[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Rules and Regulations]
[Pages 21370-21372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11737]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[AD-FRL-5503-3]


Hazardous Air Pollutants: Amendment to Regulations Governing 
Equivalent Emission Limitations by Permit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On May 20, 1994, the Agency promulgated a rule in the Federal 
Register governing the establishment of equivalent emission limitations 
by permit, pursuant to section 112(j) of the Clean Air Act (Act). After 
the effective date of a Title V permit program in a State, each owner 
or operator of a major source in a source category for which the EPA 
was scheduled to, but failed to promulgate a section 112(d) emission 
standard will be required to obtain an equivalent emission limitation 
by permit. The permit application must be submitted to the Title V 
permitting authority 18 months after the EPA's missed promulgation 
date. This action amends the original Regulations Governing Equivalent 
Emission Limitations by Permit rule. This amendment delays the section 
112(j) permit application deadline for all 4-year source categories 
listed in the regulatory schedule by 180 days until November 15, 1996. 
This action is needed to alleviate unnecessary paperwork for both major 
source owners or operators and permitting agencies.

EFFECTIVE DATE: May 10, 1996.

ADDRESSES: Docket. All information used in the development of this 
final action is contained in the preamble below. However, Docket No. A-
93-32, containing the supporting information for the original 
Regulations Governing Equivalent Emission Limitations by Permit rule is 
available for public inspection and copying between 8:00 a.m. and 5:30 
p.m., Monday through Friday at the Air and Radiation Docket and 
Information Center (6102), Room M-1500, U.S. Environmental Protection 
Agency, 401 M Street, S.W., Washington, D.C. 20460; telephone (202) 
260-7548, fax (202) 260-4000. A reasonable fee may be charged for 
copying.

FOR FURTHER INFORMATION CONTACT: Mr. James Szykman or Mr. Anthony 
Wayne, Emission Standards Division (MD-13), U.S. Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711, 
telephone (919) 541-2452 (Szykman) or (919) 541-5439 (Wayne).


[[Page 21371]]


SUPPLEMENTARY INFORMATION: In the Proposed Rules Section of this 
Federal Register, EPA is proposing a rule that is identical to this 
direct final rule. If significant, adverse comments are timely received 
on the proposed rule, the direct final rule will be withdrawn, and all 
such comments will be addressed in a subsequent final rule based on the 
proposed rule. If no significant, adverse comments are timely received 
on the proposed final rule, then the direct final rule remains 
effective upon publication, and no further action is contemplated on 
the parallel proposal published today.
    The information presented in this preamble is organized as follows:

I. Background
II. Summary of Rule Change and Rationale
    A. Permit Application Deadline
    B. Effective Date
    C. Judicial Review
III. Administrative Requirements
    A. Docket
    B. Regulatory Impact Analysis
    C. Impact on Reporting Requirements
    D. Impact on Small Entities
    E. Reduction of Governmental Burden
    F. Environmental Justice
    G. Unfunded Mandates

I. Background

    Section 112(e) of the Clean Air Act (the Act) requires the Agency 
to publish a schedule for promulgating regulations establishing 
hazardous air pollutants (HAP) emission standards for all source 
categories listed pursuant to Section 112 of the Act. The Act further 
directs that this regulatory schedule require the promulgation of 
emission standards for at least 40 source categories by 1992, for at 
least 25 percent of the listed categories by 1994, for at least 50 
percent of the listed categories by 1997, and all remaining categories 
by the year 2000. These are commonly referred to as the 2-year, 4-year, 
7-year, and the 10-year maximum achievable control technology (MACT) 
standards, respectively. This regulatory schedule was published by EPA 
on December 3, 1993 (58 FR 64931).
    If EPA should fail to promulgate a MACT standard for a listed 
source category by 18 months after the date in the regulatory schedule, 
section 112(j) of the Act requires owners or operators of major sources 
within that source category to obtain a Title V permit, if the major 
source is located in a State with an approved Title V permit program. 
This permit will require compliance with an emission limitation 
equivalent to that which the major source would have been subject to 
had EPA promulgated a timely MACT standard for that source category.
    On May 20, 1994, EPA issued a final rule for implementing section 
112(j) (59 FR 26429). This rule requires major source owners or 
operators to submit a permit application by the date 18 months after a 
missed date on the regulatory schedule. In accordance with this 
regulation, the deadlines for submittal of permit applications are as 
follows:

------------------------------------------------------------------------
                                                         112(j) permit  
       Emission standard         Regulatory schedule      application   
                                                           deadline     
------------------------------------------------------------------------
4-year.........................  11/15/94...........  5/15/96           
7-year.........................  11/15/97...........  5/15/99           
10-year........................  11/15/00...........  5/15/02           
------------------------------------------------------------------------

II. Summary of Rule Change and Rationale

A. Permit Application Deadline

    To date, EPA has promulgated several 4-year MACT standards and 
intends to promulgate MACT standards for all of the remaining 4-year 
source categories within the 18-month period following the date in the 
regulatory schedule. All of the remaining 4-year source categories for 
which MACT standards must be promulgated have court-ordered deadlines 
with the latest deadline coinciding with the section 112(j) permit 
application deadline of May 15, 1996.
    In order for owners or operators of major sources to submit a 
timely permit application in the event that EPA would fail to 
promulgate a 4-year emission standard, applicants would have to begin 
preparation of these applications immediately. If EPA promulgates 
standards in accordance with the court-ordered schedule, this would 
result in an unnecessary burden for both the owners or operators and 
the Title V permitting agencies.
    The EPA believes that ample authority for this rule revision exists 
under the de minimis doctrine. That doctrine allows EPA to promulgate a 
rule that avoids a statutory requirement if (1) following that 
requirement would yield an environmental benefit of trivial or no 
value, and (2) the statutory scheme is not so rigid as to preclude this 
result. Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir 
1979). The EPA believes both tests are met here. Regarding the first 
point, it should be intuitively apparent that requiring sources to 
complete applications for a case-by-case determination is pointless 
when it is very likely that EPA will promulgate the MACT standard 
within a timeframe that renders the entire case-by-case exercise moot. 
This is precisely the case with regard to the pending 4-year MACT 
standards, all of which are under a court-ordered deadline for issuance 
close to the date applications are due. Regarding the second test, the 
language of section 112(j)(2), requiring that applications be submitted 
on a date ``beginning'' 18 months after a deadline has been missed, and 
the clear intent of the statute that case-by-case determinations should 
be made where they will serve as a substitute for the pending MACT 
standard, together suggest a level of flexibility in the statutory 
scheme sufficient to allow resort to the de minimis rationale.
    The EPA is amending the definition of ``Section 112(j) deadline'' 
in Sec. 63.51 of the final rule to delay the section 112(j) permit 
application deadline for all 4-year source categories by 180 days until 
November 15, 1996. The EPA believes that this new application deadline 
will allow sufficient time to promulgate the remaining 4-year emission 
standards and is consistent with the intent of section 112(j). If EPA 
does promulgate the emission standards before this time, permit 
applications or reopenings will be governed by Title V requirements.

B. Effective Date

    The EPA is publishing this rule as a final rule, and it is 
effective immediately upon publication. The Agency believes that this 
action is supported by the ``good cause'' exception in the 
Administrative Procedures Act, which permits an agency for ``good 
cause'' to proceed directly to a final rule where issuing a proposed 
rule would be ``impracticable, unnecessary, or contrary to the public 
interest'' [5 U.S.C. 553(b)(B)] and for ``good cause found'' [5 U.S.C. 
553(d)] to dispense with the general requirement that a rule be 
published 30 days before its effective date. The EPA believes that good 
cause exists here to issue a final, immediately effective rule because 
of the nearness of the May 15, 1996, permit application deadline (for 
major sources in the 4-year source category) specified in the May 20, 
1994 (59 FR 26429) final rule. If the changes in this rulemaking were 
only being proposed, then the May 15, 1996, deadline would still be in 
effect and this would negate the intent of this change to the rule to 
delay the permit application deadline until November 15, 1996, for 
sources in the 4-year source category. Furthermore, EPA views this 
action to delay the permit application deadline as noncontroversial.

C. Judicial Review

    Under Section 307(b)(1) of the Act, judicial review of the actions 
taken by this final rule is available only by the filing of a petition 
for review in the U.S.

[[Page 21372]]

Court of Appeals for the District of Columbia Circuit within 60 days of 
publication of this action. Under Section 307(b)(2) of the Act, the 
requirements that are the subject of this final rule may not be 
challenged later in civil or criminal proceedings brought by EPA to 
enforce these requirements.

III. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-32, the same docket 
as the original final rule, and a copy of today's amendment to the 
final rule will be included in the docket. The docket is an organized 
and complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of the original rulemaking. The 
principal purposes of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the rulemaking 
process, and
    (2) To serve as the record in case of judicial review. The docket 
is available for public inspection at EPA's Air and Radiation Docket 
and Information Center, which is listed under the ADDRESSES section of 
this document.

B. Regulatory Impact Analysis

    This rule was classified ``non-significant'' under Executive Order 
12866 and therefore was not reviewed by the Office of Management and 
Budget.

C. Impact on Reporting Requirements

    The information collection requirements of the previously 
promulgated rule for Regulations Governing Equivalent Emission 
Limitations by Permit were submitted to and approved by the Office of 
Management and Budget. A copy of this Information Collection Request 
(ICR) document (OMB control number 2060-0266) may be obtained from 
Sandy Farmer, OPPE Regulatory Information Division (2136), U.S. 
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 
20460, or by calling (202) 260-2740. Today's change to the final rule 
to delay the deadline for submittal of section 112(j) permit 
applications does not affect the information collection burden 
estimates made previously. Therefore, the ICR has not been revised.

D. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 requires the identification 
of potentially adverse impacts of Federal regulations upon small 
business entities. The Act specifically requires the completion of a 
Regulatory Flexibility Analysis in those instances where small business 
impacts are possible. Because this rulemaking imposes no economic 
impacts, adverse or otherwise, a Regulatory Flexibility Analysis has 
not been prepared.
    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this rule will not have a significant economic impact on a 
substantial number of small business entities.

E. Reduction of Governmental Burden

    Executive Order 12875 (``Enhancing the Intergovernmental 
Partnership'') is designed to reduce the burden to State, local, and 
Tribal governments of the cumulative effect of unfunded Federal 
mandates. The Order recognizes the need for these entities to be free 
from unnecessary Federal regulation to enhance their ability to address 
problems they face and provides for Federal agencies to grant waivers 
to these entities from discretionary Federal requirements. The Order 
applies to any regulation that is not required by statute and that 
creates a mandate upon a State, local, or Tribal government. The EPA 
anticipates that there will be no additional cost burden imposed on 
State, local, and Tribal governments as a result of today's action. 
Indeed, the purpose of the action is to reduce unnecessary burden on 
permitting agencies.

F. Environmental Justice

    Executive Order 12898 requires that each Federal agency shall make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minority and low-income populations. Today's action will 
help ensure timely compliance and the application of consistent 
regulatory requirements by allowing the section 112(d) MACT standards 
to become effective without triggering an unnecessary section 112(j) 
process. Therefore, no adverse human health or environmental effects 
are anticipated as a result of today's action.

G. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), the 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 the private sector, of $100 
million or more. Under Section 205, the 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 the EPA to establish a plan for informing and advising any 
small governments that may be significantly or uniquely impacted by the 
rule.
    The EPA has determined that the action promulgated today 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. Therefore, the requirements of the 
Unfunded Mandates Act do not apply to this action.

List of Subjects in 40 CFR Part 63

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

    Dated: May 3, 1996.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, 40 CFR Part 63 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.

    2. In Sec. 63.51, the definition of ``Section 112(j) deadline'' is 
revised to read as follows:


Sec. 63.51   Definitions.

* * * * *
    Section 112(j) deadline means the date 18 months, after the date by 
which a relevant standard is scheduled to be promulgated under this 
part, except for all major sources listed in the source category 
schedule for which a relevant standard is scheduled to be promulgated 
by November 15, 1994, the section 112(j) deadline is November 15, 1996.
* * * * *
[FR Doc. 96-11737 Filed 5-9-96; 8:45 am]
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