[Federal Register Volume 66, Number 247 (Wednesday, December 26, 2001)]
[Rules and Regulations]
[Pages 66321-66325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31485]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[DC001-1000; FRL-7121-7]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; District of Columbia; Department of Health

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation.

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SUMMARY: EPA is taking direct final action to approve the District of 
Columbia (the District) Department of Health's (DoH's) request for 
delegation of authority to implement and enforce its hazardous air 
pollutant general provisions and hazardous air pollutant emission 
standards for perchloroethylene dry cleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
halogenated solvent cleaning, and publicly owned treatment works, as 
well as the test methods, which have been adopted by reference from the 
Federal requirements set forth in the Code of Federal Regulations 
(CFR). This approval will automatically delegate future amendments to 
these regulations once the District incorporates those amendments into 
its regulations. In addition, EPA is taking direct final action to 
approve the District's mechanism for receiving delegation of future 
hazardous air pollutant regulations. This mechanism entails DoH's 
incorporation by reference of the Federal standard (unchanged), into 
its hazardous air pollutant regulation, DoH's notification to EPA of 
such incorporation, and DoH's submission of a delegation request letter 
to EPA following EPA notification of a new Federal requirement. EPA is 
not waiving its notification and reporting requirements, therefore, 
sources will need to send notifications and reports to both DoH and 
EPA. This action pertains to affected sources, as defined by the Clean 
Air Act's (CAA or the Act) hazardous air pollutant program. EPA is 
taking this action in accordance with the Act.

DATES: This direct final rule will be effective February 25, 2002 
unless EPA receives adverse or critical comments by January 25, 2002. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the rule in the Federal Register and inform the public that the rule 
will not take effect.

ADDRESSES: Written comments on this action should be sent concurrently 
to: Makeba A. Morris, Chief, Permits and Technical Assessment Branch, 
Mail Code 3AP11, Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, and 
Donald E. Wambsgans II, Program Manager of the Air Quality Division, 
District of Columbia Department of Health, 825 North Capital Street, 
NE., Suite 400, Washington, DC 20002. Copies of the documents relevant 
to this action are available for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103 and the District of Columbia Department of Health, 
825 North Capital Street, NE., Suite 400, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Dianne J. McNally, U.S. Environmental 
Protection Agency, Region 3, 1650 Arch Street (3AP11), Philadelphia, PA 
19103-2029, [email protected] (telephone 215-814-3297). Please 
note that any formal comments must be submitted, in writing, as 
provided in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 112(l) of the Act and 40 CFR part 63 subpart E authorize 
EPA to approve of State rules and programs to be implemented and 
enforced in place of certain CAA requirements, including the National 
Emission Standards for Hazardous Air Pollutants set forth in 40 CFR 
part 63. EPA promulgated the program approval regulations on November 
26, 1993 (58 FR 62262) and subsequently amended these regulations

[[Page 66322]]

on September 14, 2000 (65 FR 55810). An approvable State program must 
contain, among other criteria, the following elements:
    (a) A demonstration of the state's authority and resources to 
implement and enforce regulations that are at least as stringent as the 
NESHAP requirements;
    (b) A schedule demonstrating expeditious implementation of the 
regulation; and
    (c) A plan that assures expeditious compliance by all sources 
subject to the regulation.
    On May 21, 2001, EPA received a request from the District's DoH 
seeking delegation of authority to implement and enforce the hazardous 
air pollutant regulations for certain affected sources defined in 40 
CFR part 63. At the present time, this request includes the hazardous 
pollutant general provisions and regulations for perchloroethylene dry 
cleaning facilities, hard and decorative chromium electroplating and 
chromium anodizing tanks, halogenated solvent cleaning, publicly owned 
treatment works, as well as the hazardous pollutant regulation test 
methods which have been adopted by reference from the Federal 
requirements set forth in 40 CFR part 63, subparts A, M, N, T, VVV and 
Appendix A. The District also requested that EPA automatically delegate 
future amendments to these regulations and approve DoH's mechanism for 
receiving delegation of future hazardous air pollutant regulations 
which it adopts unchanged from the Federal requirements. This mechanism 
entails the DoH's incorporation by reference of the Federal standard, 
unchanged, into its hazardous air pollutant regulation at Section 700 
of Title 20 of the District of Columbia Municipal Regulation, DoH's 
notification to EPA of such incorporation, and DoH's submission of a 
delegation request letter to EPA following notification of a new 
Federal requirement.

II. EPA's Analysis of the District's Submittal

    Based on the District's program approval request and its pertinent 
laws and regulations, EPA has determined that such an approval is 
appropriate in that the District has satisfied the criteria of 40 CFR 
63.91. In accordance with 40 CFR 63.91(d)(3)(i), the District's DoH 
submitted a written finding by the District of Columbia Corporation 
Counsel which demonstrates that the District of Columbia has the 
necessary legal authority to implement and enforce its regulations, 
including the enforcement authorities which meet 40 CFR 70.11, the 
authority to request information from regulated sources, and the 
authority to inspect sources and records to determine compliance 
status. In accordance with 40 CFR 63.91(d)(3)(ii), the District 
submitted copies of its statutes, regulations and requirements that 
grant authority to DoH to implement and enforce the regulations. In 
accordance with 40 CFR 63.91(d)(3)(iii)-(v), the District submitted 
documentation of adequate resources and a schedule and plan to assure 
expeditious implementation and compliance by all sources. Therefore, 
the District's program has adequate and effective authorities, 
resources, and procedures in place for implementation and enforcement 
of sources subject to the requirements of 40 CFR part 63, subparts A, 
M, N, T, VVV and Appendix A, as well as any future emission standards, 
should the District's DoH seek delegation for these standards. The DoH 
adopts the emission standards promulgated in 40 CFR part 63 into 
section 700 of Title 20 of the District of Columbia Municipal 
Regulations (DCMR). The District's DoH has the primary authority and 
responsibility to carry out all elements of these programs for all 
sources covered in the District of Columbia, including on-site 
inspections, record keeping reviews, and enforcement.

III. Terms of Program Approval and Delegation of Authority

    In order for the District's DoH to receive automatic delegation of 
future amendments to the hazardous air pollutant general provisions and 
the perchloroethylene drycleaning facilities, hard and decorative 
chromium electroplating and chromium anodizing tanks, halogenated 
solvent cleaning, publicly owned treatment works regulations and test 
method regulations, each such amendment must be legally adopted by the 
District of Columbia. As stated earlier, these amendments are adopted 
into section 700 of Title 20 of the DCMR. The delegation of amendments 
to these rules will be finalized on the effective date of the legal 
adoption. The DoH will notify EPA of its adoption of the Federal 
regulation amendments.
    EPA has also determined that DoH's mechanism for receiving 
delegation of future hazardous air pollutant regulations, which it 
adopts unchanged from the Federal requirements, can be approved. This 
mechanism requires DoH to legally adopt the Federal regulation into 
section 700 of Title 20 of the DCMR and to notify EPA of such adoption. 
The DoH is also required to submit a delegation request letter to EPA 
following EPA notification of a new Federal requirement. EPA will grant 
the delegation request, if appropriate, by sending a letter to DoH 
outlining the authority to implement and enforce the standard. The 
delegation will be finalized within 10 days of receipt of the 
delegation letter unless DoH files a negative response. The official 
notice of delegation of additional emission standards will be published 
in the Federal Register.
    The notification and reporting provisions in 40 CFR part 63 
requiring the owners or operators of affected sources to make 
submissions to the Administrator shall be met by sending such 
submissions to the District's DoH and EPA Region III.
    If at any time there is a conflict between a District regulation 
and a Federal regulation, the Federal regulation must be applied if it 
is more stringent than that of the District. EPA is responsible for 
determining stringency between conflicting regulations. If the 
District's DoH does not have the authority to enforce the more 
stringent Federal regulation, it shall notify EPA Region III, in 
writing, as soon as possible so that this portion of the delegation may 
be revoked.
    If EPA determines that DoH's procedures for enforcing or 
implementing the 40 CFR part 63 requirements are inadequate, or are not 
being effectively carried out, this delegation may be revoked in whole 
or in part in accordance with the procedures set out in 40 CFR 
63.96(b).
    Certain provisions of 40 CFR part 63 allow only the Administrator 
of EPA to take further standard setting actions. In addition to the 
specific authorities retained by the Administrator in 40 CFR 63.90(d) 
and the ``Delegation of Authorities'' section for specific standards, 
EPA Region III is retaining the following authorities, in accordance 
with 40 CFR 63.91(g)(2)(ii):
    (1) Approval of alternative non-opacity emission standards, e.g., 
40 CFR 63.6(g) and applicable sections of relevant standards;
    (2) Approval of alternative opacity standards, e.g., 40 CFR 
63.9(h)(9) and applicable sections of relevant standards;
    (3) Approval of major alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and applicable 
sections of relevant standards;
    (4) Approval of major alternatives to monitoring, as defined in 40 
CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable sections of relevant 
standards; and

[[Page 66323]]

    (5) Approval of major alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.
    The following provisions are included in this delegation, in 
accordance with 40 CFR 63.91(g)(1)(i), but may only be exercised on a 
case-by-case basis. When any of these authorities are exercised, the 
District's DoH must notify EPA Region III in writing:
    (1) Applicability determinations for sources during the title V 
permitting process and as sought by an owner/operator of an affected 
source through a formal, written request, e.g., 40 CFR 63.1 and 
applicable sections of relevant standards\1\;
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    \1\ Applicability determinations are considered to be nationally 
significant when they:
    (i) Are unusually complex or controversial;
    (ii) Have bearing on more than one state or are multi-Regional;
    (iii) Appear to create a conflict with previous policy or 
determinations;
    (iv) Are a legal issue which has not been previously considered; 
or
    (v) Raise new policy questions and shall be forwarded to EPA 
Regional III prior to finalization.
    Detailed information on the applicability determination process 
may be found in EPA document 305-B-99-004 How to Review and Issue 
Clean Air Act Applicability Determinations and Alternative 
Monitoring, dated February 1999. The DoH may also refer to the 
Compendium of Applicability Determinations issued by the EPA and may 
contact EPA Region III for guidance.
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    (2) Responsibility for determining compliance with operation and 
maintenance requirements, e.g., 40 CFR 63.6(e) and applicable sections 
of relevant standards;
    (3) Responsibility for determining compliance with non-opacity 
standards, e.g., 40 CFR 63.6(f) and applicable sections of relevant 
standards;
    (4) Responsibility for determining compliance with opacity and 
visible emission standards, e.g., 40 CFR 63.6(h) and applicable 
sections of relevant standards;
    (5) Approval of site-specific test plans\2\, e.g., 40 CFR 
63.7(c)(2)(i) and (d) and applicable sections of relevant standards;
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    \2\ The DoH will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the test plan approval letter. Any 
plans which propose major alternative test methods or major 
alternative monitoring methods shall be referred to EPA for 
approval.
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    (6) Approval of minor alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(i) and applicable sections of 
relevant standards;
    (7) Approval of intermediate alternatives to test methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and 
applicable sections of relevant standards;
    (8) Approval of shorter sampling times/volumes when necessitated by 
process variables and other factors, e.g., 40 CFR 63.7(e)(2)(iii) and 
applicable sections of relevant standards;
    (9) Waiver of performance testing, e.g., 40 CFR 63.7 (e)(2)(iv), 
(h)(2), and (h)(3) and applicable sections of relevant standards;
    (10) Approval of site-specific performance evaluation (monitoring) 
plans\3\, e.g., 40 CFR 63.8(c)(1) and (e)(1) and applicable sections of 
relevant standards;
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    \3\ The DoH will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the performance evaluation plan 
approval letter. Any plans which propose major alternative test 
methods or major alternative monitoring methods shall be referred to 
EPA for approval.
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    (11) Approval of minor alternatives to monitoring methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (12) Approval of intermediate alternatives to monitoring methods, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (13) Approval of adjustments to time periods for submitting 
reports, e.g., 40 CFR 63.9 and 63.10 and applicable sections of 
relevant standards; and
    (14) Approval of minor alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.
    As required, the District's DoH and EPA Region III will provide the 
necessary written, verbal and/or electronic notification to ensure that 
each agency is fully informed regarding the interpretation of 
applicable regulations in 40 CFR part 63. In instances where there is a 
conflict between a DoH interpretation and a Federal interpretation of 
applicable regulations in 40 CFR part 63, the Federal interpretation 
must be applied if it is more stringent than that of DoH. Written, 
verbal and/or electronic notification will also be used to ensure that 
each agency is informed of the compliance status of affected sources in 
the District of Columbia. The District's DoH will comply with all of 
the requirements of 40 CFR 63.91(g)(1)(ii). Quarterly reports will be 
submitted to EPA by the District's DoH to identify sources determined 
to be applicable during that quarter.
    Although the District's DoH has primary authority and 
responsibility to implement and enforce the hazardous air pollutant 
general provisions and hazardous air pollutant emission standards for 
perchloroethylene drycleaning facilities, hard and decorative chromium 
electroplating and chromium anodizing tanks, halogenated solvent 
cleaning, publicly owned treatment works and the hazardous pollutant 
test methods, nothing shall preclude, limit, or interfere with the 
authority of EPA to exercise its enforcement, investigatory, and 
information gathering authorities concerning this part of the Act.

IV. Final Action

    EPA is approving the District DoH's request for delegation of 
authority to implement and enforce its hazardous air pollutant general 
provisions and its regulations for perchloroethylene drycleaning 
facilities, hard and decorative chromium electroplating and chromium 
anodizing tanks, halogenated solvent cleaning, publicly owned treatment 
works and hazardous pollutant test methods which have been adopted by 
reference from 40 CFR part 63, subparts A, M, N, T, VVV and Appendix A, 
respectively. This approval will automatically delegate future 
amendments to these regulations. In addition, EPA is approving of DoH's 
mechanism for receiving delegation of future hazardous air pollutant 
regulations which it adopts, unchanged, from the Federal requirements. 
This mechanism entails legal adoption by the District of Columbia of 
the amendments or rules into Section 700 of Title 20 of the DCMR, DoH's 
notification to EPA of such incorporation and DoH's submission of a 
delegation request letter to EPA following notification by EPA of a new 
Federal requirement. This action pertains only to affected sources, as 
defined by 40 CFR part 63. The delegation of authority shall be 
administered in accordance with the terms outlined in this document. 
This delegation of authority is codified in 40 CFR 63.99.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial rule and anticipates no adverse 
comment because the District DoH's request for delegation of the 
hazardous pollutant general provisions and the hazardous air pollutant 
regulations pertaining to perchloroethylene drycleaning facilities, 
hard and decorative chromium electroplating and chromium anodizing 
tanks, halogenated solvent cleaning, publicly owned treatment works and 
test methods and its request for automatic delegation of future 
amendments to these rules and future standards, when specifically 
identified, does not alter the stringency of these regulations and is 
in accordance with all program approval regulations. However,

[[Page 66324]]

in the ``Proposed Rules'' section of today's Federal Register, EPA is 
publishing a separate document that will serve as the proposal to 
approve of DoH's request for delegation if adverse comments are filed. 
This rule will be effective on February 25, 2002 without further notice 
unless EPA receives adverse comment by January 25, 2002. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

V. Administrative Requirements

    A. General Requirements
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing requests for rule approval under CAA section 112, 
EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. In this context, in the absence of a prior 
existing requirement for the State to use voluntary consensus standards 
(VCS), EPA has no authority to disapprove requests for rule approval 
under CAA section 112 for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a request for 
rule approval under CAA section 112, to use VCS in place of a request 
for rule approval under CAA section 112 that otherwise satisfies the 
provisions of the CAA. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

B. 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).

C. 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 February 25, 2002. 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, pertaining to the approval of DoH's delegation of 
authority for the hazardous air pollutant general provisions and 
regulations for perchloroethylene dry cleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
halogenated solvent cleaning, publicly owned treatment works and test 
methods (CAA section 112), may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control , Hazardous substances, Intergovernmental 
relations.

    Dated: December 11, 2001.
Judith M. Katz,
Director, Air Protection Division, Region III.

    40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

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

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

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding paragraph (a)(9) to read as 
follows:


Sec. 63.99  Delegated Federal authorities.

    (a) * * *
    (9) District of Columbia.
    (i) The District of Columbia is delegated the authority to 
implement and enforce the regulations in 40 CFR part 63, subparts A, M, 
N, T, VVV and Appendix A and all future unchanged 40 CFR part 63 
standards and amendments, if delegation of future standards and 
amendments is sought by the District of Columbia Department of Health 
and approved by EPA Region III, at affected sources, as defined by 40 
CFR part 63, in accordance with the final rule, dated December 26, 
2001, effective February 25, 2002, and any

[[Page 66325]]

mutually acceptable amendments to the terms described in the direct 
final rule.
* * * * *
[FR Doc. 01-31485 Filed 12-21-01; 8:45 am]
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