[Federal Register Volume 66, Number 228 (Tuesday, November 27, 2001)]
[Rules and Regulations]
[Pages 59161-59166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29383]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-7107-4]
RIN 2060-AJ60
Change to Definition of Major Source
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action promulgates a proposed change to the definition of
``major source''. The change would no longer require States to provide
that sources in categories subject to standards under section 111 or
112 promulgated after August 7, 1980 must include fugitive emissions in
determining major source status under section 302 or part D of title I
of the Act. The EPA is making this change to address a petition by the
American Mining Congress (now known as the National Mining Association)
challenging the requirement in the current regulation that sources in
all section 111 or 112 categories must count fugitive emissions,
regardless of when the section 111 or 112 standards were promulgated,
in determining major source status under section 302 or part D of title
I. By making this change, we will also allow full approval in several
State programs that contain the August 7, 1980 date.
EFFECTIVE DATE: November 27, 2001.
ADDRESSES: Docket No. A-93-50 contains information considered by EPA in
developing the promulgated rule and is available for public inspection
between 8:00 a.m. and 5:30 p.m., Monday through Friday, excluding
Federal holidays, at the following address: U.S. EPA, Air and Radiation
Docket and Information Center (6102), 401 M Street SW, Washington, DC
20460, telephone (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 docket materials.
FOR FURTHER INFORMATION CONTACT: For further information, contact Mr.
Raymond H. Vogel, Jr., Operating Permits Group, Information Transfer
and Program Implementation Division (MD-12), Office of Air Quality
Planning and Standards, U.S. EPA, Research Triangle Park, North
Carolina 27711, telephone number (919) 541-3153, facsimile number (919)
541-5509, electronic mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities
Categories and entities potentially affected by this action include
facilities currently required to obtain title V permits by State
programs because of having been required to count fugitive emissions
for sources in categories subject to section 111 or 112 standards
promulgated after August 7, 1980.
World Wide Web (WWW)
After signature, the final rule will be posted on the policy and
guidance page for newly proposed or final rules of EPA's Technology
Transfer Network at http://www.epa.gov/ttn/oarpg/t5.html. For more
information, call the TTN HELP line at (919) 541-5384.
Table of Contents
I. Background and Public Participation
II. Response to Comments on Proposed Rule
A. Proposal to insert August 7, 1980 date into paragraph
(2)(xxvii) of the ``major source'' definition.
B. Proposal to delete the phrase ``but only with respect to
those air pollutants that have been regulated for that category.''
III. Administrative Requirements
A. Executive Order 12866: ``Significant Regulatory Action
Determination.''
B. Regulatory Flexibility Act Compliance as amended by the Small
Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5
U.S.C. 601 et seq.
C. Paperwork Reduction Act.
D. Submission to Congress and the Comptroller General.
E. Unfunded Mandates Reform Act.
F. Executive Order 13132 (Federalism).
G. Executive Order 13175: Consultation with Tribes.
H. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks.
I. Executive Order 13211 (Energy Effects).
J. National Technology Transfer and Advancement Act.
I. Background and Public Participation
Title V of the Clean Air Act (the Act) requires EPA to promulgate
regulations governing the establishment of operating permits programs.
The current regulations were promulgated on July 21, 1992 and codified
at 40 CFR part 70. All major sources are required to obtain Title V
operating permits. Major sources include those sources subject to
prevention of significant deterioration (PSD) and nonattainment new
source review (NSR), and any other sources with the potential to emit
100 tons per year of an air pollutant. To determine major source status
under section 302 or part D of title I, the current rules require you
to count fugitive emissions if you are subject to a standard under
section 111 or 112, regardless of when the standard was promulgated.
The EPA proposed to revise the definition of ``major source'' for
section 302 and part D of title I in August, 1994 to limit the
requirement to count fugitive emissions to source categories regulated
by section 111 or 112 standards promulgated as of August 7, 1980. (See
59 FR 44460, August 29, 1994.) We proposed this revision in response to
a petitioner who asserted that EPA could not require that fugitive
emissions be counted for determining major source status until EPA
conducted rulemaking as required under section 302(j) of the Act. The
EPA has not performed such rulemaking; therefore, we are today revising
the rule to add the August 7, 1980 date. In the future, EPA will
consider doing rulemaking under section 302(j) for individual source
categories.
Subsequently, in August 1995, EPA proposed to revise the same part
of the ``major source'' definition that it had proposed to change in
1994, this time to limit the requirement to count fugitive emissions
for section 111 or 112 standards to those standards for which EPA had
performed the rulemaking required under section 302(j). (See 60 FR
45530, August 31, 1995.) This change was proposed simply for
administrative reasons, to allow EPA to avoid revising part 70 each
time it performed a section 302(j) rulemaking. Today's rule does not
adopt this language because some commenters expressed concern about
knowing whether EPA had performed the latest section 302(j) rulemaking
and which source categories they must as a result consider in
determining major source status. Nevertheless, EPA will approve a State
program that adopts the language we proposed in August, 1995 in lieu of
the language promulgated in today's rule because the 1995 language
effectively covers the same source categories.
The EPA also proposed in the same 1995 notice to delete the phrase
``but only with respect to those air pollutants that have been
regulated for that category.'' The EPA proposed to delete this phrase
to make the regulatory definitions of part 70 consistent with the
corresponding provisions of the PSD and NSR nonattainment programs
(hereafter, the term ``NSR'' is used to refer collectively to both
programs). As
[[Page 59162]]
mentioned later in this preamble, today's rule takes final action by
deleting this phrase.
Under today's final rule, for purposes of determining whether a
source is a major source under section 302 or part D of title I, a
source belonging to a source category subject to a section 111 or 112
standard is required to include fugitive emissions of all regulated
pollutants under section 302 or part D of title I in its calculation of
major source status only if the standard was promulgated as of August
7, 1980. Under today's final rule, for purposes of determining whether
a source is a major source under section 302 or part D of title I,
State title V permitting programs are not required to provide that
sources belonging to categories subject to section 111 or 112 standards
promulgated after August 7, 1980 must include fugitive emissions of all
regulated pollutants under section 302 or part D of title I in
calculating major source status. Sources must, however, continue to
include fugitive emissions of all hazardous air pollutants in
determining major source status under section 112 of the Act.
The final rule takes effect today, November 27, 2001. State
permitting authorities with programs that currently provide the August
7, 1980 limitation on including fugitive emissions need take no action,
since their rules would be consistent with this final rule with respect
to the August 7, 1980 date. Other permitting authorities may, but are
not required to, revise their programs to include the August 7, 1980
limitation. That is, States may include requirements that are more
stringent than the Federal requirements, by requiring sources subject
to section 111 or 112 standards promulgated after August 7, 1980 to
count fugitive emissions in major source determinations under section
302 or part D of title I. (See section 116 of the Act which allows
States, within certain exceptions, to adopt requirements that are not
less stringent than the requirements of the Act.)
Except where legislative action is needed as described in the
following paragraph, States must revise their programs by November 27,
2002 to delete the phrase ``but only with respect to those air
pollutants that have been regulated for that category.'' The
Administrator specifies a deadline of 12 months for submittal of
program revisions to delete the ``but only with respect to'' phrase in
light of the narrow scope of the revision required of State programs.
Authority for this deadline is provided in 40 CFR 70.4(i)(1), which
specifies that the deadline for submittal of revisions to State part 70
programs following revision of relevant Federal regulations is 180 days
or ``such other period as the Administrator may specify, following
notification * * * '' Today's notice is the notification that triggers
the 12-month deadline.
If a State can demonstrate that additional legal authority is
needed, the deadline for submittal of a revised program to delete the
phrase ``but only with respect to those air pollutants that have been
regulated for that category'' is November 27, 2003. Authority for this
deadline is the same provision in 40 CFR 70.4(i)(1) described in the
preceding paragraph for the 12-month deadline.
Any sources that become subject to part 70 because of revisions to
State programs deleting the ``but only with respect to'' phrase must
apply for title V permits either within 12 months of EPA's approval of
the revised State program or by an earlier deadline that the permitting
authority establishes. As provided in section 503(c) of the Act and 40
CFR 70.5(a)(1)(i), a timely application for a source applying for a
permit for the first time is one that is submitted within 12 months
after the source becomes subject to the operating permits program or on
or before such earlier date as the permitting authority may establish.
II. Response to Comments on Proposed Rule
A. Proposal To Insert August 7, 1980 Date Into Paragraph (2)(xxvii) of
the ``Major Source'' Definition
The preamble for the proposed rule in August 1994 described the
rationale for the proposed revision. Public comments were solicited at
the time of proposal and a public hearing was held. Industry
representatives, regulatory agencies, environmental groups, and the
general public were given the opportunity to comment on the proposed
rule and to provide additional information during and after the public
comment period, and at the public hearing.
We received comments on this proposed rule revision, including a
number of comments from industry in support of inserting the August 7,
1980 date in paragraph (2)(xxvii) of the major source definition.
However, several regulatory agencies opposed this change. One of these
agencies commented that source categories regulated by new source
performance standards (NSPS) are the significant source categories and
for this reason should be required to include fugitive emissions for
purposes of applicability determinations. Another agency commented that
State fee levels for title V were based on an evaluation of sources
that would be subject to the program under the original major source
definition, and to change that definition could result in fewer
emission fees which could adversely affect State permitting programs.
The EPA responds that we do agree that sources in categories
subject to section 111 standards are significant sources of emissions.
We also understand that States may have forecasted emission fees based
on the original major source definition, and that overall fees could
potentially drop as a result of this change. However, as EPA noted in
the preamble to the proposed rule, we did not follow the procedural
steps necessary under section 302(j) to expand the scope of sources for
which fugitive emissions must be counted in making major source
determinations. (See 59 FR 44460, 44514.) Because the Agency is
required to undertake rulemaking under section 302(j) before it can
require the inclusion of fugitive emissions of regulated pollutants
under section 302 or part D of title I in major source determinations
and because this rulemaking has not occurred for sources subject to
section 111 or 112 standards promulgated after August 7, 1980, we have
to revise the rule as described.
Finally, today's final rule inserts the August 7, 1980 date using
the exact language from the corresponding provisions in the
nonattainment NSR and PSD regulations in 40 CFR parts 51 and 52. This
ensures that the title V and NSR programs are entirely consistent.
B. Proposal To Delete the Phrase ``but Only With Respect to Those Air
Pollutants That Have Been Regulated for That Category''
Today's action also deletes the phrase ``but only with respect to
those air pollutants that have been regulated for that category'' from
paragraph (2)(xxvii) of the major source definition. The EPA proposed
to delete this phrase in its 1995 supplemental proposal to revise part
70. (See 60 FR 45530, August 31, 1995.)
Five industry commenters opposed the deletion of the phrase. Two of
these commenters recommended that EPA keep the phrase until it
undertakes new rulemaking under section 302(j), at which time the
Agency could expand the types of fugitive emissions that must be
considered when determining major source status. Two other commenters
also noted that the rules implementing title V are intended to ensure
that larger sources of potentially harmful emissions are drawn into the
program more
[[Page 59163]]
quickly than smaller, nonmajor sources. They also noted that the
purpose of the title V program is to compile in one permit all the
requirements for regulated pollutants emitted from a major source.
These commenters believe that neither of these purposes are served by
counting the fugitive emissions of unregulated pollutants in the major
source determination. Commenters also suggested that there is no need
to rush sources subject to section 111 or 112 standards into the permit
program on the basis of unregulated emissions, as these sources will be
required to have permits independently of the major source program if
and when EPA decides to require them to obtain permits. Commenters note
that Congress, under section 502(a) of the Act, gives EPA authority to
exempt nonmajor sources from the permit program by rule, and that this
is evidence of Congressional intent to exclude sources from the program
if the emissions of regulated pollutants do not reach major source
levels.
Commenters also asserted that it is not necessary to count
unregulated fugitive emissions to harmonize the title V program with
the NSR program, as EPA has suggested. Any potential problems caused by
the inconsistency can be easily cured, they assert, by changing the
part 70 rule implementing title V to require that a source required to
have a permit under part C or D of the Act is also required to have a
title V permit.
The EPA disagrees with the approach advocated by the commenters.
The Agency believes it is necessary to have consistent applicability
approaches for the title V and NSR programs because title V
incorporates major source definitions from section 302 and part D of
title I which are used in the NSR program. Inconsistencies between
title V and NSR could lead to a source being considered major under
nonattainment NSR or PSD, but nonmajor under title V.\1\ Being
considered nonmajor has certain ramifications in the part 70 program.
Title V operating permits for nonmajor sources are required under 40
CFR 70.3(c)(2) to include all the applicable requirements for the
emissions units that caused the source to be subject to part 70. If an
emission unit at the nonmajor source did not trigger the requirement to
apply for a title V permit, then none of that unit's applicable
requirements are required to be included in the source's permit.\2\ In
addition, a part 70 source is required under 40 CFR 70.5(c)(3)(i) to
report in its permit application emissions for which it is major as
defined by part 70. If EPA adopted inconsistent applicability
approaches between title V and NSR, a source could exclude reporting
information about emissions for which it is major under title V from
its part 70 permit application, even if it had the potential to emit
those emissions in major amounts under PSD or nonattainment NSR. Also,
deleting the ``but only with respect to those air pollutants that have
been regulated for that category'' phrase will not bring fugitive
emissions of ``unregulated'' pollutants into major source
determinations as commenters assert. Technically, a pollutant is
considered regulated once it is subject to regulation under the Act. A
pollutant need not be specifically regulated by a section 111 or 112
standard to be considered regulated. (See 61 FR 38250, 38309, July 23,
1996.)
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\1\ Consider, for example, a source that has the potential to
emit nonmajor levels of fugitive emissions of particulate matter
(PM) regulated by an NSPS and major levels (over 250 tons) of
fugitive emissions of volatile organic compounds (VOC's) which are
not regulated by this NSPS. If part 70 continued to include the
phrase ``but only with respect to those air pollutants that have
been regulated for that category,'' the source would be nonmajor for
title V because only its PM emissions would be counted. Yet, the
source would be major for NSR because of the VOC emissions.
\2\ All applicable requirements are required to be included,
however, for units that caused the source to be subject to part 70.
(See 40 CFR 70.3(c)(2).)
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The EPA agrees with commenters who pointed out that any source
required to have a permit under part C or D is also required to have a
title V permit. (See section 502(a) of the Act.) However, this does not
make the source a major source for part 70 and the inconsistencies
noted above would still remain. A source required to have a part C or D
permit but considered nonmajor for part 70 would be subject to part 70,
but would not be required to include all applicable requirements for
all emissions units in its title V permit. Additionally, the
requirement in part 70 for a source to report emissions of all
pollutants for which it is major would not be in effect because the
source would be considered nonmajor under part 70. These arguments
point to the need for sources which emit or have the potential to emit
air pollutants in major amounts under NSR to be treated as major
sources under title V. A further argument for consistency is that the
PSD program does not include sources with the potential to emit between
100 and 250 tons/year, whereas the title V program does.
The EPA also disagrees with commenters who contend that Congress
intended for EPA to exempt or defer all nonmajor sources by including
the provision in section 502(a) which allows EPA to exclude nonmajor
sources from the title V program by rule. While Congress gave EPA
discretion to exempt some categories of nonmajor sources if the
Administrator determined that compliance with title V permitting
requirements would be impracticable, infeasible or unnecessarily
burdensome on such categories, it did not require that EPA exclude all
nonmajor sources. In fact, the presumption in section 502(a) is that
nonmajor sources subject to a section 111 or 112 standard will be
permitted. Congress simply provided that EPA could, in its discretion
and after making the necessary finding, exempt some nonmajor sources
from the requirement to obtain a title V permit. Requiring consistent
applicability approaches is wholly within this Congressional intent,
even if it could result in more sources being major under the title V
program compared to approaches suggested by commenters.
Finally, EPA disagrees with commenters who contend that sources in
a category subject to a section 111 or 112 standard should be deferred
from title V if they do not emit major amounts of fugitive pollutants
regulated by that specific standard. Under the approach advocated by
commenters, a source subject to a section 111 or 112 standard emitting
major amounts of fugitive emissions of a pollutant could be considered
nonmajor for part 70 if the pollutant was not regulated by the section
111 or 112 standard that applied to the source. In the view of the
Agency, if a source emits or has the potential to emit major amounts of
fugitive emissions of a regulated pollutant under section 302 or part D
of title I, and there has been the requisite rulemaking performed under
section 302(j), then the source must be considered major and subject to
title V, even if the pollutant is not regulated by a section 111 or 112
standard. Inclusion of fugitive emissions of all regulated pollutants
under section 302 and part D of title I, not just those regulated by
section 111 or 112 standards, is the approach used in the NSR program.
As mentioned previously, EPA believes it is important to maintain
consistency between NSR and title V.
In addition, following the commenters' approach would require EPA
to exempt sources from title V that emit or have the potential to emit
major amounts of fugitive emissions, even if the Agency has undertaken
the rulemaking required by section 302(j). Congress clearly expressed
its intent in section 502(a) to subject major sources to title V by
precluding EPA from exempting major sources from title V requirements.
In addition, Congress
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provided a mechanism in section 302(j) for determining whether fugitive
emissions must be considered in applicability determinations under
section 302 or part D of title I. Where EPA has performed the
rulemaking required by section 302(j), as it has for section 111 and
112 standards promulgated as of August 7, 1980, EPA must follow an
approach that gives due weight to the Congressional intent expressed in
section 502(a) of subjecting major sources to title V. Accordingly, EPA
rejects commenters' views and instead adopts an approach that requires
sources to have title V permits if they are subject to a section 111 or
112 standard promulgated as of August 7, 1980 and emit or have the
potential to emit major amounts of fugitive emissions of any regulated
pollutant under section 302 or part D of title I, even if the pollutant
is not regulated by the section 111 or 112 standard.
III. Administrative Requirements
A. Executive Order 12866: ``Significant Regulatory Action
Determination''
Under Executive Order 12866 (58 FR 51735, October 4, 1993) we must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
adversely affecting in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in 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 entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because this action involves a narrow change to a single regulatory
requirement, it has been determined not to meet any of the criteria
listed above. Thus, it has been determined that this action is not a
``significant regulatory action'' under the terms of Executive Order
12866, and is not subject to OMB review.
Executive Order 12866 also encourages agencies to provide a
meaningful public comment period, and suggests that in most cases the
comment period should be 60 days. The EPA provided a 60-day comment
period and a public hearing on the entire proposed rule, including the
change that is the subject of today's action, in 1994.
B. Regulatory Flexibility Act Compliance as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5 U.S.C.
601 et seq.
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.
We analyzed the potential impact of the proposed regulatory
revisions on small entities and determined that any cost increases
would be substantially less than one percent of revenues. Since today's
action involves a single regulatory provision of the many that were
proposed, we certify that this action will not have a significant
economic impact on a substantial number of small entities.
C. Paperwork Reduction Act
The OMB has approved the information collection requirements
contained in this rule under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control no. 2060-0243.
The Administrator has determined that the net effect of this rule
could result in fewer sources submitting applications for title V
permits, and accordingly, in less paperwork. Some State and local
permitting agencies will be required to revise their title V programs,
and to submit them for EPA and public review, and to respond to
comments.
Because the amount of paperwork could be reduced for some sources,
this action should reduce the overall burden on sources. There could be
minimal increase in burden on some permitting authorities that will be
required to revise their program; however, that increase in burden
should be inconsequential in light of the very limited scope of this
rule. Up to 112 permitting authorities are potential one-time
respondents, although fewer than 112 should need actual rule changes.
Burden means the total time, effort or financial resources expended to
generate, and maintain, retain, or provide information to the
permitting authority as required by this rule. This includes the time
needed to review instructions; develop, acquire, install and use
technology and systems for collecting, validating and verifying
information or processing and maintaining information; adjust the
existing ways to comply with previous instructions and requirements;
train personnel to respond to the collection of information; search
data sources; complete and review the information; and transmit the
information.
D. Submission to Congress and the Comptroller General
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).
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
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 of why that
alternative was not adopted. Before EPA
[[Page 59165]]
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.
Because of the very limited scope of this action, the EPA has
determined that this action contains no regulatory requirements that
might significantly or uniquely affect small governments. The EPA has
also determined that this action 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. Thus, this proposal is not subject to the requirements
of the UMRA.
F. 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. The 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 the Office of Management and Budget (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 action 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
action would not alter the overall relationship or distribution of
powers between governments for the part 70 program. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
G. Executive Order 13175: Consultation With Tribes
It does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), because it does not alter
the relationship or the distribution of power and responsibilities
established in the Clean Air Act. Accordingly, this rule is not subject
to Executive Order 13175.
H. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) economically significant as
defined under Executive Order 12866, and (2) the environmental health
or safety risk addressed by the rule has 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 action is not subject to Executive Order 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.
I. Executive Order 13211 (Energy Effects)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
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, business practices, etc.) that are developed or adopted by
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 action
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, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: November 19, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, part
70 of the Code of Federal Regulations is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
[[Page 59166]]
2. Section 70.2 is amended by revising paragraph (2)(xxvii) of the
definition of ``major source'' to read as follows:
Sec. 70.2 Definitions
* * * * *
Major source * * *
(2) * * *
(xxvii) Any other stationary source category, which as of August 7,
1980 is being regulated under section 111 or 112 of the Act.
* * * * *
[FR Doc. 01-29383 Filed 11-26-01; 8:45 am]
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