action by which the Appellant is aggrieved. This meets 
the 90 day (or shorter time period) requirement for initiating judicial 
review.
    b. Judicial review for failure to act on minor permits: The ACHD's 
program does not address judicial review for failure to issue a minor 
permit modification as a separate appealable action. Section 
2103.14(c)(8) clearly requires final action within 60 days for any 
proposed minor permit modification. Section 2103.11(f) states that the 
Department's failure to take final action (on any permit application 
including modifications) is appealable and the Court of Common Pleas 
may require action on the application without further delay. Therefore, 
the authority exists to compel action on minor permit modifications.

2. Transition Plan

    The transition plan included in section 2103.01 of the ACHD's 
regulations specified deadlines for permit application submittal and 
permit issuance. These dates have passed. Nonetheless, EPA previously 
approved Pennsylvania's Title V program on August 29, 1996 (see 61 FR 
39598) which established deadlines for permit applications that applied 
state-wide. The ACHD's request to have a partial program approval does 
not affect, or change in any way, the dates established in the 
Commonwealth's approved program.

3. Insignificant Emission Units (IEUs)

    Under Part 70, EPA may approve as part of a state program a list of 
insignificant activities and emission levels which need not be included 
in permit applications. The ACHD has not requested EPA approval of such 
a list of insignificant activities or emission levels. However, the 
ACHD's program provides for certain exemptions from the requirement to 
obtain a permit that should not be confused with IEUs. These exemptions 
include activities that have been historically exempt from any 
permitting requirements. For any activity that the ACHD treats as an 
IEU, a case-by-case determination must be made. Section 2103.10(b)(12) 
incorporates by reference (IBRs) 25 PA Code section 127.14(a)(8) and 
(9), and (d) as well as any future changes to these sections. 
Paragraphs 127.14(a)(8) and (9) allow PADEP to determine if an emission 
unit is of minor significance on a case-by-case basis. Paragraph 
127.14(d) states that, in the future, PADEP may establish a list of 
sources and physical changes that are of minor significance. Further, 
the paragraph explains that public notice and a 30-day comment period 
would be provided prior to adoption of the list. If EPA approves the 
list as a revision to PADEP's part 70 program, then these units would 
be considered insignificant emission units in the Commonwealth and the 
County.

4. EPA 45-Day Review Period

    EPA is afforded a 45-day period to review proposed permits and 
permit modifications for conformity with the Act and part 70 
requirements. Section 2103.21(c)(3) does not ensure that EPA will have 
the opportunity for a 45 day period of pre-issuance review of permits 
that are revised as a result of the public and affected state's 
comments. Pursuant to sections 2103.21(c) and (e), the comment periods 
for EPA and the public and affected state review

[[Page 68068]]

comment periods begin simultaneously. Because the public and affected 
state comment period is only 30 days, it is theoretically possible for 
the ACHD to modify and issue the proposed permit or permit modification 
on the basis of comments received. Thus EPA would not have an 
opportunity to review the permit (which was revised on the basis of 
comments received) for 45 days prior to its issuance.
    Section 2103.21(e) provides that permits will be resubmitted to EPA 
if any material substantive changes have been made as a result of 
comments received by the ACHD, but does not guarantee EPA a 45-day 
review. Provisions defining material substantive changes are included 
in the Implementation Agreement (IA) to clarify the criteria used to 
determine which final permits must be provided to EPA for post-issuance 
review. Further, the IA provides that EPA shall have 45-days from the 
receipt of the notice of material substantive changes to object to the 
permit. If a permit has been issued prior to the receipt of an EPA 
objection, the IA states that the ACHD will revoke the permit within 20 
days.

5. Off Permit Changes

    The ACHD's use of the term ``Off Permit Change'' differs from EPA's 
intended use. The ACHD's program limits these changes to de minimis 
levels in section 2103.14. De minimis changes are covered under 
operational flexibility changes and are not considered off-permit 
changes. As written, the ACHD's program does not allow for off permit 
changes. Furthermore, incorporation of provisions to make off permit 
changes is optional. (40 CFR 70.4(b)(14))

6. Absence of Part 70 Emergency Defense Provisions

    The ACHD has incorporated most of the record keeping and reporting 
requirements required under part 70 for an emergency to be considered 
an affirmative defense. However consistent with Pennsylvania's program, 
the ACHD program does not allow for an emergency to be considered an 
affirmative defense. EPA clarified, in its August 31, 1995, 
supplemental part 70 document, that ``the part 70 rule does not require 
the States to adopt the emergency defense. A State may include such a 
defense in its part 70 program to the extent it finds appropriate, 
although it may not adopt an emergency defense less stringent than that 
set forth at 40 CFR 70.6(g).'' (60 FR 45530--45559). Thus, since the 
ACHD's adoption of emergency defense provisions under part 70 is 
discretionary, it is not inconsistent with Sec. 70.6(g).

7. Definition of Affected Unit

    The definition of affected unit may seem less inclusive than the 
definition in 40 CFR 72.2 because ACHD's definition is limited to 
fossil fuel-fired sources. At this time, only sources which run on 
fossil fuels are included under the Title IV acid rain requirements. 
Therefore, the definition is essentially equivalent.

8. Title V Permit Fee Demonstration

    Section 502(b)(3) of the Act requires that each permitting 
authority collect fees sufficient to cover all reasonable direct and 
indirect costs required to develop and administer its Title V operating 
permits program. Each Title V program submittal must contain either a 
detailed demonstration of fee adequacy or a demonstration that 
aggregate fees collected from Title V sources meet or exceed $25 per 
ton of emission per year (adjusted from 1989 by the Consumer Price 
Index (CPI)). The $25 per ton amount is presumed, for program approval, 
to be sufficient to cover all reasonable program costs and is thus 
referred to as the ``presumptive minimum'' (Sec. 70.9(b)(2)(i)).
    PADEP's approved fee schedule, under section 127.705 of the their 
regulations, requires all Title V facilities in the Commonwealth to pay 
an annual Title V emission fee of $37 per ton for each ton of a 
regulated pollutant actually emitted from the facility. This amount 
exceeds the $25 per ton presumptive minimum. Section 127.705 also 
includes a provision that ties the amount of the fee to the CPI as 
required by 40 CFR 70.9(b)(2)(iv). The $37 per ton amount was derived 
by dividing the total annual estimated Title V operating permit program 
cost by the total annual number of billable tons of emissions. PADEP 
used actual operating hours and production rates, and considered in-
place control equipment and the types of materials processed, stored, 
or combusted in calculating the total actual billable tons figure. EPA 
determined, in its approval of PADEP's Title V program, that these fees 
will result in collection and retention of revenues sufficient to cover 
the Title V operating permit program costs statewide. ACHD's fee 
requirements as outlined in section 2103.41 are consistent with PADEP's 
regulations and are therefore consistent with EPA's prior approval of 
the statewide fee demonstration. Furthermore, 25 PA Code 127.706 states 
that PADEP may provide financial assistance to the ACHD on an annual 
basis as necessary to assist implementation of the Title V program.

FESOP Program Background

    Major stationary sources in Allegheny County wishing to avoid the 
requirement to apply for and receive a Title V permit must obtain a 
FESOP. Major sources are those sources whose emissions of air 
pollutants exceed threshold emissions levels specified in various 
portions of the Act. Thus, a source that has maintained actual 
emissions at levels below the major source threshold could still be 
subject to major source requirements if it has the potential to emit 
major amounts of air pollutants. In situations where unrestricted 
operation of a source would result in a PTE above major source levels, 
a source may legally avoid program requirements by accepting federally 
enforceable permit conditions which limit emissions to levels below the 
applicable major source thresholds. As a result, the source becomes 
what is commonly referred to as a ``synthetic minor'' source. Federally 
enforceable permit conditions, if violated, are subject to enforcement 
by EPA and by citizens in addition to the state or local agency.
    On June 28, 1989, EPA published guidance on the basic requirements 
for EPA approval of (non-Title V) FESOP programs. See 54 FR 27274. 
Permits issued pursuant to such programs may be used to establish 
federally enforceable limits on a source's potential emissions to 
create ``synthetic minor'' sources. In short, the criteria require 
state programs to:
    (a) be approved into the SIP,
    (b) impose legal obligations to conform to the permit limitations,
    (c) provide for limits that are enforceable as a practical matter,
    (d) issue permits through a process that provides for review and an 
opportunity for comment by the public and by EPA, and
    (e) ensure that there will be no relaxation of otherwise applicable 
federal requirements.
    The Federal Court of Appeals for the District of Columbia Circuit 
vacated the definition of PTE as it pertains to both the new source 
review rules and the federal operating permit rules, 40 CFR parts 51, 
52, and 70. See, Chemical Manufacturers Association v. EPA, No. 89-1514 
(Sept. 15, 1995) and Clean Air Implementation Project, et al v. 
Browner, Civ. No. 92-1303 (June 28, 1996). Therefore, EPA also 
recognizes PTE limits established by state and local permitting 
authorities as being enforceable if the above criteria (b) through (e) 
are met. However, future

[[Page 68069]]

rulemaking action may require that PTE limits be federally enforceable.
    As part of this action, EPA is also proposing to approve the ACHD's 
FESOP program pursuant to section 112(l) of the Act for the purpose of 
allowing the ACHD to issue operating permits which limit source's PTE 
hazardous air pollutants (HAPs). Section 112(l) of the Act provides the 
underlying authority for controlling emissions of HAPs. Therefore, in 
order to extend federal enforceability of the ACHD's FESOP to include 
HAPs, EPA today proposes to approve the ACHD's permit program pursuant 
to section 112(l) of the Act.

Discussion of FESOP Program Submittal

    Subparts B and C--1 (sections 2102 and 2103.1x) of the submittal 
include the requirements for the FESOP program. These subparts also 
contain the ACHD's installation (or preconstruction) and operating 
permit program. The proposed revision generally strengthens the SIP by 
establishing a comprehensive installation and operating permit program 
and by making this program consistent with the Title V operating permit 
regulations codified in subpart C--2 (section 2103.2x).
    On June 28, 1989, EPA amended the definition of ``federally 
enforceable'' to clarify that terms and conditions contained in state-
issued operating permits are federally enforceable for purposes of 
limiting a source's PTE, provided that the state's operating permits 
program is approved into the SIP under section 110 of the Act as 
meeting certain conditions, and provided that the permit conforms to 
the requirements of the approved program. The conditions for EPA 
approval discussed in the June 28, 1989 notice establish five criteria 
for approving a state operating permit program. See 54 FR 27274-27286. 
The following section describes each of the criteria for approval of a 
state's program for the issuance of federally enforceable operating 
permits for purposes of limiting a source's PTE and how the ACHD's SIP 
submittal satisfies those criteria.

1. The State's Operating Permit Program (i.e., the Regulations or Other 
Administrative Framework Describing how Such Permits are Issued) Must 
be Submitted to and Approved by EPA as a SIP Revision.

    The Commonwealth of Pennsylvania submitted the ACHD's revisions of 
Article XXI to EPA for approval as a revision of its SIP on November 5, 
1998. EPA is proposing to approve the ACHD's regulation (subparts B and 
C.1 of Article XXI) as a program that meets the criteria for 
establishing PTE limits. Thus, EPA will recognize a source's limits on 
PTE for avoiding major source applicability, so long as the individual 
installation or operating permit issued under the approved program 
meets those same requirements.

2. The SIP Revision Must Impose a Legal Obligation That Operating 
Permit Holders Adhere to the Terms and Limitations of Such Permits (or 
Subsequent Revisions of the Permit Made in Accordance With the Approved 
Operating Permit Program) and Provide That Permits Which do not Conform 
to the Operating Permit Program Requirements and the Requirements of 
EPA's Underlying Regulations may be Deemed not ``Federally 
Enforceable'' by EPA.

    Article XXI, section 2103.12.f.1 requires that all permits issued 
(major and minor) shall include provisions that the permittee must 
comply with at all times. Any permit noncompliance constitutes a 
violation of Article XXI, the Pennsylvania Air Pollution Control Act, 
and the Act, and is grounds for any and all enforcement actions. 
Additionally, section 2103.10.c.3 makes it a violation for any person 
to fail to comply with any term or condition of any permit.

3. The State Operating Permit Program Must Require That all Emission 
Limitations, Controls, and Other Requirements Imposed by Such Permits 
Will be at Least as Stringent as any Applicable Limitations and 
Requirements Contained in the SIP, or Enforceable Under the SIP, and 
that the Program may not Issue Permits that Waive, or Make less 
Stringent, any Limitations or Requirements Contained in or Issued 
Pursuant to the SIP, or that are Otherwise ``Federally Enforceable'' 
(e.g. Standards Established Under Sections 111 and 112 of the Clean Air 
Act).

    Article XXI, section 2103.12.a.C states that the conditions of the 
permit must provide for and require compliance with all applicable 
requirements. Section 2103.12.g states that all permits shall include 
standard emission limit requirements, and specify the origin and 
authority for each limitation. Additionally, if an alternative emission 
limit is provided, section 2103.12.g(2) requires that it must be 
demonstrated to be equivalent to or more stringent than the applicable 
limit, and it must be quantifiable, enforceable, and based on 
replicable procedures.

4. The Limitations, Controls, and Requirements of the State's Operating 
Permits Must be Permanent, Quantifiable, and Otherwise Enforceable as a 
Practical Matter.

    Article XXI, section 2103.12.g states that along with required 
emission limits and standards, the permit must include those 
operational requirements and limitations that assure compliance with 
all applicable requirements at the time of permit issuance. For each 
emission rate and standard in a permit, associated conditions will be 
included which establish a method to determine compliance, including 
appropriate testing, monitoring, recordkeeping, and reporting. Section 
2103.12.h.1 establishes broad authority to require the appropriate 
testing, monitoring, recordkeeping, and reporting. EPA understands that 
ACHD drafts all permits to be consistent with underlying local, state, 
and federal rules and incorporates monthly or more frequent short term 
emission limits.

5. The Permits are Issued Subject to Public Participation. This Means 
that the state Agrees, as Part of its Program, to Provide EPA and the 
Public with Timely Notice of the Proposal and Issuance of Such Permits, 
and to Provide EPA, on a Timely Basis, With a Copy of Each Proposed (or 
Draft) and Final Permit Intended to be Federally Enforceable. This 
Process must also Provide for an Opportunity for Public Comment on the 
Permit Applications Prior to the Issuance of the Final Permit.

    Article XXI, sections 2102.05.c and 2103.11.e provide for public 
notice and participation in the issuance, modifications, and renewals 
of permits. Section 2102.04.h specifically lists the public notice and 
participation procedures for synthetic minor permits. Section 2103.11.h 
incorporates by reference the public notice requirements from 25 PA 
Code 127.424, 424 and 43. Article XXI, subchapters B and C provide 
thorough procedures for public participation which meet the public 
participation requirements.
    Definitions: EPA is also, in this rulemaking action, incorporating 
by reference definitions that may be relied upon in issuing 
installation and operating permits. Certain definitions such as 
``actual emissions'' and ``maximum achievable control technology 
(MACT)'' are not consistent with and are less stringent then 40 CFR 
51.165. In such cases where the definition is not essential to this 
rulemaking or this FESOP SIP revision, it will be addressed in a future 
rulemaking action.

[[Page 68070]]

    The following definitions are consistent with the requirements for 
a FESOP program and part 70 program approval. These definitions are 
proposed to be incorporated into the SIP for purposes of the FESOP 
program approval and included in the part 70 program: emissions 
allowable under the permit, major modification, major source, maximum 
achievable control technology, and PTE. Please refer to the technical 
support document for a more detailed analysis.
    Limiting HAP Emissions Through FESOP: As part of this action EPA 
proposes to approve, pursuant to section 112(l) of the Clean Air Act, 
the ACHD's request for authority to regulate HAPs through the issuance 
of a FESOP. This would grant the ACHD authority to issue permits which 
limit PTE of HAPs. EPA has determined that the five approval criteria 
for approving FESOP programs into the SIP, as specified in the June 28, 
1989 Federal Register notice referenced above, are also appropriate for 
evaluating and approving the programs under section 112(l). The June 
28, 1989 document does not address HAPs because it was written prior to 
the 1990 amendments to section 112 of the Act.
    In addition to meeting the criteria discussed above, the ACHD's 
permit program for limiting PTE of HAPs must meet the statutory 
criteria for approval under section 112(l)(5) of the Act. This section 
allows EPA to approve a program only if it:
    (a) contains adequate authority to assure compliance with any 
section 112 standard or requirement;
    (b) provides for adequate resources;
    (c) provides for an expeditious schedule for assuring compliance 
with section 112 requirements; and
    (d) is otherwise likely to satisfy the objectives of the Act.
    The EPA plans to codify the approval criteria for programs limiting 
the PTE of HAPs through amendments to subpart E of 40 CFR part 63, the 
regulations promulgated to implement section 112(l) of the Act. See 58 
FR 62262 (November 26, 1993). Given the severe timing problems posed by 
impending deadlines set forth in MACT emission standards under section 
112 and for issuing Title V permits, the EPA believes it is reasonable 
to read section 112(l) to allow for approval of programs to limit PTE 
prior to promulgation of a rule specifically addressing this issue. 
EPA's conclusions are discussed in the technical support document and 
will not be repeated here. EPA is proposing approval of the ACHD's 
FESOP now so that they may begin to issue federally enforceable 
installation and operating permits limiting PTE as soon as possible.
Provisions Implementing Other Titles of the Act for Part 70 Sources
    1. Section 112: The guidance memorandum entitled ``Title V Program 
Approval Criteria for section 112 Activities,'' signed by John Seitz, 
Director of the Office of Air Quality Planning and Standards of April 
13, 1993 discusses the legal authority needed to implement and enforce 
section 112 requirements through the Title V permit as well as resource 
adequacy. The ACHD's program contains this legal authority in its 
enabling legislation (the Pennsylvania Air Pollution Control Act, Local 
Health Administration Law, Second Class County Code, The County Local 
Agency Law, and Article XI, Rules and Regulations of the ACHD) and in 
regulatory provisions defining applicable requirements. The ACHD's 
submittal also contained the Allegheny County Solicitor's Opinion 
stating the ACHD has the legal authority to incorporate all applicable 
requirements into its operating permits. The submittal also contained a 
demonstration of adequate resources. Therefore the ACHD has sufficient 
legal authority and resources to issue permits that assure compliance 
with all section 112 requirements and to carry out all section 112 
activities, including those required under section 112(g).
    2. Program for Straight Delegation of Section 112 Standards: The 
requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of the provisions of 40 CFR part 63 standards promulgated by EPA as 
they apply to part 70 sources. Section 112(l)(5) requires that the 
permitting authority's program contain adequate authorities, adequate 
resources for implementation, and an expeditious compliance schedule, 
which are also requirements under part 70. Therefore, EPA is also 
proposing to grant approval, under section 112(l)(5) and 40 CFR 63.91, 
of the state's program for receiving delegation of section 112 
standards that are unchanged from the federal standards as promulgated.
    3. Program for Implementing Title IV of the Act: The ACHD's program 
IBRs 40 CFR parts 72 through 78, which contain the Federal acid rain 
requirements. The program contains adequate authority to issue permits 
which reflect the requirements of Title IV of the Act.

Proposed Action

    EPA is proposing full approval of a Title V Operating Permits 
Program for Allegheny County, as submitted by Pennsylvania on November 
5, 1998. The ACHD has demonstrated that the program will be adequate to 
meet the minimum elements of a partial operating permits program as 
specified in 40 CFR part 70. The scope of the ACHD's program that EPA 
proposes to approve in this notice would apply to all Title V 
facilities (as defined in the approved program) within the County. EPA 
is also proposing approval of the ACHD's FESOP program submitted on 
November 5, 1998 as a SIP revisions under section 110 of the Act. EPA 
has determined that the program fully meets the requirements of EPA's 
June 28, 1989 criteria for FESOP programs. This approval recognizes 
ACHD's FESOP program as capable of establishing federally enforceable 
limitations on criteria pollutants and hazardous air pollutants. 
Further, such actions will confer federal enforceability status to 
permits issued pursuant to ACHD's part C Operating Permit Program prior 
to EPA's final action so long as the requirements for federal 
enforceability have been met. Finally, EPA is also proposing to grant 
approval under section 112(l)(5) and 40 CFR 63.91 of the ACHD's 
mechanism for receiving delegation of section 112 standards that are 
unchanged from the Federal standards as promulgated. EPA also proposes 
to approve, pursuant to section 112(l) of the Clean Air Act, the ACHD's 
request for authority to regulate HAPs through the issuance of 
federally enforceable state installation and operating permits.
    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this document.

Administrative Requirements

A. Executive Orders 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental

[[Page 68071]]

Partnership). Executive Order 13132 requires EPA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.'' Thus, the requirements of section 6 of the Executive Order 
do not apply to this rule.

C. Executive Order 13045

    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 the EPA determines (1) is 
``economically significant,'' as defined under Executive Order 12866, 
and (2) 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 effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to E.O. 13045 because it does not 
involve decisions intended to mitigate environmental health and safety 
risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must 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 and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. This action does not involve or impose any requirements 
that affect Indian Tribes. Accordingly, the requirements of section 
3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule will not have a significant impact on 
a substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action for the ACHD's 
two permitting programs does not include a Federal mandate that may 
result in estimated annual costs of $100 million or more to either 
State, local, or tribal governments in the aggregate, or to the private 
sector. This Federal action approves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

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

    Dated: November 29, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 99-31542 Filed 12-3-99; 8:45 am]
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