Full Delegation of Authority for Prevention of Significant Deterioration of Air Quality; Allegheny County, PA

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Information notice.

SUMMARY:

Allegheny County, Pennsylvania submitted to EPA a request for delegation of authority to implement and enforce the Federal prevention of significant deterioration of air quality (PSD) permit program regulations. The Clean Air Act authorizes the EPA to delegate its authority to implement and enforce the PSD regulations to any state that has submitted a demonstration that it possesses adequate implementation and enforcement resources and procedures. After thorough review of the request and available information, EPA has determined that such delegation of authority is appropriate consistent with the conditions set forth in the letter reproduced below.

EFFECTIVE DATE:

March 26, 2003.

ADDRESSES:

Copies of the request for delegation and related documents are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103 and the Allegheny County Health Department, Air Quality Program, 301 Thirty-Ninth Street, Pittsburgh, Pennsylvania 15201-1891.

FOR FURTHER INFORMATION CONTACT:

David Campbell, U.S. Environmental Protection Agency Region III (3AP11), 1650 Arch Street, Philadelphia, PA 19103 at (215) 814-2196, or by e-mail at campbell.dave@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On February 13, 2003, the Allegheny County, Pennsylvania Health Department submitted a letter requesting full delegation of authority for the implementation and enforcement of the Federal prevention of significant deterioration of air quality (PSD) permit program regulations as codified at 40 CFR 52.21. The PSD program covers any new construction or any major modification of a major stationary air emission source in an area which has air quality better than the national ambient air quality standards. The program requires the issuance of permits prior to construction or modification of certain sources. Allegheny County's letter requests delegation of the Federal PSD program at 40 CFR 52.21. Allegheny County's delegation request does not reference a specific edition of 40 CFR part 52, and expressly requests delegation of the current version of the PSD regulations and any and all future changes to part 52 with regard to the Federal PSD program.

Since 1983, the Allegheny County Health Department has been delegated the authority to implement and enforce the provisions of 40 CFR 52.21 on behalf of EPA. (See 48 FR 55625, December 14, 1983). When EPA granted delegation to Allegheny County in 1983, it specifically delegated to the County the authority to implement and enforce the PSD provisions at 40 CFR part 52, as amended August 7, 1980. The purpose of Allegheny County's February 13, 2003, letter is to request renewal of its existing delegation of authority to include more recent revisions to the PSD regulations at 40 CFR part 52, and to include any and all future revisions of those regulations.

II. Terms of Delegation of Authority

After a thorough review of the request for full PSD program delegation, EPA has determined that such delegation is appropriate subject to the conditions set forth in the following letter to Allegheny County. Therefore, pursuant to 40 CFR 52.21(u), EPA formally notified Allegheny County on March 18, 2003, that the Agency delegates full PSD regulatory authority to Allegheny County, Pennsylvania as of the publication of date of this information notice.

Dr. Roger C. Westman, Manager, Air Quality Program, Allegheny Health Department, 301 Thirty-Ninth Street, Pittsburgh, PA 15201-1891.

Dear Dr. Westman:

Thank you for your February 13, 2003, request to update your existing delegation of authority to implement and enforce the Federal prevention of significant deterioration (PSD) of air quality program. The intent of the request and the following delegation is to update and affirm the existing delegation of authority agreement between Allegheny County and the U.S. Environmental Protection Agency (EPA). As you are aware, EPA granted full delegation of authority for the PSD program to Allegheny County on December 14, 1983. (See, 48 FR 55625).

In 1983, EPA reviewed the pertinent laws of the Allegheny County and the rules and regulations thereof and determined that they provided an adequate and effective procedure for the full implementation of all portions of the Federal PSD program. Based on the representations included in your February 13, 2003, letter, as well as the existing County legal authority, EPA has determined that Allegheny County's laws and regulations continue to provide the legal authority for the full implementation and enforcement of all portions of the Federal PSD program. Therefore, pursuant to 40 CFR 52.21(u), we hereby delegate our authority to Allegheny County for all portions of the Federal PSD program, as described in 40 CFR 52.21, as amended December 31, 2002. Additions, revisions, or deletions to 40 CFR 52.21 adopted by EPA after the date of this letter are incorporated into this delegation of authority agreement on the effective date established by the Federal regulations. The EPA delegates our authority as follows:

1. Authority is delegated for all sources located in Allegheny County subject to review pursuant to the Federal PSD program. This includes all source categories listed in 40 CFR 52.21 for each pollutant regulated by the Clean Air Act.

2. Acceptance of this delegation of authority of the Federal PSD program commits Allegheny County to implement and enforce the Federal PSD program currently promulgated at 40 CFR 52.21 and any additions, revisions, or deletions to 40 CFR 52.21 adopted by EPA after the date of this letter.

3. If at any time there is a conflict between a County regulation and a Federal regulation, the Federal regulation must be applied if it is more stringent than that of the County. If the County does not have the authority to implement a Federal regulation that is more stringent than the applicable County regulation, the pertinent portion of the authority may be revoked.

4. In processing applications for PSD permits pursuant to 40 CFR 52.21, the County shall follow all procedural requirements which the Administrator would be required to follow in processing such applications, whether these procedural requirements are set forth in full in 40 CFR 52.21 or only referenced therein.

5. If EPA determines that the County's procedures for implementing and enforcing any or all of the portions of the PSD program is inadequate, or is not being effectively carried out, the authority granted pursuant to this delegation agreement may be revoked in whole or in part. Any such revocation shall be effective as of the date specified in a notice of revocation to Allegheny County.

6. Allegheny County shall ensure through its interstate intergovernmental cooperation procedures that all potential source interactions along County boundaries are properly determined and considered during the PSD permitting process.

7. Enforcement of the PSD program shall be the primary responsibility of Allegheny County. If the County determines that such enforcement is not feasible and so notifies EPA, or where the County acts in a manner inconsistent with the terms of this granted authority, EPA will exercise its concurrent enforcement authority pursuant to sections 113, 167, and 505(b) of the Clean Air Act, 42 U.S.C. 7413, 7477 and 7661b, with respect to sources within Allegheny County subject to PSD requirements. In accordance with 40 CFR 52.21(r) and sections 113, 167, and 505(b) of the Clean Air Act, EPA reserves the right to commence an enforcement action against any entity in violation of the Federal PSD program should Allegheny County fail to take such an enforcement action or, in the opinion of EPA, fail to pursue a timely or appropriate enforcement action. Section 167 provides that EPA shall issue administrative orders, initiate civil actions, or take whatever other enforcement action may be necessary to prevent construction of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) provides for administrative orders and civil actions whenever EPA finds that the County “is not acting in compliance with” any requirement or prohibition of the Act regarding construction of new or modified sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever EPA finds that a person is in violation of an applicable implementation plan.

8. The County and EPA shall continue to implement a system of communication sufficient to guarantee a program that includes the items described below:

a. Each agency is informed of the current compliance status of sources in Allegheny County subject to the PSD program.

b. Allegheny County shall send a copy of preliminary determinations and public comment notices required pursuant to 40 CFR 52.21(g) to EPA Region III at the same time the notice is being forwarded for publication in the newspaper.

c. Allegheny County shall provide to EPA Region III copies of the final PSD permit at the time of issuance.

d. The status of incomplete permit applications shall be provided to EPA Region III on an as needed basis.

9. Prior EPA concurrence is to be obtained on any matter involving the interpretation of sections 160-169 of the Clean Air Act, 42 U.S.C. 7470-7492, or 40 CFR 52.21 to the extent that implementation, review, administration, or enforcement of these sections have not been covered by determinations or guidance available to Allegheny County.

A notice announcing this delegation of authority of the Federal PSD to Allegheny County will be published in the Federal Register in the near future. This delegation of authority shall be effective as of the publication date of that notice. This delegation of authority should not be construed as a transfer of PSD responsibility under section 110(a)(2)(J) of the Clean Air Act. Such a transfer involves different procedures and considerations.

There is no requirement that the County notify EPA of its acceptance. Unless EPA receives from the County written notice of objections within 10 days of the date receipt of this letter, the County shall be deemed to have accepted all of the terms as stated herein. Finally, EPA commits to continue to provide training and support assistance as requested by the County. If you have any questions regarding this letter, please contact me or Ms. Judith Katz, Director, Air Protection Division.

Sincerely,

Donald S. Welsh,

Regional Administrator.

III. Conclusion

Effective immediately, Allegheny County is the delegated permitting authority to implement and enforce the Federal PSD program and all applications and other information required pursuant to the PSD permit program at 40 CFR 52.21 from sources located or locating in Allegheny County shall continue to be submitted to the Allegheny County, Pennsylvania Health Department at the following address: Allegheny County Health Department, Air Quality Program, 301 Thirty-Ninth Street, Pittsburgh, Pennsylvania 15201-1891.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this information notice is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this information notice is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This information notice imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this information notice will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this information notice delegates pre-existing requirements under Federal law and does not impose any additional enforceable duty beyond that required by Federal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This information notice also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This information notice also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This information notice merely delegates the implementation of a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This information notice also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing delegation requests, EPA's role is to approve state capabilities, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a delegation request for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a delegation request, to use VCS in place of a delegation request that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This information notice granting delegation of the Federal PSD program to Allegheny County issued under the authority of sections 101, 110, and 301 of the Clean Air Act, as amended (42 U.S.C. 7401, 7410, 7601).