[Federal Register Volume 70, Number 57 (Friday, March 25, 2005)]
[Proposed Rules]
[Pages 15250-15264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5932]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 70, and 71

[OAR-2004-0010; FRL-7889-5]
RIN 2060-AM31


Proposal To Exempt Area Sources Subject to NESHAP From Federal 
and State Operating Permit Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: The EPA is proposing to exempt permanently from the title V 
operating permit program five categories of nonmajor (area) sources 
subject to national emission standards for hazardous air pollutants 
(NESHAP). The EPA is proposing to make a finding for these categories, 
consistent with the Clean Air Act requirement for making such an 
exemption, that compliance with Title V permitting requirements is 
impracticable, infeasible, or unnecessarily burdensome on the 
categories. The five source categories are dry cleaners, halogenated 
solvent degreasers, chrome electroplaters, ethylene oxide (EO) 
sterilizers and secondary aluminum smelters. The EPA is proposing to 
decline making such a finding for a sixth category, area sources 
subject to the secondary lead smelter NESHAP. A previous deferral from 
permitting for these six categories expired on December 9, 2004, 
subjecting all such sources to the title V program unless and until EPA 
finalizes an exemption for a category.

DATES: Comments must be received on or before May 24, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0010, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: Send electronic mail (e-mail) to EPA Docket Center 
at [email protected].
     Fax: Send faxes to EPA Docket Center at (202) 566-1741.
     Air and Radiation Docket, U.S. Environmental Protection 
Agency, Mail code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460.
     Hand Delivery: Air and Radiation Docket, U.S. 
Environmental Protection Agency, EPA West Building, Room B102, 1301 
Constitution Avenue, NW., Washington, DC 20004. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0010. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov websites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information may not be publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Air and Radiation Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, Information Transfer 
and Program Integration Division, Office of Air Quality Planning and 
Standards, Mail Code C304-04, U.S. Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711; telephone number: (919) 
541-3195; fax number:

[[Page 15251]]

(919) 541-5509; and e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:
    Outline. The contents of the preamble are listed in the following 
outline:

I. Background
    A. Affected Entities
    B. Statutory and Regulatory Requirements
II. Rationale for Today's Proposed Exemptions from Title V
    A. General Approach
    B. Dry Cleaning
    C. Chrome Plating
    D. Halogenated Solvent Degreasing
    E. Ethylene Oxide Sterilizers
    F. Secondary Aluminum
III. General Permits
IV. Request for Comment on Secondary Lead Area Sources
V. Environmental Results Program
VI. The Effects of the End of the Deferrals for Area Sources
VII. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Background

A. Affected Entities

    The entities affected by this rulemaking are area sources subject 
to a NESHAP promulgated under section 112 of the Clean Air Act (Act) 
since 1990 and listed in the table below. An ``area source'' is a 
source that is not a ``major source'' of hazardous air pollutants (HAP) 
under the NESHAP regulations. A ``major source'' under the NESHAP 
regulations is ``any stationary source or group of stationary sources 
located within a contiguous area and under common control that emits or 
has the potential to emit considering controls, in the aggregate, 10 
tons per year or more of any [HAP] or 25 tons per year or more of any 
combination of [HAP] * * *'' See definitions of ``area source'' and 
``major source'' at 40 CFR 63.2.
    This proposal, if finalized, would affect only whether an area 
source regulated by a NESHAP is required to obtain a title V operating 
permit and whether States are allowed to issue title V permits to 
exempt sources. It would have no other effect on any other requirements 
of the NESHAP regulations, nor on the requirements of the State or 
Federal title V operating permit programs.
    The affected categories are:

------------------------------------------------------------------------
                                                             Estimated
             Category                      NESHAP            number of
                                                            sources \1\
------------------------------------------------------------------------
Perchloroethylene dry cleaning....  Part 63, Subpart M..          30,000
Hard and decorative chromium        Part 63, Subpart N..           5,000
 electroplating and chromium
 anodizing.
Commercial ethylene oxide           Part 63, Subpart O..              40
 sterilization.
Halogenated solvent cleaning......  Part 63, Subpart T..           3,800
Secondary aluminum production.....  Part 63, Subpart RRR           1,316
Secondary lead smelting...........  Part 63, Subpart X..              3
------------------------------------------------------------------------
\1\ This estimated number includes both major and area sources, even
  though only area sources would be affected by this rulemaking. For dry
  cleaners and ethylene oxide sterilizers, almost all sources are area
  sources. For other categories listed here, EPA does not have
  information on the number of area sources.

B. Statutory and Regulatory Requirements

    Section 502(a) of the Clean Air Act (Act) sets forth the sources 
required to obtain operating permits under title V. These sources 
include: (1) Any affected source subject to the acid deposition 
provisions of title IV of the Act; (2) any major source; (3) any source 
required to have a permit under Part C or D of title I of the Act; (4) 
``any other source (including an area source) subject to standards or 
regulations under section 111 or 112'' [i.e., a source subject to new 
source performance standards (NSPS) under section 111 or NESHAP under 
section 112], and (5) any other stationary source in a category 
designated by regulations promulgated by the Administrator. See 
Sec. Sec.  70.3(a) and 71.3(a). The requirements of section 502(a) are 
primarily implemented through the operating permit program rules: Part 
70, which sets out the minimum requirements for title V operating 
permit programs administered by State, local, and tribal permitting 
authorities (57 FR 32261, July 21, 1992), and part 71, the Federal 
operating permit program requirements that apply where EPA or a 
delegate agency authorized by EPA to carry out a Federal permit program 
is the title V permitting authority (61 FR 34228, July 1, 1996). The 
area sources subject to NSPS under section 111 or NESHAP under section 
112 [addressed in category (4) above] are identified in Sec. Sec.  
70.3(a)(2) and (3) and Sec. Sec.  71.3(a)(2) and (3) as among the 
sources subject to title V permitting requirements.
    Section 502(a) of the Act also provides that ``the Administrator 
may, in the Administrator's discretion and consistent with the 
applicable provisions of [the Clean Air Act], promulgate regulations to 
exempt one or more source categories (in whole or in part) from the 
requirements [of section 502(a)] if the Administrator finds that 
compliance with such requirements is impracticable, infeasible, or 
unnecessarily burdensome on such categories, except that the 
Administrator may not exempt any major source from such requirements.'' 
Under current regulations, area sources subject to a NSPS or NESHAP may 
be deferred from permitting, permanently exempt from permitting, or 
required to get a permit.
    In the part 70 final rule issued on July 21, 1992, EPA permanently 
exempted from title V two categories of area sources that are subject 
to section 111 and 112 standards established prior to the part 70 rule 
(pre-1992 standards): New residential wood heaters subject to subpart 
AAA of part 60 (NSPS), and asbestos demolition and renovation 
operations subject to subpart M of part 61 (NESHAP). See Sec. Sec.  
70.3(b)(4) and 71.3(b)(4). The EPA also allowed permitting authorities 
under part 70 the option to defer permitting for other area sources 
subject to pre-1992 standards, while for part 71 purposes, we simply 
deferred them. The rationale for these deferrals was based on factors 
such as the burden imposed on the area sources and the impact on 
permitting authorities. See 57 FR 32261-32263 (July 21, 1992), and 
Sec. Sec.  70.3(b)(1) and 71.3(b)(1).

[[Page 15252]]

    The post-1992 standards, including the NESHAP for area sources that 
are the subject of today's proposal, previously have been addressed in 
Sec. Sec.  70.3(b)(2) and 71.3(b)(2), which states that EPA will 
determine whether to exempt from title V permitting any or all area 
sources subject to post-1992 NSPS or NESHAP at the time each new 
standard is promulgated. Consequently, EPA issued title V exemptions 
for several area sources subject to NESHAP in final rules under part 
63:
     All area sources within the NESHAP for publicly owned 
treatment works (POTW), Subpart VVV. See 63 FR 64742, October 21, 2002 
and Sec.  63.1592.
     Those area sources conducting cold batch cleaning within 
the NESHAP for halogenated solvent cleaning, Subpart T. See 59 FR 
61802, December 2, 1994, and Sec.  63.468(j). [Note that there are 
other area sources subject to this NESHAP that were subject to the 
deferral from permitting that expired on December 9, 2004; see next 
paragraph.]
     Three types of area sources (any decorative chromium 
electroplating operation or chromium anodizing operation that uses fume 
suppressants as an emission reduction technology, and any decorative 
chromium electroplating operation that uses a trivalent chromium bath 
that incorporates a wetting agent as a bath ingredient) within the 
NESHAP for hard and decorative chromium electroplating and chromium 
anodizing tanks, Subpart T. See 61 FR 27785, June 3, 1996, and Sec.  
63.340(e)(1). [Note that there are other area sources subject to this 
NESHAP that were subject to the deferral from permitting that expired 
on December 9, 2004; see next paragraph.]
    The EPA has also issued deferrals from title V permitting for area 
sources subject to post-1992 NESHAP in three final rules under part 63. 
These final rules deferred title V permitting for all remaining areas 
sources subject to the NESHAP above (those not exempted), and deferred 
title V permitting for all area sources subject to various other 
NESHAP:
     Area sources subject to the NESHAP for Perchloroethylene 
dry cleaning, subpart M; chromium electroplating and anodizing, subpart 
N; commercial ethylene oxide sterilization, subpart O; and secondary 
lead smelting, subpart X. See 61 FR 27785, June 3, 1996;
     Area sources subject to the NESHAP for halogenated solvent 
cleaning, subpart T. See 59 FR 61801, December 2, 1994, as amended by a 
June 5, 1995 correction notice (60 FR 29484); and
     Area sources subject to the NESHAP for secondary aluminum 
production, subpart RRR. See 65 FR 15690, March 23, 2000.
These rules established an initial 5-year deferral of area source 
permitting, which expired on December 9, 1999. The expiration date for 
the deferrals was extended to December 9, 2004 in a another final rule 
(64 FR 69637, December 14, 1999), which justified the extension on the 
grounds that the conditions that prompted the previous deferrals had 
not changed. Today's notice addresses all six categories of area 
sources subject to a post-1992 NESHAP that were subject to deferrals 
from permitting that expired on December 9, 2004.
    The deferral to date of title V permitting for the six categories 
of area sources subject to NESHAP addressed in this proposal was based, 
in large part, on the belief that requiring permitting in the earlier 
stages of program implementation would impose an impracticable, 
infeasible and unnecessary burden on the sources due to their 
substantial lack of technical and legal expertise and experience in 
environmental regulations. In addition, permitting of area sources 
would strain the resources of permitting authorities and compete with 
resources needed for major sources, which would make it difficult for 
area sources to obtain assistance from the permitting authorities. See 
61 FR 27785, June 3, 1996; 59 FR 61801, December 2, 1994; and FR 15690, 
March 23, 2000. Now that the implementation of State title V permit 
programs has reached the point where most of the major sources have 
been issued their initial permits, EPA is no longer considering an 
extension of the deferrals based on the reasons that were important 
years ago. Instead, we are now proposing to permanently exempt from 
title V permitting five of these six categories of area sources subject 
to NESHAP for different reasons discussed below.
    Under today's proposal, an area source is only exempt from title V 
permitting if it is not required to get a permit for other reasons. For 
example, if a particular NESHAP exempts an area source of HAP from 
permitting, the source would be required to obtain a permit if it is 
also a major source for a criteria pollutant (consistent with the 
definition of ``major source'' in Sec.  70.2). In such a situation, 
Sec.  70.3(a)(1) would independently require a major source permit, 
which would include the area source.
    The EPA also wishes to clarify its position with respect to title V 
permitting of area sources after the effective date of any permanent 
exemptions we may finalize. To date, the deferrals from title V 
permitting for these area sources have been optional for State part 70 
permit programs. A few States have reported to us that they have issued 
title V operating permits for various area sources that have been 
subject to these deferrals. See docket items 0002 and 0008. However, 
EPA believes that the Act does not authorize permitting authorities, 
including State and local agencies and EPA, to permit area sources 
under title V after EPA finalizes exemptions from title V for them. The 
EPA believes the Act contemplates that only those area sources required 
to be permitted under section 502(a), and not exempted by the 
Administrator through notice and comment rulemaking, are properly 
subject to title V requirements. Section 506(a) provides that 
permitting authorities ``may establish additional permitting 
requirements not inconsistent with this Act.'' The EPA believes that it 
would be inconsistent with the Act for States to include sources in 
their title V programs that EPA has exempted from title V because 
section 502(a) of the Act grants the Administrator alone discretion to 
define the universe of area sources subject to the title V programs. 
The EPA interprets Section 506(a) as preserving for States the ability 
to establish additional permitting requirements, such as procedural 
requirements, for sources properly covered by the program. In addition, 
EPA interprets Section 116 of the Act as allowing States to issue non-
title V permits to sources that have been exempted from, or are outside 
the scope of, the title V program. If such programs are approved in a 
SIP, they would be federally enforceable. The EPA believes that State 
issuance of title V permits to area sources that EPA has exempted from 
title V permitting requirements would conflict with Congress's intent 
that EPA define the universe of sources subject to title V and would be 
an obstacle to the implementation of the title V program. Even if the 
statute were ambiguous in this regard, EPA would exercise its 
discretion to interpret it this way to promote effective title V 
implementation.
    This means that State or local permitting authorities must stop 
issuing new title V permits to area sources after the effective date of 
any EPA exemption for such area sources, unless the sources are subject 
to title V for other reasons. Also, under the proposal's approach, if a 
State has already issued a permit to an area source and the area source 
is not subject to title V for other reasons, the

[[Page 15253]]

State would have to take an action to revoke, terminate, or deny the 
permit, after the effective date of any EPA exemption for such an area 
source. Unless a State permitting authority has a more specific 
procedure for terminating such permits, they must normally use the 
procedures for reopening for cause under Sec.  70.7(f). Section 
70.7(f)(1)(i) would require reopening for cause in this circumstance 
because once EPA has promulgated a title V exemption within the NESHAP 
(applicable requirement), the title V permit would no longer assure 
compliance with the applicable requirement. For the same reasons, State 
permitting authorities would generally be required to deny any 
application for a permit renewal for an area source EPA has exempted 
from title V, and EPA could find it necessary to object to the issuance 
of a permit for any such source or to take action to terminate or 
revoke such permit. (See section 505(e) of the Act, 40 CFR 70.7(c), (f) 
and 70.8(c).) The EPA requests comment on our interpretation that 
States may not issue title V permits to area sources we have 
permanently exempted from title V and that any existing permits for 
such sources must be terminated, revoked, or denied.
    If we finalize this proposal to exempt certain area sources from 
title V and to not allow States to permit such sources, certain 
revisions to part 70 will also be necessary. First, Sec.  70.3(a) 
requires State title V programs to provide for permitting ``at least 
the following sources,'' and then Sec. Sec.  70.3(a)(1) through (5) 
provides a specific list of sources to be permitted. The ``at least'' 
language has been interpreted by some to mean that States may require 
permits from area sources exempted from title V through notice and 
comment rulemaking by EPA. However, because EPA believes the Act does 
not allow the issuance of title V permits to area sources that we have 
exempted from title V, we propose to delete this ``at least'' language 
from Sec.  70.3(a). No similar changes are necessary for part 71. 
Second, Sec.  70.3(b)(3) allows any exempt source to ``opt to apply for 
a permit under a part 70 program.'' Section 71.3(b)(3) contains similar 
language. Because EPA believes the Act does not allow States to permit 
area sources subject to permanent exemptions from permitting, we 
propose to delete these provisions from part 70 and part 71. This 
proposed change means that area sources that have been exempted through 
rulemaking by EPA would not be able to volunteer for a title V permit 
because the permitting authority would not be allowed by our 
interpretation of sections 502(a) and 506(a) of the Act to permit such 
sources under title V. Third, the prefatory phrase of Sec.  70.3(b)(4), 
``Unless otherwise required by the state to obtain a part 70 permit,'' 
suggests that States may require title V permits from area sources we 
have exempted from title V, including sources subject to part 60 
(NSPS), subpart AAA, for residential wood heaters; and sources subject 
to part 61 (NESHAP), subpart M, for asbestos demolition and renovation. 
Because the prefatory phrase of Sec.  70.3(b)(4) is inconsistent with 
our interpretation of section 502(a) and 506(a) of the Act, we propose 
to delete it from part 70. No changes are necessary to the parallel 
regulatory provision of Sec.  71.3(b)(3) to conform with this 
interpretation.

II. Rationale for Today's Proposed Exemptions from Title V

A. General Approach

    Section 502(a) of the Act provides that `` * * * the Administrator 
may, in the Administrator's discretion and consistent with the 
applicable provisions of this Act, promulgate regulations to exempt one 
or more source categories (in whole or in part) from the requirements 
of this subsection if the Administrator finds that compliance with such 
requirements is impracticable, infeasible, or unnecessarily burdensome 
on such categories, except that the Administrator may not exempt any 
major source from such requirements.''
    The legislative history of the provision is not extensive, but does 
suggest that EPA should not grant exemptions where doing so would 
adversely affect public health, welfare, or the environment. See 
Chafee-Baucus Statement of Senate Managers, Environment and Natural 
Resources Policy Division 1990 CAA Leg. Hist. 905, Compiled November, 
1993 (in that ``[t]he Act requires EPA to protect the public health, 
welfare and the environment, * * * this provision of the permits title 
prevents EPA from exempting sources or source categories from the 
requirements of the permit program if such exemptions would adversely 
affect public health, welfare, or the environment'').
    In several previous rulemakings, EPA has stated that it would 
continue to evaluate the permitting authorities' implementation and 
enforcement of the standards for area sources not covered by title V 
permits. (See 61 FR 27785, June 3, 1996; and 64 FR 69639, December 14, 
1999). In developing today's proposal, EPA sought and relied on 
information from State and local permitting agencies on the level of 
oversight they perform on the sources addressed in today's proposal. 
Agencies responded with information on whether they issue State 
permits, perform routine inspections, and provide compliance assistance 
to these area sources and also information on the compliance rate and 
number of sources in each category. These results are summarized for 
each category of area sources in docket item 0002.
    The EPA also sought input from State small business ombudsmen and 
several trade associations representing dry cleaning, metal finishing, 
solvent cleaning and the aluminum industry. These representatives 
responded with recommendations and information on the area sources and 
compliance assistance programs currently available to them in certain 
States. This information is in the docket. (See docket items 0003, 
0006, and 0008.)
    Consistent with the statute, today's analysis focuses on whether 
compliance with title V permitting is ``impracticable, infeasible, or 
unnecessarily burdensome'' on the source categories. For the sources 
addressed in today's proposal, EPA has found the ``unnecessarily 
burdensome'' criterion to be particularly relevant. The EPA's inquiry 
into whether this criterion is satisfied for the area sources addressed 
in today's notice was primarily based on consideration of four factors, 
described below. The EPA determined on a case-by-case basis the extent 
to which one or more of the four factors is present for a given source 
category, and then determined whether, considered together, those 
factors that are present demonstrated that compliance with title V 
requirements would be unnecessarily burdensome.
    The first factor is whether title V would add any significant 
compliance requirements to those already required by the NESHAP. We 
looked at the compliance requirements of the NESHAP to see if they were 
substantially equivalent to the monitoring, recordkeeping and reporting 
requirements of Sec. Sec.  70.6 and 71.6 that we believe may be 
important for assuring compliance with the NESHAP. The purpose of this 
was to determine if title V is ``unnecessary'' to improve compliance 
for these NESHAP requirements at these areas sources. Thus, a finding 
that title V would not result in significant improvements to compliance 
requirements, over the compliance requirements already required by the 
NESHAP, would support a conclusion that title V

[[Page 15254]]

permitting is ``unnecessary'' for area sources in that category. One 
way that title V may improve compliance is by requiring monitoring 
(including recordkeeping designed to serve as monitoring) to assure 
compliance with the emission limitations and control technology 
requirements imposed in the standard. The authority for adding new 
monitoring in the permit is in the ``periodic monitoring'' provisions 
of Sec. Sec.  70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B), which only allows 
new monitoring to be added to the permit when the underlying standard 
does not already require ``periodic testing or instrumental or 
noninstrumental monitoring (which may consist of recordkeeping designed 
to serve as monitoring).'' Also see the so-called ``umbrella 
monitoring'' rule, which explains the minimum monitoring requirements 
for operating permits (69 FR 3202, January 22, 2004). Under the 
umbrella monitoring rule interpretation and the periodic monitoring 
rule, title V permits would not typically add any new monitoring for 
post-1992 NESHAP, including the NESHAP that are addressed in today's 
proposal. Because of this, title V permits are not likely to add any 
new or different monitoring (including recordkeeping designed to serve 
as monitoring) to the NESHAP, and thus, at least with regard to 
assuring compliance with the NESHAP through monitoring, title V 
permitting for area sources in that category is likely to be 
``unnecessary.'' In addition, title V imposes a number of recordkeeping 
and reporting requirements that may be important for assuring 
compliance. These include requirements for a monitoring report at least 
every six months, prompt reports of deviations, and an annual 
compliance certification. See Sec. Sec.  70.6(a)(3) and 71.6(a)(3), 
Sec. Sec.  70.6(c)(1) and 71.6(c)(1), and Sec. Sec.  70.6(c)(5) and 
71.6(c)(5). When we use this first factor in our findings below, we 
will discuss the extent to which the compliance requirements of the 
NESHAP are substantially equivalent to the compliance requirements of 
part 70 and 71 discussed here.
    The second factor is whether the area sources subject to a NESHAP 
possesses characteristics that would contribute to title V permitting 
imposing a significant burden on them, and whether this burden could be 
aggravated by difficulty in obtaining assistance from permitting 
agencies.
    The third factor, which is closely related to the second factor, is 
whether the costs of title V permitting for area sources subject to a 
NESHAP would be justified, taking into consideration any potential 
gains in compliance likely to occur for such sources.
    Concerning the second and third factors, subjecting any source to 
title V permitting imposes certain burdens and costs that do not exist 
outside of the title V program. The EPA estimated that the true average 
annual cost of obtaining and complying with a title V permit was $7,700 
per year per source, including fees. (See Information Collection 
Request for Part 70 Operating Permit Regulations, January 2000, EPA 
 1587.05, docket item 0007.) The EPA does not have specific 
estimates for the burdens and costs of permitting area sources, 
however, the permit rules allow area source permits to have a reduced 
scope, compared to major source permits. Major source permits are 
required to include all applicable requirements for all relevant 
emissions units in the major source. See Sec. Sec.  70.3(c)(1) and 
71.3(c)(1). The permit rules require area source permits to include all 
applicable requirements applicable to the emissions units that cause 
the source to be subject to title V permitting. See Sec. Sec.  
70.3(c)(2) and 71.3(c)(2). Because of this, there may be emissions 
units at a facility that would not be included in an area source permit 
(because they are not subject to the NESHAP that triggered the 
requirement to get the permit), but would be included in any major 
source permit for a similar facility. In addition, EPA does not have 
specific estimates for source burdens and costs associated with general 
permits. However, we have made some assumptions about how burdens and 
costs would be reduced for general permits, and this is discussed more 
thoroughly in Section III of this preamble. Nevertheless, irrespective 
of the number of units included in the permit and the type of permit 
(standard or general), there are certain source activities associated 
with the part 70 and 71 rules. These activities are mandatory and 
impose burdens on the source. They include: Reading and understanding 
permit program guidance and regulations; obtaining and understanding 
permit application forms; answering follow-up questions from permitting 
authorities after the application is submitted; reviewing and 
understanding the permit; collecting records; preparing and submitting 
monitoring reports on a six-month or more frequent basis; preparing and 
submitting prompt deviation reports, as defined by the State, which may 
include a combination of written, verbal, and other communications 
methods; collecting information, preparing, and submitting the annual 
compliance certification; preparing applications for permit revisions 
every five years; and, as needed, preparing and submitting applications 
for permit revisions. In addition, although not required by the permit 
rules, many sources obtain the contractual services of professional 
scientists and engineers (consultants) to help them understand and meet 
the permitting programs's requirements. The ICR for part 70 may help 
you to understand the overall burdens and costs, as well as the 
relative burdens of each activity described here. Also, for a more 
comprehensive list of requirements imposed on part 70 sources (hence, 
burden on sources), see the requirements of Sec. Sec.  70.3, 70.5, 
70.6, and 70.7.
    The fourth factor is whether adequate oversight by State and local 
permitting authorities could achieve high compliance with the 
particular NESHAP requirements without relying on title V permitting. A 
conclusion that high compliance can be achieved without relying on 
title V permitting would support a conclusion that title V permitting 
is ``unnecessary'' for those sources. Information contained in docket 
items 0002, 0003, 0006 and 0008 shows that many permitting authorities 
have alternative compliance oversight programs that result in high 
compliance with NESHAP requirements without relying on title V permits.
    In addition to determining whether compliance with title V 
requirements would be ``impracticable, infeasible or unnecessarily 
burdensome'' for the area sources, EPA also considered, consistent with 
the guidance provided by the legislative history of section 502(a), 
whether exempting the area sources would adversely affect public 
health, welfare, or the environment.
    The EPA believes the vast majority of area sources proposed today 
for exemption from title V permitting in this notice are typically 
subject to not more than one NESHAP, and few other requirements under 
the Act, and that these NESHAP are relatively simple in how they apply 
to these sources. One of the primary purposes of the title V program is 
to clarify, in a single document, the various and sometimes complex 
regulations that apply to sources in order to improve understanding of 
these requirements and to help sources to achieve compliance with the 
requirements. The vast majority of NSPS and NESHAP standards apply only 
to major sources, with only a small number of such standards regulating 
any activities at area sources. It is beyond the scope of this notice 
to provide a comprehensive list of Federal standards that specifically

[[Page 15255]]

regulate area sources, but there are currently only about 12 NESHAP and 
NSPS, and several categories of solid waste incinerators under section 
129 that do so. Because there are so few standards that regulate areas 
sources, the likelihood that multiple NSPS or NESHAP would apply to 
these areas source is low. Also see docket item 0008, where State of 
Georgia officials explain that State operating permits for halogenated 
solvent cleaners, chrome platers, and secondary aluminum smelters are 
``significantly less complex'' than title V permits, and where, for 
cost estimation purposes, they consider major source EO sterilizers and 
area MACT sources comparable because they are ``(1) relatively simple 
facilities with a single process, and (2) generally subject to only one 
applicable requirement--the ethylene oxide MACT standard.'' Aside from 
Federal standards that may impose applicable requirements on these area 
sources, EPA-approved SIP's will contain so-called ``generic'' 
applicable requirements that are likely to apply to these area sources. 
``Generic'' applicable requirements are relatively simple requirements 
that apply identically to all emissions units at a facility (e.g., 
source-wide opacity limits and general housekeeping requirements). 
Because of their nature, EPA has previously advised States that they 
did not warrant comprehensive treatment in permits. (See White Paper 
Number 2 for Improved Implementation of the Part 70 Operating Permits 
Program, March 5, 1996.) For these reasons, as well as the source-
specific reasons described below, EPA believes exempting these sources 
will not adversely affect public health, welfare, or the environment.
    Also, requiring permitting of area sources will likely cause, at 
least in the first few years of implementation, permitting authorities 
to shift resources away from assuring compliance for major sources with 
existing permits, to issuing new permits for area sources. This has the 
potential, at least temporarily, to reduce the overall effectiveness of 
the States' title V permit programs, which could potentially adversely 
affect public health, welfare, or the environment. See docket item 
0008, where State of Georgia officials explain that permitting all the 
area sources proposed for exemption in today's notice would triple the 
number of title V permits issued in the State of Georgia, and that, 
among other possible implementation concerns, it would be ``difficult 
if not impossible'' for them to obtain approval to obtain additional 
full time employees. Although State permit programs have authority to 
raise whatever fees are necessary to cover the costs of the program, in 
most States, the program does not have independent authority to 
increase its budget or fees. In many States, any such increases must be 
approved by the legislature within the State budget process, which can 
lead to significant delays in getting necessary authority to meet new 
demands.
    Finally EPA solicits comment on our general approach to determining 
if these area sources should be exempt from permitting. First, we 
solicit comment on whether the factors we used to reach the findings in 
today's proposal are the most appropriate factors to use for these 
purposes, and if there are other factors that may be more appropriate. 
Second, we solicit comment on how these NESHAP apply to these area 
sources, any circumstances where multiple NESHAP may apply to area 
source subject to these NESHAP, the other applicable requirements that 
apply to these area sources, and the nature of these other applicable 
requirements. Third, we solicit input on the likelihood that requiring 
permits of area sources subject to these NESHAP will cause permitting 
authorities to shift resources away from major sources, at least on a 
temporary basis, the potential affect this may have on assuring 
compliance with existing permits for major sources, and the potential 
for this to adversely affect public health, welfare, or the 
environment. Fourth, we solicit comment on the specific burdens and 
costs on these area sources in the event that they are required to get 
permits, including the potential for difficulty for the source in 
obtaining assistance from the permitting authority, and whether the 
costs for sources are justified with respect to any potential 
compliance gains that may be achieved through permitting. Fifth, we 
solicit comment seeking more accurate data on the number of area 
sources subject to each specific NESHAP addressed in today's proposal.

B. Dry Cleaning

    The dry cleaning NESHAP applies to an estimated 30,000 area source 
dry cleaning facilities using Perchloroethylene, or PCE, which is known 
to cause cancer in animals, which is suspected to cause cancer in 
humans, and which also has non-cancer toxic effects.
    The EPA proposes to exempt area source dry cleaners from title V 
for three reasons.
    First, requiring title V permits would impose a relatively 
significant burden on these sources. Dry cleaners are typically very 
small ``mom and pop'' retail establishments employing only a few 
people. Dry cleaners have extremely limited technical and economic 
resources. According to the International Fabricare Institute, 85 
percent of dry cleaners are small, single-family, independent 
operations. The average dry cleaner employs 5 people. Profit margins 
are less than 1% on average, and the average (median) dry cleaner has 
annual revenues (sales) of $200,000. (See economic profile in docket 
Item 0004.) Unlike the larger major sources, area source dry cleaners 
would typically have no staff trained in environmental requirements and 
would find it difficult to hire outside professionals to help them 
understand and assure compliance with the permitting requirements. Also 
see discussion in section II.A of this preamble on the burdens and 
costs that title V permitting imposes on sources generally.
    In EPA's outreach in recent years, several State agencies have told 
us that, in their experience, implementing area source emissions 
standards, such as the dry cleaning NESHAP, through permits did not 
result in increased compliance with the emissions standards. They 
reported that successful implementation of emission standards at area 
sources could only be achieved by spending significant one-on-one 
effort explaining the requirements in simple, non-regulatory terms the 
operators could understand. Even so, agencies reported that many 
follow-up visits were needed to verify that the requirements were 
understood and followed. (See docket items 0003, 0006, and 0008.) This 
experience illustrates that permitting may not significantly help area 
sources to reach compliance with the standards, and that permitting 
would impose an added burden that they would find difficult to meet, 
given the lack of financial and technical resources of the majority of 
such sources.
    Adding to this burden on dry cleaners is the difficulty they may 
encounter in obtaining adequate and timely assistance from permitting 
authorities. The addition of 30,000 area source dry cleaners to the 
national title V universe of approximately 18,000 major sources would 
substantially increase the volume of sources requiring operating 
permits. In some jurisdictions, the number of area source dry cleaners 
needing permits would dwarf the current title V source universe. For 
example, Sacramento County (15 title V sources) reports 400 dry 
cleaners; Puget Sound (44 title V sources) estimates over 500 dry 
cleaners. State and local permitting authorities are beginning to renew 
significant numbers of title V permits

[[Page 15256]]

and the resources needed to permit area source dry cleaners would 
likely compete with the resources needed for the permitting of major 
sources.
    Second, the costs associated with title V permitting would be 
significant for the average dry cleaner. While there are no cost 
estimates for area sources in the ICR, it is reasonable to assume that 
the cost of permitting area sources will be less because they are 
generally less complex than major sources and the permits contain fewer 
emissions units and fewer applicable requirements. Even if costs for 
dry cleaners were only half the average cost for a major source, the 
costs would still represent an excessively high percentage of sales for 
the average dry cleaner. This would be especially true for the smallest 
dry cleaners, those that collect only $75,000 per year in revenue. (See 
Economic Impact Analysis of Regulatory Controls in the Dry Cleaning 
Industry, EPA-45/3-91-021b.) Also, as described above, the judgement of 
many permitting authorities is that implementing area source emissions 
standards, such as the dry cleaning NESHAP, through permits would not 
result in increased compliance with the emissions standards. Thus, EPA 
believes that the costs of title V permitting for area sources subject 
to the drycleaner NESHAP would not be justified taking into 
consideration the low potential for compliance gains from permitting 
such sources.
    Third, title V permitting is not necessary to improve compliance 
for dry cleaners. Based on EPA's outreach, out of 25 State and local 
agencies that reported a compliance rate for area sources dry cleaners, 
13 reported that they were able to achieve high compliance rates 
without title V permits. (See table for dry cleaners in docket item 
0002.) These agencies employ a mix of State permits, frequent 
inspections and appropriate compliance assistance. While the remaining 
permitting authorities reported lower compliance rates, the outreach 
shows that title V permitting is not a necessary element for achieving 
high levels of compliance with the NESHAP for area sources, when States 
have other options available to them, such as inspection and oversight 
programs.
    Furthermore, resources needed to permit dry cleaners would compete 
with resources needed to permit major sources, and might actually 
reduce the overall effectiveness of the title V program. This is 
especially true for area source dry cleaners because we estimate there 
are as many as 30,000 of them nationally, with the total number of 
major sources required to get permits estimated at about 18,000 
nationally.
    Taken together, these factors support a finding that title V 
permitting would be unnecessarily burdensome on area sources subject to 
the dry cleaner NESHAP and that title V exemption for these sources 
would not adversely affect public health, welfare, or the environment. 
Therefore, EPA proposes that area sources subject to this NESHAP be 
exempt from title V permitting.

C. Chrome Plating

    The NESHAP for hard and decorative chrome electroplating and 
chromic acid anodizing, subpart N, regulates a number of different 
operations, which are significant emitters of chromium compounds to the 
atmosphere. About two-thirds of the chromium compound emissions from 
all chromium sources are in the form of chromium VI. Human studies have 
established that inhaled chromium VI is a human carcinogen, resulting 
in an increased risk of lung cancer. Chromium VI also has acute 
noncancer effects on the respiratory, gastrointestinal and neurological 
systems.
    The EPA permanently exempted from title V permitting several area 
source operations that are regulated by the standard (any decorative 
chromium electroplating operation or chromium anodizing operation that 
uses fume suppressants as an emission reduction technology, and any 
decorative chromium electroplating operation that uses a trivalent 
chromium bath that incorporates a wetting agent as a bath ingredient), 
see Sec.  63.340(e)(1). (Also see the final rule, 61 FR 27785, June 3, 
1996.) The rationale used to exempt these operations was that the 
standard could be implemented outside of a title V permit, and that the 
standard had recordkeeping and reporting requirements similar to what 
title V would impose.
    Although no specific cost or burden estimates are available to EPA 
for area sources subject to this NESHAP, EPA believes that the costs 
and burdens of title V permitting for an area source subject to this 
NESHAP would be significant. For information on burdens and cost 
associated with title V permitting in general, see the detailed 
discussion in section II.A of this preamble.
    For today's proposal, EPA also considered whether title V would add 
any significant compliance requirements to those already required by 
the NESHAP. After a comparison of the compliance requirements of the 
NESHAP to those of title V, EPA concludes that they are substantially 
equivalent. As explained in section II.A, chrome electroplaters already 
have ``periodic testing or instrumental or noninstrumental monitoring 
(which may consist of recordkeeping designed to serve as monitoring),'' 
thus, title V's periodic monitoring rules would not apply to these 
sources, and title V would not add any monitoring for these sources 
over what is already required by the NESHAP. The chromium NESHAP 
requires area sources to submit ongoing compliance status reports, 
which must include a description of the NESHAP limitations or work 
practice standards, the operating parameters monitored to show 
compliance, information about the results of monitoring, including 
about excess emissions and exceedances, and a certification by a 
responsible official that work practices were followed. See Sec.  
63.347(h). Similarly, title V rules require a 6-month monitoring 
report, prompt reporting of deviations, and an annual compliance 
certification. See Sec. Sec.  70.6(a)(3)(iii) 71.6(a)(3)(iii), and 
Sec. Sec.  70.6(c)(5) and 71.6(c)(5). Title V requires deviation 
reports and monitoring reports to be submitted at least every 6 months, 
while the NESHAP requires excess emissions reports to be submitted on 
an annual basis, unless periods of excess emissions exceed 1 percent of 
operating time, or malfunctions exceed 5 percent of operating time, in 
which case the reports must be submitted on a semiannual basis. The 
NESHAP requirement for an on-going compliance status reports also 
satisfies many of the requirements of title V for the annual compliance 
certification. Although these two sets of requirements are not exactly 
the same, they are very similar, and the differences are not 
significant. Thus, EPA believes the compliance requirements of title V 
and the NESHAP are substantially equivalent, such that title V 
permitting will likely result in added burdens, which are unnecessary 
to improve compliance.
    Taken together, these factors support a finding that title V 
permitting would be unnecessarily burdensome on area sources subject to 
the chromium electroplating NESHAP and that title V exemption for these 
sources would not adversely affect public health, welfare, or the 
environment. Therefore, EPA proposes that area sources subject to this 
NESHAP be exempt from title V permitting.

D. Halogenated Solvent Degreasing

    The EPA proposes to exempt area sources regulated by solvent 
degreasing NESHAP from title V for two reasons.

[[Page 15257]]

    First, requiring title V permits would impose a significant burden 
on area source solvent cleaners (degreasers) subject to this NESHAP. 
Area source degreasing operations are typically very small operations 
employing only a few people. (See economic data in docket item 0004.) 
We believe these operations have limited technical and economic 
resources and little experience in environmental regulations. Unlike 
the larger major sources, area source degreasing operations typically 
have no staff trained in environmental requirements and are generally 
unable to afford to hire outside professionals to assist them with 
understanding and meeting the permitting requirements. In addition, our 
outreach to States showed a general preference by them for implementing 
each of the NESHAP addressed in today's proposal through one-on-one 
outreach, including followup visits, rather than by using title V 
permits. (See docket items 0003, 0006, and 0008.) Thus, EPA believes 
title V permits will not significantly help these sources to comply 
with the NESHAP requirements, and that the permitting requirements 
would be an additional burden they would have difficulty meeting. 
Although no specific cost or burden hour estimates are available to EPA 
for area sources in general, or for sources subject to this NESHAP in 
particular, EPA believes that the costs and burdens of title V 
permitting for an area sources subject to this NESHAP would be 
significant. For information on burdens and cost associated with title 
V permitting in general, see the detailed discussion in section II.A of 
this preamble.
    Second, requiring title V permits of area source solvent degreasers 
does not appear necessary to improve compliance with the NESHAP. From 
EPA's research on area source oversight, 10 State and local agencies 
(of 48 reporting) have shown the ability to achieve high compliance 
rates with area source halogenated solvent cleaners without title V 
permits. See table for degreasers in docket item 0002. These agencies 
employ a mix of State permits, frequent inspections and appropriate 
compliance assistance. While the remaining permitting authorities 
reported lower (or unknown) compliance rates, EPA believes this 
outreach shows that title V permitting is not a necessary element for 
achieving high levels of compliance by these area sources with the 
NESHAP.
    Taken together, these factors support a finding that title V 
permitting would be unnecessarily burdensome on area sources subject to 
the halogenated solvent degreaser NESHAP and that title V exemption for 
these sources would not adversely affect public health, welfare, or the 
environment. Therefore, EPA proposes that area sources subject to this 
NESHAP be exempt from title V permitting.

E. Ethylene Oxide Sterilizers

    Ethylene oxide (EO) sterilizers are a source of emissions of 
ethylene oxide, which is classified as a probable human carcinogen and 
has adverse effects on the reproductive system. Although no specific 
cost or burden hour estimates are available for area sources in 
general, or for sources subject to this NESHAP, EPA believes that the 
costs and burdens of title V permitting for these sources would be 
significant. For information on burdens and cost associated with title 
V permitting in general, see the detailed discussion in section II.A of 
this preamble.
    First, EPA considered whether title V added any significant 
compliance requirements to those already required by the EO sterilizer 
NESHAP. We compared the compliance requirements of the NESHAP with 
title V's requirements, and found that the requirements are 
substantially equivalent when the source employs continuous monitoring 
methods to assure proper operation and maintenance of its control 
equipment. The EPA also notes that although we have no data to show the 
percentage of area sources regulated by this standard that actually 
employ continuous monitoring methods, we believe most EO sterilizers 
will use both thermal oxidizers and scrubbers to meet the emission 
limitations of the standard, that continuous monitoring methods 
(instrumentational temperature readings) will be used to show 
compliance when thermal oxidizers are employed, and that noncontinuous 
monitoring methods (e.g., weekly readings of glycol levels in tanks) 
will be used to show compliance when scrubbers are employed.
    Both the continuous and noncontinuous monitoring methods required 
by these standards provide ``periodic testing or instrumental or 
noninstrumental monitoring (which may consist of recordkeeping designed 
to serve as monitoring),'' thus, title V's periodic monitoring rules 
would not apply to these sources, whether they employ continuous or 
noncontinuous monitoring methods, and title V would not add any 
monitoring for these sources over what is already required by the 
NESHAP.
    When continuous monitoring is used, the NESHAP requires excess 
emissions reports to be submitted on a semiannual basis. These excess 
emissions reports must include information about continuous monitoring 
of process and control system parameters, and periods of excess 
emissions, including any corrective actions taken (Sec.  63.10(e)(3)). 
This information is similar to the information required in the prompt 
deviation and monitoring reports under the title V rules (Sec. Sec.  
70.6(a)(3)(iii) and 71.6(a)(3)(iii)). The annual compliance 
certification report requirement of title V is not met by the NESHAP, 
so the permit would impose this additional compliance obligation, if 
the source were required to get a permit. When monitoring is not 
continuous, the NESHAP does not require excess emissions reports to be 
submitted, and consequently, title V would add more requirements, such 
as prompt deviation reporting, six-month monitoring reports, and an 
annual certification of compliance.
    At least for sources with continuous monitoring methods, EPA 
believes the absence of the annual certification report is not likely 
to have a significant impact on compliance with the NESHAP. In 
particular, EPA points to the monitoring requirements of the standards, 
which meets all title V requirements, and the excess emission report 
requirements, which provide useful compliance data based on the 
monitoring results, including identification of all periods of 
noncompliance with the emission standard or control system parameters. 
Even though the differences between the NESHAP and the title V 
compliance requirements are more pronounced in this case (compared to 
chrome electroplaters, for example), we believe the differences are not 
significant enough to find that requiring title V permits would result 
in significant improvements to compliance requirements, compared to the 
compliance requirements required by the NESHAP. Thus, at least for 
sources using continuous monitoring methods, we believe title V would 
not add requirements that would significantly improve compliance with 
the EO sterilizer NESHAP, and thus, title V would be unnecessary for 
these area sources. Although EPA believes the typical source subject to 
this NESHAP uses both continuous and noncontinuous monitoring, we 
solicit comment on the percentage of area sources subject to this 
NESHAP that use continuous monitoring methods. In addition, we solicit 
comment on the extent to which NESHAP compliance may be improved by 
requiring these area sources to conduct annual

[[Page 15258]]

compliance certification under title V, including the extent to which 
any such improvements would be derived from the threat of enforcement 
for a false compliance certification.
    Second, regardless of the type of monitoring used, requiring title 
V permits of these area sources is not necessary to achieve compliance. 
Based on EPA's outreach, 10 State and local agencies reported their 
compliance rates for area sources regulated by the EO sterilizer NESHAP 
as either high (in 9 cases) or ``in compliance'' (in 1 case) without 
relying on title V operating permits. (See table for EO sterilizers in 
docket item 0002.) These agencies employ a mix of State permits, 
frequent inspections and appropriate compliance assistance. This shows 
that title V permitting is not a necessary element for achieving high 
levels of compliance for these area sources.
    Taken together, these factors support a finding that title V 
permitting would be unnecessarily burdensome on area sources subject to 
the EO sterilizer NESHAP and that title V exemption for these sources 
would not adversely affect public health, welfare, or the environment. 
Therefore, EPA proposes that area source subject to this NESHAP be 
exempt from title V permitting.

F. Secondary Aluminum

    The EPA proposes to exempt area sources subject to the secondary 
aluminum NESHAP from title V permitting for three reasons.
    First, title V permitting would impose a burden on area sources 
subject to the secondary aluminum NESHAP that would be difficult for 
them to meet with current resources. In 2001, there were over 1,300 
facilities in the secondary aluminum industry. Half of these facilities 
employed fewer than 20 employees. (See economic data in docket item 
0004.) These small sources would likely lack the technical resources 
needed to comprehend and comply with permitting requirements and the 
financial resources needed to hire the necessary staff or outside 
consultants. Although no specific cost or burden hour estimates are 
available for area sources subject to this NESHAP, EPA believes that 
the costs and burdens of title V permitting for an area source subject 
to this NESHAP would be significant. For information on burdens and 
cost associated with title V permitting in general, see the detailed 
discussion in section II.A of this preamble.
    Second, EPA considered whether title V added any significant 
compliance requirements to those already required by the secondary 
aluminum NESHAP. We compared the compliance requirements of the NESHAP 
with title V's requirements, and found that the requirements are 
substantially equivalent when the source employs continuous monitoring 
of temperature to show compliance with the NESHAP. The EPA also notes 
that no specific data are available, but EPA believes most secondary 
aluminum facilities will comply with the standard using baghouses or 
thermal oxidizers (using continuous temperature monitoring to show 
compliance), while a few will use scrubbers (using noncontinuous 
compliance methods). Both the continuous and noncontinuous monitoring 
methods required by these standards provide ``periodic testing or 
instrumental or noninstrumental monitoring (which may consist of 
recordkeeping designed to serve as monitoring).'' Thus, title V's 
periodic monitoring rules would not apply to these sources, whether 
they employ continuous or noncontinuous monitoring methods, and title V 
permits would not add any monitoring for these sources over what is 
already required by the NESHAP.
    For most sources (where continuous temperature monitoring is used), 
the NESHAP requires excess emissions reports to be submitted on a 
semiannual basis. These excess emissions reports must include 
information about continuous monitoring of process and control system 
parameters, and periods of excess emissions, including any corrective 
actions taken [see Sec.  63.10(e)(3)]. This information is similar to 
the information required in the prompt deviation and six-month 
monitoring reports of the title V rules (Sec. Sec.  70.6(a)(3)(iii) and 
71.6(a)(3)(iii)). The requirement of title V for an annual compliance 
certification report is not met by the NESHAP, so this obligation would 
be added to the requirements imposed by the permit, if the source were 
required to get a permit. The EPA believes the absence of the annual 
certification report for these area sources is not likely to have a 
significant impact on compliance. In particular, EPA points to the 
monitoring requirements of the standards, which meets all title V 
requirements, and the excess emission report requirements, which 
provide useful compliance data based on the monitoring results, 
including identification of all periods of noncompliance with the 
emission standard or control system parameters. Although there are 
differences between the NESHAP and title V compliance requirements, we 
believe the differences are not great enough to have a significant 
affect on compliance with the NESHAP for these area sources. Thus, for 
most area sources subject to the secondary aluminum NESHAP, title V 
would not add requirements that would significantly improve compliance 
with the NESHAP, and thus, title V would be unnecessary for these area 
sources. The EPA solicits comment on the percentage of area sources 
subject to this NESHAP that use continuous monitoring methods. In 
addition, we solicit comment on the extent to which NESHAP compliance 
may be improved by requiring these area sources to conduct annual 
compliance certification under title V, including the extent to which 
any such improvements would be derived from the threat of enforcement 
for a false compliance certification.
    Third, requiring title V permits of these area sources is 
unnecessary to improve compliance. Four out of five State and local 
agencies have shown that they are able to achieve high compliance rates 
with area source secondary aluminum facilities without title V permits. 
(See table for secondary aluminum in docket item 0002.) These agencies 
employ a mix of State permits, frequent inspections and appropriate 
compliance assistance. This shows that title V permitting is not a 
necessary element for achieving high levels of compliance with the 
secondary aluminum standard for area sources.
    Taken together, these factors support a finding that title V 
permitting would be unnecessarily burdensome on area sources subject to 
the secondary aluminum NESHAP and that title V exemption for these 
sources would not adversely affect public health, welfare, or the 
environment. Therefore, EPA proposes that area source subject to this 
NESHAP be exempt from title V permitting.

III. General Permits

    In the preceding Section of this preamble, EPA discusses proposed 
findings of unnecessary burden for five categories of area sources. In 
doing so, we generally discussed burdens and costs associated with 
title V permitting for sources. This information was focused primarily 
on the area sources being issued standard (non-general) title V 
permits. However, title V allows issuance of general permits in 
appropriate circumstances. See section 504(d) of the Act, and 
Sec. Sec.  70.6(d) and 71.6(d). A general permit is issued by the 
permitting authority for a source category as defined by certain types 
of equipment, operations, processes, and emissions. A general permit 
under title V provides a streamlined process for

[[Page 15259]]

issuing permits to a large number of similar sources. Specifically, 
this means that, compared to standard permits under title V, general 
permits typically require less comprehensive permit applications and 
have simpler permit application procedures. Area sources in the NESHAP 
categories addressed in today's proposal have essentially similar 
operations or processes, emit pollutants with similar characteristics, 
and are subject to the same or substantially similar requirements 
governing emissions, operation, monitoring, recordkeeping and 
reporting, thus, such sources may be candidates for general permits.
    Although general permits could potentially reduce the burdens and 
costs of permitting area sources, when all of the factors used in our 
analysis in Section II of this preamble are considered for general 
permits, EPA believes the potential burden and cost reduction is not 
sufficient enough to cause us to alter the findings we made in the 
preceding Section of the preamble. The following analysis looks at how 
each of the factors we used in Section II might be affected under a 
general permitting approach.
    The first factor, whether title V would add significant compliance 
requirements, chiefly monitoring recordkeeping, and reporting, to those 
already required by the NESHAP, was cited in Section II of this 
preamble for area sources subject to the NESHAP for chrome plating, EO 
sterilizing, and secondary aluminum. Under the permit rules, general 
and standard permits are subject to the same permit content 
requirements under Sec. Sec.  70.6 and 71.6, including recordkeeping, 
reporting, and monitoring requirements. Thus, with respect to the first 
factor, title V would affect units to which the NESHAP applies in the 
same manner for general permits, as for standard permits.
    The second factor, the overall burdens on the sources and whether 
permitting authorities can provide adequate assistance to the sources, 
was cited in Section II of this preamble for area sources subject to 
NESHAP for dry cleaning, solvent degreasing, and secondary aluminum. 
For these sources, the previous analysis pointed out that these sources 
lacked resources and experience with environmental regulations. 
Although general permit would potentially simplify the permit 
application process, a general permit would still contain the same 
applicable requirements of the NESHAP. This is true because the permit 
content requirements of Sec. Sec.  70.7 and 71.6, such as monitoring, 
recordkeeping and reporting, are the same for standard and general 
permits. Thus, even if applying for a general permit is less of a 
burden, sources will have significant burdens and costs associated with 
understanding and complying with the general permit requirements. (Also 
see section II.A of this preamble for a discussion of the costs and 
burdens imposed by title V on sources). Accordingly, although general 
permits may reduce the cost of applying for a permit, there is a 
possibility that the remaining burdens of complying with the permit and 
obtaining assistance to understand it will continue to be significant 
for these area sources.
    The third factor, whether costs of title V permitting are excessive 
with respect to any expected gains in compliance that may be achieved 
from permitting, was cited in Section II of this preamble for area 
sources subject to the NESHAP for dry cleaning. Many area source dry 
cleaners and degreasers are small businesses with limited resources and 
environmental experience. Even though general permits may reduce the 
costs of applying for a permit, we believe the economic data in the 
docket for these sources shows that the remaining costs of complying 
with the permit and obtaining assistance to understand it will continue 
to be significant for these area sources. Also, EPA's outreach in 
recent years has shown that some State agencies generally do not 
believe that implementing area source standards through permits will 
result in increased compliance, and EPA believes this will be as true 
with general permits as with standard permits.
    The fourth factor, whether adequate oversight by the permitting 
authority would result in compliance without permitting, was cited in 
Section II of this preamble for area sources subject to NESHAP for dry 
cleaning, solvent degreasing, EO sterilizing, and secondary aluminum. 
In our analysis in Section II of this preamble, we looked at the 
compliance rates that permitting authorities could achieve without 
permits, such as through State permit programs and comprehensive 
oversight programs. In effect, we considered whether title V was 
necessary for compliance with the NESHAP to be achieved. As we 
explained in Section II of this preamble, the permit content 
requirements of Sec. Sec.  70.6 and 71.6 for monitoring, recordkeeping 
and reporting are identical for general and standard permits. Because 
of this, we believe the analysis done in section II of this preamble 
will apply with equal force for general permits. Consistent with that 
analysis, compliance can largely be achieved for these source 
categories without relying on operating permits.
    Nevertheless, as an alternative to today's proposal, EPA seeks 
comment on the option of requiring permitting authorities to issue 
general permits to the five categories of area sources proposed for 
exemption from title V. Specifically, EPA invites comment on the extent 
to which there would be ``unnecessary burden'' on the area sources if 
general permits were issued to them, or if compliance with general 
permits would be impracticable or infeasible for them. The EPA notes 
that while some States claim that the permitting of area sources will 
strain the resources of permitting authorities, a few States have 
successfully implemented a general permit program for area sources. The 
sources in these five source categories of area sources may be good 
candidates for general permits. For example, the State of Florida 
currently issues general permit under its title V program for these 
five categories of area sources. Under this program, an area source in 
Florida mails in a notification form that informs the Florida Air 
Quality Division that it is eligible for a general permit. In the form 
the source agrees to comply with all the specific conditions of the 
general permit rule.

IV. Request for Comment on Secondary Lead Area Sources

    In contrast to the five categories discussed above, we propose to 
decline making a finding that title V permitting for secondary lead 
area sources is impracticable, infeasible, or unnecessarily burdensome. 
Although it is not necessary for EPA to issue a proposed rule before 
declining to make such a finding, we are requesting comment here to 
determine whether or not EPA should make such a finding, and, in turn, 
whether or not EPA should finalize an exemption for this source 
category as well. At this time we are proposing to decline making such 
a finding because we did not find that an exemption from title V 
permitting is warranted for area sources subject to the NESHAP for 
secondary lead smelters. We considered the same factors as for the 
previous categories, but we did not find information or data at this 
time that would lead us to a finding that an exemption from title V 
permitting is warranted in the same manner as we believe exemptions are 
warranted for area sources subject to other NESHAPS addressed in 
today's notice. (See section II of this notice.) Although we are 
proposing to decline making such a finding, in the alternative, if EPA 
receives information or data sufficient to support a finding that 
permitting area source lead smelters would be

[[Page 15260]]

``impracticable, infeasible, or unnecessarily burdensome'' on such 
sources and we determine that title V exemption for these sources would 
``not adversely affect public health, welfare, or the environment'' we 
could opt to make such a finding and exempt this source category from 
permitting as well.
    Secondary lead smelters have been identified by the EPA as 
significant emitters of several chemicals identified in the Act as 
hazardous air pollutants (HAP) including but not limited to lead 
compounds, arsenic compounds, and 1,3-butadiene. Chronic exposure to 
arsenic and 1,3-butadiene is associated with skin, bladder, liver and 
lung cancer and other developmental and reproductive effects. Exposure 
to lead compounds results in adverse effects on the blood, central 
nervous system and kidneys.
    Section 502(a) of title V does not require EPA to offer any 
justification for not exempting area sources from title V permitting. A 
justification is required only if an area source is exempted from title 
V. Nevertheless, we offer the following explanation to help the public 
understand EPA's reasons for proposing to allow the deferrals to 
expire.
    The EPA is proposing to allow the title V deferrals to expire for 
area sources subject to the secondary lead smelter NESHAP because, 
unlike the five source categories we are proposing to exempt, EPA could 
not find, consistent with the Act, that compliance with the title V 
requirements is impracticable, infeasible, or unnecessarily burdensome 
on such source categories. Only 3 secondary lead smelters area sources 
are believed by EPA to exist. (Also see section I.A. of this preamble 
for an estimate of affected entities for each source category addressed 
by this proposal.) Also, EPA believes that two of these sources already 
have been issued title V permits by their respective permitting 
authorities. Thus, requiring title V permits for these area sources 
appears neither impracticable nor infeasible. We also do not have any 
information to suggest that it has been unnecessarily burdensome, but 
we ask for comment on whether there is additional information that 
could further inform EPA's decision whether to make such a finding.
    If EPA reaches a final decision that a 502(a) finding for secondary 
lead smelters is unwarranted, any secondary lead area source that has 
not already applied for a title V permit would be required to submit a 
title V permit application by December 9, 2005, as provided in Sec.  
63.541(c) of subpart X. Also, as provided in Sec.  70.3(c)(2) and Sec.  
71.3(c)(2), assuming the source is not subject to title V for another 
reason, the permit for the source must include the requirements of 
subpart X and all other applicable requirements that apply to emissions 
units affected by subpart X, while any units not subject to subpart X 
may be excluded from the permit. (See 68 FR 57518, October 3, 2003, 
footnote 7 on page 57534.)

V. Environmental Results Program

    The EPA has a strong interest in ensuring that sources in the five 
area source categories proposed to be exempted from title V continue to 
comply with their NESHAP requirements. From our outreach, we believe 
that State and local permitting authorities can determine the best way 
to ensure compliance with these standards.
    One successful alternative to case-by-case permitting is an 
oversight program developed by the Massachusetts Department of 
Environmental Protection, called the Environmental Results Program 
(ERP). This alternative program has proven very effective in ensuring 
compliance by small sources with their applicable environmental 
requirements. The ERP model offers a sector-based approach (which can 
be a multimedia approach) that replaces facility-specific State permits 
with industry-wide environmental performance standards and annual 
certifications of compliance. The ERP applies three innovative and 
interlinked tools to enhance and measure environmental performance. 
These tools supplement a State's traditional compliance inspection and 
compliance assistance efforts and consist of: (1) An annual facility-
specific, self certification questionnaire; (2) compliance assistance 
to include ``plain language'' workbooks describing the applicable 
regulations in a user's friendly approach and outreach workshops to 
educate and train affected facility owner/operators; and (3) a 
performance measurement methodology to track and validate facility 
performance. This methodology includes statistically valid compliance 
inspections protocols to measure group performance and target 
inspections. The ERP compliance assistance workbooks include all 
applicable regulatory requirements as well as pollution prevention and 
best management practice opportunities.
    Fourteen States now implement ERP projects (across 9 small 
business-dominated sectors). The EPA encourages States to investigate 
how the ERP model might be beneficial to their compliance and oversight 
efforts. The EPA can provide assistance to States interested in 
conducting ERP projects. To learn more on why the ERP model is unique, 
what problems it was designed to solve and more details on how to set 
up projects, contact Scott Bowles, EPA National Center for 
Environmental Innovation, telephone (202) 566-2208, e-mail 
[email protected] and/or visit EPA's Web site at http://www.epa.gov/permits/.

VI. The Effects of the End of the Deferrals for Area Sources

    The deferrals from title V permitting for the six categories of 
areas sources addressed in this preamble expired on December 9, 2004 
and those area sources became subject to title V on that date. Sections 
70.5(a)(1)(i) and 71.5(a)(1) allow sources subject to the program up to 
one year (or such earlier date as the permitting authority may 
establish) to submit complete permit applications (e.g., up to December 
9, 2005 for sources subject on December 9, 2004). After submittal of a 
complete permit application, Sec. Sec.  70.7(a)(2) and 71.7(a)(2) 
require permitting authorities to issue final operating permits within 
18 months (by June 9, 2007, for applications submitted on December 9, 
2005).
    Because the deferrals for these five area source categories have 
already expired, even though EPA is proposing permanent exemptions for 
five of the six categories of area sources addressed in this notice, 
these five categories of area sources are technically subject to title 
V requirements until the exemptions are finalized. At the present time, 
EPA expects to issue a final rule in the summer of 2005, taking final 
action on the proposed exemptions. As noted above, State and local 
permitting authorities are required to receive applications within a 1-
year period from the end of the deferral (i.e., by December 9, 2005), 
although some States have shortened this period to 6 months. Given the 
anticipated timing of these two events, we leave it to the permitting 
authority to decide when to call for applications. Should an 
application call be made, an EPA guidance document, EPA White Paper for 
Streamlined Development of Part 70 Permit Applications (White Paper I), 
July 10, 1995, describes a possible method for allowing a simplified, 
phased, two-step approach to application preparation which may be of 
interest. Under the White Paper I approach, the first step consists of 
submittal, by the appropriate deadline, of an application that contains 
enough information for the permitting authority to find it 
administratively complete, consistent with procedures for determining 
applications complete

[[Page 15261]]

approved into their title V program by EPA, and in the second step, 
application updates as needed to support draft permit preparation.

VII. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    Because today's action would permanently exempt five categories of 
area sources subject to NESHAPs from title V permitting requirements, 
this action would provide a net decrease in information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. The current part 70 and part 71 rules, specifically 
Sec. Sec.  70.3(a)(3) and 71.3(a)(3), impose permitting requirements on 
all area sources subject to section 112 standards not previously 
permanently exempted through notice and comment rulemaking. The sources 
addressed in today's notice were subject to deferrals from permitting 
that expired on December 9, 2004. (See 59 FR 61801, December 2, 1994, 
amended by 60 FR 29484, June 5, 1995; 61 FR 27785, June 3, 1996; 65 FR 
15690, March 23, 2000; and 64 FR 69637, December 14, 1999). Because 
these area sources are currently subject to permitting requirements and 
because today's action proposes to permanently exempt the majority of 
such sources from these requirements (except for secondary lead 
sources), this action will provide a net decrease in information 
collection burdens for these sources. The information collection burden 
for title V permitting was estimated as part of the promulgation of the 
part 70 and 71 rules. The Information Collection Request (ICR) for the 
part 70 rule (ICR 1587.06) was extended until March 31, 2007, in 
November 2004 by OMB (OMB 2060-0243). The ICR for the part 71 rule (ICR 
1713.05) was also extended until March 31, 2007, in November 2004 by 
the OMB (OMB 2060-0336).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the Agency certifies the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) Small business that is 
a small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards (See 13 CFR part 121); (2) a 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule. As explained in more 
detail above, today's action permanently exempts a large number of area 
sources from title V permitting and this action will provide a net 
decrease in information collection burdens for these sources. We have 
therefore concluded that today's proposed rule will relieve regulatory 
burden for these affected small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995(UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. The EPA has determined that this rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any 1 year. The estimated administrative burden hour 
and costs associated with obtaining and complying with a title V permit 
were

[[Page 15262]]

developed upon promulgation of the operating permit rules (part 70) and 
are presented in Chapter 6 of U.S. EPA 1999, Regulatory Impact Analyses 
for the Operating Permit Program, Innovative Strategies and Economics 
Group, Office of Air Quality Planning and Standards, Research Triangle 
Park, N.C. However, as explained above, this rule would reduce burden 
by exempting some of these sources from permitting.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This 
proposed 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. As described in section D, above 
(on UMRA), this rule would reduce the overall number of sources subject 
to the title V program. In addition, this proposed rule would not 
modify the relationship of the States and EPA for purposes of 
implementing the title V permit program. Thus, Executive Order 13132 
does not apply to this proposed rule. Although section 6 of Executive 
Order 13132 does not apply to this rule, EPA actively engaged the 
States in the development of this proposed rule. The EPA periodically 
informed representatives of State and local air pollution control 
agencies of the actions EPA was considering concerning this proposed 
rule. The EPA also sought information from State and local agencies 
concerning their oversight activities for area sources and used that 
information in development of this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have ``Tribal implications'' as specified in Executive Order 13175. 
This proposed rule concerns the exemption of area sources from the 
title V permit program. The Tribal Air Rule (TAR) gives Tribes the 
opportunity to develop and implement CAA programs such as title V, but 
it leaves to the discretion of the Tribe whether to develop these 
programs and which programs, or appropriate elements of a program, they 
will adopt. This proposed rule does not have Tribal implications as 
defined by Executive Order 13175. It does not have a substantial direct 
effect on one or more Indian Tribes, since no Tribe has implemented a 
title V permit program at this time. Furthermore, this proposed rule 
does not affect the relationship or distribution of power and 
responsibilities between the Federal government and Indian Tribes. The 
CAA and the TAR establish the relationship of the Federal government 
and Tribes concerning title V and this proposed rule does not modify 
that relationship. Because this proposed rule does not have Tribal 
implications, Executive Order 13175 does not apply.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. The proposed 
rule is not subject to Executive Order 13045 because the Agency does 
not have reason to believe the environmental health risks or safety 
risks addressed by this action present a disproportionate risk to 
children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS. This proposed rulemaking does not involve technical 
standards. Therefore, EPA is not considering the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionate high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The EPA believes 
that this proposed rule should not raise any environmental justice 
issues.

List of Subjects

40 CFR Part 63

    Administrative practice and procedure, Air pollution control, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Reporting and recordkeeping requirements.

40 CFR Part 71

    Administrative practice and procedure, Air pollution control, 
Reporting and recordkeeping requirements.


[[Page 15263]]


    Dated: March 21, 2005.
Stephen L. Johnson,
Acting Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 63--[AMENDED]

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

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

Subpart M--[Amended]

    2. Section 63.320 is amended by revising paragraph (k) to read as 
follows:


Sec.  63.320  Applicability.

* * * * *
    (k) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.

Subpart N--[Amended]

    3. Section 63.340 is amended by revising paragraph (e) to read as 
follows:


Sec.  63.340  Applicability and designation of source.

* * * * *
    (e) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.
    4. Table 1 to Subpart N is amended by revising the entry for Sec.  
63.1(c)(2) to read as follows:

  Table 1 to Subpart N of Part 63--General Provisions Applicability to
                                Subpart N
------------------------------------------------------------------------
                                    Applies to
 General provisions reference       subpart N             Comment
------------------------------------------------------------------------
 
                              * * * * * * *
Sec.   63.1(c)(2).............  Yes..............  Sec.   63.340(e) of
                                                    Subpart N exempts
                                                    area sources from
                                                    the obligation to
                                                    obtain Title V
                                                    operating permits.
 
                              * * * * * * *
------------------------------------------------------------------------

Subpart O--[Amended]

    5. Section 63.360 is amended by:
    a. Revising the entry for Sec.  63.1(c)(2) in Table 1; and
    b. Revising paragraph (f).
    The revisions read as follows:


Sec.  63.360  Applicability.

* * * * *

                    Table 1 of Section 63.360--General Provisions Applicability to Subpart O
----------------------------------------------------------------------------------------------------------------
                                       Applies to sources      Applies to sources
             Reference                  using 10 tons in      using 1 to 10 tons in            Comment
                                           subpart O*              subpart O*
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
63.1(c)(2).........................                        Yes                       Sec.   63.360(f) exempts
                                                                                      area sources subject to
                                                                                      this subpart from the
                                                                                      obligation to obtain Title
                                                                                      V operating permits.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (f) If you are an owner or operator of a source using less than 10 
tons that is subject to this subpart, you are exempt from the 
obligation to obtain a permit under 40 CFR part 70 or 71, provided you 
are not required to obtain a permit under 40 CFR 70.3(a) or 71.3(a) for 
a reason other than your status as an area source under this subpart. 
Notwithstanding the previous sentence, you must continue to comply with 
the provisions of this subpart applicable to area sources.
* * * * *

Subpart T--[Amended]

    6. Section 63.460 is amended by adding paragraph (h) to read as 
follows:


Sec.  63.460  Applicability and designation of source.

* * * * *
    (h) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.


Sec.  63.468  [Amended]

    7. Section 63.468 is amended by removing and reserving paragraph 
(j).
    8. Appendix B to Subpart T is amended by revising the entry for 
Sec.  63.1(c)(2) to read as follows:

[[Page 15264]]



                     Appendix B to Subpart T--General Provisions Applicability to Subpart T
----------------------------------------------------------------------------------------------------------------
                                                  Applies to subpart T
             Reference              ------------------------------------------------           Comment
                                               BCC                     BVI
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sec.   63.1(c)(2)..................  Yes...................  Yes...................  Subpart T, Sec.   63.460(h)
                                                                                      exempts area sources
                                                                                      subject to this subpart
                                                                                      from the obligation to
                                                                                      obtain Title V operating
                                                                                      permits.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

Subpart RRR--[Amended]

    9. Section 63.1500 is amended by revising paragraph (e) to read as 
follows:


Sec.  63.1500  Applicability.

* * * * *
    (e) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.
* * * * *
    10. Appendix A to Subpart RRR is amended by revising the entry for 
Sec.  63.1(c)(2) to read as follows:

                   Appendix A to Subpart RRR--General Provisions Applicability to Subpart RRR
----------------------------------------------------------------------------------------------------------------
              Citation                     Requirement           Applies to RRR                Comment
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sec.   63.1(c)(2)..................  ......................  Yes...................  Sec.   63.1500(e) exempts
                                                                                      area sources subject to
                                                                                      this subpart from the
                                                                                      obligation to obtain Title
                                                                                      V operating permits.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Section 70.3 is amended as follows:
    a. By revising paragraph (a) introductory text.
    b. By removing and reserving paragraph (b)(3).
    c. By revising paragraph (b)(4) introductory text.


Sec.  70.3  Applicability.

    (a) Part 70 sources. A State program with whole or partial approval 
under this part must provide for permitting of the following sources:
* * * * *
    (b) * * *
    (4) The following source categories are exempted from the 
obligation to obtain a part 70 permit:
* * * * *

PART 71--[AMENDED]

    1. The authority citation for part 71 continues to read as follows:

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


Sec.  71.3  [Amended]

    2. Section 71.3 is amended by removing and reserving paragraph 
(b)(3).

[FR Doc. 05-5932 Filed 3-24-05; 8:45 am]
BILLING CODE 6560-50-P