[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Notices]
[Pages 62594-62595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30811]



[[Page 62594]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5927-3]


Full Delegation of Authority to Commonwealth of Virginia for the 
Prevention of Significant Deterioration Site-Specific Rulemaking for 
Merck & Co., Inc. Stonewall Plant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Information notice.

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SUMMARY: The EPA is delegating to the Commonwealth of Virginia the 
authority to implement and enforce the site-specific rule for the 
Prevention of Significant Deterioration of Air Quality (PSD) for the 
Merck & Co., Inc. Stonewall Plant in Elkton, Virginia. The Commonwealth 
of Virginia has requested that EPA delegate to the Commonwealth the 
authority to implement and enforce this site-specific PSD rule. The 
Regional Administrator has determined that such a delegation is 
appropriate, with the conditions described in this notice.

DATES: This delegation is effective on November 24, 1997.

ADDRESSES: Docket. Copies of the delegation of authority request and 
accompanying support documents are available for public inspection 
during normal business hours at the following offices: U.S. EPA, Region 
III, 841 Chestnut Street, Philadelphia, PA, 19107-4431, (215) 566-2064. 
Virginia Department of Environmental Quality, Valley Regional Office, 
4411 Early Road, P.O. Box 1129, Harrisonburg, Virginia 22801-1129, 
(540) 574-7800.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Moran, U.S. Environmental 
Protection Agency, Region III, Air, Radiation & Toxics Division, 841 
Chestnut Street (3AT23), Philadelphia, PA 19107-4431, (215) 566-2064.

SUPPLEMENTARY INFORMATION: In a final rule published on October 8, 
1997, EPA promulgated a site-specific PSD rule which applies only to 
the Merck & Co., Inc. (Merck) Stonewall Plant in Elkton, Virginia, in 
order to implement a project under the Project XL program. See 62 FR 
52622 (October 8, 1997) and 40 CFR 52.2454. This site-specific PSD rule 
authorizes the Administrator to delegate the responsibility to 
implement and enforce this rule. The Commonwealth of Virginia currently 
implements the federal PSD program regulations codified at 40 CFR 52.21 
under a delegation of authority from EPA effective on June 3, 1981. See 
40 CFR 52.2451 and 46 FR 29753 (June 3, 1981). On October 27, 1997, the 
Director of the Virginia Department of Environmental Quality (VADEQ) 
sent to EPA Region III a letter which requested full delegation of 
authority for the implementation and enforcement of the site-specific 
PSD rule for the Merck Stonewall Plant.
    In the preamble to the proposed site-specific rulemaking for the 
Merck XL project, and in the Merck's Project XL proposed Final Project 
Agreement, EPA had stated its intention to delegate the final site-
specific PSD rule to the Commonwealth of Virginia. See 62 FR 15310 
(March 31, 1997). EPA received no adverse comments on this approach 
during the public comment period for the proposed site-specific 
rulemaking. In the notice of final rulemaking for the Merck XL project, 
EPA also explained its intent to delegate to VADEQ the authority to 
implement and enforce the PSD site-specific rule. See 62 FR 52623 
(October 8, 1997).
    Section 301 of the Clean Air Act, in conjunction with sections 101 
and 110, authorizes the Administrator to delegate her authority to 
implement and enforce the PSD regulations to any state which has 
submitted adequate implementation and enforcement procedures. Further, 
40 CFR 52.2454(o) authorizes the Administrator to delegate the site-
specific PSD rule for the Merck Stonewall Plant. The Regional 
Administrator has determined that the Commonwealth's request for 
delegation of the site-specific PSD rule for the Merck Stonewall Plant 
is appropriate, subject to the conditions set forth below. EPA has 
reviewed the pertinent laws of the Commonwealth of Virginia and the 
rules and regulations thereof, and has determined that they provide an 
adequate and effective procedure for the implementation of Merck's 
site-specific PSD regulation. On September 11, 1997, the State Air 
Pollution Control Board of the Commonwealth of Virginia (Board) 
approved an order granting a variance (9 VAC 5 Chapter 190) to the 
Merck Stonewall Plant for purposes of implementing the XL project. The 
variance contains site-specific PSD provisions consistent with those of 
EPA's final rulemaking. On October 1, 1997, the Board approved a 
regulation (9 VAC 5-190-110) which incorporated by reference the 
provisions of EPA's final site-specific PSD rule (as signed by the EPA 
Administrator on September 30, 1997). EPA has determined that the order 
and the variance regulation provide the Commonwealth with the authority 
to implement and enforce the site-specific PSD rule. Therefore, 
pursuant to 40 CFR 52.2454(o), EPA hereby delegates authority to 
implement and enforce the site-specific PSD rule for the Merck 
Stonewall Plant, 40 CFR 52.2454, to the Commonwealth of Virginia as 
follows:
    1. Authority is delegated for 40 CFR 52.2454 only for the Merck 
Stonewall Plant in Elkton, Virginia, since that is the only source 
subject to this regulation.
    2. If at any time there is a conflict between a Commonwealth 
regulation and a Federal regulation (40 CFR 52.2454), the Federal 
regulation must be applied if it is more stringent than that of the 
Commonwealth. If the Commonwealth does not have the authority to 
implement a Federal regulation that is more stringent than the 
applicable Commonwealth regulation, the pertinent portion of the 
authority may be revoked.
    3. If the Regional Administrator determines that the Commonwealth's 
procedures for implementing all portions of the site-specific PSD 
regulation are inadequate, or that the site-specific PSD regulation is 
not being effectively carried out, this authority may be revoked in 
whole or in part. Any such revocation shall be effective as of the date 
specified in a Notice of Revocation to the VADEQ.
    4. Enforcement of the Merck site-specific PSD rule in the 
Commonwealth of Virginia will be the primary responsibility of the 
VADEQ. If the Commonwealth determines that such enforcement is not 
feasible and so notifies EPA, or where the Commonwealth acts in a 
manner inconsistent with the terms of this granted authority, EPA will 
exercise its concurrent enforcement authority pursuant to Sections 113 
and 167 of the Clean Air Act. In accordance with Sections 113 and 167 
of the Clean Air Act, EPA reserves the right to commence an enforcement 
action against Merck in violation of the site-specific PSD requirements 
should the Commonwealth of Virginia fail to take such an enforcement 
action or, in the opinion of EPA, fail to pursue a timely or 
appropriate enforcement action.
    5. Acceptance of this delegation of the presently promulgated site-
specific PSD regulation does not commit the Commonwealth of Virginia to 
request or implement enforcement authority for future standards and 
requirements.
    6. The Commonwealth and EPA will develop a system of communication 
sufficient to guarantee a program that includes, at a minimum, the 
items described below:
    a. Each agency is informed of the current compliance status of the 
Merck Stonewall Plant;
    b. The VADEQ shall send a copy of the preliminary determination and 
public comment notices required under

[[Page 62595]]

paragraph (m) of 40 CFR 52.2454 to EPA Region III at the same time the 
notice is being forwarded for publication in the newspaper.
    c. The VADEQ will forward to EPA Region III copies of the final PSD 
permit and any future permit modifications at the time of issuance.
    7. The VADEQ will obtain prior EPA concurrence on any matter 
involving the interpretation of sections 160-169 of the Clean Air Act 
or 40 CFR 52.2454 to the extent that implementation, review, 
administration or enforcement of these sections have not been covered 
by determinations or guidance sent by EPA to the VADEQ.
    8. This delegation of authority should not be construed as a 
transfer of PSD responsibility under section 110(a)(2)(J) of the Clean 
Air Act, since such a transfer would involve different procedures and 
considerations.
    Delegation: Pursuant to the authority delegated to him by the 
Administrator, the Regional Administrator is formally notifying the 
Director of the VADEQ that the Commonwealth is hereby delegated the 
authority to implement and enforce the site-specific PSD rule for the 
Merck Stonewall Plant, 40 CFR 52.2454, as of the publication date of 
this notice.

ADDITIONAL INFORMATION:

A. Effective Date

    Pursuant to 5 U.S.C. 553(d)(3) and 42 U.S.C. 6930(b)(3), the 
Regional Administrator finds good cause for making this delegation of 
authority effective immediately because it is an administrative change 
and not one of substantive content. Further, the Merck & Co., Inc. 
Stonewall Plant is the only regulated entity affected by this 
delegation. Merck has full notice of this delegation and is prepared to 
comply immediately with the permit to be issued expeditiously under the 
rule that is being delegated to the Commonwealth of Virginia.

B. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. This delegation would not have a significant impact on a 
substantial number of small entities because it only affects one 
source, the Merck Stonewall Plant, which is not a small entity. 
Therefore, EPA certifies that this action will not have a significant 
economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

    This action applies only to one company, and therefore requires no 
information collection activities subject to the Paperwork Reduction 
Act, and therefore no information collection request (ICR) will be 
submitted to the Office of Management and Budget (OMB) for review in 
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
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 
one year. 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.
    As noted above, this delegation is limited to Merck's facility in 
Elkton, Virginia. EPA has determined that this delegation contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. EPA has also determined that this delegation 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 one year. Thus, today's 
delegation is not subject to the requirements of sections 202 and 205 
of the UMRA.

    Dated: November 17, 1997.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 97-30811 Filed 11-21-97; 8:45 am]
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