Original 111d RuFinal Procedures for Implementation of 111(d) [40 FR 53340, Monday November 17,...

+ 2(,1 1/,1(Citation: 40 Fed. Reg. 53340 1975

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5340Title 40--Protection of Environment

CHAPTER I-ENVIRONMENTALPROTECTION AGENCY

SUBCHAPTER C-AIR PROGRAMS[FRL 437-4]

PART 60-STANDARDS OF PERFORM-"ANCE FOR NEW STATIONARY WSOURCES

State Plans for the Controliof CertainPollutants From Existing'Vacilities

On October 7, 1974 (39 FR 26102),EPA proposed to add a new Subpart B toPart 60 to establish procedures and re-quirements for submittal of State plansfor control of certain pollutants fromexisting facilities under section 111(d)of the Clean Air Act, as namended (42U.S.C. 1857c-6(d)). Interested personsparticipated in the rulemaking by send-ing comments to EPA. A total of 45 com-ment letters was received, 19 of whichcame from industry, 16 from State andlocal agencies, 5 from Federal agencies,and 5 from other interested parties. Allcomments have been carefully consid-ered, and the proposed regulations havebeen reassessed. A number of changessuggested in comments have been made,as well as changes developed within theAgency.

One significant change, discussed morefully below, is that different proceduresand criteria will apply to submittal -andapproval 'of State plans where the Ad-ministrator determines that a particularpollutant may cause or contribute to theendangerment of public welfare, butthat adverse effects on public healthhave not been demonstrated. Such a de-termination night be made, for example,in the case of a pollutant that damagescrops but has no known adverse effect onpublic health. This change is intendedto allow States more flexibility in estab-lishing plans for the control of suchpollutants than is Provided for plans in-volving pollutants that may affect publichealth.. Most other changes were of a relativelyminor nature and, aside from the-changejust mentioned, the basic concept of theregulations is unchanged. A number ofprovisions have been reworded to resolveambiguities or otherwise clarify theirmeaning, and some were. combined -orotherwise reorganized to clarify andsimplify the overall organization of Sub-part B.

BACKGROUNDWhen Congress enacted the Clean Air

Amendments of 1970. it addressed threegeneral -categorles vof pollutants ,enfittedfrom stationary sources. See Senate Re-port No. 91-1196, 91st Cong., 2d Sess.18-19 (1970). The first category consistsof pollutants (often referred to as "cri-teria pollutants") for which air qualitycriteria andnational ambient airqualitystandards are ,es~tblished undersections108 and 109 ,f the Act. Under the 1970amendments, criteria pollutants are con-trolled by State implementation plans(SIP') approved or promulgated undersection 110 and, in some cases, by stand-ards of performance for new sources es-

RULES AND REGULATIONS

tablished under section 111. The secondcategory consists of pollutants listed ashazardous pollutants under section 112and controlled under that section.

The, third category consists of pol-lutants that are (or may be) harmful topublic health or welfare but are not or,cannot be controlled under sections108-110 or 112. Section 111(d) requirescontrol of existing sources of such pol-lutants whenever standards of perform-ance (for those pollutants) are estab-lished under section 111(b) for newsourceslof the same type.

In determining which statutory ap-proach is appropriate for regulation of aparticular pollutant, EPA considers thenature and severity .of the pollutant'seffects on public health or welfare, thenumber and nature of its sources, andsimilar factors prescribed by the Act-Where a choice of 'approaches is pre-sented, the regulatory advantages anddisadvantages of the various options arealso considered. As indicated above, sec-tion 111(d) requires control of existingsources of a pollutant if a standard of'performance is established for newsourcesnder section 111(b) and the pol-lutant is not controlled under sections108-110 or 112. In general, this meansthat -control under section 111(d) is ap-propriate when the pollutant may causeor contribute to endangerment of publichealth or welfare but is not known to be"hazardous" within the meaning of sec-tion 112 and is not controlled under sec-tions 108-110 because, for example, it isnot emitted from "numerous or diverse"sources as required by section 108.

For ease of reference, pollutants towhich section 111(d) applies as a resultof the establishment of standards of per-formance for new sources are defined in 60.21(a) of the new Subpart B as"designated pollutants." Existing facil-ities which emit designated pollutantsand which would be subject to the stand-ards of performance for those pollutants,if new, are defined in 60.21(b) as"designated facilities."

As indicated previously, the proposedregulations have been revised to allowStates more, flexibility in establishingplans where the Administrator deter-mines that a designated pollutant maycause or ,contribute to endangerment of,public -welfaie, but that adverse effectson, public health have not been demon-trated. For convenience of discussion,

designated pollutants for which the Ad-ministrator makes such a determination.are referred to in this preamble as "wel-fare-related pollutants" (i.e., those re-,quiring control solely because of theireffects on public welfare). All otherdesignated pollutants are referred to as"health-related pollutants."

To date, standards ol performance haverbeen'establishedmnder section 111 of theAct fpr two designated pollutants-fluo-'rides emitted from five categories ofsources in the phosphate fertilizer indus-try (40 FR 33152, August 6, 1975) andsulfuric acid mist emitted from sulfuricacid production units (36 FR 24877, De-cember 23, 1971). In addition, standards

of performance have been proposed forfluorides emitted from primary alumi-num plants (39 FR 37730, October 23,1974), and final action on these stand.ards will occur shortly. EPA will publishdraft guideline documents (see next sec-tion) for these pollutants in the nearfuture. Although a final decision has notbeen made, it is expected that sulfuricacid mist will be determined to be ahealth-related pollutant and that fluo-rides will be determined to be welfare-related.

SMlARY OF REULATIONSSubpart B provides that after a stand-

ard of performance applicable to omis-sions of a designated pollutant from nowsources is promulgated, the Administra-tor will publish guideline documents con-taining information pertinent to controlof the same pollutant from designated(i.e., existing) facilities [ 60.22(a) ], Theguideline documents will include "emis-sion guidelines" (discussed -below) andcompliance times based on factors speci-fied in 60.22(b) (5) and will be mnadoavailable for public comment In draftform before being published in finalform. For health-related pollutants, theAdministrator will concurrently proposeand subsequently promulgate the emis-sion guidelines and compliance timesreferred to above E 60.22(c)]. For wel-fare-related pollutants, emission guide-lines and compliance times will appearonly in the applicable guideline docu-ments E 60.22(d) (1) ].

The Administrator's determinationthat a designated pollutant is heath-related, welfare-related, or both and therationale for the determination will beprovided in the draft guideline documentfor that pollutant. In making this de-termination, the Administrator will con-sider suh factors as: (1) Known andsuspected effects of the pollutant on pub-lic health and welfare; (2) potential am-bient concentrations of the pollutant;(3) generation of any secondary pol-lutants for which the designated pollut-ant may be a precursor; (4) any syn-ergistic effect with other pollutants; and(5) potential effects from accumulationin the environment (e.g., soil, water andfood chains). After consideration ofcomments and other Information a finaldetermination and rationale will be pub-lished In the final guidelines document.

For both health-related and welfare-related pollutants, emission guidelineswill reflect the degree of control attain-able with the application of the best sys-tems of emission reduction which (con-sidering the cost of such reduction) havebeen adequately demonstrated for desig-nated facilities C 60.21(e) ]. As discussedmore fully below, the degree of controlreflected in EPA's emission guidelineswill take into account the costs of retro-fitting existing facilities and thus willprobably be less stringent than corre-sponding standards of performance forflew sources.

After publication of a final guidelinedocument for a designated pollutant, theStates will have nine months to develop

NEDERAL REGISTER, VOL 40, NO. 222-MONDAY, NOVEMBER 17, 1975

21d subit Plans contalning emisslonstandards for control of that pollutantfrom -designated facilities 1 6023(a)].For -health-reisted -pollutants, -Statemission standards must -ordinarily be atleast as stringent as the correspondingEPA gffidelines tobe approvabie T 69.24

c)']. However, ,States may apply lessstringent standards to 'particular-sourcestar classes -of sources) -when economicfactors-or physical limitations specific topartioular sources (orclasses of sources)make-uch applicaUon -ignificantly morereasonable F[0.24fl. For welfare-re-lated ,pollutants., States -may balance theemission guieTmes -and other informa-tion provided in PA's guideline docu-

- ments -against other factors -if publicconcern--in -establishing their emissionstandards, proirided that appropriate;o sideration is-given to the information'presented in the zuideline documentsand -at 'public hearings and that -otherrequirements -of Subpart B are metT"60.240-)j. -

Within four-monthsafter the-date re-'gured for zubmission-of-a -plan, the Ad-imistrator -will approve or disapprove

the-planor portions thereof T- -60.27


ambient level. Quite often, health andwelfare problems caused by such pol-lutants are highly localized and thus anextensive procedure, such as the SIPsrequire, is not justified. As previouslyindicated, Congress specifically recog-nized the need for control of a thirdcategory of pollutants; it also-recognizedthat as additional information be-comes available, these pollutants mightlater be reclassified as hazardous or cri-teria pollutants.

Other commentators reasoned thatsince designated pollutants are definedas non-criteria and non-hazardous pol-lutants, only harmless substances wouldfall within this category. These com-mentators argued that the Administra-tor should establish that a pollutant hasadverse effects on public health or wel-fare before it could be regulated undersection 111(d). Before acting under sec-tion 111(d), however, the Administratormust establish a standard of perform-ance under section 111(b). In so doing,the Administrator must find under sec-tion 111(b) that the source category cov-ered by such standards may contributesignificantly to airpollution which causesor contributes to the endangerment ofpublic health or welfare.

(2) Basis for approval or disapprovalof State plans. A number of industrycomments questioned EPA's authority torequire, as a basis for approval of Stateplans, that the States establish emissionstandards that (except in cases of eco-nomic hardship) are equivalent to ormore stringent than EPA's emissionguidelines. In general, these commentsargued that EPA has authority only toprescribe procedural requirements foradoption and submittal of State plans,leaving the States free to establish emis-sion standards on any basis they deemnecessary or appropriate. Most Statecomments expressed no objection toEPA's interpretation on this point, anda few explicitly endorsed it.

After careful consideration of thesecomments, EPA continues to believe, forreasons summarized below, that its in-terpretation of section 111(d)-is legallycorrect. Moreover, EPA believes that itsinterpretation is essentialto the effectiveimplementation of section 111(d), par-ticularly where health-relatbd pollutantsare involved. As discussed more fullybelow, however, EPA has decided that itis appropriate to allow States somewhatmore flexibility in establishing plans forthe control of welfare-related pollutantsand has revised the proposed regulationsaccordingly.

Although section 111(d) does not spec-ify explicit criteria for approval or disap-proval of State plans, the Administratormust disapprove plans that are not "sat-Isfactory" [Section 111(d) (2) (A)]. Ap-propriate criteria must therefore beinferred from the language and contextof section 111(d) and from its legislativehistory. It seems clear, for example, thatthe Administrator must disapprove plansnot adopted and submitted in accord-ance with the procedural requirementshe prescribes under section 111(d), and

none of the commentators questionedthis concept. The principal questions,therefore, are whether Congress in-tended that the Administrator base ap-provals and disapprovals on substantiveas well as procedural criteria~and, if so,on what types of substantive criteria.

A brief summary of the legislative his-tory of section 111(d) will facilitate dis-cussion of 'these questions. Section 111(d) Ivas enacted as part of the Clean AirAmendments of 1970. No comparable pro-vision appeared in the House bill. TheSenate bill, however, contained a sec-tion 114 that would have required theestablishment of national emissionstandards for "selected air pollutionagents." Although the term "selected airpollution agent" did not include pollu-tants that might affect public welfare[which are-subject to control under sec-tion 111(d) ], its definition otherwise cor-responded to the description of pollu-tants to be controlled under section111(d). Section 114 of the Senate billwas rewritten in conference to becomesection 111(d). Although the Senate re-port and debates include references tothe intent of section 114, neither the con-ference report nor subsequent debates in-clude any discussion of section 111(d) asfinally enacted. In the absence of suchdiscussion, EPA believes inferences con-cerning the legislative Intent of section111(d) may be drawn from the generalpurpose of section 114 of the Senate billand from-the manner in which it wasrewritten 14 conference.

After a careful examination of section111(d), its statutory context, and.itslegislative history, EPA believes the fol-lowing conclusions may be drawn:(1) As appears from the Senate reportand debates, section 114 of the Senatebill was designed t. address a specificproblem. That problem was how to reduceemissions of pollutants which are -ormay be) harmful to health but which,on the basis of information likely to beavailable in the near term, cannot becontrolled under other sections of theAct-as criteria pollutants or as hazardouspollutants. (It was made clear that suchpollutants might be controlled as criteriaor hazardous pollutants as more defini-tive information became available.) Theapproach taken in section 114 of theSenate bill was to require national emis-sion standards designed to assure thatemissions of such pollutants would notendanger health.(2) The Committee of Conferencechose to rewrite the Senate provision aspart of section 111, which in effect re-quires maximum feasible control of pol-lutants from new stationary sourcesthrough technology-based standards (asopposed to standards designed to assureprotection of health or welfare or both).For reasons summarized below, EPA be-lieves this choice reflected a decision inconference that a similar approach (mak-ing allowances for the costs of controllingexisting sources) was appropriate for thepollutants to be controlled under section111(d).


of government and was convinced that. elatively drastic measures 'were neces-sary -toprotect public health and welfare.The -result was a series of far-reachingAmendments which, coupled -with virtu-ally unprecedented statutory -deadlines,required EPA and the States to takeswift and aggressive action. AlthoughCongress left initial responsibility withthe States for control of criteria pollut-

- nts under section 110, it set tough mini-mum criteria for such action -and re-qunired Federal assumption of responsi-bility whereStateaction-was inadequate.It also required direct Federal action forcontrol of new stationary sources, haz-ardous pollutants, and mobile sources..inally, in an extraordinary departure-from its practice -of delegating rulemak-iug authority to administrative agencies-(a departure intented to force the pace,of pollution control efforts in the auto-mobile industry), Congress itself enacted,what amounted- to statutory *emission.standards for -the principal automotivepollutants.

Against this background of Congres-sional firmness, the overriding purpose of-which was to protect public health and-welfare, it would-make no sense to inter-pret section Ill (d) as requiring the Ad-ministrator to base approval or disap-proval of Stateplans solely on-procedural-criteria. Under that interpretation,-tates could set extremely lenient stand--ads-even standards permitting greatly-increased emissions-so long as EPA'sprocedural requirements were net. Giventhat the pollutants in tquestion are (ormay be) -harmful to public health and-welfare, and that section111(d) is theonly provision of the Act requiring theircontrol, it is difficult to believe that Con-gress meant toleave such a gapingloop-hole in a statutory scheme otherwise de-

-signed to force meaningful action.Some -of the comments on the pro-

posed regulations-assume that the States-were intended to set-emission standardsbased directly on protection of publichealth and -welfare. EPA 'believes this

iew is consistent with its own vIew thatthe Administrator was intended to baseapproval ordisapproval of State plans 6n-substantive as well as procedural criteriab-atbelieves Congress intended a technol-ogy-based approach rather than one-based directly on protection of healthand welfare. The prin6ipal factors lead-ing -EPA to this conclusion are sum--marized 'above. Another is that if Con-gress had -intended an approach baseddirectly on-protection of health and wel-

:fare, it could have rewritten Section 114-of the Senate bill as part of section 110,-which epitpmizes that approach, rather-han as part -of section 111. Indeed, withxelatively. minor changes in language,-Congress could simply have retained sec-tion 114 as :a. separate section requiringaction based directly on protection ofhealth and-welfare. -

Still-another factor is that asking each-of the States, many of which hadlimitedresources and expertise in air pollution

-control, to -set -standards protective ofliealthand-wefaerei n-the-absence of ade-

-quate information would have made evenless sense than requiring the Administra-for to do so with the various resources athis -command. Requiring -a technology-based approach, on the other hand, wouldnot only, shift the criteria for decision-making to more solid ground (the -avail-ability and costs of control technology)hut would also take advantage of the in-formation and expertise available to EPAfrom its asseisment of techniques for thecontrol of the same pollutants from thesame types of sources under section 111(b), as well as its power to compel sub-mission of information about such tech-niques under section 114 of the Act (42UDS.C. 1857c-9). Indeed, section 114 wasmade specifically Appllcable for the pur-Pose (among others) of assisting In thedevelopment of State plans under section111(d). For all of these reasons, EPA be-lieves Congress intended a technology-based approach rather than one baseddirectly on protection of health andwelfare.

Some of the comments argued thatEPA's emission guldellnes under section111(d) will, in effect, be national emis-sionstandards for existingsources, a con-cept they' argue was rejected insection1I(d). In general, the comments rely onthe fact that although section 114 of theSenate bill specifically provided for na-tional emission standards, section 111(d)calls for establishment of emlsslonstand-ards by States. EPA believes that the re-wrilting of section 114 in conference Isconsistent with-the establishment of na-tional criteria by which to judge the ade-quacy of State plans, and that the ap-proach taken in section 111(d) may beviewed as largely the result of two decl--sons: (1) To adopt a technoloy-basedapproach similar tothat for new sources;and (2) to give States a greater role thanwas 'provided in section 114. Thus, Stateswill have brmary responsibility for de-veloping and enforcing control plansunder section 111(d); under section 114,theywould nly have been invited to seeka delegation of authority to enforce Fed-erally developed standards. Under EPA'sinterpretation of section 111(d), Stateswill also have authority to grant vari-ances in cases of economic hardship; un-der section 114, only the Administratorwould have had authority to grant suchrelief. As with section 110, assigning pri-mary responsibility to the States in theseareas is perfectly consistent with reviewof their plans on some substantive basis.Ifthere Is to be substantive review, theremust be criteria -for the review, and EPAbelieves it is desirable (if not legally re-quired) that the criteria be made known-in advance to the States, to industry, andto the general publlc.The emission guide-lines, each of which will be subjected to-public comment before final adoption,will serve this function.

'In any event, whether or not Congress"rejected" the concept of national emis-sionstandardslor,existng sources, EPA'semission guidelines will not have the pur-:pose or effect of matlonal emissionstand-ards. As emphasized elsewhere In this-preamble, they -will not be requirements

53343enforceable -against any source. Like thenational ambient air quality standardsprescribed under section 109 and theItems set forth In section 110(a) (2) (A)-(H). they will only be criteria for judging.the adequacy of State plans.

Mdoreover, it Is Inaccurate to argue (asdid -one comment) that, because EPA'semission guidelines will reflect best avail-able technology considering cost, Stateswill be unable to set more stringent-standards. EPA's emission guidelines willreflect its judgment of the degree of con-trol that can be attained by variousclasses of existing sources without unrea-sonable costs. Particular sources withina class may be able to achieve greatercontrol without unreasonable , costs.Moreover, States that believe additionalcontrol Is necessary or desirable will befree under section 116 of the Act torequire more expensive controls, whichmight have the effect of closing other-wise marginal facilities, or to ban par-ticular categortes of sources outrightSection 60.24(g) has been added to clar-My this point. On the other hand, Stateswill be free to set more lenient standards,subject to EPA review, as provided in 60.24(d) and (f) in the case of wel-fare-related pollutants and in cases ofeconomic hardship.

F'lnally, as discussed elsewhere in thispreamble, EPA'S emission guidelides willreflect subcategorization within sourcerategores where appropriate, takinginto account differences in sizes -andtypes of facilities and similar con- 6024 (d) and (co in the case of -=cl-sideratons, including differences in con--trol costs that may be involved -forsources located in, different parts of thecountry. Thus, EPA's emission guidelineswill in effect be tailored to what is xea-sonably achievable by particular class sof existing sources, -and States will befree to vary from the levels of controlreprisnted by the emlsslonguidelines inthe ways mentioned above. In most ifnot all cases, thexesult is likely to besub-stantial variation in the degree of controlrequired for particular sources. ratherthan Identical standards for all sources.

In summary, EPA believes section111(d) is a hybrid provision, intended tocombine primary State responsibility for-plan development and-enforcement (as in,section 110) with the technology-basedapproach (maklng allowances for thecosts of controlling existing sources)taken in section 111 generally. As indi-cated above, EPA believes its interpreta-tion of section 111(d) is legally conrect inyiew of the language, statutory context,-and legislative history of the-provision.

Even assuming some other interpreta-tion were permissible, however, EPA,believes its -interpretation is essentialto the effective implementation ofsection 111(d), particularly wherehealth-related Pollutants are involved-Mfost of the reasons foi this con-clusion are discussed above, but it maj'beUseful to summarize them here. -Giventhe relative lack of information concern-lng-the effects of-designated pollUntantson-public bealth and welfare, it would be

FEDERAL REGISTER, VOL 40, NO. 222--MONDAY, -NOVEABER 17, 1975

53344

difficult-if not impossible-for theStates or EPA to prescribe legally defen-sible standards based directly on pro-tection of health and welfare. By con-trast, a technology-based approach takes-advantage of the information and ex-pertise available to EPA from its assess-ment of techniques for the control of thesame pollutafits from the same types ofsources under section 111(b), as well asEPA's power to compel submission of in-formation about such techniques undersection 114 of the Act. Given the varietyof circumstances that may be encount-ered in controlling existing as opposed tonew sources, it makes sense to have theStates develop plans based on technicalInformation provided by EPA and makejudgments, subject to EPA review, con-cerning the extent to which less stringentrequirements are appropriate. Finally,EPA review of such plans for their sub-stantive adequacy is essential (partic-ularly for health-related pollutants) toassure that meaningful controls will baImposed. For these reasons, given a choiceof permissible interpretations of section111(d), EPA would choose the interpre-tation on which Subpart B is based onthe ground that it is essential to theeffective implementation of the provision,particularly where health-related pol-lutants are involved.- As indicated previously, however, EPAhas decided that it is appropriate toallow the States more flexibility in es-tablishing Plans for the control ofwelfare-related pollutants than is pro-,vided for plans involving health-relatedpollutants. Accordingly, the proposedregulations have been revised to providethat States may balance the emissionguidelines, compliance times and otherinformation in EPA's guideline docu-ments against other factors in establish-ing emission standards, complianceschedules, and variances for welfare-'related pollutants, provided that appro-priate consideration is given to the in-formation presented in'the guidelinedocuments and at public hearings, andthat all other requirements of Subpart Bare met [ 60.24(d) 3. Where sources ofpollutants that cause only adverse effects'to crops are located in nonagricultural-areas, for example, or where residentsof a local community depend on an eco-nomically marginal plant for their liveli-hood, such factors could be taken intoaccount. Consistent with section 116 ofthe Act, of course, States will remainfree to adopt requirements as stringentas (or more stringent than) the corre-sponding emission guidelines and com-pliance times specified in EPA's guide-line documents if they wish [see 60.24(g) 1.

A number of factors influenced EPA's-decision to allow States more flexibilityIn establishing plans for' control ofwelfare-related pollutants than is pro-vided for plans involving health-relatqdpollutants. The dominant factor, ofcourse, is that effects on public healthwould not be expected to occur in suchcases, even if State plans required nogreater controls than are presently in


effect. In a sense, allowing the States*greater latitude in such cases simplyreflects EPA's view (stated In the pre-amble to the proposed regulations) thatrequiring maximum feasible control ofdesignated pollutants may be unreason-able in some situations. Although pol-lutants that cause only damage to vege-tation, for example, are subject to con-trol under section 111(d), few wouldargue that requiring maximum feasiblecontrol is as important for such pollut-ants as it is for pollutants that endangerpublic health.

This fundamental distinction-be-tween effects on public health and effectson public welfare-is reflected in section110 of the Act, which requires attain-ment of national air quality standardsthat protect public health within a cer-tain time (regardless of economic andsocial consequences) but requires attain-ment of national standards that protectpublic welfare only within "a reasonabletime." The significance of this distinc-tion is reflected in the legislative historyof section 110; and the legislative historyof section 111(d), although inconclusive,suggests that its primary purpose was torequire control of pollutants that en-,danger public health. For these reasons,EPA believes it is both permissible undersection 111(d) and appropriate as amatter of policy to approve State plansrequiring less than maximum feasiblecontrol of welfare-related pollutantswhere the States wish to take into ac-count considerations other than tech-nology and cost.

On the other hand, EPA believes sec-tion 111(d) requires maximum feasiblecontrol of welfare-related pollutants inthe absence of such considerations andwill disapprove plans that require lessstringent control without some reasonedexplanation. For similar reasons, EPAwill promulgate plans requiring maxi-mum feasible control if States fail to sub-mit satisfactory plans for welfare-relatedpollutants [ 60.27(e) (1).] Under 60.27(e) (2), however, relief will still be avail-able for particular sources where eco-nomic hardship can be shown.

(3) Variances. One comment assertedthat neither the letter nor the intent ofsection 111 allows, variances from planrequirements based on application ofbest adequately demonstrated controlsystems. Although section 111(d) doesnot explicitly provide for variances, itdoes require consideration of the cost ofapplying standards to existing facilities.Such a consideration is inherently dif-ferent than for new sources, becausecontrols cannot be included in the de-sign of an existing facility and becausephysical limitations may make installa-tion of particular control systems impos-sible or-unreasonably expensive in somecases. For these reasons, EPA believes theprovision [ 60.24(f) I allowing States togrant relief in cases of economic hard-ship (where health-related pollutants areinvolved) is permissible under section111(d). For the same reasons, languagehas been included in 60.24(d) to makeclear that variances are also permissible

where welfare-related pollutants are In-volved, although the flexibility providedby that provision may make variancesunnecessary.

Several commentators urged that pro-posed 60.23(e) [now 60.24(f)] beamended to indicate that States are notrequired to consider applications for var-iances if they do not feel It appropriateto do so. The commentators contendedthat the proposed wording would inviteapplications for variances, would allowsources to delay compliance by submit-ting such applications, might conflictwith existing State laws, and would prob-ably impose significant burdens on Stateand local agencies. In addition, there issome question whether the mandatoryreview provision as proposed would beconsistent with section 116 of the Act,which makes clear that States are freeto adopt and enforce standards morestringent than Federal standards, Ac-cordingly, the proposed wording has beenamended to permit, but not require,State review of facilltls for the purposeof applying less stringent standards, Togive the States more flexibility, 60.24(f) has also been amended to permitvariances for particular classes of sourcesas well as for particular sources.

Other comments requested that EPAmake clear whether proposed 60.23 (e)[now 60.24(f) I would allow permanentvariances or whether EPA Intends ulti-mate compliance with the emissionstandards that would apply In the ab-sence of variances. Section 60.24(f) isintended to utilize existing State vari-ance procedures as much as possible,Thus it is up to the States to decidewhether less stringent standards are tobe applied permanently or whether ulti-mate compliance will be required.

Another commentator suggested thatcompliance with or satisfactory progresstoward compliance with an existing Stateemission standard should be a sufficientreason for applying a less stringentstandard under 60.24(f). Such compli-ance is not necessarily sufficient becauseexisting standards have not always beendeveloped with the intention of requiringmaximum feasible control. As Indicatedin the preamble to the proposed regula-tions, however, if an existing State emis-sion standard Is relatively close to thedegree of control that would otherwisebe required, and the cost of additionalcontrol would be relatively great, theremay be Justification to apply a less strin-gent standard under 60.24(f).

,One thoughtful comment suggestedthat consideration of variances underSubpart B could In effect undermine r4-lated SIP requirements; e.g., where des-Ignated pollutants occur In particulateforms and are thus controlled to someextent under SIP requirements appli-cable to particulate matter. Nothing Insection 111(d) or Subpart B, however,will preempt SIP requirements. In theevent of a conflict, protection of healthand welfare under section 110 must con-trol.

(4) Public hearing requirement. Basedon comments that the requirement for. apublic hearing on the plan in each AQCR

.FEDERAL REGISTER, VOL 40, NO. 222-MONDAY, NOVEMBER 17, 1975


containing a. designated facility is tooburdensome, the proposed regulationhasbeen"amended to require only one hear-ing per State per plan. While the Agencyadvocates public participation in en-vironmental rulemaking, it also recog-nizes the expense and effort involvedin holding multiple hearings. States areurged to hold as many hearings as prac-ticable to assure adequate opportunityfor public participation. The hearing re-quirements have also been amended toprovide that a public hearing is not re-quired in those States which have anexisting emission standard that wasadopted after a public hearing and is atleast as stringent as the correspondingEPA emission guidelines, and to permitapproval of State notice and hearingprocedures different than those specifiedin Subpart B in some cases.

(5) Compliance schedules. The pro-posed regulation required that all com-pliance schedules be submitted with t1e.plan. Several cofimentators suggestedthat this requirement would not allowsufficient time for negotiation of sched-ules and could cause duplicative workif the emission standards were not ap-proved. For this reason a new 60.24(e) (2) has been added to allow submis-sion of compliance schedules after plansubmission but no later than the dateof the first semiannual report requiredby 60.25(e).

(6) Existing regulations. Several com-ments dealt with States which have ex-isting emisIon standards for designatedpollutants. One commentator urged thatsuch States be exempted from the re-quirements of adopting and submittingplans. However, the Act requires EPA toevaluate both the adequacy of a State'semission standards and the proceduralaspects of the plan. Thus, States withexisting regulations must submit plans.

" Another commentator suggested thatthe Administrator should approve exist-ing, emission standards which, becausethey are established on a different basis(e.g, c6ncentration standards vs. proc-ess-weight-rate type standards), aremore st igent than the correspondingEPA emission guidelne for some facil-ities and less stringent for -others. TheAgency cannot grant blanket approvalfor such emission standards; however,the Administrator may approve that partof an emission standard which is equalto or more stringent than the EPA emis-sion guideline and disapprove.that por-tion which is less stringent. Also, the lessstringent portions may be, approvable insome eases under 60.24 (d) or f). Fi-nally, subcategorization by size of sourceunder 60.22(b) (5) will probably limitthe number of cases in which this situa-tion will arise.

Other 6ommentatis apparently as-sumed that some regulations for desig-nated pollutants were approved in theState implementation plans (SIPs). Al-though some States may have submittedregulations limiting emissions of desig-nated pollutants with the SIPs, such reg-'ulations were not considered in the ap-proval or disapproval of those plans andare not considered part of approved plans

because, under section 110, SIPs, applyonly to criteria pollutants.

(7) Emission inventory data and re-ports. Section 60.24 of the proposed reg-ulations [now 60.251 required emissioninventory data to be submitted on dataforms which the Administrator was tospecify in the future. It was expectedthat a computerized subsystem to the Na-tional Emission Data System (NEDS)would be available that would accom-modate emission inventory informationon the designated pollutants. However,since this subsystem and concomitantdata form will probably not be developedand approved n time for plan develop-ment, the designated pollutant informa-tion called for will not be required incomputerized data format. Instead. theStates will be permitted to submit thisinformation in a non-computerizedformat as outlined in a new Appendix Dalong with the basic facility informationon NEDS forms (OMB #158-R0095) ac-cording to procedures In APTD 1135,"Guide for Compiling a ComprehensiveEmission Inventory" available from theAir Pollution Technical InformationCenter, Environmental ProtectionAgency, Research Triangle Park, NorthCarolina 27711. In addition, 60.25 (f) (5)has been amended to require submissionof additional information with the semi-annual reports in order to provide a bet-

-ter tracking mechanism for emlson in-ventory and compliance monitoring pur-poses.

(8) Timing. Proposed 60.27(a)' re-quired proposal of emission guidelinesfor designated pollutants simultaneouslywith proposal of corresponding standardsof performance for new (affected) facil-ities. This section, redesignated. 60.22,has been amended to require proposal (orpublication for public comment) of anemission guideline after promulgation ofthe corresponding standard of perform-ance. Two written comments and severalinformal comments from industrial rep-resentatives indicated that more timewas needed to evaluate a standard ofperformance and the correspondingemission guideline than would be allowedby simultaneous proposal and promulga-tion. Also, by proposing (or publishing)an emission guideline after promulgationof the corresponding standard of per-formance, the Agency canbenefit fromthe comments on the standard of per-formance n developing the emissionguideline.

Proposed 60.27(a) required proposalof sulfuric acid mist emission guidelineswithin 30 days after promulgation ofSubpart B. This provision was includedas an exception to the proposed generalrule (requiring simultaneous proposal ofemission 'guidelines and standards ofperformance) because It was impossibleto propose the acid mist emission guide-line simultaneously with the correspond-ing standard of performance, which hadbeen promulgated previously. The changein the general rule, discussed above,makes the proposed exception unneces-sary, so It has been deleted. As previouslystated, the Agency intends to establishemission guidelines for sulfuric acid mist[and for fluorides, for which new source

standards were promulgated (40 FR33152) after proposal of Subpart BI assoon as possible.(9) Miscellaneous. Several commenta-tors argued that the nine months pro-vided f6r development of State plansafter promulgation of an emissionguideline by EPA wouldbeinsufficient. Inmost cases, much of the work involved inplan development, such as emission in-ventores, can be begun when an emis-sion guideline is proposed (or publishedfor comment) by EPA; thus, severaladditional months will be gained. Exten-sive control strategies are not required,and after the first plan is submitted, sub-mitted, subsequent plans will mainlyconsist of adopted emission standards.Section 111(d) plans will be much lesscomplex than the SIPs, and Congressprovided only nine months for SIP de-velopment. Also, States may already haveapprovable procedures and legal author-ity [see 60.25(d) and 60.26(b) 1, andthe number of designated facilities perState should be few. For these reasons,the nine-month provision has beenretained.

Some comments recommended thatthe requirements for adoption and sub-mittal of section 111(d) plans appear in40 CFR Part 51 or in some part of 40CFR other than Part 60, to allow differ-entiation among such requirements,emission guidelines, new source stand-ards and plans promulgated by EPA. TheAgency believes that the section 111(d)requirements neither warran=t a separatepart nor should appear in Part 51, sincePart 51 concerns control under section110 of the Act. For clarity, however, sub-part B of Part 60 will contain the re-quirements for adoption and submittalof section 111(d) plans; Subpart C ofPart 60 will contain emission guidelinesand times for compliance promulgatedunder 60.22 (c) ; and anew Part.62 willbe used for approval or disapproval ofsection 111(d) and for plans (or portionsthereoD promulgated by EPA whereState plans are disapproved in whole orIn part.

Two comments suggested that theplans should specify test methods andprocedures to be used in demonstratingcompliance with the emission standards.Only when such procedures and methodsare known can the stringency of theemission standard be determined. Ac-cordingly, this change has been includedin 60,24(b).

A new 60.29 has been added to makedear that the Administrator may reviseplan provisions he has promulgated un-der 60.27(d), and 60.27(e) has beenrevised to make clear that he will con-sider applications for variances fromemission standards promulgated by EPA.

Effective Date. These regulations be-come effective on December 17, 1975.(Sections 111, 114, and 301 of'the Clean AirAc, as amended by sec. 4(a) Of Pub. I,. 91-604. 84 Stat. 1678, and by sec. 15(c) (2) ofPub. L. 91-604, 84 Stat. 1713 (42 US.C..1857o-6, and 1857c-9. 1857g). I

Dated: November 5,1975.JoM Q uA ,

ActingAdministrator.

FEDERAL REGISTER, VOL 40, NO. 222-MONDAY, NOVEMBER 17, 1975

53345


Part 60 of Chapter I, Title 40 of theCode of Federal Regulations is amendedas follows:

1. The table of sections for Part 60 isamended by adding a list of sections forSubpart B and by adding Appendix D tothe list of appendixes as follows:

Subpart B--Adoption and Submittal of StatePlans for Designated Facilities

Sec.60.20 Applicability.60.21 Deflnttions.60.22 Publication of guideline documents,

emission guidelines, and fInal com-pliance times.

60.23 Adoption and submittal of Stateplans,-public hearings.

60.24 Emission standards and complianceschedules.

60.25 Emission inventories, source sur-veillance, reports.

60.26 Legb.l authority.60.27 Actions by the Administrator.60.28 Plan revisions by the State.60.29 Plan revisions by the Administrator.

ApiE'DLM D--REunu ELIssION INVENTOnKYIRTrosmATION

2. The authority citation at the end ofthe table of sections for Part 60 is re-vised to read as follows:

Au-roarrr: Secs. 111 and 114 of the CleanAir Act, as amended by see. 4(a) of Pub. L.91-604, 84 Stat. 1678 (42 U.S.C. 1857c-6,1857c-9). Subpart B also Issued under sec.301(a) of the Clean Air Act, as amended bysec. 16(c)(2) of Pub. L. 91-604, 84 Stat.1713 (42 U.S.C. 1857g).

3. Section 60.1 is revised to read asfollows: 60.1 Applicability.

Except as provided in Subparts B and0, the provisions of this part apply tothe owner or operator of any stationarysource which contains an affected facil-ity, the construction or modification ofwhich is commenced after the date ofpublication in this part of any standaid(or, if earlier, the date of publication ofany proposed standard) applicable tothat facility.

4. Part 60 is amended by adding Sub-part B as follows:

Subpart B-Adoption and Submittal ofState Plans for Designated Facilities

60.20 Applicability.The provisions of this subpart apply

to States upon publication of a finalguideline document under 60.22(a). 60.21 Definitions.

Terms used but not defined in thissubpart shall have the meaning giventhem in the Act and in subpart A:(a) "Designated pollutant" means anyair pollutant, emissions of which aresubject to a standard of performance fornew stationary sources but for which airquality criteria have not been issued,and which is not included on & list pub-lished under section 108(a) or section112(b) (1) (A) of the Act.

(b) "Designated facility" means anyexisting facility (see 60.2(aa)) whichemits a designated pollutant and which

would be subject to a standard of per-formance for that pollutant if the exist-ing facility were an affected facility (see60.2(e)).

(c) "Plan" means a plan under sec-tion 111(d) of the Act which establishesemission standards for designated pol-lutants from designated facilities andprovides for the implementation andenforcement of such emission standards.

(d) "Applicable plan" means the plan,or most recent revision thereof, whichhas been approved under 60.27(b) orpromulgated under 60.27(d).

(e) "Emission guideline" means aguideline set forth in subpart C of thispart, or in a final guideline documentpublished under 60.22(a), which re-flects the degree of emission yeductionachievable through the application of thebest system of emission reduction which(taking into account the cost of suchreduction) the Administrator has de-termined has been adequately demon-strated for designated facilities.

(f) "Emission standard" means alegally enforceable regulation settingforth an allowable rate of emissions intothe atmosphere, or prescribing equip-ment specifications for control of air pol-lution emissions.

(g) "Compliance schedule" means alegally enforceable schedule specifyinga date or dates by which a source or cate-gory or sources must comply with specificemission'standards contained in a planor with any increments of progress toachieve such compliance.

(h) "Increments of progress" meanssteps to achieve compliance which mustbe tdken by an owner or operator of adesignated facility, including:

(1) Submittal of a final control planfor the designated facility to the appro-priate air pollution control agency;

(2) Awarding of contracts for emis-sion control systems or for process modi-fications, or issuance of orders for thepurchase of component parts to accom-plish emission control or process modi-fication.

(3) Initiation of on-site constructionor installation of emission control equip-ment or process change;(4) Completion of on-site construc-tion or installation of emission controlequipment or Process change; and

(5) Final compliance.(i) "Regioi" means an air quality con-trol region designated under section 107of the Act and described in Part 81 ofthis chapter.Qi) "Local agency" means any focalgovernmental agency.

60.22 Publication of guideline docu-ments, emission guidelineo, and finalcompliance tines.

(a) After promulgation of a standardof performance for the control of a des-ignated pollutant from affected facilities,the Administrator will publish a draftguideline document containing informa-tion pertinent to control of the desig-nated pollutant from designated facil-ities. Notice of the availability of thedraft guideline document will be pub-lished in the FEDERAL REGISTIMR, and pub-lic comments on Its contents will be in-vited. After consideration of public com-

ments, a final guideline document will bepublished and notice of Its availabilitywill be published in the li, DRAL RMIsTER.

(b) Guideline documents publishedunder this section will provide inforina-tion for the development of State plans,such as:

(1) Information concerning known orsuspected endangerment of public healthor welfare caused, or contributed to, bythe designated pollutant.

(2) A description of systems of emis-sion reduction which, in the Judgmentof the Administrator, have been ade-quately demonstrated.

(3) Information on the degree of emis-sion reduction which is achievable witheach system, together with Informationon the costs and environmental effects ofapplying each system to designated fa-cilities,

(4) Incremental periods of time nor-mally expected to be necessary for thedesign, installation, and startup of iden-tiffed control systems.

(5) An emission guideline that reflectsthe application of the best system ofemission reduction (considering the costof such reduction) that has been ade-quately demonstrated for designated fa-cilities, and the time within which com-pliance with emission standards of equiv-alent stringency can be achieved. TheAdministrator will specify different emis-sion guidelines or compliance times orboth for different sizes, types, and classesof designated facilities when costs ofcontrol, physical limitations, geographi-cal location, or similar factors make sub-

'categorization appropriate.(6) Such other available Information

as the Administrator determines maycontribute to the formulation of Stateplans.

Cc) Except as provided In paragraphd) (1) of this section, the emission guide-

lines and compliance times referred toin paragraph (b) (5) of this section willbe proposed for comment upon publica-tion of tPe draft guideline document,and after consideration of comments will

"be promulgated In Subpart C of this partwith such modifications as may be ap-propriate.

1d) (1) If the Administrator determinesthat a designated pollutant may causeor contribute to endangerment of publicwelfare, but that adverse effects on pub-lic health have not been demonstrated,he will include the determination In thedraft guideline document and In the Fnh-ERAL REGISTER notice of Its availability.

-Except as provided in paragraph (d) (2)o2 this section, paragraph (c) of thissection shall be Inapplicable in suchcases.

(2) If the Administrator determines atany time on the basis of new informationthat a prior determination under para-graph d) (1) of this section is ncorrector no longer correct, he will publishnotice of the determination in the FEnD-ERAL REGISTER, revise the guideline docu-ment as necessary under paragraph (a)of this section, and propose and promul-gate emission guidelines and compliancetimes under paragraph Cc) of thissection.

FEDERAL REGISTER, VOL 40, NO. 222-AONDAY, NOVEMBEP 17, 1975

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60.23 Adoption and submittal of Stateplans; public hearings.

(a) (1) Within nine months after no-tice of the availability of a final guide-line document is published under 60.22(a), each State shall adopt and submit

-to thd Administrator, in accordance with 60.4, a plan for the control of the desig-nated pollutant to which the guidelinedocument applies.

(2) Within nine months after notice ofthe availability of a final revised guide-line document is published as providedin 60.22(d) (2), each State shall adoptand submit to the Administrator anyplan revision necessary to meet the re-quirements of this subpart.

(b) If no designated facility is locatedwithin a State, the State shall submita letter of certification to that effect tothe Administrator within the time spe-cified in paragraph (a) of this section.Such certification shall exempt the Statefrom the requirements of this subpartfor that designated pollutant.

(c) (1) Except as provided in para-graphs (c) (2) and (c) (3) of this secton,the State shall, prior to the adoption ofany plan or revision thereof, conductone or more public hearings within theState on such plan or plan revision.

(2) No hearing shall be required forany change to an increment of progressin an approved compliance schedule un-less the Zhange is. likely to cause thefacility to be unable to comply with thefinal compliance date in the schedule.

(3) No hearing shall be required onan emission standard in effect prior tothe effective date of this subpart if it wasadopted affer a public hearing and isat least as stringent as the corresponding-emission guideline specified in the appli-cable guideline document publishedunder 60.22(a).

(d) Any hearing required by para-graph (c) of this section shall be heldonly after reasonable notice. Notice shallbe given at least 30 days prior to thedate of such hearing and shall include:

(1) Notification to the public byprominlently advertising the date, time,and place of such hearing in each regionaffected;

(2) Availability, at the time of publicannouncement, of each proposed plan orrevision thereof for public inspection inat least one location in each region towhich it will apply;(3) Notification to the Administrator;

(4) Notification to each local air pol-lution control agency in each region towhich the plan or revision will apply; and(5) In the'case of an interstate re-gion, notification to any other State in-cluded in the region.

(e) The State shall prepare and retain,for a minimum of 2 years, a record ofeach hearing for inspection by any inter-ested party. The record shll contain, asa minimum. a list of witnesses togetherwith the text of each presentation.

() The State shall submit with theplan or revision:

(1) Certification that each hearing re.ctuired by paragraph (c) of this sectionwas held in accordance with the notice

required by paragraph (d) of this sec-tion; and

(2) A list of witnesses and their orga-nizational affiliations, if any, appearingat the hearing and a brief written sum-mary of each presentation or writtensubmission.

(g) Upon written application by aState agency (through the appropriateRegional Office), the Admfnistrator mayapprove State procedures designed to in-sure public participation in the mattersfor which hearings are required and pub-lic notification of the opportunity to par-ticipate if, in the judgment of the Ad-ministrator, the procedures, althoughdifferent from the requirements of thissubpart, in fact provide for adequatenotice to and participation of the public.The Administrator may imposd such con-ditions on his approval as he deemsnecessary. Procedures approved underthis section shall be deemed to satisfy therequirements of this subpart regardingproced&ir&s for public hearings. 60.24 Emission standards and compli.

ance schedules.(a) Each plan shall include emission

standards and compliance schedules.(b) (1) Emission standards shall pre-

scribe allowable rates of emissions exceptwhen it is clearly impracticable. Suchcases will be Identified in the guidelinedocuments issued under 60.22. Whereemission standards prescribing equip-ment specifications are established, theplan shall, to the degree possible, setforth the emission reductions achievableby implementation of such specifications,and may permit compliance by the useof equipment determined by the Stateto be equivalent to that prescribed.

(2) Test methods and procedures fordetermining compliance with the emis-sion standards shall be specified in theplan. M-ethods other than those specifiedin Appendix A to this part may be speci-fied in the plan if shown to be equivalentor alternative methods as defined in 60.2 Ct) and (u).

(3) Emission standards shall apply toall designated facilities within the State.A plan may contain emission standardsadopted by local Jurisdictions providedthat the standards are enforceable bythe State.

(c) Except as provided in paragraph.(f) of this section, where the Adminis-trator has determined that a designatedpollutant may cause or contribute to en-dangerment of public health, emissionstandards shall be no less stringent thanthe corresponding emission guideline(s)specified in subpart C of this part, andfinal compliance shall be required as ex-peditiously as practicable but no laterthan the compliance times specified inSubpart C.

(d) Where the Administrator has de-termined that a designated pollutantmay cause or contribute to endangermentof public welfare but that adverse ef-fects on public health have not beendemonstrated, States may balance theemission guidelines, compliance times,and other information provided in theapplicable guideline document against

other factors of public concern in estab-lishing emission standards, complianceschedules, and variances. Appropriateconsideration shall be given to the fac-tors specified in 60.22(b) and to infor-mation presented at the public hear-ing(s) conducted under 60.23(c).

(e) (1) Any compliance schedule ex-tending more than 12 months from thedate required for submittal of the planshall include legally enforceable incre-ments of progress to achieve compliancefor each designated facility or categoryof facilities. Increments of progress shallinclude, where practicable, each incre-ment of progress specified in 60.21(h)and shall include such additional in-crements of progress as may be necessaryto permit close and effective supervisionof progress toward final compliance.

(2) A plan may provide that compli-ance schedules for individual sources orcategories of sources will be formulatedafter plan submittal. Any such scheduleshall ke the subject of a public hearingheld according to 60.23 and shall besubmitted to the Administrator within 60days after the date of adoption of theschedule but in no case later than thedate prescribed for submittal of the firstsemiannual report required by 60.25(e).

Mf) On a case-by-case basis for par-ticular designated facilities, or classes offacilities, States may provide for the ap-plication of less stringent emissionstandards or longer compliance schedulesthan those otherwise required by para-.graph (c) of this section, provided thatthe State demonstrates with respect toeach such facility (or class of facilities) :

(1) Unreasonable cost of control re-sulting from plant age, location, or basicprocess design;

(2) Physical impossibility of installingnecessary control equipment; or

(3) Other factors specific to the facility(or class of facilities) that make applica-tion of a less stringent standard or finalcompliance time significantly more rea-sonable.

(g) Nothing in this subpart shall beconstrued to preclude any State or po-litical subdivision thereof from adoptingor enforcing (1) emission standardsmore stringent than emission guidelinesspecified in subpart C of this part or inapplicable guideline documents or (2)compliance schedules requiring finalcompliance at earlier times than thosespeefled in subpart C or in applicableguideline documents. 60.25 Emission inventories, source

surveillance, reports.(a) Each plan shall include an inven-

tory of all designated facilities, includingemission data for the designated pollut-ants and information related to emissionsas specified in Appendix D to this partSuch data shall be summarized in the

-plan, and emission rates of designatedpollutants from designated facilities shallbe correlated with applicable emissionstandards. As used in this subpart, "cor-related" means presented in such a man-ner as to show the relationship betweenmeasured or estimated amounts of emis-sions and the amounts of such emissions


53317


allowable under applicable emissionstandards.

(b) Each plan shall provide for-moni-toring the status of compliance with ap-plicable emission standards. Each planshall, as a minimum, provide for:

(1) Legally enforceable procedures forrequiring owners or operators of desig-nated facilities to maintain records andperiodically report to the State informa-tion on the nature and amount of emis-sions from such facilities, and/or suchother information as may be necessaryto enable the State to determine -whethersuch facilities are in compliance with ap-plicable portions of the plan.(2) Periodic inspection and, when ap-plicable, testing of designated facilities.

(c) Each plan shall provide that in-formation obtained by the State underparagraph (b) of this section shall becorrelated with applicable emissionstandards (see 60.25(a)) and madeavailable to the general public.(d) The provisions referred to~in par-agraphs (b) and (c) of this section shallbe specifically identified. Copies of suchprovisions shall be submitted -with theplan unless:(1) They have been approved as por-tions of a preceding plan submitted un-der this subpart or as portions of animplementation plan submitted undersection 110 of the Act, and

(2) The State demonstrates:(I) That the provisions are applicable

to the designated pollutant(s) for whichthe plan is submitted, and

(ii) That the requirements of 60.26are met.

(e) The State shall submit reports onprogress in plan enforcement to the Ad-ministrator on a semiannual basis, com-mencing with the first full report periodafter approval of a plan or after promul-gation of a plan by the Administrator.The semiannual periods are January I-June 30 and July 1-December 31. Infor-mation required under this paragraphshall be included in the semiannual re-ports required by 51.7 of" this chapter.(f) Each progress report shall include:

(1) Enforcement actions initiatedagainst designated facilities' during thereporting period, under any emissionstandard or compliance schedule of theplan.

(2) Identification of the achievementof any increment of progress required-bythe applicable plan during the reportingperiod.(3) Identification of designated facili-ties that have ceased operation duringthe reporting period.

(4) Submission of emission inventorydata as described in paragraph (a) ofthis section for designated facilities thatwere not in operation at the time of plandevelopment but began operation during-the reporting period.(5) Submission of additional data asnecessary to update the information sub-mitted under paragraph (a) of this sec-tion or in previous progress reports.

(6) Submission of copies of technicalreports on all performance testing ondesignated facilities conducted under

paragraph (b) (2) of this section, com-plete with concurrently recorded processdata. 60.26 Legal authority.

(a) Each plan shall show that theState has legal authority to carry outthe plan, including authority to:(1) Adopt emission standards andcompliance schedules applicable to des-ignated facilities.

(2) Enforce applicable laws, regula-tions, standards, and compliance sched-ules, and seek injunctive relief. ,

(3) Obtain information necessary todetermine whether designated facilitiesare in compliance with applicable laws,regulations, standards, and complianceschedules, .including authority to require

_recordkeeping and to make inspectionsand conduct tests of designated facilities.(4) Require owners or operators ofdesignated facilities to install, maintain,and use emission monitoring devices andto make periodic reports to the State onthe nature and amounts of emissionsfrom such facilities; also authority forthe State to make such data available tothe public as reported and as correlatedwith applicable emission standards.

(b) The provisions of law or regula-tions which the State determines providethe authorities. required by this sectionshall be specifically identified Copies ofsuch laws or regulations shall be sub-mitted with the plan unless:

(1) They have-been approved as por-tions of a preceding 'plan submittedunder this subpart or as portions of animplementation plan submitted undersection 110 of the Act, and(2) The State demonstrates that thelaws or regulations are applicable to thedesignated pollutant(s) for which theplan is submitted.

(c) The plan shall show that the legalauthorities specified in this section areavailable to the State at the time of sub-mission of the plan. Legal authority ade-quate to meet the requirements of para-graphs (a) (3) and (4) of this sectionmay be delegated to the State under sec-tion 114 of the Act.(d) A State governmental agencyother than the State air pollution con-trol agency may be assigned responsibil-ity for -.arrying out a portion of a planif the plan demonstrates to the Admin-istrator's satisfaction that the State gov-ernmental agency has the legal authoritynecessary to carry out that portion of theplan.

(e) The State may 'authorize a localagency to carry out a plan, or portionthereof, within the local agency's juris-diction if the plan demonstrates to theAdministrator's satisfaction that thelocal agency has the legal authority nec-essary to implement the plan or portionthereof, and that the authorization doesnot relieve the State of responsibility'under the Act for carrying out the planor portion thereof. 60.27 Actions by the Administrator.

(a) The Administrator may, wheneverhe -determines necessary, extend the pe-

riod for submission of any plan or planrevision or portion thereof.

(b) After receipt of a plan or plan re-vision, the Administrator will propose theplan or revision for approval ok dis-approval. The Administrator will, withinfour months after the date required forsubmission of a plan or plan revision,approve or disapprove such plan or revi-sion or each portion thereof.

(c) The Administrator will, after con-sideration of any State hearing record,promptly prepare and publish proposedregulations setting forth a plan, or por-tion thereof, for a State if:

(1) The State fails to submit a planwithin the time prescribed;

(2) The State fails to submit a planrevision required by 60.23 (a) (2) withinthe time prescribed; or

(3) The Administrator disapproves theState plan or plan revision or any por-tion thereof, as unsatisfactory becausethe requirements of this subpart have notbeen met. I

(d) The Administrator will, within si:xmonths after the date required for sub-mission of a plan or plan revision,promulgate the regulations proposed un-der paragraph (c) of this section withsuch modifications as may be appropriateunless, prior to such promulgation, theState hag adopted and submitted a planor plan revision which the Administra-tor determines to be approvable.

(e) (1) Except as provided In para-graph (e) (2) of this section, regulationsproposed and promulgated by the Admin-istrator under this section will prescribeemission standards of the same strin-gency as the corresponding emissionguideline(s) specified in the final guide-line document published under 60.22 (a)and will require final compliance withsuch standards as expeditiously as prac-ticable but no later than the times spect-fled in the guideline document.(2) Upon application by the owner oroperator of a designated facility to whichregulations proposed and promulgatedunder this section will apply, the Ad-ministrator may provide for the appli-cation of less stringent emission stand-ards or longer compliance schedules thanthose otherwise required by this sectionin accordance with the criteria specfiedIn 60.24(f).

(f) If a State failed to hold a publichearing as required by 60.23(c), theAdministrator will provide opportunityfor a hearing within the State prior topromulgation of a plan under paragraph(d) of this section. 60.28 Plan revisions by the State.

(a) Plan revisions which have theeffect of delaying compliance with ap-plicable emission standards or incre-ments of progress or of establishing lessstringent emission standards shall besubmitted to the Administrator within60 days after adoption in accordance withthe procedures and requirements appli-cable to development and submission ofthe original plan.

(b) More stringent emission standard,or orders which have the effect of ac-

FEDERAL REGIST R, VOL 40, NO. 222-MONDAY, NOVEMBER 17, 1975

53348


celerating compliance, may be submittedto the Administrator as plan revisionsin accordance- with the procedures andrequirements applicable to developmentand submission of the original plan.

(c) A revision of a plan, or any portiontliereof, shall not be considered part ofan applicable plan until approved by theAdministrator in accordance with thissubpart. 60.29 Plan revisions by the Adminis-

trator.

After notice and opportunity for pub-lic hearing in each affected State, theAdministrator may revise any provisionof an applicable plan if:

(a) The provision was promulgated bythe Administrator, and

(b) The plan, as revised, will be con-sistent with the Act and with the require-ments of this subpart.

5. Part'60 is amended by adding Ap-pendix D as follows:APPE==I D-RxQuIE Eanssiox INvENTony

INFORMATION(a) Completed NEDSopoint souice form(s)

for the entire plant containing the desig-

nated facility, Including information on theapplicable criteria pollutants. If data con-cerning the plant are already in NEDS, onlythat information must be submitted whichIs necessary to update the existing 1NEDSrecord for that plant. Plant and point Identi-fication codes for NEDS records shall cor-respond to those previously assigned inNEDS; for plants not In NEDS. these codesshall be obtained from the appropriateRegional Office.

(b) Accompanying the basic NEDS infor-mation shall be the following informationon each designated facility:

(1) The state and county Identificationcodes, as well as the complete plant andpoint Identification codes of the designatedfacility in NEDS. (The codes are needed tomatch these data with the NEDS data.)

(2) A description of the designated facilityIncluding, where appropriate:

(I) Process nam.(it) Description and quantity of each

product (maximum per hour and average peryear).

(ill) Description and quantity of raw ma-terials handled for each product (maximumper hour and average per year).

(iv) Types of fuels burned, quatities andcharacteristics (maximum and averagequantities per hour, average per year).

(v) Description and quantity of solidwastes generated (per year) and method ofdisposal.

(3) A description of the air pollution con-trol equipment In use or proposed to controlthe designated pollutant, including:

(1) Verbal description of equipment.(U) Optimum control efficiency, In percent.

This shall be a combined efaciency whenmore than one device operate In series. Themethod of control efficiency determination%hall be indicated (e.g., design efficiency,measured efficiency, estlmated efficiency).

(ii) Annual average control efficiency, inpercent, taking Into accouht control equip-ment down time. This shall be a combinedefficiency when more than one device operatein series.

(4) An estimate of the designated pollu-tant emissions from the designated facility(maximum per hour and average per year).The method of emission determination shallalso be specified (eg., stack test, materialbalance, emisalon factor).(Secs. 111, 114. and 301 of the Clean Air Act,as amended by sec. 4(a) of Pub. L. 91-604,84 Stat. 1678, and by sec. 15(c) (2) of Pub. L.91-604. 84 Stat. 1713 (42 U.S.C. 1857c-6,1857c-91 1857g))

[PR Doc.75-0611 Pled 11-4--75;8:45 am


53349

MONDAY, NOVEMBER 17, 1975

S.U'D

O

Proposed Rulemaking

PART III:

DEPARTMENT OFTRANSPORTATION

Federal HighwayAdministration.

INTERSTATE HIGHWAYSYSTEM

53352

TRANSPORTATION DEPARTMENTFederal Highway Administration

E 23 CFR Part 476][Docketo.'75-3]

INTERSTATE HIGHWAY SYSTEMProposed Rulemaking

In the June 12, 1974, edition of theFEDERAL REGISTER (39 FR 20658), the Fed-eral Highway Administration (FEWA)and the Urban Mass Transportation Ad-ministration (UMTA) published regula-tions which added a new Part 476 toTitle 23 CFI. Ch. I. Those regulationsimplemented certain provisions of Title23, United States Code, which wereadded or amended by the Federal-AidHighway 'Act of 1973 (87 Stat. 250) re-lating among other matters to the-with-drawal, substitution and addition of In-terstate highway segments, and substi-tution of nonhighway public mass transitprojects in lieu of Interstate segments. Itwas indicated at the time of publicationthat those regulations did not cover thedisposition of Federal monies previouslycommitted to an Interstate highway seg-ment withdrawn under its provisions.

The F IWA is now considering issuinga new Subpart E to Part 476 (InterstateHighway System) which will prescribethe treatment to be given Federal moniesreimburded to States in consideration ofobligations incurred on Interstate seg-ments withdrawn pursuant to 23 U.S.C.103(e) (2) and (e) (4).

While Title 23, United States Code,does not specifically provide for the dis-position of Federal funds previously ex-pended on segments of the Federal-aidhighway system which the State has de-termined will not be 'completed; theFHWA has consistently followed a policyrequiring the repayment of the Federalshare of certain costs. This policy, popu-larly referred to as "payback," in generalrequires a State to pay back to the Fed-eral Government the Federal share ofright-of-way and construction costswhere the State has determined not tocomplete the Federal-aid highway seg-ment, and the project agreement betweenthe State and the Federal Governmenthas been mutually rescinded. These pro-posed regulations, in substantial part,make FHWA payback policies applicableto Interstate segments withdrawn for thepurpose of substituting other Interstatesegments (23 U.S.C. 103(e) (2)) or non-highway public mass transit projects (23U.S.C. 103(e) (4)).

The decision to apply the FHWA pay-back policy came after careful considera-tion and discussion both within andwithout the Department of Transporta-tion, and these regulations represent theDepartment's desire to provide the maxi-mum amount of funding for substituteprojects under 23 U.S.C. 103(e) (2) and103 (e) (4) consistent with the soundfiscal management and responsible stew-ardship of Federal funds.

The statutory maximum amount ofFederal funds available for obligation ona substitute project under section 103(e)(2) or 103(e) (4), as amended by theFederal-Aid Highway Amendments of1974, section 125, is the Federal share ofthe cost to complete the withdrawn In-

PROPOSED RULES

terstate segment as set forth in the 1972Interstate Cost Estimate, increased ordecreased, as the case may be as deter-mined by the Federal Highway Admin-istrator, based on changes in construc-tion costs of such segment as of the dateof withdrawal of approval and in accord-ance with that design of such segmentwhich is the basis of such 1972 CostEstimate. The 1972 Cost Estimate reflectsthe cost to complete the various uncom-pleted segments of the Interstate Systemas of January 1, 1971. (Obligations in-curred before January 1, 1971, do notaffect the maximum amount legallyavailable for a substitute project.)

Careful consideration was given to thequestion of whether obligations incurredbefore January 1, 1971, should be treatedthe same as those incurred after Janu-ary 1, 1971..It was determined that equaltreatment of the two periods was notappropriate because of the relationshipbetween obligations and the costs whichare included in an Interstate CostEstimate.

These proposed regulations would'therefore required that where a Statehad withdrawn an Interstate segmentpursuant to section 103(e) (2) or 103(e)(4), it would be required to pay back allFederal-aid Interstate highway fundsthat had been reimbursed to the Statewith respect to obligations and expensesit liad incurred in carrying out activitiesrelating to the construction of the with-drawn segment after January 1, 1971.With regard to reimbursements for obli-gations incurred prior to January 1, 1971,repayment would be required only wherethe item purchased with Federal-aidhighway assistance was (1) tangible,and (2) had a recoverable cost at thetime of the withdrawal action. Suchitems will ordinarily include real prop-erty acquired for right-of-way and con-struction items and materials. In thissituation the amount of repayment wouldbe linited to the Federal pro rata shareof the value as determined in accord-ance with these regulations. Conversely, 476.408 of the proposed regulations ex-cludes from the repayment requirementobligations incurred before January 1,1971, involving nontangible items suchas: preliminary engineering costs; relo-cation assistance costs; incidental right-of-way acquisition costs; and construc-tion engineering costs.

Because the regulations provide for adifferent treatment for determining theamount to be repaid for reimbursed ob-ligations incurred before January 1, 1971,and those incurred after January 1, 1971,it is important to note that the operabledate is that of the obligation and notthe reimbursement: Thus, the method ofdetermining the amount of money to berepaid would be dependent upon the timeat which the Federal Government be-came obligated under 23 U.S.C. 106 toreimburse the funds, and not the timeat which the reimbursement was made.In any event, the regulations do notrequire repayment where obligationswere incurred, but not reimbursed.

As indicated earlier, 476.406 provides-that all reimbursed obligations incurredafter January 1, 1971, are subject to re-

payment. However, with regard to de-termining the amount of repayment forreimbursed obligations incurred beforeJanuary 1, 1971, greater flexibility isallowed.

Under 476.410 of the proposed reg-ulations, a State may, except where theAdministrator gives prior approval for adetermination on some other basis, electone of three methods to determine theamount of repayment for reimbursed ob-ligations incurred In the purchase ofright-of-way. The methods provided bythese regulations for determining theamount of repayment for reimbursed ob-ligations incurred before January 1, 1971,for construction Items and materials(Q 476.412) are much the same as thosewith respect to real property. In addi-tion, where the real property or con-struction items and materials are to beused on another Federal-aid highwayproject, the amount of repayment will bethe difference between the Federal Inter-state System share of the cost on thewithdrawn project and the Federal shareapplicable to the other Federal-aid sys-tem. It should be noted that where realproperty or construction items and ma-terials are used in a project on anotherFederal-aid highway, the State's appor-tionment for that system would be deb-ited in the amount of the appropriateFederal share. If the real property Is usedfor a highway facility which is not on aFederal-aid highway system, the amountof repayment will be the total value asdetermined by an appraisal under 476.-410(a) (2) or the reimbursed Federalshare of the, original purchase price(Q 476.410(a) (3)). If construction itemsor materials are used for a highwaywhich is not on a Federal-aid highwaysystem, a repayment shall be made inthe amount of the reimbursed Federalshare of the original cost of such itemsand materials.

In order to facilitate the expresseddesire of the Congress to provide formass transit under 23 U.S.C. 103(e) (4),the Department feels that any repay-ment on reimbursed obligations incurredin the acquisition of right-of-way apdconstruction facilities and equipment be-fore January 1, 1971, where such itemswill be used for a substitute mass transitproject, should be determined by nego-tiation. Consequently, 476.418 providesfor negotiation among the State, FHWA,and UMTA to determine the amount ofrepayment in this situation.

Inquiries, comments, views, and argu-ments on these proposed regulations maybe submitted to the Federal HighwayAdministration, Room 4230, Docket No.75-3, 400 7th Street, SW., Washington,D.C. 20590. All written communicationsreceived on or before January 5, 1976,will be considered before final action istaken on the proposal. Copies of all writ-ten communications will be available forexamination during normal businesshours at the foregoing address.

These amendments to title 23, Code ofFederal Regulations, are proposed underthe authority of 23 U.S.C. 103() (2) and103(e) (4), and the delegation of au-thority by the Secretary of Transporta-tion at 48 CFR 1.48(b) and 1.51(f).

FEDERAL REGISTER, VOL 40, NO. 222-MONDAY, NOVEMBiER 17, 1975

PROPOSED RULES

-In consideration of the foregoing, it is a project, or any substance contractuallyproposed to amenud Chapter I of Title 23 specified for use in the construction ofof the Code of Federal Regulations by the project.adding a new Subpart E to Part 476 as "Incidental right-of-way acquisitionset forth below. costs" means any expenditure of a type

Issued on: November 11, 1975. normal to the operation of the Statehighway department and incident to theNORBERT T. TTAIN-, acquisition of rights-of-way, either byFederal Highway Administrator. negotiation or condemnation, such as

ROBERT E. PATRICELLI, . but not limited to those made for sur-Urban Mass Transportation veys, plats, appraisals, appraisal review,

Administrator. abstracts of title, title certificates, title' insurance, closing and escrow servicesSubpart E-Disposition of Federal Funds Pre. iura cos i and es wicess

viously Committed to an Interstate Segment court costs and disbursements, witnesWithdrawn Under the Provisions of 23 U.S.C. fees, recording fees, advertising, eco-103(e)(2) and 103(e)(4) nomic studies, salaries, fees and travel

476.400 Purpose. expenses of field representatives of the476.402 Definitions. State, county, or city while engaged in476.404 Federal funds available for projects right-of-way acquisition work and of at-

under 23 U.S.C. 103(e) (2)" and torneys engaged in condemnation actlv-103(e) (4).

476.406 Availability of Federal funds obli- itles, and the cost of demolition." gated on or after January 1, 1971. "Preliminary engineering costs" means

476.408 Repayment of Federal funds ob- _all work necessary for or expedient togated before January 1, 1971. the preparation of plans, specifications,

476.410 Determination of project costs to and estimates in advance of construe-be repaid on obilgations incurredbefore January 1, 1971, for real tion operations.property required for right-of- "Public sale" means to offer for sale toway. the general public, either by sealed bid,

476.412- Determination of project costs to public auction, or other methodsbe repaid on obligations incurred whereby the general public is given anbefore January 1, 1971, for con- opportunity to purchase under open,-st-ruction items and materialcosts. competitive conditions.

476.414 Form of repayment of expended "Relocation assistance costs" meansfunds. the costs normally incurred in relocating

476.416 Disposition of property, displaced persons, businesses, farms and476A18 Negotiation of relpayment in special nonprofit organizations from real prop-

cases. erty acquired for a highway project.AvomTR rr 23 U.S.C. 103(e)(2) and 103 Such costs include those for: moving(e) (4), delegation of authority n 49 CFM personal property, direct losses of tan-

1.48(b) and 1.51(f). . gible personal property, searching for re-Subpart E-Disposition of Federal Funds placement businesses or farms, payments

- Previously Committed to an Interstate in lieu of moving costs, replacementSegment Withdrawn Under the provi- housing payments to owners and renters,sions of 23 U.S.C. 103(e)(2) and downpayments, increased Interest Inci-103(e)(4) dental expenses, providing advisory serv-

ices, administrative costs directly cirge- 476.400 Purpose. able to the highway project, last resortTle purpose of the regulations in this housing, and any other relocating costs

subpart is to prescribe the disposition of In which Federal funds may legally par-Federal- aid Interstate highway funds ticipate.obligated and expended upon Interstatesegments that are withdrawn under 476.404 Federal funds availablo forSubparts C and D of the regulations in projects under 23 U.S.C. 103(c) (2)this Part. and 103(o) (4).

& Federal funds may be made available8476.402 Definitions, for projects approved under 23 US.C.

The following terms, when used In the 103(e) (2) and 103 (e) (4) in an amountregulations in this subpart have the fol- equal to the Federal share of the costlowing meaning: whichwouldhave been paid for the with-

"Construction engineering" means the drawn Interstate segment as that cost iswork of supervising construction activi- included in the 1972 Interstate Systemties, inspection of construction and re- Cost Estimate, increased or decreased, aslated mechanical aspects, such as stak- the case may be, as determined by theing, testing of materials, checking of Federal Highway Administrator, basedshop drawings and making measure- on changes In construction costs of suchments for and preparation of progress segment as of the date of withdrawal ofand final estinfates. approval and in accordance with thatdesign of the segment which is the basis

"Construction items and material of the 1972 Cost Estimate.means any physical assets located on awithdrawn segment as a result of a proj- " 476.406 Availability of Federal fundsect which was financed with Federal-aid obligated on or after January 1,Interstate highway funds. The term also 1971.means, where the context requires, any (a) A State shall repay to the Federalfabricated or produced materials which Government all payments received fromwere listed in the contract (including ap. Federal-aid Interstate hlghwhy fundsproved contract modifications) for such which were obligated on or after Janu-

ary 1, 1971, for costs Incurred on with-drawn Interstate segments. Repaymentshall be as prescribed In 476.414.

(b) where real property acquired forright-of-way or a portion thereof is uti-lized on another Federal-aid system, theamount of repayment shall be the dif-ference between the Federal share of thecosts incurred pursuant to Federal ob-ligations of record on or after January 1,1971, for real property acquired for right-of-way, and the Federal share of the costwhich would have been paid on the otherFederal-aid system, except where theFederal Highway Administrator givesprior approval for a determination onsome other basis.

(c) Where any construction items andmaterials are utilized on another Fed-eral-aid system, the amount of repay-ment shall be the difference between fileFederal share of the costs incurred pur-suant to Federal obligations on recordon or after January 1, 1971, for con-struction items and materials and theFederal share of the cost which wouldhave been paid on the other Federal-aidsystem, except where the Federal High-way Administrator gives prior approvalfor a determination on some other basis.

(d) Federal-aid Interstate funds whichwere, on or after January 1, 1971, obli-gated on withdrawn Interstate segments,may be released from obligation to theextent that no payments have been madeto the State. 476.408 Repayment of Federal funds

obligated before January 1,1971.All Federal-aid Interstate highway

funds paid to the State for costs incurredon projects that were obligated beforeJanuary 1, 1971, shall be repaid in ac-cordance with the provisions of 476.-410 and 476.412, except*

(a) Preliminary engineering costs;(b) Relocation assistance costs;(c) Incidental right-of-way acquisi-

tion costs; and(d) Construction engineering costs.

476.410 Determination of projectcosts to be repaid on obligations in.curred before January 1, 1971, forreal -property acquired for right-of-Way.

(a) Except where the Federal HighwayAdministrator gives prior approval for adetermination on some other basis, theamount of repayment of project costs onobligations incurred before January 1,1971, for real property acquired for right-of-way shall be determined at the State'sdiscretion in accordance with the follow-ing provisions:

(1) The Federal Pro-rata share of theproceeds of a public sale of the real prop-erty acquired for right-of-way; or

(2) The Federal pro-rata share of thefair market value of the right-of-way asdetermined by an appraisal meeting therequirements of 23 C]FR 720.200-720.204;or

(3) The reimbursed Federal share ofthe original purchase price of the realproperty acquired for right-of-way.

(b) When real property acquired forright-of-way or a portion thereof is


53

PROPOSED RULES

utilized on another Federal-aid system,the

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