[Federal Register Volume 66, Number 95 (Wednesday, May 16, 2001)]
[Rules and Regulations]
[Pages 27032-27034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12039]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6978-8]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Equivalency by Permit Provisions; National Emission 
Standards for Hazardous Air Pollutants From the Pulp and Paper 
Industry; State of New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to section 112(l) of the Clean Air Act (CAA), New 
Hampshire Department of Environmental Services (NH DES) requested 
approval to implement and enforce State permit terms and conditions 
that substitute for the National Emission Standards for Hazardous Air 
Pollutants from the Pulp and Paper Industry and the National Emissions 
Standards for Hazardous Air Pollutants for Chemical Recovery Combustion 
Sources at Kraft, Soda, Sulfite and Stand-Alone Semi-chemical Pulp 
Mills. The Environmental Protection Agency (EPA) has reviewed this 
request and has found that it satisfies all of the requirements 
necessary to qualify for approval. Thus, EPA is hereby granting NH DES 
the authority to implement and enforce alternative requirements in the 
form of title V permit terms and conditions after EPA has approved the 
state's alternative requirements.

DATES: This rule is effective on July 16, 2001 without further notice, 
unless EPA receives adverse comments by June 15, 2001. 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: Written comments must be submitted to Steven Rapp, Manager, 
Air Permits Program Unit, Office of Ecosystem Protection (mail code 
CAP) at the EPA New England office listed below. Copies of NH DES's 
request for approval are available for public inspection at the 
following locations:

U.S. Environmental Protection Agency, EPA-New England, Office of 
Ecosystem Protection, One Congress Street, Suite 1100, Boston, MA 
02114-2023.
New Hampshire Department of Environmental Services, Air Resources 
Division, 6 Hazen Drive, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT: Susan Lancey, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA-New England, One 
Congress Street, Suite 1100, Boston, MA 02114-2023, Telephone: (617) 
918-1656.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 15, 1998, the Environmental Protection Agency (EPA) 
promulgated the National Emission Standards for Hazardous Air 
Pollutants from the Pulp and Paper Industry (see 63 FR 18617), which 
has been codified in 40 CFR part 63, subpart S, ``National Emission 
Standards for Hazardous Air Pollutants from the Pulp and Paper 
Industry'' (Pulp and Paper MACT I). Subsequently, on January 12, 2001, 
EPA promulgated the National Emission Standard for Hazardous Air 
Pollutants from the Pulp and Paper Industry (see 66 FR 3180) which has 
been codified in 40 CFR part 63, subpart MM, ``National Emission 
Standards for Chemical Recovery Combustion Sources at Kraft, Soda, 
Sulfite and Stand-Alone Semichemical Pulp Mills' (Pulp and Paper MACT 
II). The only sources currently subject to subpart S and subpart MM in 
New Hampshire are Groveton Paper Board Inc. of Groveton, NH (Groveton) 
and Pulp & Paper of America, LLC of Berlin, NH (Pulp & Paper of 
America).
    On January 23, 2001, New Hampshire Department of Environmental 
Services (NH DES) requested delegation of subpart S and subpart MM 
under Sec. 63.94 for both Groveton and Pulp & Paper of America. EPA 
received the request on January 30, 2001. NH DES requested to implement 
and enforce approved alternative title V permit terms and conditions in 
place of the otherwise applicable requirements of subpart S and subpart 
MM under the process outlined in 40 CFR 63.94. As part of its request 
to implement and enforce approved alternative title V permit terms and 
conditions in place of the otherwise applicable Federal section 112 
standards, NH DES also requested approval of its demonstration that NH 
DES has adequate authorities and resources to implement and enforce all 
Clean Air Act (CAA) section 112 programs and rules. The purpose of this 
demonstration is to streamline the approval process for future CAA 
section 112(l) applications.

II. EPA Action

    Under CAA section 112(l), 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 local air pollution control agency has the option 
to request EPA's approval to substitute alternative

[[Page 27033]]

requirements and authorities that take the form of permit terms and 
conditions instead of source category-specific regulations. This option 
is referred to as the equivalency by permit (EBP) option. To receive 
EPA approval using this option, 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 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 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 NH DES meets the 63.91(b) 
criteria for up-front approval common to all approval options; (2) it 
provides a legal foundation for NH DES to replace the otherwise 
applicable Federal section 112 requirements with alternative, federally 
enforceable 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 NH DES will be accepting 
delegation under the EBP option.
    Under Sec. 63.94(b) and Sec. 63.91, NH's request for approval is 
required to include the identification of the sources and the source 
categories for which the state is seeking authority to implement and 
enforce alternative requirements, as well as a one time demonstration 
that the State has an approved title V operating permit program that 
permits the affected sources. After reviewing the request for approval 
of NH DES's EBP program for subpart S and subpart MM, EPA has 
determined that this request meets all the requirements necessary to 
qualify for approval under CAA section 112(l) and 40 CFR 63.91 and 
63.94. Accordingly, EPA approves NH DES's request to implement and 
enforce alternative requirements in the form of title V permit terms 
and conditions for Groveton and Pulp & Paper of America for subpart S 
and subpart MM. The requirement applicable to the sources and the 
``applicable requirement'' for title V purposes remains the Federal 
section 112 requirement until EPA has approved the alternative permit 
terms and conditions and the final title V permit is issued.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.'' This rule is not subject to Executive Order 13045, entitled, 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

B. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires 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.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This Federal action allows the state of New Hampshire to implement 
equivalent alternative permit requirements to replace pre-existing 
requirements under Federal law and does not have tribal implications. 
Thus, Executive Order 13175 does not apply to this rule.

C. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires 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.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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 final rule 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, 
as specified in Executive Order 13132. This action simply allows New 
Hampshire to implement equivalent alternative requirements to replace a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this rule.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C 
601 et seq. 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 not-for-profit 
enterprises, and small governmental entities with jurisdiction over 
populations of less than 50,000. This final rule will not have a 
significant impact on a substantial number of small entities because 
approvals under 40 CFR 63.94 do not create any new requirements but 
simply allows the state to implement and enforce permit terms in place 
of federal requirements that the EPA is already imposing. Therefore, 
because this approval does not create any new requirements, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

E. Unfunded Mandates

    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 
annual 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

[[Page 27034]]

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 approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action allows New 
Hampshire to implement equivalent alternative requirements to replace 
pre-existing requirements under Federal law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

F. Submission to Congress and the Comptroller General

    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).

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, Sec. 12(d) (15 U.S.C. 
272 note) directs EPA to 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. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
action does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

H. 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 16, 2001. 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)).

List of Subjects in 40 CFR Part 63

    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 2, 2001.
Ira W. Leighton,
Acting Regional Administrator, EPA--New England.

    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 paragraphs (a)(29)(i)and 
(a)(29)(ii) to read as follows:


Sec. 63.99  Delegated Federal Authorities

    (a) * * *
    (29) New Hampshire.
    (i) [Reserved]
    (ii) New Hampshire Department of Environmental Services (NH DES) 
may implement and enforce alternative requirements in the form of title 
V permit terms and conditions for Groveton Paper Board Inc. of 
Groveton, NH and Pulp & Paper of America, LLC of Berlin, NH for subpart 
S--National Emission Standards for Hazardous Air Pollutants from the 
Pulp and Paper Industry and subpart MM--National Emissions Standards 
for Hazardous Air Pollutants for Chemical Recovery Combustion Sources 
at Kraft, Soda, Sulfite and Stand-Alone Semi-chemical Pulp Mills. This 
action is contingent upon NH DES including, in title V permits, terms 
and conditions that are no less stringent than the Federal standard and 
have been approved by EPA. In addition, the requirement applicable to 
the source remains the Federal section 112 requirement until EPA has 
approved the alternative permit terms and conditions and the final 
title V permit is issued.
* * * * *
[FR Doc. 01-12039 Filed 5-15-01; 8:45 am]
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