[Federal Register Volume 63, Number 101 (Wednesday, May 27, 1998)]
[Rules and Regulations]
[Pages 28906-28909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13986]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6014-5]


Delegation of National Emission Standards for Hazardous Air 
Pollutants for Source Categories; State of Nevada; Nevada Division of 
Environmental Protection; Washoe County District Health Department

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to delegate the authority to 
implement and enforce specific national emission standards for 
hazardous air pollutants (NESHAPs) to the Nevada Division of 
Environmental Protection (NDEP) and the Washoe County District Health 
Department (WCDHD) in Nevada. EPA is also approving WCDHD's program for 
receiving delegation of unchanged NESHAPs applicable to sources not 
subject to Title V of the 1990 Clean Air Act Amendments. The preamble 
outlines the process that NDEP and WCDHD will

[[Page 28907]]

use to receive delegation of any future NESHAP, and identifies the 
NESHAP categories to be delegated by today's action. EPA has reviewed 
each agency's request for delegation and has found that these requests 
satisfy all of the requirements necessary to qualify for approval. 
Thus, EPA is hereby granting NDEP and WCDHD the authority to implement 
and enforce the unchanged NESHAP categories listed in this rule.

DATES: This rule is effective on July 27, 1998 unless EPA receives 
relevant adverse comments by June 26, 1998. If EPA receives such 
comment, then it will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region 
IX office listed below. Copies of the requests for delegation and other 
supporting documentation are available for public inspection (docket 
number A-96-25) at the following location: U.S. Environmental 
Protection Agency, Region IX, Rulemaking Office (AIR-4), Air Division, 
75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4), 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1200.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 112(l) of the Clean Air Act, as amended in 1990 (CAA), 
authorizes EPA to delegate to state or local air pollution control 
agencies the authority to implement and enforce the standards set out 
in 40 CFR part 63, National Emission Standards for Hazardous Air 
Pollutants for Source Categories. On November 26, 1993, EPA promulgated 
regulations, codified at 40 CFR part 63, subpart E (hereinafter 
referred to as ``subpart E''), establishing procedures for EPA's 
approval of state rules or programs under section 112(l) (see 58 FR 
62262).
    Any request for approval under CAA section 112(l) must meet the 
approval criteria in 112(l)(5) and 40 CFR part 63, subpart E. To 
streamline the approval process for future applications, a state or 
local agency may submit a one-time demonstration that it has adequate 
authorities and resources to implement and enforce any CAA section 112 
standards. If such demonstration is approved, then the state or local 
agency would no longer need to resubmit a demonstration of these same 
authorities and resources for every subsequent request for delegation 
of CAA section 112 standards. However, EPA maintains the authority to 
withdraw its approval if the State does not adequately implement or 
enforce an approved rule or program.
    On December 12, 1995, EPA approved the Nevada Division of 
Environmental Protection's (NDEP's) program for accepting delegation of 
section 112 standards that are unchanged from Federal standards as 
promulgated (see 60 FR 63631). The approved program reflects an 
adequate demonstration by NDEP of general resources and authorities to 
implement and enforce section 112 standards. However, formal delegation 
for an individual standard does not occur until NDEP obtains the 
necessary regulatory authority to implement and enforce that particular 
standard, and EPA approves NDEP's formal delegation request for that 
standard.
    On January 5, 1995, EPA approved the Washoe County District Health 
Department's (WCDHD's) program for accepting delegation of section 112 
standards (see 60 FR 1741). This approval extended only to sources that 
are subject to the CAA Title V operating permit program. WCDHD 
subsequently requested approval for its program to receive delegation 
of unchanged section 112 standards applicable to non-Title V sources 
(see letter from Brian L. Jennison, Director, Air Quality Management 
Division, WCDHD to Felicia Marcus, Regional Administrator, U.S. EPA 
Region IX, dated December 12, 1997). Therefore, today's action includes 
approval under section 112(l) of WCDHD's program for accepting 
delegation of section 112 standards applicable to non-Title V sources. 
The approved programs reflect an adequate demonstration by WCDHD of 
general resources and authorities to implement and enforce section 112 
standards. However, formal delegation for an individual standard does 
not occur until WCDHD obtains the necessary regulatory authority to 
implement and enforce that particular standard, and EPA approves 
WCHDH's formal delegation request for that standard.
    Both NDEP and WCDHD informed EPA that they intend to obtain the 
regulatory authority necessary to accept delegation of section 112 
standards by incorporating section 112 standards into their respective 
state and local codes of regulation by reference to the Federal 
regulations; NDEP will be incorporating the section 112 standards into 
the Nevada Administrative Code, and WCDHD will be incorporating the 
standards into the WCDHD District Board of Health Regulations Governing 
Air Quality Management. The details of these delegation mechanisms are 
set forth in Memorandums of Agreement (MOAs) between each agency and 
EPA, and are available for public inspection at the U.S. EPA Region IX 
office (docket No. A-96-25).
    On January 30, 1998, NDEP requested delegation for several 
individual section 112 standards that have been incoporated by 
reference into the Nevada Administrative Code. On December 3, 1997, 
WCDHD requested delegation for section 112 standards that have been 
incorporated by reference into the WCDHD District Board of Health 
Regulations. The standards that are being delegated by today's action 
are listed in a table at the end of this rule.

II. EPA Action

A. Delegation for Specific Standards

    After reviewing NDEP's and WCDHD's requests for delegation of 
various national emissions standards for hazardous air pollutants 
(NESHAPs), EPA has determined that these requests meet all the 
requirements necessary to qualify for approval under CAA section 112(l) 
and 40 CFR 63.91. Accordingly, NDEP and WCDHD are granted the authority 
to implement and enforce the requested NESHAPs. These delegations will 
be effective on July 27, 1998. A table of the NESHAP categories that 
will be delegated to each agency is shown at the end of this rule. 
Although NDEP and WCDHD will have primary implementation and 
enforcement responsibility, EPA retains the right, pursuant to CAA 
section 112(l)(7), to enforce any applicable emission standard or 
requirement under CAA section 112. In addition, EPA does not delegate 
any authorities that require implementation through rulemaking in the 
Federal Register, or where Federal overview is the only way to ensure 
national consistency in the application of the standards or 
requirements of CAA section 112.
    After a state or local agency has been delegated the authority to 
implement and enforce a NESHAP, the delegated agency becomes the 
primary point of contact with respect to that NESHAP. Pursuant to 40 
CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA Region IX waives the 
requirement that notifications and reports for delegated standards be 
submitted to EPA as well as to NDEP or WCDHD.
    In its December 3, 1997 request, WCDHD included a request for 
delegation of the regulations implementing CAA sections 112(g) and 
112(j), codified at 40 CFR part 63, subpart B. These requirements apply 
to major sources only, and need not be

[[Page 28908]]

delegated under the section 112(l) approval process. When promulgating 
the regulations implementing section 112(g), EPA stated its view that 
``the Act directly confers on the permitting authority the obligation 
to implement section 112(g) and to adopt a program which conforms to 
the requirements of this rule. Therefore, the permitting authority need 
not apply for approval under section 112(l) in order to use its own 
program to implement section 112(g)'' (see 61 FR 68397). Similarly, 
when promulgating the regulations implementing section 112(j), EPA 
stated its belief that ``section 112(l) approvals do not have a great 
deal of overlap with the section 112(j) provision, because section 
112(j) is designed to use the title V permit process as the primary 
vehicle for establishing requirements'' (see 59 FR 26447). Therefore, 
state or local agencies implementing the requirements under sections 
112(g) and 112(j) do not need approval under section 112(l). As a 
result, EPA is not taking action to delegate 40 CFR part 63, subpart B 
to WCDHD.

B. Delegation Mechanism for Future Standards

    Today's document takes action to approve WCDHD's program for 
receiving delegation of unchanged section 112 standards applicable to 
non-Title V sources, and serves to notify the public of the details of 
NDEP's and WCDHD's procedure for receiving delegation of future NESHAP. 
As set forth in the MOAs, NDEP and WCDHD intend to incorporate by 
reference, into their respective state and local codes of regulation, 
each newly promulgated NESHAP for which they intend to seek delegation. 
The agencies will then submit a letter to EPA Region IX, along with 
proof of regulatory authority, requesting delegation for each 
individual NESHAP. Region IX will respond in writing that delegation is 
either granted or denied. If a request is approved, the delegation of 
authorities will be considered effective upon the date of the response 
letter from Region IX. Periodically, EPA will publish in the Federal 
Register a listing of the standards that have been delegated. Although 
EPA reserves its right, pursuant to 40 CFR 63.96, to review the 
appropriateness of any future delegation request, EPA will not 
institute any additional comment periods on these future delegation 
actions. Any parties interested in commenting on this procedure for 
delegating future unchanged NESHAPs should do so at this time.

C. Opportunity for Public Comment

    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the Proposed Rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal for this action should relevant adverse 
comments be filed. This action will be effective July 27, 1998 without 
further notice unless the Agency receives relevant adverse comments by 
June 26, 1998.
    If EPA receives such comments, then EPA will publish a document 
withdrawing this final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on the proposed rule. Any parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on July 27, 1998 and no further action will be 
taken on the proposed rule.

IV. Administrative Requirements

A. 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.
    Delegations of authority to implement and enforce unchanged Federal 
standards under section 112(l) of the Clean Air Act do not create any 
new requirements but simply transfer primary implementation authorities 
to the State. Therefore, because this action does not impose any new 
requirements, I certify that it does not have a significant impact on 
any small entities affected.

B. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate, or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the delegation action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under state or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector, result from this 
action.

C. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

D. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 27, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

E. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action

[[Page 28909]]

from review under Executive Order 12866.

F. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to 
any rule that is (1) likely to be ``economically significant'' as 
defined under Executive Order 12866, and (2) the Agency has reason to 
believe that the environmental health or safety risk addressed by the 
rule may have a disproportionate effect on children. If a 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.
    This rule is not subject to E.O. 13045, ``Protection of Children 
from Environmental Health Risks and Safety Risks'' because this is not 
an ``economically significant'' regulatory action as defined by E.O. 
12866, and because it does not involve decisions on environmental 
health or safety risks that may disproportionately affect children.

List of Subjects in 40 CFR Part 63

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

    Authority: This action is issued under the authority of section 
112 of the Clean Air Act, as amended, 42 U.S.C. 7412.

    Dated: May 4, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
    Title 40, chapter I, part 63 of the Code of Federal Regulations is 
amended as follows:

PART 63--[AMENDED]

    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 Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding and reserving paragraphs 
(a)(6) through (a)(27), and adding paragraph (a)(28) to read as 
follows:


Sec. 63.99  Delegated Federal authorities.

    (a) * * *
    (6)-(27) (Reserved)
    (28) Nevada.
    (i) The following table lists the specific part 63 standards that 
have been delegated unchanged to the air pollution control agencies in 
the State of Nevada. The (X) symbol is used to indicate each category 
that has been delegated.

             Delegation Status for Part 63 Standards--Nevada            
------------------------------------------------------------------------
    Subpart            Description        NDEP \1\  WCDHD \2\   CCHD \3\
------------------------------------------------------------------------
A..............  General Provisions....         X          X            
M..............  Perchloroethylene Dry          X          X            
                  Cleaning.                                             
N..............  Hard and Decorative            X          X            
                  Chromium                                              
                  Electroplating and                                    
                  Chromium Anodizing                                    
                  Tanks.                                                
O..............  Ethylene Oxide          .........         X            
                  Sterilization                                         
                  Facilities.                                           
Q..............  Industrial Process             X                       
                  Cooling Towers.                                       
R..............  Gasoline Distribution   .........         X            
                  Facilities.                                           
T..............  Halogenated Solvent            X          X            
                  Cleaning.                                             
JJ.............  Wood Furniture                 X                       
                  Manufacturing                                         
                  Operations.                                           
KK.............  Printing and                   X          X            
                  Publishing Industry.                                  
OO.............  Tanks--Level 1........         X                       
PP.............  Containers............         X                       
QQ.............  Surface Impoundments..         X                       
RR.............  Individual Drain               X                       
                  Systems.                                              
VV.............  Oil-Water Separators           X                       
                  and Organic-Water                                     
                  Separators.                                           
------------------------------------------------------------------------
\1\ Nevada Department of Environmental Protection.                      
\2\ Washoe County District Health Department.                           
\3\ Clark County Health Department.                                     

    (ii) [Reserved]

[FR Doc. 98-13986 Filed 5-26-98; 8:45 am]
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