# + 2

(,1 1/,1(

Citation: 44 Fed. Reg. 53761 1979

Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Dec 27 17:50:45 2011

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

### Federal Register 

## I Vol. 44, No. 181 / Monday, September 17, 1979 / Proposed Rules

assistance ofstaff.Such determinations shallbe communicated to the applicant bycertified letter.An oral conference will be scheduled at therequest ofthe applicant. Communications of determinations to theapplicant shall include an explanation of the availability ofgrievance procedures. b)Availabilityof hearings. All
persons aggrieved by Initial Commission determinations concerning zigibility or benefits may request aHearing to present evidence and argument concerning the determination. Parties seeking such relief fromthe Commission's initial determination shall be known as "applicants."

(c) Requests forhearings. Hearing requests maybe made inperson orby letter and mustbe receivedby the Commission within thirty days after the notice letter was mailed or the oral conference was held, unless good cause is shown for an extension ofthat time limit.

(d) HearingsOfficers.Hearings will be conducted by the Hearing Officer appointed for this purpose by the Commissioners: Provided That the individual(s) directly responsible for the ifiial determination being appealed shall
not be eligible to serve asHearing Officers.

[e) Hearing scheduling.Hearings will be held asscheduled by the Hearing Officer. [1) Notice to the applicant will be provided atleast five days prior to the hearing stating the date, time,place, and scope ofthe hearing. (2) All hearings shall be held within thirty days after Commission receipt ofthe applicant's request therefor unless this time limit is extended upon showing of good cause. (3) All hearings shallbe conducted at the Commission offices in Flagstaff, Arizona, unless otherwise designated.

(1)

Evidence and Procedure. [1) The applicant has a right to:

(i) Be represented by a lawyer or other representative, who once identified. shall receive copies ofall correspondence and written communication to the applicant and shall be deemed as acting forthe applicant when submitting any request. brief, or communication to the Commission therefor

(ii) Present evidence, witnesses, and argument;

(iii) Have produced Commission evidence relative to the determination at issue, and employees possessing knowledge material thereto;

(iv)Examine and/or cross-examine all witnesses;

(v)A transcript ofthe hearing on request and upon payment-of appropriate Commission fees. (2) 

### TheHearing Officer is empowered to:

fi) Adminster oaths and affirmations to witnesses;

(ii) Receiverelevant evidence: (iii) Regulate the course and conduct ofthe Hearing;

(iv)Have a record made of the proceedings. (g) Post-hearing briefs.The applicant may submit post-hearing briefs or written comments to the Hearing Officer within two weeks after conclusion ofthe Hearing.

(h)HearingQfficerdecisions.(1)The Hearing Officer shall submit to the Commission written findings offact. conclusions oflaw, and decision based

on all the evidence and argument presented, within thirty days after conclusion ofthe Hearing.

(2) 

### Copies ofthe Hearing Officer's findings offact, conclusions oflaw, and decision shall be provided to the applicant. The applicant may submit briefs or otherwritten argument to the Commission within two weeks ofthe date of theHearing Officer's determination was mailed to them.

(i)Final Agencyaction.After receipt ofthe Hearing Officer's decision and the applicant's post-decision briefs or written argument, if any, the Commission shall affirm orreverse the decision and issue its final agency action upon the application in writing: copies thereof shall be sent by certified mail to the applicant.

0) Directappealto Commissioners. 

### Commission determinations concerning issues other than individual eligibility or benefits may be appealed directly to the Commission in writing. The Commission decision will constitute final agency action on such issues. Sandra Massetto, Chairperson, Narafo andHopilndian RelocationCommission.

[FRD9-=7 Red 9-14-4k I45am) BLUNG CODE 4310-B



### ENVIRONMENTAL PROTECTION

AGENCY
[40 CFR Part 52] [FRL 1316-4]



### State Implementation Plans;,General Preamble forProposed Rulemaking on Approval of Plan Revisions for Nonattainment Areas-Supplement (on Control Techniques Guidelines)

AGENCY. 

### Environmental Protection Agency. ACTON: General preamble forproposed 

### rulemaking-Supplement. SUMMARYV. Provisions ofthe CleanAir Act enacted in1977require states to 

### revise their State Implementation Plans forall areas that have notattained National Ambient Air Quality Standards. States are to have submitted the necessary plan revisions to EPA by January 1.1979. The Agency is now publishing propisals inviting public comment on whether each ofthe submittals should be approved. These

are followed by final actions on the submittals. In the April 4,1979 issue of the Federal Register. EPA published a 

### General Preamble identifying and summarizing the major considerations that will guide EPA's evaluation ofthe submittals (44FR 20372). Thiswas followed by a correction ofa typographical error on April30 (44 FR 25243) and Supplements on July 2(44 FR 38583) andAugust 28 (44 FR 50371). Today's Supplement provides further discussion on Control Techniques Guidelines for stationary sources of volatile organic compounds.
For Further InformationContact" The appropriate EPA regional office listed on the rst page ofthe April 4.1979 General Preamble (44FR 20372] or the following headquarters office: G.T. Helms. Chief. Control Programs Operations Branch, Control Programs Development Division. EPA Office of Air Quality Planning and Standards (MD-15. Research Triangle Park. North Carolina 27711, (919) 541-5365 or 541- 5226. PublicComment-As explained in the April 4 General Preamble, EPARegional Administrators arepublishing Federal Register proposals inviting comment on whether the individual plan submittals should be approved. The General Preamble, the July 2 Supplement, the August 28 Supplement. and this Supplement are notices ofproposed rulemaking, applicable to each decision by EPA whether to approve a state plan submittal. EPA's final action will be in the form ofa ruling approving or disapproving the individual plan submittal. Ifthe discussion in this Supplement requires alteration ofany comments on a plan forwhich the
comment period has already ended, the
commenter should contact the appropriate EPA Regional Office immediately so that the issue can be appropriately resolved. SupplementaryhInformation: General background information is set out at length in the April 4 General Preamble. This Supplement provides further discussion on the Control Techniques Guidelines (CrGs)issued by EPA for

sources ofvolatile organic compounds (VOC). [VOC is Achemical precursor of 

### 53761

### Federal Register / Vol. 44, No. 181 / Monday, September 17, 1979 

## / Proposed Rules

ozone, andis therefore controlled'in plans for the ozone'ambient standard).

In several proposals involving particular state plan submittals, EPA has stated that the submitted regulations for control of sources ofVOC were not supported by the information in the CTGs. Where EPA noted a problem, the Agency proposed that the.State would have to provide an adequate demonstration that its regulations represent reasonably available control technology (RACT), or amend the regulations to be consistent with the information in the CTGs. The purpose of the following discussion is to explain generally the legal and policy considerations supporting these proposals, and to discuss in general the purpose ofthe CTGs.

1.RACTfor OzonePlans.In the 1977 amendments to the Clean Air Act, Congress specified that, in order for a state implementationplan (SIP) to satisfy the requirements ofPart D of Title I of the Act (PartD),the SIP must _provide for application of all reasonably

available control measures, which includes RACTfor all stationary sources.I In using the term "reasonably aVailable control technology," Congress apparently adopted EPA's pre-existing conception of the term. 2



### EPA has defined RACT as: Thelowest emission limitation that a particular

source is capable ofmeeting by the application ofcontrol technology thatis reasonably available considering technological and economic feasibility.3 

### RACT for a particular source is determined on a case-by-case basis, considering the technological and economic circumstances ofthe individual source.

EPAregulations provide that less stringent emission limitations than those achievable with RACT are acceptable only ifthe State plan shows that the less stringent limitations are sufficient to attain and maintain national ambient air

'Sections 172(b)(2]-(3)of the Act (42U.S.C. 7502(bJ(2)-(3)).

2Congress did not adopt its own definition of "RACT,"and was well aware ofhow EPAused the term. See, e.g., Hearings on H.R. 4151, H.R. 4758, and H.R.4444 before the Subcommittee on Health and Environment ofthe House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess..,Part 2 at 1808, 1825 (Serial No.95-59, March 8-11 and April 18, 1977].

-EPA articulated Its definition ofRACT in a memorandum fromRoger Strelow, Assistant Administrator for Air and Waste Management, to Regional Administrators Regions I-X, on - "Guidance for Determining Acceptability ofSIP Regulations in Non-attainment Areas," section L.a (December 9,1976), reprinted in (1976) 7 Environmental Reporter, Current Developments (BNA]1210 col. 2; and inEPA's publication Workshop onRequirements forNon-attainment AreaPlan--Compilation of

Presentations 154 (OAQPS No. 1.2-103, revised edition April 1978]. 

### quality standards, and show reasonable further progress during the interim before attainment.4 

### Otherwise, RACT limitations are required, as discussed in detail in the April 4 General Preamble.5



### :2.EPA's ControlTechniques Guidelines. In the 1977 amendments to the Act, Congress instructed States to begin revising their plans to assure attainment of standards, and also -instructed EPA to prepare guidance material to assist states in their efforts to develop ozone plans. While EPA's main effort was to prepare material on control oftransportation sources, Congress also required the Agency to publish, and make available to State air pbllution control agencies, information

on control ofemissions frbm nontransportation sources including fuel transfer and storage operations and operations using solvents. 6

### Congress stated its intent that-these documents

were "to be a basic resource available to State and local governments in determining the measures to be included in plans to achieve and maintain the national ambient air quality standards." 7

### While deliberating on the 1977 amendments to thWe Act containing these specific instructions, Congress

was aware that EPA had already begun preparing a series ofCTGs to provide guidance to States and industry on controlling stationary sources ofVOC.8

Each CTG describes techniques available forreducing emissions ofVOC from a category of sources, and states recommended levels ofcontiol. There

were 11 such CTG's published before January 1978, and 9 published during 1978. EPA intends the CTG's to serve the following functions:

a.Informing theStates.The primary purposes of each CTG is to inform the State and local air pollution control agencies ofair pollution control techniques available for reducing emissions ofVOC from the class of

sources covered by the CTG.This information, involving the capabilities and problems general to the industry, should be useful to both control'

'40 CFR 51.1(o)(1). The regulations refer only to attainment and maintenance. The analogous requirement for the SIP to show reasonable further progress was established by the 1977 amendments. .See 44 FR 20375 col. 3 (April 4,1979).. -4FR 20375-20377. 6Section 108(f)(1A)(il) of the Act (40 USC 7408{f)(1(A](ii).

,Report to accompany S. 252, S,Rep. No.95-127, 95th Cong., Ist Sess. 24, (May 10, 1977].

8See Hearings, note 2 above, Part 2 at 1427-32. EPA's authority to publish information and iecommended levels ofcontrol is provided by section 103(b)(1) (40 USC7403(bJ(1)), which generally authorizes EPA to publish "information. including appropriate recommendations" to assist airpollution control agencies, in addition to section 

### agencies and industry in developing needed emission limitations'for stationary sources within the State.

b. Establishing the Deadline for SubmittingSIPRequirements.EPA believes that States will be able to make

more technologically sound decisions in adopting emission limitations Ifthey are permitted to defer adoption until after the information in the CTGs Is available, Therefore, EPA has stated that a SIP revision due January 1,1979 is acceptable ifit includes necessary emission limitations for source categories covered by CTGs published by January 1978. 9

### Emission limitations for source categories covered by CTGs published between January 1978 and January 1979 must be adopted and submitted to EPA by July 1, 1980. 0



### c.Recommendationto States.Along with iiformation, each CTG contains recommendations to the States ofwhat EPA calls the "presumptive norm" for RACT, based on EPA's current evaluation ofthe capabilities and problems general to the industry. Where the States finds the presumptive norm applicable to an individual source or group of sources, EPA recommends that the State adopt requirements consiltent with the presumptive norm level in order to include RACT limitations in the SIP." I However, recommended controls are based on capabilities and problems which are general to the industry they do not take into account the unique circumstanceb ofeach facility. In many cases appropriate controls would be
more or less stringent. States are urged tojudge the feasibility of imposing the recommended controls on particular sources, and adjust the controls accordingly.

The presumptive norm is only a recommendation. For any source of group ofsources, regardless ofwhether they fall within the industry norm, the

144 FR20376 col. 3(April 4,1979] 43 FR 21070 (May 3,1978).

'*See memorandum from David G, Hawkins, EPA Assistant Administrator forAir. Noise and Radiation, to Regional Administrator, Regions l-X,
on "State Implementation Plans/Revised Schedules for Submitting Reasonably Available Control Technology Aegulations forStationary Sources of Volatile Organic Compounds (VOC" (August22, 1979). TheJuly 1,1960 deadline Is six months later than the deadline EPA had announced inthe statements cited Infootnote 9.Since the process of adopting regulations appears more lengthy titan first anticipated, additional time may be necessary to, accommodate public,administrative, and legislative review.'

Adoption ofemission limitations may not be deferreduntil after publication of CTGs where deferral would result in failure to achieve reasonable further progress, See44FR 20377 n. 25 (April 4,1'979.

"Or requirements that deviate Imperceptibly (e.g., up to5percent less control)from the recommended presumptive norm. 

### 53762

### Federal Register / Vol. 44, No. 181 / Monday, September 17, 1979 / Proposed Rules

State may develop case-by-case RACT requirements independently ofEPA's recommendation. EPA will propose to approve any submitted RACT requirement that the State shows will satisfy the requirements ofthe Act for RACT, based on the economic and technical circumstances ofthe particulai

sources being regulated.

d.Basis for theEPA Decisionon Approval.EPA sought information from the relevant industries inpreparing the CTGs, and EPA believes that the information in the CTGs is highly relevant to the decision whether to approve State regulations. For SIPs that'
must include RACT limitations, each CTGwill be part ofthe rulemaking record on which EPA's decision will be based. 12However, the CTGdoes not establish conclusively how issues must be resolved. In reviewing an individual regulation, EPA will consider not only the information in the CTG,but also any material included in the State submittal and in public comments on the submittal.

For emission limitations that are consistent with the information in the CTGs, therefore, the State may be able
to rely solely on the information in the CTG to support its determination that the adopted requirements represent RACT. Where this is not the case, EPA believes that the State must submit justification ofits own, to support its determination. EPA will then consider 'the information submitted by the State, together with the informnation in the CTG and public comment.

Note: Under Executive Order 12044 EPA is required tojudge whether a regulation is "significant" and therefore subject to proceduralrequirements ofthe Order or whether it may follow other specialized development procedures. EPA labels these other regulations "specialized." I have reviewed this regulation and determined that it is a specialized regulation not subject to the procedural requirements ofExecutive Order 12044. (Secs. 110(a), 172, Clean AirAct, as amended [42 U.S.C. 7410(a). 7502)).

Dated: September 5,1979. David G. Hawkins,

- AssistantAdministratorforAir. loiseand Radiation.

(FRDoc. 79-28799 Filed 9-1-79. &45 am]
BILLING CODE 6560-01-M

1 2Thisis what was meant byEPA's statement that "the criteria for SIP approval relyheavily upon the i,lformation contained inthe CTG."44 FR21676 (6ay 19. 1978). 

### 53763