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Citation: 44 Fed. Reg. 53761 1979 

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

assistance of staff. Such determinations

shall be communicated to the applicant

by certified letter. An oral conference

will be scheduled at the request of the

applicant. Communications of

determinations to theapplicant shall

include an explanation of the

availability of grievance procedures.

b) Availability of 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 from the

Commission's initial determination shall

be known as "applicants."

(c) Requests for hearings. Hearing

requests maybe made inperson orby

letter and must be received by 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 of that time

limit.

(d) Hearings Officers. 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 as Hearing Officers.

[e) Hearing scheduling. Hearings will

be held asscheduled by the Hearing

Officer. [1) Notice to the applicant will

be provided at least five days prior to

the hearing stating the date, time, place,

and scope of the hearing. (2) All

hearings shall be held within thirty days

after Commission receipt of the

applicant's request therefor unless this

time limit is extended upon showing of

good cause. (3) All hearings shall be

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 of all

correspondence and written

communication to the applicant and

shall be deemed as acting for the

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 of the hearing on

request and upon payment-of

appropriate Commission fees.

(2) The Hearing Officer is empowered

to:

fi) Adminster oaths and affirmations

to witnesses;

(ii) Receive relevant evidence:

(iii) Regulate the course and conduct

of the 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 of the

Hearing.

(h) Hearing Qfficer decisions. (1) The

Hearing Officer shall submit to the

Commission written findings of fact.

conclusions of law, and decision based

on all the evidence and argument

presented, within thirty days after

conclusion of the Hearing.

(2) Copies of the Hearing Officer's

findings of fact, conclusions of law, and

decision shall be provided to the

applicant. The applicant may submit

briefs or other written argument to the

Commission within two weeks of the

date of the Hearing Officer's

determination was mailed to them.

(i) Final Agency action. After receipt

of the Hearing Officer's decision and the

applicant's post-decision briefs or

written argument, if any, the

Commission shall affirm or reverse 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) Direct appeal to 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 and Hopilndian

Relocation Commission.

[FR D9-=7 Red 9-14-4k I45 am)

BLUNG CODE 4310-B

ENVIRONMENTAL PROTECTION

AGENCY

[40 CFR Part 52]

[FRL 1316-4]

State Implementation Plans;, General

Preamble for Proposed Rulemaking on

Approval of Plan Revisions for

Nonattainment Areas-Supplement

(on Control Techniques Guidelines)

AGENCY. Environmental Protection

Agency.

ACTON: General preamble for proposed

rulemaking-Supplement.

SUMMARYV. Provisions of the Clean Air

Act enacted in1977 require states to

revise their State Implementation Plans

for all areas that have not attained

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 of the

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 of the

submittals (44 FR 20372). This was

followed by a correction of a

typographical error on April 30 (44 FR

25243) and Supplements on July 2 (44 FR

38583) and August 28 (44 FR 50371).

Today's Supplement provides further

discussion on Control Techniques

Guidelines for stationary sources of

volatile organic compounds.

For Further Information Contact" The

appropriate EPA regional office listed on

the rst page of the April 4.1979

General Preamble (44 FR 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.

Public Comment- As explained in the

April 4 General Preamble, EPA Regional

Administrators are publishing 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 of proposed

rulemaking, applicable to each decision

by EPA whether to approve a state plan

submittal. EPA's final action will be in

the form of a ruling approving or

disapproving the individual plan

submittal. If the discussion in this

Supplement requires alteration of any

comments on a plan for which 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 of volatile organic compounds

(VOC). [VOC is A chemical 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 of VOC 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 of the CTGs.

1. RACTfor Ozone Plans. In the 1977

amendments to the Clean Air Act,

Congress specified that, in order for a

state implementationplan (SIP) to

satisfy the requirements of Part D of

Title I of the Act (Part D), the SIP must

_provide for application of all reasonably available control measures, which

includes RACT for 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: The lowest

emission limitation that a particular

source is capable of meeting by the

application of control technology that is

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 of the

individual source.

EPA regulations provide that less

stringent emission limitations than those

achievable with RACT are acceptable

only if the 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 (42 U.S.C.

7502(bJ(2)-(3)). 2

Congress did not adopt its own definition of

"RACT," and was well aware of how EPA used the

term. See, e.g., Hearings on H.R. 4151, H.R. 4758, and

H.R. 4444 before the Subcommittee on Health and

Environment of the 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 of RACT in a memorandum from Roger Strelow, Assistant

Administrator for Air and Waste Management, to

Regional Administrators Regions I-X, on - "Guidance for Determining Acceptability of SIP

Regulations in Non-attainment Areas," section L.a

(December 9,1976), reprinted in (1976) 7

Environmental Reporter, Current Developments (BNA] 1210 col. 2; and in EPA's publication Workshop on Requirements for Non-attainment

Area Plan--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 Control Techniques

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 of transportation sources,

Congress also required the Agency to

publish, and make available to State air

pbllution control agencies, information

on control of emissions 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 of CTGs to provide guidance to States and industry on

controlling stationary sources of VOC.8

Each CTG describes techniques available for reducing emissions of VOC

from a category of sources, and states

recommended levels of contiol. 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 the States. The primary

purposes of each CTG is to inform the

State and local air pollution control

agencies of air pollution control

techniques available for reducing emissions of VOC 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).. -4 FR 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]. 8

See Hearings, note 2 above, Part 2 at 1427-32.

EPA's authority to publish information and

iecommended levels of control is provided by section 103(b)(1) (40 USC 7403(bJ(1)), which

generally authorizes EPA to publish "information.

including appropriate recommendations" to assist

air pollution 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

Submitting SIP Requirements. EPA

believes that States will be able to make

more technologically sound decisions in

adopting emission limitations If they 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 if it 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. Recommendation to States. Along with iiformation, each CTG contains

recommendations to the States of what

EPA calls the "presumptive norm" for

RACT, based on EPA's current

evaluation of the 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 of each facility. In many

cases appropriate controls would be

more or less stringent. States are urged

to judge 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 of sources, regardless of whether

they fall within the industry norm, the

144 FR 20376 col. 3 (April 4,1979] 43 FR 21070

(May 3,1978).

'*See memorandum from David G, Hawkins, EPA

Assistant Administrator for Air. Noise and

Radiation, to Regional Administrator, Regions l-X, on "State Implementation Plans/Revised Schedules

for Submitting Reasonably Available Control

Technology Aegulations for Stationary Sources of

Volatile Organic Compounds (VOC" (August 22, 1979). The July 1,1960 deadline Is six months later than the deadline EPA had announced in the

statements cited In footnote 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 of emission limitations may not be deferred until after publication of CTGs where deferral would result in failure to achieve

reasonable further progress, See 44 FR 20377 n. 25 (April 4, 1'979.

"Or requirements that deviate Imperceptibly (e.g., up to 5 percent 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 of EPA's

recommendation. EPA will propose to

approve any submitted RACT

requirement that the State shows will

satisfy the requirements of the Act for

RACT, based on the economic and

technical circumstances of the particulai

sources being regulated.

d. Basis for the EPA Decision on

Approval. EPA sought information from

the relevant industries in preparing 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

CTG will be part of the rulemaking

record on which EPA's decision will be

based. 12 However, the CTG does 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 of its 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 to judge whether a regulation is "significant" and therefore subject to

procedural requirements of the 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 of Executive Order

12044.

(Secs. 110(a), 172, Clean Air Act, as amended

[42 U.S.C. 7410(a). 7502)).

Dated: September 5,1979.

David G. Hawkins, -

AssistantAdministratorforAir. loise and

Radiation.

(FR Doc. 79-28799 Filed 9-1-79. &45 am]

BILLING CODE 6560-01-M

1

2This is what was meant by EPA's statement

that "the criteria for SIP approval rely heavily upon

the i,lformation contained in the CTG." 44 FR 21676

(6ay 19. 1978).

53763