SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Table of Contents

I. Background

II. What does this action do?

III. What is the authority for delegation?

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

V. How did DEQ meet the NESHAP program approval criteria?

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

VII. What is being delegated?

VIII. What is not being delegated?

IX. How will statutory and regulatory interpretations be made?

X. What information must DEQ provide to the EPA?

XI. What authority does the EPA have?

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

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

XIV. Final Action

XV. Environmental Justice Considerations

XVI. Statutory and Executive Order Reviews

I. Background

The background for this action is discussed in detail in our November 11, 2021, proposal (86 FR 66990). In that document we proposed to approve a request from the Arkansas Department of Energy and Environment, Division of Environmental Quality (DEQ) to update its existing regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for part 70 sources, as provided for under previously approved delegation mechanisms. We received no public comments on the proposed rulemaking action, and the EPA will not be making any changes to our proposed rulemaking.

II. What does this action do?

EPA is providing notice that it is taking final action to approve DEQ's request updating the delegation of certain NESHAP. With this delegation, DEQ has the primary responsibility to implement and enforce the delegated standards. See sections VII and VIII, below, for a discussion of which standards are being delegated and which are not being delegated.

III. What is the authority for delegation?

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

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

Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a state for the delegation of NESHAP standards if the EPA determines that:

(A) the authorities contained in the program are not adequate to assure compliance by the sources within the state with respect to each applicable standard, regulation, or requirement established under section 112;

(B) adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E, setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation), a state must demonstrate that it meets the criteria of 40 CFR 63.91(d). The regulations in 40 CFR 63.91(d)(3) provide that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d).^[1]

The NESHAP delegation for Arkansas, as it applies to Title V sources, was most recently approved on November 12, 2014 (79 FR 6707).

V. How did DEQ meet the NESHAP program approval criteria?

The EPA granted final interim approval for the Arkansas Operating Permit Program under part 70 in a rulemaking published September 8, 1995. 60 FR 46771. In the Federal Register proposed interim approval of the Arkansas Operating Permit Program, the EPA discussed the delegation of unchanged part 63 standards as they ( printed page 52693) apply to part 70 sources and noted that Arkansas plans to use the mechanism of incorporation by reference to adopt unchanged part 63 standards into its regulations. See59 FR 47828, 47830 (September 19, 1994). In an October 9, 2001, rulemaking, the EPA took final action to fully approve the Arkansas Operating Permit Program. 66 FR 51312. In accordance with 40 CFR 63.91(d), the up-front approval criteria for delegation of unchanged part 63 standards as requested by DEQ have been met. However, the EPA's October 9, 2001, Federal Register final approval failed to discuss the mechanism associated with delegation of the part 63 standards for sources subject to the part 70 permitting program. As discussed above, sources subject to the part 70 program are those sources that are operating pursuant to a part 70 permit issued by the state, local agency, or the EPA. Sources not subject to the part 70 program are those sources that are not required to obtain a part 70 permit from either the state, local agency, or the EPA (see 40 CFR 70.3); e.g., exempted area sources. As stated above, the CAA section 112(l) requirements for approval of the Arkansas program for straight delegation were satisfied when the EPA granted approval of the Arkansas Operating Permit Program. The EPA's approval also met the up-front criteria set forth in 40 CFR 63.91(d).

Since DEQ implements and enforces unchanged part 63 standards (“straight delegation”) through its EPA-approved Title V Operating Permit Program, EPA addressed several issues to ensure the requirements for delegation under CAA section 112(l) and 40 CFR part 63, subpart E, were met. A Memorandum of Agreement (MOA), dated September 17, 2014, was executed by the State and the EPA, a copy of which has been included in the docket for this rulemaking. See also65 FR 55813 (September 14, 2000) and 79 FR 67073 (November 12, 2014). DEQ implements and enforces part 63 standards applicable to Title V sources required to obtain a part 70 permit by including the applicable part 63 standards in Title V operating permits, in accordance with the procedures set forth in the MOA. The permit must be effective prior to the first substantial compliance date for all future new and revised part 63 standards, unless DEQ has notified the EPA in advance that it does not intend to accept delegation for implementation or enforcement, as discussed in the MOA referenced above. Adequate resources will be obtained through monies from the State's Title V program that can be used to fund acceptable Title V activities. Upon promulgation of a new or revised part 63 standard, DEQ will immediately begin activities necessary for timely implementation of the standard. These activities will involve identifying sources subject to the applicable requirements and notifying these sources of the applicable requirements. Nothing in the Arkansas program for straight delegation is contrary to Federal guidance.

Under 40 CFR 63.91(d)(2), once a state has satisfied the up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. As stated in its October 27, 2021, supplemental letter, DEQ has affirmed that it still meets the up-front approval criteria and referenced the previous demonstration.

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

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

VII. What is being delegated?

By letter dated September 28, 2020, and supplemental letters dated June 29, 2021, and October 27, 2021, the EPA received requests from DEQ to update its existing NESHAP delegation. With certain exceptions noted in section VIII of this document, DEQ's request includes certain NESHAP promulgated by the EPA at 40 CFR part 63, as amended between September 17, 2014, and July 31, 2020. More specifically, DEQ is requesting to update its delegation and approval to implement and enforce 40 CFR part 63 standards as they apply to part 70 major sources, and only to those area sources subject to the Title V (part 70) permitting requirements.

VIII. What is not being delegated?

DEQ has not requested, nor is this rulemaking, delegating the enforcement and implementation of 40 CFR part 63 standards to DEQ that would apply to area sources which do not require a Title V (part 70) permit. In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II, subpart A, authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. In addition, some part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are being delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not delegate any authority under section 112(r), the accidental release program.

All inquiries and requests concerning implementation and enforcement of the excluded standards in the State of Arkansas should be directed to the EPA Region 6 Office.

The EPA is making a determination that the NESHAP program submitted by Arkansas meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E.

IX. How will statutory and regulatory interpretations be made?

In approving the NESHAP delegation, DEQ will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR part 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.

X. What information must DEQ provide to the EPA?

( printed page 52694)

DEQ must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, DEQ must submit to EPA Region 6 on a semi-annual basis, copies of determinations issued under these authorities. See40 CFR 63.91(g)(1)(ii). For part 63 standards, these determinations include: § 63.1, Applicability Determinations; § 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; § 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; § 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; § 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; § 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; § 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; § 63.7(e)(2)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; § 63.7(e)(2)(iv), (h)(2) and (3), Waiver of Performance Testing; § 63.8(c)(1) and (e)(1), Approval of Site-Specific Performance Evaluation (Monitoring) Test Plans; § 63.8(f), Approval of Minor Alternatives to Monitoring; § 63.8(f), Approval of Intermediate Alternatives to Monitoring; §§ 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; § 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; and § 63.7(a)(4), Extension of Performance Test Deadline.

XI. What authority does the EPA have?

We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved state rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of part 63. We are delegating to the DEQ some of these authorities, and retain others, as explained in sections VII and VIII above. In addition, the EPA may review and disapprove state determinations and subsequently require corrections. See40 CFR 63.91(g)(1)(ii). EPA also has the authority to review DEQ's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See40 CFR 63.96.

Furthermore, we retain the authority in an individual emission standard that may not be delegated according to provisions of the standard. Finally, we retain the authorities stated in the October 9, 2001, rulemaking, where the EPA took final action to fully approve the Arkansas Operating Permit Program. See66 FR 51312.

The updated 40 CFR part 63 standards being requested by DEQ are discussed in their request letter and supplemental letters to EPA, as noted in section VII above. A copy of each of these three letters is included in the docket for this action. A table of the updated NESHAP standards being requested may be found in the docket for this action. The table also shows the authorities that cannot be delegated to any state or local agency.

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

For the delegated part 63 standards and authorities covered by this final action, sources will submit all of the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NESHAP (40 CFR part 63) directly via electronic submittal to online EPA database portals that are specified in each rule, and also as paper submittals to the DEQ at the following address: The Arkansas Department of Energy and Environment, Division of Environmental Quality, 5301 Northshore Drive, North Little Rock, Arkansas 72118-5317. The DEQ is the primary point of contact with respect to the delegated NESHAP. The EPA Region 6 waives the requirement that courtesy notifications and reports for delegated standards be submitted to the EPA in addition to DEQ in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).^[2] For those standards and authorities not delegated as discussed above, sources must continue to submit all appropriate information to the EPA.

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

Consistent with the EPA regulations and guidance,^[3] DEQ will only need to periodically submit a written request to EPA, Region 6, to update its approval of the delegation of authority to implement and enforce new or revised part 63 standards through its approved Title V permitting program. In such request, DEQ will reference the previous up-front approval demonstration, reaffirm that it still meets the up-front approval criteria, and identify the new or revised part 63 standards that will be delegated upon incorporation into Title V permits.

The EPA will respond in writing to the request and take action in the Federal Register to inform the public and affected sources of the EPA's decision, indicate where source notifications and reports should be sent, and update 40 CFR 63.99(a)(4), amending the Arkansas table of delegated part 63 standards being implemented and enforced by DEQ.

XIV. Final Action

In this action, because DEQ's request meets all requirements of CAA section 112(l) and 40 CFR 63.91, the EPA is approving their request for the updated delegation and the continued approval of the mechanism used to implement and enforce certain part 63 standards applicable to sources required to obtain a Title V (part 70) permit, as they existed though July 31, 2020.

As for the part 63 standards which have not yet been incorporated into permits, DEQ's authority to implement and enforce new and revised part 63 standards under this delegation becomes effective when this action is finalized, and after the issuance of the appropriate federally enforceable permit containing those standards. DEQ's authority to implement and enforce new and revised part 63 standards under this delegation will become effective according to the procedures outlined in the MOA, a copy of which is included in the docket for this rulemaking.

Nothing in this action should be construed as permitting, allowing, or establishing a precedent for any future request for revision to the approved delegation. Each request for revision to the approved delegation shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

XV. Environmental Justice Considerations

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” ( printed page 52695) of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” ^[4] EPA is providing additional analysis of environmental justice associated with this action. We are doing so for the purpose of providing information to the public, not as a basis of our final action.

EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Arkansas.^[5] The EPA then compared the data to the national average for each of the demographic groups.^[6] The results of the demographic analysis indicate that, for populations within Arkansas, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (28.7 percent versus 40.7 percent). Within people of color, the percent of the population that is Black or African American alone is higher than the national average (15.7 percent versus 13.6 percent) and the percent of the population that is American Indian/Alaska Native is lower than the national average (1.0 percent versus 1.3 percent). The percent of the population that is two or more races is lower than the national averages (2.3 percent versus 2.9 percent). The percent of people living below the poverty level in Arkansas is higher than the national average (15.2 percent versus 11.4 percent). The percent of people over 25 with a high school diploma in Arkansas is similar to the national average (87.2 percent versus 88.5 percent), while the percent with a Bachelor's degree or higher is below the national average (23.8 percent versus 32.9 percent). These populations and others residing in Arkansas may be vulnerable and subject to disproportionate impacts within the meaning of the Executive order described above.

The authorities contained in the Arkansas air program to implement and enforce Federal section 112 rules as promulgated, without changes for both part 70 major sources and those area sources subject to Title V (part 70) permitting requirements, are adequate to assure compliance by sources within the State with respect to each applicable standard, regulation, or requirement established under section 112. This final action approves the requests from the State to update its NESHAP delegation under section 112 of the CAA. Final approval of the updated NESHAP delegation is necessary for the State of Arkansas to implement Federal requirements that ensure control strategies and permitting that will achieve emissions reductions and contribute to reduced environmental and health impacts on those residing, working, attending school, or otherwise present in vulnerable communities in Arkansas. This final rule is not anticipated to have disproportionately high or adverse human health or environmental effects on communities with environmental justice concerns because it should not result in or contribute to emissions increases in Arkansas.

XVI. Statutory and Executive Order Reviews

Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, the EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of the EPA's implementing regulations. Accordingly, this final action merely approves the State's request as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this final action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

For the reasons stated in the preamble, 40 CFR part 63 is amended as follows:

1. The authority citation for part 63 continues to read as follows:

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

2. Section 63.99 is amended by revising paragraph (a)(4) to read as follows:

87 FR 52692