[Federal Register Volume 67, Number 19 (Tuesday, January 29, 2002)]
[Rules and Regulations]
[Pages 4181-4185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2121]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[PA001-1001; FRL-7134-9]


Approval of Section 112(1) Authority for Hazardous Air 
Pollutants; City of Philadelphia; Department of Public Health Air 
Management Services

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to approve Philadelphia 
Department of Public Health Air Management Services's (AMS's) request 
for delegation of authority to implement and enforce its hazardous air 
pollutant regulations which have been adopted by reference from the 
Federal requirements set forth in the Code of Federal Regulations. This 
approval will automatically delegate future amendments to these 
regulations. For sources which are required to obtain a Clean Air Act 
operating permit, this delegation addresses all existing hazardous 
pollutant regulations. For sources which are not required to obtain a 
Clean Air Act operating permit, this delegation presently addresses the 
hazardous air pollutant regulations for perchloroethylene drycleaning 
facilities, hard and decorative chromium electroplating and chromium 
anodizing tanks, ethylene oxide sterilization facilities, halogenated 
solvent cleaning and secondary lead smelting. In addition, EPA is 
taking direct final action to approve of AMS's mechanism for receiving 
delegation of all future hazardous air pollutant regulations which it 
adopts unchanged from the Federal requirements. This mechanism entails 
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 under this approval; therefore, 
sources will need to send notifications and reports to both AMS and 
EPA. This action pertains to affected sources, as defined by the Clean 
Air Act's (CAA or the Act's) hazardous air pollutant program. EPA is 
taking this action in accordance with the CAA.

DATES: This direct final rule will be effective April 1, 2002 unless 
EPA receives adverse or critical comments by February 28, 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 
Morris Fine, Director, Air Management Services, Department of Public 
Health, City of Philadelphia, 321 University Avenue, 2nd Floor, 
Philadelphia, PA 19104. 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 Air 
Management Services, Department of Public Health, City of Philadelphia, 
321 University Avenue, 2nd Floor, Philadelphia, PA 19104.

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 Code of Federal Regulations (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 at 40 CFR part 63. EPA promulgated the program approval 
regulations on November 26, 1993 (58 FR 62262) and subsequently amended 
these regulations on September 14, 2000 (65 FR 55810).

[[Page 4182]]

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 
National Emission Standards for Hazardous Air Pollutant (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 March 30, 1998, AMS, through a letter from the Pennsylvania 
Department of Environmental Protection (PADEP), submitted to EPA a 
request to receive delegation of authority to implement and enforce the 
hazardous air pollutant regulations which have been adopted by 
reference from 40 CFR part 63. On May 13, 1999, PADEP submitted a copy 
of an Agreement for Implementation of the Philadelphia County Air 
Pollution Control Program between PADEP and AMS. These two submissions 
provided detailed information on AMS's legal and enforcement authority, 
resources, and implementation procedures for addressing the hazardous 
air pollutant regulations, among other regulations, at facilities 
required to obtain an operating permit under 40 CFR part 70. On August 
29, 2001, AMS submitted to EPA a request to receive delegation of 
authority to implement and enforce the hazardous air pollutant 
regulations for perchloroethylene drycleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
ethylene oxide sterilization facilities, halogenated solvent cleaning 
and secondary lead smelting which have been adopted by reference from 
40 CFR part 63, subparts M, N, O, T and X, respectively. In this August 
29, 2001 request, AMS also asked that EPA automatically delegate future 
amendments to these specific regulations and approve AMS's mechanism 
for receiving delegation of all future hazardous air pollutant 
regulations which it adopts unchanged from the Federal requirements. 
This mechanism entails submission of a delegation request letter to EPA 
following EPA notification of a new Federal requirement.

II. EPA's Analysis of AMS's Submittal

    Based on AMS's program approval request and its pertinent laws and 
regulations, EPA has determined that such an approval is appropriate in 
that AMS has satisfied the criteria of 40 CFR 63.91. In accordance with 
40 CFR 63.91(d)(3)(i), AMS submitted two written findings by the City 
Solicitor which demonstrate that AMS 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), AMS submitted copies of its statutes, regulations and 
requirements that grant authority to AMS to implement and enforce the 
regulations. In accordance with 40 CFR 63.91(d)(3)(iii)-(v), AMS 
submitted documentation of adequate resources and a schedule and plan 
to assure expeditious City implementation and compliance by all 
sources. Therefore, the AMS program has adequate and effective 
authorities, resources, and procedures in place for implementation and 
enforcement of the emission standards of 40 CFR part 63 at sources 
required to obtain an operating permit under 40 CFR part 70 and the 
emission standards of 40 CFR part 63, subparts M, N, O, T and X at 
sources which are not required to obtain an operating permit under 40 
CFR part 70. In addition, the AMS program has adequate and effective 
authorities, resources and procedures in place for implementation and 
enforcement of any future emission standards, should AMS seek 
delegation for these standards. The AMS automatically adopts the 
emission standards promulgated in 40 CFR part 63 into its permitting 
program under Philadelphia Code 3-401 and Air Management Regulation I 
Section IX pursuant to section 6.6(a) of the Pennsylvania Air Pollution 
Control Act, 35 P.S. 4006.6(a) and 25 Pa. Code 127.35. The AMS has the 
primary authority and responsibility to carry out all elements of these 
programs for all sources covered in Philadelphia, including on-site 
inspections, record keeping reviews, and enforcement.

III. Terms of Program Approval and Delegation of Authority

    In order for AMS to receive automatic delegation of future 
amendments to the hazardous air pollutant regulations, as they apply to 
facilities required to obtain a permit under 40 CFR part 70, and to the 
hazardous air pollutant regulations for perchloroethylene drycleaning 
facilities, hard and decorative chromium electroplating and chromium 
anodizing tanks, ethylene oxide sterilization facilities, halogenated 
solvent cleaning and secondary lead smelting emission standards, as 
they apply to facilities not required to obtain a permit under 40 CFR 
part 70, each amendment must be legally adopted by the City of 
Philadelphia. As stated earlier, these amendments are automatically 
adopted into AMS's permitting program under Philadelphia Code 3-401 and 
Air Management Regulation I Section IX pursuant to section 6.6(a) of 
the Pennsylvania Air Pollution Control Act, 35 P.S. 4006.6(a) and 25 
Pa. Code 127.35. The delegation of amendments to these rules will be 
finalized on the effective date of the legal adoption.
    EPA has also determined that AMS'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 AMS 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 AMS 
outlining the authority to implement and enforce the standard. The 
delegation will be finalized within 10 days of receipt of the 
delegation letter unless AMS 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 AMS and EPA Region III. If at any time there is a 
conflict between a AMS regulation and a Federal regulation, the Federal 
regulation must be applied if it is more stringent than that of AMS. 
EPA is responsible for determining stringency between conflicting 
regulations. If AMS 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 AMS's procedure for enforcing or 
implementing the 40 CFR part 63 requirements is inadequate, or is 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):

[[Page 4183]]

    (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
    (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), and can only be exercised on a 
case-by-case basis. When any of these authorities are exercised, AMS 
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\
---------------------------------------------------------------------------

    \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 
Region 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 AMS may also refer to the 
Compendium of Applicability Determinations issued by the EPA and may 
contact EPA Region III for guidance.
---------------------------------------------------------------------------

    (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;
---------------------------------------------------------------------------

    \2\ The AMS will notify EPA of these approvals on a quarterly 
basis for 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.
---------------------------------------------------------------------------

    (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;
---------------------------------------------------------------------------

    \3\ The AMS 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.
---------------------------------------------------------------------------

    (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, AMS 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 AMS 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 AMS. 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 
Philadelphia. The AMS will comply with all of the requirements of 40 
CFR 63.91(g)(1)(ii). Quarterly reports will be submitted to EPA by AMS 
to identify sources determined to be applicable during that quarter.
    Although AMS has primary authority and responsibility to implement 
and enforce the hazardous air pollutant regulations, 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 AMS's request for delegation of authority to 
implement and enforce its hazardous air pollutant emission standards 
which have been adopted by reference from the Federal requirements set 
forth in 40 CFR part 63. This approval will automatically delegate 
future amendments to these regulations. For sources which are required 
to obtain an operating permit under 40 CFR part 70, this delegation 
addresses all existing hazardous pollutant emission standards as 
adopted by reference from 40 CFR part 63. For sources which are not 
required to obtain an operating permit under 40 CFR part 70, this 
delegation presently addresses the hazardous air pollutant regulations 
for perchloroethylene drycleaning facilities, hard and decorative 
chromium electroplating and chromium anodizing tanks, ethylene oxide 
sterilization facilities, halogenated solvent cleaning and secondary 
lead smelting as adopted by reference from 40 CFR part 63, subparts M, 
N, O, T and X. In addition, EPA is approving of AMS's mechanism for 
receiving delegation of all future hazardous air pollutant regulations 
which it adopts unchanged from the Federal requirements. This mechanism 
entails submission of a delegation request letter to EPA following EPA 
notification of a new Federal requirement. The delegation of authority 
shall be administered in accordance with the terms outlined in section 
IV., above. This delegation of authority is codified in 40 CFR 63.99. 
In addition, EPA Region III's address is corrected in 40 CFR 63.13.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial rule and anticipates no adverse 
comment because AMS's request for delegation of

[[Page 4184]]

the hazardous air pollutant regulations 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, 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 AMS's request for delegation if adverse comments are 
filed. This rule will be effective on April 1, 2002 without further 
notice unless EPA receives adverse comment by February 28, 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 (Public Law 104-4). This rule also does 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), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 (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. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings' issued under the executive order. 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 April 1, 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 AMS's delegation of 
authority for the hazardous air pollutant emission standards (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, Reporting and recordkeeping requirements.

    Dated: January 22, 2002
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.


    2. Section 63.13 is amended by correcting the address for EPA 
Region III as follows:


Sec. 63.13  Addresses of State air pollution control agencies and EPA 
Regional Offices.

    (a) * * *
    EPA Region III (Delaware, District of Columbia, Maryland, 
Pennsylvania, Virginia, West Virginia), Director, Air Protection 
Division, 1650 Arch Street, Philadelphia, PA 19103. * * *

[[Page 4185]]

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

    3. Section 63.99 is amended by adding paragraph (a)(38)(iii) to 
read as follows:


Sec. 63.99  Delegated Federal Authorities.

    (a) * * *
    (38) * * *
    (iii) Philadelphia is delegated the authority to implement and 
enforce all existing 40 CFR part 63 standards and all future unchanged 
40 CFR part 63 standards, if delegation is requested by the City of 
Philadelphia Department of Public Health Air Management Services and 
approved by EPA Region III, at sources within the City of Philadelphia, 
in accordance with the final rule, dated January 29, 2002, effective 
April 1, 2002, and any mutually acceptable amendments to the terms 
described in the direct final rule.

[FR Doc. 02-2121 Filed 1-28-02; 8:45 am]
BILLING CODE 6560-50-P