[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Rules and Regulations]
[Pages 29432-29435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13665]



[[Page 29432]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R04-OAR-2017-0209; FRL-9964-32-Region 4]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Equivalency by Permit Provisions; National Emission 
Standards for Hazardous Air Pollutants; Plating and Polishing 
Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On December 12, 2016, pursuant to section 112(l) of the Clean 
Air Act (CAA), the Tennessee Department of Environment and Conservation 
(TDEC) requested approval to implement and enforce State permit terms 
and conditions that substitute for the National Emission Standards for 
Hazardous Air Pollutants (NESHAP) from Plating and Polishing Operations 
with respect to the operation of the Ellison Surface Technologies, 
Inc., facility in Morgan County, Tennessee (Ellison). The Environmental 
Protection Agency is approving this request, and thus, granting TDEC 
the authority to implement and enforce alternative requirements in the 
form of title V permit terms and conditions after the EPA has approved 
the State's alternative requirements.

DATES: This direct final rule is August 28, 2017 without further 
notice, unless the EPA receives adverse comment by July 31, 2017. If 
the EPA receives such comments, it will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0209 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Copies of all comments must also be sent concurrently to TDEC 
either via hard copy to Tennessee Department of Environment and 
Conservation, 312 Rosa L. Parks Avenue, Floor 15, Nashville, Tennessee 
37243-1102, attention: Michelle Walker; or via electronic mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Lee Page, South Air Enforcement and 
Toxics Section, Air Enforcement and Toxics Branch, Air, Pesticides and 
Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Page 
can be reached via telephone at (404) 562-9131 and via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Pursuant to section 112 of the CAA, EPA promulgates NESHAPs for 
various categories of air pollution sources. On July 1, 2008, the EPA 
promulgated the NESHAP for Plating and Polishing Operations (see 73 FR 
37741) which is codified in 40 CFR part 63, subpart WWWWWW, ``National 
Emission Standards for Hazardous Air Pollutants: Area Source Standards 
for Plating and Polishing Operations.'' Ellison performs plating and 
polishing operations and is subject to subpart WWWWWW.
    Under CAA section 112(l), the EPA may approve state or local rules 
or programs to be implemented and enforced in place of certain 
otherwise applicable CAA section 112 Federal rules, emission standards, 
or requirements. The Federal regulations governing EPA's approval of 
state and local rules or programs under section 112(l) are located at 
40 CFR part 63, subpart E (see 65 FR 55810, dated September 14, 2000). 
Under these regulations, a state or local air pollution control agency 
has the option to request the EPA's approval to substitute alternative 
requirements and authorities that take the form of title V permit terms 
and conditions instead of source category regulations. This option is 
referred to as the equivalency by permit (EBP) option. To receive the 
EPA approval of an EBP program, the requirements of 40 CFR 63.91 and 
63.94 must be met.
    The EBP process comprises three steps. The first step (see 40 CFR 
63.94(a) and (b)) is the ``up-front approval'' of the state EBP 
program. The second step (see 40 CFR 63.94(c) and (d)) is the EPA 
review and approval of the state alternative section 112 requirements 
in the form of pre-draft permit terms and conditions. The third step 
(see 40 CFR 63.94(e)) is incorporation of the approved pre-draft permit 
terms and conditions into a specific title V permit and the title V 
permit issuance process itself. The final approval of the state 
alternative requirements that substitute for the Federal standard does 
not occur for purposes of the Act, section 112(l)(5), until the 
completion of step three.
    The purpose of step one, the ``up-front approval'' of the EBP 
program, is three fold: (1) It ensures that the State meets the 
criteria of 40 CFR 63.91(d) for up-front approval common to all 
approval options; (2) it provides a legal foundation for the State to 
replace the otherwise applicable Federal section 112 requirements that 
will be reflected in final title V permit terms and conditions; and (3) 
it delineates the specific sources and Federal emission standards for 
which the State will be accepting delegation under the EBP option.
    On December 12, 2016, TDEC requested delegation of authority to 
implement and enforce title V permit terms and requirements for Ellison 
as an alternative to those of subpart WWWWWW. As part of its request to 
implement and enforce alternative terms and conditions in place of the 
otherwise applicable Federal section 112 standard, TDEC submitted 
information intended to satisfy the requirements necessary for ``up 
front approval'' of the EBP program.

II. Analysis of State's Submittal

    The EPA has reviewed TDEC's submittal and has concluded that the 
State meets the requirements for ``up-front approval'' of its EBP 
program which are specified at 40 CFR 63.94(b) and 63.91(d). The 
requirements a State or local agency must meet can be summarized as 
follows: (1) Identify the source(s) for which the State seeks authority 
to implement and enforce alternative requirements; (2) request 
delegation (or have delegation) for any remaining sources that are in 
the same category as the source(s) for which it wishes to establish 
alternative requirements; (3) identify all existing

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and future CAA section 112 emission standards for which the State is 
seeking authority to implement and enforce alternative requirements; 
(4) demonstrate that the State has an approved CAA title V operating 
permits program that permits the affected source(s); and (5) 
demonstrate that the State meets the general approval criteria set 
forth at 40 CFR 63.91(d). The EPA lists each requirement below and 
after each requirement explains its reasons for concluding that TDEQ 
meets the requirement:

A. Identify the Source(s) for Which the State Is Seeking Authority To 
Implement and Enforce Alternative Requirements

    TDEC identified Ellison as the source for which it is seeking 
authority to implement and enforce alternative requirements.

B. Request or Have Delegation for Any Remaining Sources That Are in the 
Same Category as the Source(s) for Which the State Seeks To Establish 
Alternative Requirements

    Tennessee has an approved 40 CFR part 63 delegation mechanism 
commonly described as ``automatic delegation'' in which formal 
delegation of the Federal rules occurs without the need for completing 
specific state rulemaking actions and is automatically completed upon 
the promulgation date of each part 63 regulation. See 61 FR 9661, 9668 
(March 11, 1996); 61 FR 39335, 39342 (July 29,1996); 74 FR 22437, 22438 
(May 13, 2009). Therefore, the State has delegated authority to 
implement and enforce subpart WWWWWW.

C. Identify All Existing and Future Federal Section 112 Rules for Which 
the State Is Seeking Authority To Implement and Enforce Alternative 
Requirements

    In its submittal, TDEC requested only the authority to implement 
and enforce State permit requirements for Ellison as alternatives to 
the Federal requirements applicable to that source under subpart 
WWWWWW.

D. Demonstrate That the State Has an Approved Title V Permits Program 
and That the Program Permits the Affected Source(s)

    The EPA granted final interim approval to Tennessee's CAA title V 
operating permits program on July 29, 1996 (61 FR 39342) and final 
approval on November 14, 2001 (66 FR 56996). Under this approved 
program, TDEC has the authority to issue title V permits to all major 
and area stationary NESHAP sources. In its submittal, TDEC confirmed 
that Ellison will obtain a Title V operating permit.

E. General Approval Criteria Found at 40 CFR Section 63.91(d)

    The provisions of 40 CFR 63.91(d)(3) specify that ``[i]nterim or 
final title V program approval will satisfy the criteria set forth in 
Sec.  63.91(d), up-front approval criteria.'' As discussed above, the 
EPA has fully approved Tennessee's title V operating permits program.

III. Final Action

    The EPA is granting TDEC ``up-front'' approval of an EBP program 
under which TDEC may establish and enforce alternative State 
requirements for Ellison in lieu of those of the NESHAP for Plating and 
Polishing Operations found at 40 CFR part 63, subpart WWWWWW. TDEC may 
only establish alternative requirements for Ellison that are at least 
as stringent as the otherwise applicable Federal requirements. TDEC 
must, in order to establish alternative requirements for Ellison under 
its EPA-approved EBP program: (1) Submit to the EPA for review pre-
draft title V permit terms specifying alternative requirements that 
meet the criteria of 40 CFR 63.94(d), including the criterion that the 
alternative requirements are at least as stringent as the otherwise 
applicable Federal requirements, (2) obtain the EPA's written approval 
of the alternative pre-draft title V permit requirements, and (3) issue 
a title V permit for Ellison that contains the approved alternative 
requirements. Until the EPA has approved the alternative permit terms 
and conditions and TDEC has issued a final title V permit incorporating 
them, Ellison will remain subject to the Federal NESHAP requirements 
found at 40 CFR part 63, subpart WWWWWW.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, the EPA is publishing a separate document 
that will serve as the proposal to approve TDEC's request to implement 
and enforce alternative requirements in the form of title V permit 
terms and conditions should adverse comments be filed. This rule will 
be effective August 28, 2017 without further notice unless the Agency 
receives adverse comments by July 3, 2017.
    If the EPA receives such comments, then the EPA will publish a 
document withdrawing the final rule and informing the public that the 
rule will not take effect. All adverse comments received will then be 
addressed in a subsequent final rule based on the proposed rule. The 
EPA will not institute a second comment period. Parties interested in 
commenting should do so at this time. If no such comments are received, 
the public is advised that this rule will be effective on August 28, 
2017 and no further action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Executive Order 12866 gives the Office of Management and Budget 
(OMB) the authority to review regulatory actions that are categorized 
as ``significant'' under section 3(f) of Executive Order 12866. This 
action is not a ``significant regulatory action'' and was therefore not 
submitted to OMB for review. This action provides ``up-front'' approval 
of an EBP program under which TDEC may establish and enforce 
alternative requirements for one facility in the State that are at 
least as stringent as the otherwise applicable Federal requirements.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et 
seq.). A ``collection of information'' under the PRA means ``the 
obtaining, causing to be obtained, soliciting, or requiring the 
disclosure to an agency, third parties or the public of information by 
or for an agency by means of identical questions posed to, or identical 
reporting, recordkeeping, or disclosure requirements imposed on, ten or 
more persons, whether such collection of information is mandatory, 
voluntary, or required to obtain or retain a benefit.'' Because this 
action applies to only one facility, the PRA does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
I certify that

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this action will not have a significant economic impact on a 
substantial number of small entities under the RFA. In making this 
determination, the impact of concern is any significant adverse 
economic impact on small entities. 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, has no net 
burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This rule will not have a significant 
impact on a substantial number of small entities because it only 
affects one facility and because approvals under 40 CFR 63.94 do not 
create any new requirements but simply allow the State to establish and 
enforce alternative requirements that are at least as stringent as the 
otherwise applicable Federal requirements.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
Tribal governments and the private sector. This rule does not contain 
an unfunded mandate of $100 million or more as described in UMRA and 
does not significantly or uniquely affect small governments. This 
action allows the State to establish and enforce alternative 
requirements that are at least as stringent as the otherwise applicable 
Federal requirements, and imposes no new requirements.

E. Executive Order 13132: Federalism

    Executive Order 13132, Federalism requires the 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.'' This action 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. This action allows the State to establish 
and enforce alternative requirements that are at least as stringent as 
the otherwise applicable Federal requirements, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments,'' requires the 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 action does not have tribal implications as 
specified in Executive Order 13175 because it will not have substantial 
direct effects on tribal governments. Thus, Executive Order 13175 does 
not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it allows the State to establish and enforce alternative 
requirements that are at least as stringent as the otherwise applicable 
Federal requirements.

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) (15 U.S.C. 272 note) directs the EPA to consider and use 
``voluntary consensus standards'' in its regulatory activities unless 
to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. This rulemaking does not involve technical 
standards.

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

    Executive Order 12898 directs Federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States. The EPA 
believes that this action does not have disproportionately high and 
adverse human health or environmental effects on minority populations, 
low-income populations and/or indigenous peoples, as specified in 
Executive Order 12898 because it allows the State to establish and 
enforce alternative requirements that are at least as stringent as the 
otherwise applicable Federal requirements.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. This action is subject to the CRA, and the EPA will 
submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

IV. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 28, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that the EPA 
can withdraw this direct final rule and address the comment in the 
proposed rulemaking. This action may

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not be challenged later in proceedings to enforce its requirements. See 
section 307(b)(2).

List of Subjects in 40 CFR Part 63

    Administrative practice and procedure, air pollution control, 
National Emission Standards for Hazardous Air Pollutants, hazardous air 
pollutants.

    Dated: June 14, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    40 CFR part 63 is amended as follows:

PART 63--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 63 continues to read as follows:

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

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

0
2. Section 63.99 is amended by adding paragraph (a)(43) to read as 
follows:


Sec.  63.99   Delegated Federal authorities.

    (a) * * *
    (43) Tennessee. (i) The Tennessee Department of Environment and 
Conservation (TDEC) has ``up-front'' approval to implement an 
Equivalency by Permit (EBP) program under which TDEC may establish and 
enforce alternative requirements for the Ellison Surface Technologies, 
Inc. facility located in Morgan County, Tennessee (Ellison) in lieu of 
those of the National Emissions Standard for Hazardous Air Pollutants 
(NESHAP) for Plating and Polishing Operations at 40 CFR part 63, 
subpart WWWWWW, ``National Emission Standards for Hazardous Air 
Pollutants: Area Source Standards for Plating and Polishing 
Operations.'' TDEC may only establish alternative requirements for 
Ellison that are at least as stringent as the otherwise applicable 
Federal requirements. TDEC must, in order to establish alternative 
requirements for Ellison under its EPA-approved EBP program: submit to 
the EPA for review pre-draft title V permit terms specifying 
alternative requirements that meet the criteria of 40 CFR 63.94(d), 
including the criterion that the alternative requirements are at least 
as stringent as the otherwise applicable Federal requirements; obtain 
the EPA's written approval of the alternative pre-draft title V permit 
requirements; and issue a title V permit for Ellison that contains the 
approved alternative requirements. Until the EPA has approved the 
alternative permit terms and conditions and TDEC has issued a final 
title V permit incorporating them, Ellison will remain subject to the 
Federal NESHAP requirements found at 40 CFR part 63, subpart WWWWWW.
    (ii) Reserved.
* * * * *
[FR Doc. 2017-13665 Filed 6-28-17; 8:45 am]
 BILLING CODE 6560-50-P