[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Rules and Regulations]
[Pages 55810-55846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22968]



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Part IV





Environmental Protection Agency





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40 CFR Parts 9 and 63



Hazardous Air Pollutants: Amendments to the Approval of State Programs 
and Delegation of Federal Authorities; Final Rule

  Federal Register / Vol. 65, No. 179 / Thursday, September 14, 2000 / 
Rules and Regulations  

[[Page 55810]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 63

[FRL-6864-6]
RIN 2060-AG60


Hazardous Air Pollutants: Amendments to the Approval of State 
Programs and Delegation of Federal Authorities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule modifies the Agency's procedures for delegating 
hazardous air pollutant (HAP) standards and other requirements to 
State, local, and territorial agencies, and Indian tribes (S/L/T). 
Under section 112(l) of the Clean Air Act (Act), EPA is authorized to 
approve alternative S/L/T HAP standards or programs when such 
requirements are demonstrated to be no less stringent than EPA's rules. 
Today's changes to section 112(l) revise our procedures and criteria 
for approving alternative S/L/T measures.
    Today's action amends our existing regulations that implement 
section 112(l) of the Act. The changes will help S/L/T's by offering a 
range of options for demonstrating equivalence with the Federal 
requirements and expediting the approval process.
    These changes are in response to requests we received from State 
and local air pollution control agencies to reconsider our existing 
regulations in light of implementation difficulties that they 
anticipate or have experienced. We believe this effort is consistent 
with the President's regulatory ``reinvention'' initiative. It will 
result in less burden to S/L/Ts, regulated industries (by avoiding 
duplicative requirements), and the Federal Government, without 
sacrificing the emissions reduction and clean air enforcement goals.
    This rulemaking also addresses requirements that apply to S/L/Ts, 
should they choose to obtain delegation or program approval under 
section 112(l). (Note that obtaining delegation under section 112(l) is 
voluntary). This rulemaking does not include any requirements that 
apply directly to stationary sources of HAP or small businesses that 
emit HAP.

EFFECTIVE DATE: This final rule will be effective on October 16, 2000.

ADDRESSES: All information used in the development of the proposed and 
final rules is contained in Docket No. A-97-29. The docket 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, U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington, DC 20460; telephone (202) 260-7548, fax (202) 260-4400. 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), contact 
Mr. Hersch Rorex at (919) 541-5637 or [email protected], or Mr. Phil 
Dickerson at (919) 541-4814 or [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Thomas A. Driscoll, Information 
Transfer and Program Integration Division (MD-12), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone (919) 541-5135, or electronic mail at [email protected] or 
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, or 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:   

Regulated Entities

    Entities potentially affected by this rule are S/L/Ts that request 
approval of rules or programs to be implemented in place of Act section 
112 rules, emissions standards, or requirements, or voluntarily request 
delegation of unchanged section 112 rules. These are the types of 
entities that EPA is now aware could potentially be regulated by this 
rule. Other types of entities not included in the list could also be 
regulated. The procedures and criteria for requesting and receiving 
approval of these S/L/T rules or programs or voluntarily requesting 
delegation of section 112 rules are in Sec. 63.90 through Sec. 63.97, 
excluding Sec. 63.96, of this subpart.

Outline

    The information presented in this preamble is organized as follows:

I. Purpose and Background
II. Summary of Major Issues
    A. Enforceable Mechanisms
    B. S/L/T Risk-based Programs
    C. Other Section 112 Programs
    D. Work Practices
    E. Delegation of Authorities
III. How do the Revised Delegation Options Work?
    A. Section 63.91--Criteria for Straight Delegation and Criteria 
Common to all Approval Options
    B. Section 63.92--Approval of S/L/T Requirements That Adjust a 
Section 112 Rule
    C. Section 63.93--Approval of S/L/T Requirements That Substitute 
for a Section 112 Rule
    D. Section 63.94--Equivalency by Permit (EBP)
    E. Section 63.95--Additional Approval Criteria for Accidental 
Release Prevention Programs
    F. Section 63.96--Review and Withdrawal of Approval
    G. Section 63.97--Approval of a S/L/T Program That Substitutes 
for Section 112 Requirements
IV. How Will EPA Determine Equivalency for S/L/T Alternative NESHAP 
Requirements?
    A. Work Practice Standards and Requirements
    B. Changes to Monitoring Frequency and Recordkeeping and 
Reporting
    C. Equivalency for S/L/T Requirement Established Under New 
Source Review/Prevention of Significant Deterioration (NSR/PSD)
    D. Title V Permit Renewal Issues
V. What are the Requirements to Review This Action in Court?
VI. Administrative Requirements for This Rulemaking
    A. Docket
    B. Executive Order 12866
    C. Executive Order 13132
    D. Consultation and Coordination With Indian Tribal Governments 
Under Executive Order 13084
    E. Paperwork Reduction Act
    F. Regulatory Flexibility Act (RFA)
    G. Unfunded Mandates Reform Act
    H. Protection of Children from Environmental Health Risks and 
Safety Risks Under Executive Order 13045
    I. National Technology Transfer and Advancement Act
    J. Submission to Congress and the Comptroller General
VII. Statutory authority

I. Purpose and Background

    Section 112(l) was added to the 1990 amendments of the Act in 
recognition of the efforts by many S/L/T, during the 1980's, to develop 
their own programs to address HAPs. These programs may have 
requirements that apply to the same sources covered by Federal rules 
that have been subsequently developed under section 112. S/L/T 
requirements may differ from the corresponding Federal emission 
standards but may achieve equivalent or better environmental results. 
One major purpose of section 112(l) is to provide a mechanism for the 
approval of S/L/T requirements and programs in lieu of the Federal 
standards, where such a demonstration can be made. A second goal of the 
program is to facilitate the delegation of section 112 standards to S/
L/T programs who intend to implement

[[Page 55811]]

and enforce the Federal requirements as written.
    At present, the section 112 rules of major concern are the maximum 
achievable control technology (MACT) standards developed under sections 
112(d) or 112(h) of the Act. However, as the Federal air toxics program 
matures, we anticipate that other section 112 rules or requirements may 
also be delegated. For example, area source requirements developed 
under section 112(k) authority and residual risk standards developed 
under section 112(f) authority will be issued in the next several 
years.
    In November, 1993, EPA first published rules (58 FR 62262, November 
26, 1993) to implement section 112(l). The regulations were codified at 
40 CFR Part 63, subpart E. Following promulgation, several S/L/Ts 
expressed concern that the regulations would be difficult to implement 
and, in some circumstances, unworkable. Over the past several years we 
have been working with S/L/T representatives and other external parties 
to rethink how subpart E might be better structured to accomplish the 
goals of the Act. We have conducted stakeholder meetings to assess the 
concerns not only of S/L/Ts, but also of industries affected by the 
subpart E regulations and environmental/public interest groups. We also 
considered input from work groups, comprised of representatives from S/
L/Ts and EPA, who addressed specific issues. Based on this input, in 
September, 1997, we placed on the Internet for comment a draft preamble 
and rule amendments. We then revised the draft and published proposed 
amendments to subpart E (64 FR 1880, January 12, 1999). We received ten 
detailed sets of public comments on the proposal. The issues raised by 
commenters, and our responses, are discussed in sections II, III and IV 
below.
    In a related effort, we have worked closely with the California Air 
Resources Board (CARB) and the California Air Pollution Control 
Officers Association (CAPCOA), as well as California industry and 
environmental groups, to integrate the existing California air toxics 
programs with the Federal program. The goal of the ``California 
Initiative'' has been to establish a framework for evaluating 
alternative requirements, making timely equivalency determinations, and 
using resources efficiently. The framework will also aid in identifying 
and correcting circumstances where sources have to comply with 
duplicative requirements on the same emission points. The framework and 
guidance is intended to complement and facilitate compliance with 
subpart E requirements.
    The current revisions to subpart E have benefitted greatly from 
this initiative. We have improved our understanding of the kinds of 
provisions that can be deemed equivalent to the MACT standards.

II. Summary of Major Issues

    Although the January 1999 proposal to amend subpart E identified 
options for obtaining delegation and making equivalency determinations, 
nine of the ten comments received from S/L/Ts argued for even more 
flexibility in this process. In general, commenters believed that the 
delegation process was still too burdensome to be useful. They also 
believed that it did not go far enough toward accommodating existing S/
L/T rules and requirements that differ structurally from Federal 
standards. (An example of the latter would be ``risk-based programs'', 
which establish emission limitations on specific facilities based on 
the health risks posed.) S/L/T requested simpler and shorter review 
processes for each delegation option, and a broader list of regulatory 
authorities that would be available under each option.
    We have streamlined the equivalency review processes to make it 
easier for 
S/L/Ts to use these delegation options. In particular, we have 
eliminated specific steps in the review processes for the Equivalency 
by Permit (EBP) and State Program Approval (SPA) options, discussed in 
more detail in section III.

A. Enforceable Mechanisms

    The greatest difference between the proposed rule and today's final 
rule is the variety of enforceable mechanisms that are now available 
under each equivalency option. Mechanisms such as S/L/T rules, S/L/T 
permits, or Title V permits can be used in a variety of delegation 
options so long as (1) they include, in sufficient detail, the terms 
and conditions necessary to establish equivalency, and (2) those terms 
and conditions can be made federally enforceable through public review 
and EPA review and approval. Table 1. summarizes the mechanisms we now 
allow under each option (these are discussed in more detail in section 
III).

 Table 1.--Enforceable Mechanisms Available Under Subpart E Equivalency
                                 Options
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     Option and authorities allowed                 Mechanism
------------------------------------------------------------------------
63.92--Rule Adjustment.................   Title V permits.
                                          Title V general
                                          permits.
                                          Federal New Source
                                          Review (NSR) permits.
                                          S/L/T rules.
63.93--Rule Substitution...............   Title V permits.
                                          Title V general
                                          permits.
                                          Federal NSR permits.
                                          Board and
                                          administrative orders.
                                          Permits issued
                                          pursuant to permit templates.
                                          S/L/T permits.
                                          S/L/T rules.
63.94--Equivalency by Permit (EBP)        Title V permits.
 Process.
                                          Title V general
                                          permits.
63.97--State Program Approval (SPA)       Title V permits.
 Process.
                                          Title V general
                                          permits.
                                          Federal NSR permits.
                                          Board and
                                          administrative orders.
                                          Permit issued pursuant
                                          to permit templates.
                                          S/L/T permits.
                                          S/L/T rules.
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B. S/L/T Risk-Based Programs

    The S/L (S/L is used to represent State and Local Programs in this 
section instead of S/L/T because comments were submitted by State and 
Local Programs only) had two major categories of comments regarding 
substituting their risk-based air toxics requirements for Federal 
section 112 requirements: One, substituting S/L risk-based programs for 
Federal requirements was too difficult using the SPA option and, two, 
S/Ls are concerned that they would not be able to use the subpart E 
substitution options to demonstrate that their risk-based programs are 
equivalent to EPA's future risk-based programs such as requirements 
which would be issued under the residual risk provisions (section 
112(f)) and the risk related aspects of the urban air toxics program 
provisions (section 112(k)) of the Act. We recognize that S/Ls have, in 
some cases, established risk-based air toxics programs and would like 
to continue to implement and enforce these programs in lieu of Federal 
section 112 requirements. We believe we have addressed the major S/L 
comments and concerns in two rule modifications.
    Some S/L contended that the section 112(l) provisions promulgated 
as 40 CFR Part 63, subpart E in November 1993 did not allow them to 
retain their existing risk-based programs. Subpart E required that the 
S/Ls who used the SPA option (Sec. 63.94) would need to write their 
risk-based, air toxics' permit terms and conditions in the form of the 
Federal standards which are technology-based, and therefore difficult 
for S/Ls to fit risk-based requirements into. S/L argued that this was 
of little benefit to them because of the work it would take to make the 
conversions to the form of the Federal standard. We agreed with their 
concern and have amended the SPA option so as not to require their 
permit terms and conditions to be in the form of the Federal standard.
    The concern of the S/L pertaining to risk-based programs was that 
we are now developing policies, guidance, and regulations that would be 
based in part on health and/or risk evaluations (residual risk 
requirements of section 112(f) and urban air toxics program 
requirements of section 112(k)), to supplement our MACT program. More 
specifically, they are worried that subpart E would not allow them to 
substitute their existing risk-based requirements for our future 
requirements that are likely to also be based at least in part on risk. 
The EPA agrees that section 112 authorizes the Administrator to 
promulgate requirements other than technology-based MACT standards, and 
that subpart E should permit substitutions of S/L/T risk-based 
requirements for Federal risk-based requirements. Please note that EPA 
is currently in the process of developing policies, guidance, and 
regulations to implement the residual risk and urban air toxic 
requirements of the Act and we do not at this time know with any 
specificity what those requirements will be in the coming years. As a 
result, we may need to further revise subpart E in the future to aid 
the S/L/Ts in easily substituting their programs for our Federal risk-
based program once those programs have been developed.

C. Other Section 112 Programs

    The Act provides a two-step process for addressing control of HAPs. 
Over the last 10 years, we have focused on developing Federal control 
technology-based standards to achieve broad reductions in HAP 
emissions. We are now moving to the second step of evaluating residual 
risk to determine whether additional standards are needed to protect 
public health with an ample margin of safety. Although the process and 
methodology for these evaluations is still under development, we 
believe that it is appropriate to provide, through this rule, a 
mechanism by which S/L/Ts can accept delegation of, and/or substitute 
their programs for our risk-based program. We believe that we have 
written these options broadly enough that they will allow substitution 
of many S/L/T requirements for the Federal standards developed under 
the residual risk and urban air toxics programs.

D. Work Practices

    One overarching issue that arose during the California Initiative 
project is the delegation of authority to approve site-specific changes 
to work practice authorities. Many MACT standards contain work practice 
measures such as requirements to keep solvent-soaked cleaning rags in 
closed containers at aerospace facilities, or to provide operator 
training for persons spraying varnish on wood products at wood 
furniture manufacturing facilities. The question is whether the 
authority to make site-specific decisions about work practices can be 
delegated to S/L/Ts. Some of the MACT standards do not explicitly say 
whether S/L/T can make site-specific decisions regarding changes to 
these work practices. Further, some of these work practices were 
developed in lieu of emission standards under section 112(h) of the 
Act, which requires us to retain the authority to approve alternatives. 
We have addressed this issue by splitting the work practices into (1) 
those for which we would retain the authority to approve alternatives 
(which would require us to conduct rulemaking with a public comment 
period), and (2) those for which we would delegate the authority to 
approve alternatives (which would not require an EPA rulemaking). For a 
more-detailed discussion of this subject, see section IV below.

E. Delegation of Authorities

    Another issue addressed in comments on the proposed rule concerns 
delegation of the Administrator's authority to approve an individual 
source's use of alternatives to certain types of requirements in MACT 
standards, as set forth in 40 CFR Part 63, subpart A (the General 
Provisions). The proposed rule addressed which source-specific 
discretionary authorities we may and may not delegate to S/L/Ts through 
``straight'' delegation of the General Provisions. In the final rule, 
we are making a change to the lists of ``delegable'' and ``non-
delegable'' authorities. Specifically, we now allow delegation, to S/L/
Ts, of the Administrator's authority under Sec. 63.10(f) to make minor 
changes to reporting and recordkeeping requirements.
    We have also clarified that approval of changes to monitoring 
frequency must be addressed under Sec. 63.8(f), changes to monitoring, 
not under Sec. 63.10(f). This issue is discussed in detail in section 
IV.B below.

III. How Do the Revised Delegation Options Work?

A. Section 63.91--Criteria for Straight Delegation and Criteria Common 
to all Approval Options

    The purpose of Sec. 63.91 is twofold: To explain the process for 
straight delegation, and to describe the common up-front approval 
criteria that apply to all of the approval options. Straight delegation 
means the S/L/T will implement and enforce the Federal MACT standards 
as we have written them, without any changes. The approval process 
under Sec. 63.91 consists of notice and comment rulemaking in the 
Federal Register, and is described in greater detail in separate 
guidance. We have made several changes to Sec. 63.91 to clarify our 
intent and provide additional flexibility. With this preamble we have 
also provided additional guidance on how these requirements will work. 
See Appendix 1 to the preamble for a flow chart describing the 
Sec. 63.91 delegation process.

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1. Format Changes To Clarify Intent
    We received comments asking us to separate straight delegation 
requirements from the requirements regarding alternative S/L/T rules or 
programs. While we did not separate these requirements into other 
sections of the rule, we have revised the format of Sec. 63.91 to make 
it easier for readers to find and interpret the requirements they need. 
Specifically, we have identified which requirements are related to the 
straight delegation process alone and which requirements are common to 
all of the approval options. We have reorganized the section, added 
more descriptive section titles, and made broader use of tables to 
improve the clarity of the requirements.
2. Approval Criteria for Straight Delegation/Up-front Approval for 
Alternatives
    a. Straight delegation. We have clarified our intent that approval 
of your Title V program should satisfy the Sec. 63.91 approval 
criteria. In many cases you received your up-front approval under 
subpart E at the same time you received your Title V program approval. 
If this is not the case, you should be able to request subpart E 
delegation with a letter to your EPA Regional office requesting the 
delegation and referencing your previous Title V showing. The Region 
would then issue a Federal Register notice approving the subpart E 
delegation.
    b. Alternatives. Some commenters were concerned that the general 
approval criteria for the various equivalency demonstration options 
(e.g., Secs. 63.94 or 63.97) may include redundant demonstrations of 
the Sec. 63.91 general approval criteria. This is not our intent. We 
have changed the final language in Sec. 63.91(a) to clarify that only 
one showing of the Sec. 63.91 criteria is needed.
3. Who Accepts Final Delegation
    Commenters pointed out that there can be a difference between the 
agency that submits a request for an equivalency demonstration and the 
agency that actually accepts delegation of the approved alternative 
rule. (This may only be a problem in one State.) We believe that the 
intent of section 112(l) is to approve alternatives as part of a 
delegation. However, we encourage agencies in this position to work 
together to avoid duplicative effort. We encourage districts to bundle 
submittals together before sending them to EPA; we could then issue 
Federal Register notices that combine approvals for multiple entities.
4. Accepting Straight Delegation Via Title V
    Commenters asked us to clarify that the straight delegation option 
should include delegation via a S/L/T Title V operating permit program, 
and we agreed. In other words, we may delegate to you the authority to 
implement MACT standards directly through issuance of Title V permits 
to sources, without the need for you to adopt State rules requiring 
MACT. Because of the nature of the operating permit program, however, 
there are several issues related to the use of this mechanism that must 
be separately addressed and resolved.
    The first issue is whether your statutes, regulations, and other 
requirements contain the appropriate provisions granting authority to 
implement and enforce the State rule or program upon approval. We have 
added clarifying rule language in Sec. 63.91. At a minimum, if you 
request delegation using your permit program, you should submit a 
letter (1) indicating which statutory, regulatory, or other provisions 
satisfy Sec. 63.91, and (2) requesting the delegation.
    Second, implementing and enforcing MACT standards through the part 
70 operating permit program raises timing issues; in particular, the 
timing of the delegation of a particular MACT standard to you. In order 
to assure that affected sources are in compliance by the MACT 
standard's compliance date, their operating permits must be issued and/
or modified to reflect the necessary permit terms and conditions for 
the MACT standards before that date. Both initial notifications and 
applicability determinations need to be made prior to the compliance 
date. You must assure us that you will implement and enforce the MACT 
standards prior to the compliance date.
    If you use permits as a mechanism for any of the approval options 
provided in this rule, you should recognize that implementing MACT 
standards through Title V permits will require you to thoroughly review 
permits to ensure that their terms and conditions adequately reflect 
MACT requirements. The origin of each permit term or condition must be 
clear. Therefore you must reference the Federal Register notice in 
which we have approved the alternative.
    You must also ensure that when permits are renewed or revised, the 
terms and conditions that implement the MACT standard(s) are carried 
forward. Later, if for any reason the permit is not renewed, the source 
must still comply with the Federal MACT standard. If any permits that 
have already been issued do not adequately reflect MACT requirements, 
then they must be revised prior to delegation. Also, if Title V permits 
are used as the approvable mechanism, then the source must always have 
a Title V permit, even if it later becomes a minor source of HAP 
emissions.
    There may also be cases where the sources covered by a MACT 
standard are not covered by the Title V program (e.g., area sources 
that are exempt from the requirement to obtain a Title V permit). You 
must assure us that you can implement and enforce the MACT standards 
for those sources who do not have a Title V operating permit.
    Another issue you must address before taking straight delegation 
via Title V permits involves new sources. For example, it could take up 
to a year for a new source to receive its operating permit, and such a 
gap in compliance would make your delegation request unapprovable. You 
need to assure us that new sources will be issued permits as soon as 
possible, and that you will implement and enforce the MACT standard 
requirements before issuance of the operating permit.
    You can also accept straight delegation of the MACT standards 
through federally enforceable State operating permits (FESOPs) or 
through Federal NSR permits, as long as you meet the same conditions 
discussed above for Title V operating permits. At a minimum, these 
permits must be federally enforceable.
5. Approval Time Frame for Straight Delegation
    Commenters on this option requested that we shorten the time frame 
for approving straight delegations. We agree that in many cases, the 
full 180 days would not be needed for the review and approval of the 
delegation, and publication of the Federal Register notice. Our aim is 
to confer approval as soon as possible. Most EPA Regional offices have 
established straight delegation procedures, and work closely with S/L/
Ts to approve delegation mechanisms in advance. In these cases, 
straight delegation could be conferred by letter. However, where 
rulemaking is required, we may need the full 180 days.
    In addition, the EPA Regional office has authority to decide when 
officially to delegate each MACT standard to you. We may delegate a 
MACT standard to you either (1) for all sources in a source category at 
once, after all sources in the source category have received permits; 
or (2) source by source as permits are issued.

[[Page 55814]]

6. Subsequent MACT Standard Revisions
    Commenters asked for a simple way to implement amendments to MACT 
standards in cases where we have already delegated alternative MACT 
requirements to you. We have revised the final regulation to limit the 
effect, on already-delegated MACT standards, of amendments that 
decrease the stringency of the MACT standard. When the change is 
limited to administrative or procedural changes or is clearly less 
stringent, no changes are required at the S/L/T level unless those 
agencies or their affected sources request a change.
    We have amended the rule (Sec. 63.91(e)(3)) to require that we 
notify you of MACT standard amendments that are more stringent and that 
would affect your delegation. (Note that we are not referring here to 
residual risk standards issued under section 112(f); only to amendments 
specific to MACT standards issued under 112(d) or 112(h)). In the 
absence of such a notification, no action on your part is required. If 
action is required, we will work with you on a case-by-case basis to 
determine a time frame to make the changes to your requirements. We 
believe this flexibility is needed because we cannot forecast the 
complexity of possible future changes to MACT standards.
    Based on our current experience, most amendments to MACT standards 
are limited and do not result in an increase in stringency. For 
example, we may amend a MACT standard to allow for the use of an 
alternative monitoring procedure, which does not increase the 
stringency of the remaining requirements. In cases where the stringency 
increases through the addition of emission sources to be controlled or 
tightening of the standard or monitoring, recordkeeping and reporting 
requirements (MRR), we often provide a time frame for sources to follow 
in complying with the new requirements. We expect that this time frame 
will allow sufficient time to also amend any necessary delegations or 
equivalency demonstrations.
7. Delegable Authorities
    In the proposed rule, we included a list of the subpart A General 
Provisions authorities that we would agree to delegate to you. We also 
provided a list of those authorities to be retained by us. We received 
comments that we should not codify these delegations in the subpart E 
rule. Commenters argued that delegation issues should be handled 
through policy guidance rather than through rulemaking, so that any 
future changes to the policy could be made more easily. However, we 
believe that it is important to continue listing these authorities in 
subpart E to clarify what is delegable in a common forum that is 
readily accessible. These authorities are found in Sec. 63.91(g) of the 
final rule.
    Commenters also suggested that we delegate authority for day-to-day 
management of many decisions to you, so that we can focus on issues 
with greater emission reduction impacts. They also asked us to expand 
the list of authorities that would be delegable, in order to ensure 
there is a simple and expeditious process for you to approve 
alternative compliance and enforcement measures. In response to these 
concerns, the final rule now allows the authority to approve minor 
reporting and recordkeeping requirements to be delegated, and we have 
clarified how changes to monitoring frequency should be handled. We 
have also codified new definitions for major, intermediate, and minor 
changes to monitoring, as well as major, intermediate, and minor 
changes to test methods. These issues are discussed in detail in 
section IV.B below.
8. Enforcement
    Throughout this preamble, we state that S/L/T rules or programs may 
be implemented and enforced in place of, or in lieu of, certain 
otherwise applicable section 112 Federal rules. This means that your 
rules and programs can completely, or partially, replace our section 
112 Federal rules. Nothing in this language is intended to suggest that 
your S/L/T enforcement agencies have replaced our Federal authority to 
enforce modified or substituted rules or programs approved under this 
section or any other section. On the contrary, we want to be very clear 
that although we are allowing your rules and programs to replace our 
Federal rules, we always retain the right to enforce and implement 
these rules. Even if we delegate the enforcement of unchanged Federal 
112 standards to you, we will remain partners with you in that 
enforcement.
    We are aware that a recent Resource Conservation and Recovery Act 
(RCRA) court decision determined that EPA gave up our authority to 
enforce when we approved a S/L/T enforcement program ``in lieu of'' the 
Federal program. However, this decision does not apply to the Act. 
Although the RCRA decision is being appealed, we believe that even if 
it is upheld, Section 112(l)(7) of the Act allows us to always enforce 
our Federal rules, including the S/L/T rules or programs that are 
substituted for our Federal rules and become the Federal rules.
    Even if you take an enforcement action against a particular source 
for violations of section 112 rules, we may also take an enforcement 
action, where we deem that appropriate. In most instances, we will be 
working together as partners, coordinating our efforts so that this 
``overfiling'' situation will not arise. However, in cases where the 
penalties you have obtained do not satisfy our understanding of what is 
an appropriate penalty, we may seek additional penalties and other 
relief.
9. More Than One Equivalency Option
    There has been some confusion over whether a S/L/T could use more 
than one equivalency option to take delegation of the sources in a 
given source category covered by a section 112 rule or requirement. In 
general, if a S/L/T submits alternative requirements for a subset of 
the source category under one option, such as rule substitution, it 
cannot request delegation for the remainder of sources under another 
option, such as straight delegation. This does not mean that the S/L/T 
request for equivalency cannot contain a mixture of allowable 
enforceable mechanisms, however. For example, the equivalency request 
could be based on a State rule for the majority of requirements and 
permit or other requirements for the remainder. Once the equivalency 
request is approved, all sources must comply with the approved 
requirements.
    The exception to the limit on the number of delegation options is 
if the S/L/T used the EBP option to obtain approval of alternative 
requirements for a subset of sources in a source category. In this 
case, the S/L/T must request delegation of all of the remaining sources 
using just one other approval option, such as straight delegation. See 
section III.D for more discussion of this issue.

B. Section 63.92--Approval of S/L/T Requirements That Adjust a Section 
112 Rule

    Under the Rule Adjustment option in Sec. 63.92, we can approve your 
requirements that are structurally very similar to, and clearly at 
least as stringent as, the Federal rule(s) for which you want to 
substitute those requirements. Under this option, you may only make an 
adjustment to a Federal rule that results in emissions limits and other 
requirements that are clearly no less stringent, for each source, than 
the Federal rule. There can be no ambiguity regarding the stringency of 
any of the proposed adjustments.

[[Page 55815]]

Section 63.92 includes a list of rule adjustments that may be approved 
under this option--for example, changing a required emission rate on a 
required control technology from 95-percent control to 98-percent 
control, or increasing the monitoring requirements. We consider all of 
these adjustments to result in requirements that are more stringent 
than the corresponding Federal requirements. (Note, however, that if 
the MACT requirement is simply a performance standard (e.g. 95-percent 
control out of the stack) as opposed to a specific required control 
technology, and your corresponding requirement is a more stringent 
performance standard (such as 98-percent control), you do not need to 
submit your alternative under section 112(l). You are already complying 
with the MACT standard.)
    Under the rule adjustment option you would need to demonstrate that 
your requirements had undergone public notice and provided an 
opportunity for public comment in your jurisdiction before you submit 
it to us. Upon approval, your alternative requirements would be 
published in the Federal Register and incorporated directly or by 
reference into part 63, without additional notice and opportunity for 
comment.
    As discussed in section II, we have expanded the list of approvable 
mechanisms under Sec. 63.92 to include Title V permits, Title V general 
permits, and Federal NSR permits, in addition to rules. We make clear 
in the rule that permits submitted under Sec. 63.92 must be final 
permits, not draft permits. Only permits that have already been issued 
can be used to demonstrate equivalency. Also, once we approve an 
alternative requirement in a permit or permits, the facility cannot 
change or withdraw its permit without affecting its equivalency status.
    We believe these mechanisms all provide adequate notice and comment 
opportunities to the public in order to qualify for the relatively 
streamlined rule adjustment process. We note, however, that just 
because a mechanism is included under rule adjustment, it is not 
automatic assurance that you will always be granted equivalency. For 
example, not every lowest achievable emission rate (LAER) or NSR 
determination could be classified as an adjustment, unless the control 
technologies and associated compliance measures were clearly no less 
stringent than the MACT. When a different control technology also 
results in different MRR, it may not be obvious that the NSR compliance 
and enforcement measures are clearly no less stringent. In this case, 
rule substitution or SPA may be the more appropriate option for your 
submittal.
    As described in the following sections, we have added to the list 
of allowable ``adjustments'' and shortened the review time frame. See 
Appendix 1 to the preamble for a flow chart describing the Sec. 63.92 
delegation process.
1. Additional Rule Adjustments Allowed
    Commenters pointed out that subpart E apparently lacks a mechanism 
to accommodate minor, nonsubstantive differences (editorial, 
formatting, clarifications) from the MACT standard. In considering this 
issue, we determined that the rule adjustment option should logically 
include such changes as allowable adjustments. An example of a minor, 
nonsubstantive adjustment may be a change in the name of an 
administrator under an alternative or a change in the numbering/
labeling scheme of the rule. We would expect to process these changes 
quickly.
    We have also added a provision that allows you to submit 
requirements identical to the provisions approved elsewhere in the same 
State, which we have previously determined to be equivalent under 
subpart E. We made this change to accommodate cases where one local 
agency might receive approval of an alternative based on a permit 
template under rule substitution, for example, and another local agency 
wants to adopt the same requirements in its jurisdiction.
2. Approval Time Frame
    Commenters asked that we reduce the 90-day approval time frame. In 
general, we will make every effort to process alternatives as quickly 
as possible. If the alternative requirement is ``unequivocally no less 
stringent,'' then we believe a 60-day approval period would be 
appropriate and we have changed the final rule to reflect the shorter 
time frame. We have also agreed that the approval can be deemed 
effective upon signature, rather than waiting for publication in the 
Federal Register. We will provide more information on how this could 
work in forthcoming guidance.
    However, you should recognize that there may be situations where we 
can not consider your alternative under the rule adjustment option and 
would have to consider it under the rule substitution option. This 
could occur in the following situations:
     The information you provide us is not sufficient to 
determine whether the alternative requirement is ``unequivocally no 
less stringent,'' or
     The submittal is too complex for us to evaluate within the 
60-day time frame of the rule adjustment option.

If we must consider your submittal under the rule substitution option 
instead of the rule adjustment option, we will inform you of this 
change and you would not have to resubmit your request (although you 
may need to submit additional supporting information).

C. Section 63.93--Approval of S/L/T Requirements That Substitute for a 
Section 112 Rule

    Under Sec. 63.93, substitution of requirements (which is commonly 
referred to as the Rule Substitution option), we can approve 
substitution of one (or more) of your rules or requirements for a 
Federal rule, where your rule is structurally different from the 
corresponding Federal rule. Under this section, we also may approve a 
rule that is different from the Federal rule in ways that do not 
qualify for approval under Sec. 63.92--that is, in ways that are not 
``unambiguously no less stringent.'' This situation might arise when 
you submit a rule that was written independently of the Federal rule or 
when, for example, your rule achieves equivalent emissions reductions, 
but with a combination of levels of control and compliance and 
enforcement measures not addressed by the Federal rule. Upon receipt of 
a complete request for approval of a substituted requirement, we would 
conduct a rulemaking to request public comments. If we approved your 
requirement we would then publish it in the Federal Register, and 
incorporate it directly or by reference into part 63 as federally 
enforceable. Any rules or other requirements that you submit under this 
section must be enforceable under your State law.
    You may submit alternatives for an equivalency determination 
developed from any or a combination of the following mechanisms:
     Title V permits,
     Title V general permits,
     Federal NSR permits,
     Board and administrative orders,
     Permits issued pursuant to templates,
     S/L/T permits, or
     S/L/T rules.

Note that the mechanisms listed above submitted under Sec. 63.93 must 
be final, not draft. Only permits, permit templates, or board and 
administrative orders or rules that have already been issued can be 
used to demonstrate equivalency. Also, once we approve an alternative 
requirement in a permit or

[[Page 55816]]

permits, you cannot modify that requirement.
    If new sources apply for permits after equivalency has been 
approved, you must review those submittals to ensure equivalency with 
the MACT standard. Also, if a source wishes later to change approved 
permit terms and conditions at the time of permit renewal, or when 
making changes at the source, we must, of course, also review those new 
terms and conditions to ensure equivalency with the MACT standard.
    As discussed in section II, we have expanded and clarified the list 
of approvable mechanisms to provide additional flexibility to you in 
preparing your equivalency demonstrations. Because there is relatively 
more oversight in the review and approval process for rule 
substitution, we believe the complete menu of approvable mechanisms 
should be allowed under this option.
    Commenters raised several issues with respect to the Sec. 63.93 
process. The major issues are discussed below, and the remaining issues 
are addressed in the Technical Document for Promulgation of Standards, 
found in the project docket. See Appendix 1 to the preamble for a flow 
chart describing the Sec. 63.93 delegation process.
1. Review Period
    Commenters suggested reducing the length of our review period from 
180 to 90 days. They argued that EPA's substantive review of submittals 
should occur before formal submittal, in order to understand and 
resolve major issues. In this case, the official review should not 
require extensive amounts of time.
    We have not changed the review period in the final rule because we 
expect to receive submittals under this option that range significantly 
in their complexity. For less complex equivalency submittals, we would 
intend to complete our review as quickly as possible to reduce the 
chance of dual regulation. However, we must reserve the ability to 
fully review more complex submittals, which could take up to 180 days. 
Therefore, we believe that the appropriate time frame for review should 
be determined by the relevant EPA Regional office, considering the 
complexity of the submittal, the Regional office's experience with 
similar submittals, and the Regional office's resource load. We expect 
that EPA Regional offices will want to work with you early in the 
process, and to process the equivalency determinations as quickly as 
possible. We encourage both you and the Regional offices to develop a 
submittal tracking system to ensure that equivalency requests are 
handled as expeditiously as possible. We also plan to provide 
additional implementation guidance to facilitate preparation of easily 
reviewed submittals and EPA review of those packages.
2. Approval Criteria
    Commenters suggested that we establish a two-tier system for 
reviewing equivalency submittals under Sec. 63.93. Specifically, they 
said we should distinguish between level of control requirements and 
compliance and enforcement measures. They argued that compliance and 
enforcement measures are less critical, but require disproportionately 
greater review resources. While we agree that it can be more difficult 
to determine the equivalency of compliance and enforcement measures, we 
do not believe this justifies a lower threshold for the determination. 
Section 110 of the Act requires that we ensure our rules are adequately 
implemented and enforced; therefore, it would be difficult to support 
this distinction. For more detail on how we intend to handle compliance 
and enforcement measures, please see the preamble to the proposed rule. 
64 FR 1880, 1901-1903 (January 12, 1999).
3. Compliance Schedules
    Section 63.93(b)(3) specifies that an equivalent alternative must 
ensure that each affected source is in compliance no later than would 
be required by the otherwise applicable Federal rule. Commenters 
suggested that we revise this requirement to instead ensure that the 
compliance schedule is ``sufficiently expeditious.'' We cannot agree 
with this suggestion because the compliance date is a ``bright line'' 
criterion in the equivalency demonstration. We cannot think of a way to 
define ``sufficiently expeditious'' that would not appear arbitrary and 
yet would still prevent potential abuses of changes in the deadline.
    However, we realize that there may be some cases where a S/L/T rule 
may contain a compliance date that is only slightly beyond the deadline 
in the applicable MACT standard. We want to allow flexibility to 
approve these cases, taking into consideration the length of the time 
difference between two deadlines, the stringency of the rule, the 
expected emissions impact, etc. Therefore, we are revising this 
language to require S/L/T rules to assure compliance by affected 
sources ``within a time frame that is consistent with the deadlines 
established in the otherwise applicable Federal rule.'' We expect that 
this language will provide flexibility in limited situations without 
allowing large discrepancies in compliance deadlines between S/L/T 
rules and Federal rules.

D. Section 63.94--Equivalency by Permit (EBP)

    The EBP option was added to subpart E in the proposed amendments. 
As proposed, this option would allow you to substitute alternative 
requirements and authorities that take the form of permit terms and 
conditions instead of source category regulations. This process 
provides a means of obtaining delegation without having to go through 
rulemaking at the S/L/T level to establish source category-specific 
regulations. See Appendix 1 to the preamble for a flow chart describing 
the Sec. 63.94 delegation process.
1. Overview of the Equivalency by Permit Process
    The EBP process comprises three steps. The first step (see 40 CFR 
63.94(a) and (b)) is the ``up-front approval'' of your EBP program. The 
second step (see 40 CFR 63.94(c) and (d)) is our review and approval of 
your alternative section 112 requirements in the form of pre-draft 
Title V permit terms and conditions. The third step (see 40 CFR 
63.94(e)) is incorporation of the approved pre-draft terms and 
conditions into specific Title V permits and the Title V permit 
issuance process itself. The final approval of the S/L/T alternative 
requirements that substitute for the Federal standard does not occur 
for purposes of the Act, Sec. 112(l)(5), until the completion of step 
three. For a more detailed description of each of these steps, refer to 
the discussion at section VII.C.2 of the preamble to the proposed rule. 
See 64 FR 1880, 1901-1903 (January 12, 1999).
    As we discussed in the proposal, the purpose of step one is three 
fold: (1) It ensures that you meet the Sec. 63.91(b) criteria for up-
front approval common to all approval options; (2) it provides a legal 
foundation for you to replace the otherwise applicable Federal section 
112 requirements with alternative, federally enforceable requirements 
that will be reflected in final Title V permit terms and conditions; 
and (3) it delineates the specific sources and Federal emission 
standards for which you will be accepting delegation under the EBP 
option.\1\
---------------------------------------------------------------------------

    \1\ Note that S/L/Ts may not implement the EBP option for 
individual sources or source categories that are not identified in 
step one. S/L/Ts would have to repeat the up-front approval process 
to add those sources to the EBP program.
---------------------------------------------------------------------------

    At step one, we will go through notice and comment rulemaking to 
approve your EBP program allowing you to write

[[Page 55817]]

source specific title V permit terms and conditions equivalent to 
Federal section 112 standards. We will amend 40 CFR part 63 to 
incorporate that approval. Once step one is completed, we have approved 
your program contingent upon your including, in Title V permits, terms 
and conditions that are no less stringent than the Federal standard. 
However, the requirement applicable to the source--and the ``applicable 
requirement'' for Title V purposes--remains the Federal section 112 
requirement until the final Title V permit is issued. This is because 
we will not be able to confirm that your Title V permit terms and 
conditions will be no less stringent than the Federal standard until we 
see them written into the specific Title V permits. Moreover, before 
final delegation can occur, there must be an enforceable mechanism (in 
this case the Title V permit) containing the alternative requirements.
    The actual determination that the alternative S/L/T requirements 
are equivalent to (or no less stringent than) the Federal section 112 
standard is made during steps two and three, with final delegation of 
the Federal requirements occurring at the completion of step three. At 
step two, you submit pre-draft Title V permit terms and conditions to 
us for approval. At this step, you ask us to evaluate the terms and 
conditions that will be applicable to the sources identified in step 
one and to make a judgment as to whether those terms and conditions are 
as stringent as the Federal standard. We introduce the term ``pre-
draft'' to mean a version of the part 70 operating permit prior to the 
``draft'' (as defined in 40 CFR part 70) version. By reviewing an early 
or pre-draft version of the operating permit, we will be able to 
identify potential issues with the equivalency demonstration and 
address these issues prior to the normal operating permit review 
process. By configuring the EBP option this way, we believe we will be 
able to provide timely review and input to permitting agencies and, 
therefore, not slow the operating permit issuance process. The 
submittal must include a complete set of pre-draft permit terms and 
conditions, an identification of which terms contain alternative 
requirements and the supporting documentation for the equivalency 
demonstration. These documents all become part of the administrative 
record for our approval of the alternative S/L/T requirements under 
section 112(l)(5).
    At step two, we make our equivalency determination, conditional 
upon our ability to review specific proposed Title V permits at step 
three to ensure that they incorporate the approved terms and conditions 
exactly as approved in step two. Steps two and three together satisfy 
the section 112(l) requirement that we review and affirmatively approve 
alternative requirements.
    At step three, the pre-draft permit terms and conditions approved 
at step two are written into specific proposed and draft Title V 
permits, which then go through the regular Title V permit issuance 
process. Thus, there is an opportunity for EPA and public review of the 
alternative requirements at step three. All information provided to us 
during step two as part of your equivalency demonstration must also be 
made available to the public during the Title V public review period. 
How the permit terms and conditions are written at step three is 
integral to our final determination that your requirements are 
equivalent to the Federal standard and that the permit assures 
compliance with all applicable requirements.
    If the requirements we approve at step two are changed when written 
into the final Title V permit at step three, the delegation cannot 
occur and the Federal standard continues to apply. Thus, EPA approval 
at step two in no way prevents later EPA action to ensure that permit 
terms and conditions are no less stringent than Federal standards. Such 
action could include EPA disapproval of specific Title V permits, the 
granting of a citizen petition requesting EPA to object to a specific 
Title V permit, permit reopenings after permit issuance, or corrective 
action at the time of permit renewal.
    In summary, your EBP program is approved at step one; the Title V 
permit terms and conditions that will replace the Federal standard are 
approved at step two (contingent upon them being written into Title V 
permits in step three exactly as they were approved at step two); and 
the actual delegation to you to implement alternative requirements 
contained in a Title V permit occurs when the enforceable mechanism, 
the Title V permit, is issued after the EPA and public comment periods.
2. Challenges to an EBP Delegation
     As discussed above, under the EBP approach, the actual delegation 
occurs at step three with the issuance of the Title V permit. Thus, 
each Title V permit represents an opportunity for the public to 
challenge the alternative S/L/T requirements for not being as stringent 
as the Federal standard. This is why all supporting documentation that 
you submit at step two in support of the equivalency demonstration must 
also be available to the public during step three, as part of the 
record for the permit proceedings. In addition to each permit 
representing an opportunity to challenge EPA's delegation of authority 
to you to implement a particular section 112 standard through 
alternative Title V permit terms and conditions, the public may also 
petition the Administrator to object to each Title V permit on the 
grounds that it does not assure compliance with the applicable 
requirements of the Act, in this case the relevant Federal section 112 
standard.
    Moreover, if the terms and conditions change between the draft and 
final permit stages, the public and EPA can challenge the permit after 
permit issuance. The EPA could reopen the permit for failure to assure 
compliance with all applicable requirements (i.e., the relevant section 
112 standard). The public could challenge the permit on the same basis; 
the public would have the right to do so even if the issue was not 
raised during the comment period because the grounds for the objection 
would have arisen after the public comment period. See Act section 
505(b)(2); 40 CFR 70.4(b)(3)(xii).
    Due to the permit-by-permit nature of delegations under the EBP 
option and the corresponding opportunity for challenge to the 
alternative S/L/T requirements with each permit, permitting authorities 
should weigh carefully the advantages and disadvantages of the EBP 
approach for particular source categories. The EBP approach may not 
provide the same certainty about the programmatic sufficiency of 
alternative S/L/T requirements as compared to approving delegations 
based on S/L/T rules. Delegations based on S/L/T rules achieve 
delegation for all sources within a source category in a single action; 
thus, there is a single opportunity for challenge and judicial review 
of the rules in State court, and of EPA's delegation action in Federal 
court.
    Finally, the iterative nature of the approach may place greater 
resource demands on permitting authorities. For these reasons, 
permitting authorities might consider it more manageable to restrict 
the EBP approach to source categories with fewer sources, or to issue 
all Title V permits to sources within the same source category at the 
same time.
3. Revisions to Alternative S/L/T Requirements in Title V Permits
     Under the EBP approach, the delegation to you of the authority to 
implement Title V terms and conditions in place of the Federal standard 
occurs during a process in which there is an opportunity for full 
public review and challenge, and an opportunity for EPA review and 
objection. The EPA and

[[Page 55818]]

public review process is essential because the EBP essentially allows a 
case-by-case determination of requirements that will substitute for the 
Federal section 112 standard. Both EPA and public review opportunities 
must also be available before any change to the Title V permit terms 
and conditions that are substituting for the Federal standard, since 
such changes would operate as a substitute for the Federal standard for 
a particular source. Thus, any revision to the Title V permit terms and 
conditions that substitute for the Federal standard must be processed 
as a significant modification under Title V. This is consistent with 
the current regulations governing revisions to Title V permits, which 
require that any change to a case-by-case determination of a standard 
be processed as a major modification with full EPA and public review. 
See 40 CFR 70.7(e)(2)(i)(A)(3).
4. Permit Streamlining
     The proposal compared the EBP process to Title V permit 
streamlining under EPA's White Paper 2. (For guidance on permit 
streamlining, see our March 5, 1996 policy guidance document entitled 
``White Paper Number 2 for Improved Implementation of The Part 70 
Operating Permits Program,'' commonly called White Paper 2, which can 
be found on our website at http://www.epa.gov/ttn/oarpg/t5wp.html.) 
Through Title V permit streamlining, a source may choose to consolidate 
multiple applicable requirements into a single set of applicable 
requirements that assure compliance with each of the ``subsumed'' 
requirements to the same extent as would be achieved by having the 
source comply with each requirement independently. See 64 FR 1880, 
1904-1905 (January 12, 1999). However, requirements that are subsumed 
under the streamlined requirements contained in the permit remain 
applicable. Thus, a source subject to enforcement action for violation 
of a streamlined applicable requirement could potentially also be 
subject to enforcement action for violation of one or more subsumed 
applicable requirements.
    Streamlining is different from the EBP process for replacing the 
Federal section 112 standard with Title V permit terms and conditions 
pursuant to a section 112(l) delegation. Under the EBP approach, once 
the final Title V permit is issued and you receive delegation to 
implement those permit terms and conditions in place of the Federal 
standard, the Federal standard no longer applies.
    The proposal noted that nothing prevents the approved alternative 
Title V permit terms and conditions from then being streamlined with 
other applicable requirements under the process and criteria provided 
in White Paper 2. However, because, under the EBP approach, the only 
location of the approved S/L/T alternative requirements is the Title V 
permit, the terms and conditions implementing those requirements must 
remain tangibly written into the permit.
5. Public Comments on EBP
    Issues raised by commenters include expanding the list of 
approvable mechanisms, removing the limit on the number of permits that 
can be submitted under this option, accepting delegation for all 
sources in a source category, and identifying source categories as part 
of the Sec. 63.91 approval process. These issues are discussed in more 
detail below.
    a. List of approvable mechanisms. Commenters raised the issue of 
allowing the use of S/L/T permits and Title V general permits as part 
of the EBP option. We agree that Title V general permits should be 
allowed, as they carry with them the actual terms and conditions that 
would be imposed on sources through Title V implementation. However, we 
cannot allow the use of     S/L/T permits under this option because we 
lack the clear understanding we have under Title V of how the S/L/T 
program will be implemented, and this understanding is a crucial 
element of the expedited review process under EBP. Therefore, we have 
limited the use of S/L/T permits to cases where they are based on: (1) 
An up-front program approval under the SPA option, or (2) under the 
rule substitution option, where there is an opportunity for you to make 
a more detailed showing and for EPA and the public to adequately 
review. The EBP option is limited to the use of Title V permits and 
Title V general permits.
    Commenters also asked if we could expand the list of approvable 
mechanisms to include permit templates. Their reason for this request 
is that in some States, the State agency might submit a permit template 
for an equivalency demonstration, but a local agency would actually be 
the one to implement the template. They proposed a two-track process 
for addressing alternative requirements: permit templates (outside the 
part 70 process), and part 70 permits (Title V permits or Title V 
general permits).
    We cannot approve the use of permit templates under the EBP option 
because permit templates often do not contain specific requirements 
needed to determine equivalency and because permit templates are not 
enforceable until written into actual permits. In addition, the limited 
time for review under EBP would not be adequate for this more complex 
situation.
    b. Up-front approval requirements. Some commenters suggested 
removing the up-front approval requirements in Sec. 63.94 on the 
grounds that these requirements are unnecessary and impractical. (These 
requirements include identification of specific sources, as well as the 
list of current and future Federal standards, for which you are 
requesting approval of alternatives under EBP.) The commenters reasoned 
that you are often unable to forecast future standards and possible 
specific sources for which you would seek delegation of your standards 
through the EBP option. They also worried that we were asking for a 
duplicate demonstration to the Title V demonstrations you have already 
made.
    To clarify, if you have an approved part 70 program, then your 
submittal need provide only a listing of the sources and source 
categories that you are covering and your commitment to accept section 
112(l) delegation. If source categories are added at a later time, then 
the submittal can be updated with a repeat of step one. The public must 
have the opportunity to comment on all source categories that you would 
propose to handle through an alternative process.
    c. Five-source limit. Commenters objected to the proposed limit on 
the number of sources per source category for which you could request 
alternative requirements through the EBP option. They said the five-
source limit was arbitrary, inappropriate, and severely limited the 
usefulness of the option.
    We proposed the limit because we were concerned about the potential 
burden on the EPA Regional offices asked to review multiple permits 
under EBP. The EBP process was designed to streamline the review and 
approval process, and it could be overwhelmed by too many submittals or 
by submittals on complex MACT standards. Although we believe it is 
important to limit both the number of sources and the complexity of 
MACT standards allowed under this option to avoid overburdening the 
Regional offices, we appreciate the concern that limiting the number of 
sources may, somewhat arbitrarily, constrain the reasonable use of this 
option. Upon reflection, we believe the number of sources could be 
determined through agreement between you and your Regional office, such 
as through a Memorandum of Agreement

[[Page 55819]]

(MOA). We have changed the rule language to provide this flexibility.
    d. Accepting delegation of all sources in the source category. 
Commenters said we should remove the requirement that you take 
delegation for all sources in a source category (including area 
sources, for example) when you implement EBP alternative requirements 
through the part 70 permitting process, because it could conflict with 
partial delegation under Sec. 63.91. They argued that 
Sec. 63.94(b)(1)(ii) would prevent those permitting authorities with 
limited resources from using the EBP option.
    Commenters also argued that requiring you to take delegation for 
all sources in a source category could lead to unequal treatment among 
sources in larger source categories managed through other options. In 
addition, it would constitute a disincentive to use this option for 
non-Title V sources, since the more burdensome alternative delegation 
approaches must be followed. Commenters argued that this would delay 
the ability to resolve at least some issues through Title V, and could 
create unequal requirements between equivalent sources depending on 
whether the source is found at a facility that does or does not yet 
have a Title V permit.
    The focus of delegation under section 112(l) has always been source 
category-wide rather than source-specific. Therefore, we will continue 
to require that even though you might use EBP for just a subset of 
sources in a source category, you must take delegation for all sources 
under that source category. The EBP option was not intended for larger 
source categories such as dry cleaners and chrome plating where there 
is a greater potential for inequity. Our decision to allow flexibility 
in setting a limit on the number of sources covered under this option, 
and to provide that the limit be set case-by-case through S/L/T and EPA 
Regional Office negotiation, will also help to resolve the question of 
inequity.
    We agree that requiring you to accept delegation for all sources in 
a source category (including non-Title V sources) represents a 
disincentive for using the EBP approach for complex source categories 
and source categories with many sources. However, implementing 
requirements for non-Title V sources would be more appropriately 
addressed under the SPA option discussed in section G.

E. Section 63.95. Additional Approval Criteria for Accidental Release 
Prevention Programs

    We received no comments during the public comment period on the 
section 112(r), Part 68 provisions contained in Secs. 63.90 and 63.95 
of the proposed rule. However, further experience with the risk 
management program and S/L/T's efforts to adopt an approvable program 
have led us to refine some of the Sec. 63.90 and Sec. 63.95 provisions 
to ensure a workable S/L/T-Federal partnership in delegating and 
implementing section 112(r) provisions.
    Specifically, in Sec. 63.90(d)(1)(iii) of the proposed subpart E 
rule, we proposed to retain the authority to add or delete requirements 
from Part 68, subpart G. Our thinking was that S/L/Ts should not have 
the authority to require additional and/or different reporting elements 
including chemicals, data, sources, etc. than what we are requiring in 
Part 68, subpart G.
    In addition, the proposed language in Sec. 63.95(b)(1) did not 
require S/L/Ts to include in their programs that covered facilities 
prepare and submit a Risk Management Plan (RMP). In fact, we indicated 
in the preamble to the proposed rule that EPA would not approve 
alternative S/L/T RMP requirements. We intended the Federal RMP 
requirement in Part 68, subpart G to remain in effect even in S/L/Ts 
with approved programs, so that there would be national consistency in 
RMP reporting. As explained in the preamble to the proposed rule, we 
have developed an electronic system for submitting and disseminating 
RMPs that will reduce paperwork burdens for facilities subject to Part 
68 provisions as well as for the S/L/Ts and Federal agencies involved 
in the RMP program. However, for such an electronic system to work, 
RMPs must be submitted in a uniform format.
    We now realize there are two logistical problems with the 
proposal's approach to the RMP requirements in Part 68, subpart G. 
First, many of the Federal RMP provisions in subpart G reference other 
Part 68 requirements to define what must be reported in an RMP. Except 
where a S/L/T adopts a risk management program by incorporating all of 
Part 68 by reference, retaining the Federal RMP requirement in a S/L/T 
with an approved program could create a discrepancy between the S/L/T's 
regulations and the Federal Part 68 reporting requirements. From a 
regulated facility's standpoint, it would be asked to prepare an RMP by 
reference to regulations that, in an approved 
S/L/T, no longer apply to it. Second, lack of a S/L/T RMP requirement 
could create enforcement problems. For example, S/L/T agencies would 
not have an RMP submission requirement to enforce, leaving enforcement 
of that requirement to us.
    To address these problems, we believe that S/L/Ts must include an 
RMP requirement in the programs submitted for our approval. Further, 
for each of the section 112(r)-listed chemicals that an S/L/T is 
regulating, the S/L/T must require reporting of at least the same 
information in the same format as required under Part 68, subpart G. 
National consistency in RMP reporting of section 112(r)-listed 
chemicals is needed to preserve the viability and utility of EPA's 
electronic system for submitting and managing RMPs. In addition, the 
stringency of the Federal risk management program is, at least in part, 
a function of what must be reported in RMPs. For S/L/Ts to show that 
their programs are at least as stringent as the Federal program with 
respect to the section 112(r) chemicals they are regulating, their RMP 
requirement must collect at least the same information the Federal 
program collects. To avoid any potential discrepancies, the S/L/T would 
write its RMP provision to correspond with its own associated 
regulations.
    We also recognize that S/L/Ts may want to establish more extensive 
RMP reporting requirements than the Federal program's. The S/L/Ts will 
decide if they want to include this additional information in their 
delegation package to EPA. Any additional information approved as part 
of the delegation package will be Federally enforceable. The S/L/Ts may 
seek additional information in RMPs without threatening the integrity 
of our electronic reporting system. We may or may not be able to 
include additional data elements in our reporting system; if we are not 
able to do so, the S/L/T can provide for separate reporting of the 
relevant information. Those S/L/Ts interested in having their 
additional reporting requirements included in the system should contact 
Karen Schneider of EPA's Chemical Emergency Preparedness and Prevention 
Office at (202) 260-2711. In any event, additional reporting 
requirements may be submitted to us and made Federally enforceable as 
part of an approved 
S/L/T program.
    Moreover, we recognize that S/L/Ts may want to regulate more or 
fewer chemicals than the Federal program regulates. In some cases, S/L/
Ts have sought or will seek approval through the section 112(l) process 
of a full or partial program covering more or fewer chemicals, 
respectively. We want to encourage S/L/Ts to seek delegation of the 
Part 68 RMP. As we proposed, we will approve S/L/T programs that cover 
fewer chemicals than the Federal program covers, so long as the S/L/T

[[Page 55820]]

accepts delegation of the entire section 112(r) program for that 
defined universe. The revised subpart E regulations issued today 
require that 
S/L/T programs include provisions corresponding to subparts A through G 
and Sec. 68.200 of Part 68 for the federally-listed chemicals it 
regulates. With respect to RMPs, S/L/T programs must require, for 
Federally-listed chemicals, reporting of at least the same information 
in the same format as required under subpart G. Those S/L/Ts opting to 
cover additional chemicals or sources or to require additional 
reporting may submit such programs to us for approval. Our approval of 
a 
S/L/T program with such additional requirements will make those 
requirements Federally enforceable.

F. Section 63.96--Review and Withdrawal of Approval

    The review and withdrawal-of-approval process in Sec. 63.96 is 
intended to be used when we determine that you (the S/L/T) are not 
adhering to the conditions under which your rule(s), program, or 
requirements were approved. Although we are not changing the withdrawal 
process in today's rulemaking, we continue to believe that withdrawal 
of rule(s), program, or requirements may be considered in cases where 
S/L/T are not adequately implementing or enforcing their alternative 
rule(s), program, and/or requirements.

G. Section 63.97--Approval of a S/L/T Program That Substitutes for 
Section 112 Requirements

    The SPA option is intended for 
S/L/Ts with mature air toxics programs with many regulations affecting 
source categories regulated by Federal section 112 standards. Under the 
SPA process you can seek approval for your program to be implemented 
and enforced in lieu of specified existing or future section 112 rules 
or requirements.
    This option can eliminate the redundant review of generic 
requirements that apply to multiple source categories each time we 
review your alternative requirements for a new source category. It 
allows you to bundle regulations or requirements and submit them as a 
group for more efficient processing, or submit requirements arising 
from multiple S/L/T rules to substitute for requirements in a single 
Federal section 112 regulation. This option also covers section 112 
requirements that we may develop in the future under other sections 
besides sections 112(d), 112(f), and 112(h), and it allows you to 
develop protocols to establish alternative compliance and enforcement 
strategies.
    The SPA process consists of two steps. In the first step, you 
submit to us, and we then approve, your up-front program. Up-front 
approval involves assuring that you have adequate authorities and 
resources to implement and enforce your proposed alternative 
provisions, as well as informing us which source categories your 
program covers. The up-front approval takes place via notice and 
comment rulemaking in the Federal Register and may take a maximum of 90 
or 180 days to complete, depending on the complexity of your submittal.
    In the second step, you submit to us, and we approve, your specific 
alternative requirements. These alternative requirements may be 
submitted in the form of rules, permits, or requirements in other 
enforceable mechanisms for major and/or area sources but, as in 
Sec. 63.93, they must be enforceable as a matter of S/L/T law before 
you can submit them for approval. Also, as in Sec. 63.93, in step two 
of the SPA process, we approve your alternative requirements through 
notice and comment rulemaking in the Federal Register. This process, as 
proposed, will be completed within 180 days. See Appendix 1 for a flow 
chart describing the Sec. 63.97 (SPA) delegation process.
    In the January, 1999 proposed rule we further described the timing 
of the internal steps within the 90-day to 180-day maximum time allowed 
for each approval step. In the final rule, we have deleted those 
intervals (except for the minimum length of the public comment periods) 
in order to provide you with greater discretion in the process. (We 
have made similar changes in Secs. 63.91, 63.93, and 63.94.)
    Issues raised by commenters included the overall administrative 
burden of the SPA process, expansion of the list of approval 
mechanisms, the focus on source categories, the scope of section 112 
rules that could be included, and the requirement to identify source 
categories in advance. These issues are discussed in more detail below.
1. Overall Burden
    Commenters believed that the SPA process, as proposed, with two 
separate steps of EPA (and public) review and approval, contained too 
much administrative process and review time. They also suggested that 
even though we had eliminated the need for equivalency with the form of 
the standard, a source-category by source-category equivalency process 
is still too cumbersome and complex, and does not really provide a way 
for demonstrating that risk-based State programs, for example, are 
equivalent.
    Because of these comments, we are considering making some broad 
changes to the SPA process. There are significant technical, legal, and 
policy issues which would need to be addressed in order to accommodate 
providing this additional flexibility. For example, in making technical 
assessments of whether a S/L risk-based program could or should 
substitute for the Federal requirements, significant issues in 
determining equivalency are anticipated. When EPA completes its review 
of these issues, should the review establish that the additional 
flexibility can be granted, then an additional notice and comment 
rulemaking would be needed because such changes to the current subpart 
E rule would not be a logical outgrowth of what we proposed to date. 
Therefore, we must propose any such changes separately. We do not want 
to delay the flexibility that we can now grant in the subpart E rule in 
order to address these issues. Therefore, in today's final rule, we are 
promulgating a SPA process similar to the process in the January 12, 
1999 proposed rule, but with some additional flexibility and shortened 
review time.
    In addition, we envision addressing the S/L request for additional 
flexibility in addressing HAP risks and for the ability to continue to 
implement their existing air toxics programs in other section 112, non-
MACT programs. For example, the ``National Air Toxics Program: The 
Integrated Urban Strategy; Notice'' (Federal Register, July 19, 1999, 
pages 38727-38729) discusses the need for a S/L/T partnership in 
addressing the risk from air toxics in urban areas. That notice 
specifically discussed the extent of their existing programs and how 
the ``mature'' programs may be given the authority to address the 
section 112(k) (Urban Air Toxics Strategy) requirements. ``Those 
wanting flexibility note that risk reductions tailored to the local 
situation can be more effective than national solutions * * *'' We are 
now working with a stakeholder group to further discuss concerns with 
flexibility in our granting authority to S/L/T to address HAP risks in 
``The Integrated Urban Strategy.'' In developing a final SPA process 
under section 112(l)(and in developing other associated section 112 
programs), we will evaluate existing S/L/T programs' HAP risk 
reductions relative to HAP risk reductions for Federal section 112 
programs.
2. Approval Mechanisms
    The final rule contains an expanded list of S/L/T level regulatory

[[Page 55821]]

mechanisms that we consider to be approvable under the SPA option. For 
example, you may submit a mix of requirements in the form of S/L/T 
rules, S/L/T permits, permits issued pursuant to permit templates, 
board and administrative orders, Federal NSR permits, Title V general 
permits, or Title V permits. We feel comfortable allowing a broad list 
of mechanisms under SPA because the second step of the SPA process 
provides opportunity for EPA review of specific requirements such as 
permit terms and conditions. This change reflects comments that State 
agencies typically use a mixture of requirements in actual practice.
3. Source Category Focus
    One commenter said that the SPA option should reflect a source-by-
source basis rather than a source category-wide focus, because this 
would be more consistent with actual regulatory practices. However, we 
believe that if source-by-source changes are truly desired, then these 
requests should be made through EBP or through the part 63 General 
Provisions. The intent of subpart E is to delegate source category-wide 
rules, with appropriate exceptions (e.g., partial approval). Even in 
the case of EBP, you must take delegation for the remaining sources in 
the source category using one of the other delegation options in 
subpart E. We need to make this exception because the EBP option is 
designed for a limited number of sources, and there may be other 
sources in the source category that are not covered by EBP.
4. Scope of Program Coverage
    One commenter wanted us to allow the SPA option to be used for all 
HAP standards. Currently, the SPA option limits the equivalency process 
to (1) section 112(d), the MACT standards, (2) section 112(f), the 
residual risk standards, and (3) section 112(h), which are work 
practice standards. The commenter argued that expanding the SPA option 
to include any Federal standards controlling HAP emissions, such as 
section 112(k) (urban program), combination section 111 (new source 
performance standards or NSPS), section 112 standards, section 129 
(solid waste combustion standards), and section 183 (Federal volatile 
organic compounds control measures), will meet the statutory 
requirements set forth by section 112(l). We have revised the 
applicable sections of subpart E to clarify that the delegation options 
are available for all section 112 authorities, which is consistent with 
section 112(l). At present, we have only issued standards under section 
112(d) and 112(h) authorities, but as the section 112(k) and section 
112(f) programs are developed, subpart E will be available for you to 
request equivalency of alternative rules. Section 112(l) does not 
provide the authority to address the other programs suggested by the 
commenter. In any case, sections 129 and 111 already have their own, 
separate delegation processes.
5. Identifying Source Categories in Advance
    One commenter said we should not require S/L/T agencies to identify 
in advance the source categories and/or section 112 requirements for 
which they intend to substitute alternative requirements unless they 
can do so on a general basis. They feel that requiring specific 
identification of source categories is unnecessary so long as the 
public has a chance to comment on the specific alternatives developed 
under the approved program. We believe identification of source 
categories, to the extent possible, is important information. We do not 
require that the agency know the identity of all possible future source 
categories. The S/L/T agency can add source categories at a later time 
as the need arises, or alternatively, simply list up-front all source 
categories that might be included. Our key concern is that the public 
receive adequate notice of the addition of source categories to be 
considered under this option. We believe that the second Federal 
Register notice on the alternative requirements could also amend the 
up-front approval. Within this notice, the Region would inform the 
public that the S/L/T agency is adding one or more source categories.

IV. How Will EPA Determine Equivalency for S/L/T Alternative NESHAP 
Requirements?

A. Work Practice Standards and Requirements

    One issue that arose during the California Air Toxics Program 
Integration Initiative is the delegation of authority to approve site-
specific alternatives to the MACT-specific work practice requirements. 
In this discussion, we use the term ``work practices'' to refer to 
requirements in MACT standards that are developed in lieu of, or to 
augment, emission standards. A subset of work practices known as ``work 
practice standards'' are those work practices developed under section 
112(h) of the Act. Section 112(h) requires us to develop design, 
equipment, work practice, or operational standards if it is not 
feasible to prescribe a HAP emission standard. This section also says 
that ``if after notice and opportunity for comment, the owner or 
operator of any source establishes to the satisfaction of the 
Administrator that an alternative means of emission limitation at least 
equivalent'' to the section 112(h) standard, then the Administrator can 
approve the alternative for use by the source. Based on this authority, 
we cannot delegate the authority to change actual standards developed 
under section 112(h). However, as a general principle, we believe we 
can delegate the authority to change some of the associated compliance 
and enforcement measures (e.g., inspections, monitoring, reporting, and 
recordkeeping) associated with these standards.
    In the California Air Toxics Program Integration Initiative we also 
determined that some work practices can be both (1) delegated to the S/
L/Ts to make decisions on a site-specific basis, and (2) identified as 
needing less scrutiny during the equivalency demonstration development 
and review. Our goal was to define work practices in a way that was 
consistent for both purposes. We view these work practice authorities 
as somewhat similar to the 40 CFR Subpart A General Provisions' 
authorities, such as startup, shutdown, and malfunction plans. (Section 
63.91(g) of this rule sets out which General Provisions authorities can 
be delegated to the S/L/Ts, and which we retain). We have tried to 
incorporate these ideas into the section 112(l) rulemaking as well.
    When, in the absence of delegation, a source requests approval of 
an alternative to MACT requirements that are labeled as work practice 
standards under section 112(h), we must propose for public comment, and 
then promulgate, an approval or disapproval of that alternative on a 
source-specific basis. This can be a time-consuming process and we do 
not believe it is justified unless the scope of the change affects the 
section 112(h) standard or is otherwise nationally significant.
    Instead, we believe there are work practice compliance measures, 
such as operator training plans, for which it is more reasonable for 
the S/L/T to evaluate potential alternative requirements. For example, 
some MACT standards require sources to develop operator training plans 
with specific elements to the plan. If a source wanted to use a 
different approach to operator training, such as a video course, we 
believe the S/L/T should be able to judge the adequacy of the 
alternative to achieve the underlying standard, which is to train 
operators to work in such a way as to minimize emissions.

[[Page 55822]]

    Under the California Initiative, we have decided to divide work 
practices into those for which the authority to approve alternatives is 
delegable (because they are not actually 112(h) emission related 
standards), and those for which the authority to approve alternatives 
is not delegable. We cannot delegate standards developed under section 
112(h), but we can delegate the authority to approve alternatives to 
their associated compliance and enforcement requirements. Upon review 
of existing section 112(d) rules, we found that some requirements have 
been identified as work practices, or mentioned as being developed 
under section 112(h), when they are really monitoring requirements or 
other compliance and enforcement requirements. We intend to clarify 
that these monitoring requirements are delegable under certain 
conditions as mentioned in Section II.
    We have decided to provide guidance to explain these distinctions 
between the standards and their compliance and enforcement measures 
because many of the existing MACT standards were written using 
different formats and organization structures. This can make it 
difficult for the uninitiated to determine under which classification 
individual requirements fall. Currently, we can advise you that plans 
and training generally are delegable, but other practices that have a 
more direct impact on emissions are not delegable. We plan to correct 
those rule structure problems in future rulemaking. For the existing 
rules, we will focus on providing many examples of work practices for 
which the authority to approve alternatives is either delegable and 
non-delegable. Then, if any questions arise regarding work practices, 
we will work directly with permitting authorities to determine in which 
category the work practice in question falls. We will provide these 
examples and a more detailed explanation in forthcoming guidance on 
work practices. This guidance will also be useful to the Regional 
Offices in evaluating section 112(l) equivalency submittals that 
involve work practices.

B. Changes To Monitoring Frequency and Recordkeeping and Reporting

    Through discussions with stakeholders, we have recognized that the 
proposed rule was not clear enough regarding the status of delegation 
of the Administrator's authority to approve changes in monitoring 
frequency. In particular, there has been confusion regarding whether 
changes to monitoring frequency are associated with the 40 CFR Part 63 
General Provisions authority either: (1) To approve changes that the 
Administrator may make to monitoring under Sec. 63.8(f) or (2) to waive 
or make changes that the Administrator may make to recordkeeping and 
reporting under Sec. 63.10(f).
    Section 63.10(b) states that recordkeeping involves maintaining 
``files of all information required * * * recorded in a form suitable 
and readily available for expeditious inspection and review,'' (which 
is not the kind of requirement that we expect should be modified by us 
or you), but does not discuss the frequency of recording monitoring 
measurements. Because the concepts of recordkeeping and reporting are 
separate from the concept of monitoring frequency, it is appropriate to 
allow delegation of authority to approve certain changes to 
recordkeeping and reporting under Sec. 63.10(f). (However, we note that 
recordkeeping and reporting requirements under Title V of the Act must 
still apply to all major sources--i.e., that the records must be kept 
for 5 years and reports must be submitted at least twice per year.) If 
a MACT standard requires more frequent reporting than twice per year 
for major sources, this may be modified to no less than twice per year, 
on a site-specific basis, when justified, as discussed below.
    The issue of monitoring frequency is appropriately addressed under 
Sec. 63.8(f). In other stationary source rules and guidance (including 
those for 40 CFR Part 64, the Compliance Assurance Monitoring Rule), we 
clearly state that we consider monitoring frequency one of the four 
critical elements of monitoring. (These elements are indicator(s) of 
performance, measurement technique, monitoring frequency, and averaging 
time.) Because of the potential ambiguity of this issue in our 
proposal, we are making revisions to the final rule to clarify this. 
Also, we will be proposing to add a definition of monitoring to 40 CFR 
63.2 (the 40 CFR Part 63 General Provisions) to include the four 
critical elements of monitoring. Our other revisions are discussed 
below.
    The stakeholder discussions have also revealed the need for us to 
provide additional specificity on the types of changes to monitoring 
frequency that would be considered major, intermediate, and minor for 
the purposes of delegation of approval/disapproval authority to S/L/Ts 
(see Sec. 63.91). We are providing this specificity by revising the 
definitions for major, intermediate, and minor changes to monitoring in 
Sec. 63.90(a) to include specific examples of monitoring frequency 
changes. Major changes involving a continuous emission monitoring 
system (CEMS), continuous opacity monitoring system (COMS), predictive 
emission monitoring system (PEMS), or continuous parameter monitoring 
system (CPMS) as well as monitoring frequency changes involving leak 
detection and repair protocols (LDAR) will not be delegated to S/L/Ts. 
The categorization as major changes for changes in monitoring frequency 
for these monitoring approaches does not distinguish between those with 
an enforceable emission or operating limit and those with only a 
corrective action and reporting obligation.
    The S/L/Ts at the discretion of the EPA Regional Office, may be 
delegated the authority to approve minor and/or intermediate changes to 
monitoring. Changes to monitoring frequency that fall into the category 
of intermediate changes to monitoring are those that are associated 
with non-continuous monitoring such as periodic parameter recordings, 
visual inspections of design features or work practices, and periodic 
portable analyzer emission checks. An increase in frequency for any 
type of data collection will be considered a minor change to 
monitoring. Indeed, you need not have received delegation of this 
authority to require an increase in frequency of monitoring, 
recordkeeping, or reporting, since that increase in requirements 
continues to satisfy the frequency required by the MACT standard. Such 
a more frequent requirement does not become Federally enforceable, 
without delegation, unless it is incorporated into a Federally 
enforceable instrument like a Title V permit or Federally enforceable 
state operating permit.
    Consistent with all alternative test method and monitoring decision 
making, approvals of changes to monitoring frequency must meet the 
criteria in our existing guidance, the February 26, 1993, memorandum 
from Gilbert H. Wood to the EPA's Emission Measurement Branch entitled 
``Handling Requests for Minor/Major Modifications/Alternative Testing 
and Monitoring Methods or Procedures Approvals and Disapprovals.'' 
Specifically, the delegated authority or EPA must make a determination 
that ``the change in the testing or monitoring method or procedure will 
provide a determination of compliance status at the same or higher 
stringency as the method or procedure specified in the applicable 
regulation.''
    Regarding changes in monitoring frequency, we believe a special 
case that merits discussion here is the request for a decrease in 
monitoring frequency

[[Page 55823]]

supported with a significant amount of data demonstrating ongoing 
compliance with the applicable requirement. This type of data support 
along with the consideration of other factors may be adequate to 
justify the decrease in frequency. The amount of data we would consider 
adequate for this type of justification is 2 to 3 years worth with few 
or no exceedances of any associated applicable requirement or 
associated performance indicator, as well as steady-state operations. 
Other factors to be considered are (1) the compliance margin at which 
the source is operating and (2) the likelihood of continued steady-
state operation of the control or process being monitored. A reasonable 
margin of compliance would be monitored results considerably below the 
applicable requirement or some such similar record relative to another 
type of performance indicator. The likelihood and degree of control 
failure versus the time period over which failure may occur should also 
be considered in relation to the monitoring frequency.
    Once the delegated authority has determined that a decrease in 
frequency is reasonable, then the delegated authority must decide the 
magnitude of the decrease. Examples of acceptable step decreases might 
be from once per hour to once per shift, from once per shift to daily, 
from daily to weekly, or from weekly to monthly.
    We believe that sources with significant data demonstrating 
operation well within the monitoring limit may merit a decrease in 
monitoring frequency; conversely, we believe that sources with 
significant or repeated operation exceeding the monitoring limit should 
be required to monitor more frequently. We expect S/L/Ts that have been 
delegated the authority to approve minor and intermediate changes to 
monitoring to require more frequent monitoring under these 
circumstances. Accordingly, the Regions will establish a requirement in 
their memoranda of agreement that delegated S/L/Ts periodically submit 
documentation of the cases where they have required more frequent 
monitoring.
    As noted previously, commenters had requested that we consider 
delegating S/L/Ts the authority to approve certain changes to 
recordkeeping and reporting. We have determined that this is 
appropriate and have added definitions of major and minor changes to 
Sec. 63.90(a). Recordkeeping and reporting changes are delegable so 
long as they are minor, as defined. We do not intend to delegate that 
all recordkeeping or reporting be waived, except in the circumstance 
where a compliance extension for the installation of controls has been 
granted. We do not allow alternative recordkeeping or reporting to 
essentially waive these requirements by so severely altering the 
contents of reports or records that their usefulness has been 
compromised.
    We are willing to delegate the authority to approve small changes 
to recordkeeping and reporting where good cause if shown. By ``good 
cause'' we mean instances such as a facility shutdown, when there are 
no emissions, so it would make no sense to maintain the records of 
monitoring data, when all values would be zero, or some other 
meaningless value. We do not expect many changes to recordkeeping or 
reporting as we do not foresee many instances in which changes to the 
frequency of monitoring would necessitate a change to recordkeeping or 
reporting. Merely because a less frequent monitoring schedule has been 
approved, as cited in the example above, will not always, or even 
frequently, necessitate a change in recordkeeping or reporting. We 
consider any change to the record retention period, or the duty to 
maintain records on site and readily available, a major change which is 
not delegable.
    Consistent with our previous guidance in the July 10, 1998, memo 
from John S. Seitz on ``Delegation of 40 CFR Part 63 General Provisions 
Authorities to State and Local Air Pollution Control Agencies,'' 
delegated authorities must forward copies of any approved intermediate 
changes to both monitoring and test methods to the Emission Measurement 
Center of the Emissions Monitoring and Analysis Division via mail or 
facsimile at the address below:

Chief, Source Measurement and Technology Group, U.S. EPA (MD-19), 
Research Triangle Park, NC 27711, Facsimile Telephone Number: (919) 
541-1039

    Similarly, you must maintain a record of any alternatives to 
recordkeeping and reporting that you have approved and must report 
semi-annually, or more frequently, as may be agreed upon by the Region 
and you, to your Regional office providing a copy of this record or 
other similar summary. A copy must also be forwarded to:

Chief, Stationary Source Enforcement Branch, U.S. EPA (Mail Code 
2242A), Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, 
DC 20460, Facsimile Number: (202)564-0068

    We reserve the right to review or disapprove the MRR alternatives 
you submit. If the Region disapproves your approved alternative, it is 
not retroactive for enforcement. That is, the source is not in jeopardy 
or in violation for the period of time that they acted in accordance 
with what you approved. Rather the source must, after notice of EPA's 
disapproval, revert to whatever MRR requirement they had before you 
approved the alternative. (That could be the original MACT requirement, 
your Subpart E alternative rule or permit or other mechanism, or, if 
there was one, a non-disapproved alternative that you approved 
previously.)
    As an example of the last suggestion, if you had previously 
approved a less frequent monitoring requirement, such that the source 
must monitor every two hours instead of every one hour, and EPA had 
approved or had not disapproved of that alternative, then the source 
could legally monitor every two hours. If you subsequently approved 
less frequent monitoring to every eight hours, but EPA disapproved that 
alternative, the source must, after it receives notice of EPA's 
disapproval, revert to monitoring no less frequently than every 2 
hours. Your sources should not feel that they risk enforcement 
penalties unless EPA approves the alternative. Rather they should act 
in keeping with your approved alternative safe in the knowledge that 
until such time as the alternative MRR is disapproved, it is completely 
legal to follow your approved alternative.
    We wish to retain this flexible mechanism for disapproving 
potential S/L/T MRR alternatives. This will ensure adequate compliance 
measures without the need to withdraw your entire program on the basis 
of one minor MRR disagreement. This is in keeping with the flexible 
withdrawal options discussed in section III.F.
    We will use this information on approved changes to monitoring, 
test methods, and recordkeeping and reporting to compile databases of 
decisions that will be accessible for reference in making future 
decisions. The EPA Regional offices will ensure that: (1) Initial 
approvals made by an S/L/T of intermediate changes to monitoring, 
testing, recordkeeping, and reporting are evaluated, and (2) S/L/T-
issued intermediate changes to test methods and monitoring, all EPA 
Regional office-issued intermediate changes to test methods, and all 
alternatives to recordkeeping and reporting are forwarded to the 
addresses above. We will continue to post EPA Regional office approvals 
of changes in monitoring, recordkeeping, and reporting on the 
Applicability Determination Index (ADI), which can

[[Page 55824]]

be found at http://es.epa.gov/oeca/eptdd/adi.html. For electronic file 
transfer procedures for ADI updates, please contact Belinda Breidenbach 
in the Office of Compliance at 202-564-7022.
    The EPA Regional Offices will provide firm guidelines for decision 
making in the process of delegating Part 63 General Provisions 
authorities to the S/L/T. More specifically, delegation documents can 
draw on the language of this preamble; the July 10, 1998, memo from 
John S. Seitz, the February 26, 1993, memorandum from Gilbert H. Wood, 
and other guidance materials to provide S/L/T with guidance to ensure 
consistency in approvals.

C. Equivalency for S/L/T Requirements Established Under New Source 
Review/Prevention of Significant Deterioration (NSR/PSD)

    Several commenters pointed out that we should be able to accept 
SIP-approved rules and associated compliance and enforcement measures 
without the need for demonstrating equivalency with the compliance and 
enforcement measures in the MACT standard. We cannot legally allow a 
blanket acceptance of SIP-approved rules and/or other S/L/T rules 
without adequate process under subpart E to ensure equivalence with the 
MACT standard. Furthermore, it is our experience that SIP-approved 
rules are not always equivalent to MACT standards. In some cases, SIP-
approved rules exempt some compounds, such as methylene chloride, that 
are regulated by MACT standards. Nevertheless, we are committed to 
making every effort to expedite the review process when standards set 
under NSR are submitted. For example, we have shortened review time 
frames, expanded the list of approvable mechanisms, and provided 
additional flexibility in the subpart E equivalency process. We have 
also expanded the list of approvable mechanisms under the Sec. 63.92 
rule adjustment process to include Federal NSR permits, because we 
agree with the commenters that they can be clearly more stringent than 
MACT. In these cases, rule adjustment offers the most appropriate and 
timely option. In some cases, however, the NSR finding may not clearly 
be more stringent. For example, if the NSR finding adopts some novel 
technology with significantly different MRR needed to ensure 
compliance, the rule adjustment mechanism may be insufficient to ensure 
the needed equivalency. In this case, the S/L/T should consider either 
rule substitution or permit streamlining. Again, we will commit to 
making every effort to expedite the review process.

D. Title V Permit Renewal Issues

    Commenters suggested specific changes to part 70 to ensure the 
expeditious implementation of alternative requirements under subpart E 
or subpart A (General Provisions). These suggested changes include:
     For sources with an approved part 70 permit addressing the 
Federal standard, alternative requirements approved using the permit or 
permit template mechanism should be incorporated into the part 70 
permit as an administrative amendment, and alternative requirements 
approved using the rule equivalency mechanism should be incorporated 
into the part 70 permit as a minor amendment.
     For sources without an approved part 70 permit, approved 
alternative requirements should be incorporated into the permit in the 
same way as any other Federal NESHAP requirement; however, we should 
ensure that the review and approval of the alternative requirement is 
limited to whether the permit condition accurately reflects the 
alternative requirement approved under subpart E.
    We interpret the comments to recommend certain changes to include 
in the part 70 revisions that we are developing, rather than how we 
should interpret the current part 70 rule. Generally, we expect to take 
the approach in the part 70 revisions that the part 70 permit process 
need not require our review and public review if a prior process has 
already provided it. Accordingly, if alternative part 63 requirements 
have been reviewed and approved by us by the start of the permit 
revision process, then the part 70 revisions would likely incorporate 
the alternative requirements into the permit through one of the permit 
revision processes without our review and public review, i.e., the 
administrative, notice-only, or de minimis revision tracks. Conversely, 
if the alternative part 63 requirements have not been reviewed and 
approved prior to the permit process, and significant judgment would be 
involved in determining if the alternative requirements are consistent 
with promulgated part 63 requirements, then the part 70 revisions may 
require one of the permit revision tracks that have EPA and public 
review, that is, either the significant or minor revision tracks. In 
developing the final part 70 revisions, we plan to address the 
incorporation of alternative part 63 requirements into the permit, 
consistent with the approach described above.

V. 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 November 
13, 2000. 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.

VI. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-97-29, the same docket 
as the proposed rule, and a copy of today's final rule will be included 
in the docket. The principal 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 rule.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB), and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

[[Page 55825]]

    Although this final rule will not have an annual effect on the 
economy of $100 million or more, and therefore is not considered 
economically significant, we have determined that this rule is a 
``significant regulatory action'' because it contains novel policy 
issues. This action was submitted to OMB for review as required by 
Executive Order 12866. All written comments from OMB to the EPA and any 
written EPA response to any of those comments are included in the 
docket listed at the beginning of this notice under ADDRESSES. In 
addition, consistent with Executive Order 12866, the EPA consulted 
extensively with     S/L/Ts, the parties that will be most directly 
affected by this rule. Moreover, the Agency has also sought involvement 
from industry and public interest groups as described herein.

C. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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 Section 6 of 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. The 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 final rule does not have federalism implications. It 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, because it amends a voluntary 
program. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule. Nevertheless, in developing this rule, EPA 
consulted with States to enable them to provide meaningful and timely 
input in the development of this rule. Discussion of the concerns 
raised by States and EPA's responses to those concerns is provided 
throughout this preamble.

D. Consultation and Coordination With Indian Tribal Governments Under 
Executive Order 13084

    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. Because this rule implements 
a voluntary program, it imposes no direct compliance costs on these 
communities. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

E. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
contained in this rule under the provisions of the Paperwork Reduction 
Act of 1980, 44 U.S.C. 3501 et seq., and has assigned OMB control 
number 2060-0264. We have subsequently prepared a request (ICR 1643.04, 
which contains the basis for the burden estimates below) to extend the 
collection for an additional 3 years. You may get a copy of the 
Information Collection Request (ICR) from Sandy Farmer by mail at OPPE 
Regulatory Information Division, U.S. Environmental Protection Agency 
(2822A), Ariel Rios Building, 1200 Pennsylvania Avenue, Northwest, 
Washington, DC 20460, by email at [email protected], or by calling 
(202)260-2740.
    This information is needed and used by us to determine if the S/L/T 
government submitting an application has met the criteria established 
in the 40 CFR Part 63, subpart E amended rule. This information is 
necessary for the Administrator to determine the acceptability of 
approving the affected entity's rules or programs in lieu of the 
Federal rules or programs. The collection of information is authorized 
under 42 U.S.C. 7401-7671q.
    The total 3-year burden of the collection is estimated at 390,600 
hours. The estimated average annual burden is 130,200 hours, 1,025 
hours per respondent, and 29 hours per response. We have estimated that 
127 State/local agencies will request delegation of 35 MACT standards 
each using the various delegation options. In addition, the 127 
agencies will use the accidental release prevention program on a one-
time only basis during the first two years of the collection. The cost 
burden of this response is limited to the labor costs of agency 
personnel to comply with the notification, reporting, and record 
keeping elements of this rule. These costs are estimated at $16.0 
million for the 3-year collection period and $5.3 million on average 
for each year of the collection period. There are no capital, startup, 
or operation costs associated with this rule.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, disclose, or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions, process and maintain information, and disclose 
and provide information; to adjust the existing ways to comply with any 
previously applicable instructions and requirements; to train personnel 
to respond to a collection of information; to search existing data 
sources; to complete and review the collection of information; and to 
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 current 
OMB control number. The OMB control numbers for EPA's regulations are 
listed in 40 CFR part 9 and 48 CFR chapter 15.
    We are amending the table in 40 CFR part 9 of currently approved 
ICR control numbers issued by OMB for various regulations to revise the 
list of information requirements contained in

[[Page 55826]]

this final rule. This amendment updates the table to list the 
information requirements being promulgated today.
    We will continue to present OMB control numbers in a consolidated 
table format to be codified in 40 CFR part 9 of the Agency's 
regulations, and in each CFR volume containing EPA regulations. The 
table lists the section numbers with reporting and recordkeeping 
requirements, and the current OMB control numbers. This listing of the 
OMB control numbers and their subsequent codification in the CFR 
satisfy the requirements of the Paperwork Reduction Act (44 U.S.C. 
3501, et seq.) and OMB's implementing regulations at 5 CFR part 1320.

F. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare 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 organizations, 
and small governmental jurisdictions.
    The EPA believes that there will be little or no impact on small 
entities as a result of the promulgation of these rule revisions. State 
and local governments are the only entities affected by this action and 
EPA expects that most or all of the governments which would have the 
authority to accept delegation under section 112(l) of the Act are 
those whose populations exceed 50,000 persons and are thus, not 
considered ``small.'' Furthermore, this final rule revision adds 
additional flexibility to the existing rule for State and local 
governments and therefore does not impose new burdens. Accordingly, 
because few or none of the affected entities are expected to be small 
entities and because the regulatory impacts will be insignificant, I 
hereby certify that this rule will not have a significant economic 
impact on a substantial number of small entities.

G. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on S/L/T governments and the 
private sector. Under section 202 of the UMRA, we generally must 
prepare a written statement, including a cost-benefit analysis, for 
proposed and final rules with ``Federal mandates'' that may result in 
expenditures to S/L/T governments, in the aggregate, or to the private 
sector of $100 million or more in any 1 year. Before promulgating an 
EPA rule for which a written statement is needed, section 205 of the 
UMRA generally requires us to identify and consider a reasonable number 
of regulatory alternatives and adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives 
of the rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows us to 
adopt an alternative other than the least costly, most cost-effective, 
or least burdensome alternative if the Administrator publishes with the 
final rule an explanation why that alternative was not adopted. Before 
we establish any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, we 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for S/L/T governments or the 
private sector. Because the rule is estimated to result in the 
expenditure by S/L/T governments of significantly less than $100 
million in any 1 year, we have not prepared a budgetary impact 
statement or specifically addressed the selection of the least costly, 
most effective, or least burdensome alternative. Because small 
governments will not be significantly or uniquely affected by this 
rule, we are not required to develop a plan with regard to small 
governments. Moreover, this action amends a rule that is voluntary for 
S/L/T governments, so it does not impose any mandates on those 
entities. Therefore, the requirements of the Unfunded Mandates Reform 
Act do not apply to this section. Nonetheless, the EPA has encouraged 
significant involvement by State and local governments as detailed 
throughout this preamble.

H. Protection of Children From Environmental Health Risks and Safety 
Risks Under Executive Order 13045

    Executive Order 13045 applies to any rule that EPA determines (1) 
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 
reasonable alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because it is not an economically 
significant regulatory action as defined by Executive Order 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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs the Agency to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards 
(VCS).
    This rule does not involve technical standards. Therefore, we are 
not considering the use of any VCS.
    The section 112(l) rule is merely a procedural screen through which 
substantive air toxics standards are delegated and is not susceptible 
to the use of VCS. If any of the Federal air toxics standards delegated 
through section 112(l) have VCS, then the section 112(l) rule will 
assure that the comparable S/L/T standard has equivalent requirements. 
The section 112(l) rule itself, however, is not a vehicle for the 
application of VCS.

J. 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

[[Page 55827]]

copy of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The 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).

VII. Statutory Authority.

    The statutory authority for this action is provided by sections 
101, 112, 114, 116, and 301 of the Act as amended (42 U.S.C. 7401, 
7412, 7414, 7416, and 7601). This rulemaking is also subject to section 
307(d) of the Act (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 9

    Environmental protection, reporting and recordkeeping requirements.

40 CFR Part 63

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

    Dated: August 30, 2000.
Carol M. Browner,
Administrator.

Appendix 1 to Preamble

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

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. Section 9.1 is amended by removing entry ``63.91-63.96'' and 
adding ``63.91-63.97'' under the indicated heading to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

    40 CFR citation OMB Control No.
National Emission Standards for Hazardous Air Pollutants for Source 
Categories
* * * * *
63.91-63.97 2060-0264
* * * * *

PART 63--[AMENDED]

    1. The \3\ authority citation for part 63 continues to read as 
follows:
---------------------------------------------------------------------------

    \3\ The ICRs referenced in this section of the table encompass 
the applicable general provisions contained in 40 CFR part 63, 
subpart A, which are not independent information collection 
requirements.

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

Subpart E--[Amended]

    2. Part 63 is amended by revising Secs. 63.90-63.97 of subpart E to 
read as follows:


Sec. 63.90  Program overview.

    The regulations in this subpart establish procedures consistent 
with section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401-7671q). 
This subpart establishes procedures for the approval of State rules, 
programs, or other requirements such as permit terms and conditions to 
be implemented and enforced in place of certain otherwise applicable 
section 112 Federal rules, emission standards, or requirements 
(including section 112 rules promulgated under the authority of the Act 
prior to the 1990 Amendments to the Act). The authority to implement 
and enforce section 112 Federal rules as promulgated without changes 
may be delegated under procedures established in this subpart. In this 
process, States may seek approval of a State mechanism for receiving 
delegation of existing and future unchanged Federal section 112 
standards. This subpart clarifies which part 63, subpart A General 
Provisions authorities can be delegated to States. This subpart also 
establishes procedures for the review and withdrawal of section 112 
implementation and enforcement authorities delegated through this 
subpart. This subpart also establishes procedures for the approval of 
State rules or programs to establish limitations on the potential to 
emit pollutants listed in or pursuant to section 112(b) of the Act.
    (a) Definitions. The following definitions apply to this subpart.
    Alternative requirements means the requirements, rules, permits, 
provisions, methods, or other enforceable mechanisms that a State 
submits for approval under this subpart or subpart A and, after 
approval, replaces the otherwise applicable Federal section 112 
requirements, provisions, or methods.
    Applicability criteria means the regulatory criteria used to define 
all affected sources subject to a specific section 112 rule.
    Approval means a determination by the Administrator that a State 
rule, program, or requirement meets the criteria of Sec. 63.91 and the 
additional criteria of either Sec. 63.92, Sec. 63.93, Sec. 63.94, or 
Sec. 63.97 as appropriate. For accidental release prevention programs, 
the criteria of Sec. 63.95 must be met in addition to the criteria of 
Sec. 63.91. This is considered a ``full approval'' for the purposes of 
this subpart. Partial approvals may also be granted as described in 
this subpart. Any approved requirements become applicable requirements 
under Sec. 70.2 of this chapter.
    Compliance and enforcement measures means requirements relating to 
compliance and enforcement, including but not necessarily limited to 
monitoring methods and procedures, recordkeeping, reporting, plans, 
inspection, maintenance, and operation requirements, pollution 
prevention requirements, noticing, field inspections, entry, sampling, 
or accidental release prevention oversight.
    Intermediate change to monitoring means a modification to federally 
required monitoring involving ``proven technology'' (generally accepted 
by the scientific community as equivalent or better) that is applied on 
a site-specific basis and that may have the potential to decrease the 
stringency of the associated emission limitation or standard. Though 
site-specific, an intermediate change may set a national precedent for 
a source category and may ultimately result in a revision to the 
federally required monitoring. Examples of intermediate changes to 
monitoring include, but are not limited to:
    (1) Use of a continuous emission monitoring system (CEMS) in lieu 
of a parameter monitoring approach;
    (2) Decreased frequency for non-continuous parameter monitoring or 
physical inspections;
    (3) Changes to quality control requirements for parameter 
monitoring; and
    (4) Use of an electronic data reduction system in lieu of manual 
data reduction.
    Intermediate change to test method means a within-method 
modification to a federally enforceable test method involving ``proven 
technology'' (generally accepted by the scientific community as 
equivalent or better) that is applied on a site-specific basis and that 
may have the potential to decrease the stringency of the associated 
emission limitation or standard. Though site-specific, an intermediate 
change may set a national precedent for a source category and may 
ultimately result in a revision to the federally enforceable test 
method. In order to be approved, an intermediate change must be 
validated according to EPA Method 301 (Part 63, Appendix A) to 
demonstrate that it provides equal or improved accuracy and precision. 
Examples of intermediate changes to a test method include, but are not 
limited to:
    (1) Modifications to a test method's sampling procedure including 
substitution of sampling equipment that has been demonstrated for a 
particular sample matrix, and use of a different impinger absorbing 
solution;
    (2) Changes in sample recovery procedures and analytical 
techniques, such as changes to sample holding times and use of a 
different analytical finish with proven capability for the analyte of 
interest; and
    (3) ``Combining'' a federally required method with another proven 
method for application to processes emitting multiple pollutants.
    Level of control means the degree to which a rule, program, or 
requirement limits emissions or employs design, equipment, work 
practice, or operational standards, accident prevention, or other 
requirements or techniques (including a prohibition of emissions) for:

[[Page 55836]]

    (1)(i) Each hazardous air pollutant, if individual pollutants are 
subject to emission limitations, and
    (ii) The aggregate total of hazardous air pollutants, if the 
aggregate grouping is subject to emission limitations, provided that 
the rule, program, or requirement would not lead to an increase in risk 
to human health or the environment; and
    (2) Each substance regulated under part 68 of this chapter.
    (3) Test methods and associated procedures and averaging times are 
integral to the level of control.
    Local agency means a local air pollution control agency or, for the 
purposes of Sec. 63.95, any local agency or entity having 
responsibility for preventing accidental releases which may occur at a 
source regulated under part 68 of this chapter.
    Major change to monitoring means a modification to federally 
required monitoring that uses ``unproven technology or procedures'' 
(not generally accepted by the scientific community) or is an entirely 
new method (sometimes necessary when the required monitoring is 
unsuitable). A major change to monitoring may be site-specific or may 
apply to one or more source categories and will almost always set a 
national precedent. Examples of major changes to monitoring include, 
but are not limited to:
    (1) Use of a new monitoring approach developed to apply to a 
control technology not contemplated in the applicable regulation;
    (2) Use of a predictive emission monitoring system (PEMS) in place 
of a required continuous emission monitoring system (CEMS);
    (3) Use of alternative calibration procedures that do not involve 
calibration gases or test cells;
    (4) Use of an analytical technology that differs from that 
specified by a performance specification;
    (5) Decreased monitoring frequency for a continuous emission 
monitoring system, continuous opacity monitoring system, predictive 
emission monitoring system, or continuous parameter monitoring system;
    (6) Decreased monitoring frequency for a leak detection and repair 
program; and
    (7) Use of alternative averaging times for reporting purposes.
    Major change to recordkeeping/reporting means:
    (1) A modification to federally required recordkeeping or reporting 
that:
    (i) May decrease the stringency of the required compliance and 
enforcement measures for the relevant standards;
    (ii) May have national significance (e.g., might affect 
implementation of the applicable regulation for other affected sources, 
might set a national precedent); or
    (iii) Is not site-specific.
    (2) Examples of major changes to recordkeeping and reporting 
include, but are not limited to:
    (i) Decreases in the record retention for all records;
    (ii) Waiver of all or most recordkeeping or reporting requirements;
    (iii) Major changes to the contents of reports; or
    (iv) Decreases in the reliability of recordkeeping or reporting 
(e.g., manual recording of monitoring data instead of required 
automated or electronic recording, or paper reports where electronic 
reporting may have been required).
    Major change to test method means a modification to a federally 
enforceable test method that uses ``unproven technology or procedures'' 
(not generally accepted by the scientific community) or is an entirely 
new method (sometimes necessary when the required test method is 
unsuitable). A major change to a test method may be site-specific, or 
may apply to one or more sources or source categories, and will almost 
always set a national precedent. In order to be approved, a major 
change must be validated according to EPA Method 301 (Part 63, Appendix 
A). Examples of major changes to a test method include, but are not 
limited to:
    (1) Use of an unproven analytical finish;
    (2) Use of a method developed to fill a test method gap;
    (3) Use of a new test method developed to apply to a control 
technology not contemplated in the applicable regulation; and
    (4) Combining two or more sampling/analytical methods (at least one 
unproven) into one for application to processes emitting multiple 
pollutants.
    Minor change to monitoring means:
    (1) A modification to federally required monitoring that:
    (i) Does not decrease the stringency of the compliance and 
enforcement measures for the relevant standard;
    (ii) Has no national significance (e.g., does not affect 
implementation of the applicable regulation for other affected sources, 
does not set a national precedent, and individually does not result in 
a revision to the monitoring requirements); and
    (iii) Is site-specific, made to reflect or accommodate the 
operational characteristics, physical constraints, or safety concerns 
of an affected source.
    (2) Examples of minor changes to monitoring include, but are not 
limited to:
    (i) Modifications to a sampling procedure, such as use of an 
improved sample conditioning system to reduce maintenance requirements;
    (ii) Increased monitoring frequency; and
    (iii) Modification of the environmental shelter to moderate 
temperature fluctuation and thus protect the analytical 
instrumentation.
    Minor change to recordkeeping/reporting means:
    (1) A modification to federally required recordkeeping or reporting 
that:
    (i) Does not decrease the stringency of the compliance and 
enforcement measures for the relevant standards;
    (ii) Has no national significance (e.g., does not affect 
implementation of the applicable regulation for other affected sources, 
does not set a national precedent, and individually does not result in 
a revision to the recordkeeping or reporting requirement); and
    (iii) Is site-specific.
    (2) Examples of minor changes to recordkeeping or reporting 
include, but are not limited to:
    (i) Changes to recordkeeping necessitated by alternatives to 
monitoring;
    (ii) Increased frequency of recordkeeping or reporting, or 
increased record retention periods;
    (iii) Increased reliability in the form of recording monitoring 
data, e.g., electronic or automatic recording as opposed to manual 
recording of monitoring data;
    (iv) Changes related to compliance extensions granted pursuant to 
Sec. 63.6(i);
    (v) Changes to recordkeeping for good cause shown for a fixed short 
duration, e.g., facility shutdown;
    (vi) Changes to recordkeeping or reporting that is clearly 
redundant with equivalent recordkeeping/reporting requirements; and
    (vii) Decreases in the frequency of reporting for area sources to 
no less than once a year for good cause shown, or for major sources to 
no less than twice a year as required by title V, for good cause shown.
    Minor change to test method means:
    (1) A modification to a federally enforceable test method that:
    (i) Does not decrease the stringency of the emission limitation or 
standard;
    (ii) Has no national significance (e.g., does not affect 
implementation of the

[[Page 55837]]

applicable regulation for other affected sources, does not set a 
national precedent, and individually does not result in a revision to 
the test method); and
    (iii) Is site-specific, made to reflect or accommodate the 
operational characteristics, physical constraints, or safety concerns 
of an affected source.
    (2) Examples of minor changes to a test method include, but are not 
limited to:
    (i) Field adjustments in a test method's sampling procedure, such 
as a modified sampling traverse or location to avoid interference from 
an obstruction in the stack, increasing the sampling time or volume, 
use of additional impingers for a high moisture situation, accepting 
particulate emission results for a test run that was conducted with a 
lower than specified temperature, substitution of a material in the 
sampling train that has been demonstrated to be more inert for the 
sample matrix; and
    (ii) Changes in recovery and analytical techniques such as a change 
in quality control/quality assurance requirements needed to adjust for 
analysis of a certain sample matrix.
    Partial approval means that the Administrator approves under this 
subpart:
    (1) A State's legal authorities that fully meet the criteria of 
Sec. 63.91(d)(3)(ii)-(v), and substantially meet the criteria of 
Sec. 63.91(d)(3)(i) as appropriate; or
    (2) A State rule or program that meets the criteria of Secs. 63.92, 
63.93, 63.94, 63.95, or 63.97 with the exception of a separable portion 
of that State rule or program which fails to meet those criteria. A 
separable portion of a State rule or program is defined as a section(s) 
of a rule or a portion(s) of a program which can be acted upon 
independently without affecting the overall integrity of the rule or 
program as a whole.
    Program means, for the purposes of an approval under this subpart, 
a collection of State authorities, resources, and other requirements 
that satisfy the criteria of this subpart and subpart A.
    State agency, for the purposes of this subpart, includes State and 
local air pollution agencies, Indian tribes as defined in Sec. 71.2 of 
this chapter, and territories of the United States to the extent they 
are or will be delegated Federal section 112 rules, emission standards, 
or requirements.
    Stringent or stringency means the degree of rigor, strictness or 
severity a statute, rule, emission standard, or requirement imposes on 
an affected source as measured by the quantity of emissions, or as 
measured by parameters relating to rule applicability and level of 
control, or as otherwise determined by the Administrator.
    Title V operating permit programs means the part 70 permitting 
program and the delegated Indian tribal programs under part 70 of this 
chapter.
    (b) Local agency coordination with State and territorial agencies. 
Local agencies submitting a rule or program for approval under this 
subpart shall consult with the relevant State or Territorial agency 
prior to making a request for approval to the Administrator. A State or 
Territorial agency may submit requests for approval on behalf of a 
local agency after consulting with that local agency.
    (c) Tribal authority.
    A tribal authority may submit a rule or program under this subpart, 
provided that the tribal authority has received approval, under the 
provisions of part 49 of this chapter, for administering Federal rules 
under section 112 of the Act.
    (d) Authorities retained by the Administrator.
    (1) The following authorities will be retained by the Administrator 
and will not be delegated:
    (i) The authority to add or delete pollutants from the list of 
hazardous air pollutants established under section 112(b);
    (ii) [Reserved]
    (iii) [Reserved]
    (iv) The authority to add source categories to or delete source 
categories from the Federal source category list established under 
section 112(c)(1) or to subcategorize categories on the Federal source 
category list after proposal of a relevant emission standard;
    (v) The authority to revise the source category schedule 
established under section 112(e) by moving a source category to a later 
date for promulgation; and
    (vi) Any other authorities determined to be nondelegable by the 
Administrator.
    (2) Nothing in this subpart shall prohibit the Administrator from 
enforcing any applicable rule, emission standard or requirement 
established under section 112.
    (3) Nothing in this subpart shall affect the authorities and 
obligations of the Administrator or the State under title V of the Act 
or under regulations promulgated pursuant to that title.
    (e) Federally-enforceable requirements. All rules, programs, State 
or local permits, or other requirements approved under this subpart and 
all resulting part 70 operating permit conditions are enforceable by 
the Administrator and by citizens under the Act.
    (f) Standards not subject to modification or substitution. With 
respect to radionuclide emissions from licensees of the Nuclear 
Regulatory Commission or licensees of Nuclear Regulatory Commission 
Agreement States which are subject to part 61, subparts I, T, or W of 
this chapter, a State may request that the EPA approve delegation of 
implementation and enforcement of the Federal standard pursuant to 
Sec. 63.91, but no changes or modifications in the form or content of 
the standard will be approved pursuant to Sec. 63.92, Sec. 63.93, 
Sec. 63.94, or Sec. 63.97.
    (g) Selection of delegation options.
    (1) With the exception of paragraphs (g)(2) and (g)(3) of this 
section, States may only submit requests for approval of alternative 
requirements for a section 112 Federal rule, emission standard, or 
other requirement under a single delegation option under this subpart.
    (2) In the case of Sec. 63.94 submittals, if the identified sources 
in any source category comprise a subset of the sources in that 
category, the State must accept delegation under one other section of 
this subpart for the remainder of the sources in that category that are 
required to be permitted by the State under part 70 of this chapter.
    (3) If the Administrator partially approves the State request per 
Sec. 63.91(f), the State may submit a request for the remaining section 
112 rules, emission standards, or requirements in that category under 
another section of this subpart.


Sec. 63.91  Criteria for straight delegation and criteria common to all 
approval options.

    (a) Applicable approval criteria. A State must satisfy the criteria 
in paragraph (d) of this section for up-front approval to obtain 
delegation of the Federal section 112 rules, emission standards, or 
requirements. Once a State has demonstrated it meets the criteria in 
paragraph (d) of this section, it only needs to reference that 
demonstration and reaffirm that it still meets the criteria in future 
submittals. In addition, a State must satisfy the applicable approval 
criteria in Secs. 63.92, 63.93, 63.94, 63.95, or 63.97, as specified in 
the following paragraphs.
    (1) Unchanged Federal section 112 rules (``straight delegation''). 
To obtain approval of State programs to implement and enforce Federal 
section 112 rules as promulgated without changes (except for accidental 
release programs, described in paragraph (a)(4) of this section), only 
the criteria of paragraph (d) of this section must be met. This 
includes State requests for

[[Page 55838]]

one-time approval of their mechanism for taking delegation of future 
unchanged Federal section 112 rules, emission standards, and 
requirements as well as approval to implement and enforce unchanged 
Federal section 112 rules, emission standards, and requirements on a 
rule-by-rule basis.
    (2) State rules, programs, or requirements that are different from 
the Federal rule. To obtain approval under this subpart of a rule, 
program, or requirement that is different from the Federal section 112 
rule, emission standard, or requirement, the criteria of paragraph (d) 
of this section and the criteria of either Sec. 63.92, Sec. 63.93, 
Sec. 63.94, or Sec. 63.97 must be met.
    (3) Separable portions of State rules, programs, or requirements 
(``partial approval''). To obtain partial approval under this subpart, 
a State request must meet the criteria in paragraphs (d) and (f) of 
this section.
    (4) Programs under part 68 of this chapter, prevention of 
accidental releases. For approval of State rules or programs to 
implement and enforce the Federal accidental release prevention program 
in part 68 of this chapter, as promulgated without changes, the 
provisions of paragraph (d) of this section, and Sec. 63.95 must be 
met. For approval of alternative requirements, the provisions of either 
Sec. 63.92 or Sec. 63.93 must also be met.
    (5) Limits on the potential to emit section 112 pollutants. The 
Administrator may, under the authority of section 112(l) and this 
subpart, also approve a State program designed to establish limits on 
the potential to emit hazardous air pollutants listed pursuant to 
section 112 of the Act.
    (b) Approval process. When a State submits an initial request for 
approval, and except as otherwise specified under Sec. 63.92, 
Sec. 63.93, Sec. 63.94, Sec. 63.95, or Sec. 63.97, for a State's 
subsequent requests for approval, the approval process will be as shown 
in the following table:

------------------------------------------------------------------------
          If . . .                 Then . . .          And then . . .
------------------------------------------------------------------------
(1) A request for approval    the Administrator     if a request is
 is received.                  will review the       incomplete, the
                               request for           Administrator will
                               approval and          notify the State of
                               determine whether     the specific
                               the request is        deficient elements
                               complete according    of the request.
                               to the criteria in
                               this subpart.
(2) A complete request for    the Administrator     the Administrator
 approval is received.         will seek public      will require that
                               comment for a         comments be
                               minimum of 30 days    submitted
                               through a Federal     concurrently to the
                               Register notice on    State.
                               the State's request
                               for approval.
(3) A complete request for    the Administrator
 approval is received and      will either
 there has been a period of    approve, partially
 public comment.               approve, or
                               disapprove the
                               State rule,
                               program, or
                               requirement within
                               180 days of receipt
                               of a complete
                               request.
(4) The Administrator finds   the Administrator     the Administrator
 that all of the criteria of   will approve or       will publish it in
 this section are met and      partially approve     the Federal
 all of the criteria of Sec.   the State rule,       Register, and
  63.92, Sec.  63.93, Sec.     program, or           incorporate it
 63.94, Sec.  63.95, or Sec.   requirement.          directly or by
  63.97 are met.                                     reference, in the
                                                     appropriate subpart
                                                     of part 63.
                                                     Requirements
                                                     approved under Sec.
                                                      63.95 will be
                                                     incorporated
                                                     pursuant to
                                                     requirements under
                                                     part 68 of this
                                                     chapter.
(5) The Administrator finds   the Administrator     any resubmittal by a
 that any of the criteria of   will notify the       State of a request
 this section are not met,     State of any          for approval will
 or any of the criteria of     revisions or          be considered a new
 Sec.  63.92, Sec.  63.93,     additions necessary   request under this
 Sec.  63.94, Sec.  63.95,     to obtain approval.   subpart.
 or Sec.  63.97 under which
 the request for approval
 was made are not met.
(6) A State rule, program,    unless the State can  the Administrator
 or requirement is             revise the            will publish the
 disapproved.                  submittal to meet     disapproval in the
                               the criteria, the     Federal Register.
                               Administrator will
                               disapprove the
                               State rule,
                               program, or
                               requirement.
------------------------------------------------------------------------

    (c) Enforcement.
    (1) Approval of the alternative rule, program, or requirement 
delegates to the State the authority to implement and enforce the 
approved rule, program, or requirement in lieu of the otherwise 
applicable Federal section 112 rule, emission standard, or requirement.
    (i) The approved State rule, program, or requirement shall be 
federally enforceable from the date the Administrator signs the 
approval, with two exceptions. For States that implement unchanged 
Federal requirements (Sec. 63.91, straight delegation) via their title 
V permit program, and for States using the equivalency by permit option 
(63.94), the approved requirements shall be federally enforceable on 
the date of issuance or revision of the title V permit.
    (ii) In the case of a partial approval under paragraph (f)(1) of 
this section, only those authorities of the State request found to meet 
the requirements of this section will be approved; the remaining 
Federal authorities will be implemented and enforced by EPA.
    (iii) For partial approvals under paragraph (f)(3) of this section, 
only the portion of the State rule that is approved will be federally 
enforceable; the remainder continues to be State enforceable only.
    (2) When a State rule, program, or requirement is approved by the 
Administrator under this subpart, applicable title V permits shall be 
revised according to the provisions of Sec. 70.7(f) of this chapter.
    (i) Each permit shall specify the origin of the alternative 
conditions per Sec. 70.6 (a)(i) of this chapter and specifically 
reference the Federal Register notice or other EPA approval mechanism 
in the permit.
    (ii) When approved alternative requirements are incorporated in a 
permit, those requirements must be clearly identified and carried 
forward in any subsequent permit revisions or renewals. If the permit 
is not renewed, or if a revision or renewal does not carry the 
alternate requirements forward, then the Federal section 112 
requirements become the applicable requirements.
    (3) If approval is withdrawn under Sec. 63.96, all otherwise 
applicable Federal rules and requirements shall be enforceable in 
accordance with the compliance schedule established in the

[[Page 55839]]

withdrawal notice and relevant title V permits shall be revised 
according to the provisions of Sec. 70.7(f) of this chapter.
    (d) Criteria for approval.
    (1) Any request for approval under this subpart shall meet all 
section 112(l) approval criteria specified by the otherwise applicable 
Federal section 112 rule, emission standard, or requirement, all of the 
approval criteria of this section, and any additional approval criteria 
in Secs. 63.92, 63.93, 63.94, 63.95, or 63.97.
    (2) Once a State has satisfied the Sec. 63.91(d) up-front approval 
requirements, it only needs to reference the previous demonstration and 
reaffirm that is still meets the criteria for any subsequent 
equivalency submittals.
    (3) Interim or final title V program approval will satisfy the 
criteria set forth in Sec. 63.91(d), up-front approval criteria. 
Alternatively, the State must provide the following items in paragraphs 
(d)(3)(i) through (v) of this section to the Administrator:
    (i) A written finding by the State Attorney General (or for a local 
agency or tribal authority, the General Counsel with full authority to 
represent the local agency or tribal authority) that the State has the 
necessary legal authority to implement and to enforce the State rule, 
program, or requirement upon approval and to assure compliance by all 
sources within the State with each applicable section 112 rule, 
emission standard, or requirement. For full approval, the State must 
have the following legal authorities concerning enforcement and 
compliance assurance:
    (A) The State shall have enforcement authorities that meet the 
requirements of Sec. 70.11 of this chapter, except that tribal 
authorities shall have enforcement authorities that meet the 
requirements of part 49 of this chapter, the Tribal Air Rule.
    (B) The State shall have authority to request information from 
regulated sources regarding their compliance status.
    (C) The State shall have authority to inspect sources and any 
records required to determine a source's compliance status.
    (D) If a State delegates authorities to a local agency, the State 
must retain enforcement authority unless the local agency has 
authorities that meet the requirements of Sec. 70.11 of this chapter.
    (ii) A copy of State statutes, regulations, and requirements that 
contain the appropriate provisions granting authority to implement and 
enforce the State rule, program, or requirement upon approval.
    (iii) A demonstration that the State has adequate resources to 
implement and enforce all aspects of the rule, program, or requirement 
upon approval (except for authorities explicitly retained by the 
Administrator, such as those pursuant to paragraph (f) of this section 
or pursuant to part 49 of this chapter), which includes:
    (A) A description in narrative form of the scope, structure, 
coverage, and processes of the State program.
    (B) A description of the organization and structure of the agency 
or agencies that will have responsibility for administering the 
program.
    (C) A description of the agency's capacity to carry out the State 
program, including the number, occupation, and general duties of the 
employees.
    (iv) A schedule demonstrating expeditious State implementation of 
the rule, program, or requirement upon approval.
    (v) A plan that assures expeditious compliance by all sources 
subject to the State rule, program, or requirement upon approval. The 
plan should include, at a minimum, a complete description of the 
State's compliance tracking and enforcement program, including but not 
limited to inspection strategies.
    (4) If any of the State documents that are required to support an 
approval under this subpart are readily available to the EPA and to the 
public, the State may cite the relevant portions of the documents or 
indicate where they are available (e.g., by providing an Internet 
address) rather than provide copies.
    (e) Revisions. Within 90 days of any State amendment, repeal, or 
revision of any State rule, program, permit, or other requirement 
approved as an alternative to a Federal requirement or part of the 
authority necessary for the up-front approval, the State must provide 
the Administrator with a copy of the revised authorities and meet the 
requirements of either paragraph (e)(1) or (e)(2) of this section.
    (1)(i) The State shall provide the Administrator with a written 
finding by the State Attorney General (or for a local agency or tribal 
authority, the General Counsel with full authority to represent the 
local agency or tribal authority) that the State's revised legal 
authorities are adequate to continue to implement and to enforce all 
previously approved State rules and the approved State program (as 
applicable) and adequate to continue to assure compliance by all 
sources within the State with approved rules, the approved program, the 
approved permit, or other requirements (as applicable) and each 
applicable section 112 rule, emission standard, or requirement.
    (ii) If the Administrator determines that the written finding is 
not adequate, the State shall request approval of the revised rule, 
program, permit, or other requirement according to the provisions of 
paragraph (e)(2) of this section.
    (2) The State shall request approval under this subpart for any 
revised rule, program, permit, or other requirement.
    (i) If the Administrator approves the revised rule, program, 
permit, or other requirement, the revision will replace the previously 
approved rule, program, permit, or other requirement.
    (ii) If the Administrator disapproves the revised rule, program, 
permit, or other requirement, the Administrator will initiate 
procedures under Sec. 63.96 to withdraw approval of any previously 
approved rule, program, permit, or other requirement that may be 
affected by the revised authorities.
    (iii) Until such time as the Administrator approves or withdraws 
approval of a revised rule, program, permit, or other requirement, the 
previously approved rule, program, permit, or requirement remains 
federally enforceable and the revision is not federally enforceable.
    (3) If the EPA amends, or otherwise revises a promulgated section 
112 rule or requirement in a way that increases its stringency, the EPA 
will notify any State which has received delegation under this subpart 
of the need to revise their equivalency demonstration.
    (i) The EPA Regional Office will consult with the affected State(s) 
to set a time frame for the State(s) to submit a revised equivalency 
demonstration.
    (ii) The revised equivalency demonstration will be reviewed and 
approved or disapproved according to the procedures set forth in this 
section and Sec. 63.91, Sec. 63.92, Sec. 63.93, Sec. 63.94, Sec. 63.95, 
or Sec. 63.97, whichever are applicable.
    (f) Partial approval. The partial approval process under this 
subpart is described in the following table:

[[Page 55840]]



------------------------------------------------------------------------
          If . . .                 Then . . .             And . . .
------------------------------------------------------------------------
(1) A State's legal           the Administrator     The EPA will
 authorities submitted under   may grant a partial   continue to
 this subpart substantially    approval with the     implement and
 meet the requirements of      State's consent.      enforce those
 paragraph (d)(3)(i) of this                         authorities under
 section, but are not fully                          paragraph (d)(3)(i)
 approvable.                                         of this section
                                                     that are not
                                                     approved.
(2) Any of the other          the Administrator
 requirements in paragraphs    will disapprove the
 (d)(3)(ii)-(v) of this        submittal.
 section are not approvable.
(3) A rule, requirement, or   the Administrator     the Administrator
 program submitted under       may remove that       may then grant a
 this subpart meets the        separable portion     partial approval of
 requirements of Sec.          with the State's      the portion of the
 63.92, Sec.  63.93, Sec.      consent.              rule, requirement,
 63.94, Sec.  63.95, or Sec.                         or program that
  63.97 as appropriate, with                         meets the
 the exception of a                                  requirements of
 separable portion of that                           this subpart.
 rule, requirement, or
 program.
(4) the Administrator         the Administrator
 determines that there are     may disapprove the
 too many areas of             submittal in its
 deficiency or that            entirety.
 separating the
 responsibilities between
 Federal and State
 government would be too
 cumbersome and complex.
------------------------------------------------------------------------

    (g) Subpart A, Delegable authorities. A State may exercise certain 
authorities granted to the Administrator under subpart A, but may not 
exercise others, according to the following criteria:
    (1) A State may ask the appropriate EPA Regional Office to delegate 
any of the authorities listed as ``Category I'', in paragraph (g)(1)(i) 
of this section. The EPA Regional Office will delegate any such 
authorities at their discretion.
    (i) ``Category I'' shall consist of the following authorities:
Category I Authorities
(A) Section 63.1, Applicability Determinations
(B) Section 63.6(e), Operation and Maintenance Requirements--
Responsibility for Determining Compliance
(C) Section 63.6(f), Compliance with Non-Opacity Standards--
Responsibility for Determining Compliance
(D) Section 63.6(h), Compliance with Opacity and Visible Emissions 
Standards--Responsibility for Determining Compliance
(E) Sections 63.7(c)(2)(i) and (d), Approval of Site-Specific Test 
Plans
(F) Section 63.7(e)(2)(i), Approval of Minor Alternatives to Test 
Methods
(G) Section 63.7(e)(2)(ii) and (f), Approval of Intermediate 
Alternatives to Test Methods
(H) Section 63.7(e)(iii), Approval of Shorter Sampling Times and 
Volumes When Necessitated by Process Variables or Other Factors
(I) Sections 63.7(e)(2)(iv), (h)(2), and (h)(3), Waiver of Performance 
Testing
(J) Sections 63.8(c)(1) and (e)(1), Approval of Site-Specific 
Performance Evaluation (Monitoring) Test Plans
(K) Section 63.8(f), Approval of Minor Alternatives to Monitoring
(L) Section 63.8(f), Approval of Intermediate Alternatives to 
Monitoring
(M) Section 63.9 and 63.10, Approval of Adjustments to Time Periods for 
Submitting Reports
(N) Section 63.10(f), Approval of Minor Alternatives to Recordkeeping 
and Reporting

    (ii) The State must maintain a record of all approved alternatives 
to all monitoring, testing, recordkeeping, and reporting requirements 
and provide this list of alternatives to its EPA Regional Office at 
least semi-annually, or on a more frequent basis if requested by the 
Regional Office. The Regional Office may audit the State-approved 
alternatives and disapprove any that it determines are inappropriate, 
after discussion with the State. If changes are disapproved, the State 
must notify the source that it must revert to the original applicable 
monitoring, testing, recordkeeping, and/or reporting requirements 
(either those requirements of the original section 112 requirement, the 
alternative requirements approved under this subpart, or the previously 
approved site-specific alternative requirements). Also, in cases where 
the source does not maintain the conditions which prompted the approval 
of the alternatives to the monitoring, testing, recordkeeping, and/or 
reporting requirements, the State (or EPA Regional Office) must require 
the source to revert to the original monitoring, testing, 
recordkeeping, and reporting requirements, or more stringent 
requirements, if justified.
    (2)(i) A State may not ask the appropriate EPA Regional Office to 
delegate any of the authorities listed as ``Category II'' in paragraph 
(g)(2)(ii) of this section.
    (ii) ``Category II'' shall consist of the following authorities:
Category II Authorities
(A) Section 63.6(g), Approval of Alternative Non-Opacity Emission 
Standards
(B) Section 63.6(h)(9), Approval of Alternative Opacity Standards
(C) Sections 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to 
Test Methods
(D) Section 63.8(f), Approval of Major Alternatives to Monitoring
(E) Section 63.10(f), Approval of Major Alternatives to Recordkeeping 
and Reporting


Sec. 63.92  Approval of State requirements that adjust a section 112 
rule.

    Under this section a State may seek approval of State requirements 
that make pre-approved adjustments to a Federal section 112 rule, 
emission standard, or requirement that are unambiguously no less 
stringent than the Federal rule, emission standard, or requirement.
    (a) Approval process.
    (1) If the Administrator finds that the criteria of this section 
and the criteria of Sec. 63.91 are met, the Administrator will approve 
the State requirements, publish them in the Federal Register, and 
incorporate them, directly or by reference, in the appropriate subpart 
of part 63, without additional notice and opportunity for comment. 
Requirements approved under Sec. 63.95 will be incorporated pursuant to 
requirements under part 68 of this chapter.
    (2) If the Administrator finds that any one of the State 
adjustments to the Federal rule is in any way ambiguous with respect to 
the stringency of applicability, level of control, compliance and 
enforcement measures, or the compliance date for any affected source or 
emission point, the Administrator will either disapprove the

[[Page 55841]]

State request or consider the request under Sec. 63.93.
    (3) Within 60 days of receiving a complete request for approval 
under this section, the Administrator will either approve or disapprove 
the State request. If approved, the change will be effective upon 
signature of the Federal Register notice.
    (4) Requirements submitted for approval under this section shall 
include either title V permits, title V general permits, Federal new 
source review permits, or State rules. Permits must already be issued 
to be used under this section.
    (5) If the State uses a permit as the basis of alternative 
requirements under this section, the relevant permit terms and 
conditions must remain applicable to the source, even if the source 
takes steps that would otherwise release it from an obligation to have 
a permit.
    (b) Criteria for approval. Any request for approval under this 
section shall meet all of the criteria of this section and Sec. 63.91 
before approval. The State shall provide the Administrator with:
    (1) A demonstration that the public within the State has had 
adequate notice and opportunity to submit written comment on the State 
requirements, and
    (2) A demonstration that each State adjustment to the Federal rule 
individually results in requirements that:
    (i) Are unequivocally no less stringent than the otherwise 
applicable Federal rule with respect to applicability;
    (ii) Are unequivocally no less stringent than the otherwise 
applicable Federal rule with respect to level of control for each 
affected source and emission point;
    (iii) Are unequivocally no less stringent than the otherwise 
applicable Federal rule with respect to compliance and enforcement 
measures for each affected source and emission point; and
    (iv) Assure compliance by every affected source no later than would 
be required by the otherwise applicable Federal rule.
    (3) State adjustments to Federal section 112 rules which may be 
part of an approved rule under this section are:
    (i) Lowering a required emission rate or de minimis level;
    (ii) Adding a design, work practice, operational standard, emission 
rate or other such requirement;
    (iii) Increasing a required control efficiency;
    (iv) Increasing the frequency of required reporting, testing, 
sampling or monitoring;
    (v) Adding to the amount of information required for records or 
reports;
    (vi) Decreasing the amount of time to come into compliance;
    (vii) Subjecting additional emission points or sources within a 
source category to control requirements;
    (viii) Any adjustments allowed in a specific section 112 rule;
    (ix) Minor editorial, formatting, and other nonsubstantive changes; 
or
    (x) Identical alternative requirements previously approved by the 
Administrator in another local agency within the same State, if 
previously noticed that the alternative requirements would be 
applicable in the jurisdiction seeking approval under this section.


Sec. 63.93  Approval of State requirements that substitute for a 
section 112 rule.

    Under this section a State may seek approval of State requirements 
which differ from a Federal section 112 rule for which they would 
substitute, such that the State requirements do not qualify for 
approval under Sec. 63.92.
    (a) Approval process.
    (1) After receiving a complete request for approval under this 
section and making a preliminary determination on its equivalence, the 
Administrator will seek public comment on the State's request for a 
minimum of 30 days through a Federal Register notice. The Administrator 
will require that comments be submitted concurrently to the State.
    (2) If, after review of public comments and any State responses to 
comments submitted to the Administrator, the Administrator finds that 
the criteria of this section and the criteria of Sec. 63.91 are met, 
the Administrator will approve the State requirements under this 
section, publish the approved requirements in the Federal Register, and 
incorporate them directly or by reference, in the appropriate subpart 
of part 63. Requirements approved under Sec. 63.95 will be incorporated 
pursuant to requirements under part 68 of this chapter.
    (3) If the Administrator finds that any of the requirements of this 
section or Sec. 63.91 have not been met, the Administrator may 
partially approve or disapprove the State requirements. For any partial 
approvals or disapprovals, the Administrator will provide the State 
with the basis for the partial approval or disapproval and what actions 
that State can take to make the requirements approvable.
    (4) Requirements submitted for approval under this section shall 
include either: State rules, title V permits, title V general permits, 
Federal new source review permits, board and administrative orders, 
permits issued pursuant to permit templates, or State operating 
permits. Permits must already be issued to be used under this section.
    (5) If the State uses a permit as the basis of alternative 
requirements under this section, the relevant permit terms and 
conditions must remain applicable to the source even if it takes steps 
that would otherwise release it from an obligation to have a permit.
    (6) Within 180 days of receiving a complete request for approval 
under this section, the Administrator will either approve, partially 
approve, or disapprove the State request.
    (b) Criteria for approval. Any request for approval under this 
section shall meet all of the criteria of this section and Sec. 63.91 
before approval. The State shall provide the Administrator with 
detailed documentation that the State requirements contain or 
demonstrate:
    (1) Applicability criteria that are no less stringent than those in 
the respective Federal rule;
    (2) Levels of control (including associated performance test 
methods) and compliance and enforcement measures that result in 
emission reductions from each affected source or accidental release 
prevention program requirements for each affected source that are no 
less stringent than would result from the otherwise applicable Federal 
rule;
    (3) A compliance schedule that requires each affected source to be 
in compliance within a time frame consistent with the deadlines 
established in the otherwise applicable Federal rule; and
    (4) At a minimum, the approved State requirements must include the 
following compliance and enforcement measures. (For requirements 
addressing the accidental release prevention program, minimum 
compliance and enforcement provisions are described in Sec. 63.95.)
    (i) The approved requirements must include monitoring or another 
method for determining compliance.
    (ii) If a standard in the approved rule is not instantaneous, a 
maximum averaging time must be established.
    (iii) The requirements must establish an obligation to periodically 
monitor for compliance using the monitoring or another method 
established in paragraph (b)(4)(i) of this section sufficient to yield 
reliable data that are representative of the source's compliance 
status.


Sec. 63.94  Approval of State permit terms and conditions that 
substitute for a section 112 rule.

    Under this section a State may seek approval of State permit terms 
and

[[Page 55842]]

conditions to be implemented and enforced in lieu of specified existing 
and future Federal section 112 rules, emission standards, or 
requirements promulgated under section 112, for those affected sources 
permitted by the State under part 70 of this chapter. The State may not 
seek approval under this section for permit terms and conditions that 
implement and enforce part 68 requirements.
    (a) Up-front approval process.
    (1) A State must submit a request that meets the requirements of 
paragraph (b) of this section. After receiving a complete request for 
approval of a State program under this section and making a preliminary 
determination of equivalence, the Administrator will seek public 
comment for 21 days through a Federal Register notice. The 
Administrator will require that comments be submitted concurrently to 
the State.
    (2) If, after review of all public comments, and State responses to 
comments submitted to the Administrator, the Administrator finds that 
the criteria of paragraph (b) of this section and the criteria of 
Sec. 63.91 are met, the Administrator will approve the State program. 
The approved program will be published in the Federal Register and 
incorporated directly or by reference in the appropriate subpart of 
part 63.
    (3) If the Administrator finds that any of the criteria of 
paragraph (b) of this section or Sec. 63.91 have not been met, the 
Administrator will partially approve or disapprove the State program. 
For any partial approvals or disapprovals, the Administrator will 
provide the State with the basis for the partial approval or 
disapproval and what action the State can take to make the programs 
approvable.
    (4) Within 90 days of receiving a complete request for approval 
under this section, the Administrator will either approve, partially 
approve, or disapprove the State request.
    (b) Criteria for up-front approval. Any request for program 
approval under this section shall meet all of the criteria of this 
paragraph and Sec. 63.91 before approval. The State shall provide the 
Administrator with:
    (1)(i) To the extent possible, an identification of all specific 
sources in source categories listed pursuant to subsection 112(c) for 
which the State is seeking authority to implement and enforce 
alternative requirements under this section;
    (ii) If the identified sources in any source category comprise a 
subset of the sources in that category within the State's jurisdiction, 
the State shall request delegation for the remainder of the sources in 
that category that are required to be permitted by the State under part 
70 of this chapter. The State shall request delegation for the 
remainder of the sources in that category under another section of this 
subpart.
    (iii) Prior to submitting a request for one or more sources within 
a source category, the State shall consult with their EPA Regional 
Office regarding the number of sources in a category eligible for 
submittal under this option. Based on the Regional Office's decision, 
the State shall limit the number of sources for which it submits permit 
requirements.
    (2) To the extent possible, an identification of all existing and 
future section 112 emission standards for which the State is seeking 
authority under this section to implement and enforce alternative 
requirements.
    (3) If, after approval of the initial list of source categories 
identified in paragraph (b)(2) of this section, the State adds source 
categories for approval under this option, the State shall submit an 
addendum to the up-front approval submission, and identify the addition 
to the lists. The Administrator will follow the process outlined in 
paragraph (a) of this section for up-front approval.
    (4) A one-time demonstration that the State has an approved title V 
operating permit program and that the program permits the affected 
sources.
    (c) Approval process for alternative requirements.
    (1) After promulgation of a Federal section 112 rule, emission 
standard, or requirement for which the State has up-front approval to 
implement and enforce alternative requirements in the form of title V 
permit terms and conditions, the State shall provide the Administrator 
with pre-draft title V permit terms and conditions that are sufficient, 
in the Administrator's judgement, to allow the Administrator to 
determine equivalency. The permit terms and conditions shall reflect 
all of the requirements of the otherwise applicable Federal section 112 
rule, emission standard, or requirement.
    (2) [Reserved]
    (3) If, the Administrator receives a complete request and finds the 
pre-draft title V permit terms and conditions submitted by the State 
meet the criteria of paragraph (d), the Administrator will approve the 
State's alternative requirements (by approving the pre-draft permit 
terms and conditions) and notify the State in writing of the approval.
    (4) The Administrator may approve the State's alternative 
requirements on the condition that the State makes certain changes to 
the pre-draft title V permit terms and conditions and includes the 
changes in the complete pre-draft, proposed, and final title V permits 
for the affected sources. If the Administrator approves the alternative 
requirements on the condition that the State makes certain changes to 
them, the State shall make those changes or the alternative 
requirements will not be federally enforceable when they are included 
in the final permit, even if the Administrator does not object to the 
proposed permit. Until the Administrator affirmatively approves the 
State's alternative requirements (by approving the pre-draft permit 
terms and conditions) under this paragraph, and those requirements 
(permit terms) are incorporated into the final title V permit for any 
affected source, the otherwise applicable Federal emission standard(s) 
remain the federally enforceable and applicable requirements for that 
source.
    (5) If, after evaluating the pre-draft title V permit terms and 
conditions that were submitted by the State, the Administrator finds 
that the criteria of paragraph (d) of this section have not been met, 
the Administrator will disapprove the State's alternative requirements 
and notify the State in writing of the disapproval. In the notice of 
disapproval, the Administrator will specify the deficient or 
nonapprovable elements of the State's alternative requirements.
    (6) Within 90 days of receiving a complete request for approval 
under this paragraph, the Administrator will either approve, partially 
approve, or disapprove the State's alternative requirements.
    (7) Nothing in this section precludes the State from submitting 
alternative requirements in the form of title V permit terms and 
conditions or title V general permit terms and conditions for approval 
under this paragraph at the same time the State submits its program to 
the Administrator for up-front approval under paragraph (a) of this 
section, provided that the Federal emission standards for which the 
State submits alternative requirements are promulgated at the time of 
the State's submittal. If the Administrator finds that the criteria of 
Sec. 63.91 and the criteria of paragraphs (b) and (d) of this section 
are met, the Administrator will approve both the State program and the 
permit terms and conditions within 90 days of receiving a complete 
request for approval.
    (d) Approval criteria for alternative requirements.

[[Page 55843]]

    Any request for approval under this paragraph shall meet the 
following criteria. Taken together, the criteria in this paragraph 
describe the minimum contents of a State's equivalency demonstration 
for a promulgated Federal section 112 rule, emission standard, or 
requirement. To be approvable, the State submittal must contain 
sufficient detail to allow the Administrator to make a determination of 
equivalency between the State's alternative requirements and the 
Federal requirements. Each submittal of alternative requirements in the 
form of pre-draft permit terms and conditions for an affected source 
shall:
    (1) Identify the specific, practicably enforceable terms and 
conditions with which the source would be required to comply upon 
issuance, renewal, or revision of the title V permit. The State shall 
submit permit terms and conditions that reflect all of the requirements 
of the otherwise applicable Federal section 112 rule, emission 
standard, or requirement. The State shall identify for the 
Administrator the specific permit terms and conditions that contain 
alternative requirements.
    (2) Identify specifically how the alternative requirements in the 
form of permit terms and conditions are the same as or differ from the 
requirements in the otherwise applicable Federal section 112 rule, 
emission standard, or requirement (including any applicable 
requirements in subpart A or other subparts or appendices). The State 
shall provide this identification in a side-by-side comparison of the 
State's requirements in the form of permit terms and conditions and the 
requirements of the Federal section 112 rule, emission standard, or 
requirement.
    (3) The State shall provide the Administrator with detailed 
documentation that demonstrates that the alternative requirements meet 
the criteria specified in Sec. 63.93(b), i.e., that the alternative 
requirements are at least as stringent as the otherwise applicable 
Federal requirements.
    (e) Incorporation of permit terms and conditions into title V 
permits.
    (1) After approval of the State's alternative requirements under 
this section, the State shall incorporate the approved permit terms and 
conditions into title V permits for the affected sources. The State 
shall issue or revise the title V permits according to the provisions 
contained in Sec. 70.7 of this chapter. The alternative permit terms 
and conditions may substitute for the Federal requirements once they 
are contained in a valid title V permit. If the State does not write 
the alternative conditions, exactly as approved, into the permit, EPA 
may reopen the permit for cause per Sec. 70.7(g) of this chapter, and 
the delegation may not occur.
    (2) In the notice of pre-draft permit availability, and in each 
pre-draft, proposed, and final permit, the State shall indicate 
prominently that the permit contains alternative section 112 
requirements. In the notice of pre-draft permit availability, the State 
shall specifically solicit public comment on the alternative 
requirements. In addition, the State shall attach all documents 
supporting the approved equivalency determination for those alternative 
requirements to each pre-draft, proposed, and final permit.


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

    (a) A State submission for approval of a part 68 program must meet 
the criteria and be in accordance with the procedures of this section, 
Sec. 63.91, and, where appropriate, either Sec. 63.92 or Sec. 63.93.
    (b) The State part 68 program application shall contain the 
following elements consistent with the procedures in Sec. 63.91 and, 
where appropriate, either Sec. 63.92 or Sec. 63.93 of this subpart, for 
at least the chemicals listed in part 68 subpart F (``federally-listed 
chemicals'') that an approvable State Accidental Release Prevention 
program is regulating:
    (1)(i) A demonstration of the State's authority and resources to 
implement and enforce regulations that are no less stringent than the 
regulations of part 68, subparts A through G and Sec. 68.200 of this 
chapter; and
    (ii) A requirement that any source subject to the State's part 68 
program submit a Risk Management Plan (RMP) that reports at least the 
same information in the same format as required under part 68, subpart 
G of this chapter.
    (2) A State's RMP program may require reporting of information not 
required by the Federal program, and these requirements (like any other 
additional State requirements) will become federally enforceable upon 
approval. The extent to which EPA will be able to help a State collect 
and report additional information through EPA's electronic RMP 
submission system will be determined on a case-by-case basis.
    (3) Procedures for reviewing risk management plans and providing 
technical assistance to stationary sources, including small businesses.
    (4) A demonstration of the State's authority to enforce all part 68 
requirements must be made, including an auditing strategy that complies 
with Sec. 68.220 of this chapter.
    (c) A State may request approval for a program that covers all of 
the federally-listed chemicals (a ``complete program'') or a program 
covering less than all of the federally-listed chemicals (a ``partial 
program'') as long as the State takes delegation of the full part 68 
program for the federally-listed chemicals it regulates.


Sec. 63.96  Review and withdrawal of approval.

    (a) Submission of information for review of approval. (1) The 
Administrator may at any time request any of the following information 
to review the adequacy of implementation and enforcement of an approved 
rule or program and the State shall provide that information within 45 
days of the Administrator's request:
    (i) Copies of any State statutes, rules, regulations or other 
requirements that have amended, repealed or revised the approved State 
rule or program since approval or since the immediately previous EPA 
review;
    (ii) Information to demonstrate adequate State enforcement and 
compliance monitoring activities with respect to all approved State 
rules and with all section 112 rules, emission standards or 
requirements;
    (iii) Information to demonstrate adequate funding, staff, and other 
resources to implement and enforce the State's approved rule or 
program;
    (iv) A schedule for implementing the State's approved rule or 
program that assures compliance with all section 112 rules and 
requirements that the EPA has promulgated since approval or since the 
immediately previous EPA review,
    (v) A list of part 70 or other permits issued, amended, revised, or 
revoked since approval or since immediately previous EPA review, for 
sources subject to a State rule or program approved under this subpart.
    (vi) A summary of enforcement actions by the State regarding 
violations of section 112 requirements, including but not limited to 
administrative orders and judicial and administrative complaints and 
settlements.
    (2) Upon request by the Administrator, the State shall demonstrate 
that each State rule, emission standard or requirement applied to an 
individual source is no less stringent as applied than the otherwise 
applicable Federal rule, emission standard or requirement.
    (b) Withdrawal of approval of a state rule or program.
    (1) If the Administrator has reason to believe that a State is not 
adequately

[[Page 55844]]

implementing or enforcing an approved rule or program according to the 
criteria of this section or that an approved rule or program is not as 
stringent as the otherwise applicable Federal rule, emission standard 
or requirements, the Administrator will so inform the State in writing 
and will identify the reasons why the Administrator believes that the 
State's rule or program is not adequate. The State shall then initiate 
action to correct the deficiencies identified by the Administrator and 
shall inform the Administrator of the actions it has initiated and 
completed. If the Administrator determines that the State's actions are 
not adequate to correct the deficiencies, the Administrator will notify 
the State that the Administrator intends to withdraw approval and will 
hold a public hearing and seek public comment on the proposed 
withdrawal of approval. The Administrator will require that comments be 
submitted concurrently to the State. Upon notification of the intent to 
withdraw, the State will notify all sources subject to the relevant 
approved rule or program that withdrawal proceedings have been 
initiated.
    (2) Based on any public comment received and any response to that 
comment by the State, the Administrator will notify the State of any 
changes in identified deficiencies or actions needed to correct 
identified deficiencies. If the State does not correct the identified 
deficiencies within 90 days after receiving revised notice of 
deficiencies, the Administrator shall withdraw approval of the State's 
rule or program upon a determination that:
    (i) The State no longer has adequate authorities to assure 
compliance or re-sources to implement and enforce the approved rule or 
program, or
    (ii) The State is not adequately implementing or enforcing the 
approved rule or program, or
    (iii) An approved rule or program is not as stringent as the 
otherwise applicable Federal rule, emission standard or requirement.
    (3) The Administrator may withdraw approval for part of a rule, for 
a rule, for part of a program, or for an entire program.
    (4) Any State rule, program or portion of a State rule or program 
for which approval is withdrawn is no longer Federally enforceable. The 
Federal rule, emission standard or requirement that would have been 
applicable in the absence of approval under this will be the federally 
enforceable rule, emission standard or requirement.
    (i) Upon withdrawal of approval, the Administrator will publish an 
expeditious schedule for sources subject to the previously approved 
State rule or program to come into compliance with applicable Federal 
requirements. Such schedule shall include interim emission limits where 
appropriate. During this transition, sources must be operated in a 
manner consistent with good air pollution control practices for 
minimizing emissions.
    (ii) Upon withdrawal, the State shall reopen, under the provisions 
of Sec. 70.7(f) of this chapter, the part 70 permit of each source 
subject to the previously approved rules or programs in order to assure 
compliance through the permit with the applicable requirements for each 
source.
    (iii) If the Administrator withdraws approval of State rules 
applicable to sources that are not subject to part 70 permits, the 
applicable State rules are no longer Federally enforceable.
    (iv) If the Administrator withdraws approval of a portion of a 
State rule or program, other approved portions of the State rule or 
program that are not withdrawn shall remain in effect.
    (v) Any applicable Federal emission standard or requirement shall 
remain enforceable by the EPA as specified in section 112(l)(7) of the 
Act.
    (5) If a rule approved under Sec. 63.93 is withdrawn under the 
provisions of Sec. 63.96(b)(2) (i) or (ii), and, at the time of 
withdrawal, the Administrator finds the rule to be no less stringent 
than the otherwise applicable Federal requirement, the Administrator 
will grant equivalency to the previously approved State rule under the 
appropriate provisions of this part.
    (6) A State may submit a new rule, program or portion of a rule or 
program for approval after the Administrator has withdrawn approval of 
the State's rule, program or portion of a rule or program. The 
Administrator will determine whether the new rule or program or portion 
of a rule or program is approvable according to the criteria and 
procedures of Sec. 63.91 and either of Sec. Sec. 63.92, 63.93 or 63.94.
    (7) A State may voluntarily withdraw from an approved State rule, 
program or portion of a rule or program by notifying the EPA and all 
affected sources subject to the rule or program and providing notice 
and opportunity for comment to the public within the State.
    (i) Upon voluntary withdrawal by a State, the Administrator will 
publish a timetable for sources subject to the previously approved 
State rule or program to come into compliance with applicable Federal 
requirements.
    (ii) Upon voluntary withdrawal, the State must reopen and revise 
the part 70 permits of all sources affected by the withdrawal as 
provided for in this section and Sec. 70.7(f), and the Federal rule, 
emission standard, or requirement that would have been applicable in 
the absence of approval under this subpart will become the applicable 
requirement for the source.
    (iii) Any applicable Federal section 112 rule, emission standard or 
requirement shall remain enforceable by the EPA as specified in section 
112(l)(7) of the Act.
    (iv) Voluntary withdrawal shall not be effective sooner than 180 
days after the State notifies the EPA of its intent to voluntarily 
withdraw.


Sec. 63.97  Approval of a State program that substitutes for section 
112 requirements.

    Under this section, a State may seek approval of a State program to 
be implemented and enforced in lieu of specified existing or future 
Federal emission standards or requirements promulgated under section 
112. A State may not seek approval under this section for a program 
that implements and enforces part 68 requirements.
    (a) Up-front approval process.
    (1) After receiving a complete request for approval of a State 
program submitted under paragraph (b)(1) or (b)(2) of this section and 
making a preliminary determination on whether to approve it, the 
Administrator will seek public comment for 21 days through a Federal 
Register notice. At its discretion, the State may include in this 
submittal a request for approval of specific alternative requirements 
under paragraph (b)(3) of this section.
    (2) [Reserved]
    (3) The Administrator will require that comments be submitted 
concurrently to the State.
    (4) If, after review of all public comments and State responses to 
comments submitted to the Administrator, the Administrator finds that 
the criteria of paragraph (b) of this section and the criteria of 
Sec. 63.91 are met, the Administrator will approve or partially approve 
the State program. The approved State program will be published in the 
Federal Register and incorporated, directly or by reference, in the 
appropriate subpart of part 63.
    (5) If the Administrator finds that any of the criteria of 
paragraph (b) of this section or Sec. 63.91 have not been met, the 
Administrator will partially approve or disapprove the State program.
    (6) The Administrator will either approve, partially approve, or 
disapprove the State request:
    (i) Within 90 days after receipt of a complete request for approval 
of a State program submitted under paragraph (b)(1) or (b)(2) of this 
section; or
    (ii) Within 180 days after receipt of a complete request for 
approval of a State

[[Page 55845]]

program submitted under paragraphs (b)(1) or (b)(2) and paragraph 
(b)(3) of this section.
    (b) Criteria for up-front approval. Any request for program 
approval under this section shall meet all of the criteria of this 
paragraph and Sec. 63.91 before approval.
    (1) For every request for program approval under this section, the 
State shall provide the Administrator, to the extent possible, with an 
identification of the initial specific source categories listed 
pursuant to section 112(c) and an identification of all existing and 
future section 112 emission standards or other requirements for which 
the State is seeking authority to implement and enforce alternative 
requirements under this section.
    (2) If, after approval of the initial list of specific source 
categories identified in paragraph (b)(1) of this section, the State 
adds source categories for approval under this option, the State shall 
submit an addendum to the approval submission, and identify the 
addition to the list.
    (3) In addition, the State may provide the Administrator with one 
or more of the following program elements for approval under this 
paragraph:
    (i) Alternative requirements in State rules, regulations, or 
general permits (or other enforceable mechanisms) that apply 
generically to one or more categories of sources and for which the 
State seeks approval to implement and enforce in lieu of specific 
existing Federal section 112 emission standards or requirements. The 
Administrator may approve or disapprove the alternative requirements in 
these rules, regulations, or permits when approving or disapproving the 
State's up-front submittal under this paragraph. After approval of the 
alternative generic rules, regulations or general permits, and after 
new Federal emission standards or requirements are promulgated, the 
State may extend the applicability of approved generic alternative 
requirements to additional source categories by repeating the approval 
process specified in paragraph (a) of this section. To be approvable, 
any request for approval of generic alternative requirements during the 
up-front approval process shall meet the criteria in paragraph (d) of 
this section.
    (ii) A description of the mechanisms that are enforceable as a 
matter of State law that the State will use to implement and enforce 
alternative requirements for area sources. The mechanisms that may be 
approved under this paragraph include title V permits, title V general 
permits, Federal new source review permits, board and administrative 
orders, permits issued pursuant to permit templates, state permits, and 
State rules that apply to categories of sources. The State shall 
demonstrate to the Administrator that the State has adequate resources 
and authorities to implement and enforce alternative section 112 
requirements using the State mechanisms.
    (c) Approval process for alternative requirements.
    (1) After promulgation of a Federal emission standard or 
requirement for which the State has program approval under this section 
to implement and enforce alternative requirements, the State shall 
provide the Administrator with alternative requirements that are 
sufficient, in the Administrator's judgement, to allow the 
Administrator to determine equivalency under paragraph (d) of this 
section. The alternative requirements shall reflect all of the 
requirements of the otherwise applicable Federal section 112 rule, 
emission standard, or requirement, including any alternative 
requirements that the State is seeking to implement and enforce. 
Alternative requirements submitted for approval under this paragraph 
shall be contained in rules, regulations, general permits, or other 
mechanisms that apply to and are enforceable under State law for 
categories of sources. State policies are not approvable under this 
section unless they are incorporated into specific, enforceable, 
alternative requirements in rules, permits, or other mechanisms that 
apply to categories of sources.
    (2) [Reserved]
    (3) After receiving a complete request for approval under this 
section and making a preliminary determination on its equivalence, the 
Administrator will seek public comment for a minimum of 21 days through 
a Federal Register notice. The Administrator will require that comments 
be submitted concurrently to the State.
    (4) If, after review of public comments and any State responses to 
comments submitted to the Administrator, the Administrator finds that 
the criteria of paragraph (d) of this section and the criteria of 
Sec. 63.91 are met, the Administrator will approve the State's 
alternative requirements. The approved alternative requirements will be 
published in the Federal Register and incorporated, directly or by 
reference, in the appropriate subpart of part 63.
    (5) If the Administrator finds that any of the requirements of 
paragraph (d) of this section or Sec. 63.91 have not been met, the 
Administrator will partially approve or disapprove the State's 
alternative requirements. For any partial approvals or disapprovals, 
the Administrator will provide the State with the basis for the partial 
approval or disapproval and what action the State can take to make the 
alternative requirements approvable.
    (6) Within 180 days of receiving a complete request for approval 
under this paragraph, the Administrator will either approve, partially 
approve, or disapprove the State request.
    (7) Nothing in this section precludes the State from submitting 
alternative requirements for approval under this paragraph at the same 
time the State submits its program to the Administrator for up-front 
approval under paragraph (a) of this section, provided that the Federal 
rules, emission standards, or requirements for which the State submits 
alternative requirements are promulgated at the time of the State's 
submittal. If the Administrator finds that the criteria of Sec. 63.91 
and the criteria of paragraphs (b) and (d) of this section are met, the 
Administrator will approve both the State program and the alternative 
requirements within 180 days of receiving a complete request for 
approval. Alternatively, following up-front approval, the State may 
submit alternative requirements for approval under this paragraph at 
any time after promulgation of the Federal emission standards or 
requirements.
    (d) Approval criteria for alternative requirements. Any request for 
approval under this paragraph shall meet the following criteria. Taken 
together, the criteria in this paragraph describe the minimum contents 
of a State's equivalency demonstration for a promulgated Federal 
section 112 rule, emission standard, or requirement. To be approvable, 
the State submittal must contain sufficient detail to allow the 
Administrator to make a determination of equivalency between the 
State's alternative requirements and the Federal requirements. Each 
submittal of alternative requirements for a category of sources shall:
    (1) Include copies of all State rules, regulations, permits, or 
other enforceable mechanisms that contain the alternative requirements 
for which the State is seeking approval. These documents shall also 
contain requirements that reflect all of the requirements of the 
otherwise applicable Federal section 112 rules, emission standards or 
requirements for which the State is not submitting alternatives. The 
State shall identify for the Administrator the specific requirements 
with which sources in a source category are required to comply, 
including the specific alternative requirements.

[[Page 55846]]

    (2) Identify specifically how the alternative requirements are the 
same as or differ from the requirements in the otherwise applicable 
Federal rule, emission standards, or requirements (including any 
applicable requirements in subpart A or other subparts or appendices). 
The State shall provide this identification in a side-by-side 
comparison of the State's requirements and the requirements of the 
Federal rule, emission standards, or requirements.
    (3) The State shall provide the Administrator with detailed 
documentation that demonstrates the State's belief that the alternative 
requirements meet the criteria specified in Sec. 63.93(b) of this 
subpart, i.e., that the alternative requirements are at least as 
stringent as the otherwise applicable Federal requirements.

[FR Doc. 00-22968 Filed 9-13-00; 8:45 am]
BILLING CODE 6560-50-U