Air pollution control: Operating permits programs; interim approval expiration dates; extension,

[Federal Register: February 14, 2000 (Volume 65, Number 30)]

[Rules and Regulations]

[Page 7290-7294]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14fe00-7]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-6535-2]

Extending Operating Permits Program Interim Approval Expiration Dates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: This action amends the operating permits regulations of EPA. Those regulations were originally promulgated on July 21, 1992. These amendments extend up to June 1, 2002, all operating permits program interim approvals. This action will allow permitting authorities to combine the operating permits program revisions necessary to correct interim approval deficiencies with program revisions necessary to implement the revisions that are anticipated to be promulgated in late 2001.

DATES: The direct final amendments will become effective on March 30, 2000. The direct final amendments will become effective without further notice unless EPA receives relevant adverse comments on or before March 15, 2000. Should the Agency receive such comments, it will publish a timely withdrawal informing the public that this rule will not take effect.

ADDRESSES: Comments. Comments should be submitted (in duplicate, if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-93-50 (see docket section below), U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. The EPA requests that a separate copy also be sent to the contact person listed below.

Docket. Supporting material used in developing the proposal and final regulatory revisions is contained in Docket Number A-93-50. This docket is

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available for public inspection and copying between 8:30 a.m. and 5:30 p.m., Monday through Friday, at the address listed above, or by calling (202) 260-7548. The Docket is located at the above address in Room M- 1500, Waterside Mall (ground floor). A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Roger Powell, Mail Drop 12, United States Environmental Protection Agency, Research Triangle Park, North Carolina 27711 (telephone 919-541-5331, e-mail: powell.roger@epa.gov).

SUPPLEMENTARY INFORMATION: A companion proposal to this direct final rule is being published in the Federal Register. If relevant adverse comments are timely received by the date specified in this action, EPA will publish a document informing the public that this rule will not take effect and the comments will be addressed in a subsequent final rule based on the proposed rule. If no relevant adverse comments on this direct final rule are timely filed, then the direct final rule will become effective on March 30, 2000, and no further action will be taken on the companion proposal published today.

1. Background

   On August 29, 1994 (59 FR 44460) and August 31, 1995 (60 FR 45530), EPA proposed revisions to the part 70 operating permits regulations. Primarily, the proposals addressed changes to the system for revising permits. A number of other less detailed proposed changes were also included. Altogether, State and local permitting authorities will have a complicated package of program revisions to prepare in response to these changes once promulgated. The part 70 revisions are anticipated to take place in late 2001.

   Contemporaneous with permitting authorities revising their programs to meet the revised part 70, many programs have been granted interim approval which will require permitting authorities to prepare program revisions to correct those deficiencies identified in the interim approval action. The preamble to the August 31, 1995, proposal noted the concern of many permitting authorities over having to revise their programs twice; once to correct interim approval deficiencies, and again to address the revisions to part 70. In the August 1995 preamble, the Agency proposed that States with interim approval ``* * * should be allowed to delay the submittal of any program revisions to address program deficiencies previously listed in their notice of interim approval until the deadline to submit other changes required by the proposed revisions to part 70'' (60 FR 45552). The Agency also proposed ``* * * to exercise its discretion under proposed Sec. 70.4(i)(1)(iv) to provide States 2 years to submit program revisions in response to the proposed part 70 revisions * * *'' (60 FR 45551).

2. Discussion

   1. Purpose of Interim Approval Extensions

      On October 31, 1996 (61 FR 56368), EPA amended Sec. 70.4(d)(2) to allow the Administrator to grant extensions to interim approvals so permitting authorities could take advantage of the opportunity to combine program revisions as proposed August 31, 1995. The Agency does not believe, however, that the August 31, 1995 blanket proposal to extend all interim approval program revision submittal dates until up to 2 years after part 70 is revised is appropriate. Program deficiencies that caused granting of interim approval of permitting programs vary from a few problems that can be easily corrected to complex problems that will require regulatory changes and, in some cases, legislative action. Where an undue burden will be encountered by developing two program revisions, combining program revisions and thus granting a longer time period for submission of the program revision to correct interim approval deficiencies is warranted. Where no such burden will occur, the Agency encourages permitting authorities to proceed with correcting their interim approval program deficiencies and not wait for the revised part 70.

      Due to several controversial issues, the revisions to part 70 have been delayed beyond the date contemplated by the August 31, 1995 proposal. For permitting authorities to be able to combine program revisions, an agency's program interim approval cannot expire. The Agency must therefore extend any interim approval that may expire before the part 70 revisions are promulgated.

   2. Original Action

      In the original October 31, 1996, action addressing this subject, all interim approvals granted prior to the date of issuance of a memorandum announcing EPA's position on this issue (memorandum from Lydia N. Wegman to Regional Division Directors, ``Extension of Interim Approvals of Operating Permits Programs,'' June 13, 1996) were extended by 10 months. This action was to encourage permitting authorities to proceed with program revisions within their interim approval timeframes, rather than wait for the revised part 70. The June 1996 memorandum is in the docket for this action.

      The reason for this automatic extension was that permitting authorities, upon reading the August 1995 proposed action, may have delayed their efforts to develop program revisions to address interim approval deficiencies because they believed the proposed policy to extend interim approvals until revised part 70 program revisions are due would be adopted for all programs. The EPA has been informed that this was the case in many States. Approximately 10 months passed since the August 1995 proposal until the June 1996 memorandum was issued. The additional 10-month extension to all interim approvals offset any time lost in permitting authority efforts to develop program revisions addressing interim approval deficiencies. This 10-month extension was not applicable to application submittal dates for the second group of sources covered by a source-category limited interim approval.\1\

      \1\ Several States have been granted source-category limited interim approvals. Under that type approval, a subset of the part 70 source population is to submit permit applications during the first year of the program. The application submittal period for the remaining sources begins upon full approval of the program. The Agency concludes this second group of sources should still submit permit applications during a period beginning on the original expiration date of a State's interim approval as opposed to any extension of that date.

   3. Process for Combining Program Revisions

      As noted in the June 1996 memorandum, where the permitting authority applies for it after part 70 is revised, EPA may grant a longer extension to an interim approval so that the program revision to correct interim approval program deficiencies may be combined with the program revision to meet the revised part 70. Such a request must be made within 30 days of promulgation of the part 70 revisions. This will make it possible for EPA to take a single rulemaking action to adopt new interim approval deadlines for all programs for which such an application has been made.

      As required by Sec. 70.4(f)(2), program revisions addressing interim approval deficiencies must be submitted to EPA no later than 6 months prior to the expiration of the interim approval. The dates for permitting authorities to submit their combined program revisions to address both the revised part 70 and the interim approval

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      deficiencies will be 6 months prior to the interim approval expiration dates which will be set through a future rulemaking.

      The longer extension allowing combining of program revisions to meet both the revised part 70 and interim approval deficiencies will be based on the promulgation date of the revisions to part 70. If only regulatory changes to a program are needed to meet the revised part 70, the extension may be for up to 18 months after the part 70 revisions. If legislative changes are needed to a program to meet the revised part 70, the extension may be for up to 2 years. As previously noted, the program revision submittal date will be 6 months prior to expiration of the extended interim approval.

3. Interim Approval Extensions

   The June 13, 1996, memorandum and the October 31, 1996, action anticipated promulgation of the part 70 revisions no later than early 1997. As a result of not being able to promulgate the revisions to part 70 by early 1997, on August 29, 1997, EPA extended interim approvals a second time (62 FR 45732). In that action, EPA anticipated the part 70 revisions would be promulgated by mid-summer 1998 and thus extended all interim approvals that would have expired before October 1, 1998, up until that date. This would have provided the necessary time for agencies to apply to combine their program revisions and EPA to take action on those requests.

   In early 1998 it appeared that the delay in resolution of issues would prevent promulgation of the part 70 revisions until around December 1999. Accordingly, on July 27, 1998 (63 FR 40054), EPA published a direct final rulemaking extending interim approvals until June 1, 2000.

   The EPA has resolved the issues associated with the upcoming part 70 revisions; however the Agency finds that several aspects of the program it intends to promulgate are not natural outgrowths of previous proposals. A proposal notice is now being prepared to cover those program aspects and is anticipated to be published in the Federal Register in the Spring of 2000. Promulgation of the entire package of part 70 revisions is now anticipated for late 2001.

   The EPA believes that the action to extend interim approvals in this rulemaking is necessary because of further delays in promulgation of the part 70 revisions. Due to these delays, all interim approvals will expire before part 70 is revised, thus denying these agencies the opportunity to combine program revisions. The EPA is aware that many States have been expecting to be able to combine the program revision correcting their interim approval deficiencies with the program revision to address the revised part 70. The Agency estimates that it may take until June 1, 2002, to receive all State requests for combining program revisions and to take the necessary rulemaking action to grant the final extension to those interim approvals. This action, therefore, moves all interim approval expiration dates up to June 1, 2002.

4. Administrative Requirements

   1. Docket

      The docket for this regulatory action is A-93-50. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this rulemaking. The principal purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that the parties can effectively participate in the rulemaking process and (2) to serve as the record in case of judicial review (except for interagency review materials). The docket is available for public inspection at EPA's Air Docket, which is listed under the ADDRESSES section of this notice.

   2. Executive Order (E.O.) 12866

      Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether each regulatory action is ``significant,'' and therefore subject to the Office of Management and Budget (OMB) review and the requirements of the Order. The Order defines ``significant'' regulatory action as one that is likely to lead to a rule that may:

      1. Have an annual effect on the economy of $100 million or more, adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

      2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

      3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligation of recipients thereof.

      4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

      Pursuant to the terms of E.O. 12866, it has been determined that this action is not a ``significant'' regulatory action because it does not substantially change the existing part 70 requirements for States or sources; requirements which have already undergone OMB review. Rather than impose any new requirements, this action only extends an existing mechanism. As such, this action is exempted from OMB review.

   3. Regulatory Flexibility Act Compliance

      Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities. In developing the original part 70 regulations, the Agency determined that they would not have a significant economic impact on a substantial number of small entities. Similarly, the same conclusion was reached in an initial regulatory flexibility analysis performed in support of the proposed part 70 revisions (a subset of which constitutes the action in this rulemaking). This action does not substantially alter the part 70 regulations as they pertain to small entities and accordingly will not have a significant economic impact on a substantial number of small entities.

   4. Paperwork Reduction Act

      The OMB has approved the information collection requirements contained in part 70 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060- 0243. The Information Collection Request (ICR) prepared for part 70 is not affected by the action in this rulemaking notice because the part 70 ICR determined burden on a nationwide basis, assuming all part 70 sources were included without regard to the approval status of individual programs. The action in this rulemaking notice, which simply provides for an extension of the interim approval of certain programs, does not alter the assumptions of the approved part 70 ICR used in determining the burden estimate. Furthermore, this action does not impose any additional requirements which would add to the information collection requirements for sources or permitting authorities.

   5. Unfunded Mandates Reform Act

      Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit

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      analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

      The EPA has determined that the action in this rulemaking does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector, in any one year. Although the part 70 regulations governing State operating permit programs impose significant Federal mandates, this action does not amend the part 70 regulations in a way that significantly alters the expenditures resulting from these mandates. Therefore, the Agency concludes that it is not required by section 202 of the UMRA of 1995 to provide a written statement to accompany this regulatory action.

   6. Submission to Congress and the General Accounting Office

      The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

   7. Applicability of Executive Order 13045

      Executive Order 13045, ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1977), applies to any rule that EPA determines

      (1) is ``economically significant'' as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

      This final rule is not subject to E.O. 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866, and it does not address an environmental health or safety risk that would have a disproportionate effect on children.

   8. Executive Order 13132 (Federalism)

      Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that 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.'' Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

      If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

      This rule change will 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. This rule change will not create new requirements but will only extend an existing mechanism to allow permitting authorities to more efficiently revise their operating permits programs. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

1. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments

   Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the

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   regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

   This rule does not significantly or uniquely affect the communities of Indian tribal governments because it applies only to State and local permitting programs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

   10. National Technology Transfer and Advancement Act

   Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by one or more voluntary consensus standard bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

   This rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

   List of Subjects in 40 CFR Part 70

   Environmental protection, Administrative practice and Procedure, Air pollution control, Integovernmental relations.

   Dated: February 4, 2000. Carol M. Browner, Administrator.

   For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as set forth below.

   1. The authority citation for part 70 continues to read as follows:

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

      Appendix A to Part 70 [Amended]

   2. Appendix A of part 70 is amended by the following:

      1. Revising the date at the end of the third sentence in paragraph (a) under Texas to read ``June 1, 2002''; and

      2. Revising the date at the end of the following paragraph's to read ``June 1, 2002'': Paragraph (a) under Alaska, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, Vermont, Virgin Islands, Virginia, West Virginia, and Wisconsin; paragraphs (a), (b), and (c) under Alabama and Nevada; paragraphs (a), (b), (c)(1), (c)(2), (d)(1), and (d)(2) under Arizona; paragraphs (a) through (hh) under California; paragraphs (a) and (e) under Tennessee; and paragraphs (a) through (i) under Washington.

      [FR Doc. 00-3205Filed2-11-00; 8:45 am]

      BILLING CODE 6560-50-U