[Federal Register Volume 66, Number 182 (Wednesday, September 19, 2001)]
[Rules and Regulations]
[Pages 48211-48219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23311]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[FRL-7057-8]
Final Approval of the Clean Air Act, Section 112(l), Delegation
of Authority to Washington Department of Ecology and Four Local Air
Agencies in Washington
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Pursuant to the authority of Clean Air Act (CAA), section
112(l), The United States Environmental Protection Agency, Region 10
(EPA) approves the State of Washington Department of Ecology's
(Ecology) request, and the requests of four local air pollution control
agencies in Washington, for program approval and delegation of
authority to implement and enforce specific federal National Emission
Standards for Hazardous Air Pollutants (NESHAP) regulations (as they
apply to both part 70 and non-part 70 sources) which have been adopted
into state law. EPA delegates these programs to Ecology for the purpose
of direct implementation and enforcement (within Ecology's
jurisdiction). EPA also delegates these programs to the following four
local agencies: the Benton Clean Air Authority (BCAA), the Olympic Air
Pollution Control Authority (OAPCA), the Spokane County Air Pollution
Control Authority (SCAPCA), and the Yakima Regional Clean Air Authority
(YRCAA).
EPA also approves a mechanism by which Ecology and the four local
agencies will receive delegation of future NESHAPs; and waives its
notification requirements such that sources within Ecology, BCAA, and
SCAPCA's jurisdictions only need to send notifications and reports to
Ecology, BCAA, or SCAPCA, and do not need to send a copy to EPA.
Delegation to the remaining local agencies in the State of
Washington (the Northwest Air Pollution Authority, the Puget Sound
Clean Air Agency, and the Southwest Air Pollution Control Authority)
was promulgated in a direct final rule on December 1, 1998. A
correction and clarification to that direct final rule was published on
February 17, 1999, and amendments updating this delegation were
published on April 22, 1999, and February 28, 2000.
DATES: This rule becomes effective on October 19, 2001.
FOR FURTHER INFORMATION CONTACT: Tracy Oliver, US EPA, Region 10 (OAQ-
107), 1200 Sixth Avenue, Seattle, WA, 98101, (206) 553-1172.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Comments
II. Corrections & Clarifications
III. Today's Action
IV. Implications
V. Summary
VI. Administrative Requirements
I. Comments
EPA received comments from SCAPCA and BCAA in response to the
proposed notice published on July 3, 2001 (see 66 FR 35115).
Pursuant to 40 CFR 61.04(b), 63.9(a)(4)(ii) and 63.10(a)(4)(ii),
BCAA amended its delegation request to ask EPA to waive the requirement
that sources submit certain notifications and reports to EPA, as well
as BCAA (the delegated agency). BCAA stated that the duplication of
effort would pose an added burden on the local sources and the local
authority, and that this requirement may prove to be a source of
confusion for sources. BCAA demonstrated that it has the resources to
adequately review such notices. Thus, today's final action grants
BCAA's request and waives the requirement that sources provide
notifications and reports to EPA in addition to BCAA. The waiver is the
same as that approved for Ecology and SCAPCA. (Note, this waiver
applies only to notifications and reports pertaining to those
authorities that are delegated to the local agency. Some General
Provisions authorities are retained by EPA and sources subject to a
delegated NESHAP should continue to send responsive materials to EPA
for Administrator decision. The delegated agency should be copied on
these submissions to EPA. For more information, see the sections below
titled, ``How does this Delegation Affect the Regulated Community'' and
``Where Will the Regulated Community Send Notifications and Reports?)''
SCAPCA submitted comments requesting further clarification about:
(1) The requirement that agencies input information for all area
sources subject to delegated standards in AIRS (Aerometric Information
Retrieval System (AIRS)--the national EPA air depository database); and
(2) what documents must be submitted to EPA when SCAPCA carries-out its
delegated General Provisions authorities.
In response to SCAPCA's comment #1, all major sources must be
entered into AIRS. All area sources subject to part 61 or receiving an
administrative order or civil referral must be entered into AIRS.
MACTRAX (EPA's part 63
[[Page 48212]]
database) reporting is required for all major and area sources subject
to a MACT. If an agency enters its major and area source data into
AIRS, a local agency need not submit semi-annual and annual MACTRAX
reports.
In response to SCAPCA's comment #2, only copies of determinations
made by the delegated agency in carrying-out General Provisions
authorities need to be submitted to EPA in most cases. The delegated
agency is not required to forward all materials sources send to them in
order to make these determinations, unless these are specifically
required as a condition of this delegation (see the section titled,
``What are Ecology and the Four Local Agencies Reporting Requirements
to EPA'' below).
II. Corrections & Clarifications
The part 63 table on page 35123 at the end of the proposed rule
indicates that part 63, subpart LL (Primary Aluminum Reduction Plants)
is delegated to NWAPA and PSCAA, yet footnote #11 states that this
subpart cannot be delegated to local agencies in Washington because
Ecology retains exclusive authority to regulate such sources pursuant
to the Washington Administrative Code (WAC) 173-405-012. Today's action
clarifies that EPA is not delegating subpart LL to any local agencies
because no local agency in Washington can receive such delegation. The
Revised Code of Washington (RCW) 70.94.395 provides Ecology with
authority to exclusively regulate a particular class of air contaminant
sources on a state-wide basis. Ecology has exercised that authority
pursuant to WAC 173-415-010 to regulate Primary Aluminum Plants.
Today's action also clarifies that the reference to WAC 173-415-012 in
footnote #11 was incorrect, and will be corrected to WAC 173-405-010.
III. Today's Action
What Action Is EPA Taking Today?
In this action, under the authority of CAA section 112(l)(5) and 40
CFR 63.91, EPA approves of Ecology's request, and the requests of BCAA,
OAPCA, SCAPCA and YRCAA, for program approval and delegation of
authority to implement and enforce specific 40 CFR parts 61 and 63
subparts, as listed in the tables at the end of this rule. Along with
these specific standards, EPA delegates certain General Provisions
authorities, as explained below. EPA delegates this authority to
Ecology for the purpose of direct implementation (within Ecology's
jurisdiction). EPA also delegates this authority to BCAA, OAPCA, SCAPCA
and YRCAA.
In this action, EPA waives its notification requirements such that
sources within Ecology, BCAA, and SCAPCA's jurisdictions would only
need to send notifications and reports to Ecology, BCAA, or SCAPCA, and
would not need to send a copy to EPA. (Sources within OAPCA and YRCAA's
jurisdictions will need to continue sending notifications to both the
respective agency and EPA).
Under the authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA
is also approving Ecology and the four locals agencies' mechanism for
streamlining future delegation of those federal NESHAP regulations that
are adopted unchanged into state and local laws. This mechanism is
explained in a separate paragraph below.
Delegation to the remaining local agencies in the State of
Washington--the Northwest Air Pollution Authority (NWAPA), the Puget
Sound Clean Air Agency (Puget Sound Clean Air), and the Southwest Air
Pollution Control Authority (SWAPCA)--was promulgated in a direct final
rule on December 1, 1998 (see 63 FR 66054) and became effective on
February 1, 1999. A correction and clarification to that direct final
rule was published on February 17, 1999 (see 64 FR 7793). Additionally,
amendments updating this delegation were published on April 22, 1999
(see 64 FR 19719) and February 28, 2000 (see 65 FR 10391). Therefore,
this action will not apply to NWAPA, Puget Sound Clean Air, or SWAPCA.
What Specific Standards Does EPA Delegate?
EPA delegates certain 40 CFR parts 61 and 63 NESHAPs in effect on
July 1, 2000, as adopted by reference into WAC 173-400-075 on November
22, 2000. The specific standards are identified in the tables at the
end of this rule. In most cases, this delegation applies to all sources
(exceptions are described below).
EPA agrees with the position of the State of Washington Office of
the Attorney General that the November 22, 2000, revision to WAC 173-
400-075(5)(a) adopts as state rules those parts of part 63 that EPA
delegates. A revision to the state rule, which clarifies the provision,
is being processed by the State.
EPA delegates 40 CFR part 61, subpart M (Asbestos NESHAP) to
Ecology, BCAA, and OAPCA as it applies to major sources only (per their
requests). Also, EPA delegates 40 CFR part 63, subpart M
(Perchloroethylene Dry Cleaning NESHAP) to Ecology and YRCAA for major
sources only.
Ecology has a working relationship with BCAA to manage the Asbestos
NESHAP for sources located on the Hanford Nuclear Reservation. Ecology
retains enforcement authority for the Asbestos NESHAP consistent with
RCW 70.105.240. EPA acknowledges this managerial relationship between
Ecology and BCAA concerning the Asbestos NESHAP since both agencies are
delegated the authority to implement this program. However, EPA asserts
that Ecology retains enforcement authority for sources located on the
Hanford Nuclear Reservation because Ecology is the enforcing agency.
What Specific Standards Does EPA Not Delegate?
EPA does not delegate to Ecology and the four local agencies any 40
CFR part 61 subparts pertaining to radon or radionuclides. Typically,
EPA delegates all standards adopted (and requested) by an air agency
and in effect as of a certain date, regardless of whether or not there
are any applicable sources within that agency's jurisdiction. As an
exception, EPA is not delegating the 40 CFR part 61 subparts pertaining
to radon or radionuclides which includes: subparts B, H, I, K, Q, R, T,
and W. EPA has determined that there are either no sources in these
agencies' jurisdictions (and that no new sources are likely to emerge),
or if there are sources, the agency does not have sufficient expertise
to implement these NESHAPs.
The Washington State Department of Health is currently implementing
40 CFR part 61, subparts H and I as the state radionuclide standards
for the State of Washington. The Department of Health had received
interim delegation for these two radionuclide standards (as they
pertain to part 70 sources only) on August 2, 1995 (see 60 FR 39263).
However, this interim delegation lapsed on November 9, 1996, because
the State had not received full approval of the Washington Title V
operating permits program. (see 60 FR 39264). Therefore, EPA is
currently responsible for federal implementation of 40 CFR part 61,
subparts H and I. (Note: EPA recently received a request from the
Department of Health for delegation of federal radionuclide standards
at 40 CFR part 61, subparts H and I. EPA is evaluating this request.)
Additionally, EPA is not delegating the regulations that implement
CAA sections 112(g) and 112(j), codified at 40 CFR part 63, subpart B,
to Ecology and the four local agencies. EPA recognizes that subpart B
need not be delegated under the section 112(l) approval
[[Page 48213]]
process. When promulgating the regulations implementing CAA section
112(g), EPA stated its view that ``the Act directly confers on the
permitting authority the obligation to implement section 112(g) and to
adopt a program which conforms to the requirements of this rule.
Therefore, the permitting authority need not apply for approval under
section 112(l) in order to use its own program to implement section
112(g)'' (see 61 FR 68397). Similarly, when promulgating the
regulations implementing section 112(j), EPA stated its belief that
``section 112(l) approvals do not have a great deal of overlap with the
section 112(j) provision, because section 112(j) is designed to use the
Title V permit process as the primary vehicle for establishing
requirements''
(see 59 FR 26447). Therefore, state or local agencies implementing the
requirements under sections 112(g) and 112(j) do not need approval
under section 112(l).
What General Provisions Authorities Does EPA Delegate?
In a memorandum from John Seitz, Office of Air Quality Planning and
Standards, dated July 10, 1998, entitled, ``Delegation of 40 CFR Part
63, General Provisions Authorities to State and Local Air Pollution
Control Agencies,'' EPA clarified which of the authorities in the
General Provisions may and may not be delegated to state and local
agencies under 40 CFR part 63, subpart E. Based on this memo, EPA
delegates the part 63, subpart A, sections that are listed below.
Delegation of these General Provisions authorities will enable Ecology
and the four local agencies to carry out the Administrator's
responsibilities in these sections of subpart A. In delegating these
authorities, EPA grants Ecology and the four local agencies the
authority to make decisions which are not likely to be nationally
significant or to alter the stringency of the underlying standard. The
intent is that these agencies will make decisions on a source-by-source
basis, not on a source category-wide basis.
Table 1.--Part 63, Subpart A, General Provisions Authorities Which EPA
Proposes To Delegate to Ecology and the Four Locals
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Section Authorities
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63.1......................... Applicability Determinations
63.6(e)...................... Operation and Maintenance Requirements--
Responsibility for Determining
Compliance.
63.6(f)...................... Compliance with Non-Opacity Standards--
Responsibility for Determining
Compliance.
63.6(h) [except 63.6(h)(9)].. Compliance with Opacity and Visible
Emissions Standards--Responsibility for
Determining Compliance.
63.7(c)(2)(i) and (d)........ Approval of Site-Specific Test Plans.
63.7(e)(2)(i)................ Approval of Minor Alternatives to Test
Methods.
63.7(e)(2)(ii) and (f)....... Approval of Intermediate Alternatives to
Test Methods.
63.7(e)(2)(iii).............. Approval of Shorter Sampling Times and
Volumes When Necessitated by Process
Variables or Other Factors.
63.7(e)(2)(iv) and (h)(2), Waiver of Performance Testing.
(3).
63.8(c)(1) and (e)(1)........ Approval of Site-Specific Performance
Evaluation (monitoring) Test Plans.
63.8(f)...................... Approval of Minor Alternatives to
Monitoring.
63.8(f)...................... Approval of Intermediate Alternatives to
Monitoring.
63.9 and 63.10 [except Approval of Adjustments to Time Periods
63.10(f)]. for Submitting Reports.
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In delegating 40 CFR 63.9 and 63.10, ``Approval of Adjustments to
Time Periods for Submitting Reports,'' these agencies now have the
authority to approve adjustments to the timing that reports are due,
but do not have the authority to alter the contents of the reports. For
Title V sources, semiannual and annual reports are required by part 70
and nothing herein will change that requirement.
What General Provisions Authorities Are Automatically Granted as Part
of These Agencies' Part 70 Operating Permits Program Approval?
Certain General Provisions authorities are automatically granted to
Ecology and the four local agencies as part of their part 70 operating
permits program approval (regardless of whether the operating permits
program approval is interim or final). These are 40 CFR 63.6(i)(1),
``Extension of Compliance with Emission Standards,'' and 63.5(e) and
(f), ``Approval and Disapproval of Construction and
Reconstruction.''\1\ Additionally, for 40 CFR 63.6(i)(1), Ecology and
the four local agencies do not need to have been delegated a particular
standard or have issued a part 70 operating permit for a particular
source to grant that source a compliance extension. However, Ecology or
the local agency must have authority to implement and enforce the
particular standard against the source in order to grant that source a
compliance extension.
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\1\ Sections 112(i)(1) and (3) state that ``Extension of
Compliance with Emission Standards'' and ``Approval and Disapproval
of Construction and Reconstruction'' can be implemented by the
``Administrator (or a State with a permit program approved under
Title V).'' EPA interprets that this authority does not require
delegation through Subpart E and, instead, is automatically granted
to States as part of their part 70 operating permits program
approval.
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What General Provisions Authorities Are Not Delegated?
In general, EPA does not delegate any authorities that require
implementation through rulemaking in the Federal Register, or where
Federal overview is the only way to ensure national consistency in the
application of the standards or requirements of CAA section 112. The
types of authorities that EPA retains are: equivalency determinations,
approval of alternative test methods, decisions where federal oversight
is needed to ensure national consistency, and any decision that
requires rulemaking to implement. The authorities listed in the table
below (also mentioned in the footnotes of the parts 61 and 63
delegation tables at the end of this rule) are the specific General
Provisions authorities that cannot be delegated to any state or local
agency, which EPA therefore retains.\2\
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\2\ For authorities not addressed in this rulemaking and not
identified in any part 61 or 63 subparts as authorities that cannot
be delegated, the agencies may assume that the authorities in
question are delegated.
[[Page 48214]]
Table 2.--Parts 61 and 63, Subpart A, General Provisions Authorities
Which EPA Cannot Delegate to State and Local Agencies
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Section Authorities
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61.04(b)..................... Waiver of Recordkeeping.
61.12(d)(1).................. Approval of Alternative Means of Emission
Limitation.
61.13(h)(1)(ii).............. Approval of Major Alternatives to Test
Methods.
61.14(g)(1)(ii).............. Approval of Major Alternatives to
Monitoring.
61.16........................ Availability of Information.
61.53(c)(4).................. List of Approved Design, Maintenance, and
Housekeeping Practices for Mercury Chlor-
alki Plants.
63.6(g)...................... Approval of Alternative Non-Opacity
Emission Standards.
63.6(h)(9)................... Approval of Alternative Opacity Standard.
63.7(e)(2)(ii) and (f)....... Approval of Major Alternative to Test
Methods.
63.8(f)...................... Approval of Major Alternatives to
Monitoring
63.10(f)..................... Waiver of Recordkeeping--all.
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IV. Implications
What Changes Does This Delegation Create?
Ecology and the four local agencies now have primary implementation
and enforcement responsibility for the adopted NESHAP regulations. This
means that sources subject to the delegated standards will send
notifications and reports to these agencies and send a copy to EPA
(except for those sources within Ecology, BCAA, and SCAPCA's
jurisdictions). Questions and compliance issues will also be directed
to these agencies. As with any delegation, however, EPA retains the
right, pursuant to CAA section 112(l)(7), to enforce any applicable
emission standard or requirement under CAA section 112. Additionally,
if approved, EPA will retain certain General Provisions authorities, as
explained above.
How Does This Delegation Affect the Regulated Community?
Once a state or local agency has been delegated the authority to
implement and enforce a NESHAP, the delegated agency (in this case,
Ecology and the four locals) becomes the primary point of contact with
respect to that NESHAP. As a result of today's action, regulated
facilities will direct questions and compliance issues to these
agencies. Additionally, all pending questions and compliance issues,
even those which may currently be under consideration by EPA, will be
resolved by Ecology or the appropriate local agency.
For those authorities that are NOT delegated--those noted in Table
2 or any section of 40 CFR parts 61 and 63 that specifically indicates
that authority may not be delegated--affected sources will continue to
work with EPA as its primary contact and submit materials directly to
EPA for Administrator decision. In these specific cases, the delegated
agency should be copied on all submittals, questions, requests, etc.
Where Will the Regulated Community Send Notifications and Reports?
Facilities within OAPCA and YRCAA's jurisdictions will need to
submit notifications directly to the respective agency, and also send a
copy to EPA.
Pursuant to 40 CFR 61.04(b), 63.9(a)(4)(ii), and 63.10(a)(4)(ii),
EPA waives the requirement for sources to submit notifications to
Ecology, BCAA, and SCAPCA as well as EPA. Facilities within Ecology,
BCAA, and SCAPCA's jurisdictions need to submit notifications and
reports only to Ecology, BCAA, or SCAPCA, and do not need to send a
copy to EPA. The only exception to this is when sources are submitting
materials pertaining to authorities that are not delegated.
How Does This Delegation Affect Indian Country?
The delegation proposed for Ecology and the four local agencies to
implement and enforce NESHAPs does not extend to sources or activities
located in Indian country, as defined in 18 U.S.C.1151. ``Indian
country'' is defined under 18 U.S.C. 1151 as: (1) All land within the
limits of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation, (2) all
dependent Indian communities within the borders of the United States,
whether within the original or subsequently acquired territory thereof,
and whether within or without the limits of a State, and (3) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same. Under this
definition, EPA treats as reservations trust lands validly set aside
for the use of a Tribe even if the trust lands have not been formally
designated as a reservation. Consistent with previous federal program
approvals or delegations, EPA will continue to implement the NESHAPs in
Indian country because these agencies did not adequately demonstrate
their authority over sources and activities located within the exterior
boundaries of Indian reservations and other areas in Indian country.
What Are Ecology and the Four Local Agencies' Reporting Requirements to
EPA?
In delegating the authority to implement and enforce these rules,
EPA requires that these delegated agencies submit the following to EPA:
(1) These agencies must input all minimum reportable requirements
into the AIRS Facility Subsystem (AFS) of the Aerometric Information
Retrieval System (AIRS) for both point and area sources. The agencies
must enter the information into the AIRS/AFS system by September 30 of
each year;
(2) These agencies must report to EPA all reportable requirements
for MACTRAX twice a federal fiscal year (semiannual and annually)
(MACTRAX provides the summary data for each implemented NESHAP that EPA
uses to evaluate the Air Toxics Program);
(3) These agencies must also provide any additional compliance
related information to EPA as agreed upon in the Compliance Assurance
Agreement;
(4) In receiving delegation for specific General Provisions
authorities, these agencies must submit to EPA copies of determinations
issued pursuant to these authorities, listed in Table 1 above;
(5) These agencies must also forward to EPA copies of any
notifications received pursuant to Sec. 63.6(h)(7)(ii) pertaining to
the use of a continuous opacity monitoring system; and
(6) These agencies must submit to EPA's Emission Measurement Center
of the Emissions Monitoring and Analysis
[[Page 48215]]
Division copies of any approved intermediate changes to test methods or
monitoring. (For definitions of major, intermediate, and minor
alternative test methods or monitoring methods, see the July 10, 1998,
memorandum from John Seitz, referenced above). These intermediate test
methods or monitoring changes should be sent via mail or facsimile to:
Chief, Source Categorization Group A, U.S. EPA (MD-19), Research
Triangle Park, NC 27711, Facsimile telephone number: (919) 541-1039.
How Will These Agencies Receive Delegation for Future and Revised
Standards?
Ecology or a local agency will receive delegation of future
standards by the following process:
(1) Ecology or the local agency will send a letter to EPA
requesting delegation for future NESHAP standards adopted by reference
into state or local regulations;
(2) EPA will send a letter of response back to Ecology or the local
agency granting this delegation request (or explaining why EPA cannot
grant the request);
(3) Ecology or the local agency does not need to send a response
back to EPA;
(4) If EPA does not receive a negative response from Ecology or the
local agency within 10 days of EPA's letter to Ecology or the local
agency, then the delegation will be final 10 days after the date of the
letter from EPA; and
(5) Periodically, EPA will publish a notice in the Federal Register
informing the public of the updated delegation.
How Frequently Should These Agencies Update Their Delegation?
Ecology and the four local agencies should update their
incorporations by reference of 40 CFR parts 61 and 63 standards and
request updated delegation annually, as current standards are revised
and new standards are promulgated.
V. Summary
Pursuant to the authority of CAA section 112(l) of the Act and 40
CFR part 63, subpart E, EPA approves Ecology's request, and the
requests of BCAA, OAPCA, SCAPCA and YRCAA, for program approval and
delegation of authority to implement and enforce specific 40 CFR parts
61 and 63 federal NESHAP regulations (as they apply to both part 70 and
non-part 70 sources) which have been adopted into state law. EPA
delegates this authority to Ecology for the purpose of direct
implementation (within Ecology's jurisdiction). EPA also delegates this
authority to BCAA, OAPCA, SCAPCA and YRCAA. Additionally, EPA approves
the mechanism by which Ecology and the four local agencies will receive
delegation of future NESHAP regulations that are adopted unchanged into
state law; and also proposes to waive the requirement for sources
within Ecology, BCAA, and SCAPCA's jurisdictions to send copies of
notifications and reports to EPA.
VI. Administrative Requirements
A. Executive Orders 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order 12866, entitled
``Regulatory Planning and Review.''
This rule is not subject to Executive Order 13045, entitled,
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. 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 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 merely approves a State
program and rules implementing a Federal standard, and does not alter
the relationship or the distribution of power and responsibilities
established in the CAA. Thus, Executive Order 13132 does not apply to
this rule.
Although section 6 of the Executive Order does not apply to this
rule, EPA did consult with representatives of State and local
governments in developing this rule, and this rule is in response to
the State's and local's delegation request.
C. 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. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
This rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA
may certify that the rule will not have a significant economic impact
on a substantial
[[Page 48216]]
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small government entities with
jurisdiction over populations of less than 50,000.
Delegation of authority to implement and enforce unchanged federal
standards under section 112(l) of the CAA does not create any new
requirements but simply transfers primary implementation authorities to
the State (or local) agency. Therefore, because this action does not
impose any new requirements, I certify that it does not have a
significant impact on any small entities affected.
E. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate,
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the delegation action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
F. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
G. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 19, 2001. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects
40 CFR Part 61
Environmental protection, Air pollution control, Arsenic, Asbestos,
Benzene, Beryllium, Hazardous substances, Mercury, Reporting and
recordkeeping requirements, Vinyl chloride.
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: August 31, 2001.
Charles E. Findley,
Acting Regional Administrator, Region 10.
Title 40, chapter I, parts 61 and 63 of the Code of Federal
Regulations is amended as follows:
PART 61--[AMENDED]
1. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401, 7412, 7413, 7414, 7416, 7601 and
7602.
Subpart A--General Provisions
2. Section 61.04 is amended by revising paragraphs (b)(WW)(i),
(iv), (v), and (vi), by adding paragraph (b)(WW)(viii); and by revising
the table in paragraph (c)(10) to read as follows:
Sec. 61.04 Address.
* * * * *
(b) * * *
(WW)(i) Washington: State of Washington, Department of Ecology
(Ecology), P.O. Box 47600, Olympia, WA 98504-7600.
Note: For a table listing Ecology's delegation status, see
paragraph (c)(10) of this section.
* * * * *
(iv) Spokane County Air Pollution Control Authority (SCAPCA), West 1101
College Avenue, Suite 403, Spokane, WA 99201
Note: For a table listing SCAPCA's delegation status, see
paragraph (c)(10) of this section.
(v) Yakima Regional Clean Air Authority (YRCAA), 6 South 2nd, Room
1016, Yakima, WA 98901.
Note: For a table listing YRCAA's delegation status, see
paragraph (c)(10) of this section.
(vi) Olympic Air Pollution Control Authority (OAPCA), 909 Sleater-
Kinney Road SE, Suite 1, Lacey, WA 98503.
Note: For a table listing OAPCA's delegation status, see
paragraph (c)(10) of this section.
* * * * *
(viii) Benton Clean Air Authority (BCAA), 650 George Washington Way,
Richland, WA 99352.
Note: For a table listing BCAA's delegation status, see
paragraph (c)(10) of this section.
* * * * *
(c) * * *
(10) * * *
Delegation Status for Part 61 Standards--Region 10
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
AK ID Oregon Washington
Subpart -----------------------------------------------------------------------------------------------------------------------------------
ADEC \1\ IDEQ \2\ ODEQ \3\ LRAPA \4\ Ecology \5\ BCAA \6\ NWAPA \7\ OAPCA \8\ PSCAA \9\ SCAPCA SWAPCA YRCAA
------------------------------------------------------------------------------------------------------------------------------------------------------------------\10\--------\11\--------\12\--
A. General Provisions \13\.................................. X ........ ........ ......... X X X X X X X X
B. Radon from Underground Uranium Mines.
C. Beryllium................................................ ........ ........ ........ ......... X X X X X X X X
[[Page 48217]]
D. Beryllium Rocket Motor Firing............................ ........ ........ ........ ......... X X X X X X X X
E. Mercury.................................................. X ........ ........ ......... X X X X X X X X
F. Vinyl Chloride........................................... ........ ........ ........ ......... X X X X X X X X
H. Emissions of Radionuclides other than Radon from Dept of
Energy facilities.
I. Radionuclides from Federal Facilities other than Nuclear
Regulatory Commission Licensees and not covered by Subpart
H.
J. Equipment Leaks of Benzene............................... X ........ ........ ......... X X X X X X X X
K. Radionuclides from Elemental Phosphorus Plants.
L. Benzene from Coke Recovery............................... ........ ........ ........ ......... X X X X X X X X
M. Asbestos................................................. X \1\ ........ ........ ......... X \5\ X \6\ X X \8\ X X X X
N. Arsenic from Glass Plants................................ ........ ........ ........ ......... X X X X X X X X
O. Arsenic from Primary Copper Smelters..................... ........ ........ ........ ......... X X X X X X X X
P. Arsenic from Arsenic Production Facilities............... ........ ........ ........ ......... X X X X X X X X
Q. Radon from Dept of Energy facilities.
R. Radon from Phosphogypsum Stacks.
T. Radon from Disposal of Uranium Mill Tailings.
V. Equipment Leaks.......................................... X ........ ........ ......... X X X X X X X X
W. Radon from Operating Mill Tailings.
Y. Benzene from Benzene Storage Vessels..................... X ........ ........ ......... X X X X X X X X
BB. Benzene from Benzene Transfer Operations................ ........ ........ ........ ......... X X X X X X X X
FF. Benzene Waste Operations................................ X ........ ........ ......... X X X X X X X X
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Alaska Department of Environmental Conservation (1/18/97).
Note: Alaska received delegation for Sec. 61.145 and Sec. 61.154 of Subpart M (Asbestos), along with other sections and appendices which are referenced in Sec. 61.145, as Sec. 61.145
applies to sources required to obtain an operating permit under Alaska's regulations. Alaska has not received delegation for Subpart M for sources not required to obtain an operating permit
under Alaska's regulations. .
\2\ Idaho Division of Environmental Quality.
\3\ Oregon Department of Environmental Quality.
\4\ Lane Regional Air Pollution Authority.
\5\ Washington Department of Ecology (7/1/00).
Note: Delegation of Subpart M of this Part applies to major Title V sources only, including Hanford. (Pursuant to RCW 70.105.240, only Ecology can enforce regulations at Hanford).
\6\ Benton Clean Air Authority (7/1/00).
Note: Delegation of Subpart M of this Part applies to major Title V sources only (excluding Hanford).
\7\ Northwest Air Pollution Authority (7/1/99).
\8\ Olympic Air Pollution Control Authority (July 1, 2000). .
Note: Delegation of Subpart M of this Part applies to major Title V sources only. .
\9\ Puget Sound Clean Air Agency (7/1/99).
\10\ Spokane County Air Pollution Control Authority (7/1/00).
\11\ Southwest Air Pollution Control Authority (8/1/98).
\12\ Yakima Regional Clean Air Authority (7/1/00).
\13\ Authorities which are not delegated include: Secs. 61.04(b); 61.12(d)(1); 61.13(h)(1)(ii) for approval of major alternatives to test methods; Sec. 61.14(g)(1)(ii) for approval of major
alternatives to monitoring; Sec. 61.16; Sec. 61.53(c)(4); any sections in the subparts pertaining to approval of alternative standards (i.e., alternative means of emission limitations), or
approval of major alternatives to test methods or monitoring; and all authorities identified in the subparts (i.e., under ``Delegation of Authority'') that cannot be delegated. For
definitions of minor, intermediate, and major alternatives to test methods and monitoring, see memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July 10, 1998,
entitled, ``Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies.'' .
Note to paragraph (c)(10): Dates in parenthesis indicate the effective date of the federal rules that have been adopted by and delegated to the state or local air pollution control agency.
Therefore, any amendments made to these delegated rules after this effective date are not delegated to the agency.
[[Page 48218]]
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
2. Section 63.99 is amended by revising the table in paragraph
(a)(47)(i) to read as follows:
Sec. 63.99 Delegated Federal authorities.
(a) * * *
(47) * * *
(i) * * *
Delegation Status Part 63 Standards--State of Washington
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart Ecology \2\ BCAA \3\ NNWAPA OAPCA \5\ PSCAA \6\ SCAPCA \7\ SWAPCA \8\ YRCAA \9\
-----------------------------------------------------------------------------------------\4\------------------------------------------------------------
A. General Provisions \1\.................................... X X X X X X X X
D. Early Reductions.......................................... X X X X X X X X
F. HON-SOCMI................................................. X X X X X X X X
G. HON-Process Vents......................................... X X X X X X X X
H. HON-Equipment Leaks....................................... X X X X X X X X
I. HON-Negotiated Leaks...................................... X X X X X X X X
L. Coke Oven Batteries....................................... X X X X X X X X
M. Perchloroethylene Dry Cleaning............................ X \2\ X X X X \9\
N. Chromium Electroplating................................... X X X X X X X X
O. Ethylene Oxide Sterilizers................................ X X X X X X X X
Q. Industrial Process Cooling Towers......................... X X X X X X X X
R. Gasoline Distribution..................................... X X X X X X X X
S. Pulp and Paper\10\........................................ X X X X X X X X
T. Halogenated Solvent Cleaning.............................. X X X X X X X X
U. Polymers and Resins I..................................... X X X X X X X X
W. Polymers and Resins II-Epoxy.............................. X X X X X X X X
X. Secondary Lead Smelting................................... X X X X X X X X
Y. Marine Tank Vessel Loading................................ X X X
AA. Phosphoric Acid Manufacturing Plants..................... X X X X X X X
BB. Phosphate Fertilizers Production Plants.................. X X X X X X X
CC. Petroleum Refineries..................................... X X X X X X X X
DD. Off-Site Waste and Recovery.............................. X X X X X X X X
EE. Magnetic Tape Manufacturing.............................. X X X X X X X X
GG. Aerospace Manufacturing & Rework......................... X X X X X X X X
HH. Oil and Natural Gas Production Facilities................ X X X X X X X
II. Shipbuilding and Ship Repair............................. X X X X X X X X
JJ. Wood Furniture Manufacturing Operations.................. X X X X X X X X
KK. Printing and Publishing Industry......................... X X X X X X X X
LL. Primary Aluminum\11\..................................... X
OO. Tanks--Level 1........................................... X X X X X X X
PP. Containers............................................... X X X X X X X
QQ. Surface Impoundments..................................... X X X X X X X
RR. Individual Drain Systems................................. X X X X X X X
SS. Closed Vent Systems, Control Devices, Recovery Devices X X X X X X X
and Routing to a Fuel Gas System or Process.................
TT. Equipment Leaks--Control Level 1......................... X X X X X X X
UU. Equipment Leaks--Control Level 2......................... X X X X X X X
VV. Oil-Water Separators and Organic-Water Separators........ X X X X X X X
WW. Storage Vessels (Tanks)--Control Level 2................. X X
YY. Source Categories: Generic MACT.......................... X X
CCC. Steel Pickling--HCl Process Facilities and Hydrochloric X X
Acid Regeneration Plants....................................
DDD. Mineral Wool Production................................. X X
EEE. Hazardous Waste Combustors.............................. X X
GGG. Pharmaceuticals Production.............................. X X
HHH. Natural Gas Transmission and Storage Facilities......... X X
III. Flexible Polyurethane Foam Production................... X X
JJJ. Polymers and Resins IV.................................. X X X
LLL. Portland Cement Manufacturing........................... X X
MMM. Pesticide Active Ingredient Production.................. X X
NNN. Wool Fiberglass Manufacturing........................... X X
OOO. Manufacture of Amino Phenolic Resins.
PPP. Polyether Polyols Production............................ X X
RRR. Secondary Aluminum Production.
TTT. Primary Lead Smelting................................... X X
VVV. Publicly Owned Treatment Works.
[[Page 48219]]
XXX. Ferroalloys Production: Ferromanganese & Silicomanganese X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ General Provisions authorities which may not be delegated include: Secs. 63.6(g); 63.6(h)(9); 63.7(e)(2)(ii) and (f) for approval of major
alternatives to test methods; Sec. 63.8(f) for approval of major alternatives to monitoring; Sec. 63.10(f); and all authorities identified in the
subparts (i.e., under ``Delegation of Authority'') that cannot be delegated. For definitions of minor, intermediate, and major alternatives to test
methods and monitoring, see memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July, 10, 1998, entitled, ``Delegation of
40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies.''
\2\ Washington Department of Ecology (July 1, 2000).
Note: Delegation of Subpart M to Ecology applies to Part 70 sources only.
\3\ Benton Clean Air Authority (July 1, 2000).
\4\ Northwest Air Pollution Authority (July 1, 1999).
\5\ Olympic Air Pollution Control Authority (July 1, 2000).
\6\ Puget Sound Clean Air Agency (July 1, 1999).
\7\ Spokane County Air Pollution Control Authority (July 1, 2000).
\8\ Southwest Air Pollution Control Authority (August 1, 1998).
\9\ Yakima Regional Clean Air Authority (July 1, 2000).
Note: Delegation of Subpart M to YRCAA applies to Part 70 sources only.
\10\ Subpart S of this Part is delegated to The Washington Department of Ecology and these local agencies as it applies to all applicable facilities and
processes defined in 40 CFR 63.440, except kraft and sulfite pulping mills. The Washington Department of Ecology (Ecology) retains the authority to
regulate kraft and sulfite pulping mills in the State of Washington, pursuant to Washington Administrative Code (WAC) 173-405-012 and 173-410-012.
\11\ Subpart LL of this Part cannot be delegated to any local agencies in Washington because Ecology retains the authority to regulate primary aluminum
plants, pursuant to WAC 173-415-010.
Note to paragraph (a)(47): Dates in parenthesis indicate the effective date of the federal rules that have been adopted by and delegated to the state or
local air pollution control agency. Therefore, any amendments made to these delegated rules after this effective date are not delegated to the agency.
[FR Doc. 01-23311 Filed 9-18-01; 8:45 am]
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