[Federal Register Volume 86, Number 224 (Wednesday, November 24, 2021)]
[Proposed Rules]
[Pages 66990-66993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25626]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R06-OAR-2021-0661; FRL-9262-01-R6]


National Emission Standards for Hazardous Air Pollutants; 
Delegation of Authority to Arkansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Arkansas Department of Energy and Environment, Division of 
Environmental Quality (DEQ) has submitted a request to update the 
delegation and approval of its program for the implementation and 
enforcement of certain National Emission Standards for Hazardous Air 
Pollutants (NESHAP) promulgated under the Clean Air Act (CAA), as 
provided for under the delegation mechanism previously approved by the 
Environmental Protection Agency (EPA). The EPA is proposing to approve 
DEQ's requested update of its NESHAP delegation. If finalized as 
proposed, the delegation will only encompass sources subject to one or 
more Federal section 112 standards which are also subject to the 
requirements of the Title V operating permits program.

DATES: Written comments on this proposed rule must be received on or 
before December 27, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2021-0661, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Rick Barrett, 214-665-
7227, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at https://www.regulations.gov. While all documents in 
the docket are listed in the index, some information may not be 
publicly available due to docket file size restrictions or content 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Rick Barrett, EPA Region 6 Office, 
ARPE, (214) 665-7227, [email protected]. Out of an abundance of 
caution for members of the public and our staff, the EPA Region 6 
office will be closed to the public to reduce the risk of transmitting 
COVID-19. We encourage the public to submit comments via https://www.regulations.gov, as there will be a delay in processing mail and no 
courier or hand deliveries will be accepted. Please call or email the 
contact listed above if you need alternative access to material indexed 
but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What does this action do?
II. What is the authority for delegation?
III. What criteria must Arkansas's program meet to be approved?
IV. How did DEQ meet the NESHAP program approval criteria?
V. How are sources subject to certain listed standards going to be 
handled since DEQ did not accept delegation of these standards?
VI. What is being delegated?
VII. What is not being delegated?
VIII. How will statutory and regulatory interpretations be made?
IX. What information must DEQ provide to the EPA?
X. What authority does the EPA have?
XI. Should sources submit notices to the EPA or DEQ?
XII. How will unchanged authorities be delegated to DEQ in the 
future?
XIII. Proposed Action
XIV. Statutory and Executive Order Reviews

I. What does this action do?

    The EPA is proposing to approve an update to the delegation of the 
implementation and enforcement of certain NESHAP to DEQ. If finalized, 
the delegation will provide DEQ with the primary responsibility to 
implement and enforce the delegated standards. See sections VI and VII, 
below, for a discussion of which standards are being delegated and 
which are not being delegated.

[[Page 66991]]

II. What is the authority for delegation?

    Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize 
the EPA to delegate authority for the implementation and enforcement of 
NESHAP to a State or local agency that satisfies the statutory and 
regulatory requirements in subpart E. The NESHAP are codified at 40 CFR 
parts 61 and 63. This action regards the standards in 40 CFR part 63 
only.

III. What criteria must Arkansas's program meet to be approved?

    Section 112(l)(5) of the CAA requires the EPA to disapprove any 
program submitted by a State for the delegation of NESHAP if the EPA 
determines that:
    (A) The authorities contained in the program are not adequate to 
assure compliance by the sources within the state with respect to each 
applicable standard, regulation, or requirement established under 
section 112;
    (B) adequate authority does not exist, or adequate resources are 
not available, to implement the program;
    (C) the schedule for implementing the program and assuring 
compliance by affected sources is not sufficiently expeditious; or
    (D) the program is otherwise not in compliance with the guidance 
issued by the EPA under section 112(l)(2) or is not likely to satisfy, 
in whole or in part, the objectives of the CAA.
    In carrying out its responsibilities under section 112(l), the EPA 
promulgated regulations at 40 CFR part 63, subpart E setting forth 
criteria for the approval of submitted programs. For example, in order 
to obtain approval of a program to implement and enforce Federal 
section 112 rules as promulgated without changes (straight delegation), 
a state must demonstrate that it meets the criteria of 40 CFR 63.91(d). 
40 CFR 63.91(d)(3) provides that interim or final Title V program 
approval will satisfy the criteria of 40 CFR 63.91(d).\1\ The NESHAP 
delegation for Arkansas, as it applies to Title V sources, was most 
recently approved on November 12, 2014 (79 FR 67073).
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    \1\ Some NESHAP do not require a source to obtain a Title V 
permit (e.g., certain area sources that are exempt from the 
requirement to obtain a Title V permit). For these non-Title V 
sources, the EPA believes that the State must assure the EPA that it 
can implement and enforce the NESHAP for such sources. See 65 FR 
55810, 55813 (September 14, 2000).
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IV. How did DEQ meet the NESHAP program approval criteria?

    The EPA granted final interim approval for the Arkansas Operating 
Permit Program under part 70 in a rulemaking published September 8, 
1995. 60 FR 46771. In the Federal Register notice proposing interim 
approval of the Arkansas Operating Permit Program, the EPA discussed 
the delegation of unchanged part 63 standards as they apply to part 70 
sources and noted that Arkansas plans to use the mechanism of 
incorporation by reference to adopt unchanged part 63 standards into 
its regulations. See 59 FR 47828, 47830 (September 19, 1994). In an 
October 9, 2001, rulemaking, the EPA took final action to fully approve 
the Arkansas Operating Permit Program. 66 FR 51312. In accordance with 
40 CFR 63.91(d), the up-front approval criteria for delegation of 
unchanged part 63 standards as requested by DEQ have been met. However, 
the EPA's October 9, 2001, Federal Register notice failed to discuss 
the mechanism associated with delegation of the part 63 standards for 
sources subject to the part 70 program. As discussed above, sources 
subject to the part 70 program are those sources that are operating 
pursuant to a part 70 permit issued by the State, local agency, or the 
EPA. Sources not subject to the part 70 program are those sources that 
are not required to obtain a part 70 permit from either the State, 
local agency, or the EPA (see 40 CFR 70.3); e.g., exempted area 
sources. As stated above, the CAA section 112(l) requirements for 
approval of the Arkansas program for straight delegation were satisfied 
when the EPA granted approval of the Arkansas Operating Permit Program. 
The EPA's approval also met the up-front criteria set forth in 40 CFR 
63.91(d).
    However, since DEQ implements and enforces unchanged part 63 
standards (``straight delegation'') through its EPA-approved Title V 
Operating Permit Program, there were several issues which needed to be 
separately addressed and resolved in order to ensure the requirements 
for delegation under CAA section 112(l) and 40 CFR part 63, subpart E 
were met. See also 65 FR 55813 (September 14, 2000). The EPA believes 
all such issues were addressed in the Memorandum of Agreement (MOA), 
dated September 17, 2014, executed by the State and the EPA, a copy of 
which has been included in the docket for this rulemaking. DEQ 
implements and enforces part 63 standards applicable to Title V sources 
required to obtain a part 70 permit by including the applicable part 63 
standards in Title V operating permits, in accordance with the 
procedures set forth in the MOA. The permit must be effective prior to 
the first substantial compliance date for all future new and revised 
part 63 standards, unless DEQ has notified the EPA in advance that it 
does not intend to accept delegation for implementation or enforcement, 
as discussed in the MOA referenced above. Adequate resources will be 
obtained through monies from the State's Title V program that can be 
used to fund acceptable Title V activities. Upon promulgation of a new 
or revised part 63 standard, DEQ will immediately begin activities 
necessary for timely implementation of the standard. These activities 
will involve identifying sources subject to the applicable requirements 
and notifying these sources of the applicable requirements. Nothing in 
the Arkansas program for straight delegation is contrary to Federal 
guidance.
    Under 40 CFR 63.91(a), once a state has satisfied the up-front 
approval criteria, it needs only to reference the previous 
demonstration and reaffirm that it still meets the criteria for any 
subsequent submittals for delegation of the section 112 standards. As 
stated in its October 27, 2021, supplemental letter, DEQ has affirmed 
that it still meets the up-front approval criteria and referenced the 
previous demonstration.

V. How are sources subject to certain listed standards going to be 
handled since DEQ did not accept delegation of these standards?

    In its June 7, 2010, request for delegation of authority and 
approval of the mechanism used to implement and enforce the delegated 
part 63 standards, Arkansas noted that it was not requesting delegation 
of part 63 standards for area sources not required to obtain a Title V 
(part 70) permit. Arkansas also noted that it was not requesting 
delegation of the accidental release requirements under CAA section 
112(r). Since DEQ is not accepting delegation of these standards, the 
EPA will be the primary enforcement authority for those standards. 
However, these undelegated part 63 standards remain requirements of the 
sources subject to these standards; therefore, DEQ must ensure that the 
applicable part 63 standards are included in the appropriate federally 
enforceable permit for subject sources, and sources subject to these 
standards must continue to comply with their requirements.

VI. What is being delegated?

    By letter dated September 28, 2020, and supplemental letters dated 
June 29, 2021, and October 27, 2021, the EPA received requests from DEQ 
to update its existing NESHAP delegation. With certain exceptions noted 
in section VII of this document, DEQ's request includes certain NESHAP 
promulgated

[[Page 66992]]

by the EPA at 40 CFR part 63, as amended between September 17, 2014, 
and July 31, 2020. More specifically, DEQ is requesting to update its 
delegation and approval to implement and enforce 40 CFR part 63 
standards as they apply to part 70 major sources, and only to those 
area sources subject to the Title V (part 70) permitting requirements.

VII. What is not being delegated?

    DEQ has not requested, nor would this rulemaking if approved as 
proposed, delegate the enforcement and implementation of 40 CFR part 63 
standards to DEQ that would apply to area sources which do not require 
a Title V (part 70) permit. In addition, the EPA regulations provide 
that we cannot delegate to a State any of the Category II Subpart A 
authorities set forth in 40 CFR 63.91(g)(2). These include the 
following provisions: Sec.  63.6(g), Approval of Alternative Non-
Opacity Standards; Sec.  63.6(h)(9), Approval of Alternative Opacity 
Standards; Sec.  63.7(e)(2)(ii) and (f), Approval of Major Alternatives 
to Test Methods; Sec.  63.8(f), Approval of Major Alternatives to 
Monitoring; and Sec.  63.10(f), Approval of Major Alternatives to 
Recordkeeping and Reporting. In addition, some part 63 standards have 
certain provisions that cannot be delegated to the states. Furthermore, 
no authorities are being proposed for delegation that require 
rulemaking in the Federal Register to implement, or where Federal 
overview is the only way to ensure national consistency in the 
application of the standards or requirements of CAA section 112. 
Finally, CAA section 112(r), the accidental release program authority, 
is not being proposed for delegation by this action.
    If this action is finalized as proposed, all of the inquiries and 
requests concerning implementation and enforcement of the excluded 
standards in the State of Arkansas should be directed to the EPA Region 
6 Office.
    The EPA is proposing a determination that the NESHAP program 
submitted by Arkansas meets the applicable requirements of CAA section 
112(l)(5) and 40 CFR part 63, subpart E.

VIII. How will statutory and regulatory interpretations be made?

    If this NESHAP delegation update is finalized as proposed, the DEQ 
will obtain concurrence from the EPA on any matter involving the 
interpretation of section 112 of the Clean Air Act or 40 CFR part 63 to 
the extent that implementation, administration, or enforcement of those 
provisions are not covered by prior EPA determinations or guidance.

IX. What information must DEQ provide to the EPA?

    DEQ must provide any additional compliance related information to 
the EPA, Region 6, Office of Enforcement and Compliance Assurance 
within 45 days of a request under 40 CFR 63.96(a). In receiving 
delegation for specific General Provisions authorities, DEQ must submit 
to EPA Region 6, on a semi-annual basis, copies of determinations 
issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 
standards, these determinations include: Section 63.1, Applicability 
Determinations; Section 63.6(e), Operation and Maintenance 
Requirements--Responsibility for Determining Compliance; Section 
63.6(f), Compliance with Non-Opacity Standards--Responsibility for 
Determining Compliance; Section 63.6(h), Compliance with Opacity and 
Visible Emissions Standards--Responsibility for Determining Compliance; 
Sections 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; 
Section 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; 
Section 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives 
to Test Methods; Section 63.7(e)(iii), Approval of Shorter Sampling 
Times and Volumes When Necessitated by Process Variables or Other 
Factors; Sections 63.7(e)(2)(iv), (h)(2), and (h)(3), Waiver of 
Performance Testing; Sections 63.8(c)(1) and (e)(1), Approval of Site-
Specific Performance Evaluation (Monitoring) Test Plans; Section 
63.8(f), Approval of Minor Alternatives to Monitoring; Section 63.8(f), 
Approval of Intermediate Alternatives to Monitoring; Section 63.9 and 
63.10, Approval of Adjustments to Time Periods for Submitting Reports; 
Section 63.10(f), Approval of Minor Alternatives to Recordkeeping and 
Reporting; and Section 63.7(a)(4), Extension of Performance Test 
Deadline.

X. What authority does the EPA have?

    We retain the right, as provided by CAA section 112(l)(7) and 40 
CFR 63.90(d)(2), to enforce any applicable emission standard or 
requirement under section 112. In addition, the EPA may enforce any 
federally approved State rule, requirement, or program under 40 CFR 
63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make 
certain decisions under the General Provisions (subpart A) of part 63. 
We are proposing to delegate to the DEQ some of these authorities, and 
retain others, as explained in sections VI and VII above. In addition, 
the EPA may review and disapprove State determinations and subsequently 
require corrections. See 40 CFR 63.91(g)(1)(ii). EPA also has the 
authority to review DEQ's implementation and enforcement of approved 
rules or programs and to withdraw approval if we find inadequate 
implementation or enforcement. See 40 CFR 63.96.
    Furthermore, we retain the authority in an individual emission 
standard that may not be delegated according to provisions of the 
standard. Finally, we retain the authorities stated in the. October 9, 
2001, rulemaking, where the EPA took final action to fully approve the 
Arkansas Operating Permit Program. See 66 FR 51312.
    The updated 40 CFR part 63 standards being requested by DEQ are 
discussed in their request letter and supplemental letters to EPA, as 
noted in section VI above. A copy of each of these three letters is 
included in the docket for this action. A table of the updated NESHAP 
standards being requested may be found in the docket for this action. 
The table also shows the authorities that cannot be delegated to any 
state or local agency.

XI. Should sources submit notices to the EPA or DEQ?

    For the delegated part 63 standards and authorities covered by this 
proposed action, if finalized, sources would submit all of the 
information required pursuant to the general provisions and the 
relevant subpart(s) of the delegated NESHAP (40 CFR part 63) directly 
via electronic submittal to online EPA database portals that are 
specified in each rule, and also as paper submittals to the ADEQ at the 
following address: The Arkansas Department of Energy and Environment, 
Division of Environmental Quality, 5301 Northshore Drive, North Little 
Rock, Arkansas 72118-5317. The DEQ is the primary point of contact with 
respect to the delegated NESHAP. The EPA Region 6 proposes to waive the 
requirement that courtesy notifications and reports for delegated 
standards be submitted to the EPA in addition to DEQ in accordance with 
40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).\2\ For those standards and 
authorities not delegated as discussed above, sources must continue to 
submit all appropriate information to the EPA.
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    \2\ This waiver only extends to the submission of copies of 
notifications and reports; EPA does not waive the requirements in 
delegated standards that require notifications and reports be 
submitted to an electronic database (e.g., 40 CFR part 63, subpart 
HHHHHHH).

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[[Page 66993]]

XII. How will unchanged authorities be delegated to DEQ in the future?

    Consistent with the EPA regulations and guidance,\3\ if this NESHAP 
delegation update is finalized as proposed, DEQ will only need to 
periodically submit a written request to EPA, Region 6, to update its 
approval of the delegation of authority to implement and enforce new or 
revised part 63 standards through its approved Title V permitting 
program. In such request, DEQ will reference the previous up-front 
approval demonstration, reaffirm that it still meets the up-front 
approval criteria, and identify the new or revised part 63 standards 
that will be delegated upon incorporation into Title V permits.
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    \3\ See Hazardous Air Pollutants: Amendments to the Approval of 
State Programs and Delegation of Federal Authorities, Final Rule (65 
FR 55810, September 14, 2000); and ``Straight Delegation Issues 
Concerning Sections 111 and 112 Requirements and Title V,'' by John 
S. Seitz, Director of Air Quality Planning and Standards, EPA, dated 
December 10, 1993.
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    The EPA will respond in writing to the request and take action in 
the Federal Register to inform the public and affected sources of the 
EPA's decision, indicate where source notifications and reports should 
be sent, and to update 40 CFR 63.99(a)(4), amending the Arkansas table 
of delegated part 63 standards being implemented and enforced by DEQ.

XIII. Proposed Action

    In this action, because DEQ's request meets all requirements of CAA 
section 112(l) and 40 CFR 63.91, the EPA is proposing to approve their 
request for the updated delegation and the continued approval of the 
mechanism used to implement and enforce certain part 63 standards 
applicable to sources required to obtain a Title V (part 70) permit, as 
they existed though July 31, 2020.
    As for the part 63 standards which have not yet been incorporated 
into permits, DEQ's authority to implement and enforce new and revised 
part 63 standards under this delegation becomes effective when this 
proposed action is finalized and after the issuance of the appropriate 
federally enforceable permit containing those standards. DEQ's 
authority to implement and enforce new and revised part 63 standards 
under this delegation will become effective according to the procedures 
outlined in the MOA, a copy of which is included in the docket for this 
rulemaking.
    Nothing in this action should be construed as permitting, allowing, 
or establishing a precedent for any future request for revision to the 
approved delegation. Each request for revision to the approved 
delegation shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.

XIV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve 
section 112(l) submissions that comply with the provisions of the Act 
and applicable Federal regulations. In reviewing section 112(l) 
submissions, the EPA's role is to approve state choices, provided that 
they meet the criteria and objectives of the CAA and of the EPA's 
implementing regulations. Accordingly, this proposed action would 
merely approve the State's request as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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: 42 U.S.C. 7401 et seq.

    Dated: November 17, 2021.
David Garcia,
Director, Air & Radiation Division, Region 6.
[FR Doc. 2021-25626 Filed 11-23-21; 8:45 am]
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