[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Rules and Regulations]
[Pages 7290-7294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3205]
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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.
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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
[[Page 7291]]
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: [email protected]).
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.
I. 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).
II. Discussion
A. 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.
B. 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\
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\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.
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C. 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
[[Page 7292]]
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.
III. 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.
IV. Administrative Requirements
A. 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.
B. 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.
C. 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.
D. 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.
E. 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
[[Page 7293]]
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.
F. 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).
G. 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.
H. 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.
I. 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.
J. 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:
a. Revising the date at the end of the third sentence in paragraph
(a) under Texas to read ``June 1, 2002''; and
b. 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. 00-3205 Filed 2-11-00; 8:45 am]
BILLING CODE 6560-50-U