[Federal Register Volume 66, Number 127 (Monday, July 2, 2001)]
[Proposed Rules]
[Pages 34901-34906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16570]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FL-T5-2001-01a; FRL-7006-4]
Clean Air Act Proposed Full Approval of Operating Permit Program;
State of Florida
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: EPA proposes to fully approve the operating permit program of
the Florida Department of Environmental Protection (FDEP). Florida's
operating permit program was submitted in response to the directive in
title V of the 1990 Clean Air Act (CAA) Amendments that permitting
authorities develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources and to certain other sources
within the permitting authorities' jurisdiction. EPA granted interim
approval to Florida's Title V operating permit program on September 25,
1995. The State revised its program to satisfy the conditions of the
interim approval and this action proposes approval of those revisions.
Also, other program changes made by the State since the interim
approval are being proposed for approval as part of this action.
DATES: Comments on the program revisions discussed in this proposed
action must be received in writing by August 31, 2001.
ADDRESSES: Written comments on this action should be addressed to Gracy
R. Danois, Air Permits Section, Air & Radiation Technology Branch, EPA
Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8909. Copies of
Florida's submittals and other supporting documentation relevant to
this proposed action are available for inspection during normal
business hours at EPA Region 4, Air & Radiation Technology Branch, 61
Forsyth Street, SW, Atlanta, Georgia 30303-8909.
FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Air Permits Section,
EPA Region 4, at (404) 562-9119 or [email protected].
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
What is the operating permit program?
What is being addressed in this document?
What are the program changes that EPA is approving?
What is involved in this final action?
What Is the Operating Permit Program?
Title V of the CAA Amendments of 1990 required all state and local
permitting authorities to develop operating permit programs that met
certain federal criteria. In implementing the title V operating permit
programs, the permitting authorities require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. The focus of the title V operating permit program is to
improve enforcement by issuing each source a permit that consolidates
all of the applicable CAA requirements into a federally enforceable
document. By consolidating all of the applicable
[[Page 34902]]
requirements for a facility, the source, the public, and the permitting
authorities can more easily determine what CAA requirements apply and
how compliance with those requirements is determined.
Sources required to obtain an operating permit under this program
include: ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain operating permits. Examples of major sources include those
that have the potential to emit 100 tons per year (tpy) or more of
volatile organic compounds (VOCs), carbon monoxide (CO), lead, sulfur
dioxide (SO2), nitrogen oxides ( NOX), or
particulate matter (PM10); those that emit 10 tpy of any
single hazardous air pollutant (specifically listed under the CAA); or
those that emit 25 tpy or more of a combination of hazardous air
pollutants (HAPs). In areas that are not meeting the National Ambient
Air Quality Standards for ozone, CO, or PM10, major sources
are defined by the gravity of the nonattainment classification. For
example, in ozone nonattainment areas classified as ``serious,'' major
sources include those with the potential of emitting 50 tpy or more of
VOCs or NOX.
What Is Being Addressed in This Document?
Where a title V operating permit program substantially, but not
fully, met the criteria outlined in the implementing regulations
codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted
interim approval contingent on the State revising its program to
correct the deficiencies. Because Florida 's operating permit program
substantially, but not fully, met the requirements of part 70, EPA
granted interim approval to the program in a rulemaking published on
September 25, 1995 (60 FR 49343). The interim approval notice
stipulated four conditions that had to be met in order for the State's
program to receive full approval. Florida submitted seven revisions to
its interimly approved operating permit program; these revisions were
dated April 29, 1996, February 11, 1998, June 11, 1998, April 9, 1999
(two submittals), July 1, 1999, and October 1, 1999. This Federal
Register notice describes changes that have been made to Florida's
operating permit program since interim approval was granted.
What Are the Program Changes That EPA Proposes To Approve?
As stipulated in EPA's September 25, 1995 rulemaking, full approval
of Florida's Title V operating permit program was made contingent upon
the following rule changes:
I. Insignificant Activities Provisions
A. Provide EPA with an acceptable justification for establishing a
source's aggregate emissions threshold of 50 tpy for triggering the
State's CO reporting requirements in the permit application. Otherwise,
the State must establish CO emissions thresholds that are consistent
with its emissions thresholds for PM10, SO2,
NOX, and VOCs. In response to this deficiency, the State
revised Rule 62-213.420(3)(c)3.a., Florida Administrative Code (F.A.C.)
to include a reduced reporting threshold of 5 tpy for CO. The state-
effective rule revision was submitted to EPA on April 29, 1996.
B. Revise Rules 62-4.040(1)(b), 62-210.300(3), and 62-213.400,
F.A.C. to provide that:
(1) Permit applications do not omit information needed to determine
or impose applicable requirements (as defined in Rule 62-213.200(6),
F.A.C.);
(2) Insignificant activities or emission units will be included in
the determination of whether a source is major; and
(3) Emissions thresholds for insignificant activities or emission
units will not exceed 5 tpy for regulated air pollutants and 1000
pounds per year for individual HAPs, or different thresholds that the
State demonstrates are insignificant.
In response to these deficiencies, the State revised Rule 62-
210.300(3), F.A.C. to establish that the list of activities ``exempted
from permitting requirements'' contained in Rule 62-210.300(3), F.A.C.
and the general exemption contained in Rule 62-4.040, F.A.C. can only
be used for title V purposes if the activities proposed for
consideration as ``insignificant'' also comply with the criteria
contained in Rule 62-213.430(6)(b), F.A.C. Rule 62-213.430(6)(b),
F.A.C., in turn, establishes the emission thresholds for individual
activities or units, which are no more than 500 pounds per year of lead
and lead compounds expressed as lead, 1,000 pounds per year of any
individual HAPs, 2,500 pounds per year of total HAPs, and 5 tpy of
regulated air pollutants. Rule 62-210.300(3), F.A.C. also establishes
that ``the emissions from the exempt units or activities shall be
considered in determining whether a facility containing such emissions
units or activities would be subject to any applicable requirement'',
which adequately addresses the deficiency noted in B.(2) above.
Further, Rule 62-213.400, F.A.C. was revised to delete all references
to Rules 62-210.300(3) and 62-4.040, F.A.C. The state-effective rule
revision was submitted to EPA on April 29, 1996.
With regard to the deficiency noted in item B.(1) above, Rule 62-
213.420(3)(n), F.A.C. was revised to require the applicant to submit
any information needed to demonstrate that the units or activities are
considered insignificant under the provisions of Rule 62-213.430(6),
F.A.C. This rule revision was also submitted to EPA on April 29, 1996.
Of note is that the citation for the definition of applicable
requirement given in item B.(1) is no longer correct; the correct
citation is now Rule 62-210.200(31), F.A.C.
In addition, in the discussion regarding insignificant activities
contained in the Federal Register notice granting final interim
approval to Tennessee's operating permit program (61 FR 39335, July 29,
1996), EPA responded to the June 17, 1996, Ninth Circuit Court of
Appeals decision in Western States Petroleum Association (WSPA) v. EPA,
No. 95-700034 (June 17, 1996) [87 F.3d 280 (9th Cir. 1996)] by stating
that the language contained in Florida's Rule 62-210.300(3) ``can be
read as creating an exemption from permit content.'' In a February 14,
1997, letter to Florida (R. Douglas Neeley, Chief, Air & Radiation
Technology Branch, EPA Region 4, to Howard L. Rhodes, Director,
Division of Air Resources Management, FDEP), EPA identified additional
problematic language in Rules 62-4.040(1) and 62-213.430(6)(a), F.A.C.
In response to EPA's concerns, Florida deleted the language ``exempted
from permitting'' and replaced it with ``considered insignificant'' in
Rules 62-213.300 and 62-213.430, F.A.C. And though Rules 62-4.040(1)
and 62-210.300(3), F.A.C. still provide for exemptions from permitting,
Rules 62-213.300(3)(a) and 62.213.430(6)(b), F.A.C. take precedence and
dictate how the other rules are to be applied for title V purposes. The
State voluntarily took this action in order to avoid any further
misinterpretations of their intent to consider certain emission units
or activities ``insignificant'' for title V purposes. The state-
effective rule revisions rules were submitted to EPA on February 11,
1998.
C. Remove or revise the following specific exemptions:
(1) Rule 62-210.300(3)(a), F.A.C. exempting ``(s)team and hot water
[[Page 34903]]
generating units located within a single facility and having a total
heat input, individually or collectively, equaling 50 million BTU/hr or
less, and fired exclusively by natural gas except for periods of
natural gas curtailment during which fuel oil containing no more than
one percent sulfur is fired * * *.''
(2) Rule 62-210.300(3)(r), F.A.C. exempting ``[p]erchloroethylene
dry cleaning facilities with a solvent consumption of less than 1,475
gallons per year.''
(3) Rule 62-210.300(3)(u), F.A.C. exempting ``[e]mergency
electrical generators, heating units, and general purpose diesel
engines operating no more than 400 hours per year * * *.''
(4) Rule 62-210.300(3)(x), F.A.C. exempting ``[p]hosphogypsum
disposal areas and cooling ponds.''
In response to these deficiencies, Florida made the following
revisions to Rule 62-210.300(3), F.A.C. and submitted the state-
effective rule revisions to EPA on April 29, 1996:
(a) Rule 62-210.300(3)(a), F.A.C. was changed to limit the units to
operate no more than 3000 hours per year while firing natural gas and
no more than 400 hours per year while firing fuel oil containing no
more than 1.0% sulfur. In a subsequent rulemaking, this exemption was
redefined to address steam and hot water generating units located
within a single facility and having a total heat input, individually or
collectively, equaling 100 million BTU/hr or less. All references to
units with a total heat input of 50 million BTU/hr or less were deleted
from the rule language. The new exemption restricts the annual use of
fuel oil containing no more than 1.0% sulfur to 145,000 gallons, fuel
oil containing no more than 0.5% sulfur to 290,000 gallons, fuel oil
containing no more than 0.05% sulfur to one million gallons, natural
gas to no more than 150 million standard cubic feet, or propane to no
more than one million gallons;
(b) Rule 62-210.300(3)(a)20, F.A.C. (previously 62-210.300(3)(r),
F.A.C.) was changed to limit the fuel consumption of emergency
generators to 32,000 gallons per year diesel fuel, 4,000 gallons per
year of gasoline, 4.4 million standard cubic feet per year of natural
gas or propane, or an equivalent prorated amount if multiple fuels are
used; and,
(c) Rule 62-210.300(a)25, F.A.C. (previously Rule 62-210.300(3)(x),
F.A.C.) was modified to provide an exemption only for phosphogypsum
cooling ponds and inactive phosphogypsum stacks that have demonstrated
compliance with the requirements of 40 CFR 61, Subpart R.
To address item C.(2) above, Florida deleted the temporary
exemption for small dry cleaners contained in Rule 62-210.300.(3)(b)2.,
F.A.C. (previously contained in Rule 62-210.300(3)(r), F.A.C.), because
these facilities were going to be permitted under a title V general
permit. In addition to redefining the exemptions described above to
ensure that potential major sources are not inadvertently exempted from
state permitting requirements, the State included language in Rule 62-
210.300(3)(a), F.A.C., to clarify that in order for the exemptions to
be considered insignificant for title V purposes, they must also meet
the criteria contained in Rules 62-213.300(3)(a) and 62.213.430(6)(b),
F.A.C. The State submitted the state-effective rule revisions to EPA on
February 11, 1998.
II. Permit Reopening Provisions
The State was required to make the regulatory provisions for permit
reopenings for cause consistent with 40 CFR 70.7(f)(1) (i), (iii), and
(iv). In response, Florida revised Rules 62-213.430(4) and 62-
213.430(5), F.A.C. to reference the provisions contained in 40 CFR
70.7(f). The State submitted the revised rules to EPA on April 29,
1996.
III. Other Program Revisions
In addition to the changes described above, the State of Florida
made the following substantive changes to its program after it received
interim approval:
A. Rule Repeals/Conforming Amendments
In response to an Executive Order from the Florida Governor, all of
the State's agencies were required to significantly reduce their number
of administrative rules. To address that order, the Florida Department
of Environmental Protection repealed rules in Chapters 62-213 and 62-
214, F.A.C., and made conforming amendments within Chapters 62-210, 62-
213, and 62-214, F.A.C. In most cases, the language in the various
rules was moved without changes. The title V-related rule changes
primarily involved corrections to internal rule citations that were
made necessary by the rule reorganization. The following substantive
changes were submitted for EPA's approval on April 29, 1996:
(1) All of the definitions in Rules 62-210, 62-213, 62-214, 62-296,
and 62-297, F.A.C. were consolidated in Rule 62-210.200, F.A.C.;
(2) The definition of ``applicable requirement'' in Rule 62-
210.200(29), F.A.C. was modified to include permit conditions contained
in a federally enforceable state operating permit (FESOP);
(3) The definition of ``major source of air pollution or title V
source'' in Rule 62-210.200(172), F.A.C. was revised to exclude the
Standard Industrial Classification (SIC) code when determining whether
a facility is a major source of HAPs; and,
(4) The definition of ``modification'' in Rule 62-210.200(182),
F.A.C. was revised to include the terms from the definition of
``modification'' in former Rule 62-213.200, F.A.C.
B. Incorporation of White Paper Guidance
Florida revised Rules 62-210.900(1), 62-210.900(2), and 62-
213.420(3), F.A.C. to incorporate the flexibility described in the
EPA's July 10, 1995, guidance memorandum entitled ``White Paper for
Streamlined Development of Part 70 Permit Applications.'' The following
revisions were submitted to EPA for approval on April 29, 1996:
(1) The title V permit application now requires identification
only, at the facility level, of all pollutants with potential to emit
(PTE) equal to or greater than a major source thresholds, all
synthetically minor pollutants, and all pollutants subject to a
numerical emissions limitation or work practice standard at one or more
emissions unit at the facility;
(2) As a result of the change described in item (1), the
requirement to perform facility-wide reporting was eliminated from the
permit application requirements, except for those sources subject to a
facility-wide emissions cap;
(3) The permit application requirements were modified to clarify
that for regulated emissions units (i.e., those which emit at least one
emission-limited pollutant or are subject to a unit-specific work
practice standard for the control of a pollutant or family of
pollutants or to a unit-specific visible emissions standard), all parts
of the application must be completed. However, only quantitative
emissions information needs to be provided for the emissions-limited
pollutants;
(4) For unregulated emissions units (i.e., those with no emission-
limited pollutants and no applicable work practice standards), the
permit application requirements were modified to require descriptions,
not quantification, of the pollutants emitted. The required information
also includes the pertinent SIC code, the maximum emission rate, and
descriptions of the
[[Page 34904]]
emission units and any air pollution control equipment; and,
(5) For all emission units, the permit application requirements
were modified to require identification of all pollutants emitted at a
source as follows:
(a) Each emission-limited pollutant (for regulated emissions units
only); and,
(b) Each pollutant emitted in a significant amount. Specifically,
CO, NOX, SO2, PM10, and VOC must be
identified if the emissions unit has a PTE equal to or greater than 5
tpy. Lead must be identified if the emissions unit has a PTE equal to
or greater than 500 pounds per year. Each HAP must be identified if the
emissions unit has a PTE equal to or greater than 1000 pounds per year
and the facility is major for such HAP. Total HAPs must be identified
if the emissions unit has a PTE equal to or greater than 2,500 pounds
per year and the facility is major for total HAPs.
C. Title V General Permits
Florida's definition of a title V source includes any source
subject to standards or regulations under section 112 of the CAA,
except that a source is not subject to the State's operating permit
program solely because it is regulated under section 112(r) of the CAA
or solely because it is subject to a reporting requirement under
section 112. The effect of this provision is to bring all sources
subject to the National Emissions Standards for Hazardous Air
Pollutants (NESHAPs) program into the State's Title V program even
though EPA has allowed ``area sources'' to be deferred from permitting.
An ``area source'' is defined as any stationary source of HAPs that
does not emit more than 10 tpy of any single HAP or 25 tpy of any
combination of HAPs.
To reduce the burden of permitting area sources, Florida developed
five general permits covering the following NESHAP requirements:
asbestos manufacturing and fabrication facilities (40 CFR 61, Subpart
M), perchloroethylene dry cleaning facilities (40 CFR 63, Subpart M),
chromium electroplating and anodizing facilities (40 CFR 63, Subpart
N), ethylene oxide sterilization facilities (40 CFR 63, Subpart O), and
halogenated solvent degreasing facilities (40 CFR 63, Subpart T).
Florida's general permits are permits-by-rule and are contained in Rule
62-213.300, F.A.C. Approximately 1,280 facilities in Florida are
operating under these general permits, and most of them are
perchloroethylene dry cleaning facilities.
The State submitted a request for approval of its general permit
provisions to EPA on February 11, 1998. A revised request for approval
of Rule 62-213.300, F.A.C. was submitted on April 9, 1999. In the
revised request, the State asked for EPA's approval of an adjustment to
the requirement for perchloroethylene dry cleaning facilities to submit
semiannual startup, shutdown, and malfunction reports. The State
requested that, in lieu of submitting semiannual reports, these
facilities be allowed to retain the records onsite and submit reports
of such deviations during facility inspections and with the annual
compliance certifications required by 40 CFR 70.7(c)(5). The State's
revised request was also submitted pursuant to section 112(l) of the
CAA and EPA granted approval of the section 112(l) request on December
28, 1999 (64 FR 72568). However, as stated in the notice, this change
does not exempt or delay any title V recordkeeping and compliance
reporting requirements required of all title V sources in Florida.
Florida's implementation of its general permits program has brought
about 85% of the covered area sources into compliance; sources that
would otherwise be deferred from permitting requirements. Success of
the State's program has been attributed to periodic inspection of the
sources to ensure that the requirements of the general permits are
being properly implemented. In addition, Florida has documented that
perchloroethylene use has decreased throughout the state, thus
contributing to a significant reduction in emissions from
perchloroethylene dry cleaning facilities.
D. Fee Reassessment
On June 11, 1998, Florida sent a letter to EPA redefining the costs
eligible for funding with title V fee revenues. Title V-related ambient
air monitoring and State Implementation Plan development activities
were deleted from Florida's list of eligible costs because the
activities were being funded with other monies. As a result of this
action, Florida expects to avoid a fee increase until the year 2003.
Additionally, Florida submitted an update regarding its title V fee
program on October 1, 1999. The information provided in this update
showed that no significant changes have been made to the State's fee
program and it also demonstrated that Florida's Title V program is
adequately funded by the fees collected. Because Florida has
demonstrated that its operating permit program is adequately funded,
EPA finds that the program satisfies the fee requirements of 40 CFR
70.9.
E. Minor Source Air Construction Permits (New Source Review) Partially
Merged Program
On January 22, 1999, the State of Florida adopted amendments to
Rule 62-210.300(1)(b)1., F.A.C. allowing conditions in minor source air
construction permits to be changed when a title V permit or a FESOP
containing these conditions is issued. These actions are, however,
limited to changes that do not constitute modifications under Title I
of the CAA (i.e., physical changes in, changes in the method of
operation of, or additions to facilities that would result in increased
emissions). The practical effect of these rule changes is to streamline
the permitting process by eliminating the need for permittees to
request that old minor source construction permits be reissued to make
the changes approvable and federally enforceable before incorporating
them into a FESOP or title V permit. The state-effective rule revision
was submitted to EPA on April 9, 1999.
F. Compliance Assurance Monitoring (CAM) Rule Adoption
On April 7, 1998, the State of Florida adopted the CAM rule (40 CFR
part 64) by reference into Rule 62-204.800(11), F.A.C. and made
conforming amendments to Rule 62-213.440, F.A.C. These rule revisions
were submitted to EPA on April 9, 1999.
G. Periodic Monitoring Rule
On July 7, 1998, EPA sent a letter to the State of Florida (from
Winston A. Smith, Director, Air, Pesticides, and Toxics Management
Division, EPA Region 4, to Howard L. Rhodes, Director, Division of Air
Resources Management, FDEP) declaring that the State was inadequately
administering its title V operating permit program by failing to
include adequate periodic monitoring requirements in its title V
permits (pursuant to 40 CFR 70.6). The State was also notified that EPA
would issue a formal notification of deficiency, in accordance with the
procedures outlined in 40 CFR 70.10, if action was not taken to rectify
the deficiency. The basis for EPA's finding of deficiency was the
State's assertion that it lacked regulatory authority to require
periodic monitoring beyond that already included in the underlying
applicable requirement. EPA had granted interim approval to Florida's
Title V program with the understanding that since Florida's rules were
essentially identical to the part 70 rule, the State would implement
its program consistent with EPA's interpretation of 40 CFR 70.6 by
[[Page 34905]]
requiring insufficient monitoring already contained in applicable
requirements to be supplemented with periodic monitoring requirements
in title V permits. However, in practice, the State did not interpret
its regulatory language in this manner and as a result was preparing
permits that did not require monitoring sufficient to assure compliance
with applicable requirements.
In response to the issues described in the July 7, 1998 letter,
Florida initiated rulemaking and submitted revisions to Chapter 62-213,
F.A.C. to EPA on July 1, 1999. The following rule changes became state-
effective on July 15, 1999:
(1) Rule 62-213.420, F.A.C. was amended to clarify that the State
may require additional periodic monitoring related information in the
title V permit application in order to better evaluate the sufficiency
of the monitoring requirements; and, (2) Rule 62-213.440, F.A.C. was
amended to require the inclusion of periodic monitoring requirements in
title V permits, to clarify what constitutes sufficient monitoring, to
state the conditions under which monitoring records must be retained,
and to provide examples of applicable requirements that contain
sufficient monitoring requirements.
EPA believes that the changes described in this portion of the
notice are appropriate and it is therefore proposing to approve these
regulatory changes along with the State's Title V program final full
approval.
What Is involved in This Final Action?
The Florida Department of Environmental Protection has fulfilled
the conditions of the interim approval granted on September 25, 1995,
and EPA is proposing full approval of the State's operating permit
program. EPA is also proposing approval of other program changes made
by the State since the interim approval was granted.
Administrative Requirements
I. Request for Public Comments
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the Florida submittals and other supporting
documentation used in developing the proposed full approval are
contained in a docket maintained at the EPA Region 4 office. The docket
is an organized and complete file of all the information submitted to,
or otherwise considered by, EPA in the development of this proposed
full approval. The primary purposes of the docket are: (1) To allow
interested parties a means to identify and locate documents so that
they can effectively participate in the approval process, and (2) to
serve as the record in case of judicial review. EPA will consider any
comments received in writing by August 1, 2001.
II. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
III. Executive Order 12988
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this proposed rule, EPA has taken the
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the Executive Order. This proposed 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.
IV. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is
determined to be ``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, EPA
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 proposed rule is not subject to Executive Order 13045 because
it is not an economically significant regulatory action as defined in
Executive Order 12866, and it does not involve decisions intended to
mitigate environmental health or safety risks.
V. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly affects 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 the Office of Management and Budget, 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
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.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. This proposed action does not
involve or impose any requirements that affect Indian Tribes.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this proposed rule.
VI. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 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
[[Page 34906]]
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.
This proposed rule 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,
because it merely approves a state rule implementing a federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. Thus, the
requirements of section 6 of the Executive Order do not apply to this
proposed rule.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
This proposed rule will not have a significant impact on a
substantial number of small entities because part 70 approvals under
section 502 of the Act do not create any new requirements but simply
approve requirements that the State is already imposing. Therefore,
because this proposed approval does not create any new requirements, I
certify that this proposed action will not have a significant economic
impact on a substantial number of small entities.
Moreover, due to the nature of the federal-state relationship under
the CAA, preparation of a flexibility analysis would constitute federal
inquiry into the economic reasonableness of state action. The CAA
forbids EPA to base its actions concerning SIPs on such grounds (see
Union Electric Co. v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2)).
VIII. Unfunded Mandates Reform Act of 1995
Under sections 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
federal mandate that may result in estimated costs to state, local, or
tribal governments in the aggregate, or to the private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that this proposed approval action does not
include a federal mandate that may result in estimated costs of $100
million or more to either state, local, or tribal governments in the
aggregate, or to the private sector. This proposed federal action
approves pre-existing requirements under state or local law and imposes
no new requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
proposed action.
IX. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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. 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. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This proposed action is not a ``major rule'' as defined by 5
U.S.C. section 804(2).
X. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this proposed action must be filed in the United States Court of
Appeals for the appropriate circuit by August 31, 2001. Filing a
petition for reconsideration by the Administrator of this proposed rule
does not affect the finality of this rule 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) of the CAA.]
XI. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
In reviewing operating permit programs, EPA's role is to approve
state choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use VCS, EPA has no authority to disapprove an operating permit
program for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews an operating permit program, to
use VCS in place of an operating permit program that otherwise
satisfies the provisions of the CAA. Therefore, the requirements of
section 12(d) of NTTAA do not apply.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 22, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 01-16570 Filed 6-29-01; 8:45 am]
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